CHICAGO - The prosecution of three men charged with the murder of an off-duty cop may take yet another oddball twist, as lawyers for the defense seek to look inside a decade-old video game console for crucial evidence in the 2011 slaying of Chicago Police Officer Clifton Lewis.
Representatives from Sony next month will appear in a Cook County courtroom to testify about whether data from an obsolete PlayStation 3 might show if one of the accused gunmen in Lewis’ murder was, as he has contended, at home playing NBA 2K12 the night Lewis was killed in a botched robbery at an Austin convenience store.
Lawyers for Tyrone Clay, who was arrested just days after Lewis’ murder and still has yet to go to trial, say that the device shows Clay was logged in to the game and has audio recordings of Clay trash-talking opponents.
"This PlayStation is his alibi," said Assistant Public Defender Marijane Placek, Clay’s attorney. "For years, we were told by the state we wouldn’t be able to get any information off of it, then that it was broken. Well, we got it fixed for $30, and it shows he was playing when he says he was. You can hear his voice, saying he’s going to take a bathroom break."
If it seems odd that potentially blockbuster evidence comes to light more than a decade after the first arrests were made in Lewis’ murder, lawyers for the alleged gunman and his two co-defendants claim it is because of a "cornucopia" of misconduct by police and prosecutors trying to solve a heater case.
Earlier verdict overturned
To date, two of the three men charged in Lewis’ murder have been found guilty at trial — but one of those verdicts was overturned based on allegations of police misconduct. And last week, lawyers for alleged gunman Alexander Villa — who was found guilty at trial in 2019 — filed a 140-page motion for a new trial, claiming police and investigators withheld evidence from defense lawyers.
Alleged getaway driver Edgardo Colon was convicted at trial in 2017 and sentenced to 84 years in prison — only to have his conviction overturned when an appeals court threw out his confession because police continued to question him after Colon repeatedly asked for a lawyer.
Clay’s trial has been delayed by a lengthy — and successful — effort to throw out his own confession, with an appeals court ruling in 2020 that his statement was obtained only after detectives ignored Clay’s repeated requests for a lawyer, and that Clay’s low IQ made him unable to understand his Miranda rights. Both Clay and Colon have recanted their confessions.
According to Villa’s book-length motion for a new trial, detectives also failed to turn over evidence that might have ruled the three men out as suspects early in the investigation: a 2012 FBI report on cellphone data showed none of the three were near the convenience store at the time of the shooting, nor were they together at all that day. Villa’s lawyers also allege that police held onto an "extraction report" on Villa’s girlfriend’s cellphone, key evidence because Villa’s defense had been that he was texting with her at the time of the shooting.
Police files turned over to the defense also didn’t include information about two men who were suspected of robbing the same store two weeks earlier, or reports on interviews with numerous members of the Spanish Cobras street gang who were canvassed by investigators — including one Cobra who was choked by a CPD detective during an interview at Danville prison.
"I honestly don’t know why the state’s attorney won’t just give us a new trial," said Jennifer Blagg, Villa’s attorney. "That is all clearly exculpatory evidence, and between what was not turned over and what they now say has been lost, there is just not much (prosecutors) can say."
In court filings, prosecutors have said that evidence now being requested in a flurry of motions by Villa, Colon and Clay was all available to their lawyers years ago.
"The [defense] motion in its tone and tenor is implying the People hid evidence from the defense. This is not true," prosecutors wrote in a response to defense motion last month.
Prosecutors "are not required by the rules of discovery to be administrative assistants for the defendant or defense counsel," Assistant State’s Attorneys Nancy Aducci and Andrew Varga wrote.
Colon recanted his statement to police almost as he was offering his confession— in fact, over the course of a multi-day interrogation in early 2012, he told detectives he was a "pathological liar" and was only telling them what they wanted to hear. He refused to testify against Villa, even after he was granted immunity by prosecutors, and served a six-month sentence for contempt of court.
"I’m implicating myself because I wanna get out of here." Colon said during his taped interrogation, according to a transcript. "I’m thinking that’s the fastest way to get out of here, so I’m telling you, you know what I’m saying, what you wanna hear so I can get the f- – – out of here."
"Without [Colon’s] confession, we do not believe they will have much of a case against Mr. Colon," said Paul Vickrey, Colon’s lawyer.
A fourth man who was allegedly with Colon, Villa and Clay the night of the murder, Melvin DeYoung, also has recanted and claims he only implicated the three co-defendants after he had spent days in police custody and needed to be hospitalized because he was denied insulin he needed to treat his Type 2 diabetes.
Murdered officer a ‘gentle giant’
The murder of a police officer always draws heavy attention from the media, and Lewis’ death was especially heart-wrenching. The eight-year CPD veteran was regarded as a "gentle giant" by his peers, and Lewis was working the store security job in part to save up money for his wedding— he’d proposed to his girlfriend on Christmas Day, just four days before he was gunned down.
Grainy security camera footage, which was played repeatedly for jurors at both Colon’s and Villa’s trials, showed a violent shootout inside the store, with a gunman jumping over the counter to shoot Lewis at close range, then stealing the dying officer’s service weapon. The cash register held less than $700.
The charges against Colon and Clay were announced the week after the shooting at a joint news conference with then-State’s Attorney Anita Alvarez and former Chicago Police Supt. Garry McCarthy. Villa wasn’t charged with murder until nearly two years later.
Villa’s lawyer, Jennifer Blagg, said the case bears all the hallmarks of previous wrongful conviction cases that she has litigated: a high-profile case, marathon interrogations and coerced confessions.
"These guys have already been in jail, at least my guy and Clay, for more than 10 years," Blagg said. "There is a chance to do the right thing here."