Innocence Institute of Point Park University

2010-02-11T09:14:00.005-05:00

New Innocence Institute Web address: http://www.innocenceinstitute.org The Innocence Institute has moved to the following address: http://www.innocenceinstitute.org

2009-11-04T14:19:00.009-05:00

Simmons off death row; Cambria prosecutor tests DNA evidence for upcoming trial

By Brooke Keane
Innocence Institute of Point Park University
See the Innocence Institute's initial Simmons investigation here.

Just over a month after a federal appeals court upheld a ruling for a new trial in the grisly murder of an 80-year-old Johnstown woman in 1992, prosecutors obtained a court order to see if hair and other evidence found at the scene matches Ernest Simmons.

Johnstown Police detectives persuaded a judge to force Simmons to provide DNA samples at a status hearing in which Simmons had no legal counsel/ The detectives claimed scientific advancements since 1992 will enable them to conduct new tests on old evidence.

But Thomas Dickey of Altoona, Simmons’ recently appointed attorney, said that while he had not received a copy of the search warrant for a DNA test or any other documents in the matter until recently, he plans on scrutinizing the chain of custody of all evidence as well as the procedures and information used to obtain the search warrant in obtaining Simmons’ DNA.

These new tests add yet another twist to the longstanding controversies in the case stemming from allegations of misconduct, evidence suppression by prosecutors, and other issues that caused a judge to set aside Simmons’ death sentence -- which was then affirmed by the 3^rd U.S. Circuit Court of Appeals in mid-September.

Simmons has steadfastly maintained his innocence since the time of his arrest, throughout his trial, and all the way to the death sentence he received for the slaying of Anna Knaze. He sat on Pennsylvania’s death row -- twice being scheduled for execution -- until February 2005 when U.S. District Judge Sean McLaughlin of the Western District of Pennsylvania ruled that Simmons deserved a new trial.

In his opinion, Judge McLaughlin said:

*A jury never heard that a prime witness who identified Simmons near the scene minutes after the murder was actually an ex convict facing gun charges who could not identify Simmons for months until she copped a deal for freedom and told police it was Simmons she saw near the murder scene;

*The same witness told two Innocence Institute reporters long after the first trial that she could not say if the person she saw in the murder’s aftermath was Simmons or not;

* Police not only improperly threatened Simmons’ girlfriend into covertly recording telephone conversations from jail with Simmons, but after Simmons proclaimed his innocence 19 times during the taped phone calls, they were secreted from him at trial, keeping the jury from hearing his claims of innocence, and

* While prosecutors presented two other eyewitnesses against Simmons during his first trial, he chastised them for failing to reveal to his jury that they did not come forward until police cut a deal with one of them for an early release from jail.

Then after Cambria prosecutors appealed McLaughlin’s order, on Sept. 11, 2009, the 3rd U.S. Circuit Court of Appeals denied the appeal setting the stage for another trial for Simmons -- who some see as a cold-blooded killer, and others see as a victim of circumstance.

“Had Simmons had access to the information suppressed by the prosecution, there is a reasonable probability that his trial would have had a different outcome,” read the Circuit Court’s opinion, as adopted from the ruling of McLaughlin.

Then, during an Oct. 21 hearing to set a new trial date and appoint an attorney for the destitute Simmons, prosecutors made it clear they are not backing off when police, brandishing a court order, collected DNA from Simmons while he was still in the courtroom.

The affidavit accompanying the court order said DNA testing on evidence collected from Knaze’s home in 1992, which included fingernail clippings, the victim’s clothing and sweepings from the living room, dining room and kitchen floors, was not done. In 1992, fingerprints found on the scene did not match Simmons, while blood and fingernail clippings were not fit for testing. This time around however, more advanced DNA testing will be done.

The conviction

On May 6, 1992, Anna Knaze was found dead in her home with almost every bone in her body broken. Though none of the originally tested physical evidence tied Simmons to the killing, police targeted him because he had a prior record of violence against the elderly.

By 1984, when he was sent away to prison for almost a decade, Simmons had already pled guilty to more than 20 crimes, including the robbery and brutal beating of two elderly men in Harrisburg. He served seven years in prison and then moved to Johnstown in 1991, looking to use his skills as a barber to begin a new career and life there.

Nine days after the murder, he was jailed on a minor parole violation as the investigation intensified. In reality, Simmons became the target suspect just two days into the murder investigation and was the only suspect police considered. As he sat in jail on the parole violation, the prosecution built their case against him and he was officially charged with Knaze’s murder in August of 1992, while still imprisoned.

The key to Cambria County's case against Simmons was Margaret Cobaugh.

A 61-year-old ex-convict who lived a few blocks from Knaze, Cobaugh reported to Johnstown Police the day following Knaze’s murder that her wallet had been stolen around the time of the murder, and that she had been raped by a black man during the same period. The next day, Cobaugh tried to withdraw her claims, and before police arrived to question her, she had destroyed all physical evidence by trying to flush her undergarments down the toilet. She also could not initially identify her attacker in a lineup.

Trying to buttress his case as the trial grew near, Johnstown Police Detective Richard Rok, who was later fired from his job and imprisoned for kicking a handcuffed suspect in an unrelated matter, questioned Cobaugh ten times. By the time police were done with her, 13 material changes from her initial report arose, taking her from possible assault victim at the hands of a nameless, unidentified black man to the victim of a heinous rape committed, she was certain, by Simmons.

As the state’s star witness several months later, Cobaugh testified that Simmons was her attacker. She also claimed that her attacker threatened her, telling her not to “open your mother f—king mouth or you’ll get the same thing that Anna Knaze got,” despite the fact that this incident would have taken place several hours before the discovery of Knaze’s body.

Rok also threatened Simmon’s girlfriend until she agreed to tape telephone conversations from the Cambria County Jail, believing she could cajole a confession out of him.

Instead of obtaining a confession, Simmons claimed innocence 19 times during these conversations. Since Simmons did not implicate himself, the detective did not disclose the tapes to defense lawyers -- who could have used it in Simmons' defense.

In addition, two witnesses who corroborated Cobaugh’s testimony also emerged. While the two female neighbors of Knaze’s claimed months after the killing they saw a black man talking to Knaze outside her home, neither woman could pick Simmons out of a six-man photo lineup.

That changed by trial time when the women, armed with a deal for freedom for one of their relatives that was not presented to Simmon’s jury either, identified him at the murder scene.

On June 1, 1993, Simmons was convicted of murder and robbery and in a short sentencing phase, a judge ordered that he be put to death by lethal injection.

Questioning testimony

After the trial, much of the information that had been withheld from the jury slowly began to emerge.

First, defense lawyers learned Cobaugh had served an 11-year jail sentence for burglary and larceny. She did not disclose this information after purchasing a firearm in 1992, so Cobaugh was charged with violating gun laws. But when Cobaugh agreed to testify against Simmons, detective Rok convinced Cambria County District Attorney Patrick Kiniry to drop these charges.

In 1993, a former Philadelphia police officer – who became a central Pa-based private detective working for Simmons defense team -- -visited Cobaugh’s home and was greeted by her double-amputee husband who began shouting at Cobaugh to “tell [the detective] the truth.” She promptly wheeled him away without a word to explain what her husband meant.

Then in 2004, during the Innocence Institute of Point Park University’s investigation, Cobaugh, who passed away in October, 2007, told reporters that she “could not positively identify anyone. It could have been [Simmons], it could have not.”

In Judge McLaughlin’s opinion, in which he quoted the Innocence Institute story, he said a recantation by Cobaugh could have been pivotal in the case.

“The prosecution appears to have recognized Cobaugh’s central role, the Commonwealth itself¼in its case called Cobaugh a ‘critical’ witness.”

Along with the Cobaugh controversy, Simmon’s lawyers at the time discovered the secret tapes made by Simmons’ girlfriend. In his opinion, the federal judge castigated the prosecution for hiding that evidence from the defense.

“Had the defense in this case had access to the information about Rok’s efforts to pressure [Simmons' girlfriend] into cooperating with the prosecution, it would have been much better positioned to cast doubt on her credibility,” the court opinion stated.

Other eyewitness testimony in the original trial was also attacked by the federal judge.

“Although [I] cannot say with certainty that the jury would have reached a different conclusion on its verdict, Simmons has demonstrated a ‘reasonable probability’ that it would have done so.”

The retrial

Cambria County District Attorney Patrick Kiniry, whose office would not respond to interview requests, told the Johnstown Tribune-Democrat he will continue to fight the court’s ruling, although an appeal has yet to be filed with the U.S. Supreme Court.

“My office will be prepared to try the case again,” he said. “Ernie Simmons is a cold-blooded killer, and a jury from Erie County found he had killed Anna Knaze, and they sentenced him to death.”

The first move towards that end was when they served Simmons with a search warrant for DNA testing on materials found in and around Knaze’s home after the murder.

Dickey, who was not appointed to the case until after the DNA evidence was secured, said he will challenge every element of the collection process because no forensic evidence was connected to his client in the past.

“We’ve got big troughs, but they’re all empty,” he said.

Simmons’ original trial lawyer Kenneth Sottile will be assisting Dickey on the retrial. Sottile told the Johnstown Tribune-Democrat that not only would a conviction be more difficult this time around, but that there is a chance that the charges against Simmons will be thrown out altogether. He could not be reached for comment.

“There is some case law that would bar a retrial when prosecutorial misconduct is so serious,” he said.

Brooke Keane is a student reporter with the Innocence Institute of Point Park University. She can be reached at bakeane@pointpark.edu.

2009-09-16T13:32:00.005-04:00

Weimer Case Rejected by State’s Top Court

Conviction Stands Despite Questionable Witnesses and Controversial Forensic Debate

By Marie Do Rego

Innocence Institute of Point Park University

PITTSBURGH, Pa. -- The Pennsylvania Supreme Court has denied the appeal of a Fayette County woman sentenced to as much as 30 years in prison in the death of man who was beaten, bitten and shot after a night of revelry in 2001.

In a six-page opinion, the court ruled Crystal Weimer’s arguments regarding insufficient evidence and a misapplied conspiracy charge were meritless.

That means Weimer, who has steadfastly maintained her innocence and says she wasn’t even in the same Fayette town when someone beat and shot Curtis Haith, will continue to serve a 14 ½ to 30 year sentence for third degree murder.

Weimer was convicted after a three-day trial beset by eyewitness testimony from a stream of jailhouse informers who repeatedly changed their stories and questionable forensic evidence from experts who disputed whether pictures of bite marks on the dead man’s arms matched a dental mold of Weimer’s teeth.

“It’s devastating. I just can’t believe that our [justice] system won’t stand up for truth,” said Weimer, in a telephone interview with the Innocence Institute after she discovered the outcome of her appeal by reading it in a newspaper.

In an earlier 2007 appeal that was denied by the appeals court, she challenged the supposed eyewitness testimony that changed every time the witnesses testified as well as legal standards that did not apply to her case.

In the latest appeal, the Supreme Court considered if it is possible, as a matter of law, for a person to be convicted of conspiracy to commit murder in the third degree. In a six page opinion, the Court said it is possible.

The Court reasoned that if the victim’s death is a “natural and probable consequence of a co-conspirator’s conduct” a conspiracy charge is appropriate. The Sept. 9, 2009 opinion also stated that a conspiracy can occur regardless of the grade of murder a defendant is convicted of.

A representative from the Fayette County DA’s office could not be reached for comment.

In the wake of the Court’s decision, Weimer has recently filed another appeal.

2009-08-25T16:29:00.007-04:00

The Truth May Set Terrell Johnson Free

Pa. Supreme Court Orders New Trial That Could End Fifteen Year Imprisonment
By Marie Do Rego
Innocence Institute of Point Park University

A ruling from the state’s highest court has set the stage for a new trial or possible plea bargain for freedom in the case of a Hazelwood man who, though he was convicted in the 1994 killing of a government witness, has long claimed his innocence.

In a one word ruling on Aug. 20, the Pennsylvania Supreme Court denied claims by the Allegheny County District Attorneys Office that new evidence produced last year by Terrell Johnson does not merit a new trial in the highly publicized, gang related murder of government witness Verna Robinson. She was a former crack addict gunned down just days before she was scheduled to testify against a member of the notorious Hazelwood Mob.

Johnson, who claims he did not belong to that gang, was accused of killing the informant along with his co-defendants Harold Cabbagestalk and Dorian Moorefield to prevent her testimony against a member of the Hazelwood Mob, which police credit for more than a dozen unsolved murders in the broken down former mill town during the early 1990s.

Yet while the testimony of the prosecution’s main eyewitness, Evelyn “Dolly” McBryde, resulted in Johnson’s life sentence, both of his co-defendants were acquitted when the jury heard evidence that was not presented in Johnson’s trial, including new evidence last year suggesting she was not at the murder scene to witness it.

While Johnson has steadfastly maintained his innocence and wants a jury to hear all of the evidence kept from him the first time, Richard Narvin of Pittsburgh, his lawyer, said he is already in contact with prosecutors and says that if a deal is struck Johnson “will walk out of prison a free man.”

A spokesman for Allegheny County District Attorney Stephen A. Zappala Jr. could not be reached for comment.

In 2003, Johnson’s case was examined by the Innocence Institute of Point Park University. It found a wide assortment of problems with the facts as presented to a jury by McBryde, as well as a variety of other issues that questioned whether Johnson received a fair trial.

While Johnson has now been imprisoned 15 years, shortly after his sentencing, Common Pleas Judge Lawrence O’Toole first reversed his conviction when Johnson’s lawyer at the time testified that that he was ineffective for failing to investigate McBryde’s background in order to show a jury she was a liar, a thief and a life-long drug abusing criminal.

Information also came out after Johnson’s trial that she abused her children by not only prostituting them, but using them to steal merchandise from area malls. Her criminal exploits have not ended.

O’Toole’s decision to grant Johnson a new trial in 1997 was reversed by the state Superior Court and Johnson was sent to the State Institution in Greene County for the rest of his life.

In 2006, Johnson’s new lawyer filed an appeal stating a new witness had emerged. That witness claims McBryde was with him smoking crack cocaine several blocks away from the crime scene at the exact time she testified she watched Robinson’s murder.

That new information, combined with an assortment of contradictions in McBryde’s earlier testimony and statements, caused O’Toole in 2008 to reverse the conviction again, stating he believed Johnson did not receive a fair trial. The Allegheny County District Attorney’s Office appealed that decision and was denied by the Supreme Court Aug. 20.

That leaves prosecutors with three options: to try Johnson a second time even though McBryde has continued to rack up convictions – she now has more than 50 – most recently for federal bank fraud charges; complete a plea bargain that would end the ordeal, or appeal the case to the U.S. Supreme Court, which grants less than 80 appeals a year.

“I think the right thing has been done in this case. I believe that the Supreme Court has been moving away from granting new trials, so this decision is heartening for all defense counsel,” Narvin said.

Marie Do Rego is a graduate assistant and reporter for the Innocence Institute of Point Park University, a journalism-based innocence project. She can be reached at amdoreg@pointpark.edu or 412-765-3164.

2009-08-20T10:56:00.003-04:00

Check out the Innocence Institute's latest investigation, from the July 30th, 2009 edition of Philadelphia City Paper:

Little Kid, Life Sentence

Pennsylvania has more juvenile lifers than any other state in the union. Stacey Torrance knows. He's been in jail since he was 14.

via Philadelphia City Paper

2009-04-23T10:22:00.000-04:00

Innocence Project appeals rape conviction of Allegheny County man

By Rich Cholodofsky- Pittsburgh Tribune Review- Pittsburgh, PA

The Innocence Project of New York has filed an appeal of a conviction of an Allegheny County man found guilty in 1992 of brutally raping a New Kensington woman, saying prosecutors used bogus science at his trial.

John Kunco is now 43 and serving a 45- to 90-year prison sentence. He was found guilty in a four-day trial in 1992 that heavily relied on testimony from forensic dentists concerning a bite mark found on his victim's shoulder.

Experts, using science available to them in the early 1990s, found the bite marks were made by Kunco.

But Innocence Project lawyers, in court documents filed last week in Westmoreland County, said that science should be disregarded. A study released in February by the National Academy of Sciences found that bite mark comparison is not reliable.

"Simply put, Kunco's trial was polluted and contaminated with false, misleading and grossly unreliable bite mark evidence, and as a result this court can have no confidence in the jury's decision to convict Kunco," states the appeal written by Innocence Project lawyer Craig M. Cooley.

Kunco had worked as maintenance man at the apartment where his 55-year-old accuser lived. During the trial, prosecutors presented evidence that he broke into her home on Dec. 16, 1990, blindfolded her with her own underwear, shocked her with a frayed electrical cord, raped her, then forced her to perform painful and degrading sexual acts.

The victim was able to identify Kunco by virtue of a recognizable lisp.

Five months after the woman was attacked, an ultraviolet photograph of her back was enlarged and healed bite wounds were compared to a mold of Kunco's teeth. Forensic experts testified at trial that the healed wounds matched Kunco's dental impression.

Defense attorneys never challenged that testimony during the trial, but a subsequent appeal did. That appeal eventually was taken to the U.S. Third Circuit Court of Appeals, where it was rejected in 2003.

Westmoreland County Assistant District Attorney Wayne Gongaware, who tried the case against Kunco in 1992, said Friday that he is confident the right man is in prison for the rape.

"We had two different experts. They independently reviewed the evidence and found it was his bite marks," Gongaware said.

The Innocence Project, a private nonprofit agency based in New York, was created in 1992 and has worked on high-profile cases in which DNA could be used to overturn a conviction.

Kunco has maintained his innocence since his arrest. After the federal appeals court ruling Kunco contacted the Innocence Project, Cooley said on Monday.

In January, Westmoreland County prosecutors agreed to DNA testing of some evidence used against Kunco, including an electrical cord and the victim's girdle. Test results have not been returned.

"We're testing to find some other male DNA that we can hopefully use to exonerate John. If the results are inconclusive, then we will have to find another available avenue of appeal," Cooley said.

2009-04-16T12:23:00.000-04:00

The Justice Project Releases New Report on Prosecutorial Review

The Justice Project-Washington, D.C.

Click here to link to the new report recently released by the Justice Project, which analyzes the problems of prosecutorial misconduct and provides recommendations to improve the accountability of the nation’s prosecutors.

2009-04-14T11:33:00.000-04:00

At emotional hearing, relatives finally hear man's name cleared

By Aman Batheja-Austin Star-Telegram -Austin, TX

Twenty-two years ago, Ruby Session listened in disbelief as a Lubbock jury convicted her son, Timothy Cole, of rape. She promised herself that one day she would make sure this injustice was corrected.

"I always had faith and I just believed that it would one day happen," Session said.

That day finally came Tuesday when, after years of efforts by Cole’s family and a relentless group of supporters, state District Judge Charles Baird issued the first posthumous DNA exoneration in Texas history.

"The evidence is crystal clear that Timothy Cole died in prison an innocent man and I find to 100 percent moral, legal and actual certainty that he did not commit the crime that he was convicted of," Baird said.

Cole was convicted of aggravated sexual assault in 1986, after Michele Mallin identified him as the man who attacked her near Texas Tech University. Cole had always maintained his innocence.

In 1995, Jerry Wayne Johnson, who was serving two consecutive life sentences in prison for sexual assaults in Lubbock, admitted raping Mallin. Authorities ignored his confession until the Innocence Project of Texas took up the case in 2007. DNA tests in 2008 confirmed that Johnson was Mallin’s attacker.

Cole died in prison in 1999 at age 38 from complications of asthma.

"This is probably the most important decision I’m going to have in my entire judicial career, and I’m honored that I’m the one who was able to do this," Baird said.

Problems with police

Baird laid much of the blame for Cole’s conviction on the Lubbock Police Department for making a "snap judgment" on Cole’s guilt and then refusing to consider other suspects. He described evidence that pointed to anyone but Cole as being "downplayed or deliberately ignored."

He was especially critical of the photo lineup of suspects that was presented to Mallin. Cole’s picture — a Polaroid — was drastically different than the others, making it stand out.

Baird urged the Legislature to take immediate action to make sure that what happened to Cole isn’t repeated. He stressed the need for statewide fair-practice standards on witness identification procedures and easier court access for convicted Texans who proclaim their innocence.

He also called for increasing compensation the state gives to wrongly convicted people and a method for compensating survivors of those who have been exonerated posthumously. Under current law, Cole’s family cannot receive any compensation from the state, said Jeff Blackburn, the Innocence Project’s chief counsel.

Toward the end of the hearing, Baird made a point of speaking directly to Mallin, assuring her that none of this was her fault. Cole’s family also said they harbor no ill will toward Mallin.

Mallin said she still feels guilty about identifying Cole and said she is in counseling over it.

"Until May of last year, I thought he was the one who did it," Mallin said. "I had no idea."

Meeting with Perry

Ruby Session said she is now focused on improving state laws for exonerated people and those who should be. She has met with most of the Dallas men who have recently been cleared of crimes via DNA evidence.

"I feel closeness to them," Session said. "They call me Mom, so I have 19 more sons."

Members of Cole’s family have an appointment today for a private meeting with Gov. Rick Perry. Ruby Session said they plan to talk to him about getting Tim Cole officially pardoned and to discuss legislation related to aiding the wrongly convicted.

Cory Session, Tim Cole’s brother, said he also wants the governor to issue an executive order that on Dec. 2, the 10th anniversary of Cole’s death, all flags at state buildings and prisons fly at half-staff "just so they remember that an innocent man did die in prison and that the system is broken and it can never be fixed for Timothy Cole."

2009-04-14T11:11:00.002-04:00

Monroeville lab hits the bull's-eye on gunshot tests

Monday, April 13, 2009

Michael A. Fuoco-Pittsburgh Post-Gazette-Pittsburgh, PA

A.J. "Skip" Schwoeble, director of forensic science at RJ Lee Group Inc., sits with a scanning electron microscope linked to a computer at the company's headquarters in Monroeville.

Pennsylvania State Police investigators turned to a private Monroeville laboratory when they needed to know whether any gunshot residue was found on an 11-year-old suspect in the Feb. 20 shotgun killing of his father's pregnant fiancee in New Beaver, Lawrence County.

Subsequently, Lawrence County District Attorney John Bongivengo said he considered the gunshot residue found on Jordan Brown's shirt and jeans by scientists at RJ Lee Group as some of the strongest evidence presented at a preliminary hearing last month for the fifth-grader, who was held for trial on a homicide charge.

State police aren't alone in contracting with RJ Lee, whose scientific development, innovation and expertise in the field over the past 20 years has made it world renowned. The company has criminal forensic contracts with the FBI and the Bureau of Alcohol, Tobacco, Firearms and Explosives as well as 500 other law enforcement agencies in the United States, the American Virgin Islands, the British Virgin Islands, Bermuda and, until recently, the entire country of Switzerland.

In fact, A.J. "Skip" Schwoeble, RJ Lee's forensic sciences director and an internationally respected expert in gunshot residue -- known as GSR -- was scheduled to leave today for St. Thomas, Virgin Islands, to testify in a murder trial. Over the past decade, he has testified in more than 150 trials and analyzed evidence in more than 1,500 cases.

"It's very interesting work," said Mr. Schwoeble, whose book, "Current Methods of Forensic Gunshot Residue Analysis," is used in college courses and by law enforcement agencies.

"I like the whodunits. Every case is different," said Mr. Schwoeble, one of 27 experts in an international working group sponsored by the National Institute of Justice to upgrade standards for GSR collection, analysis, interpretation, report writing and testimony.

GSR is the expelled microscopic particles of the heavy metals barium, lead and antimony that make up the primer of a bullet or shell. When the firing pin strikes the primer, causing it to burn and ignite the gunpowder, the created gases carry the heavy metals' particles through any opening in the weapon. Those particles adhere to the shooter's hand, clothing and elsewhere in the vicinity.

The presence of GSR tells investigators a suspect either fired a weapon, handled a fired weapon or was in an environment in which a weapon was fired.

"It's one part of the puzzle," Mr. Schwoeble said. As with most trace evidence, other physical evidence or eyewitness testimony is necessary to create the whole picture of a crime.

Criminal forensic analysis accounts for only 10 percent of the $25 million to $30 million in annual revenue earned by the company headquartered in a nondescript building on Hochberg Road that gives no hint of the scientific brainpower, sophisticated equipment and innovation inside. The scientists in the materials analysis laboratory study everything from manufacturing problems to irritants inside NASA's space shuttle fleet to what New Yorkers were exposed to when the World Trade Center towers collapsed.

Dr. Richard J. Lee, the company's president, started the firm, which now employs 250 people in several states, after he was laid off in 1985 as head of U.S. Steel's microscopy research and analytical research laboratory. He bought the lab's equipment and hired most of his colleagues, including Mr. Schwoeble, whom he credited with discovering that there was a niche in criminal forensics for the company.

The firm's entry into the field occurred because of coincidence and insight. The company had developed a scanning electron microscope for use in its various materials analyses in the late 1980s. About the same time, it developed an adhesive.

"We had a transparent glue we couldn't find a market for, so I told Skip to go find me a market, something this stuff can do," Dr. Lee said.

He had no idea the search would lead to criminal forensics. "I was looking at anything that spelled money," he said, laughing.

Mr. Schwoeble thought the burgeoning field of criminal forensics might be a market, so he contacted his brother-in-law, an FBI agent, who introduced him to scientists at the FBI lab. Mr. Schwoeble spent the next two years traveling the country, visiting other crime labs. He realized that GSR analysis could be a good fit for RJ Lee.

At the time, potential evidence was lifted from suspect's hands, clothing and other materials with melted wax or a liquid chemical.

A chemical solution then would be used to analyze what had been collected to see if GSR was present.

But Mr. Schwoeble realized that the company's adhesive would offer a much more effective way to lift evidence. And RJ Lee's sophisticated scanning electron microscope would provide a much better method for analyzing lifted samples for the presence of GSR. What he developed is now the preferred method of GSR collection and analysis.

Furthermore, he helped develop a computer program that automated the analysis, allowing the microscope to operate 24 hours a day. That allows the company to promise law enforcement clients analytical results in seven to 10 days rather than the months they would have to wait to get results from their own backlogged crime labs.

Dr. Lee said he is pleased the company's innovations and expertise have aided the criminal justice system.

"For us, it's a great treat when you see a successful prosecution that would not otherwise been possible," he said.

"It's interesting, one of the things we've been told is that confrontation with the [GSR] evidence eliminates a lot of trials" because suspects then enter a plea bargain.

Mr. Schwoeble noted that because of the company's varied analytical abilities, crimes other than those involving GSR can be investigated. One of the most unusual cases involved a man arrested on the East Coast on charges he stole a woven basket from an Indian burial ground in the West.

The man denied it, but RJ Lee scientists were able to match dirt embedded in the basket with dirt from the burial ground.

As it turned out, the evidence wasn't as crucial as it normally would have been -- authorities discovered a photograph the man had taken of himself as he was stealing the basket from the burial ground.

That's a case you likely won't see on "CSI," but the fictionalized work on that television show is the real-life work for Mr. Schwoeble and five other scientists he works with in Monroeville.

2009-04-07T11:57:00.001-04:00

Innocence Institute Director Takes 2nd Place in Investigative Reporting in National Contest

Innocence Institute of Point Park University- Pittsburgh, PA

Innocence Institute Director Bill Moushey was one of few Pittsburgh news reporters who garnered awards in the Associated Press Sports Editors’ Writing Contest.

Moushey, a former investigative journalist for the Pittsburgh Post-Gazette, finished second in the Investigative Category with his stories examining how the Pennsylvania Interscholastic Athletic Association lacked to perform criminal background checks on many game officials.

Mr. Moushey’s research revealed that several working and former officials had been arrested or charged with other crimes. The story caused the state to force background checks on all of its officials.

2009-04-06T11:50:00.000-04:00

Innocence Project Comes To Temple

MyFox Philadelphia- Philadelphia, PA

A nationwide organization that has worked to exonerate hundreds of wrongfully convicted inmates has a new affiliate housed at Temple University.

The Pennsylvania Innocence Project, based at Temple University's law school, opens its doors Monday. It will review petitions submitted from around the state by inmates who say they are serving time for crimes they did not commit.

The group will start with about a dozen law students and a similar number of attorneys but hopes to expand statewide. Organizers say it will look not only at cases with DNA evidence but also those with questionable forensic evidence or other issues.

The first Innocence Project was founded in 1992 in New York. The organization says there are now 50 such groups that have exonerated 400 inmates -- more than half of those through DNA evidence.

2009-03-24T12:29:00.002-04:00

Exonerated inmates are free from prison but not from its effects

By Heather Ratcliffe — ST. LOUIS POST-DISPATCH- St. Louis, MO

Antonio Beaver never stopped smiling the day he got out of prison.

His family bought him a new suit. The St. Louis circuit attorney gave him an apology. A waitress put a cherry on his ice cream at lunch.

"I came out with a clean spirit and clear mind," Beaver said.

But as the hugs and good wishes faded, Beaver, 43, began a surprisingly difficult battle to rebuild his life after serving a decade in prison for a robbery he did not commit.

He is among a small but growing legion of the exonerated — former inmates who often find themselves treated like other ex-cons while carrying the added psychological scars of unjust treatment and years that cannot be replaced.

Beaver struggled to connect with family, friends and work. He turned to an alcohol habit he thought he had kicked in prison.

He was luckier than some. He was freed by DNA testing, which made him eligible for state compensation. But his despair persists.

"I guess I expected more — a home, transportation, a decent job," Beaver said in a recent interview. "I have to seek and find and struggle. I could have had all that if a decade wasn't taken out of my life."

He was speaking from behind bars again. Last fall, he was sentenced to nine months in the St. Louis County Justice Center after a drunken driving crash.

National experts say Beaver's struggle is common for those unlucky enough to be wrongfully convicted but lucky enough to prove it.

Usually, they leave prison with a handshake, their release papers and nowhere to go. Advocates say there is usually more help — like counseling and temporary housing — provided to parolees who actually did commit crimes.

The nonprofit Innocence Project, based in New York City, is known for its work in helping inmates win release. But that's just the start.

"Most are terribly grateful, and looking forward to reuniting with their families and communities," said Cheryl Pilate, a Kansas City attorney who works with the Midwestern Innocence Project. "But the reality is they are wounded inside on many levels and these scars are not visible sometimes for years."

She said depression, anxiety, substance abuse and paranoia are typical.

RESTORING LOST LIVES

Since 1989, the Innocence Project has counted 234 convicts exonerated nationally by DNA evidence. There is no known count of those cleared in other ways, such as the discovery of new evidence or the recanting of a witness.

Time stops for all prisoners while their children grow up, parents die, marriages fail and careers disappear. But the exonerated bear an extra burden.

"They were labeled rapists and murderers — the worst of our society, and they have done nothing wrong," Pilate said. "That eats at them every day."

John Wilson, a psychologist at Cleveland State University who has worked with the exonerated, said: "It looks like a happy ending at the end of the rainbow, but that doesn't happen. The injury sustained is permanent. I don't know anybody who has ever healed from it."

They all suffer post-traumatic stress disorder, Wilson said, in the manner of torture victims or combat veterans.

Wilson said some reincarcerate themselves, retreating to a stark bedroom and refusing to go outside. Some hesitate to go out in public without a "witness." Some carry newspaper clippings to prove their new status.

Beaver spent 10 years in prison for a 1997 carjacking near the Gateway Arch before DNA showed that the injured robber's blood in the car was someone else's. He was released March 29, 2007.

He said he found work sorting parts for a manufacturer in St. Charles but was fired two months later; he blames the stigma of prison. He quit the next job, laundering hospital linens, as too disgusting.

Kate Germond, executive director of the Centurion Ministries, in Princeton, N.J., an advocate for wrongfully convicted, said: "Unfortunately they are not emotionally prepared for life, and they blow these jobs. People grow impatient with them. It's hard for people to accept their limitations. You have to let them come out of their cocoon when they can."

A MATTER OF RESTITUTION

Twenty-five states offer restitution to some exonerated convicts.

In Missouri, only those cleared by DNA are eligible to receive $50 for each day incarcerated, paid over time. Illinois pays from $85,350 to $199,150 to those who get a pardon from the governor or certificate of innocence from a court.

Former Sen. Michael Gibbons, R-Kirkwood, who sponsored an update of Missouri's restitution law, said: "We can't give them those years back. But the state owes them some form of compensation."

He said that he thinks those deemed "actually innocent" by a judge should qualify too but that some lawmakers insist only DNA can deliver such certainty.

Angie Morfeld, a spokeswoman for the Missouri Department of Corrections, said it can refer the exonerated to social service agencies. But unlike parolees, she said, they are no longer under the state's jurisdiction for its re-entry programs.

St. Louis Circuit Attorney Jennifer Joyce says the state should offer help as well as money to anyone found provably innocent. "I think that it is the pursuit of justice to put these people back into a position, as much as possible, to regain what they have lost," she said.

Steve Toney, now 62, exonerated in 1996 after 13 years in prison for a St. Louis rape, said he cannot keep a home or car even though he collects restitution and a disability pension.

"I'm up and the next minute I'm down," he said. "I'm holding on to what I can."

Pilate understands. "Every aspect of their life was managed in prison," she said. "They were not given the ability to mature, grow or make decisions for themselves."

Wilson said money "doesn't take away the pain or scars" that drive some to die drunk, or high, or commit suicide. He called for a concerted national counseling program tailored to the unique needs of the exonerated, as was done for Vietnam veterans.

"What's the responsibility of our justice system who took their freedom to attempt to restore their well-being?" Wilson asked. "That's a very important moral question that begs an answer."

FAMILY TIES

Missouri's most recent example, Joshua Kezer, 34, said he plans to lean on his faith, friends and family. He was released Feb. 18 after serving 14 years for a 1992 murder in Benton, Mo.

Jane Williams, a social worker in Columbia, Mo., who was involved with Kezer's case, said she is optimistic. "He's a naturally gifted speaker, and we're trying to figure out how to help Josh tell his story."

Kezer visited his family in the Bootheel earlier this month for the first time since his arrest. "I got to hug my cousin, whom I haven't seen in 18 years," he said. "I watched my grandfather weep because he was so happy to see me. It's beautiful being free."

More than anything, the advocates say, the exonerated grieve the time lost with their families.

Darryl Burton's daughter was 1 year old when he went to prison in 1985 in a St. Louis murder case. Within months of his release after an overturned conviction last year, Burton, 47, visited her.

The daughter, Tynesha Lee, 25, said they are getting to know each other after so many years apart.

"There's no way to get it back," she said. "I can't be 10 years old again."

Beaver, whose children were 11 and 13 when he went to prison, said, "I feel like a stranger to them."

He moved in with a girlfriend months after his release. He said his drinking led to arguments, which led to more drinking.

On Aug. 31, he crashed into the back of a car in Bellefontaine Neighbors in which a pregnant passenger bumped her head. He pleaded guilty of second-degree assault.

Beaver said he now regrets turning away opportunities for counseling and alcohol treatment.

"I didn't want to admit I had a problem," he said. "I'm a grown man, and I thought I ought to be able to do this. I was wrong."

He said his priorities are now a place to live, a job and a new relationship with his sons.

"People fought so hard to get me out of prison, and I'm back in here," he said. "I'm so disappointed. I've got to change."

2009-03-20T10:49:00.001-04:00

Report: DOJ no CSI-Fails to Enforce Forensic Oversight

North Country Gazette-Chestertown, NY

A report released by the Innocence Project shows that nearly five years after Congress passed legislation to ensure that forensic negligence and misconduct are properly investigated, the law is largely being ignored due to a lack of federal guidance and, as a result, serious problems in crime labs and other forensic facilities nationwide have not been addressed.

The 84-page report lays out key problems with the U.S. Department of Justice’s administration of the program for the last several years and outlines improvements the Obama Administration can make going forward. The report focuses on the Paul Coverdell Forensic Science Improvement Grant Program, which provides federal funds to help improve the quality and efficiency of state and local crime labs and other forensic facilities – as long as those grant recipients have proper oversight mechanisms in place to handle forensic problems.

Specifically, federal law says that as a condition of receiving the federal money, applicants must designate independent, external government entities to review allegations of serious negligence or misconduct affecting the quality of forensic analysis and that those entities must have a process in place for handling such allegations. The report released today includes the results of an Innocence Project survey of the oversight entities designated by grant recipients – and the survey results show that that the vast majority of them are not in compliance with federal law, based on the Innocence Project’s analysis.

“Congress wanted to ensure that serious forensic negligence or misconduct was properly investigated. Instead, the Bush Administration’s Justice Department essentially ignored federal law and let serious problems in crime labs go unaddressed,” said Stephen Saloom, policy director at the Innocence Project, which is affiliated with Benjamin N. Cardozo School of Law at Yeshiva University. “The most serious consequence of the failure to enforce proper oversight is the risk to public safety when innocent people are convicted and perpetrators of crime remain free.”

The Innocence Project, which testified before a responsive Congress multiple times on the Department of Justice’s inadequate enforcement of the Coverdell grant program, released the new report to provide a clear roadmap for how the Obama Administration can improve the management of the program.

“With increased attention on making sure that taxpayer money is spent wisely and that the criminal justice system relies on the best evidence possible, this report outlines what has gone wrong in enforcing forensic oversight requirements and how it can be made right,” Saloom said. In order for the Coverdell grant program to operate as Congress intended, the new Administration must manage the program properly and give grant applicants the tools they need to comply with federal laws, says the report, titled “Investigating Forensic Problems in the United States: How the Federal Government Can Strengthen Oversight Through the Coverdell Grant Program.”

The report includes a survey and analysis by the Innocence Project which found that only 13% of the oversight entities meet all of the requirements under federal law – that they be external and independent, and that they have an appropriate process in place for handling investigations.

The Innocence Project compiled and analyzed data on 256 relationships between Coverdell grant applicants in 2007 and oversight entities they designated (some applicants designated multiple oversight entities, and some oversight entities were designated by multiple applicants, so the survey analyzed every relationship). Of the 256 relationships, 234 could be judged on their independence, externality or their investigative process. Of those that could be analyzed, only 32% of the oversight entities designated by Coverdell grant recipients are both independent and external, according to the survey. Among those that are both independent and external, only 40% also have an appropriate process in place to conduct investigations.

Since the oversight mechanism was passed by Congress nearly five years ago, all 50 states have received federal funding for crime labs and other forensic facilities; in all, an estimated $100 million has been dispersed. Approximately 15 allegations of serious negligence or misconduct affecting the quality of forensic analysis have been filed, which the Innocence Project said is a surprisingly low number that can be attributed to the Justice Department’s inadequate administration of the program (because people do not understand how to file allegations and the proper oversight mechanisms and process aren’t in place to handle them).

“When only 13% of applicants comply with federal law, there are serious problems that need to be fixed,” said Saloom. “The broad systemic problems we found can be directly attributed to the Justice Department’s poor administration of the program, which we hope changes under the new Administration.”

The report describes the federal forensic oversight program; outlines the problems that have plagued the program since its inception (with specific examples); explains the consequences of the federal government’s inadequate administration of the program; shows how forensic negligence and misconduct lead to wrongful convictions; and gives specific recommendations for what the federal government, states and individuals can do to strengthen forensic oversight.

Previously, the U.S. Department of Justice’s Office of the Inspector General, which monitors federal administration of the program, issued two reports outlining serious problems. One report was issued in December 2005, and the second was released in January 2008. The Inspector General’s recommendations have yet to be fully implemented.

The findings in the Innocence Project’s report, released today, include the following problems:

• Designated entities aren’t appropriate for conducting investigations.

• Entities don’t know they’ve been designated to handle investigations.

• Designated entities don’t have an appropriate process for conducting investigations.

• The Department of Justice grants funds to states that aren’t complying with the requirements.

The report also makes note of the potential consequences to the above problems:

• Forensic negligence and misconduct can result in wrongful conviction.

• Real perpetrators may commit additional crimes while innocent people are in prison.

• Problems in labs may not be corrected – further weakening the criminal justice system.

• The public and jurors may lose faith in forensic evidence and the criminal justice system generally when serious forensic problems are not properly addressed.

The report recommends what the federal government, state and local government, and the public can do: Federal government: • Provide better guidance to Coverdell applicants about what qualifies as an independent external government entity.• Provide Coverdell applicants with a clear framework for an “appropriate process” to investigate forensic errors.• Encourage each Coverdell applicant to provide supporting documentation with its grant application.• Make it easier for members of the public to file allegations under the Coverdell program.• Make sure labs are referring allegations to their investigative entities.• Monitor thoroughness and independence of investigations.• Withhold funding when the requirements are not met. State and local government: • Designate appropriate entities and communicate with them about what’s required.• Establish policies to clearly meet the certification requirement.• Facilitate the proper filing of Coverdell allegations. The public: • File allegations under the Coverdell program when appropriate.• Support legislative and executives fixes that can bolster forensic oversight.• The report is being delivered to key members of Congress, Justice Department officials, and state and local government entities who are involved in the program.

2009-03-16T11:32:00.000-04:00

Pa.'s New Innocence Project Based on DNA Evidence

John Ostapkovich-KYW Radio-Philadelphia, PA

Prisons are full of men and women who say they are innocent, and a new effort is underway in Philadelphia to help exonerate some who actually are.

The first DNA-based exoneration took place in 1989 and one of the aims of the newly-formed Pennsylvania Innocence Project is to bring more of that to bear in local cases.

Project co-founder, lawyer David Rudovsky says various similar efforts have freed more than 230 wrongly convicted people nationwide. That's revealed a pattern:

"In 75 to 80% of all cases, in which innocent persons have been exonerated, they were convicted at least in part by eyewitness testimony and that can lead us to come up with better methods of obtaining and presenting eyewitness testimony."

So another goal of the project, formed in conjunction with Temple's law school, is to address the causes of wrongful convictions. The web site is innocenceprojectpa.org.

2009-02-25T11:47:00.000-05:00

Suspect charged in sex-assault case that led to wrongful conviction

February 24, 2009

By Staff from KHOU.COM- Houston, TX

The case that led to the wrongful conviction of Ricardo Rachell has finally been solved, according to prosecutors.

Andrew Wayne Hawthorne was charged Monday with the October 2002 sexual assault of an eight year-old boy.

Ricardo Rachell spent six years in prison for the crime after a jury convicted him in 2003. The District Attorney's Office agreed late last year to his release, after tests showed his DNA did not match that of the assailant.

Testing confirmed that Hawthorne's DNA profile is consistent with the man who assaulted the boy.

Hawthorne is charged with the first-degree felony of aggravated sexual assault of a child.

He faces up to life in prison if convicted.

Hawthorne is already serving a 60-year sentence for three similar attacks on young boys.

District Attorney Pat Lykos commended the hard work of the prosecutors, investigators, and police officers who aided in the investigation that lead to the release of Rachell and charge against Hawthorne.

She said a complete report is being prepared with respect to the Rachell conviction.

2009-02-23T11:45:00.001-05:00

Former Innocence Institute Student Aids in an Exoneration in Missouri

Joshua Kezer is exonerated of the 1992 murder of Angela Mischelle Lawless

Bridget DiCosmo-SE Missourian-Cape Girardeau, Missouri

Last March, when asked how he'd react if ever cleared of the murder conviction that's kept him in prison for nearly 15 years, Joshua C. Kezer said he didn't know what his emotions would be like.

"I'd like to think I'd take a moment to stop and praise God — when you get a miracle, shouldn't you take a minute to stop and thank the one who gave it to you?" he said.

For Kezer, that miracle came Tuesday, when Cole County Judge Richard G. Callahan declared him innocent of the 1992 murder of Angela Mischelle Lawless, exonerating him of the crime he's denied since his arrest in 1993 at the age of 18.

"It's proof that God loves me, it's ... it's just off the chain," Kezer said during a phone interview Tuesday night.

Kezer, still emotional after hearing about the decision hours earlier from his attorneys, struggled to express himself.

"Wow," he kept saying. "Wow."

Kezer remained in the Jefferson City Correctional Center on Tuesday night, but will walk out of prison sometime within the next 10 days barring a decision by Scott County Prosecuting Attorney Paul Boyd to retry him on the second-degree murder and armed criminal action charges.

Boyd did not return a call seeking comment Tuesday as to whether he will make the decision himself or recuse himself, deferring to the Missouri State Attorney General's Office to make the call.

The attorney general's office has been handling the case since a motion alleging Kezer's wrongful conviction was filed last April.

Callahan's ruling came after a 60-day deliberation on evidence presented over three days of testimony in December, during which Kezer's attorney's argued he was innocent of the crime and key evidence that could have exculpated him was illegally kept from his original defense team.

"The Attorney General's Office has reviewed the decision by Judge Callahan, and the matter now rests in the hands of local prosecutors for assessment of the decision and underlying facts to determine what course of action — if any — should follow," said Travis Ford, spokesman for the attorney general's office.

In his opinion, Callahan cited more than 25 pages of key elements of the case that either show Kezer's innocence of the crime or involve suppressed evidence that could have changed a jury's verdict.

Among them were a police report showing an eyewitness identified someone other than Kezer as the man he saw near the crime scene the night Lawless was killed and a statement from the jailhouse informant who implicated Kezer saying he'd made up the story because he wanted a deal on his own charges.

Callahan criticized original prosecutor Kenny Hulshof, then an assistant with the attorney general's office, for mischaracterizing stains on Kezer's leather jacket as blood when he gave his closing argument.

A lab report Hulshof had access to at the time of trial showed the stains were not blood, and later testing revealed they were vegetable juice.

No other physical evidence linked Kezer to the crime.

Hulshof said he maintains Kezer was the right man for the crime.

"Today's opinion goes to great lengths to cast doubt on the credibility of the state's witnesses," Hulshof said in a prepared statement.

"But twelve jurors looked these witnesses in the eye, dispassionately listened to their testimony, and found them to be credible."

Hulshof remained confident in the jury's verdict, he said.

In his opinion, Callahan pointed out that the jury trial was meant to limit the power of prosecutors and judges to incarcerate someone.

"A jury trial is not a shield for prosecutors to avoid difficult charging decisions, and deference to a jury verdict is not a substitute for meaningful judicial review," Callahan wrote.

"In the final analysis, our system of trial by jury is there to protect citizens from its own government, not to protect government from its own mistakes."

The one "bright spot" in the case, Callahan said, was the decision of current Scott County sheriff to reopen the murder investigation in 2006.

Walter has said he did it because he felt there had been more people involved in the murder, but during the course of the investigation, found the case against Kezer began to crumble.

"I feel if the boy wasn't involved he doesn't need to be there — I would think everybody would want that," Walter said.

Walter said he spoke with Lawless' family after learning of the decision, and they indicated they "want the right person in prison for this."

Unsolved homicide

In the meantime, Walter is still left with an unsolved homicide case, he said, though he said he is happy with the decision for Kezer's sake.

"I can't feel good just yet. I want to solve this murder," he said.

Charles Weiss and Steve Snodgrass, two of Kezer's attorneys from the Bryan Cave Law Firm, said they found Callahan's opinion to be strong. Weiss said the judge is a former prosecutor.

"We were elated, all this hard work, and Josh will hopefully get justice," Weiss said.

Weiss said he would be surprised if the state opted to retry Kezer.

"There's no credible evidence left," Weiss said.

Kezer's attorneys said they were unable to reach their client Tuesday morning when they attempted to call him at Jefferson City Correctional Center.

As luck would have it, Weiss and Snodgrass were meeting with Darryl Burton, who was released from Jefferson City Correctional Center last August after Callahan granted a similar motion to the one in Kezer's case.

Burton, who had been at a conference Tuesday, along with Kezer's attorneys, to discuss starting a Missouri innocence project, used contacts gleaned from 24 years in prison to help get a message to Kezer to contact his lawyers.

When his attorneys told him the news, he shouted out loud, Kezer said.

"We got everything we wanted," he said.

He said the prison officials offered him protective custody until his release, but he refused, choosing to spend the remainder of his prison time with friends.

Kezer, who turned 34 Monday, has been incarcerated since his arrest in 1993.

"Is this a birthday present or what?" said his mother, Joan Kezer.

Joan Kezer said she most looks forward to doing ordinary things with her son, trips to Wal-Mart, going out to eat, and "just having him home."

2009-02-10T12:01:00.000-05:00

UK program helps free innocent prisoners

February 10, 2009

By Kelly Berger KENTUCKY KERNEL Lexington, KY

UK law students working on the Kentucky Innocence Project may gain real-world legal experience, but working to prove prisoners’ claims of innocence is the most rewarding part, said the project’s director.

“The most rewarding part is to be there when an innocent person walks out of prison and to see the smiles and tears on the faces of our clients and his family, and the students who have worked so hard to help him,” KIP Project Coordinator Gordon Rahn said. “When that happens, you know you have done something right.”

UK is one of four law schools in Kentucky that offers its students the opportunity to participate in the KIP externship, which helps prove actual claims of innocence by Kentucky prisoners. The program was founded in 2001 and is administrated by the Kentucky Department of Public Advocacy.

Through April 2008, due to the efforts of KIP and the prisoner’s claims of innocence, six men and women have been released from prison. KIP does not limit cases to those where DNA evidence exists.

To enroll in the year-long, four-credit-hour course, students must be a second- or third-year law student.

At UK, the program has given students the chance to help those wrongfully convicted and gain valuable professional skills.

Third-year law student James Kay said he has received a hands-on way to work with clients. It also provides a valuable service, he said.

“Our justice system isn’t perfect, sometimes people fall through the cracks, but it’s good to look back on things because the system doesn’t always work,” Kay said.

Through the program, students are able to learn from the flaws of the legal system and gain a better understanding than they would from a classroom curriculum.

“KIP has taught me a lot more than any law book ever has,” third-year law student Melissa Randall said.

But it isn’t only rewards and success. Rahn has experienced many difficulties with KIP and said the hardest part “is to believe someone is innocent but not be able to find the new evidence required to prove his or her innocence.”

“It is difficult to walk away from that case,” Rahn said.

That challenge is the force that drives the students to work hard on investigations.

“We want to make sure we have looked at everything possible before making that visit to a prison to tell a client that we believe him but we can’t help him,” Rahn said.

2009-02-09T11:34:00.000-05:00

High court to hear Alaska man's DNA appeal

February 9, 2009

By Lisa Demer ANCHORAGE DAILY NEWS Anchorage, AK

Even the defense says it was a brutal crime.

On a cold night in March 1993, a Spenard prostitute got into a red Nissan with two men and agreed to oral sex at a spot nearby. Instead, she was taken to Earthquake Park, where she was raped, beaten, shot, buried in the snow and left for dead.

An Anchorage jury convicted two Fort Richardson soldiers of rape, kidnapping and assault.

All these years later, one of the men, William Osborne, continues to fight for a sophisticated DNA test his lawyers say could prove him innocent.

That type of DNA test can prove identity beyond doubt, but wasn't available during his trial in 1993. His push to retest the contents of a blue condom -- found at the scene and used against him before a jury more than 15 years ago -- now is before the U.S. Supreme Court. Arguments are set for March 2.

The issue is fundamental: Do prisoners have a constitutional right to re-examine evidence after they are convicted?

THE TWO SIDES

The state's answer: "No."

The state agrees that testing the condom could prove Osborne didn't do it. But the state also says there's so much evidence of his guilt that a new DNA test would probably just reaffirm that.

"If there was other doubtful evidence that supported his ... possible innocence, creating some sort of probability that he might be innocent, things might be different," said Ken Rosenstein, the state's lead lawyer on the case. "But it's merely a wish and a prayer at this point."

And that's not reason enough to call a jury verdict into question, Rosenstein said.

Osborne's lawyers are incredulous at the state's position. If it's probably going to cement his guilt, and the defense is willing to pay for the $1,000 test, why not just do it? The test can provide a final answer, perhaps put the lie to Osborne's all-or-nothing trial defense: He wasn't even there that night, his lawyer told jurors. The victim's testimony was a case of mistaken identity.

The battle over Osborne's test has been taken up by The Innocence Project, a New York-based group that goes to court to free wrongfully convicted people through DNA evidence, and also pushes for laws allowing such testing and other reforms.

"We're not talking about vacating a conviction or a retrial or anything like that. We're just talking about a test. What's the big deal? Why can't you give them the test?" said Peter Neufeld, co-director of the Innocence Project.

DNA is different than any other type of evidence -- eye witnesses and recantations and even fingerprints, he said. "DNA is this truth machine."

Alaska legislators are watching the case to see if they need to craft a DNA testing law here, especially against the backdrop of a legislative push in Juneau for a death penalty. Other states, prosecutors, victims and criminal defense lawyers are watching too. One of 10 groups that have filed briefs with the U.S. Supreme Court supporting one side or the other is a collection of prosecutors. They're for the test.

As for Osborne himself, he was paroled in 2007 after serving 14 years on the rape case. Six months later, he was arrested on new charges stemming from a home invasion robbery. In January, he agreed to a plea deal that calls for another 16 years in prison.

He's 36 years old and has been incarcerated most of his adult life. He never expected his request for a DNA test to end up before the U.S. Supreme Court. He doesn't expect that it will make much difference for him.

"I just hope it helps somebody, somewhere down the line, somehow," he said in a jailhouse interview.

ALASKA STANDS ALONE

As far as Osborne's lawyers can tell, Alaska is the only state that has never allowed a convicted defendant to test a DNA sample.

Alaska is one of just six states that have no law specifically permitting inmates access to post-conviction DNA testing. In the other five, either prosecutors consented to testing or courts ordered it, without a law, Neufeld said. No one wants an innocent person imprisoned, he said.

"Most prosecutors want to do justice and they want to get to the truth," he said. Even if they believe deep down that a defendant is guilty, many also reason, "Fine, I'll give them the test. What's the downside? It's just a test -- it's not letting them out of prison."

The state says it's not that simple.

"That might be true but then everybody who is convicted is going to want to have the testing and convictions will never be final. There will never be justice. There will be request after request," Rosenstein said.

Osborne has been trying to get the more sophisticated DNA test since 1997. He's gone to state court, federal court, sometimes both at the same time. In April 2008, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled in his favor. It said he has the right to the DNA test. No matter the result -- guilty or innocent -- "the truth-seeking function of the criminal justice system is furthered in either case," the court said.

The state is appealing that ruling, which is how the case got to the U.S. Supreme Court.

Despite its 12-year fight to block the test for Osborne, the state would be willing to do a DNA test if prosecutors believed it could truly prove a convicted person innocent, said Richard Svobodny, Alaska's deputy attorney general over the criminal division.

Not many Alaska prisoners have asked, Svobodny said. He knows of just two: Osborne and Gregory Marino, whose request was made last year.

Marino, a crack addict, was convicted in 1994 of stabbing a woman to death and leaving her 7-year-old cousin for dead with a slashed throat. His DNA was not found at the bloody crime scene, but he admitted being there an hour before the attack, and the little girl, who knew him, identified him, Svobodny said.

Marino's request for more sophisticated testing "is sitting on my desk," Svobodny said.

Alaska has no guidelines for post-conviction DNA testing. A small group now is working on developing some, in part because of the Osborne case, Svobodny said.

HOW GOOD IS DNA TESTING?

Around the country, 232 people have been exonerated through post-conviction DNA testing. Some had confessed. Some even pleaded guilty. But when DNA testing showed they couldn't have done the crime, they were set free, after spending an average of 12 years in prison, according to the Innocence Project.

Consider the Mississippi case of Kennedy Brewer. He spent seven years on death row after being convicted of killing his girlfriend's 3-year-old daughter back in 1992. He stayed in jail even after a DNA test in 2001 proved he didn't commit the crime; prosecutors wanted to retry him anyhow, according to the Innocence Project. Its investigation led to the real killer, who confessed to the crime and whose DNA matched the semen found on the little girl, according to the project. In 2008, charges against Brewer were dropped and he was exonerated.

And it cuts both ways. Nearly half the post-conviction DNA tests requested by prisoners end up reaffirming guilt -- 42 percent of those handled by the Innocence Project.

The old DNA test done by the prosecution for Osborne's trial found that the fluid in the condom could have come from him. It also could have come from 15 percent to 16 percent of all African Americans, according to his lawyers.

The state argued for years that even if the semen in the condom was not Osborne's, that would prove nothing. Maybe the police picked up the wrong condom at Earthquake Park.

State lawyers finally conceded, in a recent filing to the Supreme Court, that a new DNA test could exonerate Osborne, but stressed that it wouldn't necessarily do so.

The test would absolutely clear him only if it found that cells on the outside of the condom belonged to the victim, and semen on the inside was not Osborne's, the state said.

THE EVIDENCE

Osborne's guilt or innocence is not really the focus of the DNA test case. The real question is whether Alaska prisoners in general have a constitutional right to re-test evidence using science not available when they were convicted.

State lawyers started out years ago denying the test would prove anything. Other evidence against Osborne was overwhelming, prosecutors said. He was seen with his co-defendant both before and after the rape, and some witnesses said he had blood on his clothing. The victim identified him, and Osborne's co-defendant implicated him.

Plus, years after his conviction, Osborne admitted the crime to the Alaska Parole Board, a confession one of his lawyers later said was a lie. Defendants often confess falsely to win release from a parole board or to negotiate a lighter sentence, his lawyers say.

Osborne pushed for a more discriminating DNA test before his trial. But his lawyer at the time was concerned the test -- which required a large and non-degraded sample -- might undercut the claim that he wasn't there.

"Who can argue that this crime wasn't awful?" said Bob Bundy, a former U.S. attorney who is working on Osborne's case. It would be an injustice to the victim if the person who did it got away with it, he said.

And unjust to Osborne if he's the wrong man, and never gets to prove it.

"DOUBLE CHECKING"

A key state senator says he's watching the Osborne case closely for guidance on a DNA testing law for Alaska.

"I'm waiting for the Supreme Court to rule," said Sen. Hollis French, a former prosecutor, now chairman of the Senate Judiciary Committee.

Both French, an Anchorage Democrat, and his House counterpart, Rep. Jay Ramras, a Fairbanks Republican, say DNA testing is likely to come up during debate on whether Alaska should institute a death penalty.

"I will go out of my way to make it a point that is one of the issues that we discuss," said Ramras, who isn't shy about whether he supports the death penalty. "Hell yeah!" he says.

French is generally opposed to a death penalty but said if one were instituted, Alaska would need to allow post-conviction DNA testing. "When the stakes are that high, it just increases the need for accuracy and double-checking, if you will," he said.

Ramras said he couldn't see adding new DNA testing at a time of pinched state revenues but also said that "nobody wants to see incarcerated people who didn't commit the crime stay in jail."

No legislation is likely until next year, and whatever lawmakers come up with won't open the door to everyone trying to get out of prison, French said.

"I still have a prosecutor inside of me," the senator said. "If I pick this up, I'm going to pass one that is tightly written."

OSBORNE'S VIEW

In a recent interview at Cook Inlet Pretrial Facility, Osborne was careful with his words. He never proclaimed his innocence. He said his lawyers don't want him to get into the details of the case.

Osborne comes across as calm and articulate. He seems resigned to whatever happens. His head is shaved and he has a graying beard. Last year while in prison, he married a woman he knew from long ago. She has young twins and they all visit him in jail.

Asked why he wants the test, he said: "It's going to resolve this case for once and for all as to whether or not I'll be able to prove my innocence or my guilt."

What would the test show? Osborne leaned back to think about it. "Can't really answer that question," he finally said.

Osborne was born and raised in South Carolina, graduated high school there. He said he was accepted into The Citadel but it was too expensive, so he joined the Army.

He was just 20 when he was arrested, had his 21st birthday in jail a few days later.

In the years since he's been gone, his mother, grandmother, aunt and three first cousins all died. A daughter he fathered as a teenager now is a teen herself.

In June 2007, after serving 14 years of a 21-year sentence for rape, kidnapping and assault, he was paroled. Six months later, he was accused of being part of a group of masked men who stormed a home looking for drugs and money, who duct-taped and pistol-whipped hostages.

On Jan. 30, he agreed to a plea bargain that requires him to serve 10 years for the robbery and another six years still hanging over him on the old case.

"Even if I was to be found innocent, I can't get back the time I've already done. It's time lost," he said. "So on a certain level, I don't even care about the case anymore because it's just gotten to the point where it's basically something from my past."

But he recognizes the issue is bigger than he is. He wants to win, he said, "so that the next person doesn't have to go through this for the next 12 years."

2009-02-05T13:19:00.000-05:00

Prosecutors, Crime Victims, People Exonerated with DNA Testing and Others Urge U.S. Supreme Court to Recognize Constitutional Right to Post-Conviction DNA Testing

Amicus briefs filed in Innocence Project case set for oral argument March 2 at U.S. Supreme Court

(WASHINGTON, DC; February 5, 2009) – Prosecutors and victims of crime joined people exonerated with DNA testing and leading legal rights organizations this week urging the U.S. Supreme Court to recognize that the federal Constitution allows prisoners access to DNA testing that could prove their innocence.

Five amicus briefs were filed on behalf of William Osborne, an Innocence Project client, who has been seeking DNA testing for eight years to prove his innocence. Osborne was convicted of rape, attempted murder and related charges in 1993 in Alaska. Alaska is one of just six states without a law permitting prisoners to apply for post-conviction DNA testing. Prosecutors in Alaska have refused to permit Osborne to conduct DNA testing at his own expense, even though they concede that favorable DNA results would “conclusively prove Osborne’s innocence.” In 2008, the U.S. Court of Appeals for the Ninth Circuit ruled that it is unconstitutional to deny him access to DNA testing, and the state appealed that ruling to the U.S. Supreme Court, which will hear oral arguments in the case on March 2.

One amicus brief is from current and former prosecutors with nearly a century of prosecutorial experience at the local, state and federal levels, each of whom have substantial experience with DNA testing in criminal cases. Another is from victims and victims’ family members who have been profoundly impacted by post-conviction DNA testing. A third brief was filed by several of the 232 people nationwide who have been exonerated with post-conviction DNA testing, and another was filed by people who were granted clemency because of DNA testing. An amicus brief was also filed by leading civil liberties and legal rights organizations. Each of the briefs is summarized below, with links to the full text.

“These briefs reflect the growing consensus that everyone – prosecutors, defendants, crime victims, the government and society – has an interest in making sure people have access to DNA testing that can prove innocence,” said Peter Neufeld, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. Neufeld will argue the case at the Supreme Court next month. “In the vast majority of cases, prisoners are granted DNA testing under state law or because prosecutors consent to testing without a court order. Alaska is the exception. It is the only state in the nation with no known case of a prisoner receiving DNA testing, either through court order or a prosecutor’s consent. This case involves a very important constitutional protection – one that is the only option for William Osborne.”

For background on the case (including the Innocence Project’s brief filed on behalf of Osborne last week), go to:

Below are summaries of the amicus briefs filed in the case.

Current and Former Prosecutors

https://pointmail1.pointpark.edu/exchweb/bin/redir.asp?URL=http://www.innocenceproject.org/docs/Osborne/Osborne_prosecutors_amicus_brief.pdf

This brief was filed by current and former prosecutors with nearly a century of prosecutorial experience at the local, state and federal levels. They have handled rape and murder cases where DNA testing was relevant, and they have also prosecuted people where evidence indicated guilt but guilt was not certain. Some of them prosecuted people who were later exonerated through DNA testing, and some granted requests for post-conviction DNA testing that exonerated innocent people.

The brief notes that the pursuit for justice is a fundamental crux of our criminal justice system, and modern DNA analysis can, in many cases, fulfill the search for truth. The brief says that, as a result, the majority of prosecutors are willing to review cases where DNA testing could change a verdict – but that relying solely on the unfettered discretion of prosecutors can sanction injustice. The prosecutors argue that a limited federal right to post-conviction DNA testing would pose a minimal burden on state laws and procedures and would not affect state laws that are already in place. The brief also says state and federal resources would not be overwhelmed by a limited federal right to post-conviction DNA testing. (Donald B. Ayer at the law firm of Jones Day is counsel of record on the brief.)

Following are current and former prosecutors who signed the brief:

Janet Reno, former Attorney General of the United States; Thomas M. Breen, former Assistant State’s Attorney in Cook County, Illinois; Kenneth L. Gillis, who served in high-level supervisory positions in the Cook County, Illinois, State’s Attorney’s office for 12 years; Peggy A. Lautenschlager, former Attorney General for the State of Wisconsin; Carl J. Marlinga, who was the elected prosecuting attorney of Macomb County, Michigan (in suburban Detroit); Scott D. McNamara, who was elected to serve as District Attorney of Oneida County, New York, after having been appointed to that position earlier that year; Jim Petro, former Attorney General of Ohio; Craig Watkins, District Attorney for Dallas County, Texas; and Andrea L. Zopp, former assistant United States Attorney for the Northern District of Illinois then Chief of the Narcotics Bureau of the Cook County State’s Attorney’s Office and First Assistant State’s Attorney of Cook County.

Crime Victims and Victim’s Families

https://pointmail1.pointpark.edu/exchweb/bin/redir.asp?URL=http://www.innocenceproject.org/docs/Osborne/Osborne_crime_victims_amicus_brief.pdf

These victims and victims’ family members have been profoundly impacted by post-conviction DNA testing. They include victims whose misidentification of an innocent person resulted in a wrongful conviction later overturned with DNA testing and a woman who was raped by a man who remained at large while an innocent person was in prison for his previous crimes. They also include people who thought their loved ones’ murderers had been convicted – only to learn years later, through post-conviction DNA testing, that innocent people had been wrongfully convicted and justice had not been done.

This brief outlines the ways post-conviction DNA analysis serves and supports victims’ rights and notes that other crime victims and their families are likely to be affected by the resolution of this case. “Amici have all suffered in some way at the hands of criminals, but they have also experienced the power of post-conviction DNA testing to rebalance the scales of justice,” the brief says. While the federal government and all 50 states have passed legislation recognizing the rights of crime victims, the brief notes that innocent defendants should not be punished for crimes they did not commit – something the government and the victims of crime have in common. At the core is the power DNA testing has to determine innocence or guilt and to provide victims, defendants and society with finality. (Kenneth W. Starr at law firm of Kirkland & Ellis is counsel of record on the brief.)

Following are some of the victims and victims’ family members who signed the brief:

Melinda Elkins, who endured her husband’s false conviction for the rape and murder of her mother and the rape of her niece; Tracy Kenellopoulos, who was raped by a man with a history of sexual assaults, who remained at large because an innocent man was wrongfully convicted of his crimes; Jeanette Popp, who watched two innocent men go to prison for her daughter’s rape and murder; and Jennifer Thompson-Cannino, who twice testified against an innocent man she was convinced had raped her; she was victimized by the crime against her, and then by her own guilt when she learned she had misidentified the assailant.

People Exonerated with Post-Conviction DNA Testing

https://pointmail1.pointpark.edu/exchweb/bin/redir.asp?URL=http://www.innocenceproject.org/docs/Osborne/Osborne_exoneree_amicus_brief.pdf

This brief was filed by several of the 232 people nationwide who have been exonerated with post-conviction DNA testing. The brief says they are “uniquely positioned” to help the Supreme Court understand the significance of its decision in this case. The brief – signed by people who falsely confessed to crimes, were misidentified by victims/witnesses or were implicated by unvalidated or improper forensic science, only to later be proven innocent through DNA testing – argues that even when guilt appears overwhelming, access to DNA testing can prove innocence. The brief also says the Supreme Court should recognize that people have a constitutional right not to be incarcerated or executed if they are actually innocent – an issue that the court has never resolved. (Paul A. Engelmayer at the law firm of Wilmer Cutler Pickering Hale and Dorr is counsel of record on the brief.)

Following are people exonerated through DNA testing who signed the brief:

Kirk Bloodsworth, the first person in the country exonerated from death row with DNA testing, after serving nearly nine years on a wrongful conviction for rape and murder in Maryland; Kennedy Brewer, who was exonerated in 2008 after 15 years of incarceration – and a full seven years after DNA testing proved his innocence in the rape and murder of his girlfriend’s three-year-old daughter in Mississippi; Roy Brown, who was sentenced to 25 years to life for murder in New York and served 15 years before he was exonerated through DNA testing in January 2007; Jeffrey Deskovic, who was 16 years old when he falsely confessed to murdering a high school classmate in Westchester County, New York, and served 17 years in prison before a District Attorney consented to advanced DNA testing and he was finally exonerated; Dennis Fritz, who served 11 years in prison in Oklahoma for a rape and murder that DNA eventually proved he didn’t commit; Bruce Godschalk, who secured DNA testing through a federal lawsuit after the District Attorney and state courts denied his request; he was exonerated in two rape cases after serving 15 years in prison; Kevin Green, who was convicted of second-degree murder and attempted murder after the severe beating of his wife resulted in the stillbirth of their unborn child in California. After 17 years in prison, Green was exonerated when state investigators running semen samples from unsolved cases against a new state DNA database matched several crimes to a convicted rapist, who then confessed to the attack on Green’s wife. Ray Krone, who was wrongfully convicted of murder in part because of testimony that his teeth matched bite marks on the victim. He served 10 years in Arizona prison – three of them on death row – before DNA testing proved his innocence; Christopher Ochoa, who falsely confessed to a Texas murder in order to avoid the death penalty and was finally exonerated after 12 years in prison; and Anthony Robinson, who was wrongfully convicted of sexual assault and whose pleas for DNA testing were denied for years before a District Attorney consented and the results proved his innocence.

Civil Liberties and Legal Rights Organizations

https://pointmail1.pointpark.edu/exchweb/bin/redir.asp?URL=http://www.innocenceproject.org/docs/Osborne/ACLU_Rutherford_NACDL_amicus_brief.pdf

Three leading organizations in civil liberties and legal rights filed a brief underscoring the legal principles at stake in this case. The brief argues that under the Constitution’s protection of individual liberty, a state cannot continue to detain someone who conclusively proves through a DNA test that he is innocent of the crime that is the basis for his incarceration. When a person conclusively establishes his innocence through a DNA test, there is no possible legitimate state interest in continuing to detain him, the brief says. The continued imprisonment violates Due Process under any potentially applicable standard. The organizations argue that Due Process also guarantees access to the DNA evidence necessary to establish an actual innocence claim. The same fairness and truth-seeking principles that require pre-trial disclosure of exculpatory evidence also require the government to honor a specific post-trial request for DNA evidence that has the potential to establish actual innocence. (Walter Dellinger and Irving L. Gornstein at the law firm of O’Melveny & Myers are counsel of record on the brief.)

Following are organizations that signed the brief:

The American Civil Liberties Union (ACLU), a nationwide, nonprofit, non-partisan organization with more than 500,000 members dedicated to the principles of liberty and equality embodied in the Constitution; The Rutherford Institute, an international civil liberties and human rights organization headquartered in Charlottesville, Virginia that specializes in providing legal representation without charge to individuals whose civil liberties are threatened or violated; and The National Association of Criminal Defense Lawyers (NACDL), a non-profit organization that is the only professional bar association that represents public and private criminal defense lawyers at the national level.

People Who Received Clemency through Post-Conviction DNA Testing

https://pointmail1.pointpark.edu/exchweb/bin/redir.asp?URL=http://www.innocenceproject.org/docs/Osborne/Osborne_Individuals_Granted_Clemency.pdf

This brief was filed by people who were exonerated when they were granted clemency based on DNA testing post-conviction. The brief notes that if they had been convicted in Alaska, “they could still be in prison today” and discusses the constitutional rights at stake when the innocent seek clemency. Prisoners who can demonstrate their innocence beyond dispute have a uniquely legitimate expectation that they actually will receive clemency. Not only have numerous individuals throughout history received pardons on innocence grounds, many have received clemency on the basis of DNA evidence. Amici are among these individuals. Their brief argues that denying a prisoner access to biological material that could decisively demonstrate his innocence deprives him of his liberty interest in obtaining clemency without due process of law.

The brief outlines the clemency process and the significance of DNA testing in many clemency proceedings. It argues that Alaska’s refusal to grant DNA testing in this case “flouts any possible sense of fair play” and is “perverse.” (Jeffrey L. Fisher at Stanford Law School’s Supreme Court Litigation Clinic is counsel of record on the brief; the law firms of Akin, Gump, Strauss, Hauer & Feld and Howe & Russell also worked on the brief.)

Following are the individuals who have received clemency through DNA testing who signed the brief:

Kenneth Adams, who was exonerated 18 years after being wrongfully convicted in Illinois for rape and murder; Marvin Anderson, who was exonerated 19 years after being wrongfully convicted and imprisoned in Virginia for robbery, forcible sodomy, abduction and two counts of rape; A.B. Butler, who was exonerated after almost 17 years in a Texas prison for aggravated kidnapping and rape; Kevin Byrd, who was exonerated 12 years after being wrongfully convicted and imprisoned in Texas for rape; Michael Evans, who was exonerated 26 years after being convicted in Illinois for a rape and murder he did not commit; Paula Gray, who was pardoned for innocence after serving nine years in prison in Illinois; Dana Holland, who was exonerated after serving 10 years of a 118-year sentence for two separate wrongful convictions for rape, armed robbery and attempted murder; Edward Honaker, who was exonerated after being wrongfully convicted in Virginia of seven counts of sexual assault and rape; Steven Linscott, who was exonerated after serving three years in prison and out on bond for seven years for a wrongful murder conviction in Illinois; Ben Salazar, who was exonerated five years after being wrongfully convicted of aggravated sexual assault of a pregnant woman; and Earl Washington, who was exonerated 16 years after being wrongfully convicted and sentenced to death in Virginia.

2009-01-28T11:40:00.001-05:00

Pedro Miranda to Appear in Hartford Superior Court on Three Murder Charges

Matt Dwyer WTIC RADIO Farmington, CT

Pedro Miranda is scheduled to appear in Hartford Superior Court Tuesday morning.

Miranda is charged with murdering three teenage girls in Hartford in the late 1980's.

He was found recently through the use of DNA testing.

Another man had been convicted in one of the killings, and spent two decades in prison. But lawyers for the Innocence Project recently asked for new DNA tests on behalf of that man, Miguel Roman, as they were attempting to clear his name.

Samples from a crime scene did NOT match Roman, but they DID match another man who was in the law enforcement database -- Miranda.

Miranda has been held on 7.5-million dollars bond since his arrest in December.

2009-01-28T11:25:00.001-05:00

Those cleared by DNA tests struggle to be free By Kevin Johnson, USA TODAY ST. LOUIS — Johnny Briscoe thought his nightmare was over in the summer of 2006 when, after 23 years of proclaiming his innocence, he finally walked out of a Missouri prison. DNA evidence lifted from a cigarette butt should have stripped away any doubt that another man — not Briscoe — had raped and robbed a woman in her suburban St. Louis apartment on Oct. 21, 1982. Yet Briscoe's exoneration, featured by national news organizations, did notfully free him from the persistent doubts of acquaintances and family members about his innocence, or from the emotional scars seared by more than two decades in prison. "Rape," says Briscoe, 54. "Now, that's a provocative word. When I try to explain it, it's a bitter pill." Nearly 90% of the 227 people cleared by DNA evidence since 1989 were convicted of some of the most heinous sex crimes, according to the Innocence Project, which helps inmates prove their innocence through DNA testing. DNA — present in blood, semen and body cells — can be particularly useful in solving sex crimes and often is the most definitive way of determining innocence. Yet not even DNA washes away the lasting stigma that shadows once-convicted sex offenders who are cleared by genetic testing, and the criminal justice system that wrongly jailed them offers little help. Briscoe's plight is part of a silent struggle for a rising number of exonerees. After high-profile releases from prison, they often fend for themselves. Most states did not account for the exonerated when officials started re-entry programs for the hundreds of thousands of offenders released in the U.S. each year. Most are ineligible for basic benefits, such as counseling and job training, that states give guilty offenders when they re-enter society. Despite legislative campaigns to get the wrongfully convicted financial help to compensate for the years lost in prison, 25 states still don't do so. In states that do, the money or services often are offered only if the exonerated waive their right to sue. Such lawsuits seek monetary damages for wrongful convictions and compensation for time in prison. The burden of re-integration into society is heavier for wrongly convicted sex offenders than for other exonerees, says Sim Platek, a New Jersey social worker who counsels exonerees, including those wrongfully convicted of sex crimes. "The shame of it goes deeper than any other shame," he says. "Very rarely do you see people fully recover from this immediately." Charles Chatman, 48, a Dallas-area man freed last year after 26 years in prison, tells of his "shame" in dealing with family members, many of them women, after his wrongful conviction — and even his exoneration — for aggravated rape. Other exonerees, such as Jerry Miller, 50, of suburban Chicago, carry court papers as commonly as driver's licenses to prove to potential employers and others that their convictions were overturned. Miller was convicted in the 1981 rape and kidnapping of a Chicago woman and spent 24 years in prison. He finished his sentence before being exonerated. In 2007, a year after his parole, he was cleared by DNA testing of the victim's clothes. Illinois officials required him to register as a sex offender and attend counseling after his release but before his exoneration. "My picture was on the Internet," he says of the required photo on the public sex offender registry. "I thought prison was bad. But (outside) I was like the scum of the earth." Illinois officials have since removed him from the state's database. James McCloskey, founder of Centurion Ministries, a Princeton, N.J.-based group that works to free the wrongfully convicted, describes the stigma as "a tremendous barrier." "When you hear the word 'rape,' " McCloskey says, "it scares the bejesus out of people." 'Seed of doubt' Rob Warden, executive director of the Center on Wrongful Convictions at Chicago's Northwestern University, says the indignities many exonerees suffer can be mind-boggling. "There are people out there totally exonerated, absolutely innocent who get notices that they need to register as sex offenders," Warden says. Platek says it is not unusual for some, after long periods in prison and protracted struggles to win exoneration, to exhibit symptoms similar to post-traumatic stress disorder. Others, he says, slip into depression, abuse drugs and alcohol or have paralyzing flashbacks to their time in prison. Among states that provide compensation, 10 also offer some tuition, health care or job-search counseling. The Innocence Project and its affiliates are pushing for uniform compensation laws and urging social service agencies to help exonerees. In Texas, for example, a group of defense lawyers got a local clothing store to give shirts, pants and jackets to exonerees who leave prison with no street clothes. Most were wrongfully convicted of sex crimes, and many scramble after their release to find shelter, health care and jobs. Even when they find work, stability can be elusive. One 58-year-old Centurion Ministries client, cleared of rape in 2006, was hired by a New Jersey food store about two years ago, McCloskey says. A prison guard who visited the store recognized the former inmate, and word spread among other workers that the business had hired a sex offender. As a result, McCloskey says, the former inmate was transferred to another store 70 miles away, then fired. Rather than sue the employer and call more attention to himself, he looked for a new job. "There is always that stigma, that seed of doubt that follows these guys," McCloskey says. Miller says he "dreaded" Halloween 2006 after his release from prison because, as a registered sex offender, he could not interact with children. On Halloween, he says, he felt humiliated when three police officers arrived to ensure he was complying. "I was told that if I answered the door, I would be arrested," Miller says. "So, I cut off the lights and sat there by myself. That was pretty tough." 'He was still incarcerated' When Johnny Briscoe came home July 19, 2006, time had rearranged the streetscape of his hometown St. Louis and dramatically altered his family. Close relatives, including his father, had died while he was in prison. His son, Donyea — 2 when Briscoe was convicted — was 25. "I couldn't believe it," says Briscoe, a carpenter and handyman. For months after his release, Briscoe spent most of his time in the tiny, upstairs bedroom of his mother's house. He arranged the room much like his prison cell — everything within arm's reach. "He was acting like he was still incarcerated," says his sister, Ruth Briscoe. "I think he was more scared being out than being in (prison)." Briscoe, a soft-spoken man with an easy smile, felt secure enough to leave home only with a "witness." He believed he needed a companion, usually Ruth, to vouch for his whereabouts and to help him avoid encounters — no matter how innocent — that could leave him vulnerable to accusations. When he did go out, he didn't go far. And he was always back by 10 p.m. "I didn't want to fall into any traps," he says of the sexual assault charges levied against him more than two decades earlier. In that case, a victim whom he had never met, in a part of town he had never visited, picked him out of a police lineup. Mistaken identity by witnesses and victims is one of the most common factors in wrongful convictions, the Innocence Project says. He was included in the lineup after another man who later was implicated in the crime — an acquaintance of Briscoe's — identified himself to the victim as "John Briscoe." The false identification started a chain of events that ended in Briscoe's 1983 conviction and 45-year prison sentence. For about five months, he was in a cell next to the acquaintance, Larry Smith. After suspecting Smith's possible connection, Briscoe confronted Smith outside their cells one day. "He denied it," Briscoe says. Smith is serving a life sentence for a separate sexual assault at the same apartment complex involved in Briscoe's case. Smith was identified in 2006 in the same DNA tests that excluded Briscoe. Although the DNA evidence points to Smith, J.D. Evans, St. Louis County's first assistant prosecutor, says the testing was not conclusive enough to support formal charges against Smith. "For a year and a half (after being released), I was really paranoid," Briscoe says. His ex-wife, Lynette Briscoe, 54, and Donyea also felt uneasy. Lynette, who divorced Briscoe 10 years into his prison term, says she was "angry" he was convicted and she was left alone. Even she was not convinced of her former husband's innocence. Neither was Donyea. Ruth says her nephew came to her after Briscoe's release. "He didn't know how to talk to (his father)," she says. "He was more comfortable asking me, 'Do you think he did that?' " Since then, Johnny Briscoe says he and his son rekindled a relationship denied 23 years ago. Lynette Briscoe, who never remarried, is seeing her former husband again. "Our life was taken away from us," she says, and a "chapter was never closed." Other family members remain distant. "They believe that he's still a convict," Ruth Briscoe says. "I just leave it be," her brother adds. " I can't change it." No simple answers Briscoe's attorney, Burton Newman, says his client is trying to regain a sense of normalcy. Briscoe is suing St. Louis County and four county police officers for his wrongful conviction rather than accept state compensation of $36,000 for every year spent in prison. It could take months to resolve the lawsuit, but he's now comfortable enough to go shopping and run errands alone. Yet his search for full-time work has been a bust. Applications for about a dozen positions have gone unanswered. The sour economy is a factor, but Briscoe suspects many prospective employers are turned off by his background. On each employment application, he says he has acknowledged the conviction and the circumstances of his exoneration. To improve Briscoe's chances of getting work, Newman recently advised him not to admit to the conviction, arguing that it has been wiped away by exoneration. Exonerations clear criminal records, but it often takes time to update the system. Some wait months for pardons. For Briscoe, there is no simple way to deal with questions about his past. "It is my job to convince everyone I didn't do this," he says. Jessie Burnley, Briscoe's 80-year-old mother, has no trouble defending her son. She carries a news clipping of his release — frame and all — to show anybody who asks. "I take it to church, everywhere, to tell (people) that my son is innocent," she says.

2009-01-27T14:18:00.000-05:00

Bite marks highlighted in bid to overturn murder conviction

January 26, 2009

Mike Cruz-Contra Costa Times-Walnut Creek, CA

A pair of forensic dentistry experts say apparent bite marks found on a Summit Valley woman brutally killed at her home in 1997 do not belong to her husband.

The experts' testimony before a Superior Court judge on Monday contradicts opinions they gave more than 10 years earlier during a trial where a High Desert jury convicted William Joseph Richards.

Lawyers for the California Innocence Project called the experts to testify on behalf of Richards in a bid to get his conviction in the death of his wife, Pamela Richards, overturned in San Bernardino Superior Court.

"I think we have someone who has been a victim of a wrongful conviction," said Jan Stiglitz, a lawyer with the Innocence Project who filed for a Writ of Habeas Corpus on behalf of Richards.

After three mistrials in Superior Court, two of which resulted in hung juries, Richards was convicted of first-degree murder in July 1997.

Forensic dentist Dr. Norman Sperber said he testified in 1997 that a lesion on the victim's right hand, between her thumb and forefinger, was consistent with Richards' lower jaw.

Sperber said he originally believed features of the wound matched Richards teeth. But on Monday, Sperber criticized a forensic photograph taken of the wound as being "unreliable and inaccurate," because of angular distortion and positioning of a ruler in the image.

Sperber now has a different conclusion.

"My opinion today is his teeth are not consistent with the lesion on the hand," said Sperber, who has testified as an expert during trials for convicted serial murderers Ted Bundy and Jeffrey Dahmer.

On cross-examination from Deputy District Attorney Grover Merritt, Sperber acknowledged that he recognized back in 1997 that the photo of the hand was distorted, and he did not ask prosecutors to see more.

Gregory Golden, a San Bernardino County special deputy coroner, testified Monday that the bite mark has possible features of a dog bite and that Richards' lineup of teeth does not match up with the injury.

"I would tend to rule out Mr. Richards as a suspect," Golden said.

The 40-year-old victim had been beaten with fist-sized rocks, according to the project's petition. She was then strangled, and her skull was crushed with a stepping stone and cinder block.

The project's petition says DNA evidence taken from under Pamela Richards' fingernails exonerates her husband and points to a third party. DNA evidence also shows someone else held the murder weapon.

Testimony is expected to continue Wednesday.

2009-01-15T10:25:00.002-05:00

Man hoping to get cleared of murder by using Innocence Project

Thursday, January 15, 2009

WHAS TV-Louisville, KY

The man convicted in a 13-year-old murder case went before a judge Wednesday in a parole hearing.

Kerry Porter is in prison for the death of Tyrone Camp. Camp was shot and killed while getting ready for work at Active Transportation in December of 1996.

Porter’s currently serving a 60 year sentence at the Eastern Kentucky correctional complex.

He has applied for the Innocence Project, a program geared toward clearing people of wrong doing. So far the Innocence Project has not filed anything on Porter's behalf.

2009-01-12T11:24:00.000-05:00

Man released from prison after new DNA evidence

January 12, 2009

WBBH TV-MSNBC-Wisconsin

A convicted killer is out of prison after 13 years behind bars.

Chaunte Ott was sentenced to life in prison in 1996 for the murder of a 16-year-old girl in Milwaukee.

Lawyers for the Wisconsin Innocence Project discovered DNA evidence on the girl's body, matching DNA found on two other women who were killed in the same area after Ott was in prison.

A judge ordered Chaunte Ott's release Thursday because of DNA evidence.

"It was like. I can't even express the gratitude I felt for the lawyers who believed in me and seen the facts for what they were," said Ott. "It's a dream come true. "

As for what he'll do now, Ott says he just wants to be a productive person and help his family any we he can.

He did not comment on the possibility of suing the state for the wrongful conviction.

"It still hasn't sunk in," said Ott, "It's like, It's shocking. I can't be happier. "

2008-12-16T12:16:00.003-05:00

Should the DNA of those suspected of a criminal offense be taken and retained?

Tues, December 16, 2008

Irish Times-Dublin, Ireland

HEAD TO HEAD DEBATE:Fine Gael justice spokesman Charles Flanagan says Yes, Tanya Ward of the Irish Council for Civil Liberties says No.

YES:

We need a DNA database to serve as a potent aspect of crime prevention , says CHARLES FLANAGAN.

IT WAS Edmond Locard, the Sherlock Holmes of France, who laid down the law that "every contact leaves a trace". He prophetically articulated this ostensibly simple principle long before DNA tracing was possible. He was, nonetheless, quite right.

Every contact leaves a trace, and it is a trace that can be immeasurably important in the vindication of the rights of victims. In this country in the past few years, we have seen people convicted of rapes and murders committed decades ago due to DNA links. Justice delayed, but justice nevertheless.

We need a DNA database that serves, not just to speedily and cost-effectively create links between crimes and criminals, but to serve as a potent aspect of crime prevention. Recent statistics in England and Wales show half of all police detections involved DNA evidence. What Ireland needs is a criminal DNA database that deters as well as detects.

To that end, practical and proven measures must be taken. It is a responsibility, not a choice. Fine Gael is in favour of the introduction of a criminal DNA database as a practical and proven measure to address crime. DNA material is already used on a case-by-case basis, usually successfully, to prove a suspect's innocence or guilt.

The victim should remain at the centre of all investigations and it is negligence not to avail fully of a facility that provides evidence that can drastically increase the likelihood of a conviction. Fine Gael would go further and seek DNA samples from suspects in certain serious crime investigations that could be retained for a period, possibly until a particular crime is solved. Indeed, inferences could be drawn from a refusal to provide such a sample as is the case in the right to silence. The ultimate objective must be to establish a criminal DNA database that is as comprehensive as a fingerprint database, allowing instant cross-referencing when a crime is committed in which DNA traces are identified.

The need for a comprehensive criminal database is reinforced by the fact that, in most European states, police forces have access to a database recording the DNA profile or genetic fingerprint of convicted sex offenders. No similar database exists in this State to assist the Garda in a serious investigation.

The European Court of Human Rights recently ruled that keeping the DNA records of innocent citizens on a criminal register would breach the human rights convention. Although not strictly bound by the rulings of the court, the Government must carefully consider this judgment in advance of drafting legislation on a DNA database and ensure that any proposals are compliant with our Constitution and EU law.

Notwithstanding this recent ruling, there is a growing consensus that there are many benefits to be gained from DNA records.

The Irish Council for Civil Liberties has acknowledged the benefits of DNA technology in crime investigation. It is also essential that the collation of a DNA database would have to be rigorously policed to retain its credibility.

Imagine this: a rape or murder is committed. The Garda establishes a link between DNA left on the body and the genetic fingerprint of a key suspect. The case goes to court, but due to a technicality, does not result in a conviction. The European court says that keeping DNA material in such circumstances would carry "the risk of stigmatisation". How? The public cannot wander into a forensic science laboratory and make negative judgments against the owners of a sample. The consequence of such woolly thinking is that the presumption of innocence that demands the expunging of DNA from the records may grievously interfere with the possibility of its owner being convicted of a future offence. Another consequence is that the knowledge of their own impunity may empower them to commit such a crime.

Of course every citizen is innocent until proven guilty. Every citizen must live their life free of the assumption that they may commit a crime at some future point. But a balance must be struck between the rights of victims and the rights of suspects, and Fine Gael believes that, in recent years, this balance has tilted too far towards the rights of suspects.

Most civilised nations take measures to monitor convicted sex offenders following their release. Why? Because statistics prove the likelihood that a person who has, say, sexually abused a child is likely to do it again. If we apply the civil libertarian argument, we would not electronically tag or require such offenders to report to Garda stations once they'd served their sentence because we cannot presume their intention to commit a crime in the future.

It is essential we use all technological advances when attempting to solve crimes and that we legislate to make video evidence admissible in court as well as the use of overt and covert surveillance where appropriate. DNA databases are an advance we must capitalise on. • Charles Flanagan TD is Fine Gael spokesman on justice.

NO:

Sweeping up the innocent with the guilty does not fight crime, says Tanya Ward.

THE INDEFINITE retention of DNA profiles of people suspected but not convicted of offences is unnecessary and interferes with the right to respect for privacy. Last year, the Government published legislative proposals to establish a DNA database to aid criminal investigations. The Government proposed to retain biological samples from convicted criminals together with DNA from persons arrested but not convicted of a crime. This was apparently inspired by the system in England and Wales, where DNA samples are retained from anyone arrested for a recordable offence. In a new development, the European Court of Human Rights ruled this month that the English and Welsh system was in breach of the right to privacy.

DNA profiling was first developed in the 1980s and scientists soon pioneered techniques enabling them to generate a profile based on unique parts of a person's DNA molecule. DNA profiling is used in criminal investigations to establish the presence of a suspect at a crime scene.

Investigators will usually seek DNA samples from a suspect's bodily fluids or hair and compare them with "stains" from the scene.

DNA has been used to solve some "cold cases", most notably that of Phyllis Murphy, a Kildare woman who was raped and murdered in 1979. John Crerar was convicted of this crime after volunteering for a mass DNA screening of potential suspects in 2001. DNA has also been used to resolve miscarriages of justice. The US-based Innocence Project has relied upon DNA to exonerate over 200 people who have been wrongly accused by proving they were never at the crime scene.

Despite these positive outcomes, there are limits to DNA technology. DNA can rarely be used by itself to convict without other evidence and profiles cannot be developed if a sample is incomplete. Identification can also be difficult if a scene has been contaminated.

The English and Welsh DNA database holds profiles from almost 6 per cent of the jurisdiction's population. Campaigners are critical of this system as DNA is only relevant to a small number of violent crimes and yet the database holds profiles from 850,000 innocent people, including 200,000 children.

Another concern relates to how DNA information could be exploited. Scientists are discovering genes identifying a predisposition to cancer, Alzheimer's and inherited diseases. Imagine how banks and insurers could use this information when deciding to issue mortgages and life insurance.

The English and Welsh laws on DNA retention have been scrutinised by the European Court of Human Rights in the S and Marper judgment. This challenge was taken by "S" who was 12 when he was charged with attempted robbery in 2001, but later cleared.

Michael Marper, also a party to the case, was charged with harassing his partner in 2001 but the case was later dropped when they reconciled. Both men subsequently asked for their fingerprints and DNA profiles to be destroyed, but south Yorkshire police refused and stated the samples would be retained "to aid criminal investigation". The applicants complained to the courts that their right to respect for privacy under Article 8 of the European Convention on Human Rights was breached. They appealed a negative decision from the House of Lords to Strasbourg.

The European court rejects the claim that sweeping up the innocent with the guilty is necessary to fight crime. Distinguishing between the retention of fingerprints and DNA, it notes DNA contains much more sensitive information.

The court contrasted England and Wales to other European countries, including Ireland, where taking DNA information in criminal cases is limited to special circumstances or more serious crimes. The court was also struck by the "blanket and indiscriminate nature" of the power of retention in England and Wales and compared it with Scotland, where samples are retained for three years only in relation to violent or sexual offences.

The UK government argued for the retention of the current system by providing statistics demonstrating matches from profiles of innocent people to specific crimes scenes. While the court accepted the evidence, it questioned whether these matches could have been made through other means or led to higher conviction rates. Nothing is more personal or private than a person's genetic make-up and the court was unconvinced that retaining innocent people's DNA indefinitely was justifiable, or could be regarded as necessary in a democratic society.

The ECHR Act 2003 requires the Government to carry out its functions in a manner compatible with the convention. This means the Government will have to rethink its proposals on indefinite retention of the DNA of innocent people. As the court made clear, innocent people are entitled to be treated differently from convicted people.

• Tanya Ward is deputy director of the Irish Council for Civil Liberties and a PhD candidate at the school of social justice, University College Dublin.

2008-12-10T12:05:00.001-05:00

NY settles with wrongly imprisoned man for $2.6M

December 10, 2008

The Associated Press- Auburn, NY

An upstate New York man who was wrongly imprisoned for a 1991 murder has been awarded $2.6 million in a settlement with the state.

The settlement was announced Tuesday ahead of a trial to determine the amount due to 47-year-old Roy Brown of Auburn.

Brown was sentenced to 25 years to life after he was convicted in 1992 of second-degree murder in Sabina Kulakowski's death.

Brown served 15 years before the conviction was overturned in January 2007 after DNA evidence linked another man to the crime.

Brown says some of the money will help cover medical bills from a liver transplant he had last year.

He also says he will use some of the funds to help others who have been wrongly imprisoned.

2008-12-08T12:38:00.001-05:00

Troy Davis Seeks New Day In Court

December 8, 2008

WGCL TV-Atlanta, GA

Troy Davis has already been spared from execution three times, and this week his lawyers hope to push his extraordinary case one more step toward his exoneration when they ask a federal panel to let them file another appeal of his death sentence.

As they have argued before, Davis' lawyers will tell the three-judge panel of the 11th Circuit Court of Appeals on Tuesday that their client was the victim of mistaken identity, and note that seven of nine key witnesses that testified against him in the 1991 trial have recanted their statements.

But the hearing likely won't focus entirely on whether Davis was rightly convicted of the 1989 murder of Savannah Police Officer Mark MacPhail. Instead it could turn on whether federal law allows the 40-year-old's attorneys to call for a new trial at all.

Davis' lawyers have struggled to convince a judge at any level to grant him another hearing on claims that he is innocent, partly because much of the evidence they say could lead to his exoneration was revealed after Davis was convicted. The hearing offers them a ripe opportunity to argue that federal laws allow them to pursue such a challenge at this late stage in the process.

In their briefs, Davis' attorneys argue that it is "constitutionally intolerable" to execute Davis without first hearing his innocence claims. They say they could only press the claim that Davis is innocent after they had attempted a range of other appeals.

"It's one of the arguments that can really only be brought after you've exhausted other state avenues of relief," said Jason Ewart, a Davis attorney. "For this claim to be cognizable, you have to show a convincing case of innocence. But one of the issues is whether or not we can bring this case. It's rather nebulous."

Attorneys representing the state say this type of appeal, called a stand-alone innocence claim, could have been made long before Davis' team filed a motion for a new trial in Savannah's Chatham County last year. And they say the courts reviewing the case have already ruled that Davis won't meet high legal standards for a new trial. The hearing will be the latest flashpoint in a case that has attracted widespread attention, sparked dozens of international protests and won Davis the support of former President Jimmy Carter and leading law-and-order advocates who say Davis deserves another day in court.

"Davis is not asking the court to set him free," former FBI Director William S. Sessions wrote in a recent column. "He is asking for the court's permission to give his innocence claims the full hearing they deserve. Our justice system should punish the guilty, free the innocent and have the wisdom to know the difference."

MacPhail was working off-duty as a security guard at a bus station when he rushed to help a homeless man who had been pistol-whipped at a nearby parking lot. The 27-year-old was shot twice when he approached Davis and two other men.

Witnesses identified Davis as the shooter in the 1991 trial, and prosecutors said he wore a "smirk" as he fired the gun. But Davis' lawyers have since argued that new evidence should exonerate their client. And they say three others who did not testify have said another man who testified against Davis at his trial confessed to the killing.

Prosecutors have long argued the case is closed. Savannah District Attorney Spencer Lawton also said he doubts the new testimony meets the legal standards for a new trial, and said the witness recantations invites "a suggestion of manipulation, making it very difficult to believe."

Davis execution was scheduled for July 2007, but it was postponed by Georgia's pardons board less than 24 hours before it was to be carried out. A divided Georgia Supreme Court twice rejected Davis' request for a new trial, and the pardons board turned down another bid for clemency after considering the case again.

As corrections officers prepared for Davis' scheduled Sept. 23 execution, the Supreme Court issued a stay to consider whether to grant him another hearing. A few weeks later, though, the court cleared the way for the execution when it decided against hearing the case.

With legal options dwindling just three days before a third scheduled execution date, Davis' attorneys convinced the 11th Circuit Court of Appeals in Atlanta to stay the execution again. Tuesday's hearing gives them one more chance to press their appeal.

As the case approaches the latest legal hurdle, the Davis and MacPhail families are in limbo.

Davis, who is being held in state prison, longs for another chance to prove he's innocent, said his sister Martina Correia.

"He's gone through a lot in the last year. Having three execution dates in a year is more than most people could bear," she said. "But he's staying faithful, and he's praying that the courts could give him some relief, that they will allow a jury to hear the evidence."

For the MacPhails, the hearing is another painful delay for a family seeking closure for 17 years.

"I don't even know what to expect any more. Every time we think, 'This is it,' something else comes up. I don't know what to expect anymore," said Anneliese MacPhail, the slain officer's 75-year-old mother. "My faith is going down rapidly. This should be over by now."

2008-12-05T15:32:00.003-05:00

Wrongful conviction in killing? Review is on

December 5, 2008

St. Louis Post-Dispatch-St. Louis, MO

A man imprisoned since 1994 for the murder of a southeast Missouri college student testified Wednesday he never saw the woman until he was given a copy of her obituary while he was in jail.

Joshua C. Kezer, 33, has maintained his innocence and contends that he was wrongly convicted. He is serving a 60-year prison sentence for second-degree murder and armed criminal action for the 1992 slaying of college student Angela Mischelle Lawless in Benton.

Cole County Judge Richard Callahan is considering whether there was enough evidence to justify Kezer's 1994 conviction in southeastern Missouri. He can order a new trial for Kezer, order him released or keep him prison.

Kezer, who broke down on the witness stand Wednesday when asked about the guilty verdict, said "it felt like the air got sucked out of the room" when the jury announced its decision.

"I didn't know what I had done that would make them want to do this to me," he said.

The case was one of several high-profile prosecutions led by Kenny Hulshof when he worked for the attorney general's office. Hulshof went on to serve six terms in the U.S. House and was the Republican nominee for governor this year, losing to Democratic Attorney General Jay Nixon.

No physical evidence tied Kezer to the crime.

Key prosecution evidence included the trial testimony of Mark Abbott, who claimed he saw Kezer near the Interstate 55 off-ramp where Lawless' body was found. However, in an interview with Scott City police 10 days after Lawless' death, Abbott had identified a different man as being near the crime scene.

Kezer's appellate attorneys say his original defense lawyer was not told about the police report. They also contend that Abbott — a federal inmate for the past decade in Wisconsin on drug convictions — has changed his account at least five times.

Kezer also was implicated by three Cape Girardeau County jail inmates, some of whom received deals for leniency on their own charges. One of those witnesses recanted and testified for the defense at Kezer's trial, while another told Kezer he made up his account, yet still testified for the prosecution.

On Wednesday, several witnesses called by Kezer's attorneys testified that Abbott and others told them that the wrong man was in prison.

The hearing will resume next week.

2008-12-03T12:23:00.003-05:00

New York Innocence Project Gains Another Exoneration

November 25, 2008

The Innocence Project-New York, NY

Innocence Project client Steven Barnes was released from prison this morning, nearly two decades after he was wrongfully convicted of rape and murder in Oneida County. New DNA test results support Barnes’ longstanding claim of innocence in the 1985 rape and murder of a high school student for which he was convicted in 1989.

Barnes’ conviction highlights the pressing need for national standards in forensic science, the Innocence Project said. Eyewitness testimony at his trial was shaky, but forensic testimony linked him to the crime. The forensic evidence included testimony that soil on Barnes’ truck tires was similar to soil at the crime scene and testimony that an imprint on the outside of Barnes’ truck matched the fabric pattern on a particular brand of jeans the victim wore when she was killed. Neither soil comparison nor jean pattern imprinting is scientifically valid, and they should not be relied on in court without proper bounds and/or experts testifying for both parties, the Innocence Project said.

The Innocence Project began representing Barnes in 1993 and the Oneida County District Attorney agreed to conduct DNA tests on evidence from the crime scene. Those tests were inconclusive because the DNA technology at the time could not yield a profile. In 2007, the Innocence Project reopened the case, and Oneida County District Attorney Scott McNamara agreed to conduct more advanced DNA testing (not available in the 1990s). New DNA test results on material collected from the victim’s body and clothing do not match Barnes, leading to today’s joint motion to throw out his conviction and release him from custody.

“Unvalidated and exaggerated science convicted Steven Barnes and cost him nearly two decades, but real science finally secured his freedom,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “This is the latest in a long line of wrongful convictions based on improper or invalid forensic science that were ultimately overturned through DNA testing. Until there are clear national standards about what kind of forensic science can be allowed in court, more people like Steven Barnes will be wrongfully convicted while the actual perpetrators of violent crime remain at large.”

Although Barnes’ conviction has been vacated and he is free, the indictment against him will not be dismissed (fully exonerating him) until additional investigation is conducted to identify the actual perpetrator(s) in the case. The Innocence Project said it will cooperate with the District Attorney’s Office on that investigation.

“Steven Barnes has a long road ahead to begin rebuilding his life. He will need community support, financial assistance and employment leads,” said Innocence Project Staff Attorney Alba Morales. “Thankfully, his family has been tremendously supportive through this long ordeal, and they are planning a Thanksgiving homecoming that’s been two decades in the making.”

Barnes was 19 years old when 16-year-old Kimberly Simon’s body was found near the Mohawk River in Whitestown, New York. She had been raped and strangled. Four years later, when Barnes was 23 years old, he was tried and convicted for the crime. Eyewitnesses testified that they saw Barnes in town on the evening of the murder, and that they may have seen Barnes and Simon together – but no witnesses could say with certainty that Barnes ever met Simon, let alone that they saw him with her on the night of the murder.

The lack of other evidence put particular weight on the forensic testimony. A criminalist testified that an impression on Barnes’ truck was similar to the fabric pattern and fibers in the jeans the victim wore when she was attacked. She testified that she compared the evidence to other brands of jeans, and determined that they were not similar. The victim wore black Zena brand jeans, which were called “tuxedo jeans” because of their style. Testifying about photos of Zena tuxedo jeans and a slide with the imprint from Barnes’ truck the criminalist testified, “[Y]ou can hold it up to the light and the high contrast will help you to see that the patterns are similar.” Another prosecution witness worked as a salesman for manufacturers, including Zena jeans, and he testified that 24 to 36 pairs of the Zena tuxedo jeans were sold to stores in Oneida County 1985. He claimed that the jeans were “a very unique kind of garment.”

Analysis of jean patterns and comparison of soil have not been tested to determine their scientific validity; as a result, it is impossible to know how many other soil samples might be similar to soil from the crime scene or the likelihood that other jeans have the same pattern (assuming the marks on the truck were from jeans). “Even though these disciplines are not rooted in solid science, they could be used in courtrooms across New York and the country to this day. Much more research is needed to validate the probative value of pattern and impression evidence like bite marks, toolmarks and fabric comparison,” Scheck said. At the request of Congress, the National Academy of Sciences is preparing to release a major report on forensic science nationwide. A blue-ribbon commission has spent 18 months closely examining forensic disciplines that are used in courtrooms nationwide, and the unprecedented report will outline their findings and recommendations for how to ensure that the criminal justice system relies on sound science. Among wrongful convictions overturned through DNA testing nationwide, more than half involved invalid or improper forensic science, according to the Innocence Project, which is affiliated with the Benjamin N. Cardozo School of Law at Yeshiva University.

In New York, 23 people have been exonerated through DNA testing, and 10 of those wrongful convictions involved invalid or improper forensic science. In a report released last year, the Innocence Project concluded that New York State leads the nation in wrongful convictions overturned with DNA testing but lags behind other states in enacting policy reforms to make the criminal justice system more fair and effective. The New York State Bar Association Task Force on Wrongful Convictions is studying this issue, and will issue its report to the NYSBA House of Delegates in January. “Steven Barnes’ case is a reminder that wrongful convictions are very much a reality in New York State, and that very few of the reforms that prevent wrongful convictions – and simultaneously help catch real perpetrators – have been implemented in New York,” Scheck said.

2008-11-18T14:01:00.000-05:00

Attorney for exonerated man says lawsuit being considered

November 18, 2008

KPTM TV Omaha, NE

The attorney for 1 of the six people wrongly convicted in the 1985 rape and murder of a Beatrice woman says he'll contact the six to see if there's interest in filing a lawsuit against the state.

The 1985 case was the first time in Nebraska history that inmates have been freed based on DNA evidence.

Doug Stratton is attorney for Joseph White, 1 of the six exonerated people who served long prison sentences.

Attorney General Jon Bruning has said he will pursue full pardons for all six.

2008-11-12T11:46:00.000-05:00

Cold case re-opened

Point Park forensics students take another look at Lizzie Borden mystery

Wednesday, November 12, 2008

Daniel Malloy-Pittsburgh Post Gazette-Pittsburgh, PA

Though she was the only suspect and was in the house at the time, Lizzie Borden was acquitted of the 1892 ax murders of her father and stepmother in their Fall River, Mass., home because of a lack of evidence.

The sensational trial of Ms. Borden, who was widely considered guilty and even implicated in a nursery rhyme, could have turned out differently, according to some historians, if prosecutors had access to modern investigation techniques. For example, no fingerprints or DNA were taken from an ax found in the basement.

This year, students in the forensics and criminal justice departments at Point Park University will reopen the cold case.

A 1/12-scale model of the Borden house was unveiled yesterday at the school. The model house, about five feet high, was built by students at the Art Institute of Pittsburgh and funded in part by a grant from the PNC Foundation.

"It's a big, glorified dollhouse," said James Hudak, a senior at the Art Institute who worked on the project, "where they found dead people, unfortunately."

The project is part of an effort by the criminal justice and forensics faculty to give a more hands-on learning experience to students, who will use the model house to study the steps investigators take in a murder case.

"You can't show all that on a PowerPoint -- the proportions, the size of the rooms," said Dr. Steven Koehler, an associate professor in the forensic science program.

"You need a big area to swing an ax."

Dr. Koehler dreamed up the idea a couple years ago when he came across the Borden case in a book about unsolved murders. He said the level of detail in diagrams and photographs of the house -- which has since been converted into a bed and breakfast -- made it possible to do a re-creation.

Mr. Hudak said he and a few other students spent a couple months designing and building the house as a project for a class on building miniature movie set pieces. Each floor of the house can be removed and examined, so you can see the second-floor bedroom where Abby Borden was found, the first-floor living room with Andrew Borden's miniature corpse, and the cellar where the ax was found.

Classes will begin using the model in the spring semester, and Point Park and the Art Institute already are planning another scale model for next year: The assassination of John F. Kennedy -- complete with grassy knoll -- which will be used to study ballistics.

2008-11-10T11:35:00.001-05:00

D.N.A. Challenge Ruling

November 10, 2008

WBKO-Bowling Green, KY

A separate death row inmate has lost his bid to use D.N.A. testing to overturn his conviction and sentence.

Jefferson Circuit Judge James Shake ruled Friday that because D.N.A. tests in the case of 50-year-old Brian Keith Moore were inconclusive, there's nothing to undercut evidence presented at his trial for the 1979 murder of Virgil Harris in Louisville.

A jacket and shirt prosecutors say were worn by the killer were tested for D.N.A.

Samples from at least three people were found, but Moore could not be excluded as on of the donors.

2008-11-03T12:49:00.001-05:00

UVa group aims to review death penalty cases

November 3, 2008

Charlottesville Daily Progress-Charlottesville, VA

Earlier in his studies at the University Of Virginia School Of Law, third-year law student James Cass spent a summer reading court opinions in cases that were later exonerated because of DNA evidence.

“To me, it became very apparent that they were innocent,” Cass said, “… even if a person is innocent, that alone is not enough to help them.”

That experience inspired Cass to get into UVa’s new Innocence Project Clinic. The 12-student clinic, which is a member of the Innocence Network, is reviewing death penalty cases to see if the students can overturn wrongful convictions.

The clinic is headed by Deirdre Enright, who said she was asked by the law school’s former dean to propose the student-requested project.

Enright, a 1992 UVa law graduate who has represented inmates facing the death penalty in Mississippi and Virginia, started the local office of the Virginia Capital Resource Center with her husband. She also represented Darrell Rice, who briefly was accused of being the “Route 29 stalker.”

Mary Martin, an investigator who works with the class, said the clinic takes the theory that the law students learn and helps them turn it into practice.

“I think that it makes the law flesh and blood,” Martin said. “This is really what has happened. It’s real life, when prosecution goes awry and evidence isn’t there.”

With the guidance of Enright and Martin, the clinic’s 12 students are researching cases handed down from the busy caseloads of the Mid-Atlantic Innocence Project and the New York-based Innocence Project. Unlike some other innocence projects, UVa’s clinic will handle cases without DNA evidence.

“You shouldn’t be spared a second look just because you were unlucky enough to be falsely accused and not have any DNA evidence,” Enright said.

Students don’t necessarily have much to work with when they first start researching a case. Enright said clients sentenced to the death penalty sometimes only have a letter or a police report to pass on so that their appeal can begin. The research process can include requesting files under the Freedom of Information Act, knocking on doors and trying to track down decades-old evidence.

Diana Wielocha, a second-year law student, has already interviewed one potential client who was accused of rape and burglary. The grandfatherly man, who Wielocha said has been imprisoned for more than two decades, told her that he wasn’t in the state in which the crime occurred at the time.

Finding evidence of bad lawyering hasn’t caused the clinic students to shy away from their chosen path. For second-year student Kelly Hodges, it has made her want to be there for people even more than before.

Cass said it has reinforced his faith in his future career.

“It really makes me feel like less of a lawyer and more of an advocate, and that is what these people need,” he said.

If the clients whose cases are being reviewed by the clinic decide to hire them and go forward, Enright said she and Martin would keep the appeals moving forward. Enright said most of her clinic students probably won’t be criminal lawyers, but she hopes that the clinic will inspire them to take on an Innocence Project case.

2008-10-28T11:17:00.002-04:00

Tankleff: New Firm Will Fight Wrongful Convictions

October 28, 2008

Juliet Papa-1010 Wins-New York, NY

Marty Tankleff wrote 50,000 letters during his 17 years behind bars proclaiming his innocence in the murder of his parents.

"I don't want to have to hear another person say I wrote 50,000 letters to get out of prison," Tankleff said.

Tankleff served 17 years in prison for the 1988 murder of his parents before he was exonerated in 2008 based on evidence secured by investigator Jay Salpeter.

Tankleff and Salpeter are now part of the Fortress Innocence Project -- the first national firm focused exclusively on investigating wrongful convictions. The pair along with others, including Ruben "Hurricane" Carter (pictured), announced the formation of the firm Monday.

"Hurricane" Carter did 20 years and faced execution before he was released and now offers hope.

"The truth will live on...because the truth is invincible," Carter said.

The organization is also seeking legislative help in monitoring law enforcement agencies and improving their practices.

2008-10-23T12:48:00.000-04:00

Wrongly convicted Fla. man pardoned

October 23, 2008

Bill Kaczor-Fort Mill Times-Fort Mill, SC

Alan Crotzer already has received $1.25 million in compensation for spending more than 24 years in prison for crimes he didn't commit, and Tuesday he was pardoned for two other offenses.

Gov. Charlie Crist and the Florida Cabinet unanimously forgave him for stealing beer in 1979 when he was 18 years old and introducing contraband - marijuana - while he was in prison in 1991.

"I just think it's important that when somebody obviously has changed their life that you recognize that, you give them a second chance," Crist said. "I'm very proud of Alan Crotzer."

Crist had urged the Legislature to pass Crotzer's compensation bill and he signed it into law earlier this year.

Crotzer was released after 24 years, 6 months and 13 days when DNA evidence in 2006 proved he was innocent of abducting and raping two women from a Tampa home during a robbery. He doesn't need a pardon for those 1982 convictions because they have been overturned in court.

He hopes the pardon will help him achieve his dream of returning to prison as an inspector for the Department of Corrections.

"I put so much behind me, but there's so much in front of me I've got to do," Crotzer said afterward. "Prison offers nothing but corruption and chaos and mayhem. They can hardly feed them, clothe them or house them, and there needs to be some reform."

The governor and Cabinet, sitting as the Board of Executive Clemency, also ordered that records of the two crimes be expunged, although a lawyer for the Florida Department of Law Enforcement argued that couldn't be done.

FDLE Assistant General Counsel John Booth cited a 2004 Florida Supreme Court ruling saying under state law a pardon cannot be used to expunge records when there's a guilty finding because it "does not have the effect of eliminating guilt or the fact of conviction." It can be used, though, is cases where judges withhold adjudication of guilt.

Justice Harry Lee Anstead dissented from the 6-1 ruling. He wrote that the majority had overturned a legal precedent going back more than a century that says a pardon "blots out the existence of guilt."

Crist said the law is whatever the Supreme Court says it is on any given day.

"They have a couple new members over there don't they? A couple might come," Crist said. "We can, if we want, send them a test."

Crist recently appointed two new justices and two more are leaving next year, including Anstead, who will reach the mandatory retirement age of 70 in March.

"There is gray area," said Crotzer's lawyer, Mark Schlakman, board chairman of the Innocence Project of Florida. "The governor and Cabinet sitting as the Clemency Board have extraordinary power, virtually unbridled power within this realm."

Crotzer, 47, said he wants to keep showing the world "I'm not that monster they try to make me be. I am a new person."

Until the compensation bill was enacted, Crotzer supported himself by working for a plant nursery in Tallahassee, where he now lives. He's now working part-time for the Department of Juvenile Justice speaking with young delinquents about what can happen to them if they don't turn away from crime.

Although wrongly convicted in 1982, Crotzer acknowledged he erred in the beer theft, which resulted in a robbery conviction. He said he remained outside a store while some friends went in to take the beer.

Crotzer told the board he took the rap for bringing marijuana into prison rather than snitch on a guard. He said the guard smuggled it in and ordered him to sell it.

"They knew somebody brought it to me, but they wanted me tell on him, and I couldn't tell on him and survive I don't think," Crotzer said.

He is one of nine Florida convicts proven innocent by DNA. Eight have been freed. One died just before he was exonerated.

2008-10-20T11:42:00.000-04:00

DNA Evidence Frees 2nd Man

Thomas Winslow Was Convicted In Rape, Murder Of 68-Year-Old Woman

October 20, 2008

KETV.com-Omaha, NE

Thomas Winslow, the second man convicted in the rape and murder of a woman 19 years ago, was released from prison Friday after DNA evidence cast doubt on his conviction.

His co-defendant, Joseph White, was the first man in Nebraska to be released from prison on proof of DNA evidence.

Winslow will finish paper work in Gage County, Neb., and then head to Omaha, where he'll be discharged from the Omaha Correctional Center. Winslow said the ruling was a longtime coming.

In a statement, Winslow said that law enforcement had told him physical evidence and testimony proved his guilt, though he had no memory of committing the crimes of which he was accused.

He said he had spent many years in prison actually believing he was guilty. "Unless someone has been accused of a crime as terrible as what happened to Mrs. Wilson and are told repeatedly by the police and the prosecutor that they have the evidence that will put them in the electric chair, you simply cannot understand the fear and the pressure I was experiencing," Winslow wrote. "

Winslow, along with Joseph White, was convicted in the rape and murder of 68-year-old Helen Wilson.

DNA evidence also could not place six other co-defendants at the crime scene. It did point to a third person, whom authorities are still seeking.

"That evidence clearly shows there was a third individual involved," said Gage County attorney Randy Ritnour on Wednesday. "That cast doubt on the testimony of everybody who testified in White's trial, because none of them mentioned this particular individual."

2008-10-15T11:20:00.000-04:00

Capital Punishment Opponents Tour State of Montana

October 15, 2008

Flathead Beacon-Kalispell, MT

David Kaczysnki’s brother Ted, cemented in history as the “Unabomber,” will never be executed. Instead he will spend the rest of his life in prison, a reality that David embraces. But David, who originally tipped off authorities about his brother, is fully aware of how Ted arrived at the life sentence: a government-appointed, all-star defense team; a multi-million dollar trial and, in almost all regards, a lot more help than the average death row inmate ever receives.

To date, 130 death row inmates have been exonerated by DNA evidence and opponents of capital punishment, like David Kaczynski, say it’s clear that many of those inmates never received proper legal representation. That’s a major reason Kaczynski recently wrapped up an 11-day speaking tour across Montana with other anti-death penalty advocates to encourage Montana to abolish capital punishment. Last year, New Jersey became the first state to get rid of capital punishment since the U.S. Supreme Court restored it in 1976. Courts in other states like New York have ruled that the death penalty is unconstitutional.

“We have a delivery system and that system is failing,” Kaczynski said in an interview.

On Oct. 6, Kaczynski was one of five speakers who told their stories at Kalispell’s Museum at Central School as part of a national anti-death penalty movement called Journey of Hope…Violence to Healing, sponsored here by the Montana Abolition Coalition. The tour hit 50 locations throughout the state between Oct. 2 and Oct. 12. Speakers included family members of both victims and the convicted, as well ex-death row inmates who were exonerated.

The tour comes at the home stretch of election season, and capital punishment will once again be an issue at the 2009 Montana Legislature. In the 2007 session the Senate passed a bill to abolish the death penalty in Montana and replace it with life without the possibility of parole. The Montana House Judiciary Committee ultimately tabled the bill by a margin of one vote. Lethal injection, which has recently been questioned in court nationwide for its constitutionality, is the only form of death penalty in Montana.

One of Montana’s two death row inmates, Ronald Allen Smith, has been in the news over the past year because officials in Canada, his home country, stated that they wouldn’t save him from execution in Montana for murders he committed in Flathead County in 1982. The death penalty is illegal in Canada.

In an interview following the Kalispell presentation, Kaczynski said capital punishment affects people in tangible ways, not the least of which is what he calls a drain on resources, both human and financial. To emphasize his point he said that before a court declared the death penalty unconstitutional in New York, the state spent $200 million on seven death row inmates who were never executed. He also said that in his brother’s trial the federal government “spent $5 million to kill him and $3 million to save his life.”

“This really isn’t about sympathy,” Kaczynski said. “It’s about compassion on one level, but it’s really about rationality."

Kaczynski said his fight against the death penalty began after he received a phone call from Bill Babbitt, whose brother Manny was convicted of murder in California. Upon reviewing the details of Manny’s case and comparing them to his brother’s, he said he saw clear injustices in the legal system.

The high-profile case of his Harvard-educated, white brother, Kaczynski said, produced very different results than for Babbitt, an un-educated black Marine who served in Vietnam. Despite similarities in the case – both men were diagnosed schizophrenics and charged with first-degree murder – Babbitt was given the death penalty. During trial, Kaczynski said Babbitt was stuck with an alcoholic attorney who lacked criminal trial experience and who was later disbarred. The poor, colored and mentally ill, Kaczynski believes, are unfairly targeted by capital punishment.

“My concern is we’re executing a lot more Manny Babbitts in the country than we are Ted Kaczynskis,” he said.

Shujaa Graham, who also spoke in Kalispell, said while he was in prison for robbery in California in the 1970s, he was charged with the murder of a guard. Graham spent four years on death row until an outside movement persuaded authorities to give him one more trial. He was then proven innocent and exonerated, but he says today, “I’ve been out 20 years and I still struggle every day.”

“I’m here in spite of the system, not because of the system,” Graham said.

Among the other speakers on Oct. 6 was Bud Welch, whose daughter was killed in the 1995 Oklahoma City bombings. Welch said he was always an opponent of the death penalty but after the bombings he struggled with that belief. It wasn’t until he met Timothy McVeigh’s father and saw the pain it inflicted on the McVeigh family as well as his own that he again grew strong in his anti-capital punishment beliefs.

“(Execution) would be an act of revenge and hate,” Welch said. “Revenge and hate simply was not part of my healing process.”

Kaczynski thinks the judicial system should use its resources better.

“If we invest that energy in crime prevention and healing for victims’ families, it’s really a no-brainer,” Kaczynski said. “Instead of investing all the money in something negative, put it in something positive.”

2008-10-14T10:49:00.001-04:00

Prosecutor in one of Dallas County's DNA exonerations no longer supports death penalty

October 14, 2008

Jennifer Emily-Dallas-Morning News- Dallas, TX

James A. Fry, who prosecuted Dallas County exoneree Charles Chatman, said he is "shaken to the core" because of the number of exonerations throughout the country and problems with eye witness testimony.

Once a staunch supporter of capital punishment, Mr. Fry said no longer supports it because of the problems in the criminal justice system highlighted by the exonerations.

"I don't think the system can prove who is guilty and who is innocent," he said in an interview at his office in Sherman where he practices family law.

Mr. Fry prosecuted Mr. Chatman in 1981 for the rape of the exonerated man's former neighbor. Mr. Fry said that at the time, he believed the victim had correctly picked out Mr. Chatman from a photo lineup.

This week, The Dallas Morning News is running stories from its 8-month examination of the county's 19 DNA exonerations that show that eyewitness testimony can be flawed.

Dallas County has had more DNA exonerations than any other local jurisdiction since 2001 when the state began allowing post-conviction DNA testing. Unlike most other counties, Dallas County has preserved decades of evidence.

2008-10-13T10:38:00.002-04:00

DNA Exonerations

The Dallas Morning-News examined flawed police and prosecution practices that put men behind bars. Click on the link for the entire story.

2008-10-09T11:48:00.001-04:00

DNA Deadline

October 9, 2008

Detroit Metro Times- Detroit, MI

Requests for DNA testing from about 150 Michigan prisoners crowd Donna McKneelen's office at the Innocence Project at Cooley Law School in Lansing, where she's co-director.

She wonders if she'll have time to usher petitions for testing — which could prove some of the inmates were wrongfully convicted — through the court system in the next three months. The deadline looms because Michigan's law allowing post-conviction testing of DNA evidence expires in December.

Earlier this year, the Michigan House passed a bill to extend the measure to 2012, but that legislation is stalled in the state Senate. If it's not passed by the session's end in December, prisoners' ability to use testing to prove their innocence is gone.

"This is the last opportunity for these inmates," McKneelen says. "There's no process left. If they don't file under this statute there is no other avenue for them to get DNA testing."

Wayne Kuipers (R-Holland) chairs the Senate Judiciary Committee, which the bill must pass to reach the full chamber. He did not return several telephone calls and e-mails seeking comment.

Three Michigan men have been exonerated by DNA testing: Eddie Joe Lloyd, was released in 2001 after the national Innocence Project in New York handled his case, and Ken Wyniemko and Nathaniel Hatchett left prison in 2003 and in April, respectively, after Cooley attorneys requested testing that proved their innocence.

Michigan's exonerations are among 220 the Innocence Project reports nationwide. "DNA is a credible, powerful scientific tool," says Marla Mitchell-Cichon, co-director of the Cooley project with McKneelen. "Its use in post-conviction cases should continue."

In 2000, the Michigan Legislature passed the law allowing DNA testing in cases where evidence existed, hadn't been analyzed before trial and could exonerate the convicted person. It became effective Jan. 1, 2001 but was limited to eight years.

Lawmakers enacted the deadline because they were worried about flooding the courts with requests and figured that eight years was enough time to process cases in the pre-DNA era. But the Cooley project — Michigan's only organization dedicated to such work — hasn't been able to complete investigations into the 3,500 requests they've received. Some 150 requests are yet to be vetted.

The research is lengthy, McKneelen says, because while the law allows evidence to be tested, there is no requirement police or prosecutors automatically provide that evidence. So McKneelen and the students must first determine if evidence even exists; that can take months of Freedom of Information Act requests or negotiations with police departments.

"Some departments are absolutely wonderful. They're organized. There are records for everything. They're cooperative. But unfortunately that's not the case in all counties. There are some counties that are far more difficult than others," she says.

Since 2001, the Cooley team has submitted 13 cases for screening, including Hatchett's and Wyniemko's. Some other tests proved guilt or were inconclusive. Results in at least four cases are due in the next several months.

Now, the December deadline for post-conviction testing in Michigan has McKneelen worried about those last 150 requests.

"We really are up against trying to determine whether to file all the cases we have remaining, even those cases that we've not completed the investigation in," she says. "We don't file frivolous claims. That's why we still need the statute."

Scientific improvements also have increased the possibility of testing in old cases. If samples were small or contained more than one person's DNA, earlier tests could have been inconclusive, but today's technology could yield a result.

"We can now go back and ask for further testing and we could get a result. We have this constantly changing technology," McKneelen says.

Rep. Paul Condino (D-Southfield), chair of the House Judiciary Committee, says he's optimistic that after the November election, the Legislature will resume work on the DNA bill and other measures. "I remain convinced that they will move the bill during the lame duck session," he says.

McKneelen says enacting the testing law is a matter of public safety. "Unless the state Senate makes this bill a priority," she says, "innocent people will remain in prison while the actual perpetrators of crime remain at large."

2008-10-07T10:46:00.001-04:00

How People Tell Cops They're Guilty Even When They Aren't

Untrue Confessions

October 6, 2008

Emily Horowitz-Counter Punch-Petrolia, CA

Khemwatie Bedessie, a 39-year-old immigrant woman in New York City, was convicted last year of raping a 4-year-old at a daycare center in Queens, though the facts of the case strongly suggest she is innocent. Her conviction resulted solely from a confession, which she says is false and was coerced from her by a detective.

In the 1930s, the Supreme Court outlawed “the third degree” during police questioning. Interrogators can no longer beat people, keep them awake for days, or threaten them with death to get a confession. Rogue behavior still surfaces. Chicago is still investigating a police district that routinely applied electric shocks to suspects less than a generation ago. But this isn’t the Depression Era, and coercive interrogations are no longer supposed to be allowed.

It’s not the 1980s, either. That decade marked the eruption of the McMartin Preschool case, in which several California childcare workers, among them elderly women, were accused of most bizarre and extreme sex abuse against children. McMartin, with its claims of mutilated rabbits and sodomy in underground tunnels, turned into the longest and most expensive criminal case in U.S. history, before it collapsed in 1990, with acquittals and hung juries. Dozens of copycat cases from the same period have since been debunked, and today child protection authorities tell us they know child sex abuse investigations can go haywire, but they have ways to keep them on track so people aren’t treated unjustly.

Even so, Khemwatie Bedessie was accused and convicted without any substantial evidence, except for her confession. Was it really coerced and false, as she claims? We’ll probably never know for sure because police didn’t record the interrogation that led to her self-incriminating statements. Lack of recording is one reason Bedessie deserves the benefit of the doubt. Her interrogation should have been videotaped, just as all questioning should be when people are detained during investigation of serious crimes. Among law enforcement agencies around the country, videotaping is catching on, and that’s laudable. But even if taping becomes universal, it won’t come near to eliminating false convictions based on false confessions. To make a real dent in the problem, we need to first recognize that when it comes to investigating crimes, we’re still in the epoch of the Inquisition.

Bedessie case is instructive, and it has a back story. She is one of nine siblings from Guyana, and grew up very poor there. At age 3, she was kicked in the head by a donkey; after that she suffered bouts of writhing and foaming at the mouth, which her family calls “seizures” or “anxiety attacks.” She never received medical treatment for them, and because classmates teased her about the attacks she dropped out of school after fifth grade. She cannot add or subtract small numbers, and her writing looks like a 7-year-old’s. After coming to the United States five years ago, she lived with her mother and worked 11-hour shifts, doing cleaning at a small daycare center in Queens. There she was known by the children as “Teacher” and by their parents as “Anita.”

One preschooler was a boy I will call Sam. At Bedessie’s trial this spring, Sam’s mother testified that when she first put him in daycare at age two so she could take a job, she was anxious about leaving him. Soon she started asking him if anyone there was sexually abusing him. She asked randomly and frequently. “No, mommy,” Sam always replied.

Then, one day in winter 2006, Sam developed a fever and a rash on his buttocks. At the doctor’s, he was diagnosed with flu. But his mother, again, felt worried. Again, she asked him about abuse. This time Sam, now 4, said “yes.” Taken to a hospital, he told a nurse he’d been raped by “Anita” – not his name for Bedessie but his mother’s. A police officer was called, but Sam would not repeat the statement. And medical personnel did not change their diagnosis of the rash. They still made no finding that it was caused by sexual abuse.

That left nothing except a preschooler’s word – which was spotty, and could have been tainted by his mother’s constant questions. And there was another problem with the case: it is astronomically rare for females as old as Bedessie to commit sex crimes against tiny children. Given this fact, what is the probability that the rape of a 4-year-old by a middle-aged woman would be discovered purely by accident, by questioning a child whose original complaint – which triggered the questions to begin with – had nothing to do with sex abuse? The likelihood is miniscule. The most probable explanation for Sam’s allegation of rape is that it was false, evoked by his mother’s fears and the boy’s suggestibility.

Not surprisingly, the detective in charge of the case, Ivan Borbon, was getting nowhere after a week of investigating. But instead of calling it quits, he decided to bring Bedessie in for questioning. Wearing plain clothes and driving an unmarked car, Borbon arrived at the day care at 9 a.m. one day. Bedessie said she thought he was a child protection worker. Borbon did not alert her to the misconception, and he told her they were going to his “child protection” office. It turned out to be a police interrogation room. There, Bedessie later testified, Borbon began cursing at her and calling her a child molester. He displayed a tape recorder and said he’d “wired” Sam. He claimed he had, on tape, the sounds of Bedessie forcing the child to have intercourse with her in the daycare bathroom. Incredulous, she asked him to play the tape. He refused, cursed some more, and said Bedessie had two choices. She could say then and there that she had raped Sam and she would be released to go home. Or – as she put it at trial – she could continue to profess innocence and “go to Rikers and never see my mommy” again.

“I do whatever he tell me to do,” Bedessie later testified. She says she has no memory of confessing (family members say she dissociates when she has her “anxiety attacks”).

But she did make a confession, after only three hours in custody. It was videotaped. In her statement, she responds to questioning by describing being fully penetrated sexually, for several minutes, on a toilet, by preschooler Sam. She characterizes the penis of this 4-year-old as being as long as a ballpoint pen, and of “about two inch thickness.” She speaks a notably creolized English, and it is not clear she understands everything she is asked. At trial a year later, she said she did not know the meaning of the words “masturbation,” “stroking,” “orgasm” or “immoral.”

Bedessie’s attorneys tried to put a witness on the stand: Richard Ofshe, an internationally recognized expert in false confessions. The judge would not allow it. He said the jury could make up its own mind about the veracity of Bedessie’s incriminating videotape. After only a couple of hours’ deliberation, they convicted her.

Though Ofshe did not testify, he watched Bedessie’s confession and interviewed her before her trial. He finds her account of coercion very credible, and says many people make false confessions after much less time than the three hours it took for Bedessie to begin her statement. Her description of the interrogation, Ofshe says, sounds like many others he has heard, in which evidence later surfaced to show that the defendant was innocent, even though he or she had earlier confessed. Ofshe and every other researcher who has studied false confessions note that they are easily extracted by interrogators. That’s because of how interrogation works – even when it’s done legally.

The Arizona v. Miranda decision, with its caveats about the right to stay silent and its offers of lawyers, was issued by the Supreme Court in 1966. Since then, legal police questioning supposedly has dispensed with 24/7 marathons and physical assault. Now, interrogations concentrate on psychology. But even when everything is on the up and up , questioning in detention is no tea party. According to the law, cops can get people to talk by yelling, insulting them, invading their personal space, saying there’s evidence when there isn’t, and feigning sympathy about the crime (“After all, she was dressed like a slut. I know she was asking for it, huh?”).

A widely used training manual recommends that the interrogator physically crowd up next to the suspect and insist he or she is guilty, cutting off any bodily or verbal protestation of innocence. “The interrogator must rely on an oppressive atmosphere of dogged persistence,” advises the manual, “leaving the subject no prospect of surcease. He must dominate the subject and overwhelm him.” These techniques “suggest that only confession will bring interrogation to an end.” In this way, the manual instructs, it is possible “to induce the suspect to talk without resorting to duress or coercion.”

But, at some point on the continuum of trickery, duress and threats, cops can step over a line. The resulting confession is what most people think of when they read reports from organizations such as the Innocence Project. According to that group, in over of quarter of DNA exonerations, innocent defendants pleaded guilty or made false confessions. Many such confessions and pleas were produced because police officers promised leniency at sentencing in exchange for a confession. Such deals are not allowed. Or the interrogator threatened bodily harm, warning the suspect, for instance, that confessing would be the only way to avoid the death penalty. (Bedessie says that Borbon, the detective who interrogated her, told her about the terrible treatment accused child molesters get at Rikers. He said she could avoid going there by confessing).

According to a raft of social science and psychology research done over the past two decades, techniques like these are especially likely to produce false confessions when used on juveniles, the mentally ill, the poorly schooled, immigrants, and those with impaired cognition (Bedessie fits at least two of these categories).

It’s also agreed that illegal practices occur frequently in the interrogation room, and that cops later lie about them on the stand. And when there is an argument about veracity, research suggests that no group of people – not judges, prosecutors or juries – can tell whether a confession is true or false simply by reading a transcript or watching the video. That is why not just the confession should be recorded, but also the full interrogation that led up to it. The idea is to avoid methods that – as the Supreme Court has put it – “shock the conscience” and “offend the community’s sense of fair play and decency.”

Ten years ago, only two states were recording interrogations. Now, nine states and the District of Columbia do, and they are joined by more than 500 local police departments nationwide (some record only for murder cases, others for lesser felonies as well). Increasingly, taping is the trend. It’s spreading relatively slowly, but it’s spreading, says Northwestern University legal scholar Steven Drizin, an expert on false confessions who has advocated for taping for years. He thinks the scales would really tip if federal agencies started making recordings.

So far, the feds have said “no.” But last year, media eyebrows were raised when the DOJ released documents related to how eight U.S. Attorneys were fired under former Attorney General Alberto Gonzales’ watch. Speculation is that one of the fired attorneys, Paul Charlton, in Arizona, was let go because he was investigating Republican Congressman Rick Renzi, a Bush loyalist, about a 2005 real estate deal. Either that or Charlton angered the DOJ for not prosecuting enough obscenity cases based on adult porn. Gonzales’ office demurred, saying that a major reason Charlton was canned was that he wanted to start a pilot project for the FBI and other federal agencies to start experimenting with videotaped interrogations. When the documents came out, one of them – from the FBI – objected to Charlton’s idea and commented that “as all experienced investigators and prosecutors know, perfectly lawful and acceptable interviewing techniques do not always come across in recorded fashion to lay persons as a proper means of obtaining information from defendants.” More pointedly, the memo mentioned worries that jurors could find “proper interrogation techniques unsettling.”

Couple these anxieties with steady media attention to the problem of false confessions, and it might seem odd that judges, juries, and the public in general still find it so hard to believe that someone like Khemwatie Bedessie would say she was guilty if she wasn’t. Inside and outside the courtroom, what is the problem?

The most proximate answer is that, logistically speaking, the U.S. is heavily invested in a criminal justice system that would be paralyzed without confessions. Ninety-two per cent of felony convictions are obtained by plea bargains or confessions. That’s a far higher rate than in other countries (Italy’s, for example, is 8 per cent, and Norway doesn’t allow plea bargaining at all).

Relying on confessions to prosecute crimes is thrifty because it avoids the need for costly investigations. But it’s also very destructive to justice, according to Jerusalem University criminologist Boaz Sangero. Writing in a recent issue of Cardozo Law Review, he lists several problems. The first is that, after a suspect is apprehended, police tend to ignore serious investigation; instead, they focus on getting a confession. And once the confession is obtained, any other work going on at all typically ends. The push to handle cases this way encourages misbehavior in the interrogation room.

Further, reliance on confessions promotes disgraceful conditions of detention. Jails are often worse than prisons. Filth, bad food, lack of sunlight, crowding and violence pressure people to say they did something – anything, whether it’s true or not – just to get out of lockup. Then, because they’ve confessed, we figure it’s OK to keep others like them in awful cells – and to bring in more detainees for interrogation. It’s a vicious circle, and most who get trapped in it are poor, uneducated, and unacculturated. Their marginal status is bound up with the moralistic judgment that they are different from us, and therefore bad. Their badness reinforces our willingness to keep a bad system in place. It probably also allows us to export illegal interrogation – our 1930s-era torture, updated – to places like Abu Ghraib and Guantanamo.

Beyond fear of the bad “other” and desire for a bargain, though, there’s a more fundamental, existential reason why dependence on self-incrimination is mean and unfair. As Sangero notes, any kind of interrogation which focuses on obtaining confessions – legal or illegal – probably violates people’s rights. That’s because, from the point of view of self-interest, confession makes no sense at all. People are asked to help themselves by condemning themselves. It is deeply irrational.

That irrationality is especially apparent in the many confessions made, even though they were not extracted directly by police questioning. In fact, as Sanjero notes, it’s possible that most confessions arise not from external coercion but from states of dependency and abjection that people internalized before they were ever interrogated.

Historical and legal records abound with examples. After Charles Lindbergh’s baby was abducted, over 200 people walked into police stations and said they were the kidnapper. More than 30 told authorities they were the murderer of a woman who came to be known as “The Black Dahlia” – a Hollywood actress whose mutilated body was found in a vacant lot in Los Angeles in the 1940s. In a case that truly smacks of internalized abjection and desire for quick death, Heinrich Himmler lost his pipe while visiting a concentration camp during World War II. A search ensued, but on returning to his car Himmler found the pipe on his seat. Meanwhile, the camp commandant reported that six prisoners had already confessed to stealing it.

Since they are not products of police interrogation, no amount of videotaping will eradicate these confessions. Yet, we accept them. At least partly, this is because quick admissions of guilt are cheap, and easy on the justice system. But, more fundamentally, the very concept of confession is deeply embedded in our culture.

It was not always so. Ancient Jewish law barred criminal confessions. In Talmudic commentary – cited in the Supreme Court's Miranda decision, by the way – the rabbinical scholar Maimonides notes, “The court shall not put a man to death or flog him on his own admission.” Additional evidence and witnesses are needed, Maimonides explains, because the impulse to confess is, by definition, self-destructive. Of a man who professes guilt, there is always the possibility that he is “one of those who are in misery, bitter in soul, who long for death …perhaps this was the reason that prompted him to confess to a crime he had not committed, in order that he be put to death.”

Since the 1551 Council of Trent, however, the Roman Catholic Church has taught that confession is good for the soul – yea, even necessary, to save it and purge it of impurity. This religious notion has since been incorporated into law and into the modern, secular definition of the self. Being a fully realized person today requires full disclosure to family, friends, and even (in the case of writers, artists and public figures) to the polity: of one’s deepest emotions, darkest sexual impulses, and past misdoings. Confession isn’t just good for the self. We need confession to be a self.

But when self meets soul in the modern justice system, it’s a train wreck of contradiction. As Yale University comparative literature scholar Peter Brooks notes in his book Troubling Confessions, “That we continue to encourage the police to obtain confessions whenever possible implies a nearly Dostoevskian model of the criminal suspect … we want him to break down and confess, we want and need his abjection since this is the best guarantee that he needs punishment, and that in punishing him our consciences are clear.” On the other hand, our Mirandan insistence “that the suspect’s will must not be overborne, that he be a conscious agent of his undoing, of course implies the opposite, that we don’t want Dostoevskian groveling in the interrogation room, but the voluntary (manly?) assumption of guilt. Hence the paradox of the confession that must be called voluntary while everything conduces to assure that it is not.”

It wasn’t so long ago that masters of American jurisprudence were actively grappling with this contradiction. In the 1966 Miranda decision, Earl Warren recommended that the police find other evidence to solve a crime than the “cruel, simple expedient of compelling it from [the suspect’s] own mouth.” Twelve years before Warren made that statement, Abe Fortas, who later would replace Warren on the Supreme Court, wrote that “Mea culpa belongs to a man and his God. It is a plea that cannot be exacted from free men by human authority.”

Today, Sangero agrees with these liberal lawmakers from a bygone era. He wholly opposes the eliciting and use of confession to solve and prosecute crimes. But, if confession isemployed, he believes the case should never go forward unless meaningful evidence is first gathered from sources independent of the confession – evidence that strongly shows, rather than merely suggests, that the suspect committed the crime. Many people fear that such a policy would allow lots of guilty people to go free. Sangero dismisses their worries. Forensic science in the U.S. today is so sophisticated and high tech, he says, that police have only to use it. All that is required to convict criminals justly is that the cops do their job.

Sangero is very leery of putting too much emphasis on recording. Sure, he says, it’s needed. But narrowly focusing on videotaping reforms does not encourage the police to redirect investigations away from defendants’ self-incrimination and toward the gathering of independent evidence. Obsession with recording can encourage practices such as “non-detentive interviewing.” It’s an increasingly common ploy, in which suspects are seduced into chatting – as Bedessie was when she was visited by the supposed “child protection worker,” who turned out to be a policeman – without being read their Miranda rights. Only after the car door is locked, the drive has begun, and the interrogation room is sighted, does the suspect get officially detained and put before a camera. By then, for someone like Bedessie, it may well be too late to take exercise one’s Miranda rights.

Bedessie is now in the first year of a 25-year prison sentence. Her post-conviction legal work is being done by prominent Manhattan attorney Ron Kuby. He believes she has a good shot at having her conviction overturned because of the trial judge not letting the jury hear expert testimony about false convictions. Nowadays, that’s solid grounds for appeal, and even the assistant DA who prosecuted the case knows it. Pretrial, she advised the judge that it wouldn’t hurt the state’s case to let the defense put on a witness to warn jurors that Bedessie might have falsely incriminated herself. It wouldn’t matter because the confession spoke for itself. And no jury would think otherwise.

2008-10-02T10:53:00.003-04:00

Appeals court overturns conviction of DNA exonoree

Thursday October 2, 2008

Houston Chronicle-Houston, TX

The Texas Court of Criminal Appeals on Wednesday overturned the sex crime convictions of a Dallas man proven innocent by DNA testing after 25 years in prison.

The court's decision to grant relief to Steven Phillips makes him the 35th Texan officially exonerated by DNA evidence and the 221st nationally, according to the Innocence Project, a New York-based legal center specializing in wrongful convictions. Texas has the most such exonerations of any state.

The appeals court upheld the ruling of a state district court in Dallas, which recommended in August that Phillips' convictions be overturned.

Phillips was convicted in separate trials of sexual assault and burglary and sentenced to 30-year sentences stemming from a 1982 attack on a Dallas woman. He then pleaded guilty to nine similar sex crimes, fearing he would receive life sentences if convicted by a jury.

Last year, DNA testing excluded Phillips as the perpetrator in the crimes for which he was convicted. Additional DNA testing earlier this year linked the sexual assault and burglary to Sidney Alvin Goodyear, who died in prison in 1998.

After a lengthy investigation over the last year, Dallas County prosecutors now believe Goodyear committed all 11 crimes that sent Phillips to prison.

Phillips is one of 20 men in Dallas County since 2001 whose convictions have been tossed aside by state district judges based on DNA testing of evidence, although one of those men will be retried by prosecutors.

2008-10-01T10:40:00.001-04:00

Exonerated Man off Death Row

Speaker shares compelling story

October 1, 2008

Ann Wallace The Leaf-Chronicle Clarksville, TN

He spent more than 17 years behind bars on death row in a Florida prison for a crime he did not commit.

He is Juan Melendez who will be the featured speaker at two community forums scheduled at 2 p.m. and 7 p.m. Oct. 7 that free and open to the public.

Melendez was exonerated and released in 2002.

“He is very passionate about that not happening to someone else,” said the Rev. Jodi McCullah, director of the Wesley Foundation, the United Methodist Student Center adjacent to Austin Peay State University campus.

McCullah said the forums will be held in the Gentry Auditorium located in the Kimbrough Building on campus.

“We wanted to provide a thought provoking educational program on campus and this issue is something that I feel strongly about,” said McCullah.

Melendez has a compelling story to share.

“He spent 17 years, eight months and one day on death row for a crime that he did not do. His story is particularly interesting,” said McCullah who advocated a life without parole option instead of capital punishment.

The number of people released from death row across the country when evidence of their innocence emerged now stands at 130, according to McCullah.

Stacy Rector, executive director of the educational advocacy organization Tennessee Coalition to Abolish State Killing, said 2007 data indicates Tennessee has 90 people currently on death row status which includes two women.

2008-09-25T10:25:00.001-04:00

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."

2008-09-24T10:57:00.001-04:00

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."

2008-09-23T10:29:00.000-04:00

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.

2008-09-22T10:12:00.002-04:00

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 Léopoldville (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.

2008-09-18T11:30:00.000-04:00

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.

2008-09-17T10:10:00.002-04:00

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, http://www.jeffreydeskovicspeaks.org/.

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.

DNA

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.

Compensation

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.

Parole

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.

2008-09-16T10:26:00.000-04:00

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.

2008-09-15T10:11:00.001-04:00

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.’’

2008-09-11T10:22:00.004-04:00

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.

FEDERAL RIGHTS AND STATE LAWS

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.

NEW TECHNOLOGIES

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.

[FOOTNOTE 6] BEYOND DNA

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.

[FOOTNOTE 10] CONCLUSION

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.

2008-09-10T10:12:00.000-04:00

Avery's Lawyer Files Complaint Alleging Crime Lab Misconduct

Complaint Cites Documents Indicating Drunkenness, Filing False Reports

September 10, 2008

WISN.com 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.

2008-09-09T09:19:00.011-04:00

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.

2008-09-08T09:52:00.001-04:00

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.

2008-09-05T09:58:00.001-04:00

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.

2008-09-04T10:01:00.000-04:00

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, www.innocenceproject.org, 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.”

2008-09-03T09:25:00.000-04:00

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.

2008-09-02T09:24:00.002-04:00

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."

2008-06-26T09:21:00.002-04:00

Hello, The Inspector General of the Department of Justice came out with a report yesterday saying the Deputy Attorney General violated federal law by deselecting highly qualified candidates for the DOJ’s Honors Program (some Rhode Scholars, top 20 law review editors, and clerks from federal judges appointed by Clinton) simply based on their affiliations with organizations thought to be liberal or democratic.

Evidently they had a list of these “liberal” groups, and the Innocence Project, which I assume would include all of the similar projects nationwide, was on the list of groups that would disqualify a person if it showed up on his or her resume. They specifically mentioned the IP on NPR this morning in a report about this story.

You can view the report at http://www.usdoj.gov/opr/oig-opr-investigation-hire-slip.pdf. The list is in the appendix.

-Seth Miller

Executive Director

Innocence Project of Florida, Inc.

1100 E. Park Ave.

Tallahassee, FL 32301

850.561.6769

850.561.5077 (fax)

http://www.floridainnocence.org

2008-04-30T10:47:00.000-04:00

All-Day Hearing Set for Man fighting Rape Conviction

April 30, 2008

Lou Grieco- Dayton Daily News Dayton, OH

A Montgomery County Common Pleas judge has scheduled an all-day hearing July 11 to deal with convicted rapist Roger Dean Gillispie's petition for post-conviction relief.

Gillispie, who is represented by former Ohio Attorney General Jim Petro and attorneys with the Ohio Innocence Project, maintains his innocence and is trying to get a new trial.

Gillispie, now 42, was convicted of rape and kidnapping charges in February 1991 but won a new trial when crime scene hairs that had not been tested surfaced at the Miami Valley Regional Crime Lab. He was convicted a second time that year and is serving a 16- to 50-year sentence.

The Ohio Innocence Project invited Petro to join the case after Gillispie was denied parole last year.

No physical evidence tied Gillispie to the crimes. The case hinged on testimony from the victims, who picked Gillispie out of a photo lineup nearly two years after the crimes. The case was investigated by the Miami Twp. Police Department.

2008-04-29T12:18:00.001-04:00

Man set to be 17th exonerated by DNA in Dallas County

April 29, 2008

By Jennifer Emily-The Dallas Morning News Dallas, TX

Illegally withheld evidence probably caused a man who will be exonerated today to spend more time behind bars than anyone in the country cleared by DNA, the Dallas County district attorney's office and the Innocence Project of Texas said Monday.

James Lee Woodard is expected to be released today by state District Judge Mark Stoltz and become the 17th man exonerated by DNA in Dallas County, which has more DNA exonerations than any other county in the nation.

Mr. Woodard, 55, was sentenced to life in prison in 1981 for the strangulation and rape of his 21-year-old girlfriend, Beverly Ann Jones.

But information that Ms. Jones was with three men – including two later convicted of unrelated sexual assaults – around the time of her death was not disclosed to the defense nor was it thoroughly investigated, said prosecutor Mike Ware, who oversees the Dallas County district attorney's office conviction integrity unit.

Evidence that could benefit a defendant is required by law to be turned over to a defendant, though there is no criminal punishment for not doing so.

Mr. Ware said Mr. Woodard received a "fundamentally unfair" trial. He said he believes the evidence is something that prosecutors at the time should have investigated, "or at least turn it over so the defense could investigate."

Before the district attorney's office agreed that the DNA that exonerated Mr. Woodard of the rape also exonerated him of the murder – in itself an unusual step – a forensic pathologist examined the file and concluded that Ms. Jones was killed about the same time she was raped.

Her body was found New Year's Eve 1980 near the Trinity River in a wooded area near South Loop 12. The night Ms. Jones was killed, she was with Theodore Blaylock, who was convicted of an aggravated rape committed three weeks after Ms. Jones' death, according to Mr. Ware and testimony from a 1981 post-conviction hearing.

Mr. Blaylock testified at the hearing that he was drinking with Ms. Jones, Edward Mosley and Eddie Woodard, who is not related to James Lee Woodard, one morning in late December 1980.

Mr. Blaylock said he and Mr. Mosley went with Ms. Jones to a South Dallas convenience store where Ms. Jones left and got in another car with three other men. Mr. Blaylock could not provide descriptions.

In 1982, Mr. Blaylock was shot and killed when he tried to rape another woman in her car. She pulled a gun from under the seat and shot him several times, Mr. Ware said.

Eddie Woodard is now a registered sex offender involved in a brutal sexual assault, who the district attorney's office said has absconded from probation. Mr. Mosley's whereabouts were unclear late Monday.

Prosecutors want to compare DNA from the men to the genetic evidence from the rape to find the true culprit.

James Lee Woodard was seeking a new trial at the 1981 hearing, alleging that prosecutors did not fully disclose information about Ms. Jones' whereabouts the night she was killed. The judge, John Ovard, who was also the trial judge, denied the new trial and formally sentenced him.

The judge and the district attorney's office could have righted Mr. Woodard's wrongful conviction in 1981, just months later, said Natalie Roetzel, executive director of the Innocence Project of Texas.

"It's one of the most disturbing things about this case," she said. "Essentially, that was ignored because the investigators had the suspect they wanted."

Also, a prosecution witness changed his testimony since the Innocence Project of Texas, a nonprofit independent legal clinic, began investigating Mr. Woodard's conviction. Ms. Jones' stepfather testified that on the night she was killed, Mr. Woodard came to the apartment in the middle of the night looking for her.

Oscar Edwards now says he believes Mr. Woodard was not the person who came to his door and did not kill his daughter, Mr. Ware said.

Mr. Woodard, who has a record for nonviolent crimes, is the second man cleared by DNA during a review of 350 defendants' requests for DNA tests that were denied under previous District Attorney Bill Hill.

Like many in Dallas County exonerated by DNA, Mr. Woodard was convicted during the era of District Attorney Henry Wade. Current District Attorney Craig Watkins has repeatedly said he believes that during this time, prosecutors were more focused on convictions than justice.

In several handwritten letters, Mr. Woodard begged Mr. Wade to reinvestigate his case and always maintained his innocence. He said that his letters were always answered by a prosecutor saying nothing could be done because a jury convicted him.

In a March 1985 letter, Mr. Woodard wrote to Mr. Wade: "If you found out for yourself that I was innocent, would you let me go?"

2008-04-28T10:44:00.000-04:00

Man Serving Life Sentence Wants DNA Test

Chronicle-Telegram- Elyria, OH

An Elyria man serving a life sentence for the May 1999 murder of Angela Galloway is asking a county judge to allow him to have his DNA tested in the hopes it will clear him.

But county Prosecutor Dennis Will, who worked the case while still an Elyria police officer, said there’s no real evidence that could be tested that would clear 47-year-old Ray Smith Jr., who is no relation to the Ray Smith whose sentence was just reduced to life in prison.

Smith’s attorneys, who work for the Ohio Innocence Project, which seeks to use DNA evidence to clear innocent people serving prison time, contend that the testing could lead to Smith’s release from prison.

Will said Smith and Galloway worked together at Friendly’s Restaurant on Broad Street and the pair was working together the night of the murder.

Police determined that Smith killed Galloway and then stuffed her body in the trunk of her car and parked it in an EMH Regional Medical Center parking lot to cover up the fact that he had robbed the restaurant.

Police recovered money stolen from the restaurant at Smith’s apartment, Will said.

2008-04-25T14:33:00.000-04:00

Grisham Focuses on Falsely Condemned

April 25, 2008

Lisa Crutchfield Lynchburg News and Advance-Lynchburg, VA

An obituary in The New York Times changed the way attorney-turned-best-selling author John Grisham looked at the law.

On Dec. 9, 2004, he was skimming the Times and came across the headline, “Ronald Williamson, Freed from Death Row, Dies at 51.” After reading the story, he knew it would be his next book and his first foray into nonfiction. It also was the beginning of his work with innocence projects attempting to correct flaws in America’s legal system.

“There are thousands of innocent people in prison in this country,” Grisham said yesterday at University of Richmond’s T.C. Williams School of Law.

“I had never really thought about wrongful conviction. I didn’t really think about it until ‘The Innocent Man’ was researched and written,” said the author of “The Firm” and other legal thrillers.

Grisham spoke to dozens of students and faculty associated with UR’s newly established Institute for Actual Innocence. The program, which involves students, faculty and practicing lawyers, works to identify and exonerate wrongfully convicted individuals in Virginia. It is part of a national group of similar innocence projects.

Mary Kelly Tate, the institute’s director, said overturning convictions in Virginia can be difficult. “We have some of the most challenging procedural hurdles and underfunding,” she said. At her request, Grisham came to UR from his home in Charlottesville to speak to participants in the project.

“The Innocent Man,” published in 2006, examines Ron Williamson’s wrongful conviction stemming from a brutal murder in Oklahoma in 1982.

“Based on hair analysis, snitches and a couple of bogus confessions, Ron was given the death penalty,” Grisham said. Williamson stayed on death row for years until a team of appellate lawyers sought a writ of habeas corpus and he was granted a stay five days before he was to be executed.

DNA tests ultimately cleared Williamson and a co-defendant.

“Life after exoneration is not pleasant,” Grisham said. “He was set free without an apology. No one has the courage to say they were wrong. The state wants you to go away and not make any noise.”

Grisham cited a number or reasons for wrongful convictions, including sloppy police work, courthouse snitches, junk science, false confessions and bad lawyering. Of the 130 death-row cases that have been overturned in the U.S., he said, two-thirds of them involved willful, malicious misconduct by authorities.

“The challenge now is to convince a lot of comfortable white people that there are a lot of innocent people in prison.

“This system, if we think it’s so great — how can this system send 130 men to death row and later have them exonerated?”

Grisham urged law students to consider some reforms to current judicial procedure, including increasing video interrogations, clamping down on informants, and changing perceptions that police and prosecutors are infallible.

“We should be able to design a system that guarantees everyone basic constitutional rights,” he said.

2008-04-24T11:10:00.000-04:00

Baltovich Acquitted of Murder

April 22, 2008

Peter Small Toronto Star Ontario, Canada

Eighteen years after the disappearance of university student Elizabeth Bain, her boyfriend Robert Baltovich was acquitted this morning after Crown prosecutors declined to offer evidence at his second trial on a charge of second-degree murder.

Before the jury was brought in to hear the opening arguments this morning, Crown attorney Philip Kotanen said the prosecution could not proceed due to a lack of evidence.

"There is no longer any reasonable prospect of conviction," he told Superior Court.

Justice David McCombs then directed the jury to acquit, saying the only verdict that could "be supported in this case" is not guilty. Minutes later, the jury complied.

Today’s hearing marked the end of Baltovich’s second trial in the disappearance and presumed death of his girlfriend, whose body was never found.

Baltovich, now 42, spent eight years in jail before Ontario’s highest court quashed the conviction in his first trial and ordered a second one.

“It’s an 18-year nightmare for me. It’s a never-ending nightmare for the Bains,” Baltovich said outside court this morning. “I just hope that one day they can come to accept the fact that I didn’t kill their daughter.

“I loved her. I miss her. I know they do and maybe one of these days we can get together and grieve together.”

Bain, a 22-year-old student at the University of Toronto's Scarborough campus, was last seen on the afternoon of June 19, 1990, after telling her mother she was going to the campus tennis courts.

Baltovich, who always maintained his innocence, was charged with her murder in November 1990.

Three days later, her bloodstained car was found two blocks from the campus.

At the Bain family home in Scarborough this morning, Elizabeth Bain’s parents, Ricardo and Julita, asked to be left alone as they grieved.

“Please leave us alone for today,” Ricardo Bain told reporters from the front yard before retreating inside the house. “This is not a good moment.”

Julita Bain said that despite the court’s decision, the family still believes Baltovich is guilty.

“We believe that he did it. That doesn’t change.”

“We’re not vengeful people - all we wanted to have is justice for Elizabeth,” Julita said. “I’m sure she’ll get that sometime, if not here, then up there,” she added, gesturing to the heavens.

Asked what would come next for the family, Julita Bain replied: “Life’s got to go on, I guess - just like the past 18 years.”

During the appeal that overturned his conviction, Baltovich’s lawyers argued that convicted sex killer Paul Bernardo – who admitted to a series of sexual assaults in Scarborough around the time when Bain vanished - may have been her killer.

Today, Baltovich’s lawyer said he believes today’s decision puts a rest to the case against his client once and for all.

“I am absolutely certain they have no intention to appeal,” said James Lockyer. “They would look utterly ridiculous if they did so and they know it.

“If you look at any of the wrongful convictions that have happened in Canada, it always starts with something small and it gets bigger and bigger,” added Lockyer, who is known for his work with the Association in Defense of the Wrongfully Convicted. “Ultimately, all of these cases seem to die the same way.”

Another supporter said Baltovich had waited too long for exoneration.

“When the original trial was held, we were told that it would be about two years for his appeal to be heard,” said Brian King, a private investigator hired by the defense team.

“I believe that was in 1992. It's now 2008 and he finally got his day in court today."

At Queen’s Park, Attorney General Chris Bentley said prosecutors did the right thing in the Baltovich case.

“The crown took the appropriate course, which was to quickly reassess the strength of the case, the prospects for it ... and reached the determination that resulted today in a finding of not guilty,” Bentley told reporters.

“Mr. Baltovich needed and deserved the verdict of not guilty in light of the assessment, in light of the facts, the law and the evidence,” Bentley added.

“I hope that he will now be able to get on with the rest of his life with this matter behind him.”

Bentley said any compensation for Baltovich would have to be a matter of future discussion.

“I will leave that issue to Mr. Baltovich, his counsel and others for another day.”

Bentley sent his sympathies to Bain’s relatives, who have no closure in the case.

“This is a tragedy for the Bain family ... it does not end today for them.”

2008-04-23T10:20:00.000-04:00

Death Row Inmates deserve DNA Testing

Tuscaloosa News- Tuscaloosa, AL

Putting science and conscience on the shelf, Alabama is getting back into the execution business with a vengeance.

Vengeance can be the only explanation for the state's eagerness to resume executions as soon as possible after last week's U.S. Supreme Court ruling that lethal injections do not constitute cruel and unusual punishment. We have had almost two centuries of legal executions in Alabama. In all of that time, no one has shown that the death penalty is a deterrent to crime.

That leaves only retribution - an eye for an eye - as a reason for state-sanctioned execution. That, and the politicians' perception that most voters support capital punishment.

Polls tend to bear out that perception. Yet many who support the death penalty in principle would have second thoughts about applying it to a person whose guilt has not been proven conclusively.

That's the case with Tommy Arthur, now 65, who was convicted of the 1982 murder-for-hire killing of Troy Wyker Jr. of Muscle Shoals.

Arthur was scheduled to die last September. Just hours before the execution, however, Gov. Bob Riley issued a stay so the state could add a step to its lethal injection procedure.

In early December, the U.S. Supreme Court blocked Arthur's execution again, just a day before it was scheduled, to allow it to hear arguments in a Kentucky case challenging lethal injection.

Arthur's attorneys also appealed to the high court, arguing that lethal injection is cruel and unusual.

In the interim, Riley said he was considering whether to order DNA testing for Arthur.

Arthur has consistently maintained that DNA tests would exonerate him. The technology was not available when he was convicted. But Alabama is one of only eight states that do not have mandatory DNA testing in capital cases.

The Innocence Project, which champions the use of DNA tests nationwide, said it has no position on Arthur's guilt or innocence but said the tests could at least shed light on a dodgy case. Witnesses, claiming they were bribed or pressured, have changed their stories about Arthur's involvement and direct evidence was scant.

Riley, however, decided ultimately that he has no authority to order DNA testing. And when the U.S. Supreme Court declined to hear Arthur's appeal on Monday, Attorney Gen. Troy King wasted little time in asking the state Supreme Court to set an execution date. All indications are that the state will go ahead and kill him.

We had hoped, naively perhaps, that Alabama's leaders would use the national hiatus on the death penalty as a time to launch a re-examination of the state's flawed capital punishment procedure. That won't happen.

For now, at least, vengeance and political expedience have trumped science and conscience.

2008-04-22T10:39:00.000-04:00

23 Years After Improper Photo Lineup Led to Wrongful Conviction, DNA Proves Thomas McGowan's Innocence in Dallas County Rape

April 22, 2008

Eric Ferrero for Axis of Logic

Thomas McGowan, who has spent 23 years in prison for a Dallas County rape and burglary that DNA testing now proves he did not commit, is expected to be released from prison tomorrow, according to the Innocence Project, which represents him.

In two separate trials in 1985 and 1986, McGowan was convicted of aggravated sexual assault and burglary and sentenced to two consecutive life terms in prison. DNA testing on a rape kit collected from the victim proves that he was not the man who broke into her home in May 1985, stole several items and raped her.

A hearing is set for 1:30 p.m. Wednesday (April 16) before Judge Susan Hawk in 291st District Court, on the 7th floor of the Frank Crowley Courts Building (133 N. Industrial Blvd. in Texas). McGowan and his relatives – with Innocence Project Co-Director Barry Scheck and Staff Attorney Jason Kreag – will speak to reporters outside the courthouse after the hearing.

McGowan will be the 25th person in Texas – and the 13th person in Dallas County – proven innocent through DNA testing after eyewitness misidentification led to a wrongful conviction. Overall, 31 people have been exonerated through DNA testing in Texas, 14 of them in Dallas County.

“Thomas McGowan was in his mid-20s when he was arrested, and he’ll turn 50 later this year. He has lost nearly his entire adult life to a wrongful conviction that could have – and should have – been prevented,” said Barry Scheck, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. “This is the 25th case in Texas where DNA proved that eyewitness identification was incorrect. How many more people need to lose years or decades of their lives before the state implements simple reforms that are proven to make eyewitness identification more accurate?”

The victim in McGowan’s case initially viewed a live lineup with three men who police thought might be suspects in the crime and three “fillers.” She did not identify any of the men as her attacker. Later, she was shown a photo array with seven photos – but there were effectively only three photos in the array, since two of them were photocopies of photographs, one was a black-and-white photo (all the others were in color), and one was marked “Garland Police Department” (while the remaining three were marked “Richardson Police Department,” which is where the crime took place). The victim said she “thought” the man in one of the three photos was her assailant, and the police officer administering the lineup told her “You have to be sure, yes or no.” When she testified in court, the victim recounted the officer’s instructions: “He said if I was going to say it was somebody, if I was going to say it was that picture, I had to be sure. He said I couldn’t think it was him. He said I had to make a positive ID. I had to say yes or no.” After hearing the officer’s instructions, the victim said the man in the photo – Thomas McGowan – was “definitely” the man who attacked her. The victim’s identification of McGowan was the central evidence against him.

Decades of scientific research show that instructions or feedback from an officer administering a live or photo lineup can significantly impact whether a witness identifies the wrong person.

“Just a few simple words can change everything. In this case, a few words from the police officer administering the lineup cost Thomas McGowan 23 years of his life,” Scheck said. “The officer forced the victim into certainty when she wasn’t sure whether Mr. McGowan was the perpetrator. While we sometimes hear of outrageous lineup procedures, improperly pushing a witness into certainty is much more common.”

By pushing the witness into certainty, the officer administering the lineup also apparently confirmed that she was selecting the man police suspected was the perpetrator. “If she had chosen one of the filler photos and said she ‘thought’ he was the perpetrator, the officer almost certainly would have told her that she should move on if she isn’t sure. Instead, the officer’s statements induced her to identify Mr. McGowan,” Scheck said.

The officer administering the lineup should have asked the victim to describe in her own words how sure she was that the man in the photo was the perpetrator, and all of the photos in the array should have been similar (so that the victim didn’t rule out several of them immediately). These are among the practices that have been shown to reduce the chance of incorrect identifications, based on social science research and best practices developed by police departments nationwide. Witnesses should be told that they will be asked to describe, in their own words, how confident they are in selecting a suspect, and they should also be told that the perpetrator may not be in the lineup and the investigation will continue if they are unable to identify someone in a lineup. Live or photo lineups should also be administered by an officer who does not know who the suspect is and who the “fillers” are. When live or photo lineups are administered by an officer who doesn’t know which photo is the suspect, the officer is not able to lead the victim into identifying anyone.

Last year, the Texas Legislature considered a bill that would have improved eyewitness identification procedures statewide. The bill, which was approved by the Senate and the House Law Enforcement Committee but did not pass the full House before the session ended, would have required police departments to use procedures that improve the accuracy of eyewitness identification. The bill will be introduced again next year.

“Mr. McGowan has already told us that he wants to do whatever he can to help improve the laws and policies in Texas so that this doesn’t happen to other people,” Innocence Project Staff Attorney Jason Kreag said. “He has a long road ahead to rebuild his life, but he has an extremely supportive family that will help him every step of the way – and he has a strong resolve to make sure his case helps improve the criminal justice system.”

The Innocence Project took McGowan’s case in April 2007. The Dallas County District Attorney’s Office helped secure the evidence for DNA testing and moved quickly to resolve the case. Mike Ware, head of the Conviction Integrity Unit, and Assistant District Attorney Michael Moss handled the case promptly and efficiently, the Innocence Project said.

Before his arrest, McGowan graduated from Ryder High School in Wichita Falls, Texas. His photo was in the police system because of a minor traffic violation. While in prison, he took vocational courses and worked as a custodian. After his release, he plans to live in Dallas County with relatives.

In addition to Scheck and Kreag, Robert Hinton is co-counsel on the case. Cardozo School of Law clinic students Alisa Levien and Kristin McDermott worked on the case at the Innocence Project. DNA testing in the case was conducted by Orchid-Cellmark.

Innocence Project of Texas Executive Director Natalie Roetzel and Senior Counsel Jeff Blackburn will attend Wednesday’s hearing, along with several Dallas County men who have been exonerated through DNA testing in recent years.

2008-04-21T10:18:00.000-04:00

DNA Review Morally Right

April 21, 2008

Charlottesville Daily Progress- Charlottesville, VA

Despite no easy “successes” in the past two-plus years, Virginia was right to start — and continue — a massive DNA project retesting old samples for new evidence in violent crimes.

The project began under Gov. Mark Warner, following a handful of exonerations based on review of DNA evidence.

The first was that of a Hanover County man who had spent 15 years in prison for a rape he insisted he did not commit. His case was pursued by the New York-based Innocence Project.

Sure enough, old evidence — given new review with more precise DNA testing procedures — confirmed his innocence.

That review also revealed that one of the state’s forensic analysts, Mary Jane Burton, had meticulously preserved thousands of samples in the cases she had worked on over the years. Common practice at the time was to throw away samples after an inmate’s appeal had run out.

Ms. Burton turned out to be an unintentional heroine. Review of two more cases in which she had preserved evidence proved that two other men were innocent of the crimes for which they had been convicted.

After that, Gov. Warner ordered a routine review of every case handled by the state crime lab during the roughly 15 years that Ms. Burton was on staff. Relatively quickly, two more exonerations were announced.

Since then, more than two years ago, no further findings of innocence have been discovered.

“This isn’t easy,” said state crime lab director Peter M. Marone. “This isn’t a TV show like ‘CSI.’ ”

Cases can’t be wrapped up in the 47 minutes allotted to a plot line on television. The task of review has been tougher than anticipated, due to size and complexity of the project. There are 534,000 files to go through. All victims and felons are required to be notified of the review, and prosecutors and defense attorneys are also involved.

Whether any more exonerations result from the review does not mean the project is not still a success.

For Virginia to continue to make the effort, painstakingly reviewing hundreds of thousands of cases, is simply the right thing to do. It would be unconscionable to give the effort short shrift, considering the stakes.

There may still be errors to uncover; the lives and liberty of wrongly convicted people may yet be at issue.

But even if no further exonerations are revealed, the effort still should be considered a success.

Such results would show that, in the overwhelming majority of cases, and to the best of its abilities, the justice system worked as intended. The lack of exonerations could be interpreted as evidence that other innocent people were not deprived of life and liberty by the less sophisticated DNA review procedures of 20 to 30 years ago.

The review of evidence is a complex process; the preservation of justice is a sacred responsibility. The first is the practical expression of the second. Virginia is right to utilize the best methods now available to ensure that justice is done.

2008-04-18T09:28:00.005-04:00

Wis. Supreme Court lets 'shaken baby' ruling stand

By RYAN J. FOLEY – The Associated Press

MADISON, Wis. (AP) — A ruling that freed a woman from prison and cast doubt

on "shaken baby syndrome" prosecutions will stand, the Wisconsin Supreme Court has

decided.The decision is a victory for former daycare provider Audrey Edmunds, who

has long maintained her innocence against charges she shook a baby to death in 1995.

Edmunds spent more than 10 years in prison after a jury convicted her of first-

degree reckless homicide in 1996. But she was freed in February after an appeals

court said new research into "shaken baby syndrome" cast doubt on her guilt.

The Wisconsin Department of Justice appealed to the Supreme Court, saying the ruling

would make it virtually impossible for prosecutors to bring charges in shaken baby

cases.

The high court voted 5-1 on Monday not to take up the case and let the ruling stand.

The court did not publicly announce the decision but a spokesman confirmed the vote

Thursday.

Prosecutors in the Dane County District Attorney's office now must decide whether to

retry Edmunds.

Her appellate lawyer, Keith Findley of the Wisconsin Innocence Project, said he hoped

prosecutors would drop the charges.

"It's time to let Audrey Edmunds get on with her life," he said.

The appeals court said new research into shaken baby syndrome presents alternate

theories on how 7-month-old Natalie Beard might have suffered fatal injuries while

at Edmunds' in-home day care. It said a jury should hear competing theories and

again decide whether she is guilty.

Edmunds has testified the baby was dropped off at her home in good health but

quickly became fussy. She tried unsuccessfully to console the child and then left

her in a bedroom in a car seat with a propped bottle.

She said she called 911 after finding the baby limp with liquid coming out of her

nose and mouth. The child was pronounced dead hours later.

Prosecutors argue the baby died as a result of violent shaking by Edmunds or shaking

combined with impact that caused a fatal head injury.

Edmunds' lawyers said it is impossible to know how the baby died but it could have

been the result of a seizure, from choking on formula or an infection.

2008-04-17T11:12:00.000-04:00

Feds to Collect DNA from Every Person They Arrest

By Eileen Sullivan Associated Press

Monterey County Herald Monterey, CA

The government plans to begin collecting DNA samples from anyone arrested by a federal law enforcement agency—a move intended to prevent violent crime but which also is raising concerns about the privacy of innocent people.

Using authority granted by Congress, the government also plans to collect DNA samples from foreigners who are detained, whether they have been charged or not. The DNA would be collected through a cheek swab, Justice Department spokesman Erik Ablin said Wednesday. That would be a departure from current practice, which limits DNA collection to convicted felons.

Expanding the DNA database, known as CODIS, raises civil liberties questions about the potential for misuse of such personal information, such as family ties and genetic conditions.

Ablin said the DNA collection would be subject to the same privacy laws applied to current DNA sampling. That means none of it would be used for identifying genetic traits, diseases or disorders.

Congress gave the Justice Department the authority to expand DNA collection in two different laws passed in 2005 and 2006.

There are dozens of federal law enforcement agencies, ranging from the FBI to the Library of Congress Police. The federal government estimates it makes about 140,000 arrests each year.

Justice officials estimate the new collecting requirements would add DNA from an additional 1.2 million people to the database each year.

Those who support the expanded collection believe that DNA sampling could get violent criminals off the streets and prevent them from committing more crimes.

A Chicago study in 2005 found that 53 murders and rapes could have been prevented if a DNA sample had been collected upon arrest.

"Many innocent lives could have been saved had the government began this kind of DNA sampling in the 1990s when the technology to do so first became available," Sen. Jon Kyl, R-Ariz., said. Kyl sponsored the 2005 law that gave the Justice Department this authority.

Thirteen states have similar laws: Alaska, Arizona, California, Kansas, Louisiana, Maryland, Minnesota, New Mexico, North Dakota, South Dakota, Tennessee, Texas and Virginia.

The new regulation would mean that the federal government could store DNA samples of people who are not guilty of any crime, said Jesselyn McCurdy, legislative counsel for the American Civil Liberties Union.

"Now innocent people's DNA will be put into this huge CODIS database, and it will be very difficult for them to get it out if they are not charged or convicted of a crime," McCurdy said.

If a person is arrested but not convicted, he or she can ask the Justice Department to destroy the sample.

The Homeland Security Department—the federal agency charged with policing immigration—supports the new rule.

"DNA is a proven law-enforcement tool," DHS spokesman Russ Knocke said.

The rule would not allow for DNA samples to be collected from immigrants who are legally in the United States or those being processed for admission, unless the person was arrested.

The proposed rule is being published in the Federal Register. That will be followed by a 30-day comment period.

2008-04-16T10:31:00.002-04:00

Dallas Man May Be Freed by DNA Testing After 23 Years

April 16, 2008

By Jeff Carlton Associated Press Writer Houston Chronicle

Eyewitness misidentification sent Thomas Clifford McGowan to prison for nearly 23 years. On Wednesday, DNA testing is expected to get him out.

McGowan, 49, will be released from prison Wednesday if, as expected, state District Judge Susan Hawk affirms the conclusions reached by the inmate's attorneys and the Dallas County District Attorney's Office. Both groups say a DNA test conducted April 7 shows McGowan could not have been the man who raped a Dallas-area woman in 1985.

McGowan was convicted in separate trials in 1985 and 1986 for burglary and aggravated sexual assault in connection with the same incident. He received life sentences in both cases.

The Innocence Project, a New York-based legal center that specializes in overturning wrongful convictions, took on McGowan's case last year. He applied for DNA testing, the results of which showed that neither he nor the victim's boyfriend were the source of the male DNA collected as part of the rape kit.

"He has lost nearly his entire adult life to a wrongful conviction that could have — and should have — been prevented," Innocence Project Co-Director Barry Scheck said.

If McGowan's conviction is overturned as expected, he would become the 17th Dallas County man since 2001 to be freed or ordered to receive a new trial because of DNA testing. That's more than any county in the nation.

Overall, 31 people have been formally exonerated through DNA testing in Texas, also a national high.

Unlike many jurisdictions, the crime lab used by police and prosecutors in Dallas retains biological evidence, meaning DNA testing is a viable option for decades-old crimes. District Attorney Craig Watkins has started a program in which law students, supervised by the Innocence Project of Texas, are reviewing hundreds of cases in which convicts have requested DNA testing to prove their innocence.

Watkins' office received an inquiry from the Innocence Project regarding McGowan in August. Watkins agreed to test the DNA sample, which was located at the crime lab, said Jamille Bradfield, a spokeswoman for the DA's office.

McGowan's saga began in May 1985 when a woman identified in court papers as "Ms. C" came home to her Richardson apartment and stumbled upon a burglar. The man bound her hands with his belt, raped her at knifepoint and then loaded his car with several items stolen from her apartment, according to court documents.

Police eventually presented the woman with a live lineup that included three suspects and three fillers. She did not identify any of the men as her attacker.

She was later shown a photo array of seven men. She picked out McGowan's photo, saying she "thought" he was the attacker. But police told her she had to be certain, that she "couldn't just think it was him," she testified in court. It was then that she said McGowan was "definitely" the attacker, according to court documents.

Scheck said decades of studies have that just a few words from a police officer can significantly influence whether a witness identifies the wrong person.

"Just a few words can change everything," Scheck said. "While we sometimes hear of outrageous lineup procedures, improperly pushing a witness into certainty is much more common."

2008-04-15T11:05:00.000-04:00

DNA Clears Man Imprisoned 12 Years for Rape

April 15, 2008

Amber Hunt- Detroit Free Press Detroit, MI

A man who confessed to kidnapping and raping a Macomb County woman will be released after spending 12 years in prison because DNA evidence collected at the scene has exonerated him, the county prosecutor’s office announced today.

Nathaniel Hatchett spent nearly 12 years in prison – from age 17 – on three charges of first-degree criminal sexual assault, armed robbery and kidnapping in the rape and abduction of a woman. Hatchett was arrested driving the woman’s car three days after the attack.

He confessed to police, officials said, and during the trial, the victim positively identified Hatchett.

But Hatchett, through the Cooley Innocence Project, filed a motion for a new trial based on recent DNA testing.

The tests showed that samples found on the victim didn’t match Hatchett’s DNA.Macomb County Prosecutor Eric Smith dismissed the charges rather than agree to a retrial.

“We went back in and did a full investigation,” Smith said. “We could have fought for a new trial, but our job is to seek justice. It was served today.”

Smith took office in 2005. The case, filed under former Prosecutor Carl Marlinga, was handled by former Assistant Prosecutor Eric Kaiser, who quit in 2004.

Hatchett was convicted in a bench trial, not a jury trial, meaning only the judge made the decision he was guilty.

Circuit Judge James Biernat today agreed to dismiss the charges. Hatchett was present but did not speak.

The Innocence Project is run through the Thomas M. Cooley Law School and is credited with freeing 150 prisoners since 2001. The project takes on between 6-10 cases a term and focuses on DNA evidence to exonerate wrongfully convicted people.

In July 2003, Kenneth Wyniemko, another Macomb County man, was released from prison after wrongfully serving nine years in prison for a rape that DNA showed he didn’t commit.

2008-04-14T10:53:00.000-04:00

Officials Spar over DNA Database

April 14, 2008

Rick Westhead- The Canadian Press

For three months, court employees across Canada have been knocking on doors and going into prisons to get DNA samples from thousands of violent criminals who initially slipped through the fingers of the country’s rapidly growing DNA database.

Already the unique genetic code of roughly one in 250 Canadians is in the data bank. But police say that’s not nearly enough.

Toronto police Chief Bill Blair hopes that, as soon as 2011, police will have the power to demand DNA samples from anyone charged — not just convicted — of serious crimes.

"DNA doesn’t discriminate," said Blair. "It’s a revolutionary crime-fighting tool."

Blair is championing a broadened genetic data bank even as police and privacy advocates throughout the Western world spar over who should be forced to surrender their DNA.

In a move that left civil libertarians aghast, the U.K. recently began collecting samples from suspects when they’re charged — even shoplifters. More than 10 U.S. states have followed suit.

Currently in Canada, only offenders convicted of serious crimes such as murder or sexual assault are forced to provide a blood sample for the DNA data bank in Ottawa.

Blair said taking samples when people are charged with serious crimes would allow police to immediately check for matches to DNA samples from unsolved crimes.

"There are cases where we have charged a guy with a primary (serious) offence and it takes three years to get to a conviction. What’s he doing on the street during that time? If we were taking DNA at the time of a charge and he was matched to a prior crime, he wouldn’t be in a position to go out for several years (and) commit more crimes."

There are now more than 40,000 DNA samples from crime scenes in the Canadian database — many from unsolved cases. But taking samples when people are charged inevitably means the DNA of innocent people will be catalogued.

"Where do you draw the line?" asked criminal defence lawyer James Lockyer, who regularly represents the wrongfully convicted.

"You could, on the basis of the public interest, justify rounding up the entire population and securing a DNA sample."

2008-04-11T11:38:00.002-04:00

Evidence Preservation Should Be Priority

April 11, 2008

By Bill Oberly

Anchorage Daily News- Anchorage, AK

On Jan. 3. the prison doors swung open and Charles Chatman walked out. He had spent 26½ years in prison for a crime he did not commit. Luckily for Mr. Chatman, the Dallas County crime lab in Texas retains all biological evidence it receives. In Mr. Chatman's case, evidence from 1981. It was only through persistent lawyering and the testing of this DNA evidence that this terrible miscarriage of justice was revealed.

In 2005, Texas enacted a statute statewide which provides for preservation of evidence for all defendants until the defendant dies, completes the sentence or is released on parole. Texas also has a statute that allows any convicted person to apply for post-conviction DNA testing of evidence through the convicting court. Alaska has neither.

The Alaska Innocence Project is a nonprofit organization whose mission is to exonerate wrongfully convicted individuals incarcerated by the State of Alaska and to work to prevent wrongful convictions in the future. As part of this work, the Alaska Innocence Project proposes legislation that mandates preservation of evidence collected during an investigation and used to convict a person.

In this emerging era of DNA evidence, the power and usefulness of such evidence increases daily. Not only can innocence claims like that of Charles Chatman be settled but cold cases with no suspects can be solved. To make any good of this work, however, the evidence must be preserved.

The federal government recognized the importance of preserving biological evidence in 2004 when Congress passed the Justice for All Act. That law requires federal prosecutors keep evidence used to convict a person until that person has completed his sentence. Congress has also made hundreds of millions of dollars available to states as an incentive to adopt proper evidence preservation practices.

The Alaska Senate Judiciary Committee, with the assistance of the Alaska Innocence Project, has proposed a law that meets the federal evidence preservation criteria. This Senate bill would help in crime fighting and provide certainty in convictions. It would also greatly increase efficiency in law enforcement throughout the state by creating a standardized system of evidence preservation and cataloging.

Determining questions of fact in our criminal justice system is an unavoidably imperfect venture. While the system surely gets it right in the vast majority of cases, in an important minority of cases credible questions of innocence linger. Where that is the case, post-conviction DNA testing of biological evidence can provide true finality by proving guilt or strong evidence of actual innocence. To be able to ensure justice, however, that biological evidence must be preserved and located when necessary.

Innocent people should not be in jail for crimes they did not commit, and guilty people should not be able to go free at the expense of those wrongfully convicted. The Alaska Innocence Project is working to bring Alaska forward to where 27 other states and the federal government have moved. For the sake of even one Alaskan like Charles Chatman, the Alaska Innocence Project urges the Legislature to pass an evidence preservation statute as soon as possible.

2008-04-10T12:23:00.001-04:00

Innocence Project Wants State Pathologist's License Revoked

WAPT- Jackson, MS

Attorney's for the Innocence Project have asked that the medical license of a state pathologist be revoked.

Dr. Steven Hayne has come under scrutiny for his role in the murder convictions of two innocent men.

The group filed a formal complaint Tuesday with the Mississippi Board of Medical Licensure.

Peter Neufeld, Innocence Project co-founder, said the complaint outlines numerous alleged violations by Hayne, who uses the state Crime Lab to conduct autopsies in criminal cases on behalf of counties.

Dr. H. Vann Craig, executive director of the Board of Medical Licensure, wouldn't confirm that he had received a formal complaint because of a confidentiality policy.

In the early 1990s, Hayne testified in two separate trials that two children in Noxubee County had human bite marks on their bodies.

It was later determined the marks weren't caused by human teeth.

The men in those cases were cleared of charges earlier this year after another man allegedly confessed to the crimes.

The Innocence Project is a New York-based organization that takes on the cases of inmates who are believed to be wrongfully imprisoned.

2008-04-09T11:11:00.000-04:00

Judge Ponders Conviction Appeal in Weigle Case

By Jim Runkle

April 8, 2008

Lock Haven Express-Lock Haven, PA

Judge J. Michael Williamson has some doubt about whether the testimony of an expert witness can be considered a “fact.”

He appeared skeptical at a hearing Monday, as defense attorney Paul Ryan argued expert testimony — when it conflicts with earlier expert testimony — can set the stage for a reversal of conviction and a new trial.

The issue was raised in Clinton County Court in the case of the Commonwealth vs. Matthew Weigle. Williamson said he would consider the arguments and issue a written decision.

Weigle and his former girlfriend, Alexandra McClellan, were arrested May 13, 1997 and charged with murder and conspiracy in the 1996 beating death of McClellan’s 11-month-old son, Devin.

Both were found guilty of third-degree murder and conspiracy by a Susquehanna County jury on April 10, 1999 following a six-week trial, and sentenced to 18 to 38 years in prison.

Weigle is now serving his 11th year in prison.

McClellan won the right to a new trial, which was held late last year and resulted in a guilty verdict on the lesser charge of manslaughter.

She has since been set free.

Before that trial, McClellan’s attorneys argued her former attorneys were ineffective. Weigle’s new attorneys wanted to make that same argument, but were unable to do so because legal documents were not filed in a timely manner.

Ryan filed a petition on behalf of Weigle, claiming evidence that came to light during McClellan’s second trial represented “newly discovered evidence” and could be used to allow a new trial for Weigle.

In this and earlier hearings on the question, District Attorney Mike Salisbury has characterized the situation as “not new evidence but opinion.”

Using expert testimony as after-discovered evidence sufficient enough for a new trial, Salisbury said, would lead to a never-ending series of trials as defense attorneys shopped for opinion after opinion to bolster their clients’ cases.

At the first joint trial for McClellan and Weigle, a forensic pathologist testified the child died within 15 to 20 minutes after he received injury. At McClellan’s second trial, another forensic expert testified the child could have received his injuries many hours prior to his death.

The point is important because the second opinion expands the window of that child’s death to include times Weigle was not present in the house.

Other forensic testimony suggested the injuries could have occurred 24 hours before Devin died.

Ryan said the court could rightly believe the newly presented opinion was not new evidence — but had to look at the difference between 15 minutes and 24 hours as a “fact” for the purpose of considering a new trial.

At the time of the trial, Weigle’s attorneys attempted to present the expert opinion of their own forensic pathologist, Dr. John Shane, but chose not to, according to Weigle’s attorney, John Felix.

An attempt to submit the expert testimony of another forensic specialist, Dr. Michael Baden, was thwarted when then District Attorney Ted McKnight argued he had not been given the doctor’s reports and written opinion prior to trial.

Several experts were presented as witnesses at the subsequent McClellan trial. McClellan was found guilty of involuntary manslaughter — but not guilty of third-degree murder and conspiracy — last November.

Ryan argued McClellan’s acquittal should also clear Weigle of those more serious crimes. Further, he said the testimony of Dr. Baden qualifies as new evidence for the purpose of overturning his conviction.

Judge Williamson appeared to disagree with Ryan over whether the acquittal could play a significant role in Weigle’s legal battle. Williamson said he could see a scenario where the first jury could have acquitted McClellan of everything, “and it would not be inconsistent with what happened to Mr. Weigle.”

Weigle has been incarcerated at the State Correctional Institution at Greensburg since 1999.

2008-04-08T11:51:00.003-04:00

Is This America's Best Prosecutor?

Meet Dallas County District Attorney Craig Watkins

April 8, 2008

Radley Balko Reason Online Los Angeles, CA

In 2006, Craig Watkins became the first African-American elected district attorney of any county in Texas history. More interestingly, the 40-year-old Watkins was elected in Dallas County, where the DA’s office has long been known for its aggressive prosecution tactics. A former defense attorney, Watkins says the Dallas DA’s office has for too long adopted a damaging “convict at all costs” philosophy, an argument bolstered by a string of wrongful convictions uncovered by the Texas Innocence Project in the months before he was elected. Watkins ran on a reform platform, and pulled out a surprising victory against a more experienced Republican opponent.

After taking office, Watkins dismissed nine top-level prosecutors in the office. Nine others left voluntarily. He established a “Conviction Integrity Unit” to ensure proper prosecutorial procedures, and began working with the Texas Innocence Project to find other cases of possible wrongful conviction. reason Senior Editor Radley Balko recently interviewed Watkins by phone.

reason: What inspired you to not only not put up obstacles to a group like the Texas Innocence Project, but to actually work with them proactively to seek out wrongful convictions in Dallas?

Watkins: We had had several exonerations here in Dallas County before I was elected. So as a result of that, we felt it was something we needed to look into, to see if anyone else we may have prosecuted in this county was wrongfully convicted. We take seriously our charge by the code of criminal procedure to “seek justice.” That’s one our responsibilities, to make sure innocent folks aren’t convicted. And we find they are or have been, we have to do everything we can to rectify the problem.

reason: How should a prosecutor balance his time and resources between prosecuting present-day cases and looking for cases of wrongful conviction?

Watkins: Well, before we got here, there was no one working on innocence cases. So there was no balance, because no one was doing it. We just decided to start a whole new section of the office dedicated solely to innocence. And they’re not only looking for bad convictions, they’re also looking at what policies and procedures we can put in place to keep them from happening in the future. So we aren’t really taking time away from prosecutions. We’ve just added positions that didn’t exist before.

reason: What specific steps did you take after winning office to address this issue?

Watkins: The first thing we did was set up this “Conviction Integrity Unit” in the district attorneys office. We immediately staffed it with two attorneys and two investigators, and told them to look at 400-some-odd cases for which there was DNA available to test. So their responsibility right now is to look through those 400 cases to see if there’s reason to suspect a wrongful conviction. If they find cases, we’ll then collect the DNA and test it. If it shows the person in prison is innocent, we’ll start proceedings for an exoneration.

In addition to that, the unit has the responsibility of training the younger lawyers here in the office on the ethical side of a prosecutor’s job—things like the importance of properly dealing with exculpatory evidence. And we intend to have this section here in this office forever. This is not a pilot program. It’s something I’d like to see spread across the country—where DAs will actively seek out convictions that were obtained unfairly.

reason: What are some common stakes you’re seeing repeated in these innocence cases? Do they tend to be willful mistakes, or more due to negligence?

Watkins: It’s a combination of things. Negligence, prosecutorial misconduct, faulty witness identification. It’s just been a mindset of “conviction at all costs” around here. So we changed that philosophy. We aren’t here to rack up convictions. We’re here to seek justice. Once we can get over that win at all costs mentality, I think we’ll see fewer and fewer of these wrongful convictions.

reason: You talk about the mindset of winning convictions at all costs. The legendary law-and-order Dallas prosecutor Henry Wade, who held the job you now hold for many, many years, embodied that philosophy. He’s known to have actually boasted about convicting innocent people—that convincing a jury to put an innocent man in jail proved his prowess as a prosecutor.

Watkins: Oh yeah, it was a badge of honor at the time—to knowingly convict someone that wasn’t guilty. It’s widely known among defense attorneys and prosecutors from that era. We had to come in clean out all the remnants of that older way of thinking.

reason: It’s hard to imagine anyone opposing what you’re doing—seeking out and freeing the wrongfully convicted. Do you have critics?

Watkins: We’re encountering a lot of criticism right now. I think a lot of it is motivated by political party. The Republicans are losing power in Dallas County, and they’re trying to regain it. So they’re doing whatever they can, even making the political mistake of attacking the work we’re doing on wrongful convictions.

reason: What possible arguments could they make against freeing innocent people?

Watkins: Initially, their argument was that it’s not the role of a prosecutor to look for bad convictions—that that’s the role of a defense attorney. But that didn’t work very well for them. And it’s wrong. Both the criminal code of the state of Texas and the American Bar Association’s code clearly state that the job of a prosecutor is to seek justice. That means if a person is guilty, you try to convict him. If he’s not, you don’t. And if you have reason to believe someone has been wrongly convicted, you have a responsibility to fix that.

Their new argument is, “Is this cost effective?” Is this unit we’ve created a net benefit for Dallas County? I guess my response to that is that if we find even one more person who has been wrongly convicted, then yes, it is cost effective. So I think their arguments are off base. And they’re going to have a hard time convincing the public that what we’re doing isn’t necessary.

reason: Dallas County has the highest exoneration rate in the country. That’s in part because of a fluke. In the 1980s, the county started sending biological evidence to a private lab to be tested. That lab kept all of the evidence pretty well preserved, enabling it to be used in DNA testing today. So Dallas is one of the few places in the country where evidence from that era can still be tested. Do you think the system in Dallas was particularly corrupt or broken to cause all of these wrongful convictions, or would we be seeing the high numbers of exonerations we’re seeing in Dallas all over the country if similar efforts had been made to preserve evidence in other places?

Watkins: I think it’s mostly because evidence was preserved in Dallas. I don’t think there was anything unique about the way Dallas was prosecuting crimes. It’s unfortunate that other places didn’t preserve evidence, too. We’re just in a unique position where I can look at a case, test DNA evidence from that period, and say without a doubt that a person is innocent. They can’t do that in other places. But that doesn’t mean other places don’t have the same problems Dallas had.

reason: Your approach to your job is unique enough that it’s earned you some headlines. What do you think about the way we look at the role of a prosecutor today? Are the incentives too geared toward rolling up convictions?

Watkins: Well we’ve obviously had this political mantra over the last 30 years about “getting tough on crime.” And I think too often, buried in that mantra is the implication that there’s no room for fair justice. We’ve stripped away protections for the accused. And as a result, I think many prosecutors went into a case with blinders on—like everyone was guilty. The more convictions you won, the better your chances to get re-elected or to move on to higher office. We’re now seeing the fallout from that mentality. Hopefully, the problems we’re now encountering will help it to change.

reason: What reforms or checks should DA’s offices put in place to guard against wrongful convictions?

Watkins: Well you know police departments file cases with us. We need to guard against being a rubber stamp for every case the police department sends our way. We need to be more skeptical. We also need to train prosecutors to think about their jobs in a different way. We shouldn’t be judging young prosecutors by how many convictions they win, or by how many people they put in jail. I’d also like to see a change in the way appellate courts look at these cases. Appellate courts are often too reluctant to second-guess a jury. But if there’s evidence there that makes you question whether the jury got it right, I think they need to be more willing to open their minds and take that second look.

reason: But it’s established law in most places that appellate courts give considerable deference to the jury’s verdict. When they do intervene, it’s generally on procedural issues. They tend to pass on actually reviewing the evidence in a case. Seems like a tall order to change that.

Watkins: I think the mere fact that we’ve had so many exonerations ought to move them to take a closer look at the evidence in criminal cases. You’re right that cases are generally appealed on technical issues. But take eyewitness identification. It’s been proven time and time again in studies that eyewitness identification is extremely unreliable. Yet police, prosecutors, and juries still tend to put a lot of faith in them. And these same studies show there are some basic steps you can take make eyewitness identifications more reliable, but that also would result in fewer identifications, and fewer prosecutions. But if there are procedures available to increase the validity of a form of evidence, and police and prosecutors aren’t using it, then they’re deliberately increasing the chances of a wrongful conviction in order to get more convictions. And defendants aren’t getting a fair trial. And I think that’s something the appellate courts ought to look at.

You also have to look at changes in technology. We have new methods and procedures that are better and more reliable than the old way of doing things. But the law tends to be static. If we’re consciously not using the methods proven to be more effective and more reliable, we’re not giving defendants the fairest possible trial. Appellate courts should be looking at that, too.

reason: Given the novel approach you’ve taken to the job, what are your prospects for getting reelected?

Watkins: Oh, I don’t know. I mean, I don’t think about it all that much. I go into my job looking to make sure we administer justice in a fair way. I hope my record will speak for itself. I hope people will see that we take a balanced approach, here. We convict the guilty, and we free the innocent. I’d hope that that’s what people would ask from a district attorney, and from a fair criminal justice system.

2008-04-07T12:47:00.001-04:00

An Innocent Charged with Murder

April 7, 2008

Rob Reale- Baruch College The Ticker

Jeffrey Deskovic, a man wrongly convicted of rape and murder, gave a speech at Baruch last Wednesday, April 2. Deskovic's talk, lasting over an hour, was one of the most disturbing accounts of miscarriages of justice ever told. The organization that helped overturn Deskovic's conviction after 16 years, The Innocence Project, has another 215 convictions that it has helped overturn since its founding in 1992. Alpha Phi Delta, The Black Student Union and The Undergraduate Student Government sponsored the presentation.

In 1989, Jeffrey Deskovic was a 16-year-old high school senior living in Westchester, New York. When a female classmate had been murdered, there was an enormous public outcry since there had not been a murder in Peekskill in the last 25 years. Classmates noted that he was quiet and emotional at the funeral; they told this to the police who quickly decided that Deskovic must be the culprit.

Without an attorney and denied food, he was interrogated for seven and a half hours. Towards the end of that interrogation, the police threatened to assault him. He was told that he could go home after confessing, and that he would not go to jail, but instead receive psychiatric treatment. He gave a false confession, which essentially matched the officers' suggestions of how the murder took place.

However, DNA evidence had actually cleared Deskovic. Not only did the Westchester County District Attorney ignore this evidence, they fabricated a story to explain the evidence presented. The District Attorney fabricated a story where the victim had consensual sex before the rape - this alone did not raise any red flags. The lie became even more elaborate: the district attorney refused to test Deskovic to prove that the victim did indeed have consensual sex with him. At sentencing, the judge said, "Maybe you are innocent," and proceeded to sentence him to 15 years to life.

Deskovic spent 16 years in prison, mostly in the upstate Elmira prison which houses some of the state's most violent inmates. Deskovic states that there were three to four stabbings or cuttings per day. He discussed in detail, the horrible conditions, one of the most notable being when an inmate is assaulted. They were disciplined regardless of their role in the assault. Standard disciplinary action results in being restricted to a cell for 23 hours per day, two showers per week, no phone calls at all and being fed small quantities of food that was two to three days old.

Then, Deskovic told a story about his dying grandmother. His grandmother was his primary caretaker growing up and she became ill. Prison officials gave him the choice of visiting her on her deathbed or going to her funeral. They drove him four hours each way, wrists and ankles handcuffed, so he could spend exactly one hour with her.

In prison, Deskovic pursued an education, first getting his GED, then an associates degree. He started on a bachelor’s degree when former Governor Pataki cut funding for prison rehabilitation programs.

Deskovic detailed a 10-year-long appeals process in the span of an approximately 20 minutes. Then-District Attorney Jeannine Pirro (not the original prosecuting DA) twice argued against Deskovic's appeal. Once petitioning the court to deny a motion filed four days late, only because Deskovic's defence was late. The lateness was no fault of Deskovic or his lawyer; he had been given incorrect information by the court's own clerk.

In 2001, his final appeal, the United States Supreme Court declined to hear his case. After that, he spent years writing what he called "SOS letters" to beg for help. Every law firm he wrote to declined to offer pro bono services, but was happy to quote him exorbitant fees for their assistance; he received no replies from reporters or community groups.

From what he described as a "chance encounter" in 2005, Deskovic met a woman who encouraged him to contact The Innocence Project. He had contacted them in 1993, but DNA technology had gotten much more sophisticated, and so their policies for accepting cases had changed since that time. He applied to have his case heard, and six months later his case was accepted. The new Westchester District Attorney agreed to run the rape kit DNA against the state's database and there was a match for convicted murderer Steven Cunningham. Cunningham confessed to the crime and Deskovic was released from prison on Sept. 20, 2006.

Deskovic was released with nothing more than the clothes on his back. There is no policy or system in place to give the exonerated any financial support after leaving prison.

He continued his education and graduated with a bachelor's degree from Mercy College while on scholarship. He is currently awaiting the results of his LSAT test. He wants to become a lawyer and help other wrongfully convicted people.

According to the Department of Justice, over 2.5 million people convicted of crimes were incarcerated as of Dec. 31, 2006. A New York Times article from March 25, cites Professor Samuel R. Gross, a law professor at the University of Michigan, as calculating the false conviction rate for inmates sentenced to death as about two to five percent.

The article goes on to cite his estimation that 185,000 innocent people have served hard time in the past 30 years. Even with factoring in the lowest variable of about two percent, there are roughly 52,0000 innocent people serving time in jails and prisons across America. While it is not statistically accurate to extrapolate the two percent to the entire prison population, it is not an unrealistic estimation.

Baruch College sophomore Vincent Pullara, Jr. organized this event. Pullara has volunteered at The Innocence Project since February 2007 and showed a real passion for the cause in his opening remarks.

Through The Innocence Project, he has met people including Barry Scheck, Janet Reno and John Grisham. He is interested in coordinating more events on this topic, including educating students on their rights when dealing with the criminal justice system.

2008-04-04T12:18:00.001-04:00

Freed, He's Adjusting, Helping

By Max Baker

Fort Worth, TX- The Star Telegram

At 47, Charles Chatman feels like a new member of society.

Released from prison in January after serving about 27 years for a crime he didn't commit, Chatman is learning to use a debit card and a cellphone. When he celebrated his release with a judge, Chatman had to be taught how to use a knife to cut his food: Knives aren't allowed in prison.

"I try to base my life on the faith I had to get out. I don't dwell on the past," Chatman said Wednesday at the Texas Wesleyan University School of Law, where he spoke to students involved with the Innocence Project. "I try to live my life from this day on."

Chatman is the 15th inmate from Dallas County to be freed through DNA testing. He was convicted of raping a woman in 1981 and was sentenced to life in prison.

The Innocence Project of Texas, which includes students from Texas Wesleyan and other schools, helped secure Chatman's release. The luncheon at which Chatman spoke is an annual event.

Alibi goes unchecked

Wearing a small cross on a chain around his neck, the soft-spoken Chatman told the students and faculty about his almost three decades behind bars without a trace of bitterness or anger in his voice.

Chatman, 20 at the time he was convicted, said police initially picked up him up because he had fallen behind on probation fees resulting from a burglary conviction.

Chatman said he paid the fines, but before he could be released from jail he found himself in front of a judge being charged with the aggravated rape of a neighbor, a white woman he barely knew. Chatman said he was picked out because he was black.

Chatman said his court-appointed attorney showed very little interest in his case. He said the attorney didn't check out his alibi or mention in court that Chatman was missing his front teeth at the time of the assault.

"One day I called him, and he said that he was glad I called because I was going on trial the next day," Chatman said. "He was just going through the motions."

In prison, Chatman continued to profess his innocence. On at least three occasions, the parole board denied his release because he refused to apologize or admit to a crime.

"They wanted to know my version of the crime and I told them I didn't have a version, I didn't do it," Chatman said. "They thought I was being disrespectful."

A risky test

In 2001, Chatman read about the new state law making it easier to seek DNA tests. But there was little genetic matter left from the crime, and previous tests had been inconclusive. So the next test, one Chatman couldn't afford, would destroy what little material remained.

But the Innocence Project, which has been working with Dallas County District Attorney Craig Watkins to review questionable convictions, agreed to pay for the test as part of its case review.

"I got down to the last of it and it would consume it and I would be stuck," Chatman said. "The results is that I'm standing here today."

Chatman counts himself as lucky because he had a family to help him. He didn't get the standard $200 that inmates get upon release or access to programs to help them reintegrate into society.

Now, he wants to work with the Innocence Project to help others who have been released but have no one to help them.

"I'm dealing with it, but it's slow," Chatman said.

Funding for review team

On Tuesday, Chatman went with Watkins to ask Dallas County commissioners to fund a DNA evidence review team for two more years. The county agreed to pay $823,392 for the salaries of two attorneys, an investigator and a paralegal, said Jamille Bradfield, a spokeswoman for Watkins.

The Justice, Equality, Human Dignity and Tolerance Foundation also said it would provide $453,900 for DNA testing, contingent on the commission's funding, she said.

The Innocence Project is kicking in $36,000. The project is a consortium of innocence projects at Texas Wesleyan, Texas Tech University, the University of St. Thomas, the University of Texas at Arlington and the University of North Texas.

2008-04-03T11:30:00.000-04:00

Working for Exoneration

April 3, 2008

By: Megan Stephenson - The Daily Iowan

Wilton Dedge was a young 20-something man living in Florida when he was accused of rape and burglary.

The victim identified Dedge as her attacker from a photo lineup. Dedge was charged, convicted, and sentenced to two life sentences. More than 20 years later, Florida exonerated Dedge based on DNA evidence - he wasn't the perpetrator. Dedge can thank the Innocence Project, which spent eight years fighting for his freedom, for his eventual exoneration.

The UI College of Law's public-service department and the Innocence Project of Iowa hosted the award-winning documentary After Innocence on Wednesday. The film described Dedge's, as well as six others' trials and tribulations, to fix the system that wrongfully convicted them.

This event was "a good way to let the law community know what we're doing," said Jude Pannell, a first-year law student at the UI working with the Innocence Project.

The Innocence Project in Iowa is just the tip of the ideological iceberg. The national movement of public policy works to exonerate wrongly convicted people, often through DNA testing, and to reform the criminal-justice system. Since its inception in 1992, the Innocence Project has gained 215 post-conviction exonerations - 16 on death row.

Iowa was associated with Nebraska until last year, when lawyers around the state wanted to focus on Iowa cases. The Iowa Lakes Community College's paralegal program takes the cases and does initial screening. After a case is accepted, the Drake University and UI law schools support any testing and litigation with volunteer law students and attorneys. Because the Iowa chapter is so new, it has not yet started any cases, Pannell said.

He also said while the project would take more than just DNA-affiliated cases, it certainly makes it easier. The national Innocence Project found 75 percent of convictions overturned were because of DNA testing.

After Innocence addressed a significant problem associated with the exonerations: what the innocent convicts do after they are released. Many were still fighting the system years after their release. Among those people featured in the film is Nick Yarris, who spent 21 years on death row for a rape and murder he did not commit. He now protests the death penalty in Pennsylvania.

Compensation was another considerable issue to face. Many states have adopted or are debating financial compensation for wrongly convicted persons; Iowa has a reform compensation act. If the injured party pleaded not guilty, and her or his conviction is overturned, he or she is eligible up to $50 per day of incarceration, plus lost wages and lawyer fees.

"If someone knows they are innocent, they will look for opportunities to help themselves," Pannell said.

2008-04-02T10:59:00.001-04:00

Dallas County Commissioners

Approval of team salaries means DA can continue project for two more years

Wednesday, April 2, 2008

By Kevin Krause -The Dallas Morning News

Dallas County commissioners voted Tuesday to continue funding District Attorney Craig Watkins' DNA evidence review team for two additional years, with the help of a foundation grant.

Dallas County will pay $832,392 over the next two years for the salaries of the two attorneys, an investigator and a paralegal on Mr. Watkins' conviction integrity team that was formed last year.

Commissioners voted 3-1 to continue the funding, with Commissioner Kenneth Mayfield casting the lone dissenting vote. County Judge Jim Foster was absent.

A grant from the Justice, Equality, Human Dignity and Tolerance Foundation will contribute $457,600 toward post-conviction DNA testing.

The foundation had stipulated that the grant money would be available only if the county continued funding the four conviction integrity unit positions.

The Innocence Project of Texas is contributing $36,000.

James Giles, James Waller and Charles Chatman – three of the 15 men exonerated after being wrongly convicted in Dallas County and sentenced to prison – stood while Mr. Watkins addressed the commissioners.

"We're not using this as a political football," Mr. Watkins told commissioners. "We are blazing a trail here in Dallas County."

Mr. Mayfield opposed the DNA unit last year and reiterated his opposition Tuesday, saying defense lawyers can handle the task, working with the Innocence Project.

"This is overkill," he said. "We have a process in place and that process is working fine.

" Mr. Watkins, who has repeatedly clashed with Mr. Mayfield, said he's playing politics with the issue.

"Hopefully, he'll see the light some day," he said.

Alcohol hearings

Also on Tuesday, commissioners voted to make the county judge once again responsible for hearing alcohol permit and license applications.

That role had been delegated to the county clerk since 1989, after former County Judge Lee Jackson sought a change in state law.

But County Clerk John Warren said he didn't want to do it anymore, because the laws don't give citizens any recourse to fight alcohol license applications. He said it appears as if alcohol lobbyists wrote the laws.

"It's a waste of time for anyone to file a protest," Mr. Warren said. "It gives them false hope. There's nothing they can do."

Hearings are held about two or three times a year, he said. Judge Foster will now hear the applications.

Take-home car

Also on Tuesday, commissioners signed a letter to Precinct 5 Constable Jaime Cortes, notifying him that one of his employees, Sgt. Howard Watson, will lose his take-home county vehicle due to an accident while he was off-duty.

The district attorney's civil division will demand reimbursement from Sgt. Watson for repairs in the September 2007 crash, according to the letter. The district attorney's office will also decide whether Sgt. Watson committed any crimes, specifically misusing government property with the intent to obtain a benefit.

Last week, the commissioners voted against sending a letter to Mr. Watkins about two accidents he was involved in while driving a county vehicle.

2008-04-02T10:59:00.000-04:00

Dallas County Commissioners

Approval of team salaries means DA can continue project for two more years

Wednesday, April 2, 2008

By Kevin Krause -The Dallas Morning News

Dallas County commissioners voted Tuesday to continue funding District Attorney Craig Watkins' DNA evidence review team for two additional years, with the help of a foundation grant.

Dallas County will pay $832,392 over the next two years for the salaries of the two attorneys, an investigator and a paralegal on Mr. Watkins' conviction integrity team that was formed last year.

Commissioners voted 3-1 to continue the funding, with Commissioner Kenneth Mayfield casting the lone dissenting vote. County Judge Jim Foster was absent.

A grant from the Justice, Equality, Human Dignity and Tolerance Foundation will contribute $457,600 toward post-conviction DNA testing.

The foundation had stipulated that the grant money would be available only if the county continued funding the four conviction integrity unit positions.

The Innocence Project of Texas is contributing $36,000.

"We're not using this as a political football," Mr. Watkins told commissioners. "We are blazing a trail here in Dallas County."

Mr. Mayfield opposed the DNA unit last year and reiterated his opposition Tuesday, saying defense lawyers can handle the task, working with the Innocence Project.

"This is overkill," he said. "We have a process in place and that process is working fine.

" Mr. Watkins, who has repeatedly clashed with Mr. Mayfield, said he's playing politics with the issue.

"Hopefully, he'll see the light some day," he said.

Alcohol hearings

Also on Tuesday, commissioners voted to make the county judge once again responsible for hearing alcohol permit and license applications.

That role had been delegated to the county clerk since 1989, after former County Judge Lee Jackson sought a change in state law.

"It's a waste of time for anyone to file a protest," Mr. Warren said. "It gives them false hope. There's nothing they can do."

Hearings are held about two or three times a year, he said. Judge Foster will now hear the applications.

Take-home car

Last week, the commissioners voted against sending a letter to Mr. Watkins about two accidents he was involved in while driving a county vehicle.

2008-04-01T11:08:00.000-04:00

DNA Law is Needed

April 1, 2008

Rock Hill Herald- Rock Hill, SC

If a DNA test can free an innocent person from prison, the state should provide a path for inmates to request a test.

South Carolina now is one of only six states that has no state law allowing inmates to seek exoneration through DNA testing. Recently, state Sen. Gerald Malloy, D-Darlington, introduced a bill known as the Post-Conviction DNA Procedures Act that would give an inmate the right to apply for DNA testing of evidence in the county in which he or she was convicted.

Approval of the test would not be automatic; the court could dismiss the application. But if the test were approved, victims would be notified and the solicitor would be required to secure all evidence that might subjected to testing.

Some critics worry that crime victims would be burdened with reliving the crime, especially after many of them already have endured that discomfort during a trial. Lawmakers also must wrestle with the difficulty of preserving evidence that might be tested. And there is the question of who will pay the estimated millions of dollars required to run the program.

But the bill's supporters, including many prosecutors, support allowing convicts the right to seek DNA testing. The cost and inconvenience are insignificant, they argue, if the tests keep innocent people from serving time in prison.

With 44 other states already allowing prisoners the right to request DNA tests, we see no reason why South Carolina should hold out against the tests.

DNA testing has proven its value in exonerating the innocent. While the results of the tests are not always definitive, they do have the capability of eliminating people as suspects or pointing a finger at the real culprit.

In a number of recent cases, prisoners have been freed after spending years in jail, only because of DNA testing. Part of the reasons they had to wait that long was because DNA testing wasn't widely used until the 1990s. Now, with procedures that are easily administered and accurate, the tests are becoming more widespread.

As a result, innocent people may spend less time behind bars before being exonerated. Also, the evidence is likely to be fresher.

A national organization known as The Innocence Project lobbies for the use of DNA technology to help wrongly convicted inmates. Barry Scheck, a member of the O.J. Simpson defense team and a co-founder of The Innocence Project, spoke to the Senate Judiciary Committee recently in support of Malloy's bill.

"Simply put, nobody wins when an innocent person is convicted," Scheck said. "Not the victims, the police, the prosecutors, the courts or the public."

That sentiment seems unassailable. We hope that DNA testing becomes commonplace in any case where evidence could provide an answer as to the guilt or innocence of a prisoner.

And we hope that as this testing does become more common, South Carolina has a law in place that gives inmates a right to request it.

State should pass law allowing inmates to request DNA testing to prove innocence.

2008-03-27T11:42:00.002-04:00

Speakers Oppose Penalty

Three Anti-Death Penalty Advocates Spoke Last Night for a Panel titled Voice of Hope, Agents of Change.

By Ashley Bressler

The Daily Collegian Online- University Park, PA

As part of an effort to encourage Penn State students and the State College community to rethink major social issues and engage in discussion, anti-death penalty advocates spoke at the panel, Voices of Hope, Agents of Change, last night.

Harold Wilson, Frank Baumgartner and Rev. Walter Everett spoke of the new way the death penalty is being discussed.

Wilson, of Philadelphia, spent more than 16 years on death row in Pennsylvania for crimes he never committed.

After several trials, DNA testing and elimination of the racial disparities that influenced his original trial and sentence, Wilson was released in 2005.

"I'm the 122 person in the U.S. to be exonerated and the sixth person in Pennsylvania. It's a title that many people wouldn't know what it really means," Wilson said. Baumgartner, professor of political science, said there has been a shift in the way Americans discuss capital punishment.

The shift focused more on the faces of people who have been exonerated, the people who were wrongly convicted and were sentenced to years in prison.

Baumgartner said there are 228 people currently on death row in Pennsylvania, but that only three inmates have been executed since 1976.

He said 60 to 70 percent of death sentences are thrown out when reviewed by federal judges and are given a new trial.

"They're not all vicious criminals, some of them just got caught up in the system," Baumgartner said.

Everett, who represents victims' families against the death penalty, said he has been actively advocating against the death penalty throughout his entire adult life.

"I've always been opposed to the death penalty on religious ground, moral ground, and on practical ground, but it all came to home when my son was murdered 20 and a half years ago," Everett said.

Everett said he was angry after his son's death, but that he knew the only way he would find closure was to forgive the person who murdered his son.

He said once he was able to find forgiveness, his healing began.

"Society is out for vengeance, but the vengeance does nothing for the families of the victims," Everett said.

The panel discussed the many racial and economic disparities associated with the death penalty.

Wilson said he was not only wrongly accused, but the wrongful conviction was a direct result from lack of funding during his trial. He said his family hired a lawyer, but his trial was still seriously hindered by lack of funding.

"If you don't have the capital, you'll get the punishment," Wilson said.

He said because Pennsylvania restitution laws have not been changed, all of the six individuals who have been exonerated from death row are still waiting restitution.

"The only thing I've received was a 65 cent bus token," Wilson said.

2008-03-26T10:53:00.001-04:00

Innocence Project Event Aims to Help Wrongly Convicted

Leslie Griffy-San Jose Mercury News San Jose, CA

March 26, 2008

The wrongfully convicted, their supporters and members of the legal community will gather at Santa Clara University this weekend for three days of seminars and presentations at an event sponsored by the Northern California Innocence Project.

The weekend event kicks off Thursday with an awards dinner. Among the honorees will Antoine Goff, who was falsely convicted of a murder in 2007; former California Attorney General John Van de Kamp; Innocence Project Advisory board member Frank Quattrone; and Dana Nachman and Don Hardy, who made a documentary film about John Stoll, who spent 20 years in prison for crimes he didn't commit.

Starting Friday, the project will host the Innocence Network Conference, where the wrongly convicted can learn about starting their lives again after years of imprisonment, those wishing to start an innocence project can get advise on how to begin and current innocence project leaders can share stories.

2008-03-25T10:33:00.001-04:00

Santa Clara University: Northern California Innocence Project Hosts Inaugural Justice for All Awards Dinner

Santa Clara, CA Business Wire Press Release

March 25, 2008

Santa Clara University’s Northern California Innocence Project (NCIP) will host its inaugural Justice for All Awards Dinner on March 27, honoring individuals for their work on behalf of the wrongfully convicted. The awards dinner comes on the eve of the 2008 Innocence Network Conference which will be held at Santa Clara University March 28–30.

“The Justice for All Awards Dinner provides the opportunity for our supporters to meet the exonerees whose lives they have touched, hear their stories, and see firsthand why the Innocence Project fights tirelessly for justice,” said Kathleen “Cookie” Ridolfi, director of the Northern California Innocence Project.

Inaugural Justice for All Awards Dinner, March 27: This event will be held at the Fairmont Hotel in San Jose on March 27 and will honor five individuals for their work on behalf of the wrongfully convicted. Award recipients are Frank Quattrone, NCIP’s Advisory Board Chair; John Van de Kamp, chair of the California Commission on the Fair Administration of Justice; exoneree Antoine Goff; and Dana Nachman and Don Hardy, local documentary filmmakers who worked closely with the NCIP on their film “An American Witch Hunt.” Attorney Barry Scheck will give the keynote address.

2008 Innocence Network Conference, March 28–30: The national conference will take place this year at Santa Clara University, home base of the NCIP. The three-day conference brings together hundreds of people who work against wrongful convictions.

Among those attending the conference are attorneys, educators, civic and business leaders, and exonerated individuals who have been wrongfully convicted and imprisoned. John Van de Kamp, former state attorney general, will participate in the conference, along with speakers representing Innocence Projects from Hawaii, Wisconsin, Connecticut, Georgia, North Carolina, Virginia, Ohio, New York, and New Orleans, including the co-founders of the first Innocence Project, professors Barry Scheck and Peter Neufeld of Cardozo School of Law. Conference sessions are closed to the media. Photos will be available following the conference. For more information about the conference or photos, please contact Amy Kennedy at 408-551-3000 x6189 or aekennedy@scu.edu.

Hearing on the Death Penalty, March 28: The California Commission on the Fair Administration of Justice will be holding its third and final public hearing at Santa Clara University from 9:30 a.m.-12:30 p.m. The hearing will address the fair administration of the death penalty in California. Visit the commission’s Web site at http://www.ccfaj.org/ for more information.

About Santa Clara University Santa Clara University, a comprehensive Jesuit, Catholic university located 40 miles south of San Francisco in California’s Silicon Valley, offers its 8,685 students rigorous undergraduate curricula in arts and sciences, business, and engineering, plus master’s and law degrees and engineering Ph.D.s. Distinguished nationally by one of the highest graduation rates among all U.S. master’s universities, California’s oldest operating higher-education institution demonstrates faith-inspired values of ethics and social justice. For more information, see http://www.scu.edu/.

2008-03-24T10:27:00.002-04:00

Last Chance for Bills On Videotaped Questioning, Photo Lineups by Police

By Zach Lowe-Stamford Advocate Stamford, Connecticut

March 24, 2008

Legislators on the Judiciary Committee today will consider bills that would require police to videotape interrogations and change the way officers conduct photo lineups.

Versions of the two bills have failed for half a dozen years, in part because of opposition from law enforcement. But lawmakers hope they can pass a compromise version of each bill, and that, if passed, the changes would prevent the conviction of innocent people.

To be considered by the full assembly, the bills must be voted out of the Judiciary Committee by 5 p.m. today, said state Sen. Andrew McDonald, D-Stamford, co-chairman of the committee.

They may get lost in the shuffle amid debate over Gov. M. Jodi Rell's proposed sanctions for sex offenders and a proposal to take DNA samples from more offenders, McDonald said.

The first bill, sponsored by Senate Majority Leader Martin Looney, D-New Haven, would require police to videotape interrogations of suspects in serious felony cases.

The passage of such a sweeping bill is unlikely despite support from the state's public defender and advocates for the mentally ill, said state Rep. Mike Lawlor, D-East Haven, a former prosecutor and co-chairman of the Judiciary Committee.

Officials with the state Division of Criminal Justice oppose the bill because they want decisions on interrogation left to each department, according to testimony submitted last week.

"Absent a pattern of abuse or false confessions, law enforcement techniques should be left to law enforcement," officials testified.

Advocates for mentally ill people said jurors should be able to see whether police coaxed a vulnerable suspect into confessing after hours of questioning.

"I am sure I could get most people with an intellectual disability to sign a confession to a crime they didn't commit," said Lynn Warner, executive director of the Arc Connecticut, an organization that supports people with mental disabilities.

But police officials said jurors may overlook a defendant's obvious guilt if they find they don't like something about a taped interrogation.

Law enforcement officials said two state police divisions and four police departments will start taping interrogations this year for a pilot program.

Further action is unlikely, partly because it would cost a lot to buy videotaping equipment for all police departments, Lawlor said.

But the committee could pass a bill mandating that the state Advisory Commission on Wrongful Convictions continue studying the issue for future legislation, Lawlor said.

"This is not something you want to do overnight," he said.

The second bill would force police to conduct photo lineups by showing a witness the photos one at a time instead of all at once. To avoid influencing the witness's choice, the lineup would have to be done by an officer who does not know which photo shows the suspect.

The bill has the partial backing of the Innocence Project, a New York group that seeks to overturn wrongful convictions. Judges have overturned 214 convictions in the United States, said Stephen Saloom, policy director for the Innocence Project. A faulty eyewitness identification played a role in 75 percent of those cases, Saloom testified.

There is debate over whether showing a witness photos one by one leads to more accurate identifications.

Studies seemed to favor the sequential approach until 2006, when police in Chicago issued a report showing that method might produce more mistaken identifications.

Many experts, including those at the Innocence Project, have rejected the Chicago report, but it stoked so much controversy that states are reluctant to enact the sequential procedure, experts testified last week.

Law enforcement officials also testified that it is "impractical" to require that the lineup supervisor know nothing about the case.

"The majority, if not all, detectives are well aware of major investigations," said John Danaher, commissioner of the state Department of Public Safety.

The bill would require the so-called "blind" supervisor only when "practicable" because smaller departments may have trouble finding an officer with no knowledge of the case, Lawlor said.

Police statewide have adjusted witness lineup protocols since 2005, when the state Supreme Court ruled judges could tell jurors about some irregularities, Lawlor said.

Police now routinely remind witnesses that the suspect may not be in the lineup.

Lawlor said it might be possible to pass the bill without the sequential provision. It would be another step toward cutting the number of wrongful convictions, he said.

"We have to keep the momentum going," Lawlor said.