The found condom: A DeWayne Ewing mystery

DeWayne-Ewing-wife-Sharon-Chatoo-Ewing, The found condom: A DeWayne Ewing mystery, Behind Enemy Lines
Meet DeWayne Ewing and his wife, Sharon Chatoo Ewing. DeWayne Ewing is a loving husband, father, son and friend. Because the Prison Industrial Slave Complex only knows how to punish, dehumanize and exploit, all the people in DeWayne’s life who give him those titles suffer right along with him. 

by Charlie Hinton

I first learned about DeWayne Ewing from his oldest son, Dominique, who approached me at an Oscar Grant rally in Oakland in the fall of 2009 with a leaflet about his father being in jail because of “planted evidence.” He explained the case to me and his obvious love for his father and belief in his innocence led me to give him my card and offer to help. 

The next day, DeWayne’s mother called me and asked me to help work on the case – and I’ve been working to free DeWayne ever since. 

Sometime in January 1994, DeWayne Ewing and a girlfriend discarded a condom in the bushes of a park in the Oakland Hills known as Lovers Lane. On Jan. 29, a rape took place in the same park and three days after the rape, police found the condom under a bush and put it with the rape kit. 

In her testimony the night of the rape, the victim said there was no condom used in the rape, which is noted in the police report in the rape kit.

In 2001, the Oakland Police Crime Lab made a DNA analysis of the condom, identifying the DNA on the inside of the condom, but not on the outside, concluding that they could only determine that the major contributor of the DNA was a female.

In early 2007, police cold hit matched DeWayne’s DNA with that on the inside of the condom. To get an arrest warrant, the DA’s office lied and told the judge the condom was found in the car where the rape took place – instead of under a bush several days later. 

On May 17, 2007, police pulled DeWayne over for an illegal turn and arrested him for rape. He’s been imprisoned for all but 11 months since. He admits the condom is his, but adamantly maintains his innocence in the rape.

Some facts of the case:

  • The victim couple could not identify him in a police lineup. 
  • His description does not match the police bulletin dispatched after the crime. 
  • There is none of his DNA, hair, fingerprints etc. in the car where the rape took place. 
  • There is none of his DNA on the victim’s vaginal swab or matted pubic hair in the rape kit. 
  • The victim’s story remained consistent from the night of the assault through her grand jury testimony – no condom was used. 

The victim’s grand jury testimony 

Note: DeWayne was charged with his cousin, who also maintains his innocence.

Q. Do you know whether or not, when the thin one raped you, he was wearing a condom?

A. No. I asked him if he had a condom, he said yes, but he never put one on if he had it. 

Q. So, just to clarify, are you saying that the thin one did not have a condom? Or you don’t know if he had a condom?

A. No, he didn’t.

Q. OK. After that several minutes, what did that – what did the thin one do?

A. Got out of the car and instructed his partner that it was his turn.

Q. OK. And did he, as well, insert his penis into your vagina?

A. Yes.

Q. Do you know whether or not that person was wearing a condom?

A. No, he was not.

The prosecutor’s final argument

“And that DNA on that condom is Dewayne Ewing’s. OK? And I know what she said, no condom was worn by either man. That’s what she testified to. She’s wrong. Flat out wrong.” 

The prosecutor got an indictment from the grand jury. 

After spending more than four years in Santa Rita County Jail without trial, DeWayne, refusing a plea deal and demanding a jury trial, finally won a court date. 

Then, in DeWayne’s own words: “Judge Hurley told me he didn’t believe I committed the crime. There was nothing in my character or background that had ever displayed violence; he also mentioned I have no criminal record whatsoever. Then he began to tell me he would have no problem giving me four life sentences, even though I appeared to be innocent, if I insisted on a trial and lost.”

After a preliminary hearing on the morning of July 19, 2011, Judge Joseph Hurley, a former prosecutor and Alameda County chairman of the Republican Party, ordered the courtroom locked during the lunch break and excused the bailiff and stenographer. So, there is no record of this exchange. 

DeWayne’s attorney, William DuBois – who personally told me and DeWayne’s family on two occasions that he would “vigorously defend DeWayne” with an “expert DNA witness prepared to testify” – told DeWayne he did not have enough money to go to trial. 

Then, in DeWayne’s own words: “Judge Hurley told me he didn’t believe I committed the crime. There was nothing in my character or background that had ever displayed violence; he also mentioned I have no criminal record whatsoever. Then he began to tell me he would have no problem giving me four life sentences, even though I appeared to be innocent, if I insisted on a trial and lost.”

Frightened and intimidated, DeWayne accepted a 25-year deal.

Under the deal, DeWayne would serve half of the time or 12 and a half years. He has currently been incarcerated more than 13 years. 

Another factor in DeWayne taking the deal was that he was trying to protect his cousin who was charged as a co-defendant.

In a recent email, DuBois wrote: “DeWayne’s parents were not in court during pre-plea discussions, which were deemed to be in camera in nature and of which there is no transcript. After DeWayne made his decision to plead, but before he actually did so, his parents were permitted into the courtroom to discuss the decision with him. In fact, I told the court I would not permit DeWayne to plead to anything until he had discussed his plea with his parents.” 

DeWayne’s mother, Louise Smalls, responds: “Before we went to lunch, DeWayne was adamant that he wanted to go to trial. DuBois phoned us back during the lunch break and said we should come back to court because DeWayne had something to tell us. 

“When we returned the courtroom was locked. A bailiff came out and said that just DeWayne, DuBois and Judge Hurley were alone inside. Finally, we were allowed in to speak to DeWayne and DuBois said there was a new decision DeWayne was going to tell us. 

“DeWayne was shaking and said he still wanted to go forward with the trial, but the judge told us he was going to give DeWayne four life sentences in prison if he tried to go to trial. He was not going to allow DeWayne to go forward with this trial. DuBois didn’t say anything on DeWayne’s behalf. He did nothing for his defense. DeWayne had no choice. There wasn’t going to be a trial.”

I had been in the courtroom that morning but left at the lunch break to go to work. Louise called me about 2:00 p.m. distraught that DeWayne had agreed to a plea deal. I totally believe her story. There had been no “discussion,” as DuBois maintains. It was a done deal – an announcement, not a negotiation.

In November 2010, DeWayne’s co-defendant’s attorney requested a retest of the DNA evidence against his client, which was different evidence than the condom. Alameda County commissioned Forensic Science Associates in Richmond to do the work. 

Wouldn’t a woman know whether a condom was used, especially after she asked the rapists to use condoms? If no condom was used in the rape, the whole issue of the condom becomes a false issue, a red herring. No wonder this so-called evidence was never introduced in court.

DeWayne didn’t know that the DNA found on the outside of the condom was also going to be retested and since apparently the condom was no longer available to retest, the lab just reinterpreted the findings of the 2001 test. 

And he was never told that this reinterpretation supposedly determined that, yes indeed, the rape victim’s DNA is now on the outside of the condom. DeWayne didn’t know this information until I told him in 2018, after I learned it from Simon Ford, the man who did the reinterpretation.

So why wasn’t this news used to coerce DeWayne to plea deal in 2011? Why was Hurley threatening DeWayne with multiple life sentences if there is valid DNA evidence against him? 

DeWayne says: “I was never told anything about Simon Ford’s testimony not necessarily being in my favor due to the strength of any DNA against me. If the noon meeting was on the up and up and I had been guilty by evidence, there would be no need for Judge Hurley to try to convince me about facing life sentences. He would just come clearly telling me or not about ­­the DNA evidence, never offering a deal … By the time my parents were let back into the courtroom, Hurley and DuBois had convinced me to plead, not with speaking about DNA evidence, but the life sentences I was facing.”

Also, in 2010, Edward Blake from Forensic Science Associates, in court to testify about the DNA, told DeWayne’s family in the hallway during a recess, “A good lawyer could get this case thrown out.” 

So, we have a mystery 

On one side we have DeWayne’s claim of innocence, the woman’s testimony that no condom was used in the rape and the complete absence of any other evidence to link DeWayne to the crime. 

On the other, nine years after the DNA test was done, the results are “reinterpreted” to indicate that the victim’s DNA “cannot be eliminated as a co-contributor to the epithelial cell fraction DNA from the outer surface of the condom” – a condom she testified was never used in the rape. 

Wouldn’t a woman know whether a condom was used, especially after she asked the rapists to use condoms? If no condom was used in the rape, the whole issue of the condom becomes a false issue, a red herring. No wonder this so-called evidence was never introduced in court.

Where is the condom now? How has it been stored? DeWayne maintains that: “In 2010, Mr. DuBois told me that he personally saw the unrefrigerated condom on a shelf. That is why I asked Judge Jacobson then and in my letter to him in 2020 to investigate, but never got a response.” DuBois now says he “doesn’t remember” this conversation.

In his “Statement of Facts: The Story of a Found Condom,” DeWayne writes: “This whole experience was new for me, my family and my wife. I did not realize that justice is not for all – especially me, an innocent man trapped in the California penal system. I am not a criminal. 

DeWayne-Ewings-wife-Sharon-Chatoo-Ewing-joined-car-caravan-demanding-Newsom-free-prisoners-013121-1400x1050, The found condom: A DeWayne Ewing mystery, Behind Enemy Lines
Sharon Chatoo Ewing, DeWayne’s wife, joined the car caravan Sunday, Jan. 31, 2021, demanding Gov. Newsom release vulnerable prisoners immediately.

“Now I truly realize the very shameful and illegal misconduct of both attorney William DuBois and Judge Joseph Hurley against me and my family. I did not take this deal intelligently. I wanted to face my accusers – for them to say to my face that I did this horrible act against them, which they never said I did. 

“The very officials of the court that should protect me from injustice violated my every right as an American citizen. This is a complete travesty of what the judicial system was meant to protect against.” 

DeWayne’s current attorney, Jeffrey Mendelman, has filed a motion to withdraw Dewayne’s plea and ask that any DNA evidence that remains be re-tested and the judge will set the briefing schedule on Friday, Jan. 29, 2021.

District Attorney Nancy O’Malley’s Office is doing everything possible to block DeWayne’s release. Under the deal, DeWayne is eligible for parole under Prop 57, but her office filed letters against DeWayne’s Prop 57 release for the first time in 2020, after two years of being silent. 

When he didn’t have an attorney and he stopped writing letters to the judge, the DA’s office sat silently by, but now that he is re-opening this case, with the help of an attorney, the DA’s office is suddenly opposing every single motion – for parole, for half-time credits to allow him to be released for time served and now, even for re-testing the DNA. 

What legitimate interest is there in not re-testing the DNA? It’s time to solve, once and for all, the DeWayne Ewing mystery.

We are asking the public to contact District Attorney Nancy O’Malley’s office at 510-272-6222 or info@alcoda.org to support letting Dewayne withdraw his plea, give him a fair trial and re-test the DNA. 

Charlie Hinton is a Bay Area-based activist, commentator, actor and playwright who performs the solo show “Solitary Man: My Visit to Pelican Bay State Prison.” He is a member of Haiti Action Committee and the Prisoner Hunger Strike Solidarity Committee to End Sleep Deprivation, and he works with DeWayne Ewing’s family to free DeWayne, an innocent man, from prison. You can reach him at ch.lifewish@gmail.com.