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Jake Watson in the Media

Morgan DA: As cop, witness in murder case stole old evidence

By Marian Accardi and Eric Fleischauer Staff Writers

A capital murder prosecution faltered Thursday when the Morgan County district attorney said in court that a Decatur police evidence technician who is scheduled to testify had admitted to stealing items that had been evidence from another case.

At the request of District Attorney Scott Anderson, a special hearing was held Thursday in the capital murder cases against Joseph Cowan and Cedric Cowan, brothers charged in the 2015 deaths of two Decatur men.

At issue was the conduct of Jonathan Lowery, a nine-year officer, detective and most recently evidence technician at Decatur Police Department. Lowery, who now works in the city's Community Development Department, was not present at the hearing.

Anderson said it was disclosed to his office by Decatur police shortly after the February 2018 trial of one of the Cowans’ co-defendants, Cortez Mitchell, that Lowery, in a pre-polygraph questionnaire for a federal job, was asked if he had ever stolen anything and he answered yes.

Anderson said in an investigation by Decatur police, “it was determined he had taken some evidence from older cases that had been disposed of.”

When Brian White, Joseph Cowan’s attorney, asked what was taken, Anderson said, “It was costume jewelry, knickknacks,” and the value of the items didn’t reach the level of a felony.

Prosecutors said Lowery wasn’t charged, and Anderson said it was his understanding the statute of limitations had expired since the alleged theft.

Anderson said he subsequently asked for an audit and was told by Decatur police that no other cases had been impacted. Anderson said he had discussed the matter with Decatur Police Chief Nate Allen.

At first, “I didn’t realize it was potentially exculpatory,” Anderson said. But in preparing for the Cowan trial, Anderson said he and his staff decided it should be brought to the attention of the court and defense.

“The first time this came to my mind it may be an issue, I asked for this hearing that day,” Anderson said.

But defense attorneys complained about the disclosure coming 11 days before juror qualification is scheduled to begin in Joseph Cowan’s trial, currently scheduled for April 29.

Attorneys for the Cowan brothers said they want to hear pretrial testimony from Lowery and Chief Allen to gauge how it affects their clients' cases. Lowery is scheduled to testify in both trials, and he previously testified in the Mitchell case. Mitchell, now 20, has appealed his conviction on two counts of felony murder and four counts of first-degree robbery.

“That’s a problem,” Jake Watson, co-counsel for 24-year-old Joseph Cowan, said of Lowery's alleged actions. “This is a trial within a trial.”

“This scratches the surface of what we need to know,” said White, who requested a continuance of the trial.

White said Lowery is a “central witness in this case” and there’s biological and firearms evidence collected in the case that has his “tracks in it.”

Joseph Cowan, who was 20 at the time of the slayings, faces the possibility of a death penalty if convicted.

Watson said it’s “offensive” that the prosecution has had this information about a year, “and they’re trying to kill (Cowan). ... (Lowery) collected evidence. Evidence is an issue in this case.”

Anderson said he did not initially realize Lowery's alleged actions could have a bearing on the Cowan trials.

“As soon as this came to my mind this was exculpatory, I let them know,” Anderson told Circuit Judge Jennifer Howell. White said he first heard about the issue Wednesday.

The Cowan brothers were present in the courtroom Thursday.

Howell scheduled a hearing on the issue for next Friday.

Howell asked if there had been an internal investigation, and Anderson said yes.

“We know all this second-hand,” Anderson said. The district attorney said that even though Lowery is still employed with the city, “he is no longer an officer. He’s outside the department.”

Chief Allen said Thursday afternoon that he would not release Lowery's personnel file without a public records request.

According to city Development Director Wally Terry, Lowery is a code enforcement officer with Community Development and has been there since around the first of the year.

White asked if Lowery will be called to testify in Joseph Cowan’s trial, and Anderson said, “Right now, yes."

Joseph Cowan's lawyers had already requested a continuance of his trial as they await a ruling from the Alabama Supreme Court on their petition to recuse Howell from the case based on alleged bias she showed in statements about the Cowans during the sentencing of Mitchell and a fourth co-defendant, Amani Goodwin. Goodwin, now 21, pleaded guilty to three counts of first-degree robbery and two counts of felony murder. Howell sentenced him to serve a life sentence with the possibility of parole for each felony murder count and 20 years for each robbery count.

Jacob Roberts of Decatur was one of the lawyers for Mitchell. Mitchell is currently serving two life sentences and four 20-year sentences, with one of the life sentences to run concurrently with the four 20-year sentences.

Contacted Thursday afternoon, Roberts — who cross-examined Lowery in the Mitchell trial — said he had not heard about the allegations against Lowery, but was deeply disturbed by them.

"If the integrity of the system is lost, then it makes it really difficult," Roberts said. "The police chief or whoever is in charge of the evidence locker will need to answer some questions."

Depending on the facts that come out, Roberts said, "Lots of cases could be vulnerable on appeal. If (Lowery's) credibility is shot, in cases that hinge on his credibility, there will be a lot of ruckus over this."

Lowery is listed as a witness in numerous high-profile prosecutions. He is scheduled to testify for the prosecution against Christopher Swoopes, a capital murder defendant in a case that has not been scheduled for trial. Lowery is also listed as a prosecution witness in the upcoming murder trials of defendants Michelle Owens and Andreas Shackelford, both scheduled in June, and the murder trial of Scott Dutton, scheduled in August.

Carl Cole, one of the lawyers for Cedric Cowan, said after the hearing that the revelations could impact the trial of his client — scheduled for Aug. 21 — and others. Cedric Cowan, who was 16 at the time of the shootings, faces a maximum sentence of life without parole.

"There is a ripple effect in terms of the questions that come into play, based on who knew what and when, how extensive it is," Cole said. "I think it is an explosive problem for the prosecution."

He said he struggled to see how Joseph Cowan's trial could go forward this month.

"That's a death penalty case, and I think everyone’s going to have to have time to fully step back and contemplate at least for a little while what exactly all of this means when you look at it in the context of the bigger picture. We need to have time to do that," Cole said. "Today in court was the first time we had heard this from the District Attorney’s Office. It wasn’t on anybody’s radar screen.

"We’re in uncharted territory. I would not want to be making the decisions that have to be made right now."

The Cowans, Mitchell and Goodwin were charged with the shooting deaths of Antonio Hernandez-Lopez, 27, on May 15, 2015, in Lopez’s Southwest Decatur home’s carport, and Josh Davis, 25, who was found dead in Wilson Morgan Park early the morning of May 16, 2015.

The four defendants also were charged with several counts of first-degree robbery, and one charge each of shooting into an occupied dwelling and into an unoccupied dwelling.

[email protected] or 256-340-2438. Twitter @DD_MAccardi. [email protected] or 256-340-2435.