- Associated Press - Sunday, August 2, 2020

JACKSON, Wyo. (AP) - Josh Black sits outside a coffee shop.

It’s July 10, temperatures are in the 90s and the Wyoming wind is whipping hard as he starts to cry.

“It’s the one thing we have as U.S. citizens,” Black said. “We have people who die for our country every day so we can have a fair trial. I never got one.”

Black, who was released from state custody March 11 after almost six years in prison, was recently awarded $135,000 in a settlement against former prosecutor Becket Hinckley, former county attorney Steve Weichman and county attorney Erin Weisman. Weichman, the only one of the three to comment, said: “I am very pleased that it is over and I hope all are reasonably happy with the outcome.”

Black now lives in Casper, works as an electrician. He’s on parole, waiting the OK to return to California, where he’s from.

“I haven’t seen the ocean in six years,” he said. “I just want everyone to leave me alone, and I want to get on with my life.”

Black’s aggravated assault case is a historic one for Teton County.

It left Black with a felony conviction and a life sentence until he convinced the Wyoming Supreme Court four years into his sentence to reverse his conviction because of prosecutorial misconduct.

They awarded him a new trial in 2017, agreeing his first was unjust.

“It was a Salem witch trial,” Black said. “There is no way another jury would have convicted me.”

The case is also the reason former prosecutor Becket Hinckley could lose his license to practice law.

But instead of going through another trial Black took a deal.

“The only thing I regret is not going back to trial,” Black said. “I would have gotten my name cleared.”

Black, 41, was found guilty by a Teton County jury in 2015 for an October 2014 assault against his ex-girlfriend.

He was sentenced to life in prison because past felonies, convictions he has from California, made him a habitual offender under Wyoming law.

But Black says he didn’t do it.

“Never ever ever did I assault her in any way whatsoever,” Black told the News&Guide in the July 10 interview.

Kelli Windsor was beaten so badly she had a brain bleed, nasal bone fractures, two orbital fractures and a skull fracture.

“The impact that this has made on my life is still ongoing,” Windsor told the Jackson Hole News & Guide. “I still have scars from it.”

The photos of her injuries in the investigative file, reviewed by the News&Guide with permission from the Teton County Sheriff’s Office and Teton County Prosecutor’s Office, were too ugly to print.

Windsor told then-detective Danielle Spence that she was 100% sure Black assaulted her.

“I don’t remember what I did to trigger it,” she told Spence in 2014. “And I remember trying to stop him. I remember trying to fight back. I tried to hide in the bathroom, but the door doesn’t lock.”

Windsor is as adamant about Black being guilty as Black is about his innocence.

“He came so close to killing me,” she previously told the News&Guide. “The doctor said if he had hit me one more time I wouldn’t be here.”

Conflicting stories, evidence

It took a full day for the digital case file to download for review at the Teton County Sheriff’s Office.

It has hundreds of photos of Windsor’s injuries, the messy Teton Village apartment that Windsor and Black shared for not even a week before Black’s arrest. There are torn-up love letters from Black to Windsor, a bloody T-shirt, shoes, DNA and blood samples, some of which matched Black’s DNA and some that didn’t.

It was Oct. 27, 2014, just before 7:30 a.m. when 911 received the call.

“She looks like she has been beaten up quite severely,” caller Patricia Russell Nichols said about a photo of Windsor to the dispatcher. “It’s from 2:30 this morning. We don’t even know if she’s OK.”

Patricia Nichols called police after her employee Molly Hufford showed her a text she received from Windsor, who was her coworker and friend.

“what josh did to me,” said the text, sent at 2:23 a.m., alongside a photo of Windsor’s bruised face. “so there is witnesses.”

Windsor moved to Teton County from California to work as a horse trainer for Jake and Patricia Nichols, records state.

A few months into her stay Black moved here to be with Windsor and took a job working construction for Tim Glick, of Dynamic Custom Homes.

The day before the assault, according to the police reports, Windsor and Black went to church. They spent the afternoon buying groceries, eating pizza, giving horse riding lessons, drinking and playing in the first snowstorm of the year.

“Ms. Windsor next recalled that she and Black began fighting,” the Wyoming Supreme Court justices wrote in their appeal ruling. “Although she could not recall what they fought about she recalled throwing Black’s things about their residence.”

Windsor said Black threw her up against a wall and she hit her head, and that she remembers being on the floor with Black hitting her.

“While whaling on her Black continually yelled, ‘you want to fight, b-h?’” the ruling states. “Ms. Windsor’s next memory is of herself on the couch, too afraid to sleep for fear that she had a concussion.”

That’s when Windsor took photos of her swelling and bruised face and sent the photos to Hufford and two of Black’s friends.

His version of that night

Black’s story of that night is different.

He didn’t testify at trial so this is the first time he is publicly recounting his memory of things.

“I had to be up super early for work,” he said. “I went to bed at 8:30 or 9, and then my nightmare happened,” he said. “I got woken up at midnight. The lights are on and the door is open and I see her throwing all my stuff out. I go up to her and as I am approaching she runs to the living room and lays down and covers up.”

Black said he couldn’t see Windsor’s face yet.

“I heard her crying in the bathroom so I went in there and saw her face,” Black said, “and I didn’t know what to do. I panicked. What do you do in that situation? I have a criminal history. So I ask her can I take her to the hospital? You need care.”

Black’s recollection is that Windsor left the apartment after he fell asleep and returned bruised and bloody.

There was evidence that Windsor left the house, her blood on her steering wheel and scratches on her car where she backed into a trashcan that hit her neighbor’s house, but in the police report it says that’s because she tried to leave at some point during the assault. According to police interviews, Windsor doesn’t remember trying to leave.

Black said Windsor didn’t want to go to the hospital.

“Every time I asked her what happened she wouldn’t answer me,” Black recalls. “She wanted me to brush her hair out and go back to bed.”

As Patricia Nichols called the cops, her husband Jake Nichols grabbed his gun and went to Windsor and Black’s apartment. He found the two asleep in bed, according to police reports.

When deputies showed up Black was ready to leave, suitcase in hand. Nichols was standing to the side and Windsor was in the bathroom.

“Due to the fact that he was attempting to leave, the state of the house, and the obvious injuries,” Deputy Doug Raffelson, who was first on scene, wrote in police reports, “I placed Black into investigative detention and placed him in handcuffs.”

Black said he had made the decision the night before to go back to California due to Windsor throwing his belongings out of the apartment.

“I tried to get Black to tell me his side of the events over the next 30 minutes,” Raffelson wrote. “The only thing Black would say is that he went to bed at 2100 hours and when he woke up Windsor had all the damage to her face. Black hinted that Windsor may have done it to herself.”

Deputy Andrew Roundy got there and interviewed Windsor in the bathroom, where Windsor told him it was the first time Black had ever hit her. Roundy’s recorder stopped working during the interview, he said, so there’s no recording of that interview.

Roundy called an ambulance.

Missing evidence

Jackson Hole Fire/EMS Capt. Tyler Dunn was one of the paramedics to arrive. Dunn recorded his conversation with Windsor, though the recording wasn’t entered into the case as evidence until years later.

Dunn called the Teton County Sheriff’s Office in January 2018 when he heard Black was getting a retrial.

“Dunn thought he mentioned the recording to Detective Dani Spence approximately two months after the initial incident,” police reports state. “Dunn recalled Detective Spence telling him, ‘we will get it from you if we need it but it seems like a pretty straightforward case.’”

On the recording you hear Dunn talking to Windsor, who said she didn’t want Black to get in trouble and that she probably aggravated him. Toward the end of the recording you hear Black in the background yelling, “I f—king told you I’m going to jail. Just f—-ing take me to jail.”

The next day at the Teton County Jail deputies took photos of Black’s hands, arms and legs.

Photos show bruising on his palms and some scabs on his fingers.

Black reminded deputies he worked in construction.

Later, at trial, public defender Elisabeth Trefonas asked Glick, Black’s employer, if he remembers Black being injured from a table slipping and falling during a transport. Glick said no.

The state presented the photos of his bruised palms as evidence. It also played up blood found on his clothes that matched Windsor.

One thing the defense emphasized was DNA found under Windsor’s fingernails didn’t match Black’s.

“The fingernail swabs were collected as part of the SANE kit,” the police report stated. “According to the lab report, there was a DNA profile obtained which showed Windsor’s DNA and another unknown contributor. Black was excluded as being the other contributor.”

It’s still unknown whose DNA was under Windsor’s fingernails.

But, according to the police report, Spence didn’t explore that further.

“This makes sense because she had contact with law enforcement, EMS, nurses, doctors, and friends and family,” Detective Spence wrote in parentheses in the police report, “all prior to the SANE kit being collected the day following the assault.”

Windsor did tell investigators about another man she’d been seeing casually at the end of June and early July 2014, before Black moved here. That man’s name was also Josh.

“I asked her again about (other Josh),” Spence wrote in a supplemental police report. “She said they went on their date in June 2014, and hung out the week after at the fair, and Black knew about this. She said she told Black about (other Josh) the week after she had hung out with (other Josh).

It doesn’t appear that police interviewed the other Josh.

There’s also no interview with Windsor’s ex-husband, according to reports, who she was in the process of divorcing when she was assaulted.

But Windsor said he was in California at the time.

Black decided not to testify at his trial because it would open up scrutiny of his criminal past, including several DUIs, drug charges and a few violent incidents, one involving a roommate, the other a stranger.

“I was not a noble person for a big time in my life,” Black said. “I wasn’t living a good life. I was doing everything I shouldn’t be doing.”

Ups and downs of the case

While Black was in prison he used limited access to LexisNexis, a legal research computer program, to teach himself to practice law.

“We had an hour a day in Torrington,” he said. “When I got to prison it was either I could join the gangbangers or make my own path.”

He often filed his own handwritten motions and filed his civil lawsuit against Hinckley. Black said he’d love to become a lawyer now that he’s out but believes the publicity of his case will hurt his chances.

After he appealed his conviction the Wyoming Supreme Court found prosecutorial missteps on behalf of Hinckley and awarded Black a new trial in 2017.

“The prosecutor’s failure to comply with the court’s discovery order is not the only instance of misconduct relevant to our decision,” the Wyoming Supreme Court justices wrote in their 2017 order.

The Wyoming State Bar filed a “formal charge” against Hinckley for violating seven rules of prosecuting during or after Black’s aggravated assault case, including making improper statements (see sidebar). A disciplinary hearing is set for August, but discussions about whether the hearing will be open or closed may delay it.

Black is convinced he would have been exonerated in a second trial.

“I was dead set on it. I wanted to go to trial,” he said. “Then my family came out. They wanted to make sure I came home. A life sentence was a big gamble.”

The Teton County Prosecutor’s Office, led by Steve Weichman at the time, offered him a plea deal instead.

Windsor told the News&Guide she wouldn’t have agreed to a plea agreement but that Weichman didn’t ask her for her blessing.

“This case has a long, tortured history that includes a reversal in Supreme Court,” Weichman said in court at the time. “The resolution we’ve reached is very much in the interest of justice, all things considered.”

The plea agreement, no contest to felony aggravated assault, took the habitual offender enhancement off the table.

“It’s super disappointing,” Windsor said. “I guess some justice was served because Josh went to prison for several years. But the only reason I had done this was to prevent him from hurting someone else.”

It also meant Black went from serving a life sentence to the possibility of getting out after serving just shy of six years.

“I feel like I lived through this John Grisham novel and it’s still not over,” Black said. “What is that twist at the end?”

Black spent the last days of his sentence at the Wyoming Honor Farm in Riverton.

“I went and touched a tree,” he said. “I hadn’t seen a blade of grass in so long. The sagebrush in Rawlins is it. But Riverton is super green, even on the prison yard. There are trees and grass everywhere.”

Attorney Darold Killmer, who’s helped Black through the civil process, said Black was “railroaded” by the Teton County Prosecutor’s Office and the settlement is testament to that.

“This case involved a profound abuse of official authority,” Killmer said. “Prosecutor Hinckley went well beyond the bounds of professional ethics and integrity, and violated Mr. Black’s fundamental constitutional rights in doing so.”

Killmer said government attorneys should take this case as a reason to check their style of prosecution.

“Prosecutors can become blinded to their professional obligation - to seek justice - and pull out all the dirty tricks in the book in the quest for a conviction at any cost,” he said. “That is what happened here. And the (district attorney) shares the blame. These official abuses occurred in broad daylight, and the DA is as responsible as Mr. Hinckley for the deprivation of Mr. Black’s freedom and rights.”

Killmer said the Wyoming Supreme Court recognized the “extreme and outrageous conduct” engaged in by Hinckley, but “not until Mr. Black’s rights were sacrificed at the altar of an out-of-control prosecutor.”

He said the settlement is significant but it won’t replace “the freedom Mr. Black lost.”

“Accountability was too slow, but at least it finally arrived in some sense,” Killmer said. “The people of Wyoming cannot blindly trust the authorities to always do the right thing. … We cannot have two systems of justice, one for the people and one for the high government officials. That is not our system of democracy.”

Black said his days now consist of working, working out, mountain biking and eating good food, food he didn’t have while in prison - like avocados and burritos from Pancho’s, a Mexican restaurant in Casper.

He said stargazing and floating the river will have to suffice until he can get back to surfing in California.

“My life is really good right now,” he said. “I am not glad that any of this ever happened to me. This is the hardest thing I have ever been through. But I am proud of who am I am today.”

County Attorney Erin Weisman, former deputy prosecutor Hinckley and former detective Spence did not provide comment for this story.

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