On October 3, 1991, the body of a homeless man was found beaten and stabbed to death near an abandoned and boarded up home in Oklahoma City, Oklahoma. The man, who was known as “Pops,” was of Mexican descent and about 60 years old. He was found next to the shopping cart where he kept his possessions and cans that he collected for income.
Although his identity was never officially determined, he carried an identification card with the name Timothy Rios. He had been living on the front porch of the building for several weeks.
Police recovered a knife, numerous shards of blood-covered broken glass, a baseball cap, and several bloodstained bags that could have been used by an attacker to wipe off blood. An autopsy showed he died of blunt trauma to the head.
On October 8, 1991, 30-year-old Floyd Lewis, a Salvation Army cook, told police that he was walking his dogs at about 10:30 p.m. on the night of October 2 when he saw—from about 100 yards away—two men fighting with someone. He said he recognized one of them as 34-year-old Johnny Tall Bear, who Lewis had served at the Salvation Army. He said that when he yelled at them to stop, Tall Bear straightened up and yelled a Native American chant.
Tall Bear denied that he was involved and told police that he was confined to a wheelchair due to recent surgery on a gangrenous ankle. He said he knew Rios, though not by name, from having seen him around the neighborhood and knew that he was living at the abandoned house.Tall Bear was charged with first-degree murder. The second man that Lewis said he saw was never identified.
Lewis was the prosecution’s primary witness, even though he testified at a preliminary hearing, “I don’t think Tall Bear done it.” He acknowledged that he may have seen a fight, but didn’t know if he saw a murder. Lewis’s description of what he saw conflicted with the physical evidence. He said the attack occurred on the northeast side of the abandoned house, while the body was found on the southeast side. There were no drag marks or other indications the body had been moved. All of the blood evidence was found next to the body or on the portion of the porch where Rios had been living.
Rios’s pants pockets had been pulled out and were stained with blood. Joyce Gilchrist, a forensic analyst whose testimony in five other cases would be found to have misstated or overstated the acceptable limits of forensic science, told the jury that she found four different blood types, none of which matched Tall Bear’s blood type. The identification of so many different blood types, the prosecution argued, diminished the significance of the absence of Tall Bear’s blood type.
Three witnesses testified that Tall Bear was elsewhere at the time of the crime, and most significantly, that he was confined to a wheelchair due to recent surgery on an ankle injury that had become gangrenous.
On March 11, 1992, the jury convicted Tall Bear of first-degree murder. He was sentenced to life in prison without parole.
The Oklahoma Court of Criminal Appeals upheld his conviction in June 1994, although it modified his sentence to life in prison with the possibility of parole.
In 1997, Tall Bear wrote to the Innocence Project in New York City requesting DNA testing. In 2005, the Innocence Project accepted his case. After determining that the physical evidence still existed, Innocence Project lawyers sought the agreement of the Oklahoma County District Attorney’s office to conduct DNA testing. However, the prosecution would not agree to the testing.
In 2013, the state of Oklahoma enacted a post-conviction DNA testing law. In November 2014, a petition was filed seeking DNA testing.
Ultimately, DNA tests were completed in November 2017 on the bloody bags that police believed the attackers used to stop bleeding from wounds suffered during the attack, as well as on the inside of the turned-out pockets on Rios’s pants. The tests identified the DNA of an unidentified male on two pieces of the bloody bags, and a separate DNA profile of another unidentified male on the turned-out pockets. Tall Bear was excluded from all of the profiles. The DNA profiles were uploaded to the FBI national DNA database, but no matches were identified.
The testing also showed that Gilchrist’s serology testimony was false. She had identified blood on some evidence as belonging to Rios when in fact it did not belong to Rios. And she had attributed other blood as belonging to an unknown male when in fact it was Rios’s blood. The testing also showed there were only two different blood types on the evidence, not four as Gilchrist testified.
On June 11, 2018, Oklahoma County District Attorney David Prater joined with Innocence Project attorney Karen Thompson and attorney Douglas Parr in a motion to vacate Tall Bear’s conviction. The motion was granted and Tall Bear was released after serving more than 26 years in prison.