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Released after 8 years

Detroit man out of prison after his conviction is overturned

MT photo: Bruce Giffin
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Published 11/4/2009

Hours after a judge on Tuesday ordered a new trial for Dwayne Provience — imprisoned eight years for a murder that prosecutors at points have said he didn't commit — he emerged from custody to the embraces and tears of family and supporters.

"This is a load off of my back. I want to thank my family, the attorneys at the Innocence Project and the angels that were sent for me: my legal students. ... I want to get back home, get my life together, get into my kids' lives, and be a good dad."

He says he hopes his first meal will be his mom's spaghetti.

Wayne County Circuit Judge Timothy Kenny ordered Provience, 36, freed on $500 personal bond and an electronic tether, granting a motion made by his attorneys from the University of Michigan Law School's Innocence Clinic to set aside his conviction.

"I always knew he didn't do it," his mother, Vonzella Battle, said outside the courtroom just moments after Kenny's order. "It's like all the holidays are happening at once. It's already Christmas."

Provience's continued freedom is not guaranteed, however. At Tuesday's hearing, prosecutors argued that he should again stand trial. At a hearing scheduled for Nov. 24, Provience's lawyers could attempt to convince Kenny that, because of overwhelming evidence that Provience didn't commit the crime, charges against him should be dismissed.

In 2001, a jury found Provience guilty of second-degree murder in the shooting death of Rene Hunter, who was killed in March 2000 on Detroit's northwest side. Kenny sentenced Provience to 32 to 62 years.

Provience's conviction came on the testimony of a primary prosecution witness, Larry Wiley, who was in custody and being questioned for burglary when he told police that Provience was Hunter's shooter. Since the trial, Wiley has changed his story back and forth, telling Provience's attorneys he lied on the witness stand but confirming his trial testimony to authorities. Several witnesses confirming Provience was not the shooter did not appear at trial, and his attorneys argue that omission — the fault of his defense attorney, who has since been disbarred over problems related to other cases — also is grounds for a new trial.

But most damaging to Wayne County Prosecutor Kym Worthy's case against Provience is the argument that prosecutors and police made in 2003 in a separate case. At a trial for what they said was a related killing, then-assistant prosecutor Eric Restuccia — working under then-prosecutor Mike Duggan — said different men killed Hunter, according to court records. Documents from the police investigation in Provience's case also show other witnesses said different men killed Hunter.

But those police records were never shared with Provience's defense attorneys before trial, as is required. Provience's current University of Michigan legal team found them this year and included them with court filing seeking Provience's release.

Assistant Wayne County Prosecutor Jason Williams admitted at Tuesday's hearing that those records were not provided to Provience before his trial, but said his office could go forward with a retrial using witness testimony. "We still have the evidence of Mr. Wiley," he said. "His credibility is questionable with regard to his recantation and does not affect his trial testimony."

Kenny, who in a bench trial in 2001 acquitted Provience's brother, De-Al Provience, of charges in Hunter's death, said Tuesday that Wiley's testimony is problematic. "His post-conviction conduct in this particular matter makes his credibility seriously an issue," he said.

David Moran, co-director of the Innocence Clinic, says he doubts prosecutors will continue their case against Provience, but that students and attorneys will be ready for the Nov. 24 pre-trial hearing Kenny scheduled.

"He is innocent," Moran says. "We believe there will never be a retrial in this case." He blamed Provience's trial attorney as being "grossly inadequate" and said the "suppressed evidence" could be grounds for a civil lawsuit against Detroit police.

Several hours after Tuesday's hearing, Provience had been processed and was freed from the Wayne County Jail to a crush of embraces from family members, including his teenage son and daughter, friends and attorneys.

His brother, De-Al Provience, was among the first to greet him. De-Al, who hadn't seen his brother since the month before, brought him a shirt and pants to wear.

"It's been a rough trail," De-Al said.

A friend of Provience's from prison was also there. DeShawn Reed first attended the hearing where the men flashed each other the "thumbs-up" as Provience left Kenny's sixth-floor courtroom. They embraced when Provience was free.

Reed, of Ecorse, and his uncle, Marvin Reed, were freed this summer (see "Finding innocence," Aug. 12, 2009), their attempted murder convictions set aside after eight years in prison. They also were represented by the Innocence Clinic, which seeks to free people wrongly convicted in cases that do not have DNA evidence.

Sandra Svoboda is a Metro Times staff writer. Contact her at 313-202-8015 or ssvoboda@metrotimes.com.

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