After 15 months, slaying suspect freed

Case is fourth murder prosecution dropped by AG's Office this year

By CRIS BARRISH and SEAN O'SULLIVAN
The News Journal

State prosecutors cut a deal four weeks ago with a man charged with robbery and murder after he promised to testify against his alleged partner in the August 2008 slaying of a Dunkin' Donuts manager.

But on Nov. 20, the state quietly dropped all charges against the alleged partner, Dominique A. Earl, whose capital murder trial was scheduled next month, Attorney General Beau Biden's office said Monday.

Only after Earl contacted The News Journal to say he had been freed from prison did Biden's office confirm the state had dropped its case against him. Earl, who spent more than 15 months in prison, charged that police and prosecutors had "assassinated my character" by falsely accusing him of murder. If convicted, Earl could have faced the death penalty.

Earl, 20, was cleared, court records show, because his cell phone records and interviews with witnesses showed he was not in the parking lot of the Christiana Skating Center on Del. 273 when 46-year-old Kanubhai Patel was robbed and killed by a single gunshot as he walked to work.

The Earl case marks the fourth time since February that a first-degree murder case in Delaware has collapsed, and the second time that occurred after a co-defendant had cut a deal to testify against an alleged accomplice.

Two of the murder cases -- including one against former Delaware State University student Loyer D. Braden, who was charged in a campus shooting that killed a fellow freshman -- fell apart while Biden was in Iraq with his Delaware National Guard unit. Biden returned in late September. The other two cases were dropped late last month.

"The Delaware State Police and our prosecutors discovered new evidence that made it clear that Mr. Earl should not be prosecuted,'' said Biden, who took office in January 2007 and is mulling a 2010 run for the U.S. Senate. Biden would not elaborate or discuss the other dropped murder prosecutions.

Biden spokeswoman Kerry Angell provided The News Journal with a copy of the state's notice that the case was being dropped.

According to that document, prosecutor Joseph S. Grubb wrote that an analysis of Earl's cell records by a state-hired expert shows he "was not at the scene of the crime when the crime occurred" and that further investigation by police confirmed that conclusion.

Angell said in a written statement the department would have no further comment.

Angell would not say whether prosecutors would try to revoke 22-year-old co-defendant Kason M. Horta's plea of guilty to manslaughter, robbery and conspiracy, or whether the investigation remains open.

In Horta's plea, which he and prosecutor John A. Barber signed Oct. 29, Horta agreed "to cooperate with the state and to testify truthfully in his co-defendant's trial." Horta faces five to 51 years in prison.

Neither Grubb nor Barber responded on Monday to a request for an interview.

Jennifer-Kate Aaronson, one of Earl's attorneys, said Horta made statements to police and prosecutors "which proved to be untrue."

Dean Delcollo, Horta's public defender, would not speculate on the status of Horta's plea.

"My guy has pled guilty and is awaiting sentencing. I don't have any other comment on anything," Delcollo said.

Circumstantial evidence

Former Delaware prosecutor Peter N. Letang, now a defense attorney, said prosecutors must look for weaknesses in a case "at the outset" -- not after indictment -- but credited them for not wasting taxpayer money conducting a trial.

Letang stressed, though, that dropping murder cases, especially on the eve of trial, is "not a good way to run a ship."

Patel, who was married with two grown children, was shot to death between 4 and 5:30 a.m. on Aug 8, 2008, in the parking lot between his apartment and the doughnut shop he managed. Known as "Kanu," he had lived in the United States for about five years.

Days after his slaying, state police charged Earl and Horta with first-degree murder, robbery and weapons offenses, saying they picked Patel at random.

At the slaying scene outside the Christiana Skating Rink, police said, they found Horta's fingerprints on a card that belonged to Patel. In addition, Earl was in possession of Patel's cell phone, and had made calls to Horta.

Both suspects have criminal records, according to court records.

Earl was found guilty of criminal contempt in October 2007. Horta was convicted of driving with a suspended license in November 2007, and had previous convictions for drug possession, receiving stolen property, possession of a deadly weapon by a person prohibited, second-degree forgery and conspiracy.

In an interview Monday, Earl said he told detectives he had bought the phone from another man a day or two after the slaying for $20.

"The person who had the phone before me was making phone calls, not me," Earl said.

That man, whose name is being withheld by The News Journal, is currently in prison on unrelated charges and is now a suspect in Patel's murder, said Earl's other attorney, Natalie Woloshin.

Woloshin said Earl, Horta and the other man were acquaintances who frequented an apartment in the Kimberton neighborhood near Newark -- about two miles from the slaying scene -- and were all there the night Patel was killed.

Earl said he was picking up a woman from a birthday party at the time of the crime. Earl said he told detectives he had nothing to do with the slaying, but that police later told Horta that Earl had incriminated Horta.

"So he tried to shift the blame on me to cover himself," said Earl, who was jailed in lieu of $750,000 bail until his Nov. 20 release and said he spent months sleeping on the floor at Young Correctional Institution.

"If they had just investigated like they should have and checked my cell records, they would have known I couldn't have been there. They assassinated my character. I lost my freedom and had a lot of people looking at me differently."

Witness testimony

Woloshin, who spent 11 years as a prosecutor, said witnesses told police Earl bought the cell phone after the slaying but investigators decided to ignore those statements.

"They knew that,'' she said.

State police spokesman Senior Cpl. Jeffrey Whitmarsh said he did not know the case against Earl had been dropped until a reporter informed him Monday. Whitmarsh did not respond to criticisms of the investigation by Earl and Woloshin.

In early October, before Horta pleaded guilty, prosecutors told her that the cell phone records cleared Earl, Woloshin said. After Horta was allowed to plead guilty to a lesser charge, Woloshin said, she wondered how he would be able to testify against somebody prosecutors had concluded was not involved.

"This is really bad," she said. "My God, so much of this irks me, being a former prosecutor. It makes no sense. I never understood why they cut a deal with Horta, except Horta said Earl did it. They have no idea whether Horta is the shooter or not. I'm hoping the state will continue their investigation and hopefully pursue charges against the guy who actually killed Mr. Patel."

Earl, she said, was steadfast in denying his guilt, and even though he faced possible execution if convicted, rejected generous plea offers from prosecutors.

"That really made us believe he didn't do it," she said.

At the Dunkin' Donuts shop Patel managed, his friend and former colleague Jay Patel, who is not related, said the slain man's wife, Ramila, has since moved back to India along with other relatives.

Jay Patel said it's a shame Horta was given a deal in exchange for his testimony against Earl, only to have that plan blow up in prosecutors' faces.

"That's really bad news," he said.