Hearing will rule on attorney’s conduct in case that sentenced Wyoming man to life in prison | Crime-and-courts

By On May 9, 2021

Josh Black drives to the gym after finishing work on Monday in Cheyenne. Black spent six years in prison after being convicted in a trial. The Wyoming Supreme Court later found multiple instances of prosecutorial misconduct during the proceedings.

Cayla Nimmo, Star-Tribune

When he comes home from work, Josh Black’s boots are muddy and his mask is fogging up his safety goggles. He’s just spent more than 10 hours doing electrical work on a data center outside Cheyenne, and he’s exhausted. It’s misting and chilly outside, and Black says it snowed on his commute around 5:30 that morning.

But, he says, at least he’s outside.

Black moved to Wyoming from his native Southern California when he was 35, following a woman who’d taken a job training horses in Jackson. He was in the state for six days before being arrested after she accused him of assaulting her. After a 2015 trial that included, according to the Wyoming Supreme Court, multiple instances of prosecutorial misconduct, he was found guilty and spent his next six years in Wyoming behind bars.

Now, he’s preparing to serve as a witness against the prosecutor.

Starting Monday, former Teton County prosecutor Becket Hinckley, who is formally charged with violating eight rules of professional conduct, will face a three-person tribunal in Casper. The Wyoming State Bar Board of Professional Responsibility will first decide whether Hinckley is guilty of the charges, then determine an appropriate punishment. That could mean anything from public censure to temporary suspension to flat-out disbarment.

For Black, even disbarment can’t reverse the damage his conviction has wreaked. But he hopes it could mean he’s one step closer to clearing his name.

Josh Black poses for a portrait on May 2 in Casper. Black plans to serve as a witness against the attorney who prosecuted his case. The Wyoming State Bar Board of Professional Responsibility is set to decide whether the attorney violated eight rules of professional conduct.

Cayla Nimmo, Star-Tribune

Black says he was asleep in the Jackson home he shared with his girlfriend at the time he was accused of assaulting her. Accounts from his girlfriend and a coworker, to whom she texted photos of her bruised face around 2:30 a.m. on October 27, 2014, piece together an inconsistent timeline of the incident.

According to the investigation by the Teton County Sheriff’s Office, the victim first said she was attacked around midnight. After a deputy helped her reconstruct her memory of the night, she said it happened around 2 a.m. About a month after the incident, she said in texts to a friend that it happened between 9:30 and 10:30 the night before the arrest, but she didn’t remember it.

At trial, she testified that her memory of the night was “pretty foggy.” At the time, she was under the influence of alcohol, marijuana and the sleep medication Ambien, which the Food and Drug Administration says commonly causes confusion and memory loss, particularly in women and when mixed with alcohol.

Since the beginning, Black has maintained his own innocence. DNA evidence — blood found in his girlfriend’s car and bits of skin under her fingernails — doesn’t match up with his, a police report said. But, according to court documents, the state lost the victim’s blood samples.

Still, in the words of the Wyoming Supreme Court, there was “substantial” evidence against Black, including videos and photos of his girlfriend’s injuries she sent that night indicating he was to blame.

“What Josh did to me tonight so there’s witnesses,” she wrote, according to the later Wyoming Supreme Court opinion.

According to the sheriff’s investigation, she was found to have two fractures in her cheek bone and nasal passage, a cut that needed stitches near her eye and some bleeding and bruising in her brain. Blood found on Black’s clothing when he was arrested matched his girlfriend’s and he had bruising on his hands.

The case headed to trial.

That’s where Black met Becket Hinckley.

There were Facebook and Verizon phone records, Black says, that would have proved he wasn’t with his girlfriend at the time of the assault. Hinckley, the prosecutor in his case, is on the record telling Judge Timothy Day on at least eight occasions that he’d tried and failed to secure the records. Day issued repeated orders to compel the prosecution to provide the evidence, which went unfulfilled even as the case went to trial.

Josh Black has dinner with his roommates and coworkers (from left to right) Kevin Shanley, Brett Bader and Sean Pesicka-Taggart, at their temporary housing on Monday and Cheyenne. Black works in Cheyenne on the weekdays and lives in Casper on the weekends.

Cayla Nimmo, Star-Tribune

In court, Hinckley said Verizon only keeps records for 90 days. Other cases in the same court found the company stores records for a full year. While Black was appealing his conviction, Hinckley admitted he had never personally talked to anyone at Facebook or Verizon, and never sent any requests on official letterhead. Hinckley, who no longer works for the Teton County Attorney’s Office, could not be reached for comment. His attorney did not respond to an email Friday seeking comment.

Preparations for the case drew out for nearly a year before Black got his day in court.

“After I was arrested, I was immediately put into solitary confinement,” Black said. “I wasn’t given access to anybody. Everything I did was monitored, every piece of mail that was given to me was read. I had zero way to talk to anybody about what was going on.”

Aggravated assault carries a prison sentence of up to 10 years. After he was convicted by a jury in October 2015, Black was sentenced to life.

Under Wyoming law, Black was designated a “habitual criminal,” which allows for harsher sentencing. He had three prior felony convictions from California: one DUI from 2006 and back-to-back charges in 2012 for assault and corporal injury for hitting his roommate.

“I was never perfect. I used to surround myself with bad people,” Black said. “I kind of lived in the gray area between right and wrong. I know where the line between black and white is now, and I stay on the right side of that line.”

***

Black stops at his temporary home in Cheyenne — he spends his weekends in Casper, where his girlfriend lives — to change out of his work clothes before hitting the gym. It’s a dreary, drizzly day, but the first-floor apartment he shares with two of his coworkers is warm and brightly lit.

There are no family photos or art on the walls, and the striped, red-and-brown carpet looks like it was lifted out of a motel hallway. Black’s bedroom is just as bare, with little more than a laptop, a set of tools and a National Electrical Code textbook to stake his claim.

Black and his roommates have lived in the complex, which is populated largely by their coworkers, since they started this job in February. When it’s over in less than a month, they’re moving out.

“All I need is a mattress and a TV,” he laughs. “And I’m set.”

On the short drive to the gym, Black talks about studying to become a journeyman electrician, which requires 8,000 hours of experience on the job and roughly four years’ worth of classes. He’s taking his courses online, squeezing in time to study around his 60-hour work week and preparing to testify against Hinckley.

Josh Black works out with Sean Pesicka-Taggart on Monday in Cheyenne. Black is studying to become a journeyman electrician.

Cayla Nimmo, Star-Tribune

Before Black moved to Wyoming, his career looked a lot different. He moved out at 16, he says, and got his real estate license at 19. From there, he worked in commercial finance, a stressful gig that he says drove him to drug use and partying while trying to burn hefty monthly commission checks. Just before heading to Jackson, where he had a construction job lined up, he was working at a marketing firm.

“I was kind of selfish and just thought, how can I make more money and do what I want?” Black says. “I did the whole thing, buying expensive stuff and watches with diamonds, stuff like that.”

But on the other side of an assault conviction and six years in prison, it’s hard to find that kind of work. Black said the extensive press coverage of his case didn’t help.

“These employers, they look you up on Facebook and Google you before they even interview you,” Black said. “So when I was interviewing at this electrical company, I was just transparent and told them what happened upfront, and that seemed to work.”

He’s worked on jobs in Casper, Cheyenne and even Colorado since being freed in March of 2020. Along the way, he’s met his girlfriend — they’re celebrating their one-year anniversary on Sunday — found a roommate in Casper he talks about like a mother and has plans to visit the Casper Reentry Center, where he spent the last two months of his sentence, to teach people there about building credit and transitioning into life on the outside.

“The system is not set up for you to get out,” Black says.

***

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After his conviction in October 2015, Black was sent to begin his life sentence at the Wyoming State Penitentiary in Rawlins.

Once he was there, he got to work. There are few educational opportunities at the prison for those serving life sentences, he says, but he fought to create them. He worked in the penitentiary gym, where he set up programs for older or sick people incarcerated there. He says he tutored people looking to get their GED, held fundraisers for local charities and started an Alternative to Violence class.

“I read every self-help book I could find,” Black said, “to ensure that if I was ever given a chance to step foot in the community again I would be a man that would be respected for the good I did and not judged on my past.”

Somewhere between all that, Black carved out time to give himself enough of a legal crash course to start appealing his conviction. He used the prison’s law library to teach himself how to write a brief and scouted his best path for a reversal. The first two appeals he submitted were sent back because they didn’t follow the right format.

“These rules are like 700 pages, and they go all over the place,” Black said. “People go to school for years to read these rules, and so it’s very difficult for an incarcerated person to try to teach myself.”

Finally, in November of 2017 — around two years after he arrived in Rawlins — one of the appeals stuck. Around the same time, an appeal filed by a Teton County public defender in his case also took, and the state conceded six instances of Hinckley’s misconduct in their response to Black’s appeal. The Wyoming Supreme Court reversed Black’s conviction.

“There is no question that prosecutorial misconduct occurred prior to and during trial,” the court wrote in its opinion. “The prosecution, at a minimum, interfered with (Black’s) opportunity to discover potentially exculpatory information by failing to comply with the pretrial discovery order. It violated long-established prohibitions against vouching for the competence of law enforcement officers and the quality of the investigation. It made improper arguments appealing to the passion and prejudice of the jury and personally attacking defense counsel.”

But that doesn’t mean Black got out scot-free — it meant his case went back to trial, and he went back jail in Teton County. Back to square one.

In this new case, Hinckley again represented the state. And again, he was asked repeatedly to secure the Facebook and phone records that might have bolstered Black’s case. Around eight months into the remand process, the Teton County and Prosecuting Attorney’s office took Hinckley off the case. The office declined to comment for this story.

His former girlfriend maintained Black was guilty, telling the Jackson Hole News&Guide that he came close to killing her that night and that she wanted to make sure he couldn’t hurt someone else.

“The impact that this has made on my life is still ongoing,” she told the News&Guide. “I still have scars from it.”

Black had a choice to make — head back to trial and risk another interminable prison sentence if convicted again, or plead no contest in a deal with the state that would drop his habitual criminal designation. He took the deal and got a sentence of 6 1/2 to 10 years, more than four of which he had already served.

He headed back to Rawlins.

***

It’s a Monday, when Black says he usually heads to the grocery store to stock up for the week after finishing up at the gym.

He grabs a cart and begins maneuvering around the post-work crowd at a Cheyenne King Soopers, making a beeline for a display of Brussels sprouts. His friends are grilling burgers on this night (and, they admit, a lot of other nights), and he’s on veggie duty.

Black says he and the other Casperites at his job race back to Casper after work lets out at 2:30 on Saturdays, waving at each other as they try to pass on Interstate 25.

Josh Black selects Brussels sprouts for dinner with his roommates on Monday in Cheyenne. Black was originally sentenced to life behind bars, but the Wyoming Supreme Court reversed the matter and ordered a new trial. Before that proceeding, he accepted a plea deal.

Cayla Nimmo, Star-Tribune

In Casper, Black lives in an apartment with considerably more decoration than his Cheyenne pad. He spends most of his time here with his girlfriend, Desirea, whom he met about a year ago in Morad Park.

Dating after getting out of prison wasn’t easy, he says. A few dates fizzled after they looked Black up online and saw the record of his riddled past. He says after his first date with Desirea, he tried to tell her everything.

“I think she went home and Googled me that night,” Black said. “She texted me like, ‘Hey, can we talk?’ So we talked for hours.”

***

Black expected to get out before he did. Thinking back to his second round of prison time, he momentarily forgets nearly a year spent between the state penitentiary and the Wyoming Honor Farm in Riverton.

He had to fight to get good time on the four years he’d already served — it isn’t rewarded on life sentences — but Black had to remind the court that his life sentence had been reversed.

Eventually, in January 2020, he was sent to the Casper Reentry Center. Two months later, he got out.

“Then it was like almost immediately into lockdown,” Black said. “It was like, I’m out, I’m out, then just had to go back inside.”

But despite the year of quarantine that followed, Black says his life has been generally on the up-and-up since getting out. He had his final probation appointment on a Wednesday afternoon in April, and said it felt strange — but good — to walk out of that office.

Now, he’s looking for a path to clearing his name of the assault conviction. If the tribunal decides Hinckley committed misconduct, Black says it should make it easier for him to seek exoneration from the assault charge.

He’ll be the first to tell you he’s not totally innocent — his prior charges in California were warranted, no question. But he says he’s grown a lot after spending so long isolated behind bars.

He missed birthdays and first teeth falling out for his goddaughter, born shortly before he came to Wyoming. He was forced to wait months in prison for medical care or to get a cavity filled, and hasn’t seen or hugged his family in years. Some of them stopped taking his calls after his conviction.

This week’s hearing won’t change the past, Black said — the damage has already been done. Although Black has received around $135,000 in a settlement against prosecutors, he’s nowhere near being made whole.

“Life is good today,” Black said, “but in my opinion I still don’t think that means that this prosecutor should just get a slap on the wrist.”

***

Black’s roommates (and their honorary fourth roommate, who owns the grill) trickle back into the apartment, grabbing beers from the fridge and heading outside to grill despite the wet weather.

Most nights after work end like this, they say — the four of them, plus whoever wanders over to follow the smell of grilled meat, sitting in the sparsely furnished living room and just chatting. They joke that their girlfriends think their lives in Cheyenne are wild, filled with booze and girls.

After he finishes up with this hearing and his current contract, Black plans on going back to California for the first time in seven years. His conviction and everything it brought with him has affected his family, too, subjecting them to media attention and the pain and absence that comes with a family member in prison.

“I know it will never end,” Black says. “But I’m just trying to change the way the story of my life has gone.”

He reminds his roommates he’s going to be out of town for the tribunal. His new boss at work was concerned about him leaving at first, but Black says he quickly realized that Black’s trained the people under him to operate smoothly in his absence. Black assures his roommates he’ll make a big batch of antelope pasta for them before he leaves.

“I’m blessed with everything,” Black says. “I have a beautiful girlfriend and a paid-off vehicle. I don’t need anything, and there’s very few things that I want.”

But one thing on that short list would be seeing Hinckley face consequences for the misconduct identified by the Wyoming Supreme Court. And after seven years, Black is hoping to cross that off this week.