It’s been nearly 25 years since Dontae Spivey was first incarcerated for a murder he says he did not commit: a 1998 execution-style killing of Damion Burrell in the upscale Roland Park neighborhood of Baltimore, all over about $11,000 of cocaine.
From behind bars, Spivey has gone through a handful of attorneys, drawing the attention of the Innocence Project of New York, public defenders and private practice lawyers. Over the last 15 years, he has amassed a trove of legal documents and managed to procure new evidence he believes could finally vindicate him — evidence that was never introduced during his 1999 trial.
On Tuesday, a Baltimore circuit judge said he was “reluctantly” agreeing to postpone a hearing on the new evidence to give Spivey and his attorney time to interview an expert and file a supplemental motion. The evidence in question comes in the form of a DNA sample that was taken from a hat and a sweatshirt recovered near the crime scene.
Prosecutors are not opposing Spivey’s move, though they’ve indicated a defensive posture against any suggestion that he did not kill Burrell. At the Tuesday hearing, Assistant State’s Attorney Michael Leedy said he planned to defend the conviction. Efforts to reach the Burrell family were not successful.
More than two decades ago, prosecutors used the sweatshirt and hat as one of their main pieces of evidence at trial tying Spivey to the murder. On the witness stand, police officers testified that they saw Spivey discard the sweatshirt as he was fleeing from them on foot, and that they found the hat nearby, along with the murder weapon and the cocaine.
Crime scene technicians swabbed the clothing for DNA, which was inconclusive at the time of the trial. But prosecutors argued during trial and in their closing statements that Spivey wore the hat and discarded the shirt, citing it as key evidence of his guilt.
But new rounds of testing have excluded Spivey as a contributor to the DNA samples taken from the sweatshirt and the inner band of the hat. The samples contained multiple “partial profiles” of DNA belonging to other people, but most certainly not Spivey, according to reports and analysis by independent experts hired by Spivey’s attorneys.
The latest DNA report, from 2017, was a bombshell for Spivey, who argues that he was known by police and wanted for other, unrelated crimes. Because they couldn’t charge him with those, Spivey argues, police and prosecutors colluded to pin him with a murder he did not commit.
“Police knew who set the victim up and was the alleged shooter, but they withheld the evidence to secure a conviction against me,” Spivey wrote in a letter from prison in July. “I’m not a saint, but I’m also not guilty of committing these crimes.”
Prosecutors, for their part, conceded during his trial that the case against Spivey was one of “circumstantial evidence.” But, they contended, that evidence added up to prove Spivey committed the murder beyond a reasonable doubt.
Spivey was stopped with another man near the crime scene just after a doctor who lived nearby heard the gunshots, called police and reported seeing two Black men walking away down an alleyway.
And then there was the murder weapon, the drugs, and the keys to the victim’s mother’s car, all discovered where officers first spotted Spivey and his codefendant, Donnell Harris, according to court records (Spivey contends that the items were planted, and his fingerprints were not recovered on any of them).
Both Spivey and Harris were initially cooperative when they were stopped by police on foot on the day of Burrell’s killing. But while they were sitting on the ground and waiting to hear what they were being detained for, they heard a transmission over an officer’s lapel-radio to hold them there.
The realization they were going to be charged with something prompted both of them to flee on foot, according to court records. Spivey’s attorney argued at trial that his client was not running out of guilt but out of fear of suffering abuse at the hands of officers.
Incarcerated in Maryland prisons, Spivey has had time to piece together a case against someone he says is the real killer: Investigators working on his behalf interviewed other incarcerated people from the neighborhood familiar with the crime, and Spivey obtained police notes on his file that he did not receive until 2010, as well as paperwork from related federal criminal cases.
“I grew up in a dysfunctional household and Gwynn Falls Parkway areas of Baltimore City,” Spivey wrote in his letter to The Baltimore Banner. “I hope because I don’t fit into the model citizen category and my family isn’t some political family, rich or someone of importance etc., that won’t stop you from helping me. All I want is to get free.”
Spivey’s attorney representing him in the DNA petition, Elizabeth Franzoso, will have until Sept. 22 to file a supplemental motion with more information about the most recent analysis. A hearing could follow in early December.