Thursday, September 25, 2008

Dallas DA seeks help in old DNA-linked rape cases

September 25, 2008

Houston Chronicle-Houston, TX

Dallas County District Attorney Craig Watkins wants sex-offender status given to rape suspects identified through DNA evidence in cases that are too old to prosecute.

Watkins seeks such a remedy in part because of the looming release from prison of a man on charges unrelated to a sexual assault authorities believe he committed 25 years ago.

Dallas police say Dewayne Douglas Willis, 47, is one of six men recently linked to rape cases from the 1980s through DNA profiles or fingerprints, The Dallas Morning News reported Wednesday. Authorities say it is impossible to prosecute them because of an old statute of limitations.

A statute of limitations on rape cases was in effect in 1983 when a 12-year-old girl was attacked at knife point in her Dallas home, the case Dallas police believe involves Willis, who declined interview requests from the newspaper. DNA evidence revived the case earlier this decade.

The statute, designed to protect defendants from the erosion over time of favorable evidence, was scrapped in 1996 after DNA testing began. Still, the Constitution requires that defendants be prosecuted based on the laws at the time of the alleged offense.

One legal expert says listing the suspects as sex offenders is a dangerous idea.

"Because if they could, it's left to the discretion of the prosecutors who they decide to label as a sex offender, even though the person hasn't been convicted of it," says Fred Moss, a law professor at Southern Methodist University and a former federal prosecutor. "That strikes me as being the worst possible solution. None of us are safe then."

Dallas faces the issue because, unlike most counties nationwide, it has preserved DNA evidence for decades. And though a nation-leading 20 prisoners have been exonerated as a result, that evidence is incriminating people as well.

Watkins also floated the idea of having the cases noted in the criminal histories of the suspects. He said he plans to present lawmakers with a package of ideas to address the issue.

"This is all new," Watkins said. "We're going into uncharted territory."

Wednesday, September 24, 2008

Police admit DNA evidence not fail safe

September 24, 2008

ABC News-Australia

The Police Chief Commissioner Christine Nixon says contamination of DNA evidence is always possible.

Victoria Police admits it can't guarantee DNA evidence used against alleged criminals will be free from contamination.

A review of the police DNA database was sparked after concerns over the validity of the DNA evidence against a man accused over a double murder in 1984.

A 43-year-old man was charged with killing Ferntree Gully woman Margaret Tapp and her nine-year-old daughter.

The police were forced to withdraw the charges against him.

A Forensic Services Department DNA audit of 6,000 cases has found only one other DNA sample, for a case involving car theft and the cultivation of drugs, may have been contaminated.

No charges were ever laid over the crime.

Speaking on the Fairfax News Network, Police Chief Commissioner Christine Nixon, said although DNA was an incredibly powerful tool there is always potential for contamination.

But she says procedures are in place to minimize the risk.

"They're accredited by national authorities, we have an external oversight board that has also looked at the material, and so we've got a range of people that are looking at this, " she said.

Ms Nixon said the Forensic Services Department has worked tirelessly to ensure the impact on all other forensic work was kept to a minimum.

"I would like to stress that the Forensic Services Department at Victoria Police is of world class standard," she said.

"They follow world best practice and employ professional, expert scientists who work with integrity, independence and professionalism."

Tuesday, September 23, 2008

DNA Frees Another Dallas Man After 25 Years

September 23, 2008

Charles Montaldo-About.Com

A Dallas man behind bars for 25 years for a rape that he did not commit has been set free after DNA evidence in the 1981 case excluded him from being the perpetrator. Johnnie Earl Lindsey was released from prison last week, becoming the 19th person from Dallas County to be freed by the re-examination of DNA evidence.

Lindsey was reunited with his son who was not quite 2 years old when he was convicted in 1983.

Lindsey had written the court six times over the years trying to get someone to test the DNA evidence from the rape kit in the case. Finally, a judge forwarded one of his letters to The Innocence Project.

"Once I got someone to listen to me, there was no doubt in my mind that I would be exonerated, because I am innocent," Lindsey said. "I just needed someone to listen to my story."

Plans to Help Others Wrongfully Convicted

Lindsey said he now plans to help others wrongfully convicted.

"I have almost every clipping of exonerations from the paper, Jet magazine, Time," he said. "I never dreamed there were that many going through circumstances like mine. I'm going to try my best to help those who are left behind to see that they see justice, too."

During his trial, Lindsey said he was at work pressing pants at a commercial laundry when the rape occurred. His boss, Mike Pollard, testified that Lindsey was at work that day and he presented a timecard that showed that Lindsey was at work during that time.

But the jury voted to convict him anyway.

Monday, September 22, 2008

DNA database of offenders could help solve crimes, says former US attorney

September 22, 2008

Claire O' Connell-Irish Times-Dublin, Ireland

A DNA database of known offenders could help solve crime in Ireland, according to a Californian official who prosecuted OJ Simpson. Rockne Harmon told a genetics conference in Dublin that he was "surprised" to learn recently that Ireland has no such database.

"I can't imagine being an investigator trying to solve a crime without an offender [DNA] database - I wouldn't recommend it," said the retired deputy district attorney at a public event in Ballsbridge on Saturday to celebrate 50 years of genetics at Trinity College Dublin.

He described a series of grim serial killer cases that had been solved - sometimes decades after the event - by comparing DNA from crime scenes against genetic sequences of known offenders. "If there is no known suspect, it may be someone in the database," explained Mr Harmon.

The Californian database had genetic details of over one million offenders, and from the start of next year anyone arrested on suspicion of a felony would have a sample taken for DNA analysis, he said.

When questioned whether this compromised the assumption that a person was innocent until proven guilty, Mr Harmon said that if an arrested individual was not convicted they could have their genetic information removed from the database.

"Will people feel that they can't trust the government if they have their profiles? Sure. But I think the question needs to be will the greater community benefit from having a tool like this that can and has solved [cases]," he said.

Genetic information was also the key to tracking the origin of HIV, which moved from chimpanzees to humans in Cameroon in around 1930, probably while a hunter was butchering an infected chimp for bushmeat, explained bioinformatics expert Prof Paul Sharp from the University of Edinburgh. The virus then took hold in the large city of LĂ©opoldville (now Kinshasa) from where it spread out to other parts of Africa and around the world, he said.

Attendees also heard about advances with stem cells, which have the capacity to develop into other cell types. Scientists want to harness stem cell activity in patients with neurodegenerative conditions, explained Prof Steve Minger from Kings College London. "If we can understand the process, then maybe we could be able to give people drugs to repopulate brain cells in conditions where people lose them, like Parkinson's or Alzheimer's disease," he said. Prof Minger described how treated stem cells grown in the lab could provide useful models of human disease for scientists to study, rather than looking at animals.

The conference also heard from the Government's chief scientific adviser, Prof Paddy Cunningham, about the challenges of feeding a growing global population, and from Prof Steven Jones, at the University of London, on how fertility trends in Europe are reducing genetic variation, which he described as the "raw material" of evolution.

Thursday, September 18, 2008

Va. to notify felons that old DNA evidence exists

September 18, 2008

Dena Potter WVEC.Com Norfolk, VA

Virginia will begin mailing out letters to notify felons that old biological evidence exists in their cases on Wednesday, a state Department of Forensic Science official said.

The first batch of about 400 letters will be sent by regular and certified mail to those who committed certain felonies decades ago in which DNA evidence was preserved to notify them that it exists and may be suitable for retesting, department spokesman Tom Gasparoli said.

"DNA testing of the physical material may provide evidence that is relevant to your guilt or innocence of the crime," the letter reads.

Virginia's one-of-a-kind DNA testing project began in 2005 when then-Gov. Mark Warner ordered examination of all case files from 1973 through 1988 after five men were cleared of rape charges from biological evidence preserved in their files long before DNA testing got under way in the early 1990s.

Since then, the Department of Forensic Science has scoured more than 500,000 case files and identified nearly 1,000 defendants with old DNA evidence in their cases.

In March, the General Assembly ordered the state Forensic Science Board to notify each person that the evidence was found.

After some back and forth as to whether private lawyers should be brought in to help locate those who should get the letters, the board decided instead to work with Virginia State Police to find the best addresses for those who may have served their time decades ago.

The board continues to try to locate addresses for the more than 500 other felons.

The department agreed to pay for the mailings.

"The mailing is a very important step in this process, and DFS is glad to be able to assist the Forensic Science Board in sending out the letters," Gasparoli said.

The letters direct those who are interested in pursuing DNA testing to the Mid-Atlantic Innocence Project, which offers free legal help to those who have been wrongfully convicted.

"We really don't know whether it's going to be the flood gates opening or the equivalent of a woman sitting at home waiting for a boy to call," said the group's executive director, Shawn Armbrust.

Like several board members, she believed bringing volunteer attorneys in to track down the felons would have produced better results than relying on state police files. The board rejected that plan because they did not want to give the felons' private information to those not classified to receive it.

Board members acknowledged the letters would not reach everyone who needed to be notified, but they said they would revisit the plan until they felt that each person who possibly could be exonerated by the evidence knew that it existed.

"Even though this first step isn't what I hoped it would be, I'm confident that the board will, in the end, make sure they track down as many people as they feasibly can," Armbrust said. "Whether that's 100 percent or 98 percent, I'm confident they're going to make a good faith effort."

Also on Tuesday, the Department of Justice announced that it had approved a $4.5 million grant to help the forensic science department finish the review.

"The grant also comes at a time when budgets across the Commonwealth are very tight, so this money will certainly help defray some significant costs on this very valuable effort," Gasparoli said. "It is certainly welcome news, and the department's diligent work on the DNA program will continue."

The department has sent nearly 800 cases to an outside lab for testing. The results are reviewed by the department's scientists and sent to the originating law enforcement agency and the local commonwealth's attorney.

So far, no additional convicts have been exonerated, Gasparoli said.

Wednesday, September 17, 2008

I Spent 16 Years in Jail for a Crime I Didn't Commit. Here's What Should Be Done.

September 17, 2008

Jeffrey Deskovic-Alternet.ORG-San Francisco, CA

I was wrongfully convicted in 1990 of a murder and rape in Peekskill, N.Y. DNA taken from semen found in the victim did not match my DNA. But misconduct at every stage of the criminal justice system led me to spend 16 years of my life in prison. That misconduct included a coerced, false confession when I was 16, extracted after many days of interrogation overseen by current Peekskill Police Chief Eugene Tumolo and others, as well as the falsification of other evidence.

Most people think that only a guilty person would confess to a crime. But I can tell you that scare tactics, threats of violence, food deprivation, being lied to regarding lie detector results and being told that you can go home if you cooperate have produced many false confessions. Of the 218 exonerations based on DNA testing, false confessions led to 25 percent of the original convictions.

"Maybe you are innocent," Judge Nicholas Colabella said just before giving me a 15-years-to-life sentence. Former District Attorney Jeanine Pirro successfully opposed all of my appeals and even blocked several attempts to get more DNA testing. My fortune turned in 2006, when The Innocence Project took my case. With the cooperation of District Attorney Janet DiFiore, further DNA testing proved who the real perpetrator was. On Nov. 2, 2006, all charges were dismissed and I was publicly acknowledged as innocent. I received some apologies, but none were from those who played a role in wrongfully convicting me.

Readjusting to being free, dealing with the effects of my ordeal, learning new technology, trying to rebuild relationships with my family and experiencing financial pressure have all been hard. I was released with nothing. The litigation I am pursuing will take two to seven years, with the state attempting to avoid giving me anything.

But I am not angry. Instead, I channel my energy into raising awareness about the problem of wrongful convictions, and the danger that the death penalty poses in executing innocent people. I give presentations about wrongful convictions at colleges, high schools, churches and organizations throughout New York and other states. This is my main means of income, but I never know when the next chance to give a presentation will be. I also publish an article each week in the Westchester Guardian. I give television, radio and newspaper interviews, willingly sacrificing privacy in exchange for raising awareness about the problem of wrongful convictions and the need to enact legislative reforms to prevent them. I have testified at several legislative hearings, and I lobby lawmakers to enact reforms to protect the innocent and make the system more reliable. As an additional tool for encouraging lawmakers to enact changes, I collect signatures for an online petition on my Web site,

Nationwide, to date, there have been 218 wrongful convictions proven through DNA, and many additional exonerations achieved by other means, including the discovery of new evidence, materials purposely withheld from the defense, and the recantation of eyewitness identifications. During the time I spent wrongfully incarcerated -- 16 years -- I immersed myself in wrongful conviction literature. Now that I'm free, I continue to study the subject, so I'm aware of the causes of wrongful convictions, well beyond what happened in my case. Here are the reforms that are needed in order to produce a more accurate justice system. If you agree with these changes, please sign the petition on my Web site and encourage others to do so as well. Also, call your local representatives and ask them to institute them.

False Confessions

False confessions have accounted for 25 percent of the 218 DNA exonerations.

All interrogations should be videotaped, from beginning to end. This would prevent police from concealing abusive tactics they may have used from their testimony. It would allow a complete and accurate record of who said what, when, and in what context. It would also protect honest police officers from false allegations of coercion. The use of polygraph tests, lying to suspects by claiming to have evidence of their guilt, and prolonged interrogations over many hours should be outlawed. All of these tactics have been linked to false confessions. Studies have revealed that such tactics convey to suspects that, no matter what, they will be arrested for something they did not do; it's just a matter of whether they will make it worse on themselves by maintaining their innocence. It is especially critical that interrogations of the mentally ill or the mentally retarded only take place with a lawyer present, because mentally ill and mentally retarded people often try to compensate for their mental deficiencies by being compliant in the face of authority.

Confession testimony is devastating to defendants, resulting in a conviction 80 percent of the time. Before evidence obtained through a confession is allowed at trial, a pretrial hearing on the confession itself should be conducted, akin to a Wade hearing in which the accuracy of an eyewitness identification is reviewed. Existing pretrial procedures, which are only aimed at determining whether a confession is given willingly by a suspect, are not enough.

Eyewitness Identification

Witness misidentification has been the cause of wrongful convictions in 75 percent of the 218 DNA exonerations.

Sequential lineups and sequential photo arrays should be used, in which a victim is shown one suspect at a time, rather than viewing everybody at once. Suspects included in a photo array or lineup should resemble each other so that no one sticks out.

The victim should be told that the perpetrator may not be present, to prevent victims from having undue confidence that the perpetrator is there, thus leading to a misidentification. Victims should be told that the investigation will continue if they don't make an identification so that they don't feel pressured into making an ID.

The officers conducting the lineup should themselves remain unaware of the identity of the suspect, to prevent them from giving inadvertent cues or clues.

Confidence statements, in which a victim states on a scale of 1 to 10 how confident they are about their identification, should be taken, to give courts and juries further insight.

The lineup or photo array should be recorded, to ensure its integrity.

Incentivized Witnessing

Incentivized witnessing -- in which a witness is rewarded for testifying, be it with a lesser prison sentence, dropped charges or financial compensation -- has been the cause of wrongful convictions in 15 percent of the 218 DNA exonerations. The practice of incentivized witnessing should be ended; those who have evidence should come forward on a moral basis, not because they stand to benefit. When desperate prisoners have been caught red-handed committing a crime and they have no truthful information to trade on, they falsely implicate others.

Reform Pertaining to Evidence

Currently, there is no standardized system for ensuring that evidence is preserved and available for inspection and testing. Often the first obstacle for a wrongfully convicted person is determining whether the evidence can be located and whether it has been destroyed. If it has, an innocent person can remain incarcerated with no way to prove his or her innocence.

It should be a crime when police and prosecutors purposely withhold evidence. History shows that with no personal penalty, morality alone is not enough to restrain some rogue police officers and prosecutors.

Public Defenders

Without quality attorneys, innocent defendants will continue to be wrongfully convicted, and cases will not have just and fair outcomes.

In every state, there should be one standardized system of defense for the poor, as advocated in "The State of Indigent Defense in New York," a report prepared by the Spangenberg Group for New York Court of Appeals Chief Justice Judith Kaye. A centralized system would impose more quality control, allowing for more internal oversight and accountability.

Public defenders who have shown a substandard performance defending indigent defendants should no longer be employed by the state to do so. Allowing unqualified public defenders to continue sets the stage for future inadequate performances and possible wrongful convictions.

The defense and the prosecution should have an equal and adequate budget to hire experts and other necessary personnel to assist in the preparation of cases. As it is, defense attorneys have an extremely limited budget, far less than prosecutors' huge budgets. On such an unequal playing field, no confidence can be placed on the outcome of court proceedings or verdicts. Furthermore, public defenders should have the same size staff as the district attorneys to ensure that they are not overwhelmed by sheer manpower.

There should be a limit to the number of cases a public defender is allowed to take on at one time. In the Bronx, for example, it is not unusual for a public defender to have 140 cases at the same time. Overburdening a public defender prevents him or her from giving each case the time, preparation and investigation it deserves.

Public defenders should be given pay equal to that of prosecutors.

Indigent defendants should be provided with court-appointed attorneys to handle post-conviction motions so that they can have competent legal representation, rather than trying to represent themselves against trained and seasoned prosecutors. A post-conviction motion differs from an appeal in that the defendant may be seeking to introduce new evidence or new issues of law that could not have been raised on appeal.


Access to DNA testing should always be provided, even in cases where defendants have pled guilty -- there have been 11 instances where an innocent defendant has pled guilty, often as a result of fear of a higher sentence, only to be proven innocent by DNA.

Judges should be given the authority to order crime scene DNA comparisons to DNA databases; currently the law does not explicitly give them that authority, and whether the testing goes forward or not often is up to the discretion of the prosecution. Current law allows judges the authority to order DNA in those cases in which DNA could affect the outcome. It should be that, in any case in which there is testable material, a test should be done.

Prosecutors should not be allowed to explain away a negative DNA test result at a trial by claiming the victim had a consensual sexual encounter, without first proving that such an encounter took place. When a prosecutor argues that a rape or other crime was committed by one person, and then a post-conviction DNA test shows the defendant is innocent, prosecutors should not be allowed to then change their theory on appeal and claim that a crime was committed by two people. Conclusions should be based on what the evidence shows, not by making evidence fit a conclusion.

Post-Conviction Review

In many wrongful conviction cases, it is usually discovered that the cleared person's appeals ran out years before. More review is needed to catch mistakes and correct wrongful incarcerations. Courts of appeals should review all cases, as a matter of a defendant's right, as an additional level of review, with the goal of catching more wrongful convictions.

There should be a review apparatus, besides appeals or pardons, for reviewing cases in which a defendant has a strong innocence claim. Appellate review is not enough to protect the innocent, and a governor's pardon occurs within a highly charged political environment. A review should be independent of both the courts and the governor's office, and be staffed by wrongful conviction experts.

An Innocence Commission should be created to study what went wrong in wrongful convictions, so that lessons can be learned and changes adopted to try to prevent future wrongful convictions.


A guilty person on parole currently receives more help than an exoneree, who receives nothing. All wrongfully convicted individuals should be compensated upon discovery that he or she was innocent of the crime.

An immediate sum of $15,000 dollars for each year spent wrongfully incarcerated should immediately be paid to those who have been cleared of a crime. This should be aside from any money awarded as a result of a lawsuit, to meet immediate needs such as housing, cost of living, mental health services, health insurance and education.

Compensation lawsuits should receive fast-track processing in the courts.

Bad case law stating that an exonerated person who has contributed to his or her own wrongful conviction should not be eligible to receive any compensation should be changed. The idea that anybody would intentionally get themselves wrongfully convicted and sentenced to prison only to then clear themselves in order to be in position to sue is ridiculous. To deny compensation to anybody who has been wrongfully convicted adds insult to injury.


The Parole Board should not be allowed to deny parole to those who profess their innocence based on the idea that they are not taking responsibility for their crimes or expressing sufficient remorse. These standards do not take into account the possibility -- and reality -- of wrongful convictions. The wrongfully convicted should not be made to stay in prison based upon their protestation of innocence. It is a fact that some wrongfully convicted prisoners have been denied parole after finishing their minimum sentences for these reasons.

Similarly, the Parole Board should not be allowed to deny parole to prisoners based upon their being removed from a sex offender class due to a refusal to admit guilt, because such a practice places the wrongfully convicted in the catch-22 of either falsely admitting guilt to try to regain freedom, or to lose a chance at freedom as the price for maintaining innocence.

Tuesday, September 16, 2008

After 26 years in prison, DNA clears Dallas man of rape

Sept. 15, 2008

Jeff Carlton-Houston Chronicle-Houston, TX

A man who has spent nearly 26 years in prison for rape is likely to be freed after a DNA test showed he is innocent, his lawyer said Monday.

Dallas County Public Defender Michelle Moore said a hearing has been scheduled for Friday for Johnnie Earl Lindsey, who was convicted of the 1981 aggravated rape of a Dallas woman. If a judge recommends overturning the conviction, Lindsey would walk out a free man.

"He is real excited but very scared," Moore said. "He said: 'Michelle, I don't have anything. I don't even have clothes. I don't know what I will do.'"

Lindsey, now 56, maintained his innocence and produced time cards at his trial showing he was at work at a dry cleaners when the assault occurred, Moore said.

Lindsey, who had a prior conviction for aggravated robbery, became a suspect in the rape of a woman near White Rock Lake after pleading guilty to attempted rape in a separate case, a legal maneuver Moore said "was a business decision" to avoid a lengthy sentence.

Police then included his picture in a photo lineup mailed to the White Rock Lake victim about a year after she was assaulted. The woman was raped by a shirtless man, and Lindsey was one of two shirtless men among the six photos.

He was convicted and sentenced to life in prison.

Moore said the conviction was based on eyewitness misidentification and questioned why police would take the unusual step of mailing a photo lineup to a victim.

"Oh yeah, we don't do that," she said.

The office of Dallas County District Attorney Craig Watkins, who has earned national acclaim for examining wrongful convictions since taking office in January 2007, confirmed the Friday hearing but declined to comment on the case.

At the behest of Dallas police, the DA's office is conducting last-minute testing on a pubic hair found at the scene to make sure it did not come from Lindsey, Moore said. She said she does not expect it to implicate her client.

If exonerated, Lindsey would be the 20th Dallas County man proven innocence by DNA testing since 2001. Moore said Lindsey told her he sent six letters requesting DNA testing and never received an answer until Watkins took office.

Dallas radio station KRLD first reported that Lindsey may be freed.

Monday, September 15, 2008

Innocence project reviews Hattiesburg cases

September 15, 2008

The Natchez Democrat-Natchez, MS

Of the 80 cases the Mississippi Innocence Project is reviewing for potential forensic fraud, at least two are Forrest County and involve the testimonies of two controversial forensic experts.

The two capital murder cases ended in the convictions of Stephen Elliott Powers and Larry Matthew Puckett.

Both cases included testimony by the state’s former primary forensic pathologist Dr. Steven Hayne and Dr. Michael West, a Hattiesburg-based dentist, who was coroner of Forrest County at the time of the trials.

W. Tucker Carrington, director of the Mississippi Innocence Project, said his office was investigating these cases not because of new DNA evidence, as is the case in most of the investigations, but ‘‘because, first and foremost, they feature the testimony of Dr. Hayne and Dr. West.’’

Both have been under fire for the quality of their work as well as their credentials.

The Innocence Project began its examination of Hayne and West because both testified in two Noxubee County trials that ended in the false convictions of two men in separate child murders.

Hayne performed the autopsies in the cases and West testified that bite marks on the victims were made by the men.

The two men, Kennedy Brewer and Levon Brooks, were released from prison earlier this year after DNA testing and a confession from another man.

At least 60 to 70 of the cases the Innocence Project is now looking at involve the testimony of Hayne, who has handled most of the state’s autopsies in the past 14 years. Recently, he was taken off the state’s list of designated pathologists.

Powers was convicted in 2000 of capital murder and sentenced to death in the slaying of Hattiesburg resident Elizabeth Lafferty.

Lafferty, who was killed in 1998, was shot five times, including three times to the back of her head after Powers attempted to rape her, according to court documents.

West testified how he found Lafferty’s body at the crime scene and he later stated that he sent her body to Hayne for an autopsy. Also during the Power’s trial, West testified that he had worked in the coroner’s office for 15 years, 10 as deputy coroner and five as the county’s head coroner.

West also testified that he was chief medical examiner for Forrest County during his then five-year post as county coroner. West said, at the time of testimony, that he did not have a medical degree.

Court documents show that during jury selection, under questioning by then Assistant District Attorney Bob Helfrich, West stated that he was a doctor of dentistry and that he had been suspended from the American Board of Forensic Odontology in 1993.

The suspension, he testified, stemmed from a 1992 murder case where defense attorneys filed an ethics charge against West. According to West, the defense attorneys stated that he ‘‘overstated his position and did not follow the standards of terminology.’’

During the trial, Hayne testified that Lafferty died of ‘‘five entrance gunshot wounds’’ to the head. Hayne also testified that Lafferty suffered external injuries to other parts of her body, including the right eye and elbow.

Puckett was sentenced to death in the 1995 slaying of Rhonda Griffis of the Sunrise community. Puckett was convicted of beating Griffis to death after he sexually assaulted her, according to court documents.

Both Hayne and West testified that Puckett had ‘‘wound patterns’’ on his back consistent with that of a ‘‘club’’ — the instrument prosecutors said Puckett used to beat Griffis to death. The victim’s husband had arrived home when Puckett was still at the scene, disarmed him and hit him with the club.

In an appeal to the Mississippi Supreme Court, Puckett claimed that West should not have been allowed to testify as an ‘‘expert witness in the field of wound patterns.’’ Puckett based his argument on the American Academy of Forensic Science Ethics Committee’s suspension of West in 1993.

Puckett also claimed that his attorney should have hired ‘‘an independent pathologist’’ to examine the evidence and general findings of Hayne.

Asked the relevance of West’s and Hayne’s testimonies in the two cases, Carrington said: ‘‘Our position is that, based on what we learned about their roles in the Noxubee County cases, any cases in which either doctor testified is automatically relevant for additional inquiry.’’

‘‘We will not only come to understand the effect of their testimony on individual cases, but also understand the breadth and scope of the damage that they have caused to the state’s criminal justice system,’’ he said.

Powers’ appeal was denied by the Mississippi Supreme Court in 2003.

In 2005, the Supreme Court declined to hear Puckett’s post-conviction appeal because no new evidence was presented to lead to a new trial. The U.S. Supreme Court also refused to hear Puckett’s appeal.

Carrington said the cases will be examined ‘‘to make an accurate assessment’’ of testimonies provided by Hayne and West.

‘‘This does not mean that as a matter of fact or law that their testimony in these or any case is automatically erroneous or led to an unjust conviction,’’ he said. ‘‘In order to make an accurate assessment on a case by case basis, each case needs to be examined individually.’’

Two local prosecutors say they believe Hayne can provide expert testimony.

Forrest-Perry County District Attorney Jon Mark Weathers said he still had about ‘‘several dozen’’ cases where Hayne performed forensic pathology work.

‘‘If the cases reach trial, he’ll be the one to testify,’’ Weathers said.

He said the remaining cases had already been assigned to Hayne prior to his removal from the state’s designated pathologist list.

‘‘I’ve never had any problem with Dr. Hayne; I’ve always found him to be qualified to render a competent opinion on the cause of death,’’ Weathers said.

He said he and his staff will adhere to state officials’ decision to use temporary Jackson-based services of Forensic Medical Inc. of Nashville while the state searches for Hayne’s replacement.

District Attorney Hal Kittrell said his office has yet to use the state’s temporary forensic pathology services. Like Weathers, Kittrell said he has remaining cases that involve Hayne.

‘‘If there’s any murder cases on our docket, my guess is that Dr. Hayne will be involved,’’ said Kittrell, the prosecutor for Lamar, Marion, Pearl River, Jefferson Davis and Lawrence counties. ‘‘I do anticipate on him being back on the stand with us on cases that we have outstanding.’’

Thursday, September 11, 2008

Advances in DNA-Based Innocence Claims

September 11, 2008

Ken Strutin-New York Law Journal-New York, NY

Discoveries and advances in forensic science, most notably DNA profiling, have given new life to post-conviction claims of actual innocence. The first hurdle is getting access to or just locating the evidence to be examined, then applying the latest testing protocols. But these are only preliminary steps to a motion that challenges the accuracy and fairness of a conviction.

Recognizing the powerful reality of exonerations through DNA testing, many states have enacted laws to allow access in limited circumstances. Meanwhile, litigants in federal courts are helping to shape a broad-based constitutional right to access and testing, which may have far-reaching implications.

The thrust of recent exonerations has been fueled by DNA testing. And the right to access, analyze and present re-evaluated (or freshly examined) genetic evidence from closed cases has been in the foreground of actual innocence claims. Increasing numbers of people freed from prison, serving on average 12 years, have spurred 43 states and the federal government to enact laws permitting post-conviction DNA testing.[FOOTNOTE 1] But these laws are not uniform and obstacles remain, leaving many to seek a constitutionally based avenue of relief. In its recently issued report, "Improving Access to Post-Conviction DNA Testing: A Policy Review," The Justice Project outlined six remedial measures for legislatures to implement to assure speedy and fair resolution of DNA-based innocence claims: (1) long-term preservation of biological evidence; (2) access to DNA testing regardless of the procedural route of the conviction; (3) granting petitions when testing will yield new material evidence suggesting the "reasonable probability" of innocence or mitigation; (4) availability to defendants of reliable forensic testing facilities; (5) appointment of counsel and providing funds for indigent petitioners to pay for testing; and (6) standardized post-testing administration to expedite release of the innocent.

These recommendations highlight the issues underlying gateway challenges to wrongful convictions. A convicted person must first have a right to examine and test the evidence before filing a habeas corpus petition or some other application. And what state laws do not allow or narrowly construe, federal constitutional jurisprudence may provide.


In 1992, Frank McKithen was charged with stabbing his estranged wife as she fled through a bedroom window.[FOOTNOTE 2] The knife identified by the victim was introduced at trial, but no forensic DNA or fingerprint analysis had been done. The jury convicted McKithen of attempted murder and related charges, which were affirmed on appeal.

Seven years after his conviction, McKithen filed a motion to have the knife tested for DNA evidence. His theory was that his ex-wife's boyfriend had committed the stabbing.

Unfortunately, the Queens County Supreme Court disagreed and denied the motion.

New York Criminal Procedure Law §440.30 (1-a)(a) required a finding that if DNA test results had been admitted at trial, there was a "reasonable probability" the verdict would have been "more favorable" to the defendant.[FOOTNOTE 3] The trial court did not believe the results of a forensic DNA examination would have had a "reasonable probability" of changing the outcome. A year later, McKithen went to federal court and brought a 42 U.S.C. §1983 action. He claimed the Queens district attorney violated his federal constitutional right to post-conviction DNA testing and asked for an injunction.

The judge ruled the action was barred by the Rooker-Feldman doctrine because the federal issues had been decided in the state post-conviction proceeding.

On appeal, the U.S. Court of Appeals for the Second Circuit concluded that the district court did have jurisdiction to hear the case and §1983, rather than habeas corpus, was the proper vehicle. However, before the issue preclusion problem could be resolved, the district court had to decide whether there was a federal constitutional right to post-conviction DNA testing.

On remand, Eastern District Judge John Gleeson made an important, fundamental distinction between access and outcome.[FOOTNOTE 4] The right to DNA testing was a right of access; the results would have significance for later proceedings, such as habeas corpus or clemency. The focus of Criminal Procedure Law 440.30(1-a) was relevance of the evidence and likelihood or probability that it would exculpate the petitioner. The judge found that "New York Courts do not assume that the test result will be exculpatory and then determine whether the results would be sufficient to raise a reasonable probability of a different outcome. Rather, they assess whether there is a reasonable probability that the test result will be both exculpatory and sufficiently relevant to cause a different outcome."

In some cases, there was practically a presumption in favor of guilt based on the trial evidence compelling state courts to speculate that the outcome of DNA testing would not be favorable. This premise has been undermined by studies of DNA exonerees. And Gleeson concluded that rather than guess, "[a] far more accurate way to determine the result of DNA testing is to conduct the testing."

In Wade v. Brady, 460 F.Supp. 226, 241 (D. Mass. 2006), an earlier decision cited in the McKithen opinion, Judge Nancy Gertner observed that in a §1983 claim whether the defendant "appears guilty" without DNA evidence had little bearing on the right to access and the ultimate determination of its exculpatory value.

In McKithen, Judge Gleeson found that where a clemency system existed that can undo a conviction based on actual innocence, and where testing can be done without overburdening the state's resources, a convicted person had the right to access physical biological evidence for DNA testing. In addition, it was required that the government possessed the genetic material, the testing would not be duplicative, an exculpatory outcome was presumed, and those results would undermine confidence in the verdict.


DNA profiling came into its own as a forensic tool in the 1980s. Since then the methods of analysis have changed and improved from Restriction Fragment Length Polymorphism to Polymerase Chain Reaction to Short Tandem Repeat technology and specialized testing using Mitochondrial DNA and Y-Chromosome Analysis.[FOOTNOTE 5] The lesson is that with time, testing methods become more exacting and discriminating, shining a light in cases where tests were never done, results relied on out-dated methods or were done improperly.

In Osborne v. District Attorney's Office, 521 F.3d 1118 (9th Cir. 2008), the petitioner, William Osborne, brought a §1983 action asking for access to semen from a used condom and two hairs that were central to his 1994 conviction for kidnapping and sexual assault. At the time, the state lab used DQ Alpha relying on information found at a single locus, comparable in a sense to ABO blood typing. He planned to test the evidence with STR and mtDNA, methods not available at the time of his trial.

After a thorough analysis of post-conviction Brady rights, the court highlighted the important distinction between state and federal review. The state court proceedings focused on the condition of the evidence at the time of trial, and whether the record raised questions as to its integrity. In a §1983 action, the federal court took a holistic approach considering the viability of actual innocence based on new evidence, which might undermine confidence in the original verdict. As in McKithen, the state court's conclusion did not preclude federal review.

The 9th Circuit reasoned that the state's denial of access to biological evidence for DNA testing violated Osborne's due process rights. And the holding was based on the fact that the genetic evidence was used to support his conviction, new techniques had come into existence since the trial, and the results would be material for post-conviction challenges.

In another recent decision, Breest v. Attorney General for New Hampshire, 2008 U.S. Dist. LEXIS 4033 (D.N.H. 2008), a federal court in New Hampshire clearly articulated the issues and rights implicated when technology advances a DNA innocence claim.

More than 30 years ago, Robert Breest had been convicted in state court of murdering a woman. For the last eight years he had been asking for definitive DNA testing of material from under the victim's fingernails that went to the identity of the attacker.

Early tests came back inconclusive or could not exclude Breest. Critical of those test results, he challenged them as flawed and unreliable. Finally, he asked the state court to order new analyses that were more probative and discriminating. The court denied his application because it did not find that his reasons for challenging the accuracy of the earlier results satisfied the requirements under the state statute.

In his §1983 suit, Breest asked the court to enjoin the New Hampshire attorney general to release biological material from his case for the most advanced protocol available. The federal judge believed the state Legislature intended to allow access to genetic material "when evolving technology offers a potentially meaningful and exculpatory result."

Finding that "finality falls well below truth on the scale of relative values," combined with the negligible administrative burden on the state, the judge decided that there was a constitutional right to access based on the Fifth and Fourteenth amendments.

In the court's opinion, the scope of that right still had to be defined. And in light of the unconsidered claims raised in these §1983 actions, there are other constitutional foundations that need to be explored, for example, the right to confrontation, compulsory process and prohibition against cruel and unusual punishment.


Genetic material is not the only source of potentially exculpatory evidence. Four years ago, Virginia enacted Va. Code Ann. 19.2-327.10 et seq. allowing post-conviction challenges based on nonbiological evidence.[FOOTNOTE 7] The result is the recent decision in Copeland v. Commonwealth, 2008 Va. App. LEXIS 381 (Va. Ct. App. Aug. 12, 2008) granting the first "Writ of Actual Innocence."

Darrell Copeland had been charged with illegal possession of a semiautomatic pistol and convicted after trial. The gun was not introduced into evidence, instead the prosecution relied on the trooper's expertise in firearms identification. A short time after the verdict, the Virginia Department of Forensic Science issued a certificate of analysis that concluded the weapon, a gas gun, did not fall within the definition of a "firearm" under state law.

Copeland filed a petition for "actual innocence" and together with support from the attorney general sought relief from the court. The writ was granted, the conviction vacated and his record expunged.

Since the Virginia law concerning nonbiological evidence was enacted in 2004 over 100 petitions have been filed.[FOOTNOTE 8]

Prompted by earlier exonerations, the Virginia Department of Forensic Science continues to work on a project started three years ago reviewing DNA evidence in hundreds of decades-old cases.

[FOOTNOTE 9] The next step for the state is to determine how to manage the information they uncover.


The right to access potentially exculpatory or mitigating evidence for re-examination ought to be as fundamental as the Brady discovery rule, proof beyond a reasonable doubt and the presumption of innocence.

Cases of exoneration based on DNA testing have illustrated the dangers of misidentifications, false confessions and unreliable evidence. Viewed differently, in the post-conviction setting there is a benefit to resurrecting the "presumption" of innocence in evaluating requests for bringing new technologies to bear on old evidence.

Recognizing a right to raise claims of factual innocence after conviction and providing the means to uncover them are essential to our system of justice. As Judge Gertner recognized in Wade, new DNA tests have already changed the "due process calculus" and moved the boundary line defining the "limits of human fallibility." Improvements in DNA analysis as well as other forensic technologies, along with advances in scientific knowledge, are compelling deeper scrutiny of post-conviction innocence claims and fair trial challenges.

Wednesday, September 10, 2008

Avery's Lawyer Files Complaint Alleging Crime Lab Misconduct

Complaint Cites Documents Indicating Drunkenness, Filing False Reports

September 10, 2008 Milwaukee, WI

A lawyer for Steven Avery filed a complaint Tuesday afternoon alleging improper behavior and negligence at the state’s crime lab.

Jerome Buting, Avery’s lawyer, said he has new evidence that he claims shows serious problems at the lab including while it was testing evidence from the Avery case.

Buting's complaint cites internal documents that show an analyst disciplined for drunkenness on the job, another for failing to test samples and then filing false reports.

Buting is calling for an investigation by an outside, independent organization. The Attorney General’s office oversees the crime lab and issued a statement on the matter.

“This administration was not here when the events described by Avery’s defense lawyer occurred and we do not have personal knowledge of what transpired,” the statement reads. “We will conduct a review of facts underlying Buting’s allegations to determine whether any of his speculation has a basis that merits additional follow up.”

DNA was key to Steven Avery's exoneration for a rape he served nearly 18 years in jail for. It was also key to his conviction for Teresa Halbach’s murder. Crime lab experts testified they found Avery's blood in Halbach's SUV. At trial, Avery's lawyers pointed out errors in the crime lab analysis but the jury believed the experts.

Tuesday, September 9, 2008

Wrongly Convicted Man Law Students Helped Free Gets $4.5 Million

September 9, 2008

Indiana University-Purdue University at Indianapolis-Newswise-Indianapolis, IN

Seven years ago, with the help of IU School of Law-Indianapolis Professor Fran Hardy and four of her students, Larry Mayes of Gary, Indiana, was set free from prison based on DNA testing.

This month a federal court approved a $4.5 million settlement for Mayes - who before his release spent 21 years in prison for a rape conviction. The U.S. magistrate agreed on Sept. 2, 2008, that the 2006 federal jury award of $9 million to Mayes could be set aside, paving the way for the settlement between the man and Hammond, Indiana, city officials, according to an Associated Press report. Mayes originally had sought $19 million in damages and legal fees from the city, according to the AP story.

Mayes, who had been convicted in 1990 of several acts, including rape, was released on Dec. 21, 2001. After his exoneration, Mayes was represented by private counsel during the civil proceedings.

"I am certainly pleased that Larry Mayes will finally receive compensation for his unconstitutional, wrongful conviction," Professor Hardy said Friday (Sept. 5, 2008).

State Public Defender Susan Carpenter had appointed Hardy as pro bono counsel for Mayes. Hardy worked on the case with the help of four students in a criminal defense clinic course, Todd Ess, Edward Queen, Alicia Corder and Darlene Seymour. The team filed the petition for post-conviction relief that requested DNA testing in Mayes' case.

"The settlement for Mr. Mayes can only partly compensate him for everything he lost while he was in prison," says Queen, who now directs leadership education programs in the Center for Ethics at Emory University in Atlanta.

"While some may see Mayes' release and the payment as an indication that the legal system works, the fact that he was wrongfully convicted and jailed for such a long time is an indicator that the system indeed is broken," Queen said. In their petition, the law students cited I.C. 35-38-7, the Indiana law that strengthened Indiana inmates' rights to DNA testing and analysis. After DNA testing exonerated Mayes, Judge Richard Maroc of Lake Superior Court signed the court papers ordering his release.

Hardy's class was part of a national program, The Innocence Network, an offshoot of The Innocence Project, founded in 1992 at the Benjamin Cardozo School of Law located in New York City. The project's mission is to assist prisoners who can be exonerated through DNA testing of crime scene evidence. Law faculty and students at Cardozo School of Law referred the Mayes case to the Indianapolis law school which participates in The Innocence Network.

At the time, Mayes was the third Indiana man to be released as a result of post-conviction DNA testing. Presently, according to records compiled by The Innocence Project, six Indiana men have been exonerated by DNA testing.

Monday, September 8, 2008

Embattled Experts Key to Contested Verdicts

Innocence Project taking closer look

September 8, 2008

Earlesha Butler Jackson Clairon Ledger Jackson, MS

Of the 80 cases the Mississippi Innocence Project is reviewing for potential forensic fraud, at least two are Forrest County death-row cases that involved testimony from two of the state's controversial forensic experts.

The cases ended in the capital murder convictions of Stephen Elliott Powers and Larry Matthew Puckett.

Both cases included testimony by the state's former primary forensic pathologist, Dr. Steven Hayne, and Dr. Michael West, a Hattiesburg-based dentist and Forrest County's coroner at the time of the trials.

W. Tucker Carrington, director of the Mississippi Innocence Project, said in an e-mail his office was investigating these cases "because, first and foremost, they feature the testimony of Dr. Hayne and Dr. West," both of whom have been under fire questioning the quality of their work as well as their credentials.

"Our position is that, based on what we learned about their roles in the Noxubee County cases, any cases in which either doctor testified is automatically relevant for additional inquiry. We will not only come to understand the effect of their testimony on individual cases but also understand the breadth and scope of the damage that they have caused to the state's criminal justice system," Carrington said.

The state's Innocence Project began its examination of Hayne and West because both testified in two Noxubee County trials that ended in the wrongful convictions of two men in separate child murders.

Hayne performed the autopsies in the cases and West testified that bite marks on the victims were made by the men.

The two, Kennedy Brewer and Levon Brooks, were released from prison earlier this year after DNA testing and a confession from another man.

At least 60 to 70 of the cases the Innocence Project is now looking at involve the testimony of Hayne, who has handled most of the state's autopsies in the past 14 years. He was recently removed from the state's list of designated pathologists.

Powers was convicted of capital murder and sentenced to death for the June 1998 slaying of Hattiesburg resident Elizabeth Lafferty. He was convicted in December 2000 of shooting Lafferty five times, including three times to the back of her head, after he attempted to rape her.

West testified he responded to the scene of Lafferty's murder on Mamie Street on June 14, 1998, as Forrest County coroner. He said he examined the body and later sent it to Hayne for an autopsy.

At trial, West testified that he had worked in the coroner's office for 15 years and that he was chief medical examiner for Forrest County during his then five-year post as county coroner. West said he did not have a medical degree.

Court documents show that during the trial's juror examination, West said under questioning by then-Assistant District Attorney Bob Helfrich that he was a doctor of dentistry and that he had been suspended from the American Board of Forensic Odontology in 1993. The suspension, he testified, stemmed from a 1992 murder case in which defense attorneys filed an ethics charge against West, alleging he did not follow the "standards of terminology."

During the trial, Hayne testified that he performed an autopsy on Lafferty and that she died of "five entrance gunshot wounds" to the head.

Puckett was sentenced to death in the 1995 slaying of Rhonda Griffis, 28, of the Sunrise community. Puckett was convicted of beating Griffis to death after he sexually assaulted her on Oct. 14, 1995, according to court documents.

Both Hayne and West testified during Puckett's trial that he had "wound patterns" on his back consistent with that of a "club" - the instrument prosecutors said Puckett used to beat Griffis to death. The victim's husband had arrived home when Puckett was still at the scene, disarmed him and hit him with the club.

In an appeal to the state's Supreme Court, Puckett claimed that West should not have been allowed to testify as an "expert witness in the field of wound patterns."

Puckett also asserted that his attorney should have hired "an independent pathologist" to examine the evidence and general findings of Hayne.

The state Supreme Court and the U.S. Supreme Court have declined to hear appeals from Puckett.

An appeal by Powers was denied by the state high court in 2003.

Carrington said the cases will be examined "to make an accurate assessment" of testimonies provided by Hayne and West.

"This does not mean that as a matter of fact or law that their testimony in these or any case is automatically erroneous or led to an unjust conviction," he said. "In order to make an accurate assessment on a case-by-case basis, each case needs to be examined individually."

Calls to Hayne's attorney, Dale Danks Jr. of Jackson, were not returned.

Friday, September 5, 2008

Wrongful Convictions hard to get off Records

In Illinois, people freed after being deemed innocent need pardon by governor to clear name

Friday September 5, 2008

Peter Slevin and Kari Lydersen The Detroit News Detroit

Tabitha Pollock was asleep when her boyfriend killed her 3-year-old daughter. Charged with first-degree murder because prosecutors believed she should have known of the danger, Pollock spent more than six years in prison before the Illinois Supreme Court threw out the conviction.

"Should have known," the high court ruled, was not nearly enough to keep Pollock behind bars.

Five years later, Pollock remains in limbo, freed from prison but not free from the snags of a wrongful conviction that upended her life. With a felony record, she cannot become a teacher, as she wants. She cannot collect damages from the Illinois government. On a trip to Australia, where customs officials questioned her when she arrived, she learned that the murder conviction always follows her.

To fully clear her name, Pollock -- as well as a dozen or so other former Illinois inmates who have been exonerated -- needs an official pardon, which only the governor can give. She applied in 2002 but has received no word.

"I was raised to believe America is a wonderful country, but I have serious doubts about Illinois now," said Pollock, 37. "This whole experience has taught me not to have any hopes or dreams."

A spokesman for Democratic Gov. Rod Blagojevich said that the governor is flooded with petitions and has not had time to focus on Pollock's case.

Pollock's predicament is becoming more common across the country as more people are exonerated. The New York-based Innocence Project has tallied 215 wrongful convictions in the United States that have been reversed on the basis of DNA evidence.

Many of those former prisoners are seeking redress from the governments that mistakenly jailed them -- but they are kept waiting, whether because of the slow pace of bureaucracy or a lack of procedures or political will to handle their cases.

When the authorities do not certify innocence, "in effect, the sentence just goes on," said Stephen Saloom, policy director of the Innocence Project. Noting that legislators are recognizing "the lingering problems" of the exonerated after their release, he said 22 states and the District of Columbia provide official compensation in one form or another.

"A recent trend is not only to compensate at a monetary value per year incarcerated, but also to provide immediate services upon release," said Saloom, who said the project's clients spent an average of 11 years in prison. Advocates say the exonerated need help adjusting back into society, especially finding a job.

Alabama pays exonerated ex-prisoners $50,000 for each year they were incarcerated. New Jersey pays $40,000 or twice the inmate's previous annual income. Louisiana offers $15,000 a year plus counseling, medical care and job training, according to Northwestern University's Center on Wrongful Convictions.

In Illinois, to regain a certifiably clean record and collect compensation -- a lump payment of $60,150 for five years or less in prison, or $120,300 for six to 14 years -- an exonerated inmate must obtain a "pardon based on innocence" from the governor. A 15-member state review board interviews the petitioners and makes a recommendation, but the governor is not obligated to make a decision.

Thursday, September 4, 2008

State DNA Testing Underfunded, says Attorney General

Thursday, September 4, 2008

Victoria Howell Daily Mississippian Oxford, MS

The state of Mississippi is underfunded when it comes to DNA testing, according to Mississippi Attorney General Jim Hood.

To that end, a state task force convened during August 2008 to examine how to improve the state’s handling of DNA evidence.

“We established the task force to make sure the state of Mississippi could properly collect DNA,” Hood said.

The problem of DNA collection and preservation came to light after the exoneration of Kennedy Brewer and Levon Brooks, two Noxubee County men who were convicted for the separate murders of two young children. Brewer was exonerated largely through the efforts of the Mississippi Innocence Project, a state version of the National Innocence Project, an organization dedicated to freeing innocent inmates who are wrongly incarcerated on death row.

Hood said a much bigger budget is required for there to be competent crime labs in Mississippi.

“We need roughly $16 million,” Hood said. “We don’t just need proper facilities, though. We need properly qualified personnel to run them. That means you are talking about people with at least a master’s degree.”

Both the Mississippi Innocence Project and the attorney general’s office are lobbying for an increase in funding, Hood said.

“There are people in the Legislature who are beginning to realize that this is a serious problem,” Hood said.

Eric Ferrero, director of communications for the Innocence Project, said litigation work was an often overlooked part of what the project and collaborating organizations and departments did.

“Our department would teach Corrections how to properly take DNA samples,” Hood said. “Soon, we are going to tour crime lab facilities in Montgomery, Ala., and Arkansas to get a better idea of what we need. We are going to other sources of funding.

“We want the criminals who get swabbed to have to pay a fee. In other words, the people who committed the crime will be funding the crime lab. We just recently added two more DNA examples to the computer database, and the week after that, the FBI sent out a report that positively matched one person in Mississippi and they located the other two people in other states,” Hood said.

“The more cases we (the Innocence Project) won, the more flaws in the criminal justice system were exposed and reformed,” Ferrero said. “There have been 220 post-conviction exonorations since 1989.”

According to the project’s Web site,, there have been 156 exonerations since 2000. Of these exonerations, 17 of the 220 people exonerated through DNA served time on death row.

“To collect DNA, we usually swab the person’s mouth,” Hood said. “We then make sure it is properly preserved and put it in the computer system.”

Hood said DNA testing was very imprecise in the beginning.

“They could identify who did not commit the crime through blood type,” he said. “Say that there was evidence that someone committed the crime who had type O blood, the suspect who had type A was cleared.”

Ferrero said faulty and imperfectly preserved DNA evidence was not the only reason innocent people are convicted.

“There are multiple contributions to wrongful convictions.” Ferrero said.

“Some can be attributed to wrongful confessions. Experts have been looking at this for a long time and have found a number of reasons for this.”

These wrongful confessions could be due to mental issues, he said.

“Sometimes, the defendant doesn’t understand anything due to mental retardation or an extremely low IQ,” Ferrero said. “Some people are perfectly normal but are told that if they confess, the penalty will be much easier.”

In the case of younger people and teens, people might confess because they might be put under stress to do so, such as answering questions for a long period of time without supervision or support of a parent or guardian.

“Another thing we see a lot of is people just telling the authorities what they want to hear, hoping that it will get the process over with as soon as possible,” Ferrero said.

“What caused a majority of the wrong evidence in most cases can be contributed to eyewitnesses identifying the wrong person,” Ferrero said.

According to Ferrero there is a long process that needs to be undertaken before the Innocence Project revisits a case.

“We track every DNA case in the U.S.,” Ferrero said. “While we are involved in a vast majority of the cases, we do not have a direct hand in all of them.”

Ferrero said that cases can only be submitted through mail.

“DNA is the defining criteria, of course,” Ferrero said. “We ask for as much detail as possible to be included in the letter. We receive thousands of letters a year, some from prisoners and some from families. If the letter is accepted, we present what we know to the directors, and we decide if we can pursue it.

“We then go through an extensive research process that could take anywhere from months to years. We try to develop an alternate theory for the crime. Once we are finished with that, we then finally decide if we can take the case or not.

“We are extremely thorough,” he said. “The process is helped through technology since you can (know) much more out (of) a much smaller sample of DNA.”

According to the Innocence Project Web site, the average length of time served by those who are exonerated is 12 years. Since 1989, there have been many cases where prime suspects were identified and pursued until DNA testing (prior to conviction) proved they were wrongly accused, and while the true suspects and/or perpetrators have been identified in 85 of the 220 DNA exoneration cases, the Innocence Project had to close 33 percent of their accepted cases because of lost or missing evidence.

Hood said it wasn’t just the lack of DNA evidence that was a problem for Mississippi, but gathering it as well.

“One thing we have found out is that the state of Mississippi has only been swabbing criminals who have been incarcerated, not people who are on probation,” Hood said. “That could make the difference between arrest and conviction. We have a duty to protect the innocent.”

Wednesday, September 3, 2008

Nonprofit Seeks To Exonerate Philly Man

September 3, 2008

Bradley Vasoli The Bulletin Philadelphia, PA

A New York-based nonprofit called the Innocence Project has taken up the case of a man convicted on Jan. 31, 1986 of first-degree murder, a conviction The Bulletin has been investigating since last winter.

William Moore, 50, was sentenced to life in prison for the murder of fellow food vendor Mark Weimer in Nov. 1984 when Mr. Moore was 27 and the deceased was 29. A postmortem report on Mr. Weimer identified three lacerations to his back and right side of his head caused by a heavy weapon, possibly a pipe. The medical examination concluded he died of skull fractures and brain hemorrhages resulting from those wounds.

The prosecution, headed by Philadelphia Assistant District Attorney Barbara Christie, relied heavily on the sworn statements of Jeffrey Metz, a vending associate of the defendant and the deceased.

Mr. Metz told police that December he was neither involved in the murder nor privy to who committed it, but in the next few days he changed his story, saying Mr. Moore had killed Mr. Weimer in a Center City garage where vendors stored their hot-dog carts. Mr. Metz said Mr. Moore was upset with the victim about rent owed to the garage.

Mr. Metz said he helped Mr. Weimer clean blood from the alleged murder site and dispose of the body off of Elwyn Road in Middletown, Delaware County. Although Mr. Metz was untruthful with police on at least one occasion and admitted to aiding a man he identified as a murderer, he was never charged for any offense related to the case.

A friend of Mr. Moore's informed The Bulletin that the Innocence Project, a legal clinic at the Benjamin N. Cardozo School of Law at Yeshiva University, has begun an effort to exonerate him. The project chiefly assists those challenging their convictions of murder, rape and other violent crimes through DNA testing.

In May, the nonprofit helped overturn the conviction of Walter Swift, a Detroit, Mich. man who served 26 years for rape. In February, Mississippians Kennedy Brewer and Levon Brooks had their murder convictions overturned on DNA evidence with help from the project.

Investigators discovered blood on some of Mr. Moore's possessions after Mr. Weimer's death, but advanced blood testing was not yet performed in criminal trials.

Ms. Christie is now chief counsel to the Pennsylvania State Police. Her conduct in other cases has since been a subject of controversy that culminated in a libel suit against the New York Times, which she settled in 1997. An article in the New York Times Magazine said District Attorney Lynn Abraham had demoted Ms. Christie for being a "magnet for criticism" over allegations of prosecutorial misconduct.

Tuesday, September 2, 2008

Guilty until Proven Innocent

Law students examine cases to ensure wrongfully jailed go free

September 2, 2008

David Kihara-Review-Journal-Las Vegas, NV

In 1995, after spending more than 10 years in prison for a crime he didn't commit, Ronald Cotton was exonerated of rape and burglary in North Carolina. He was found innocent after DNA evidence proved he didn't sexually assault the victim, a woman who had identified Cotton as her assailant.

Cotton's case shocked Lucy Flores, a student at UNLV's Boyd Law School.

After learning about the case, Flores was inspired to right wrongs that occurred in the judicial system and pushed the school at UNLV to start a course that allows students to investigate potential wrongful convictions.

This year, Flores is seeing the results of her campaign. For the first time, the school will have a handful of students investigating robbery, sexual assault and murder cases with the hopes of freeing innocent people.

Known as an "innocence clinic," the course has 13 second- and third-year law students examining six cases to start with. The law school is working with the Rocky Mountain Innocence Center, a nonprofit based in Utah that works on post-conviction cases. The Rocky Mountain Innocence Center receives the cases and screens them before sending them to the law school.

"The fact is there are a lot of innocent people in prison," Flores said.

In many cases, DNA evidence is used to set people free.

There have been 220 cases in which people have been exonerated through DNA evidence since the late 1980s, according to the Innocence Project, a New York-based nonprofit.

The Rocky Mountain Innocence Center is part of the Innocence Project's network of organizations that look at freeing wrongfully convicted inmates.

Law students across the country are involved in programs similar to UNLV's. Students at the University of Mississippi helped prove a man was innocent of raping and murdering a 3-year-old. Levon Brooks had spent 18 years behind bars and was freed this year, according to the Jackson, Miss., Free Press.

In August, USA Today published a story highlighting how students at California Western School of Law helped free an inmate who spent more than 20 years in prison after being wrongfully convicted of a fatal Los Angeles carjacking.

Kate Kruse, professor of law at Boyd and the director of the school's innocence clinic, said students will be reviewing documents, interviewing witnesses and conducting investigations. She said the clinic will allow students to examine the issues that lead to wrongful convictions, such as the use of jailhouse snitches, faulty eyewitness accounts, bad police interrogations and weak forensic science.

The clinic is withholding the names of the defendants whose cases they are investigating. They are looking at Clark County cases in which the person who was convicted claims innocence, has seven or more years left to serve, isn't represented by an attorney and says there is new evidence. The cases so far range from robbery to murder.

If the students find enough evidence that a person has been wrongly convicted, they can go to the board of the Rocky Mountain Innocence Center, which could approve the case for litigation and assign an attorney.

Kruse also said the students could litigate the case.

Under a Nevada Supreme Court rule, law students who complete 45 credits -- about half the amount needed to graduate -- can represent clients as long as they're supervised by a clinical supervisor or an attorney with five or more years of experience.

Among other requirements, the students must be certified by the dean of the law school as a student in good standings.

"We're feeling that we're responding to a need in the community," Kruse said. "Both the human tragedy of someone wrongfully convicted and to help strengthen the bar on post-conviction work. There aren't a lot of people doing this work in the community."