Benito first called Kathy Stevens on March 7, 1985. This
was two days after Barbara DeCarr’s March 5th deposition in which
she indicated she went to Mr. Tompkins’ mother’s house at
“approximately 9:00 am.” (DeCarr depo. at 16). In her undated
statement, she further indicated that Mr. Tompkins had already
arrived at his mother’s house and “stayed at his mother’s house
until approximately 10:00 am when he left to get some newspapers
to pack dishes with.” In her deposition, she indicated Mr.
Tompkins “could have been” gone “[t]wenty minutes, half an hour.”
(DeCarr depo. at 20). He subsequently left again with his
stepfather (DeCarr depo. at 21).
Kathy’s new version of the facts included her sneaking into
Lisa’s bedroom window at 6:30 AM on March 24th because she and
Lisa were planning to run away after getting in trouble at
school. In the early morning meeting, Kathy said that Lisa
After the body was found, Mrs. DeCarr told the police that
Wayne Tompkins, her ex-boyfriend, was the last person to see Lisa
alive on the morning of March 24, 1983, the day she disappeared.
Based upon Mrs. DeCarr’s claims and the discovery of the body,
Mr. Tompkins was indicted. In early 1985, Mrs. DeCarr was deposed
by Mr. Tompkins’ counsel. Immediately afterwards, the prosecutor,
Mike Benito, started looking for more evidence or another
witness. He contacted Kathy Stevens in March of 1985.8 At first
she maintained that her statements to school officials were true,
that Lisa had runaway to New York and kept in touch with Kathy.
Kathy said that after laying awake and talking to her pillow, she
called the prosecutor. After she was given authorization to visit
a boyfriend who was incarcerated, she changed her story and
claimed that she witnessed Lisa being strangled by Mr. Tompkins
on the morning of March 24, 1983, at around 8:30 AM.9
announced she was not running away after all. So Kathy left.
Later, she realized that she left her purse and had to go back to
get it. When she got there at around 8:30 AM, the front door was
open. She went in and saw Mr. Tompkins strangling Lisa. Lisa
called out for her to call the police. But instead, she went to
the nearby store and ran into Lisa’s boyfriend, Junior Davis.
When she told him what she had just witnessed, he seemed
unconcerned. So, Kathy put the incident behind her and went to
school. In her trial testimony, Kathy said that she went back
later to get her purse with her girlfriend, Kim Lisenby. It was
then Kim who knocked at the door, not Kathy, and may have spoken
with Mr. Tompkins. Kathy indicated that this conversation was
between Kim and Tompkins while she “was at the corner waiting.”
She stated, “I did not hear it” (Stevens depo. at 14).
In her deposition, Kathy gave a different version. There,
she said that Kim Lisenby was with her when she saw Lisa being
strangled. After Lisa told her to call the police, she “grabbed
[her] purse and [ ] left.” (Stevens depo. at 10) “I shut the
door. And I told Kim, I said, ‘Come on, Kim we got to call the
police.’ She said, ‘Don’t get involved.’ And I said, ‘Why?’ And
she said, ‘Because you don’t need to.’ And I said, ‘Okay.’ And I
went to the store and that’s when I ran into Junior.” Id.
In her deposition, Kathy indicated that she “grabbed her
purse” when she left at 8:00 am. (Stevens depo at 10). She also
indicated that after she talked to Junior, “me and [Kim] went
back to the school. I cleaned out my locker, and I went to my
stepmother’s and sat on her porch until she got back. And then I
met Kim at school at 2:00 o’clock. And she cut class. And we went
to go check on Lisa” (Stevens depo. at 14). “It takes about
twenty minutes to get from the school to her house. It was about
2:20, 2:30, something like that.” Id.
Kathy Stevens’ deposition occurred on June 12, 1985.
Kenneth Turco’s deposition occurred on July 15, 1985. At that
time, he said that in late June, 1985, he first talked to Wayne
Tompkins about his case, and that about a week and a half before
the deposition, Mr. Tompkins confessed to him (Turco depo. at
Thereafter, the prosecutor located a jail house informant,
Kenneth Turco, who claimed that Mr. Tompkins had confessed to the
murder.10 Mr. Turco’s testimony so matched Kathy Stevens’ story
that defense counsel argued that the informant had obtained
access to Ms. Stevens’ deposition or statement and used it to
Kenneth Turco was serving a 30-year prison sentence for
burglary and grand theft (R. 301-02). Turco also had been
previously convicted of grand theft, forgery, and burglary (R.
302). Turco acknowledged that there was a confidential informant
system in prison and he had been part of that for the last 4 or 5
years, and that he was “trustworthy” (R. 317). When he was in
jail with Mr. Tompkins, he had just entered a guilty plea on an
escape charge (R. 303). He was waiting to be sentenced (R. 304).
While in the jail, he made contact with Wayne Tompkins after he
“was placed in the cell with him” (R. 305). After his contact
with Mr. Tompkins, Turco contacted prosecutor Benito, who visited
him personally, and promised only “my safety in the jail and that
[he] would tell the judge at my sentencing hearing that I
cooperated and I came forward and testified in a murder trial”
Turco testified that he was not hopeful that his testimony
would help him on the escape sentence because he would still be
doing time anyway (R. 315). However, it had crossed his mind that
his testimony would help him (Id.).
In 1989, Mike Benito, Mr. Tompkins’ prosecuting attorney,
testified that he took over Turco’s prosecution two weeks after
Wayne Tompkins’ sentence of death. He explained, “I walked down
to court. I was about to offer Mr. Turco a negotiation. I got in
here and I looked at Mr. Turco and I said, ‘This guy showed a lot
of guts coming forward as a jailhouse informant to testify as to
what Mr. Tompkins told him.’” (PC-R. 235). So, Benito “got up and
walked down here and announced the case, and said, ‘I nol-pros
it.’” A grateful Turco “looked at [Benito] like he had just been
handed his first bicycle at Christmas.” (PC-R. 236).
mold his testimony.11
Following Kathy Stevens report that she witnessed Mr.
Tompkins’ strangling Lisa at around 8:30 AM, Mrs. DeCarr was able
to remember that contrary to her earlier statements that she had
left the house before 8:30 AM, and at that time Mr. Tompkins was
still there, as was Lisa. This statement contradicted Mr.
DeCarr’s prior statements to police. Previously, her recollection
was that Mr. Tompkins left to take one of her sons to school and
Mrs. DeCarr’s shifting the time line of her account was
necessary because her previous story made Kathy’s story
impossible (between 8:00 AM and 9:00 AM, Barbara had said she was
home and Mr. Tompkins wasn’t and that he did not return to the
house until after 10:00 AM, while Kathy said before going to
school at 8:30 AM or so she saw Mr. Tompkins was assaulting Lisa
on the couch).
Although it presented eight witnesses at trial, the State
advised the jury that “the key testimony will come from three 
witnesses”--Barbara DeCarr (the victim's mother), Kathy Stevens
(the victim’s best friend), and Kenneth Turco (the jailhouse
snitch)--and that “[t]hose three will provide the overwhelming
evidence” that Mr. Tompkins killed Lisa DeCarr on the morning of
March 24, 1983 (R. 108).
The jury did not learn of the information provided Mrs.
DeCarr and Wendy Chancey to a police officer regarding their
observations of Lisa on the afternoon of March 24, 1983, which
was inconsistent with the testimony of Kathy Stevens, Barbara
DeCarr, and Kenneth Turco.
According to an
undated typed statement of Mrs. DeCarr that was provided to the
police before Kathy Stevens claimed to have witnessed Mr.
Tompkins strangling Lisa. In that statement, Mrs. DeCarr said,
“Wayne had taken Jamie (my youngest son) to school just before
8:00 a.m. and then went to his mother’s house for breakfast and
coffee. He stayed at his mother’s house until approximately 10:00
a.m. when he left to get some newspapers to pack dishes with.”
wasn’t home when she left after 9:00 AM.12
At trial,13 Wendy Chancey was unavailable and defense
counsel was precluded from cross-examining Mrs. DeCarr regarding
the statements attributed to her in the March 24, 1983, police
report.14 The State’s theory of the case was outlined in its
opening statement. According to the State, Wayne Tompkins and
At the 1989 hearing, the trial prosecutor, Mike Benito,
confirmed that his theory was that the offense occurred at about
9:30 or 10:00 a.m. on that date (PC-R. 87).
Mrs. DeCarr were boyfriend and girlfriend in March of 1983. Mr.
Tompkins was living with DeCarr, along with her three children,
including 15-year old Lisa (R. 107-08). On the morning of March
24, 1983, Barbara went to Mr. Tompkins’ mother’s house to help
her move; before she left the house between 8:30 and 9:00 AM, she
checked in on Lisa, who was in bed and was wearing a pink
bathrobe (R. 110). After Barbara left, Kathy arrived somewhere
between 8:30 and 9:00 AM and saw Mr. Tompkins strangling Lisa.15
During Mr. Tompkins’ trial, the prosecutor relied upon
Stevens’ testimony to urge the jury to convict Mr. Tompkins,
arguing, “[h]er testimony alone . . . convicts this man” (R. 346;
see also R. 346-49, 360). The prosecutor relied upon Stevens’
testimony to urge the jury to recommend a death sentence (R. 444-
45). Thereafter, the jury convicted and recommended a sentence of
death. The trial judge relied upon Stevens’ testimony to support
the “committed during a felony” aggravating circumstance (R.
In the course of the collateral proceedings, withheld
exculpatory evidence has surfaced, along with witnesses and
documents that were not presented by the defense which
demonstrate that Kathy’s story - the basis of the prosecution’s
theory of the case - could have been thoroughly impeached and
shown to not be true. For example, in 2001, the State disclosed a
June 8, 1984, police report concerning an interview of an
individual named Maureen Sweeney taken on June 8, 1984, at 2130
SWEENEY advised that it was very strange the
explanation given surrounding LISA'S disappearance. She
advised that she was told that LISA had come home,
found Wayne sitting at the kitchen table with her
mother and asked 'what the hell is he doing here!' Her
mother, BARBARA, explained that he had no place to go
and that she was going to let him move in with them,
until he could get on his feet. At that point LISA ran
out the back door. According to MAUREEN it was very
unusual for LISA to be outside without her makeup and
supposedly she had been outside then come back inside
and then gone out again without her makeup. Lisa's
brother BILLY left the house to go find her and came
back to take care of JAMIE.
The sequence of events that Sweeney reported is consistent with
what Mrs. DeCarr had told the police on March 24, 1983, and is
inconsistent with the State’s theory of the case, that murder
occurred between 8:00 and 9:00 AM on March 24th.
It was only during the post-conviction proceedings that Mr.
Tompkins or his counsel learned that the prosecutor had written
file memos memorializing Kathy’s statements to him when he first
contacted her and memos from when she changed her story. It was
only after receiving this memos that Mr. Tompkins learned that
Kathy Stevens, a mentally troubled teen, was given access to her
incarcerated boyfriend who she had not been allowed to see until
after she changed her story and incriminated Mr. Tompkins.
Similarly, Kathy Stevens’ testimony was contradicted by
“Junior” Davis, Lisa DeCarr’s boyfriend at the time of her
disappearance, when he was located in 2002. After years of
searching and after the State finally provided previously
undisclosed documents about Davis in 2001, Mr. Tompkins’ counsel
located “Junior” Davis in April of 2002. “Junior” Davis’s full
name is James M. Davis, Jr. Upon being contacted, Mr. Davis
reported that he had been Lisa DeCarr’s boyfriend in March of
1983. In a sworn affidavit, Mr. Davis stated, “[t]he story of
Kathy running into me at the store the day Lisa disappeared is
not true. If anyone had told me that Wayne was attacking Lisa and
she was screaming for someone to call the police, I would have
gone directly there” (Affidavit of James M. Davis, Jr., paragraph
6, 4PC-R. 130). Mr. Davis elaborated:
If I thought there was anyway I could have helped
[Lisa], I would have, especially if she were in
trouble. This is why what Kathy said is not true. I
never saw Kathy on the morning that Lisa disappeared,
nor did Kathy ever tell me that she had just seen Lisa
being attacked by Wayne. In fact, the first time I
heard of anything having possibly happened to Lisa was
when I heard on the radio she was missing.
(Affidavit of James M. Davis, Jr., paragraph 8, 4PC-R. 130).
In addition, on October 10, 2008, Mr. Tompkins obtained an
affidavit from Kimberly Quillin, formerly known as Kim Lisenby.
In this affidavit, Ms. Quillin provided additional impeachment
evidence which the jury never heard: