Thursday, January 31, 2008

Bill would require DNA info

Felons would have to be told if evidence is found in old forensic-lab files



A key lawmaker has introduced legislation that would require that felons be told that testable DNA has been discovered in their old state forensic-lab files.

Del. David B. Albo, R-Fairfax, chairman of the Virginia State Crime Commission, drafted a budget amendment requiring the Virginia Forensic Science Board to make sure 400 offenders with files found to hold human biological evidence are told it exists.

The department recently searched more than 530,000 old files from 1973 to 1988 -- before DNA testing was available -- looking for those containing testable evidence that might bear on guilt or innocence.

For the most part, however, if anyone is being notified, it is only authorities. Virginia law allows felons to request DNA testing if it can prove innocence.

The state Forensic Science Board this month voted down an effort that might have led to such notifications. Among other things, board members expressed concern about the burden that searching for the offenders might place on a state agency.

Albo does not think that is fair.

"I drafted this piece of legislation to make sure that convicted felons are made aware of newly discovered evidence in their cases," Albo said. "If just one person is innocent, we need to make sure he knows of this newly discovered evidence."

Albo said he does not care who does it as long as it is done. "I'm putting language in the budget to make somebody notify these people. Everybody's been pointing fingers, and no one's made them do it," he said.

Gordon Hickey, spokesman for Gov. Timothy M. Kaine, said yesterday that the governor's office is setting up a protocol for the department of forensic science to notify convicted people.

The now two-year-old project has found 2,215 paper files that contain crime-scene biological material and that include a suspect's name.

Thus far, there are 400 cases in which there is both biological crime-scene evidence and a convicted defendant. Some 180 have been sent off for testing, and another 80 are being prepared for testing.

Five men wrongly convicted of rape have been cleared with evidence from the old files -- two of them when DNA testing was done on a sample of just 31 files. Both of those men had already been released from prison, and neither had requested DNA testing.

Peter Marone, director of the Virginia Department of Forensic Science, said yesterday that he had no position on Albo's proposal.

Wednesday, January 30, 2008

DNA reveals true rapist in '82 case, clears man of charges

Tests clear 1 man, pin crime on another who died in '98

By JENNIFER EMILY / The Dallas Morning News

DNA tests show that a transient serial rapist wanted for sex crimes in several states is the perpetrator in a case in which DNA revealed another man was wrongfully convicted of sexual assault, the Dallas County district attorney's office said Tuesday.

But there will be no justice for Sidney Alvin Goodyear in that 1982 sexual assault and burglary. He died 10 years ago in a Texas prison, even as Steven Charles Phillips sat behind bars for a crime he didn't commit, said Mike Ware, who oversees the conviction integrity unit for the DA's office.

Mr. Phillips, 49, is one of 15 men exonerated by DNA testing in Dallas County since 2001 – more than any other county in the nation.

"He's glad they identified the right person," said Mr. Phillips' attorney, Robert Udashen. Mr. Phillips could not be reached for comment.

Mr. Phillips had also pleaded guilty to eight related cases that authorities believe were committed by Mr. Goodyear. Mr. Phillips' attorneys say he pleaded guilty to the other crimes because he feared an even longer prison term after losing two jury trials.

His attorneys say they hope to clear Mr. Phillips in those cases as well.

Mr. Phillips, who was paroled in December in the last of those cases, had no criminal record from before the string of sex crimes, although he admitted to police that he had been a Peeping Tom.

Mr. Goodyear was serving a 45-year sentence for burglary with intent to commit sexual assault out of Harris County when he died of liver cancer in 1998 at age 50.

During the time between the 1982 rape for which Mr. Phillips was wrongly accused and when Mr. Goodyear was arrested in Harris County in 1984, Mr. Goodyear committed numerous sexual assaults and burglaries in California under the alias William Dixon Steen, according to a July 1985 Los Angeles Times article.

The crimes he committed in California in late 1982 were very similar to those committed in Dallas. In one of the California cases, he forced two women who had been playing tennis to take off their clothes, according to the article. He also held 14 women at an exercise class at gunpoint and sexually assaulted some of them. He sexually assaulted a clerk at a bathing suit store and exposed himself to schoolchildren.

A California prosecutor called Mr. Goodyear a "sick, sick man," according to the article.

Mr. Goodyear was arrested while working as a teacher at a California church camp in December 1982. He escaped from a court holding cell in January 1984. He was arrested the next month in Harris County and was jailed until his death.

The article says he was also wanted for prosecution in Kansas, Georgia and Missouri on numerous sex crimes.

Mr. Goodyear was extradited to California from Texas in 1985 and sentenced to 20 years in prison. He pleaded guilty to 10 sexual assaults and robberies.

His job, possibly as a construction worker, allowed him to travel throughout the country, Mr. Ware said.

Authorities who investigated the case for which Mr. Phillips was wrongfully convicted believed that a single attacker victimized as many as 61 people at apartment complexes, gyms and spas in Dallas and Kansas City during a six-week period in April and May 1982. In those incidents, an armed man threatened to shoot his victims. In some cases, he left after forcing them to strip. He forced others to pose nude. He fondled them or forced them to fondle others.

Victims in the cases spoke of the perpetrator's striking blue eyes. Mr. Goodyear's eyes were blue. Mr. Phillips has green eyes.

Mr. Goodyear was a suspect in the Dallas County case for which Mr. Phillips was convicted, Mr. Ware said. A warrant was issued for his arrest but was never executed. Mr. Ware said that records he has reviewed don't indicate why Mr. Goodyear was never arrested.

After Mr. Phillips was cleared of the sexual assault and burglary last year, the district attorney's office suspected Mr. Goodyear might be the perpetrator. Prosecutors asked for the DNA from the sexual assault to be compared with blood saved from Mr. Goodyear's autopsy. A Texas Department of Criminal Justice spokeswoman said it's common for a sample of an inmate's DNA to be preserved from an autopsy.

Of the 15 DNA exonerations in Dallas County, this is only the third case in which prosecutors have identified the true perpetrator.

Jason Kreag of the Innocence Project in New York, another of Mr. Phillips' attorneys, said that nationally, the actual perpetrator is found just less than 40 percent of the time when someone is exonerated by DNA. Of the 212 DNA exonerations nationally, the real perpetrator was found in 80 cases, Mr. Kreag said.

In two other Dallas County exonerations, the men believed to be responsible have died, Mr. Ware said.

Entre Nax Karage was pardoned in 2005 for the 1984 murder of his girlfriend. DNA showed another man, now deceased, was responsible.

In the case of James Curtis Giles, who was exonerated last year in a gang rape, another man pleaded guilty just after Mr. Giles was convicted. But two other men prosecutors say are connected to the crime died.

Mr. Ware said the district attorney's office could be close to finding the perpetrators in other cases, but he declined to discuss them. He said finding the true assailant in cases where DNA exonerated a wrongfully convicted person remains a priority for the district attorney's office.

"It's extremely important," he said. "It's equally as important as exonerating the right person."

Michelle Moore of the Innocence Project of Texas, who handles post-conviction DNA requests for the Dallas County public defender's office, said that it's likely that the actual perpetrators in other cases in which Dallas County men were wrongly convicted are still alive.

"At some point, the DNA is going to come back to someone who isn't dead," she said. "It will be interesting to see how they handle it and what they do with these cases."

Tuesday, January 29, 2008

Masters' defense attorney says he will share DNA test information

By Jon Pilsner

The Reporter-Herald

Now that charges against his client have been dropped, David Wymore intends to share all he knows about the DNA found on Peggy Hettrick’s body with local prosecutors.

Wymore, defense attorney for Timothy Masters, had DNA evidence found on Hettrick’s body when she was killed in 1987 sent to a private laboratory in the Netherlands in 2007 for testing. When that laboratory returned a result, Wymore shared part of it with special prosecutors investigating Masters’ 1999 conviction for killing Hettrick.

The DNA, which does not match Masters, proved to be the last component of Masters’ appeal to have his guilty verdict and life prison sentence tossed out, which Judge Joseph Weatherby did last Tuesday.

On Friday, Larry Abrahamson, 8th Judicial District district attorney, announced in a release he would file a motion to have the murder charge Masters still faced dropped.

The statement also said the Hettrick investigation would continue.

“To date, the defense has only provided partial results of their DNA testing to the Colorado Bureau of Investigation and special prosecutors,” Abrahamson said in a prepared release on Friday.

“Fortunately, samples of DNA preserved by the prosecution allowed special prosecutors to validate a portion of the testing done in the Netherlands by the defense.”

Abrahamson’s office has declined further comment because the investigation is ongoing.

“I provided them with the partial results, but the results I provided were the pieces that Masters wasn’t there,” Wymore said. “But we did provide the most important pieces, and the most reliable. We provided what we had developed because I had to show him that it matched his own evidence.”

Abrahamson has asked Gov. Bill Ritter to appoint state attorney general John Suthers and his office as the lead investigators in the case to avoid any possible conflict of interest or bias.

Ritter is expected to announce his decision on the request today or Tuesday.

Wymore stressed that he intended to provide prosecutors in the case with all the information the lab in the Netherlands provided him.

“Upon dismissal, I hold up my promises,” Wymore said.

Monday, January 28, 2008

Lost hope

When DNA evidence goes missing, so does the chance for an exoneration

By Geoff Dutton and Mike Wagner


A man on Ohio's Death Row held faint hope that a DNA test might keep him from his grave. But no one could find the evidence in the Cleveland man's murder case.

Another man was changing a flat tire when a 5-year-old girl pointed to him as the man who had raped her 11 weeks earlier. The Toledo man was convicted on little more than her word. A DNA test could end all doubts, but swabs from the girl's medical exam are lost in an evidence room the manager describes as a disaster.

A judge ordered a DNA test for a Cleveland man, but the evidence remains untested more than two years later. When his father died, the prisoner stood alone over the casket, in shackles and unable to prove his innocence.

These cases reflect the empty promises and missed opportunities typical of Ohio's inmate DNA testing program.

A yearlong Dispatch investigation revealed a system in which prosecutors ignore court orders for testing, judges reject inmates without following the law, and evidence is routinely lost or destroyed before it can be tested.

The flaws have ruinous consequences for inmates, victims and society at large.

Presented with The Dispatch's findings, Gov. Ted Strickland immediately called for a compete overhaul that would speed up the review process, open up testing to more inmates and establish statewide standards for preserving evidence.

"It's not honoring the victim to take the chance that an innocent person is paying the price for victimizing them, because the flip side of the coin is that means the guilty party has escaped justice," Strickland said.

"It's just a matter of trying to do everything we can to be as careful and as accurate as we possibly can be."

The Dispatch reviewed the 313 cases of inmates who requested DNA testing and found: • Evidence had been lost or destroyed nearly two-thirds of the time when prosecutors agreed to search for it. Ohio does not require evidence to be catalogued and saved, as 22 states do.

• Even when evidence was available, the applications for testing typically went nowhere. Judges didn't bother rejecting the requests in 53 cases; they simply ignored them.

• Ohio law requires judges to cite a reason when they reject a DNA test. Nearly a third of the time, they didn't. Many rulings were one-sentence denials.

• Even in cases in which a judge granted testing, the inmate's odds of actually receiving a test still were no better than a coin toss. The Dispatch discovered 13 cases in which testing hadn't been done more than a year after a judge approved it -- in some cases, more than two years.

• Tests have been done in only 14 cases since a 2003 law allowed inmates to apply. Two resulted in exonerations. Seven confirmed guilt. The others were inconclusive.

Across the United States, the number of convicts cleared by DNA surpassed 200 last year. While the innocent were in prison, the actual rapists and murderers remained free.

The exonerations have inspired new laws in other states that preserve key evidence and allow more inmates access to DNA testing.

Ohio lawmakers, fearing a flood of frivolous applications from prisoners, tightly restricted eligibility for testing when they created the state program in 2003. But only 313 of more than 50,000 prisoners have applied for DNA tests -- which can just as powerfully prove guilt as innocence. A test result confirming their guilt can poison their chances with the parole board, potentially extending their stay in prison.

No one oversees the process closely enough in Ohio to gauge the extent of the problems -- which are consistent across small rural counties and large cities, and for low-profile convictions as well as headline-grabbing murders that sent men to Death Row.

"When we take someone's life or we take their freedom, we want to be certain that we've done everything we can," Ohio Supreme Court Chief Justice Thomas J. Moyer said. "The information you've given me is troubling, because I see two or three places where the process does not seem to be working the way it should be."

The Ohio Judicial Conference, which represents judges, acknowledges problems with tracking court filings by inmates, and says judges would be open to finding a solution.

Change can't come fast enough for those whose lives hinge on those tests.

"Sooner or later, this is going to happen to you or someone you know," said Ray Smith, 47, a Lorain man serving a life sentence for murder. "Being accused of a crime you didn't do can happen to anyone. The justice system is broken, and there are guys like me who are paying with their lives for it."

Seeds of change Twenty years ago, DNA testing revolutionized crime-fighting. Suddenly, a speck of blood, semen, hair or skin from a crime scene could be matched to a suspect with scientific certainty, using a person's unique genetic "fingerprint" embedded in the core of every microscopic human cell.

Although DNA tests are far more sensitive and sophisticated than even a few years ago, prosecutors in Ohio routinely object to inmates getting them.

Many contend that DNA is not significant enough in most cases to override the other evidence. Granting more testing, they say, would muddy the water and unfairly traumatize victims.

"There needs to be some compelling reason in the facts of the case," said Matthew Meyer, an assistant prosecutor in Cuyahoga County, which handled more than three times as many requests as any other. "It should be more than a fishing expedition."

The Dispatch investigation prompted action for change even before it was completed. The newspaper filed more than 150 public-records requests across 51 of Ohio's 88 counties and interviewed three dozen inmates and former inmates, as well as prosecutors, judges and victims.

Prosecutors in two counties have reconsidered and consented to DNA tests for inmates who had been rejected.

In four cases rejected several years ago because evidence supposedly had been destroyed, evidence was recently discovered in storage rooms after prodding by the newspaper and the Ohio Innocence Project.

And Cuyahoga County prosecutors vowed to follow through on stalled testing orders and promised to renew a search for evidence missing in a Death Row case.

Ohio Attorney General Marc Dann and every prosecutor interviewed for this series said they were open to a state law requiring that evidence be saved and catalogued.

"I think a statute makes sense," Dann said. "DNA is not a silver bullet for solving crimes … but when there's a possibility that somebody has been wrongfully convicted, I think we owe it to the administration of justice to do that testing."

Prosecutors said their motive in evaluating any criminal case is to deliver justice, not simply a conviction.

"I don't want one single solitary person who is innocent sitting in prison," said Franklin County Prosecutor Ron O'Brien. "The prosecutors rejected these cases because they were not eligible under the law that was in place at that time."

Others say prosecutors make it nearly impossible for the law to work in favor of the inmates.

"The prosecutors have this tremendous leverage. I think they just feel they don't owe anything to anybody," said David H. Bodiker, the Ohio public defender who retired this month after 13 years in the office. "I think they can bend and twist the laws to their satisfaction."

Inmate advocates say the testing system has more value to society than just identifying the innocent.

"If you've got a guy who has been in prison for years screaming innocence and a DNA test is able to absolutely confirm guilt, that shuts him up," said Mark Godsey, director of the Ohio Innocence Project, a nonprofit legal clinic based at the University of Cincinnati's College of Law.

"Part of the cost of finding innocent people is doing testing on cases where all it's going to do is confirm guilt."

Lost or destroyed evidence Nearly all of the evidence in Ceasar Vines' case had been destroyed less than a year after his 1988 rape conviction, but he thought he had one last chance to clear his name.

Vines, 56, of Cleveland, eagerly awaited the results of a court-ordered DNA test on vaginal swabs from the victim.

But with no money for an attorney to monitor his case, Vines was unaware that after a judge granted his DNA test, prosecutors determined that those swabs, too, had been destroyed.

When told by a reporter there was nothing left to test, Vines sprang from his seat in the sterile prison room. His eyes bulged wildly and he gripped the table with his fingers. He bellowed in agony.

"I have hoped and prayed, but now my hope is gone," yelled Vines, who is 20 years into his 51- to 85-year sentence at the Mansfield Correctional Institution. "It's all gone. I can't believe they have done this to me."

Even if the legal system were more open to tests, hope still would not exist for many inmates.

In DNA cases across the state, lost or destroyed evidence ended any chance for the convicts to use scientific advances that often were unavailable during their trials.

The potentially life-changing evidence is typically passed through a maze of hospitals, law-enforcement agencies, crime labs, coroner's offices and court-controlled property rooms.

In some cases, the evidence is systematically destroyed by law-enforcement agencies, each with its own retention rules. In others, evidence disappears without explanation. Sometimes, it's stored improperly, degrades and is rendered useless.

Prosecutors argue that much of the evidence was lost or destroyed during a time when DNA testing wasn't available or advanced enough to be useful.

"For the past 20 years, agencies haven't kept every bit of evidence," said Lisa Reitz Williamson, supervisor of the Cuyahoga County prosecutor's appellate division. "In 1970, we didn't know there was going to be such sophisticated testing."

Still, even prosecutors say the state needs a uniform evidence-retention law.

"It's a mess and frustrating when you can't keep track of evidence," said Lucas County Prosecutor Julia Bates. "We have 88 counties with sheriff departments, police departments and dozens of other entities, and everyone does evidence retention differently."

Two Toledo cases show the fallout of lost or destroyed evidence.

David Purnell, 43, of Toledo, was convicted in 1992 of kidnapping and raping a 5-year-old girl. Purnell was mainly convicted by the girl's testimony. While riding in a car with her grandfather 11 weeks after the rape, the girl saw Purnell on the street changing a tire and identified him as her attacker.

Despite testimony that Purnell was in Detroit the morning of the rape, he was convicted and sentenced to life in prison. The hospital took swabs of DNA from the girl but destroyed them within five days. Other evidence in the case cannot be found.

"How could they do that to the evidence?" Purnell asked. "This is why so many of us don't have faith in the justice system."

Carlton Manning, 39, of Toledo, was convicted in 1992 of raping a woman and fondling her 7-year-old daughter. The victim identified Manning in a lineup, but he said he had never seen the woman.

Manning, who was sentenced to 28 to 65 years, wanted a DNA test at the time of the trial but it was too expensive. About a decade later, Manning applied for a DNA test but was rejected because a police detective said he destroyed the evidence shortly after Manning's conviction.

During the Dispatch investigation, a box of evidence containing the victim's underwear was found in December.

Like some other prosecutors, Bates is not responsible for storing or tracking the evidence after a conviction; that duty lies with the court system. Bates, however, told T he Dispatch that her office will send the evidence to a lab for testing and search for any remaining evidence in Purnell's case.

Some inmates are filled with hope shortly after their requests are granted, only to have it ripped away later when evidence goes missing.

Ray Towler, 50, of Cleveland, was convicted in 1981 of raping a young girl and assaulting a young boy in a park. He was granted a DNA test in 2004.

Prosecutors arranged to send a hair, but technicians at a private lab said the envelope arrived empty. A month later, they sent fingernail scrapings. Again, an empty envelope. Nobody's ever explained what happened to the evidence.

"The big question is whether someone threw it away on purpose, or was it gone before I even asked for testing?" Towler said. "When that happened, my life sentence got even longer."

Mistakes or misdeeds? DNA cases in Ohio go awry for all sorts of reasons, many of which boil down to simple indifference. They are cases stalled or doomed by official inaction more than any suspected misdeed, records show.

Then there are cases such as Michael Hamilton's.

Hamilton, 57, of Springfield, requested a DNA test 14 years after he was convicted of raping a teenage girl in Clark County. But the rape kit -- typically oral, vaginal and anal swabs taken at a hospital -- was gone.

The prosecutor said a detective had returned clothing and a watch, along with the rape kit, to the 13-year-old victim after the trial.

"That would be strange," acknowledged Assistant County Prosecutor Daniel Driscoll in a recent interview. He agreed to look into it but never provided an explanation, despite at least four attempts to reach him again for details. The Dispatch couldn't locate the victim.

"The state does not have a duty to preserve evidence indefinitely after a conviction has become final," the judge noted in denying a DNA test for Hamilton.

But the ruling didn't address that the evidence, according to the prosecutor, was preserved for only 25 days after Hamilton's trial.

Most DNA cases clouded by allegations of misconduct never attracted attention and quietly faded away.

An exception was the case of Anthony Michael Green, 42, of Cleveland, who was freed from prison in 2001 after serving 13 years for a rape that DNA tests showed he didn't commit. As part of a $1.6 million settlement, Green demanded an audit of the Cleveland crime-lab analyst whose testimony helped convict him.

The review found that analyst Joseph Serowik "intentionally fabricated evidence." He was fired.

Auditors also determined last year that Serowik misled the jury in a murder case that led to lengthy sentences for Thomas Siller and Walter Zimmer, both of whom now want a new trial. The review of Serowik's 17 years of work at the lab continues. Serowik could not be reached for comment.

Inmate Phillip Gammalo, 50, of Cleveland, was convicted in 2000 of rape and murder. Four years later, a prosecutor reported that only a bottle and a jar -- debris, apparently, from the crime scene -- remained in the evidence room.

But the state public defender's office, with one phone call to the same evidence room, turned up five more pieces of evidence, including clothing and a blanket.

The discovery, his lawyer said, "cast serious doubt" on the prosecutor's statements that "no biological materials exist" for DNA testing.

A judge granted a DNA test.

"I was so happy," Gammalo said. "'Now I'm gonna prove my innocence!' "

That was in April 2006. No one has done the DNA test yet.

The forgotten inmates With shackles around his arms and legs, Cedric Crawford stood alone over his father's open casket. The convicted rapist had been granted a DNA test eight months earlier and desperately wanted to give his ailing father the result he believes would prove his innocence.

But that test wasn't performed before his dad's death and now, 32 months after a judge granted his wish, he is still waiting.

"It's hard when you know you're innocent, and you're away from your family, and you're waiting so long for testing," he said, as his voice broke and tears welled in his eyes. "It's been rough."

The odds and the law are against any Ohio inmate being granted a DNA test. But for Crawford and a dozen other inmates, there are no guarantees of a test even after a judge says they can have one.

Some are just lost in the massive justice system, some are stonewalled by prosecutors who still oppose the test, and others are simply forgotten.

Crawford, 47, of Cleveland, was convicted in 1991 of raping a 9-year-old girl. He received a life sentence.

Prosecutors opposed his request for a DNA test in October 2004, saying no biological material was found on swabs taken during the girl's medical exam. But a judge ordered the evidence sent to a lab in June 2005. Crawford's attorneys believe advanced testing could detect sperm or skin cells not found in 1991, a relative Stone Age of genetic testing.

"The prosecutor's not responding at all," Crawford said.

Cuyahoga County Assistant Prosecutor T. Allan Regas was ordered to send the evidence, along with evidence in two other rape cases that have languished, untested.

"He's following through with that to make sure that it happens," said Williamson of Cuyahoga County, noting that delays can occur for any number of reasons. "If there are any problems, we will deal with them."

Crawford, however, is ahead of some inmates who are ignored altogether. Some have filed an application for a DNA test without ever receiving a response. The law doesn't require prosecutors to respond, but if they do file one, it must be done within 45 days.

Judges can lose track of DNA applications, or any court filings by prisoners, for a variety of reasons, said Mark Schweikert, executive director of the Ohio Judicial Conference, an advocacy and oversight organization for judges.

The inmates often don't have lawyers. The paperwork is filed under the original case numbers, which can be decades old and long since labeled as closed. And the outcome of post-conviction DNA cases isn't among the information judges report to the state Supreme Court.

"It's in our interest for all this stuff to work properly," said Schweikert, a retired Hamilton County judge. "If there's a breakdown in the system, we want to know about that and help to be part of the solution."

Moyer, the chief justice, said the Supreme Court would consider requiring judges to report the outcome of DNA cases. "That's a piece that we can control. It's a matter of over 700 judges in the system, and we have to be certain that every one of them understands their responsibility."

James Ball asked for a DNA test in March 2004. Ball, 57, of Akron, was convicted of rape.

"I never got a response from anyone," Ball said. "I guess no one ever saw it, or they did and didn't care, or they just threw it away."

After nearly four years, prosecutors filed a response last month, telling Ball his request had no merit. Prosecutors acknowledged that they responded to Ball only after inquiries by T he Dispatch, and a judge still hasn't ruled.

"I don't know how or why this case was missed," said Mary Ann Kovach, chief counsel for the Summit County prosecutor's office.

No one is more aware of the importance of fixing Ohio's DNA testing program than Melinda Elkins. She fought for years to free her then-husband, Clarence Elkins, 45, of Stark County, who was convicted of killing her mother and raping her niece.

"The only way to prove Clarence's innocence was to test the evidence, and people shouldn't have to fight the system as hard as I did to do that," said Melinda Elkins, who now works for the Ohio Innocence Project.

A DNA test cleared Clarence Elkins, who was released from prison in 2005 after serving six years. The man whose DNA was found at the crime scene is scheduled to go on trial for rape and murder in August.

"The idea of ignoring evidence or throwing it away should outrage both the victims and the public," Melinda Elkins said. "I believe it's time to begin using the justice system as a way to find the truth."

Friday, January 25, 2008

DNA test fails to link man to stabbing death

By Jennifer Sullivan, Christine Clarridge and Brian Alexander

Seattle Times staff reporters

DNA testing of a Seattle man who was considered the key "person of interest" in the New Year's Eve stabbing death of Capitol Hill resident Shannon Harps did not link him to the slaying.

The 29-year-old man has been in jail since Jan. 4, when state Department of Corrections (DOC) officers accused of him of violating the terms of his early prison release by drinking. Because he has a violent criminal past, lives in Harps' neighborhood and looks like a man whom witnesses said they saw running away after the stabbing, his DNA was tested against evidence found at the crime scene.

A source close to the investigation confirmed Wednesday that the man's DNA didn't match that found on a knife and under Harps' fingernails.

"Forensic testing and investigative efforts completed to date have not provided sufficient information for an arrest," Seattle police Sgt. Deanna Nollette said.

Harps, a 31-year-old Sierra Club worker, was fatally stabbed outside her East Howell Street building shortly after 7 p.m. on New Year's Eve.

Nollette said the case remains a high priority for police and that extra patrols have been assigned to the Capitol Hill neighborhood, where residents had mixed reactions to Wednesday's news.

"Violence of that nature is a little intimidating, and it does shake up a person," said Seattle University student Karen Shipman, though she said she still feels safe walking around Harps' neighborhood. "I feel safer here than I do downtown."

Terrell Terry, another Capitol Hill resident, said he's generally unconcerned about Harps' killer potentially being on the loose.

"It's just an isolated incident," he said, adding that he felt less safe when he lived in San Francisco and Raleigh, N.C.

But one woman, who said she was too concerned about her safety to give her name, said she recently moved to the neighborhood and doesn't feel safe there. She said she always makes sure her doors are locked and intends to buy a Doberman.

Seattle police spokesman Jeff Kappel said more than 1,000 people have called 911 to report details about the slaying or information about the bearded man pictured in a police sketch. Police are asking Capitol Hill residents to "remain vigilant" and report anything suspicious.

"That could be that one small thing that somebody heard or saw that puts this together," Kappel added.

The 29-year-old man, meanwhile, could be released from the Monroe Correctional Complex, where DOC is holding him, after an administrative hearing today.

He has a history of mental-health issues, assaults and substance abuse in Florida, Georgia and Washington.

According to police, his contacts with Seattle police included an incident in which he threatened to kill his ex-wife, attacked a nightclub bouncer with a box cutter and harassed pedestrians on Broadway. In another incident, he was convicted of assault and sentenced to nine months in jail after attacking a woman from whom he had rented a room.

He has always denied involvement in Harps' slaying.

Thursday, January 24, 2008

Masters: Cop's big ego stole half my life

By Eliott C. McLaughlin CNN

GREELEY, Colorado (CNN) -- Tim Masters often drank heavily before he was imprisoned for murder in 1999, but he said he's sworn off the stuff in an interview Wednesday, his first full day of freedom in nearly nine years.

"Just because I don't look angry doesn't mean I don't have a whole lot of anger inside," Masters said. "I don't want to get drunk. People get drunk, they have no self control. I don't want to get mad or do anything stupid or say something stupid. I'd rather just stay sober."

The anger he fears unleashing is aimed squarely at the Fort Collins Police Department, which doggedly pursued him for almost 12 years before charging him with the 1987 murder of Peggy Hettrick -- a crime he has always insisted he didn't commit.

Masters, 36, was released Tuesday from prison after new DNA evidence pointed to someone else. He will find out next month if he will stand trial again, but a prosecutor said Monday that charges against Masters could be dismissed.

Speaking with CNN about 24 hours after his release, Masters said he is relieved to be out of prison, but he can't shake the feeling this saga might not be over.

He also can't shake his anger at one investigator in particular.

"My opinion is that Jim Broderick, the guy in charge of it, has a very big ego and would not allow anything or anyone to convince him that he was wrong," Masters said.

"He made up his mind in the beginning, from day one when he walked into my bedroom and saw my horror drawings and war stories, that I was guilty. Nothing would change his mind."

Broderick did not return a call Wednesday to his office. His answering machine said he would not be checking messages until the end of the month.

Michael Goodbee, one of the special prosecutors handling the Masters hearings, said in court that Broderick was out of town on a family emergency. Broderick told CNN in November, before the DNA evidence was confirmed, that he still believed Masters was the killer.

Masters was convicted largely on circumstantial evidence -- a collection of gory sketches and narratives, a few knives and a forensic psychologist's testimony that Masters' stories and artwork indicated he fantasized about sexual homicides.

He was also the first person to find Hettrick's body. He didn't immediately report it, he said, because he thought it was a mannequin and someone was playing a prank.

"It's just unbelievable because here's all these stories and drawings that have no nexus with the crime. There's no one being stabbed in the back. There's no one being sexually mutilated," he said. "The only thing they had in common with this crime is there was violence."

Lots of kids in high school sketch violent scenes and scribe violent stories, Masters said. Go to any high school, he said, and you'll likely find similar artwork and writings.

"They won their case by assassinating my character," he said.

Masters said he's been angry for years. Though his father Clyde, who died while Masters was in prison, taught him to never show his emotions, his fellow inmates were aware of his bitterness, he said.

"My best friend who sat across from me at the chow hall, he used to actually sit there and say, 'Damn, I've got to look across at this surly face every day? Look at your face. You look mad all the time.' "

His frustration began to wane when the media started reporting on his case about six months ago. The letters he received in prison and support from fellow inmates helped, he said, but the anger is "still going to be there. There's no way to get around that. It's still inside."

Masters said he can't thank his family enough for standing by him. And though he spoke with reverence of his father, there was an undertone of resentment in his words. It was his father, he said, who initially told him to cooperate with police, a decision that ultimately would be his undoing.

His father allowed police to search their trailer. He also allowed Masters to be interrogated for hours without an attorney. Police would use the evidence and interrogation to convict Masters in 1999.

"We'll cooperate with them and give them anything they want and then they'll see that you didn't have anything to do with this and they'll move on," Masters recalled his father telling him in 1987. "It turns out that by cooperating with them it just encouraged them, because I was the easiest suspect to go after."

Clyde Masters knew his son hadn't committed the crime, but he thought police were there to help, Masters said. His father was in the Navy for 22 years and felt you should obey authority, he added.

"Well, you know what? You shouldn't always submit to authority. Our country wouldn't exist if everyone submitted to authority," he said. "It's just a shame Dad didn't know how the system was."

In a news conference after his release, Masters said he wanted only to see his family. He was whisked away from the courthouse to the local Elks Lodge, which his aunts and uncles had rented. At the party, he met some of his younger relatives for the first time.

"Everybody didn't get to come up there and visit me over the years, and the cousins, the younger ones, have had kids of their own and I don't know any of them, so I'm trying to learn everyone's name and not succeeding," Masters said.

His first meal was two pieces of grocery store fried chicken -- which he ate simultaneously -- and a glass of lemonade. The chicken was "fantastic," he said.

"I didn't even eat anything else with it. I just had two pieces of chicken there and people are shaking my hand and leaving like, 'Ugh, I got grease on my hand,' " he said with a chuckle. "Sorry."

During visits with family members, he learned how much the world had changed since he was locked up. Everyone had high-tech cell phones with cameras. His cousins and nephews were showing him YouTube and their MySpace pages.

Despite the changes all around him, the changes within him seem negligible, he said. "I don't feel a whole lot different other than a lot of emotional baggage," he said. "Other people would be able to tell you better than I would how much I've changed."

His freedom still seems like a dream at times, he said. As for trying to recover the years he feels were wrongly taken from him -- the years in high school and in the Navy when he was pegged as a murderer or the decade he spent in a prison cell -- he understands they're gone forever.

"You can't get any time back," he said, quipping, "My youth and my hair, gone."

Though there are strong indications that Masters could be fully exonerated in February, he is not getting his hopes too high -- not after the events of the past two decades.

"For me, it's not over until it's over. They haven't dismissed any charges. I'm out on bond, so I'm not completely free yet," he said.

Masters said he and his legal team are prepared in the event of a new trial.

"Whatever happens, happens. We're ready."

Wednesday, January 23, 2008

Panel backs DNA evidence bill


Star-Tribune capital bureau

CHEYENNE -- A legislative panel Tuesday threw its support behind a bill that would allow Wyoming courts to consider new DNA evidence in old criminal cases.

Wyoming is among a handful of states that don't allow prisoners to challenge their convictions with genetic evidence after the regular appeals process has expired.

DNA evidence has helped free more than 200 prisoners nationwide since the science first emerged as a feature of criminal trials and appeals in the 1990s.

If the bill becomes law, Wyoming prisoners would be allowed to petition courts to consider DNA evidence and ask for new trials. If the verdict at retrial is not guilty, or if the prosecutor declines to pursue a retrial, the prisoner would have the right to petition the court to declare a finding of “actual innocence.”

The difference between a “not guilty” verdict and a declaration of innocence could be an important distinction as the released prisoner works to piece his or her life back together, officials said.

The bill also includes a provision that would allow the courts to order DNA testing of individuals who are not suspects in a crime, known as third-party testing. That section of the bill raised some eyebrows when the committee earlier discussed the bill because of privacy concerns. It didn't receive the same attention Tuesday.

The third-party testing provision was originally included as a means for prosecutors to eliminate suspects. But Natrona County District Attorney Mike Blonigen, president of the Wyoming Prosecutors Association, told the committee that it would also provide defendants with more leverage to obtain DNA tests that might help their cases.

Under the provision, those ordered to submit to third-party DNA testing would have the right to challenge the order at a hearing, and they would have the right to have a lawyer represent them.

Lawmakers and lawyers who helped draft the bill said they expect few DNA exonerations in Wyoming. Only a small number of current Wyoming prisoners would qualify to have DNA evidence considered in their cases, and a only a fraction of those might be set free, experts said.

That's partly a function of the state's small prison population and the lack of rampant problems in the state criminal justice system.

“We do not expect a flood of petitions, but we want to have a remedy available should one of these occur,” Blonigen said.

Current state law offers several ways to void a criminal conviction, such a governor's pardon and regular appeals, but most carry time limits, and few allow for new DNA evidence to be considered.

The legislation would allow for a new trial if the judge has sufficient reason to think DNA evidence might prove a prisoner's innocence. The prisoner would carry the burden of proof.

The bill does not address cases where non-DNA evidence might prove innocence. Current state law does not allow consideration of new evidence of any type once a conviction is more than two years old.

Some experts believe that the number of cases where non-DNA evidence might prove innocence is even greater than those involving DNA.

The bill also does not address restitution for those who win their freedom. That topic could be addressed by future legislatures, officials said.

In the Utah Legislature, where work on a similar bill is under way, the state Senate unanimously approved legislation Tuesday that would provide freed prisoners with an annual salary for every year they spent behind bars, The Associated Press reported. The amount of money would be the tied to the average Utah salary, which is now about $35,000 a year.

Rep. Edward Buchanan, R-Torrington, co-chairman of the Joint Interim Judiciary Committee, said he prefers a slightly different scenario in Wyoming, as the federal government might be able to tax compensation based on lost wages.

Buchanan, who earlier voiced concern that the bill might not be ready in time for the February budget session, said Tuesday that he is pleased with the draft legislation.

“We are very excited that the bill has the unanimous support of the Joint Judiciary Committee, and we are convinced that it will fare well this session,” added Katie Monroe, director of the Rock Mountain Innocence Center in Utah, a nonprofit organization established to seek freedom for the wrongly convicted in the West. Monroe helped draft the bill.

Also helping craft the legislation were Wyoming prosecutors, public defenders, the state attorney general's office and a University of Wyoming Law School professor.

The bill will need support from two-thirds of the House or Senate to be introduced during a budget session.

Tuesday, January 22, 2008

The state has yet to compensate a man wrongly convicted of rape, robbery

David Royse

The Associated Press

January 21, 2008

Alan Crotzer is working at a landscaping company, hoping one day to be compensated for the 24 years he spent in prison for a rape he didn't commit.

Florida lawmakers have failed to pass a bill to pay him -- and he's again asking the Legislature for $1.25 million for the two decades of freedom he gave up.

Several states have automatic compensation for people who have been wrongfully imprisoned and then released -- something that is happening more and more because of increasing use of DNA to prove innocence.

But Florida remains one of 28 states that don't guarantee compensation for those who spent precious years behind bars for something they didn't do. Nine men have been freed by DNA in Florida in recent years, but only one has received money.

"I don't have any education, I don't have any real job skills. So I'm doing what I can," Crotzer, 47, said recently. "I went on public assistance.

"How can you take more than half a man's life and expect to do nothing for him?"

In 1982, Crotzer was convicted of robbing a Tampa family and kidnapping and raping a 38-year-old woman and a 12-year-old girl at gunpoint during the crime.

Crotzer said he was nowhere near the scene and witnesses corroborated that, but he had a previous robbery conviction when he was 17 and a witness picked him out of a lineup. He was sentenced to 130 years in prison.

Years later, another man convicted in the robbery told police that Crotzer wasn't with them that night and revealed the real rapist. DNA testing along with the other evidence convinced prosecutors that he wasn't involved. He was released in 2006.

The state has immunity from large lawsuits, so exonerated prisoners must go to the Legislature and ask for compensation. Lawmakers can pass a special "claims bill" that pays people for wrongs by the government.

But only Wilton Dedge has managed to get such a bill through the Legislature. Dedge spent 22 years in prison for a rape he didn't commit, and in 2005 lawmakers awarded him $2 million.

Senate President Ken Pruitt said compensation for the wrongfully convicted is one of his priorities for this year.

"Government gets it wrong sometimes, and when we do, we must take responsibility," said Pruitt, R-Port St. Lucie.

Gov. Charlie Crist has also said the wrongly imprisoned deserve compensation.

State Sen. Arthenia Joyner is sponsoring a bill to provide most exonerated inmates $100,000 for every year behind bars. For Crotzer, that would mean more than $2 million.

Leaders in the House and Senate say, however, that some lawmakers would only vote for compensation legislation that limits eligibility to people who have never committed any crimes.

Rep. Ellyn Bogdanoff, R-Fort Lauderdale, who is working on the measure in the House, said government has a moral obligation to compensate people who are "completely innocent."

Friday, January 18, 2008

Paroled inmate: DNA will clear me

30 YEARS 'Once and for all, people will know the truth'

January 18, 2008

BY ERIC HERMAN Chicago Sun-Times

Johnnie Savory got out of prison more than a year ago -- but he still wants to prove his innocence.

Savory, 45, was convicted of a double murder in 1977, when he was 14. Since then, he has maintained he did not commit the Peoria murders.

Now, he has been paroled, and more than 200 high-profile supporters -- including former federal prosecutors and author John Grisham --are asking Gov. Blagojevich to order DNA testing in the case to exonerate Savory and completely clear his name.

"Grant me DNA testing, and then once and for all people will know the truth," Savory said at a press conference at Northwestern University's Center on Wrongful Convictions, which took up his case.

Two all-white juries convicted Savory, an African American, of stabbing teenagers James Robinson and Connie Cooper to death on Jan. 18, 1977. Two of the three informants who testified against Savory recanted their stories, according to the Center on Wrongful Convictions.

Savory, after being arrested at his junior high school and interrogated for a day and a half, allegedly confessed to the crime. He later recanted his confession. Prosecutors claimed he lost his temper while practicing karate with Robinson, then killed Cooper.

In a letter to Blagojevich, former U.S. Attorney Tom Sullivan urged the governor to order the DNA testing of fingernail scrapings and hairs recovered from the victims' hands. He said testing could identify Peter Douglas, the victims' stepfather, as the actual killer. Douglas is now deceased.

Douglas was a "prime suspect" and "more closely fit the description of the killer provided by a witness," Sullivan said.

Sullivan was joined in the request by four other former U.S. attorneys from Chicago -- Sam Skinner, Dan Webb, Anton Valukas, and Scott Lassar -- as well as Grisham and Studs Terkel. Blagojevich's spokeswoman could not be reached for comment.

Thursday, January 17, 2008

La. Convict Cleared by DNA Released

January 17, 2008


A man held 26 years behind bars for rape has been released after DNA evidence proved he was falsely convicted.

Rickey Johnson, 52, was convicted of the 1982 rape after the victim identified him as her attacker. He spent most of those years in the state penitentiary at Angola, until DNA evidence cleared him and implicated another man.

Johnson was released Monday and appeared Tuesday at a news conference in Baton Rouge, where he said he doesn't hold a grudge.

"It ain't going to do no good, being angry," he said.

Since 1990, 10 men in Louisiana have been exonerated by DNA evidence after committing violent crimes and getting long sentences, according to Emily Maw, head of the Innocence Project New Orleans, a nonprofit whose legal help got Johnson out of prison.

Johnson, of Leesville, is the the 211th person nationwide to be exonerated through DNA testing, the Innocence Project said on its Web site.

The rape occurred July 12, 1982, in Many, a small, west-central Louisiana town about 170 miles northeast of Houston.

Nine months after the rape, another occurred in the same apartment complex as the first. A man named John McNeal was convicted of that attack. The DNA test performed on Johnson showed that McNeal committed both rapes, said Vanessa Potkin, Johnson's lawyer.

McNeal is in prison for the second rape.

Wednesday, January 16, 2008

'I never should have been in jail'

January 15, 2008


An Indianapolis man wrongly imprisoned 11 years for a rape he didn't commit was cleared but languished in prison for two more years because of a paperwork mistake.

Harold Buntin, 38, walked out of prison Friday after a judge and commissioner corrected the 2005 mistake and cleared the Indianapolis man of robbing and raping a woman in 1984.

The Marion County prosecutor agreed to drop all charges against Buntin and, based on the DNA test results, did not oppose his release, said Matthew Symons, spokesman for the prosecutor.

Elated to finally be free, Buntin said he remains upset and frustrated that misplaced paperwork delayed his release for so long.

"I'm going to move on and take care of my business," he said Monday. "But I feel like somebody has to answer for that. I never should have been in jail -- and I spent two more years there after they knew I was innocent."

At the time Buntin was convicted, DNA testing was not widely used. Prosecutors linked him to the victim because of her testimony and the fact that he had the same blood type as the rapist.

Buntin is among about 200 convicts in the United States -- at least five in Indiana -- who have been exonerated by DNA evidence since 1989, according to The Innocence Project, an independent nonprofit organization that works to free innocent people through use of DNA evidence.

Winning his exoneration was a long and trying process for his mother and two sisters, who had to raise more than $4,000 to pay for two DNA analyses. The tests revealed he was not the person who robbed and raped the 22-year-old clerk at a Northside cleaners Aug. 4, 1984.

Repeated requests for a review of his case based on the test results finally paid off in April 2005, when a judge exonerated him. But Buntin -- and the rest of the justice system -- wouldn't find out about the decision for two more years.

A bailiff or clerk failed to properly enter and distribute the order clearing Buntin, court officials found, leaving him stuck in prison.

Because no order was sent to him or his attorney, Buntin believed the court had not ruled on his petition. At first he waited, but records show he filed follow-up documents with the court in August and November 2005.

The problem was discovered after Buntin and family members pressed his attorney to file a "lazy judge" complaint because of the delay in the ruling. Court officials began an investigation and found the original order in Buntin's court file, which had been placed in storage.

"Whether the bailiff failed to follow the provided directions or whether the deputy clerk assigned to this court failed to discharge her responsibilities, the order was never entered of record and copies were never distributed to the interested parties," Judge Grant W. Hawkins and Master Commissioner Nancy L. Broyles wrote in a notice explaining the delayed ruling.

"Rather, the file was closed and archived as if the court's order had been properly entered into the record."

The rape allegation has haunted Buntin since he was 15 and identified by the victim. Police believed the woman, who previously identified another suspect, and Buntin was charged with rape and armed robbery. The woman could not be reached for comment Monday.

Buntin's case went to trial in April 1986. He was 17 and scared, and before the trial ended, he fled the state.

A jury convicted him in absentia on charges of armed robbery and rape and sentenced Buntin to 50 years in prison.

After an unrelated arrest in Florida in 1994, police discovered Buntin was a fugitive and sent him back to Indiana, where he began serving his sentence.

While he waited to be freed, Buntin said, he did not waste his time in prison. First, he earned a general educational development certificate and then associate degrees in computer business and culinary arts. Now that he's out, Buntin said, he's not sure what the future holds for him.

"I still haven't gotten used to it yet," said Buntin, who declined to be photographed. "It's going to take awhile to re-adjust and reconnect with my family. That was a long time, and right now I'm just trying to take life a day at a time and enjoy every moment."

For his family, the release has brought mixed emotions.

"Friday was a beautiful day -- sad and happy at the same time," said Buntin's sister, Kim Buntin, Indianapolis. "I'm happy he's finally home, but I'm mad he had to go through all of this to prove his innocence."

Tuesday, January 15, 2008

DNA Exonerates Man after 26 Years in Angola

January 14, 2008

By Joel Massey – KALB NewsChannel 5

A man who has been behind bars for 26 years for a rape he did not commit is a free man. Rickey Johnson was released today in many after DNA results proved his innocence. He was 26 when he was arrested and is now 52.

The following is a press release from the Innocence Project, a group that works to exonerate wrongly convicted people through DNA testing.

“Rickey Johnson lost more than a quarter of a century, nearly his entire adult life, to a wrongful conviction. He had three young children when he was arrested, and a fourth was born shortly after he was incarcerated; all of those children are now adults, and he has grandchildren he’s never met,” said Vanessa Potkin, the Innocence Project Staff Attorney representing Johnson.

“Rickey Johnson’s long nightmare will be in vain if we don’t learn from it and make sure other people in Louisiana have access to DNA testing that can prove their innocence.” In Baton Rouge tomorrow, Johnson will join other people exonerated by DNA testing in Louisiana to call for statewide access to DNA testing and policies to ensure that evidence is properly preserved so DNA testing can be conducted.

Johnson was arrested in 1982 for the rape of a woman in Many in July 1982. The victim in the crime said a man broke into her home at 1 a.m. and stayed for several hours, during which he raped her. She later identified Johnson in a photo array which included an eight-year-old photo of Johnson and just two other photos. Johnson was convicted of the rape in January 1983 and sentenced to life without parole. He has been at Louisiana’s Angola Farm Prison ever since.

In June 2007, the Innocence Project (which is affiliated with Cardozo School of Law) asked Sabine Parish District Attorney Don Burkett to agree to DNA testing on a vaginal swab collected after the rape. Within days, Burkett agreed, and testing was conducted. The DNA profile did not match Johnson, and late last week state officials entered the DNA profile in a database of convicted offenders – yielding a match to John Carnell McNeal, who was already in prison for an identical rape in the same apartment complex just nine months after the rape for which Johnson was wrongfully convicted. After McNeal was convicted of the April 1983 rape, he was sentenced to life without parole and has been serving time at Angola Farm with Johnson; the two men were acquaintances for the last two decades.

“If police and prosecutors had not focused on Rickey Johnson so early in their investigation – and if a proper eyewitness identification procedure had been used instead of a deeply flawed photo lineup – the real perpetrator might have been brought to justice sooner and might not have been free to rape another woman in the same apartment complex,” Potkin said. “Anyone who doubts that our criminal justice system is stronger when we take steps to prevent wrongful convictions should take a close look at Rickey Johnson’s case.”

At the suggestion of Calvin Willis, an Innocence Project client who served more than 21 years at Angola before DNA testing exonerated him in 2003, Johnson wrote to the Innocence Project seeking assistance. He wrote that he wanted help getting “the DNA that will give me my life back” and said, “I am not the man that did this rape … all I want is to go home.” In 2005 Johnson’s daughter, Lakeisha Butts, wrote to the Innocence Project: “My father Rickey Johnson was wrongfully charged and sentenced to life … 21 years have now passed and my dad has been stripped from his children and family on a charge he is not guilty of, and the real perpetrator of this heinous act was granted the advantage of walking free and having the opportunity to be surrounded by his family … We, the children of Rickey Johnson, need your assistance in exonerating our father.”

The Innocence Project took the case in 2006 and quickly located the evidence. Once Burkett agreed to DNA testing, a state judge granted a motion to test the evidence at Reliagene, a private lab based in New Orleans. Basic DNA testing yielded only a partial profile, and more sophisticated testing (known as Minifiler DNA testing) provided a full profile. In late December, Johnson’s DNA profile was compared to the profile on the vaginal swab, and he was excluded; last week, state officials matched the profile to McNeal, whose DNA profile was in the state’s database of convicted offenders.

The Innocence Project today commended Burkett for quickly agreeing to conduct DNA testing in Johnson’s case. While Louisiana passed a state law allowing access to post-conviction DNA testing in 2001, East Baton Rouge District Attorney Doug Moreau has fought DNA testing for years in two Innocence Project cases. In Archie Williams’ case, Moreau has refused to conduct DNA testing for 13 years; a state appeals court finally ordered DNA testing in the case in August, but Moreau has appealed to the state Supreme Court. Just last week, the state Supreme Court rejected Moreau’s effort to continue blocking DNA testing for Kenneth Reed, who initially requested testing two years ago. In the two unrelated cases, Williams and Reed were convicted of raping women who did not know their attacker – making them the most straight-forward types of cases for DNA testing to prove guilt or innocence.

Monday, January 14, 2008

Felons not being told of new evidence

Biological material turns up in 2,215 Va. cases prior to widespread DNA tests

Friday, Jan 11, 2008


Virginia felons convicted of crimes before DNA testing was widely in use are not being notified when biological evidence is found in their old forensic case files.

As a result, it is largely being left up to authorities to determine whether DNA testing is warranted in such cases and to interpret whether the results have any bearing on innocence.

In a groundbreaking project far larger than first envisioned, the Virginia Department of Forensic Science has searched 530,079 paper files dating from 1973 to 1988, finding 2,215 that contain crime-scene biological material and include a suspect's name.

Five men wrongly convicted of rape have been cleared with evidence from the old files. Advocates and others are concerned that for the most part, only authorities are being told the evidence exists and not the felons who potentially have the most at stake.

In a 6-5 vote, the state Forensic Science Board has decided not to apprise the governor and General Assembly that convicted people are not being told about the evidence -- a move that might result in the state locating and notifying them.

"It's really astounding to me and it's sad. . . . It's bad policy and there really is no justification for this kind of inaction," Mary Kelly Tate, director of the Institute for Actual Innocence at the University of Richmond School of Law, said yesterday.

Tate added: "I know that the people on the board are fair and decent, but this decision does not reflect fairness."

Shawn Armbrust, executive director of the Mid-Atlantic Innocence Project in Washington, agreed. Among other things, she said, felons have a right under state law to seek DNA testing in appropriate cases.

. . . Forensic Science Board member Steven D. Benjamin, a criminal defense lawyer, argued at Wednesday's meeting that the felons should be notified, or at least the governor and lawmakers be alerted that they are not being notified.

"It's unconscionable . . . not to notify folks there is biological evidence that has been discovered," Benjamin said.

Board member S. Randolph Sengel, the Alexandria commonwealth's attorney, strongly disagreed with Benjamin's proposal.

"It implies the way it is working now is defective, and it implies law enforcement is . . . not properly responding. It seems to me to raise this red flag at this juncture sends the wrong message," Sengel said.

Sengel added that prosecutors in Virginia take the study very seriously and will do the right thing if evidence of innocence is turned up.

Board member Dr. Leah Bush, the state's new chief medical examiner, agreed with Benjamin that notifications should be made when possible out of fairness.

But Col. W. Steven Flaherty, head of the Virginia State Police, said that while the goal was laudable, he feared, among other things, unforeseen burdens that might be placed on any state agency given the job of tracking the people down and notifying them.

Peter Marone, director of the Department of Forensic Science, told the board that lawyers who are asking whether evidence had been found in the files of clients are being told.

. . . It was first learned in 2001 that former state forensic serologist Mary Jane Burton saved biological evidence -- primarily blood or semen on swatches or swabs -- in her case files after Marvin Anderson, of Ashland, sought DNA testing to clear his name.

Anderson was convicted wrongly of a 1982 rape and spent 15 years in prison until his parole in 1997. Anderson first was told no evidence remained for DNA testing.

However, the state forensics lab discovered biological material in Burton's case file on Anderson -- and in many of her other old files. Subsequent DNA testing cleared Anderson and implicated the real rapist, who later was convicted.

Benjamin argued to the board Wednesday that there could be others who, like Anderson, were told initially that evidence no long existed for DNA testing but who accepted the state's word and did not keep asking.

After Anderson, two other men were exonerated of old rape charges based on evidence saved by Burton.

. . . In 2005, then-Gov. Mark R. Warner ordered DNA testing in a sample of 31 of her old cases, and two more men wrongly convicted of rape -- neither of whom had sought DNA testing -- were cleared.

Warner then ordered testing in all appropriate cases from 1973 to 1988. Marone said the original directive from Warner dealt with sex offenses only and quickly was expanded to include murder.

His department is contacting prosecutors, clerks and the state police to determine whether individuals were convicted of such crimes in each of the 2,215 cases. Once a case meets all the criteria, the material is sent to an independent laboratory for testing.

The test results are forwarded to the prosecutor's office that originally handled the case to see if it has a bearing on innocence. All DNA test results are forwarded to the governor.

Questions and answers with journalist who investigates wrongful convictions

January 10, 2008

By David Mercer, The Associated Press

Northwestern University journalism professor David Protess convinced a pair of Chicago attorneys to look at Herb Whitlock's murder conviction after he and four of his students looked into the case.

Whitlock was released from prison Tuesday after a judge found the evidence against him to be flawed and incomplete.

Some of those who worked on his behalf say Whitlock's life sentence for the 1986 murder of Karen Rhoads meant he did not have the legal resources available to death row inmates and likely stayed in prison longer as a result. Randy Steidl, convicted in the killing of Rhoads and her husband, Dyke, was sentenced to death on much the same evidence. But he was released in 2004.

Protess, who is also director of the Medill Innocence Project at the Medill School of Journalism at Northwestern, discusses the disparity of those resources, and his involvement in Whitlock's case.

Q: Is there an inequity in the resources available to someone facing a death penalty and someone facing life in prison?

A: I certainly think that attorneys who are defending death penalty cases are far more vigorous ... They also have investigative resources at their disposal - court appointed investigators.

Q: You say legal resources aren't the only advantage death penalty defendants and convicts have in pressing their cases, but also news media attention.

A: Media resources are a part of the issue here. Nothing was happening on this (Whitlock and Steidl) case until it was brought to public attention. I think if that had been done more effectively from the beginning, I think the authorities would have broadened their search and been held more accountable.

Q: How and when did you get involved in the Whitlock and Steidl cases?

A: Randy's mother wrote me a letter. That's how I first heard about it, in '98... I began to review the case and was absolutely appalled that two men could be convicted. The case came down to two witnesses who had really limited credibility and by that point had changed their stories.

Q: How many cases are you working with now?

A: Four. We get about 1,000 requests a year ... from all across the country.

Q: Are any of the cases you're looking at now similar to the Whitlock and Steidl cases?

A: I frankly in 20 years of doing this kind of reporting, have never seen a case as outlandish as the wrongful conviction of Randy Steidl and Herb Whitlock.

Q: How many people now behind bars might be helped if more money was available to them to pay for more or better legal resources?

A: There is no precise number of wrongly convicted ... (but) I can say this: The Justice Department has studied this and found (a conviction) an error rate of roughly 10 percent. Prosecutors who have been surveyed estimate an error rate of 1 percent.

There are 2 million Americans behind bars today. That means even accepting prosecutors' estimates of the scope of the problem, we're talking about 20,000 people who are wrongly prosecuted ... 20,000 people who need help, very few of whom will get it.

Friday, January 11, 2008

Governor commutes death row inmate's sentence to life in prison

January 09, 2008

By Andrew Welsh-Huggins, The Associated Press

Gov. Ted Strickland today commuted to life in prison the death sentence of a man who faced execution later this month in the killing of an Ohio postmistress.

Strickland based his decision on the lack of physical evidence linking John Spirko to the 26-year-old murder and ''the slim residual doubt'' about Spirko's responsibility for the slaying based on a careful study of the case.

Those factors make ''the imposition of the death penalty inappropriate in this case,'' Strickland said.

On Thursday, the attorney general's office said it had concluded that no DNA evidence links Spirko to the 1982 killing of Betty Jane Mottinger in northwest Ohio.

Although Strickland spared Spirko, he rejected several alternatives suggested by Spirko's attorneys that would have freed their client.

Attorneys had asked for a full pardon, a conditional pardon or a commutation to time served, all of which would have allowed Spirko to be released.

Strickland said state and federal courts reviewed and upheld Spirko's conviction and the Ohio Parole Board twice rejected his petition for clemency. Under the commutation order, Spirko will not be eligible for parole.

''At times, when he wasn't denying having committed the murder, he appears to have admitted doing so,'' Strickland said. ''Spirko's claims that his own lies led to his conviction for an offense that he did not commit are unpersuasive in the face of the judicial scrutiny this case has received.''

Spirko's attorneys said they were disappointed that Strickland did not free Spirko.

''There can be no joy in the commutation of an innocent man's sentence to life without parole,'' Washington, D.C.-based lawyers Tom Hill and Alvin Dunn said in a statement.

''The positive thing about Governor Strickland's commutation is that the state will now not execute an innocent man and that we can, and will, continue to fight for Mr. Spirko's complete exoneration and release,'' the statement said.

Spirko, 61, is the second death row inmate in a week to avoid execution after a long legal struggle. On Monday, U.S.-British citizen Ken Richey, 43, entered a plea deal in a northwest Ohio court that allowed him to accept a sentence of time already served and leave the United States. The agreement comes after an appeals court overturned Richey's 1987 death sentence last year.

Spirko also is the second death row inmate whose sentence was commuted to life in prison under the state's new death penalty law, which went into effect in 1981. In 2003, Gov. Bob Taft commuted the sentence of Jerome Campbell of Cincinnati because of concerns about evidence presented at Campbell's trial.

Spirko was convicted based on his comments to investigators and witness statements.

Charges against a co-defendant who linked him to the murder have been dropped.

Courts at all levels have previously upheld Spirko's conviction and death sentence.

He received seven reprieves while the DNA testing was conducted, a record under the state's current death penalty law.

Last year, Strickland denied clemency requests by three inmates, two of whom were executed. A third, Kenneth Biros, had his execution delayed by the U.S. Supreme Court to allow him to pursue a lawsuit challenging lethal injection as unconstitutional cruel and unusual punishment.

Strickland, a Democrat, is a death penalty supporter but has said he is conscious of the numerous examples of exoneration through DNA testing around the country.

Thursday, January 10, 2008

Nick Yarris, who spent 22 years on death row, gets the last of a $4M settlement

January 10, 2008

By Stephanie Farr & William Bender, Philadelphia Daily News

Nicholas Yarris spent 22 years on Pennsylvania's death row, convicted in 1982 of raping and murdering a Delaware County woman then dumping her body in a church parking lot.

For those lost years, he has now earned $500 a day.

Yesterday, Yarris, 46, received the last installment of a recent $4 million cash settlement in a malicious-prosecution lawsuit against Delaware County.

The civil suit was first filed in U.S. District Court in 2004, eight months after Yarris was released from prison, having spent 8,057 days there - the first man exonerated by DNA evidence from Pennsylvania's death row.

Now, Yarris must learn how to live a life not entwined with prisons, courts and that now-ambiguous word - justice.

"As far as I'm concerned, the justice system is no longer a part of my life, and that's very strange to me because it's been a big part of my life since 1981," he said when reached by phone yesterday at his home in England, in a suburb of London.

While in Delaware County Prison in 1981 for an unrelated crime of which he was later acquitted, Yarris, then a self-proclaimed "20-year-old junkie," lied about knowing who had killed Linda Mae Craig, a mother of three from Boothwyn, who was raped and slain after she left her job at the Tri-State Mall in Delaware on Dec. 15, 1981.

In hopes of obtaining bail, he identified as the killer a man he thought was dead. However, the man turned out to be "very much alive" and had a very real alibi.

For his false claim, Yarris became the prime suspect in Craig's death. Prosecutors developed jailhouse witnesses who said they'd heard him confess to the crime and civilian witnesses who said they had seen him at the mall before the murder.

According to Yarris, the witnesses were conned into lying by prosecutors and detectives seeking a conviction.

He was sentenced to death in 1982 after a three-day trial and five hours of jury deliberation.

In 1985, while being transported for a destruction-of-evidence hearing, Yarris escaped, and remained on the lam for 25 days before turning himself in.

As the science of DNA evolved, Yarris pushed for it to be applied to his case.

But in 1993, he contracted hepatitis C in prison and by 2003 he was diagnosed as "terminal."

He essentially gave up his fight when he asked a judge to expedite his execution.

"I asked to be murdered," he said.

"After watching and hearing three other men die from this horrible disease, I wanted to control my death rather than linger in suffering."

But within a year, one last effort by his attorney resulted in forensic testing that proved that the DNA of the human skin and secretions found on and about the victim did not match Yarris' DNA.

A federal judge demanded that Yarris receive a new trial, but Delaware County prosecutors decided not to pursue the case. Yarris walked out of prison a free man in January 2004.

Eight months later, he filed a $22 million civil lawsuit against Delaware County, claiming that investigators and prosecutors had fabricated and destroyed evidence in his case.

The county's insurance company, and not county officials, agreed on the $4 million settlement, county solicitor John McBlain said.

"The insurance companies can negotiate a settlement if they so desire and the county cannot trump it," McBlain said.

"To this day the county and the district attorney's office does not believe that any of its employees committed any wrongdoing in the prosecution of this individual."

Joseph Brielmann, D.A. spokesman, agreed.

"The county of Delaware, the Office of the District Attorney and the prosecutors and detectives named in Mr. Yarris' suit adamantly maintain they are not liable for the claims he asserted," Brielmann said in a written statement.

Yarris disagrees - strongly - but says he does not hold ill will against those who put him in prison.

"You know how many people prayed for me to come home? At some point, I owed them," he said.

"What's the point of coming back from hell if you go home and bring hell to everyone's life? There's no point in getting out if I take that prison cell with me."

Yarris' father, Mike, who lives in Philadelphia's Eastwick section, and who says he can still recite the "whole trial, backwards, if you like," was not so forgiving of what prosecutors put his son and his family through.

"We went through this stuff for 22 years," Mike Yarris said. "Whatever money he gets is not enough."

Today, Nicholas Yarris lives with his wife, Karen, and 21-month-old daughter, Lara Rebecca, in St. Albans, a London suburb. His hepatitis is inactive and he works closely with Reprieve, a British charity fighting for English citizens facing the death penalty around the world.

He also tours independently, visiting colleges and universities, sharing his story, trying to get students interested in law careers so that they can reform the system.

HarperCollins is slated to publish his book, "Seven Days to Live My Life," this year, and he has sold the movie rights to his story.

Yarris, who was homeless at certain points after his release, said he's going to be "prudent" with the settlement and invest it in his daughter's future.

As for the case of Linda Mae Craig, Brielmann said District Attorney Michael G. Green "remains steadfast in his resolve to solve the homicide."

Craig's son, Arthur Craig Jr., who now lives in Indiana hauling cars for the Teamsters Union, said he still thinks Yarris was tied to the crime, despite his legal exoneration. "I believe he was involved," he said. "Is there anything I can do? No.

"God will sort him out."

Wednesday, January 9, 2008

Bill Would Give Tax Break to Exonerated Prisoners

December 7, 2007

By Fernanda Santos, The New York Times

Seven months after his release from prison in 2001, after serving 15 years for a rape he did not commit, David Pope received $385,000 in compensation from the State of Texas and set out to rebuild his life: He rented an apartment, bought a car, helped his mother pay bills and traveled overseas for the first time.

The money did not last long, but being broke is not the only problem Mr. Pope, 46, has grappled with since his exoneration. He said the Internal Revenue Service has notified him that he owes $90,000 in federal taxes on the compensation he received for his wrongful conviction, but he has no idea how he is going to settle the debt.

“I didn’t know I had to pay taxes over it until the government started sending me letters,” said Mr. Pope, who has struggled to find a steady job.

Yesterday, a bill that would exempt exonerated prisoners from paying federal income taxes on compensation received for a wrongful conviction was introduced by Senator Charles E. Schumer of New York. The measure pushes the issue of taxation to the forefront of the debate over how to compensate the wrongly convicted properly for the years they spent behind bars.

“The criminal justice system is not perfect, so at the very least, we ought to do what we can to make amends to the people who were wrongly convicted — a very small number of people who pay a big, big price for those mistakes,” Mr. Schumer said. “The compensation they receive should not be taxed; that’s certainly like throwing salt on a very deep wound.”

The bill, called the Wrongful Convictions Tax Relief Act, would also exempt exonerated prisoners who do not have prior felony convictions from paying income taxes on up to $50,000 earned each year after their release from prison (or up to $75,000 if they file joint tax returns) and provide them with an income tax credit on payroll taxes paid over the same earnings.

More than 200 people nationwide have been exonerated by DNA evidence since 1989, and more than 400 have been cleared by other types of evidence.

To date, 22 states have passed legislation establishing parameters for financial compensation; three of them — California, Massachusetts and Vermont — have provisions exempting exonerated prisoners from paying state taxes on the money they receive.

But federal laws are unclear as to whether compensation for a wrongful conviction should be considered income and taxed, like punitive damages are, or if it should be treated as a personal-injury award, which is not subjected to taxes, an Internal Revenue Service spokesman said.

Some exonerated prisoners have successfully challenged the I.R.S. in court and were then cleared of paying taxes. Most, however, either pay or stay in delinquency, said Barry C. Scheck, a lawyer and co-founder of the Innocence Project, a legal clinic at Benjamin N. Cardozo School of Law in Manhattan.

The benefits proposed in the bill, co-sponsored by Senator Sam Brownback, Republican of Kansas, would stay in effect for the number of years an exonerated prisoner served time or for 15 years, whichever is less. The federal tax exemption over compensation awards would apply to people like Mr. Pope, who have already been released and have been told they owe taxes to the federal government.

Tuesday, January 8, 2008

Why a man serving life for murder could go free

January 6, 2008

By Lee Rood, Des Moines Register

David Flores was told not to testify. So he sat in silence 10 years ago while prosecutors convinced a jury that he had murdered an innocent woman caught in a gang-related gunbattle during rush-hour traffic.

Stunned at his sentence of life without parole, the 20-year-old Flores lashed out at the trial judge and prosecutors when he was sentenced: "While you're having your Thanksgiving dinner ... or opening presents with your family on Christmas, you may not even pass a thought about me. But I will surely be thinking about what you have done to me."

Now, Flores and his new attorney claim to have new evidence that he was not responsible for the shooting death of Phyllis Davis, a beloved bank executive who was arguably the most high-profile victim of Des Moines' gang wars at the time. The two have persuaded a Polk County district judge to set a June hearing to consider new facts in the case that neither his defense nor jurors knew about.

A national expert says the most powerful revelation uncovered by Flores' defense could set him free: A gang member told the FBI and Los Angeles police before Flores' trial that another man, Raphael Robinson, shot Davis.

"The test in these kinds of cases is: Would this new evidence have made a difference" in his trial, said Rob Warden, director of Northwestern University's Center on Wrongful Convictions. "This certainly appears to be exculpatory evidence that the defense didn't know about. It would be hard for anybody to argue that this is a harmless error that wouldn't have changed the outcome of his case. It's powerful grounds for relief."

In the June hearing, Flores' defense will not have to prove who killed the 42-year-old Davis in April 1996. Rather, Judge Don Nickerson must be convinced that the evidence is accurate and likely would have made a difference in the outcome of his trial.

If Nickerson finds the new facts would have made a difference in the trial, he could vacate Flores' conviction and the prosecution would have to retry what was already a difficult-to-prosecute case.

"All I want is for people to keep an open mind," Flores, now 30, said recently during a tearful interview from his maximum-security cell at the state penitentiary in Fort Madison. "I have been saying all along that a great injustice happened, and if anybody out there can help me, please do so, because I want the truth to come out."

The judge's consent to hear the new evidence already has reopened wounds for the victim's family. Davis' mother, Delores, suffered a heart attack the last time she relived the day she lost her daughter. Now, she says, she is shocked to learn she must relive the nightmare again.

"It just makes me sick to my stomach with all I've gone through," the 79-year-old widow said.

Flores: A suspect from the start

The errant .22-caliber bullet hit Phyllis Davis about 5:25 p.m. April 8, 1996, during a rolling gunbattle between an Oldsmobile Cutlass and a sport utility vehicle. Davis lost consciousness within seconds as the bullet pierced her lungs and aorta, and she died as her car rolled into the intersection of University Avenue and Ninth Street at rush hour.

The Federal Home Loan Bank executive was shot during one of Iowa's worst sprees of gang violence. Her death came after three killings and numerous gunbattles police blamed on gangs. The Oakridge Neighborhood, the city's most notorious low-income housing project at the time, was besieged by violent crime.

As suspects go, David Flores was a solid one: A longtime delinquent, he spent most of his youth at Oakridge. He had been friends with Jody Stokes, a reputed Crips leader whose shooting death the previous fall triggered an outbreak of violence. Police investigating Davis' death tied Flores to gangs and found letters that suggested he wanted revenge for Stokes' murder.

Initially, Flores was one of four suspects charged with first-degree murder in Davis' death. Two others, who were in the Cutlass, pleaded guilty of lesser crimes before Flores' trial. The trial of the fourth, who was also in the Cutlass, came later.

Flores was known to drive his girlfriend's vehicle, a black 1995 Chevrolet Blazer with a gold grille, similar to the one described by some of the witnesses as being involved in the gunfight.

Even after he was charged with murder, Flores was so sure he would be found not guilty that he turned down a plea agreement offered to him by prosecutors before his conviction, family members said.

No lack of witnesses -- or confusion

No one could prove Flores was at the scene of the shooting.

Instead, prosecutors had to rely on one key piece of circumstantial evidence and overcome witnesses' often twisted accounts to prove he was guilty.

Flores was with Tina McGarey, the girlfriend who would become his wife, on the day of the shooting. According to court testimony, the two stopped downtown about 4:30 p.m. to pick up keys to her mother's south-side house, and then Flores dropped Tina there with their year-old child.

He left the south-side house about 4:45 p.m., and then, he said, returned to their new home on 47th Street.

Because Flores said he was alone, no witnesses at the trial could substantiate his alibi.

About 5:50 p.m., according to testimony, Flores called Tina's mother's house and asked if he could talk to Tina. He said he had locked the keys in her Blazer, and he asked Tina to come get him in her mother's car at the house on 47th. She did.

This meant Flores would have had slightly more than an hour to have been involved in the gunfight on his way home, flee the scene and make the call.

No murder weapon was found. But a ballistics expert testified that the bullet that killed Davis shared key characteristics with a spent bullet found at Flores' house.

John Wellman, Flores' defense attorney, who has since died, contended that the bullet was actually one the family kept after a drive-by shooting in the mid-1990s.

For whatever reason, Wellman didn't call a ballistics expert during Flores' trial.

It was never proven who was inside the sport utility vehicle -- described as dark in color, and most often as black -- from which prosecutors believed the deadly bullet was most likely fired.

The driver of the Oldsmobile Cutlass, the other car in the gunfight, alleged early in the investigation that he saw Flores, a light-skinned Hispanic man, driving a Blazer.

Later, in Flores' trial, the Cutlass driver recanted. His girlfriend -- who got out of the Cutlass just before the gunfight -- also changed her story. At first, she said, she saw three white men in the Blazer. Later, she told the jury that Flores was not in the SUV but that there was a black passenger, court records show.

During the two-week trial, at least three other witnesses -- including a young man who was grazed by gunfire in the melee and a bus driver who was supposed to be a star witness for the prosecution -- told the jury that the driver of the Blazer was black.

The day Flores was convicted in 1997, Phyllis Davis' father, Torcie, breathed a sigh of relief that her killer had been found.

"The memories won't go away, but some of this other stuff will," he said at the time. "We needed closure."

Torcie Davis went to his death two years ago believing Flores would never be set free. His wife, Delores, never once doubted that prosecutors had found the right man.

"I can't tell you why," she said. "There was no doubt in my mind he was the one."

Samuel McCrorey, the jury foreman in Flores' case, felt just the opposite. On the day of the sentencing, he went public with his belief that Flores was actually innocent.

McCrorey said most jurors believed that Flores may have been riding in the sport utility vehicle involved in the crime, but that they did not know whether he fired a gun as the state contended. He also said the jury placed great importance on Tina's sister's testimony that Tina told her Flores was in the Blazer.

"To us, that spoke volumes," he said at the time. "Why would Tina lie to her sister?"

But McCrorey said he had doubts Flores was even at the scene.

McCrorey, who was harshly chastised by the judge for going public with his regrets, declined to comment for this article.

Suspicious silence, years of regret

Lawyers would later say that the erratic behavior of Flores' girlfriend and now wife, Tina Flores, and her refusal to answer some questions during the trial cinched Flores' conviction and botched his argument for an appeal.

Tina, who was 21 at the time, had tried to convince her mother and sister right after the shooting that she was in the SUV and accidently shot Davis. They knew she was lying; Davis was likely dead by the time Tina left her mother's house to pick up Flores.

Later, Tina, her 17-month-old son with Flores, and another key witness disappeared from Des Moines. Once found, Tina refused to cooperate with prosecutors and would not testify about most facts having to do with Flores' actions.

"But you can help David," Flores' lawyer told her.

"The welfare of my son is more important," Tina said, hinting, like other witnesses, that she feared retribution if she talked.

District Judge Richard Blane II jailed Tina for 8 months for refusing to cooperate with prosecutors.

Shortly after the trial, Tina and Flores were married in what she now calls a "pathetic" ceremony at the Polk County Jail, separated by glass. At times after that, she contemplated suicide because she blamed herself for Flores' situation.

"Try living with that," Tina said tearfully last month in an interview. "Try living with the fact that you had a hand in your husband's conviction. I just don't even know what I was thinking."

Now 33, she said she was "playing a game" trying to protect David, who was named as a suspect in the crime almost immediately.

She said she acted the way she did because she was young and full of fear. Child-welfare lawyers threatened to take her child -- and eventually did take away her custody -- because they had linked her to Flores.

Most of all, she said, she feared retribution from gangs and police.

"Sitting here now, I don't know who that girl was," said Tina, who sells insurance and raises the couple's now-12-year-old son. "I should have never speculated about what really happened that day, or talked about things I didn't know about."

Flores' lawyers learn of FBI interview

David Flores' family members never ceased believing in his innocence or fighting for a new trial. For years, David's father, Angel, and his brother, Anthony, combed through the testimony, following leads, trying to help defense lawyers look for new evidence and errors made during his trial that might help set him free.

"You know, if David really would have been guilty, we would have done our best just to make him comfortable," Angel Flores said. "But he wasn't, and so ever since, we've been fighting for the truth to come out."

An appeals court denied Flores' appeal in 1998, and for years, little more happened. Then, in July 2003, David Flores received a letter that revived his hope.

Paul Rosenberg, the attorney who represented Flores in his appeal, wrote to him about something he learned working on another case.

Rosenberg said in the letter that he learned the FBI interviewed another man, Calvin Tyrone Gaines, who said he helped Davis' killer after the shooting.

"This FBI interview is in the custody of the Polk County Attorney and has been for some time," Rosenberg wrote.

Flores would learn that in May 1996, a month after Davis' death, Gaines was interviewed separately by the Los Angeles Police Department and an FBI agent in the Polk County Jail.

Gaines was asked to describe what he knew about the gang violence in Des Moines.

Facing charges in connection with several bank robberies, Gaines told authorities his story of who shot Davis.

Mary Kennedy, Flores' current lawyer, later traveled to a California prison to hear Gaines' story. He told her during a sworn deposition that he met Raphael Robinson at the home of a mutual friend after Davis was killed.

Gaines gave detailed testimony about Robinson, and he described guns that Robinson owned.

"I remember him telling me, 'I got to get out of here, man,' " he told Kennedy. "I just told him to go to L.A. I told him I'll make some calls, and then I'll get back at him."

"And why did he say -- or did he say -- that he had to get out of here?" Kennedy asked during the deposition.

"Because they had a shootout with some Bloods and some lady ended up in the middle of it, got shot," he said.

But Gaines said he was never contacted after the 1996 FBI and LAPD interviews by Wellman or anyone from the Polk County attorney's office.

When Flores gets his hearing in June, Kennedy will argue that revelation -- that there was another strong suspect -- would have changed the outcome of his trial.

She also intends to argue that Flores' constitutional rights were violated because he received an inadequate defense.

Among other things, she said, the defense should have produced its own ballistics expert to challenge the prosecution's argument that the ammunition could be linked to Flores.

Motor vehicle records obtained by Kennedy after she met Gaines show Robinson's brother drove a dark blue 1985 Ford Bronco similar to the sport utility vehicle driven by Flores.

Whatever Robinson knew about Davis' murder never will be known. He was shot to death in the Oakridge Neighborhood two months after the FBI's interview with Gaines.

Authorities said his was a gang-related revenge killing. His killer was never found.

Prosecutor, Flores look to June hearing

Polk County Attorney John Sarcone insists prosecutors in his office have never convicted an innocent man.

While he believes Flores should be able to present the newly discovered findings in court, Sarcone said the jury made the right decision when it convicted Flores.

"If there's some credible evidence the family wants to present, we'll certainly consider it. I don't want someone in prison who's innocent," he said. "But we'll have to see what's presented. It's pretty easy to blame a dead guy."

But Sarcone said when interviewed that he hadn't heard all of the new evidence allegations. He also conceded that the prosecution's case heading into the trial was "skinny."

Flores said he knows his new case will stir a lot of old emotions, but he said he's hoping the judge seeks the truth.

"I really am hopeful. I want to go home," he said from prison. "I want to be a good husband and a great father to my son. ... But I'm also scared. Scared of the people downtown, scared of what happened in the past. I don't trust people a lot anymore. It's hard even to say I have faith."

He said he regrets not testifying in his original trial.

"(Wellman) told me that if I did, the prosecutors would bring up my juvenile record," Flores said. "I've regretted that more than anything, because in retrospect, I can see he put too much confidence in the case he put forth."

Flores said he would have told the jury that he was no innocent, but that he was not a murderer. He had just become a father, started a business and bought a house at the time of the shooting. His juvenile record included burglary and assault charges, but no crimes involving guns.

Flores said he doesn't know who killed Davis or who was in the sport utility vehicle the day she died.

He said he was at home that day until Tina came to get him.

Both he and Tina were unwilling to answer more specific questions about their actions that day until the hearing, saying they do not want to jeopardize one of their last chances to set him free.

"I believe a lot of it will come out then," Flores said.