A 43-year-old Elkhart man wrongfully convicted in a 2002 murder case has been officially exonerated after the state granted a motion from the Elkhart County prosecutor to dismiss the charges on July 19.
Andrew Royer has an intellectual disability and no prior criminal record. He was coerced into confessing to the murder of a 94-year-old woman found dead in a high-rise apartment near downtown Elkhart in November 2002 after two days of mostly unrecorded interrogation by Elkhart Police Department detective Carl Conway. Royer was subsequently convicted in a 2004 trial and spent 16 years in prison until the University of Notre Dame’s newly-formed Exoneration Justice Clinic took up his case.
Jimmy Gurulé is the director of the Exoneration Justice Clinic and a Notre Dame Law School professor. He said Royer’s conviction was no accident. “This wasn’t a case of some inadvertent error, some eyewitness mistakenly identifying the defendant,” Gurulé said. “Andy’s conviction was the result of a coerced, involuntary, illegal confession — make no mistake about it.”
Gurulé said the Elkhart County prosecutor’s office should apologize and accept responsibility for the wrongful conviction, but that he is “not expecting” that to happen. “Where is the apology to Andy and his parents? Where is the Elkhart prosecutor coming out and publicly saying that she is sorry?” Gurulé said. “If they can’t accept responsibility for what they’ve done, what confidence should the citizens of Elkhart County have in the criminal justice system?”
Current county prosecutor Vicki Becker was the lead prosecutor who filed charges and litigated the 2004 Royer case. She was elected in 2016 after previously serving as the county’s chief deputy prosecuting attorney for 14 years. When reached by phone, Becker said she had not been contacted by Gurulé or the clinic, and Royer is now innocent as no charges are pending. “At this point in time, about three weeks ago, I filed a motion to dismiss without prejudice indicating that I did not believe it was appropriate for further prosecution,” Becker said. “But that doesn’t mean that I cannot go forward again.” She also said asking for an apology is “highly inappropriate in the practice of law. Certainly, no apology would be appropriate or even ethical,” Becker said.
Following a 2019 evidentiary hearing, Royer was granted a new trial in March 2020 by Kosciusko County Judge Joe Sutton and released from prison on his own recognizance on April 2, 2020. In addition to the coerced confession, Sutton’s ruling found the state withheld evidence including paying a witness for testimony and putting a fingerprint expert on the stand who was not an expert, but instead just a sheriff’s deputy.
The state then appealed Sutton’s ruling. On April 8, 2021, the Indiana Court of Appeals affirmed Royer’s right to a new trial and also concluded that Detective Conway committed perjury during the 2004 trial. “This police officer testified in 2004 that he never fed Andy any information, and he admitted under oath in 2019 the exact opposite,” Elliot Slosar, an adjunct professor at Notre Dame Law School and an attorney at Chicago firm Loevy & Loevy, said.
Conway was promoted to lieutenant in the years following Royer’s original trial and is still employed by the department. He was placed on administrative leave in April 2021, six days after the appellate court decision. Gurulé said he should be fired. “Here we are in July, and guess what?,” Gurulé said. “Carl Conway is still a police officer with the Elkhart Police Department. He’s still employed, and his salary is being paid by the citizens of Elkhart County. That’s unacceptable.”
In a statement, Assistant Elkhart Police Chief Chris Snyder said Conway is still on administrative leave and the department is currently conducting an internal investigation. He also said the department cannot discuss or provide further details, but is expecting to make a decision in two or three weeks. Royer was one of two co-defendants in the murder case. His fellow co-defendant Lana Canen was exonerated in 2012 after a latent fingerprint found at the crime scene was proven not to be hers. “Two individuals in a single case wrongfully convicted — it’s shameful,” Gurulé said. “It’s hard to imagine an investigation or prosecution that was worse, that was more wrong, then this particular case.”
The actual killer has not been found, Gurulé said.
Royer’s parents said they were thankful for the process that got them to today and granted back Royer’s freedom. “I was told right after he got in there by an attorney that he was innocent — they could see it in his paperwork,” Jeannie Pennington, Andrew’s mother, said. “It still took 17 years for him to be able to prove that. For him telling people ‘I’m innocent’, and nobody listening.”
Andrew Royer said his life since release has been great. “I had a lot of stress on me, and I’m a whole different person now,” he said.
The case was dismissed without prejudice, meaning charges could be refiled at a later date. But Gurulé said he doesn’t expect that to happen and is confident the case has come to an end. “What’s the evidence? There’s never been any forensic evidence linking Andy to the killing,” Gurulé said. “There’s no eyewitnesses, and so the key piece of evidence against Andy was the coerced confession.” Slosar agreed. “They can’t put detective Conway back on the stand to commit perjury at a second trial,” Slosar said. “The appellate court expressed serious concerns about that — they called it galling that this person provided false testimony, and we believe it’s equally galling that he continues to be employed at the Elkhart Police Department.”
As for compensation, Indiana state statutes offer $50,000 a year for each year a wrongfully convicted person was incarcerated. A civil lawsuit is also an option, but Gurulé said that is a question for another day. “Certainly, he is entitled to some compensation,” Gurulé said. “Unfortunately, even $50,000 a year is not adequate to compensate Andy and his family for the horrible, tragic ordeal they endured. But he should be compensated.”
Royer is the first person to be exonerated through the clinic. Founded last year, it focuses on discovery of new evidence that is sufficient to overturn wrongful convictions. Notre Dame Law School students help identify cases, locate witnesses, draft pleas and participate in judicial proceedings. The clinic has three lawyers — Gurulé, full time staff lawyer Kevin Murphy and a graduate fellow position funded for two years and filled by a recent Notre Dame Law School graduate. It also works closely with Illinois-based lawyer and adjunct Notre Dame professor Elliot Slosar and the Chicago Exoneration Project. The clinic is currently only focusing on Indiana cases, but has plans to look at other midwestern states.