Editorial: Junk science or not?

October 30, 2007

The Baltimore Sun

The controversy over Baltimore County Circuit Judge Susan M. Souder's decision to throw out the testimony of a fingerprint analyst in a death penalty trial hasn't stopped. Her opinion has reached universities, judicial chambers and evidence labs across the country. But it's the National Academy of Sciences review of the forensic science field now under way that could have real implications for analysis of fingerprints, hair and other physical evidence - and their use in criminal trials nationwide.

The academy's Committee on Science, Technology and the Law should expedite its review and help settle an ongoing dispute over the supposed infallibility of fingerprint analysis, a claim that critics contend is based on "junk science."

In her recent ruling, Judge Souder found the traditional method of fingerprint analysis to be "a subjective, untested, unverifiable identification procedure that purports to be infallible." Excluding the fingerprint analyst as an expert witness has wrecked the state's case against defendant Bryan Keith Rose, which relied on partial fingerprints to link him to the murder, and reignited a debate that surfaced in 2002 when a federal judge in Philadelphia issued a similar ruling. That judge later reversed his decision, and the issue got little notice but for the nagging concerns of some scientists and the preoccupation of a few defense attorneys who found the evidence suspect.

But then Judge Souder issued her Oct. 19 decision on a motion by Mr. Rose's public defenders. County prosecutors have since asked her to reconsider the ruling, which isn't binding on any other court and can't be appealed.

The National Academy of Sciences study, commissioned by Congress last year at the urging of Sens. Barbara A. Mikulski of Maryland and Richard C. Shelby of Alabama, has a broad charge: to ensure that the forensic science community has the funding and support needed to do its job. But the panel, whose members include judges, scientists and forensic examiners, has the leeway to go beyond funding questions and has discussed, among other things, the method of fingerprint analysis at issue in the Rose case.

This expert, independent panel is in the best position to assess the integrity of the process and determine what, if any, changes need to be made to policy and protocols. Fingerprint analysis has been a mainstay of criminal investigations for nearly a century, but the findings of the academy panel could go a long way toward answering serious questions about the evidence, improving the justice system and protecting the rights of all.

Innocence Projcet founder calls for eyewitness standards

October 22, 2007

By Shannon McCaffrey, Associated Press

The founder of the Innocence Project on Monday called for standards governing eyewitness identification in Georgia criminal cases, warning that there is a greater risk of sending the wrong person to prison without them.

Famed O.J. Simpson lawyer Barry Scheck said that there is widespread agreement within law enforcement circles on "best practices" in conducting lineups, and that following them will reduce the chances of misidentifying a suspect, he said.

Scheck testified on Monday before a House study committee weighing whether to create statewide standards in Georgia, where six men were jailed for years on the strength of eyewitness IDs before being cleared through post-conviction DNA analysis.

Scheck's New York-based Innocence Project has helped exonerate 208 people across the country through DNA evidence.

"The criminal justice system has to become more scientific in areas where we can prevent errors," Scheck told the panel.

A recent survey by the Georgia Innocence Project found that 83 percent of 296 police departments surveyed had no written protocol in place governing how to conduct lineups.

Scheck called that "a serious problem" that could make them vulnerable to costly civil lawsuits. Federal courts have recently allowed civil claims from wrongfully incarcerated inmates to reach a jury trial. Those without written policies could face steep damages.

Defense lawyers have also begun attacking the lack of policies or police training on eyewitness IDs during criminal trials, Scheck said.

Monday's study committee hearing also elicited emotional testimony from Jennifer Thompson-Cannino, a North Carolina woman who named the wrong man as her rapist in 1984. Ronald Cotton spent 11 years in prison before he was exonerated by DNA evidence.

The two have since become friends and hit the road together to give talks about the vulnerabilities of eyewitness identification. They appeared together in a documentary "What Jennifer Saw."

Thompson-Cannino, a 22 year-old college student when she was attacked, said she studied her rapist closely so that she could identify him afterward. At one point, she even made a point of standing next to him so she could get a good sense of his height.

"I was a good witness," she said. "The night I was raped I knew what I saw."

But she described how her memory was corrupted by well-intentioned police who had her help an artist draw a composite sketch and then look at photos. After she picked out Cotton, police rewarded her with "good job," which reinforced her belief that she had nabbed the right man.

"I'm a good person. I made a mistake," she said.

The House panel is hearing testimony about whether it is better to show witnesses photos of potential suspects sequentially, rather than all at once. They are also looking at whether the lineup should be "double-blind," meaning that the investigator running it should be in the dark about the suspect's identity. That would prevent any intentional or unintentional signals to the witness about whom to select.

The larger question is whether the state should pass a law mandating certain procedures or if it should simply provide guidance and leave the details up to police training officials.

Law enforcement officials have warned against passing a law mandating how police must conduct eyewitness identifications, saying it could handcuff officers looking to solve crimes.

One of the panel's members, Republican Rep. Ed Setzler of Acworth, said he has concerns that placing a detailed set of guidelines into law could provide defense lawyers with an easy route of attack if police failed to adhere to even the smallest detail.

Leahy says Justice Department is ignoring DNA program

October 25, 2007

Charles Davis, Vermont Public Radio

The following is the transcript of a news report aired on VPR

Senator Patrick Leahy says the Department of Justice is ignoring a law passed by Congress that would help convicts prove their innocence through DNA testing. VPR's Charles Davis reports from Capitol Hill.

(Davis) The grant program was designed to help state officials pursue DNA testing in cases where it could prove guilt or innocence. However, three years after Congress approved the $8 million dollar program, Justice officials haven't awarded any of it. Leahy says that's inexcusable.

(Leahy) "I think it's wrong to say, ‘sure, we support a bill,' as they did when it was going through. The president signs it, and with a wink and a nod they don't follow the law. For some reason this administration, especially this Justice Department, feels they don't have to follow the law. I think that's wrong."

(Davis) To qualify, states are required to show that they have a practice of preserving criminal evidence. But that's not quite how the Department of Justice has interpreted it. While similar grant programs merely require a few signatures to certify compliance, not so for the DNA testing grant. For that, the department requires a state's attorney general to write a formal legal opinion describing in detail how their state qualifies.

(Saloom) "It seems to me that the Department of Justice has chosen to transform the congressional requirement for these grant programs into something as stringent as possible."

(Davis) That's Stephen Saloom, the policy director at the Innocence Project, which works to use DNA testing to free those falsely imprisoned. He's careful not to say the Department of Justice purposely put up obstacles to the grant, but he says it certainly appears that way. Justice officials say the problem isn't with them, but with the law itself. They say it is written in such a complicated way that it's almost impossible for states to qualify.

Congressman Peter Welch doesn't buy it. (Welch) "What can be all that complicated about allowing states to have grant money to conduct DNA tests on questions of innocence? ... It's not rocket science, so it sounds like it's stonewalling."

(Davis) The Department of Justice's interpretation of the law prevented all but three states from even applying for the grant. All were rejected. Officials for those states say they were never given a reason why, and likely won't bother applying again. And that angers Welch.

(Welch) "It's outrageous. I mean Senator Leahy's whole point is about justice, and DNA is a tool that can be used to determine, conclusively, whether somebody's guilty or their innocent."

(Davis) Senator Leahy says he thinks he may be able to work out a solution with the Department of Justice. But he's also threatening to withhold funding for the entire department unless officials meet his demands. Justice officials in Washington did not respond to several calls for comment.

Rape conviction gone, stigma isn't

20 years later, DNA clears man of crime

October 22, 2007

By Gerry Smith, Chicago Tribune

Two weeks after his release from prison in March 1991, Marcus Lyons arrived at the DuPage County Courthouse carrying a wooden cross.

As police tried to intervene, Lyons stepped onto a small platform attached to the bottom of the 8- by 6-foot crucifix, lifted a hammer and drove a nail into his foot.

It was a cry for help. Lyons had just served 3 years in prison for a rape he said he didn't commit.

"I needed someone to listen," he said in a recent interview.

A few years ago, someone finally did. A new attorney took his case, and last month, after DNA evidence from the 1987 crime proved his innocence, Lyons' conviction was dismissed by DuPage County State's Atty. Joseph Birkett -- the same prosecutor who tried the case.

Lyons' exoneration is another illustration of the impact DNA technology has had on the criminal justice system, shedding new light on cold cases that often hinged on witness identifications.

But beyond the legal ramifications lies a deeper, more personal story of frustration and redemption, of the extreme measure one man took to vindicate his tarnished reputation and his bitter 20-year wait.

'A perfect storm'

In 1987, Lyons was a slim 29-year-old Navy reserve officer engaged to be married. He lived in west suburban Woodridge, took courses at the College of DuPage and worked as a computer operator at AT&T.

On weekends, he spent time with his four brothers, roller skated with friends and rode his motorcycle along the lakefront. He looked forward to returning to active duty, perhaps being stationed at Pearl Harbor.

"Everything was going great," Lyons recalls.

But on Nov. 30, a 29-year-old white woman who lived at the Maple Lake Apartments told police she had been raped. She described a black man who knocked on her door, identified himself as "Mr. Williams from downstairs" and asked if he could use her bathroom, according to police records.

A composite sketch of the attacker was shown to two other women who lived in the apartment complex. They said it looked like one of their neighbors -- Marcus Lyons.

Lyons wasn't surprised that he resembled the attacker.

"I was the only black male in the apartment complex," he says.

In addition, the victim pointed out Lyons in a police lineup and in a photo array. Although Lyons maintained he was home at the time of the incident, he gave police conflicting accounts of his whereabouts earlier in the day. And the victim's description of the attacker's clothes, which included a pair of brown polyester pants, matched garments that Lyons owned, Birkett said.

Lyons was arrested and charged with criminal sexual assault.

"It was the perfect storm for the type of case that may result in a conviction," Birkett said in a recent interview.

Lyons says his brown polyester pants were a size 32 and could never have fit the victim's description of the attacker, who she said weighed 200 pounds and had a "large belly and hips." In addition, the victim requested to view the police lineup a second time, although police records do not indicate why.

The all-white jury deliberated for less than three hours after a four-day trial, according to one of the jurors, who asked that her name not be used.

In the end, the jury was swayed by Lyons' resemblance to the composite sketch and the demeanor of the victim, who was "shaking like a leaf" on the stand and "really gave the appearance that she was scared of this guy," the juror said.

Lyons was sentenced to 6 years in the Illinois Department of Corrections and was appointed a new lawyer, George C. Howard, to appeal his conviction. But Howard never did.

"While I was in jail, I was asking him what was happening," Lyons said. "He said he was working on it."

Lyons did his time without incident. But just two weeks after he was released early on parole, facing a future as a registered sex offender, he was frustrated. And desperate. Hoping to get the U.S. Navy to hear his plight, Lyons dressed in his reserves uniform, carried a cross on his back and tried to crucify himself outside the courthouse where he was tried and convicted.

The stunt, which cost Lyons a $100 fine for disturbing the peace and a week in an Elgin mental health facility, showed the depths to which the wrongfully convicted will go to clear their names, said Vanessa Potkin, a staff attorney at the Innocence Project, which investigates such potential cases.

After losing their freedom, Potkin said, they enter society devoid of things they once took for granted, such as relationships and possessions.

"All they have left is their word," she said.

In search of a new life

Pushing 50 now, his hair speckled with gray, Lyons looks different than the man who went to prison two decades ago. He lives in Gary and rarely sees his brothers, who are scattered across the country. He combats bouts of depression with prayer.

Though he became a certified biomedical engineer through courses he took in prison, Lyons says finding work has been nearly impossible. And so he has found jobs with employers who were less selective, such as working at a sewage treatment plant.

His personal life also suffered. After his conviction, his fiance left him. Other relationships fizzled as fast as he could tell his story.

"You tell a woman you're a convicted sex offender and she's gone," Lyons said. "Can you blame her?"

Lyons is one of more than 200 convicts to be exonerated by DNA evidence over the last decade. About 75 percent of those cases involved misidentification by witnesses.

At the time of Lyons' conviction in 1987, DNA technology was still in its infancy. But in 2002, Lyons read an article about a case in Lake County involving a man who was convicted of sex assault and later exonerated by DNA evidence. Lyons contacted the man's attorney, John Curnyn, who agreed to take his case.

Curnyn found that two key pieces of evidence -- rape kits and cutouts of the victim's garments -- were missing from a laboratory 15 years after the crime. Birkett said missing evidence is not unusual in cases in which an appeal was not filed.

However, one garment that had never been tested for DNA was still there, what Curnyn calls "a fluke of chance." Last month, Birkett vacated Lyons' conviction after DNA evidence found that a semen stain on the victim's bra didn't match his sample.

"If we make a mistake, we want to make sure we correct it," Birkett said. "As far as I'm concerned, Marcus Lyons deserves to have his record cleared."

Birkett said Lyons has no other criminal record in DuPage County, and a check of Cook County records showed no record for him there either.

Upon learning of Lyons' exoneration, the juror, who now counsels victims of rape and sexual assault, said, "I just feel bad."

"I wish they had DNA back then," she said.

After the proper motions are filed, Birkett said, Lyons' name will be struck from the sex offender database. This spring, Lyons will seek clemency, a necessary step toward possible compensation for the three years he was incarcerated, Curnyn said.

Meanwhile, the DNA sample taken from the victim's garments remains on file, and if a match ever registers, that person will be investigated, Birkett said.

But for Lyons, the scars remain.

"Imagine, for 20 years, trying to tell the world you didn't do it," Curnyn said. "He's going to carry this baggage for the rest of his life."

Lyons said he is ready to move on now, find a better job, perhaps a wife. But he says he may never forgive his accuser or the prosecutors who argued to put him in prison -- a place that still haunts him two decades after his conviction.

"You never forget the sound of a cell door closing on you," Lyons said. "It wakes you up at night, and you wonder if this is all still just a bad dream."

Judge bars use of partial prints in murder trial

October 23, 2007

By Jennifer McMenamin, Baltimore Sun

A Baltimore County judge has ruled that fingerprint evidence, a mainstay of forensics for nearly a century, is not reliable enough to be used against a homicide defendant facing a possible death sentence - a finding that national experts described yesterday as unprecedented and potentially far-reaching.

Baltimore County Circuit Judge Susan M. Souder's order bars prosecutors from using at trial the partial fingerprints lifted from the Mercedes of a Security Square Mall merchant who was fatally shot last year during an attempted carjacking at the shopping center. Prosecutors say the fingerprints - as well as those found in a stolen Dodge Intrepid in which witnesses said the shooter fled the mall parking lot - link a 23-year-old Baltimore man to the killing.

In her ruling, Souder outlined the long history of fingerprinting as a crime-solving tool but says that such history "does not by itself support the decision to admit it." In explaining her reasoning in a 32-page decision, the judge leaned heavily on the case of an Oregon lawyer mistakenly linked through fingerprint analysis to the 2004 Madrid train bombings.

With defendant Bryan Keith Rose scheduled to go to trial today in Towson, prosecutors and defense attorneys in the capital case declined to comment yesterday on the judge's ruling.

But others who have researched the issue and litigated cases involving fingerprint evidence said the decision - if it stands up on appeal - could have implications that reach even beyond the use of fingerprint evidence in criminal courts.

"The repercussions are terrifically broad," said David L. Faigman, a professor at the University of California's Hastings College of the Law and an editor of Modern Scientific Evidence: The Law and Science of Expert Testimony.

"Fingerprints, before DNA, were always considered the gold standard of forensic science, and it's turning out that there's a lot more tin in that field than gold," he said. "The public needs to understand that. This judge is declaring, not to mix my metaphors, that the emperor has no clothes.

"There is a lot of forensic science that is considered second to fingerprinting," Faigman added, mentioning firearms and toolmark analysis, hair identification, bite pattern analysis and evidence used in arson investigations as examples. "If fingerprinting turns out to not be so good, people could start questioning that science as well."

The technology has come under scrutiny in recent years.

Stephan Cowans, a Boston man who spent six years in prison for the shooting of a police sergeant, was released in 2004 after the discovery that the fingerprint used to convict him was not his.

That same year, the FBI mistakenly linked Brandon Mayfield, an Oregon lawyer, to a fingerprint lifted off a plastic bag of explosive detonators found in Madrid after commuter train bombings there killed 191 people. Two weeks after Mayfield's arrest, Spanish investigators traced the fingerprint to an Algerian man.

The U.S. Justice Department issued a formal apology last year to Mayfield and awarded him $2 million.

Souder, the Baltimore County judge, referred repeatedly in her opinion to that case, as well as a March 2006 report from the Justice Department's internal investigators on the FBI's handling of the matter.

In the Mayfield case, three FBI fingerprint examiners and an independent court-appointed fingerprint analyst determined that the fingerprint on the bag of detonators belonged to the Oregon attorney.

"Up to that point, [the government] had maintained that if you have a competent examiner, the technique of fingerprinting can't produce a misidentification. Mayfield exposed that as a fallacy," said Robert Epstein, an assistant federal defender in Philadelphia who in 1998 was among the first lawyers to challenge the reliability of latent fingerprint identifications.

In the Baltimore County murder case, defense attorneys challenged the admissibility of fingerprint evidence that linked Rose to the killing Jan. 5, 2006, of Warren T. Fleming, the owner of a Cingular Wireless store at Security Square Mall.

Rose was arrested 13 days after the shooting after police received a call saying the "ringleader" of the attempted carjacking was a man called "Sticky," a nickname that was recognized as Rose's, according to court records.

At a pretrial hearing in May, prosecutors argued that fingerprint evidence has been accepted by the courts and relied upon for nearly 100 years. Defense attorneys countered that there is no similar history of subjecting the evidence to scientific review.

"The state is correct that fingerprint evidence has been used in criminal cases for almost a century," Souder, the judge, wrote in her decision. "While that fact is worthy of consideration, it does not prove reliability. For many centuries, perhaps for millennia, humans thought that the earth was flat."

She criticized the common method of fingerprinting as overly subjective and lacking in standards. She discounted the proficiency tests that the state's expert witness testified about. And she characterized as "neither credible nor persuasive" testimony that fingerprinting is an infallible methodology.

Souder acknowledged that the crime lab technicians' conclusions that Rose's fingerprints match those found on the cars "appear to be the heart of the state's case."

Issued late Friday afternoon, the judge's decision has already attracted significant attention within the world of forensic sciences. The decision was included in yesterday's edition of The Detail, an e-mail newsletter distributed by fingerprint examiners.

Set free by DNA, he tells his story to give hope to others

October 23, 2007

Contributed by Kiawana Rich, Staten Island Advance

In the United States, an individual is presumed innocent until proven guilty.

Forty-six-year-old Alan Newton, who served nearly half his life in prison for a crime he did not commit, was not afforded that right.

In 1985, Newton was convicted of rape, robbery, and assault committed in the Bronx and sentenced to 40 years behind bars.

He had tried unsuccessfully to have the rape kit in his case tested for DNA. But it wasn't until lawyers from the nationally acclaimed Innocence Project became involved that a judge granted Newton's request.

After the rape kit was found, DNA evidence exonerated Newton, and after serving 21 years, the Brooklyn man was released from prison in 2006.

But his work is not done.

Now a student at Medgar Evers College in Brooklyn, with plans to study law, Newton is often a guest lecturer for the Innocence Project, a nonprofit organization started in 1992 to assist prisoners who may have been wrongly convicted and whose innocence could be proven through DNA testing.

Currently, 208 people, including some on death row, have been freed through its efforts. Last night, Newton shared his story with about 60 people during a lecture in Wagner College's Spiro Hall, Grymes Hill.

In his case, Newton noted, there were some major problems including mistaken eyewitness identification and preservation of evidence.

Unique to his case, the woman was initially attacked once in a park, then attacked a second time in a building. Both the woman and a store clerk identified Newton as the attacker. There were two sets of charges for each location. While Newton was acquitted of the park attack, he was convicted of the building attack, despite testimony he spent the night in Queens with his fiancee.

For 12 years after he was in prison, he kept fighting his conviction, filing motions in state and federal courts to get the DNA evidence tested. Claims were made that the kit couldn't be found, it had been misplaced or was presumed destroyed.

"All these different responses told me something wasn't kosher," said Newton. "It gave me the inspiration to keep the litigation going."

In 2005, with the help of the Innocence Project, the rape kit was found in the same evidence barrel it had been placed in years earlier. "They found the evidence," Newton said, "after years of telling me they couldn't find it."

"The system is broken in many ways," said Rebecca Brown, a policy analyst for the Innocence Project. "We know something is wrong there and we want to know what we can do to fix it."

Mistaken eyewitness identification is a problem in 75 percent of cases, she said, as well as preservation of biological evidence.

"It shows us until we can say with utter certainty that mistakes aren't happening, that we should not be using the death penalty," she said.

Wagner College sociology professor Michael Christiano, 59, of Great Kills, said the lecture is part of a new "death penalty sociology course" he developed to challenge students and help them arrive at their own conclusions as to the constitutionality of the death penalty.

The Innocence Project was instrumental in gaining a Staten Island man his free´dom.

In 1998, James O'Donnell of Port Richmond Center was tried, convicted and sent to prison for supposedly sodomizing and assaulting a 55-year-old Stapleton woman in Clove Lakes Park on May 24, 1997.

O'Donnell maintained his innocence.

In 2000, thanks to the work of the Innocence Project, a DNA sample that had never been entered into evidence at the trial was tested and conclusively excluded O'Donnell as the rapist.

State panel urged to adopt eye witness procedures

October 22, 2007

By Bill Rankin, The Atlanta Journal-Constitution

After rape victim Jennifer Thompson Cannino identified suspect No. 5 in a police lineup, the detective assured her she'd picked out her attacker.

"Good job," the detective told Cannino, who was then a star student at Elon College in North Carolina and had been raped by an intruder who broke into her off-campus apartment.

Before a rapt audience Monday at a legislative study committee hearing, Cannino recounted the horror of her sexual assault on June 29, 1984, and her horror when learning 11 years later she had misidentified her attacker and helped send the wrong man to prison. The real attacker, later identified by DNA evidence, had gone on to rape six more women after he attacked Cannino.

"It's a human system," Cannino said. "We are fallible. We make mistakes. There are practices that can be put into place."

Cannino and a number of other witnesses called on Georgia to implement statewide procedures for eyewitness identifications. The committee, chaired by Rep. Stephanie Stuckey Benfield (D-Atlanta), is considering proposals that range from legislation that mandates certain procedures or simply calls on local law enforcement agencies to implement new protocols and provide training for them.

One practice is to make sure the person administering the photo array or lineup does not know who the actual suspect is, Gary L. Wells, an Iowa State professor and an expert on eyewitness identification, told the committee. Such assurances, as in Cannino's case, give the victim a "manufactured self confidence," he said.

Other steps, Wells said, include: making sure only one suspect is in the lineup; telling the witness the actual culprit may not be in the lineup; getting a statement of how sure the witness is of the identification at the time it is made; and making sure the "fillers" — those in the lineup who aren't the real suspect — fit the victim's descriptions.

The committee is studying the issue in light of exonerations nationwide through post-conviction DNA evidence. Earlier this year, Willie O. "Pete" Williams, who served 21 years in prison for a rape he didn't commit, became the sixth man in Georgia cleared by DNA evidence.

The Georgia Innocence Project recently filed Open Records Act requests with 500 law enforcement agencies across Georgia to see which ones have standards and procedures for eyewitness identification. So far, the project has heard from about 400, and 85 percent say they have no protocols, Georgia Innocence Project spokeswoman Lisa George said.

Barry Scheck, co-founder of the New York-based Innocence Project, said more than 75 percent of the 208 people exonerated so far by DNA evidence were convicted because of mistaken identity.

Not only will improved eye witness identification procedures reduce the number of wrongful convictions, Scheck told the panel, they also will help strengthen cases for prosecutors. Adopting clear standards also will help shield local authorities from federal civil rights complaints brought by those who were wrongfully convicted, Scheck said, noting that juries do not find it difficult to award an exonerated inmate $1 million for every year he was in prison.

Lawmakers urged to require preservation of DNA evidence

October 18, 2007

By Chris Barge, Rocky Mountain News

LAKEWOOD - Colorado lawmakers should require police to preserve DNA evidence, a policy analyst trying to free wrongfully convicted people told a governor's task force Wednesday.

Rebecca Brown, an analyst with the New York-based Innocence Project, also said the state should consider building regional evidence storage facilities.

Brown's comments kicked off the task force's second meeting since being formed by Gov. Bill Ritter last month to devise a modern, uniform process for dealing with DNA evidence in the state.

Ritter formed the group to address the fact that Colorado has no uniform guidelines for preserving evidence in criminal cases. It is up to individual police and sheriff's departments to set rules for keeping everything from blood to bullets. Task force members fear that has set the stage for too broad a difference in evidence-collecting procedures across the street.

The 21-member panel decided Wednesday to form three subcommittees to help them analyze technical standards and current procedures; goals and needs; and funding options.

"There's some real work to do and I think this is the way to do it," Aurora Police Chief Daniel Oates said.

Legislators, police, defense attorneys and prosecutors on the panel acknowledged that one of their biggest challenges will be finding a way to pay for whatever they recommend. The state's law enforcement agencies are in no mood for an unfunded mandate, they said.

"We understand that there is a price tag with this, but we really do believe this can be cost-effective," Brown said.

Centralizing evidence storage will cut court costs and time wasted searching in vain for old evidence, Brown said. Most importantly, she added, it will lead to more successful prosecutions and fewer wrongful convictions.

"I don't think the value of that can really even be measured," she said.

The subcommittees will meet this month and report back to the larger task force at its next scheduled meeting, Oct. 31.

The task force also will be briefed then on the results from an evidence-preservation survey sent to the state's 170 police chiefs and 64 sheriffs.

New York State Not Doing Enough to Prevent Wrongful Convictions, Report Says

October 18, 2007

By Fernanda Santos, New York Times

Although more convicts have been exonerated by DNA evidence in New York than in most other states, New York is one of only a few states across the nation that have not enacted comprehensive legislative reforms to prevent wrongful convictions, according to a report by a high-profile legal clinic scheduled to be released today.

Since 1989, when DNA evidence was first used to free an innocent person, there have been 23 exonerations in New York, the report said, placing it behind just Texas and Illinois, which have had 29 and 27 exonerations, respectively. Nationwide, 208 people have been exonerated through DNA evidence.

The report sheds a harsh light on what it calls the state’s lackluster record of instituting rules intended to prevent wrongful convictions. For example, it says that although false confessions are the leading cause of wrongful convictions in New York, the state does not require law enforcement agencies to record interrogations, a requirement in nine other states.

“Not only has there been political opposition to enacting strong reform in New York State, but regrettably, too many key figures in law enforcement have played the pitiful role of old dogs unwilling to learn new tricks,” said Peter J. Neufeld, co-director of the Innocence Project, a legal clinic based at the Benjamin N. Cardozo School of Law in New York, , which prepared the report.

The clinic is the nation’s leader in securing exonerations for the wrongfully convicted.

Currently, law enforcement agencies in only two counties in the state, Broome and Schenectady, videotape at least portions of custodial interrogations — as part of a pilot program run by the New York State Bar Association. Across the country, 500 local law enforcement agencies require full or partial recording of interrogations, the report says.

Twenty-two states have laws requiring the preservation of crime-scene evidence like semen and saliva samples, which are frequently used for DNA analysis. But in New York, there is no such law, and forensic evidence is often lost, destroyed or misplaced, delaying or defeating attempts by those who were wrongfully convicted to prove their innocence, the report said. In addition, six states, including Illinois, have established independent bodies — commonly known as innocence commissions — to review wrongful convictions, identify what caused them and propose procedural and legislative changes to keep such errors from happening again, the report said.

In 10 of New York’s wrongful convictions other criminals were identified, in most cases someone who committed other crimes while innocent people served time in prison in their place, Mr. Neufeld said.

“Clearly, the cost to society for allowing these real perpetrators to remain at liberty is incalculable,” he added.

The State Assembly passed a package of bills this year that included measures requiring interrogations to be videotaped and forensic evidence to be preserved and cataloged in a more orderly way.

The bills would also clarify existing law to make clear that judges have the authority to order comparisons between evidence used against a defendant and evidence stored in DNA and fingerprint databases. Gov. Eliot Spitzer introduced a competing package, which the Senate approved but the Assembly did not, saying the governor’s proposed reforms did not go far enough. Negotiations stalled, and the legislative bodies were unable to reconcile their differences.

Christine Anderson, a spokeswoman for Governor Spitzer, said the governor would not comment on the Innocence Project report until it was officially released.

Craig J. Miller, a spokesman for Republican Senator Dale M. Volker, who represents several counties in western New York and is chairman of the Senate Codes Committee, which plays a significant role in shaping the state’s criminal laws, said the Senate was not “inherently opposed” to reforms suggested by the Assembly, “but the devil is in the details.”

He added, “A lot of these reforms are going to cost a lot of money, so considering that the state is looking at a deficit in the coming fiscal year, we’re going to be looking at difficult choices.

“These are great ideas, but we need to carefully vet them out, flesh them out, see how much they’re going to cost and act appropriately,” Mr. Miller said.

Assemblyman Joseph R. Lentol, a Brooklyn Democrat who sponsored the Assembly’s package, said, “You cannot put a value” on correcting verdicts “that led to an innocent person losing a chunk of time of his life and languishing in prison.”

Mr. Lentol added, “In modern society, we should be interested that only the guilty pay for crimes.”

Righting the wrongfuls

DNA lessons guide proposed laws

October, 17, 2007

by Sandra Svoboda, Metro Times Detroit

A national movement to prevent, reverse or remedy wrongful convictions has swept into Michigan's Legislature this term with six bills that would reform police investigations, change DNA testing procedures, compensate those improperly imprisoned and clear their records.

If passed, they could make Michigan among the most progressive states in terms of breadth and depth of criminal justice reforms related to "innocence" issues.

"This is something in the criminal justice system that's so much more compelling than a lot of the issues we've seen over the years," says Marla Mitchell-Cichon, co-director of the Innocence Project at Cooley Law School in Lansing. "We'll move forward if people are willing to keep an open mind and make it a better system."

Rep. Steve Bieda (D-Warren) sponsored or co-sponsored all of the measures. He's unsure of their prospects for passage but he does think bipartisan support for such efforts has grown.

"It's been a process of legislators understanding what the issue is," Bieda says.

The first of the bills would make permanent the Michigan law that expires in 2009 allowing for post-conviction DNA testing in certain cases and would expand other opportunities for testing. Another would provide for expunging a prisoner's record if they are exonerated by DNA evidence.

Two companion bills would provide compensation — and make it non-taxable as Michigan income — for prisoners shown to have been wrongfully convicted and incarcerated. Two other measures require videotaping of interrogations for some crimes and more standardized procedures for eyewitnesses viewing suspects in photo or live lineups.

"I can't think of anything more appalling than the state denying freedom to people who have been wrongly incarcerated for several years," Bieda says.

Michigan, like most states in recent years, has enacted laws changing criminal justice procedures in response to the more than 200 exonerations nationwide using DNA evidence.

As advocates examined the wrongful convictions, they found fault in how police handled evidence, if and when DNA testing was available and other investigative problems including mistaken eyewitness testimony, unreliable snitches and false confessions.

"There's a recognition that there can be some things done to tighten up the system and make sure that we don't have a miscarriage of justice," Bieda says.

National efforts

The national Innocence Project, affiliated with the Cardozo School of Law at Yeshiva University in New York, has identified five major reforms that would help prevent wrongful convictions and tracks them as they are enacted by states: access to DNA after conviction for testing, preservation of evidence, recorded police interrogations, compensation for those wrongfully convicted and reform commissions to make systematic improvements. According to the group's research:

-- 42 states have some type of law allowing access to DNA evidence and testing after conviction. Michigan's law allowing this was first passed in 2001.

-- 23 states, including Michigan, have enacted measures mandating preservation of evidence.

-- 22 states have adopted legislation providing monetary compensation for people wrongly convicted. Bieda's bill would make Michigan the 23rd state to do so.

-- 8 states have mandated that police record interrogations. Bieda hopes his bill addressing this issue will have a hearing this session. "We anticipate, I think, getting this through a public hearing opportunity for the public to comment," he says. "We really want to have an opportunity for people in law enforcement and other aspects of government to get a look at this." Various Michigan jurisdictions already videotape some interrogations.

-- 6 states have created reform commissions to study their criminal justice systems and make recommendations for improvements. Michigan has no pending legislation to do so.

In Illinois, where 27 convictions of inmates — five of them facing death — were shown to be wrongful, all five measures have been adopted. In Texas, where 29 prisoners have been freed by DNA evidence, three of the reform laws are in place.

"I do think that telling the stories of people who have been exonerated and writing on the subject and journalists covering the subject makes a huge difference. Then the issue seeps into people's consciousness and then they start moving on it," says Adele Bernhard, a professor of law at Pace Law School in White Plains, N.Y., who works on non-DNA exonerations and tracks state laws related to criminal justice reform.

That's what happened in North Carolina where all five of the reforms exist and nine exonerations have occurred, according to Richard Rosen, a professor of law at the University of North Carolina and a founder of that state's Innocence Project. "We had some highly publicized exonerations. There was a public concern and an official concern that the criminal justice system was being called into question," he says.

Michigan answers

The state's 2001 law allowing for post-conviction DNA testing in certain cases originally expired this year and applied only to people who were convicted prior to the law's adoption and were still in prison. Mitchell-Cichon says legislators limited the law's reach due to fear of flooding the courts with requests. She contends that hasn't happened.

Last year, legislators approved extending the deadline for requesting post-conviction DNA testing until 2009.

This session's proposed legislation would eliminate the deadline entirely and allow some prisoners convicted after 2001 to request testing. The proposed measure also would allow anyone — in prison or released — to challenge their conviction using DNA testing. "That's assuming that you can locate and identify biological matter that can be tested," Mitchell-Cichon says. "It's not very simple to figure out where the evidence might be. That takes a considerable amount of time and is a big part of our investigation in particular cases."

If the DNA evidence supports their innocence claims, the prisoners can ask the courts for a new trial.

"Just because you're excluded by DNA as the source of the biological material doesn't necessarily mean you're going to get out of prison," Mitchell-Cichon says. "The remedy under the current law is not to get out of jail but to have a new trial."

Still, she says, enacting laws such as the six proposed would help reduce the chances of wrongful convictions.

"There's no benefit to anyone to keep a wrongly imprisoned individual in prison. It costs the state money. It gives a false sense that the crime has been solved and you have taken away someone's life," she says.

The House Judiciary Committee plans hearings on the compensation, DNA and record expunging bills Oct. 23. Hearings for the eyewitness procedures and videotaped interrogations have not been set.

On the front lines

As the co-director of the Innocence Project at Cooley Law School in Lansing, Marla Mitchell-Cichon has examined hundreds of cases involving Michigan prisoners seeking DNA testing of evidence in their cases. The most widely covered case was that of Kenneth Wyniemko who, after serving eight years for sexual assault in Macomb County, was cleared of the crime by DNA testing.

Mitchell-Cichon, who helped draft bills to change state policies, recently spoke to MT about the problems prisoners have proving their innocence and continuing their lives:

The causes of wrongful conviction are poor or wrong efforts in the entire process: snitches, crooked cops, crooked prosecutors, coerced confessions, bad science, bad scientists ... underfunded, underpaid, inadequate, ineffective lawyers on both sides of the table. The benefits of looking at these old cases as I do and allowing more opportunities to do DNA testing is we can learn a lot from those cases about these other issues.

In some cases — men and women, mostly men — the science proved they were factually innocent. There was no other explanation for why their DNA was not there. But in probably more cases than I would like to hear, the state dug in its heels and attempted to keep the person in prison, came up with new theories of criminal liability, etc. ...

I think it's very, very difficult for some people to believe that someone who has been exonerated by DNA is actually innocent. DNA science hasn't been around long enough for that to have totally sunk in, that that could be a possibility.

Secondly, if you are the prosecutor in the case or the chief prosecutor for your county, you would never want to believe that a factually innocent person was convicted under your reign. It's very difficult for individuals to separate themselves and their own investment in a case or an office from what the science is telling us. I can empathize with how difficult it might be to think, "God, this may be the wrong person." We cannot let our personal belief about a case or our ego decide the case. We have to let the facts decide that.

I think it's pretty common that individuals who have been proven factually innocent and have been recognized as such by the courts still have all the same concerns after incarceration that guilty people have. They still can't get jobs. They still have a tough time coping in society because of being locked up for so long. Many of them lose everything when they go to prison, which is true for all prisoners. They also don't get benefits that prisoners get when they are released, which is why the compensation bill is so important. At least when you're paroled, you get some government services: housing, counseling. I wouldn't say they're the best served in the world, but the community is offering something to get back on their feet. It's not any easier for an innocent person to transition back into the community than a person who is guilty. It might be more difficult.

New panel must quickly attack crime lab's festering injustices

Oct. 13, 2007

Editorial, Houston Chronicle

After 14 years in prison due to the incompetence of the Houston Police Department's crime lab, Ronald Gene Taylor promptly did the right thing. He traveled to City Hall straight from prison and called for other flawed cases to be re-examined.

After victimizing Taylor so unforgivably, the criminal justice system must show the same urgency and immediately re-examine the lab's hundreds of outstanding cases of malfeasance. Reviewing 419 of the lab's worst failures — in which bodily fluids were analyzed incorrectly or simply not tested — is the moral equivalent of Taylor's righteous beeline to City Hall.

So far, though, city and county officials have been outrageously lax. A new panel assembled by Harris County's criminal district judges might just end the slow-motion disgrace, but only if the project is well-funded, superbly staffed and transparently run.

This Wednesday, the judges agreed to hire three defense attorneys and a retired judge to study the importance of marred crime lab evidence in 180 convictions. Judge Mary Bacon will launch the process Oct. 22, asking 160 defendants by video conference if they want their cases reviewed. The panel's assembly, its fixed start date and announced game plan all are good signs. It will take only a short time to tell if the panel is following through.

Encouragingly, the malignant crime lab of 2002 (the year the scandal first broke) no longer exists. Many staffers, shielded by the statute of limitations, are gone. The system that let bogus experts ignore, change and fabricate evidence has been replaced by accredited departments and supervision.

Justice would have been served better if the city listened in June to former U.S. Justice Department inspector Michael Bromwich. After a $5.3 million probe of the lab, Bromwich recommended hiring a special master to study evidence in 180 cases where serology analyses were badly flawed.

In unison, however, Mayor Bill White, Police Chief Harold Hurtt and Harris County District Attorney Chuck Rosenthal rejected the idea. The courts along with the nonprofit Innocence Project and other groups, they said, could clean up the mess just as well.

Five months later, it's clear this was wrong. This September, a story by Chronicle reporters Roma Khanna and Steve McVicker showed that nearly two-thirds of 60 defendants convicted with flawed DNA evidence had gotten little help or even notice that their trials were faulty.

In 24 of those cases, attorneys raked in tens of thousands of dollars but performed little meaningful action. Fifteen of the convicted defendants got no representation at all.

Among these inmates might be more Houstonians like Ronald Taylor: innocent men and women for whom each day behind bars is another robbed from their lives.

This is why it's so urgent to re-examine these documented miscarriages of justice. It's also why the job requires expert, disinterested professionals. Some judges presiding over the case reviews were prosecutors on some of the very cases in question.

Centralizing the review process in one panel and assigning Judge Bacon and defense attorney Bob Wicoff inspires confidence. But these two alone can't do the job unless the panel's other lawyers are experienced and first-rate in their field.

The panel will also need plenty office space and full-time support staff to help with time-draining tasks such as copying documents. While it's the county's place to supply these resources, Houston law firms and private foundations can help with funding.

The new panel must be able to publicly account for its progress by January. Ronald Gene Taylor should not have to wait one day longer to see Houston pursuing justice.

Freed man's case forged by chain of errors

Crime lab, poor police work had a role in wrongful imprisonment

Oct. 14, 2007

By Roma Khanna, Houston Chronicle

Hours after the 1993 attack on a woman asleep in her Third Ward home, her daughter gave police what she believed was the street name of the rapist: "Chilli Charlie."

And it wasn't Ronald Gene Taylor's street name.

It belonged instead to Roosevelt Carroll, a known sex offender who lived less than a mile from the victim and was known to local police in the 1980s and 1990s as "Chilli Chetter."

But officers focused on Taylor, the wrong man, arresting him 14 years ago for a crime DNA tests now show was likely committed by Carroll.

"She told them exactly who it was all those years ago," said Nina Morrison, of the Innocence Project, which seeks to exonerate the wrongfully convicted, and which represents Taylor. "But the police dismissed it and focused on Ronnie Taylor."

It was the first in a string of errors that led to Taylor's wrongful imprisonment.

As the case against Taylor unraveled, leading to his release from prison last week, weaknesses throughout the investigation have become clear, according to a review of police and court documents.

Chief among the problems was faulty work from the Houston Police Department's troubled crime lab. But also present were hallmarks common to wrongful convictions such as officers' hasty dismissal of other suspects, a problematic victim identification and a case built on little evidence.

"I don't know who all fell short," Taylor said. "But someone — or someones — fell short, and I was gone for 14 years."

In the early morning hours of May 28, 1993, a 39-year-old woman awoke to find a man on top of her and a knife to her throat.

The man raped her in a darkened bedroom, while three of her children slept nearby, and then fled. The victim called police, who quickly developed a profile of her attacker.

'Unnecessarily suggestive'

Soon after, the woman viewed a lineup, but she did not recognize anyone. Police arranged a second lineup, including Taylor, who a neighbor said was in the area that night.

The victim was unable to view that lineup in person, so officers videotaped it. She identified Taylor as her attacker after twice viewing the tape in her home with HPD Officer Julie Hardin and no one else, a process that Taylor's lawyers called "unnecessarily suggestive."

Taylor was charged July 14, 1993, and waited in jail for nearly two years before trial.

"I've set here for over one year without bond on charges I didn't commit," Taylor said in a handwritten note to state District Judge Denise Collins in which he asserted his innocence and pleaded for a trial to prove it. "As each day passes it gets harder and harder."

Taylor's case went to trial in April 1995.

Prosecutor Vanessa Velasquez, now a state district judge, built a case almost entirely from the victim's identification.

Velasquez did not return phone calls seeking comment for this story.

The victim told jurors that she had felt the features of the man's face in her dark room during the attack.

"The door to the room was closed but not closed all the way, so I could see the shadow of the person," she testified. "I was able to take my hands and run across his face, his head, along his ears, his nose, his mouth."

She also told jurors her attacker had a missing tooth and that she caught a glimpse of him as he fled, details she initially had not mentioned to police. Taylor's trial attorney, Shelton Sparks, questioned the victim's new recollections.

"Did you ever indicate (in your statement) about the individual running into the refrigerator?" Sparks asked.

"I don't remember if I told Officer Hardin about that or not," she replied.

When asked, the woman pointed to Taylor and told jurors he was her attacker.

False victim identifications are common in wrongful convictions.

Also key to the case was body fluid analyses, known as serology, from the HPD crime lab.

Serologist Maurita Carrejo told jurors about her findings.

"Do you recall analyzing the bedsheet?" Velasquez asked.

"Yes, I do," Carrejo replied.

"Did you find any semen?" Velasquez asked.

"I did not," Carrejo testified.

The analyst went on to testify that it is not uncommon to find no semen after a rape and that forensics could not eliminate Taylor as a suspect.

Carrejo worked at the HPD from 1993 to 1996 before leaving forensic science. "It wasn't the place for me," she said.

She did not recall Taylor's case when contacted last week but questioned whether the new evidence exonerated him. She agreed it might after hearing about the other suspect, Carroll.

"I guess I am happy for the man," she said, "but I have no recollection of his case."

Her testimony, however, figured heavily in jurors' deliberations and is something that some today still remember.

After two days of testimony and arguments, the panel of five men and seven women began deliberations. Five hours later, they sent Collins a message.

"We, the jury, are deadlocked, " read a note from foreman James D. Franklin. "Not guilty: 5. Guilty: 7."

Among those unconvinced of Taylor's guilt was Chester Behler, a cable repairman.

"I could not understand how someone in the dark could use their hand and be able to describe this person," Behler said last week. "I wondered back then if — and I really believe now — that the cops made her believe that he was the one."

Other jurors focused on Carrejo's faulty testimony.

They asked the judge, in two subsequent notes, for Carrejo's testimony and a copy of her report.

"Everybody wanted to make sure their decision was based on the information provided," juror Jerry Weatherbee said. "We kept going back and forth."

Some were swayed by the strength of Hardin's testimony, Behler said, which eventually persuaded him to convict.

Lab scandal unfolds

In their second day of deliberations, jurors reached a consensus and found Taylor guilty. Collins sentenced him to 60 years in prison, beginning a 12-year quest for exoneration.

While Taylor served his sentence, mostly at Tennessee Colony prison, a forensics scandal was unfolding in Houston.

Thousands of crime lab cases came under scrutiny after news reports and an independent audit in 2002 exposed its shoddy work, poorly trained analysts and inadequate resources. Two men were exonerated and errors were found in the work of several lab divisions, including those that test illegal drugs, firearms and serology — the testing that helped convict Taylor.

The crime lab scandal was ongoing when lawyers from the Innocence Project requested that the bedsheet and other items from the crime scene be reanalyzed.

New tests, performed by a private lab, detected semen on the sheet where Carrejo said there was none. DNA testing yielded the profile of another man — Carroll — discrediting Carrejo's work.

"The HPD laboratory gravely erred," Taylor's lawyers wrote in court papers filed last week. "Had the semen stain been properly analyzed at that time, it could have established Mr. Taylor's innocence at the outset of his case."

The DNA profile found on the sheet was entered into a database of DNA profiles, which produced a hit for Carroll.

A search of his criminal history reveals that Carroll, currently serving a 15-year sentence for failing to register as a sex offender, has twice been convicted of rapes similar to the 1993 attack.

It also reveals the street name by which officers knew him: Chilli Chetter.

Proved correct

The victim's daughter told officers that she saw a man who she thought was named Chilli Charlie the night of the attack at a nearby bar where the two women had played pool. The daughter said "Charlie" was wearing clothes that fit her mother's description of her attacker.

Hardin, the HPD officer, told jurors that she had eliminated Charlie as a suspect — a fact that Taylor's trial counsel disputed and one that, in the light of Carroll's implication in the crime, seems unlikely, Taylor's lawyers said.

Hardin said she checked out the Charlie lead with locals at a neighborhood bar, who told her Chilli Charlie was older than the 20- to 30-year-old she sought.

With that, Hardin concluded that Chilli Charlie, who had been convicted in another rape, "wasn't the right person." She never linked the street name to a person. Attempts to reach Hardin for comment were unsuccessful.

In closing arguments, Taylor's lawyer said evidence pointed to this other man.

"Chilli Charlie slipped through the window and sexually assaulted (the victim)," he said.

Twelve years later, he was proved right.

Exonerated inmate decries death row

October 12, 2007

By Nora Casey, Chicago Maroon, Student Newspaper at University of Chicago

Juan Melendez spent almost 18 years on death row for a crime he did not commit, until his eventual exoneration in 2002. Now he speaks at schools and forums across the country, urging his audience to fight the death penalty.

On October 4, Melendez spoke to 20 students and staff at an event organized through the University chapter of Amnesty International, a group that protects human rights and is opposed to the death penalty.

Melendez, an American citizen, was raised in Puerto Rico but moved back to the United States to work as a migrant farmer. He was arrested on May 2, 1984 and charged with first-degree murder and armed robbery in Florida. He was appointed a public defender, but spoke almost no English.

There was no physical evidence against him, just the testimony of two “questionable witnesses,” said Melendez. He had four alibi witnesses, all of whom were black. He felt that their and his own race were held against him.

The trial began on a Monday. He was convicted on Thursday and sentenced to death the next day.

“Death row is hell,” Melendez said. In prison, he said, he was surrounded by cockroaches and rats. Many of his friends and fellow inmates committed suicide, and those who got sick were poorly cared for and often died. But Melendez says that “the worst of all is when the government kills.”

With the help of other inmates, Melendez learned to read, write, and speak English, which allowed him to communicate better with his lawyer. Sixteen years after Melendez’s conviction, his new lawyer discovered a tape of the confession of the actual killer, and Melendez was released. He was the 99th person in the U.S. to be exonerated from death row.

He feels for the friends that he left behind in prison.

“Believe me, some of them are innocent…and I still can’t stop [their deaths],” he said. “I dream and I pray to God that in my time I can see the death penalty abolished.”

Many of the students in attendance were moved by Melendez’s story.

“I thought it was really powerful and I give Mr. Melendez a lot of praise for being able to share,” said U of C Amnesty International co-chair Monica Maalouf.

Report: Flaws risk wrong execution

The American Bar Association urged changes in the Pa. system to better guard against putting an innocent person to death

By John Shiffman and Angela Couloumbis, Philadelphia Inquirer

HARRISBURG - From crime scene to courtroom to clemency, the flaws in Pennsylvania's death-penalty system are so pervasive that the state risks executing an innocent person, the American Bar Association said in a report released yesterday.

The ABA urged changes that it said could reduce the likelihood of false confessions, crime-lab errors, witness misidentification and racial disparities. The report noted that since 1986, three inmates had been executed in Pennsylvania, but that five had been exonerated and released from death row.

"The problems found in this assessment strike at the very heart of Pennsylvania's justice system," said the ABA's president-elect, H. Thomas Wells Jr.

Still, the 324-page study's authors - five prominent Philadelphia-area lawyers, including a prosecutor and a judge - stopped short of calling for a moratorium on executions.

Instead, they asked Gov. Rendell to order a more comprehensive state study. Rendell's spokesman said the governor "will review the suggestions and take them under consideration."

The dozen changes that the ABA said would improve the accuracy and integrity of murder investigations included requiring police to videotape interrogations and witness identifications and to preserve DNA evidence indefinitely.

The ABA also urged the state to adopt uniform standards for lawyers who represent the poor, including the appointment of two qualified attorneys at every stage of the process and salaries that match those paid to prosecutors.

The ABA, the nation's largest lawyers' association, conducted similar studies in seven other states, finding flaws there as well. The ABA said it did not have an official position on capital punishment. However, since 1997 it has called for a moratorium on executions "until fairness and accuracy - due process - are assured in death-penalty cases."

Ronald Eisenberg, the Philadelphia deputy district attorney in charge of appeals, said the ABA's Pennsylvania report was tainted by a hidden bias.

"The ABA is against the death penalty, and they ought to be honest about that," he said. "I don't think there's anything new in it for people who are against the death penalty, but they have a big public-relations budget, and they've obviously spent a lot of money to get their message out. . . . This is part of a national campaign."

Gregory P. Miller, one of the five lawyers who conducted the study, said Eisenberg's characterization of a stacked panel was unfair and wrong. Miller, a former federal prosecutor, said he had not yet made up his mind on capital punishment.

"The death penalty creates grave concerns for me, but I spent most of my life as a prosecutor, so I can imagine cases where it's appropriate and where it isn't," he said. "The thing that always sort of troubled me is the trial representation. . . . The one thing we ought to be able to provide at this time in our country is a good lawyer."

The others who produced the report were Villanova University law professor Anne Bowen Poulin; Delaware County Judge Frank T. Hazel, a former district attorney; Mary MacNeil Killinger, a Montgomery County deputy district attorney; and David Rudovsky, a University of Pennsylvania law professor and noted civil-rights lawyer.

The team could not compile all the data it needed, Poulin said, because it lacked the authority to get them from certain counties and because other counties kept poor or no records.

"If the governor were to order a thorough investigation, the governor's authority would make sure there would be access," Poulin said.

Pennsylvania has 228 people on death row, but none is in immediate danger of execution. All have appeals working their way through the state and federal systems, and the U.S. Supreme Court has essentially halted executions while it considers a Kentucky case about the constitutionality of lethal injections.

All three inmates executed in Pennsylvania since capital punishment was reinstated in 1978 were volunteers.

There have been several major studies of the state's death-penalty system, including a massive 2003 study on race and gender commissioned by the state Supreme Court. That study cited racial and geographic disparities and concluded that Pennsylvania did not "operate in an even-handed manner."

The study spurred few changes, the ABA said in yesterday's report.

State Sen. Stewart Greenleaf (R., Montgomery), chair of the Judiciary Committee, said the Senate last year had created an advisory committee to report on all wrongful convictions in the state - not just in death-penalty cases - and recommend ways to prevent them.

Greenleaf also said he believed there should not be a moratorium on executions because that would "change the nature of the debate, because then we'd be talking about whether we should or should not have the death penalty in Pennsylvania."

"The question now should be: Will we be able to pass these reforms to justify the use of the death penalty?" Greenleaf said. "And if we don't, then we can revisit that issue."

Nicholas Yarris, a Philadelphian who was exonerated and released from Pennsylvania's death row in 2004, greeted the ABA report with a shrug. It won't change much, he predicted.

"We've had more exonerations in Pennsylvania than people we've executed," he said. "The biggest disappointment to me since my release is that nothing has changed. You'd think an innocent man is released from death row and there would be outrage."

________________________________________________________

The American Bar Association Report Highlights from the report released yesterday on Pennsylvania's death penalty system:

Eyewitness errors

According to the Innocence Project, eyewitness error was a factor in 77 percent of the 208 cases nationwide in which DNA exonerated inmates. The ABA says witness identification procedures in Pennsylvania police departments lack uniform standards designed to reduce mistakes.

ABA recommendation: Standardize police lineup and photo-spread procedures using modern procedures. Videotape witness identification sessions so that jurors can see methods and measure a witness' original certainty and credibility.

False confessions

Roughly one-quarter of the people exonerated by DNA evidence falsely confessed or made deeply incriminating statements, the Innocence Project said.

ABA recommendation: Require police departments to videotape homicide interrogations. Only two departments, Whitehall and Bethlehem, do so, the ABA said, citing 2005 data.

Racial discrimination

The state has "taken some steps to explore the impact of race" but could do more. One in 10 Pennsylvanians is African American, but half the state's death-row inmates are black. A 1999 state Supreme Court study found that African Americans in Philadelphia were sentenced at a significantly higher rate than similarly situated nonblacks.

ABA recommendation: Implement some of the recommendations of the 1999 committee, including a more comprehensive study of race and the death penalty. Remind jurors at trial that race is not a factor to be considered when weighing the death penalty.

Proportionality review

The U.S. Supreme Court has said the death penalty must be implemented in a balanced manner. States must take care to avoid racial and geographic disparities for people charged with similar crimes. In 1997, Pennsylvania eliminated a tool called proportionality that other states use to compare cases to ensure that each sentence is neither excessively severe nor abhorrent.

ABA recommendation: Create a statewide database of all trials in which a defendant faced the death penalty, a system comparing similar murders that analyzes who got life and who got death.

Clemency

The governor cannot pardon or grant a commutation without the unanimous agreement of the state pardon board, but the board won't review the guilt or innocence of death-row inmates, saying responsibility lies with the courts. The rules do not permit the accused to be at the hearing, at which each side is given 30 minutes to argue. Witnesses can't testify under oath and can't be cross-examined.

ABA recommendation: The clemency process shouldn't assume the courts have considered every issue and should provide for a full public hearing. Any factor, including an inmate's mental status and conduct while incarcerated, should be relevant.

Judge approves DNA testing in 1982 slaying case

10/11/2007

By Jennifer Harr, Herald-Standard

A Fayette County judge on Wednesday permitted DNA testing on evidence in a 1982 Hopwood murder.

Judge Steve P. Leskinen ordered prosecutors to submit four different pieces of evidence for DNA analysis.

The pieces of evidence are from a bloody crime scene at the former Hopwood Associated Hardware Store on Jan. 6, 1982, where store clerk Harry Frankhouser, 68, was found stabbed to death.

State police arrested Charles Adams, who in October 1983 was convicted of first-degree murder. Although Adams faced the death penalty, jurors sentenced him to life in prison.

Adams, who turned 58 on Tuesday, has maintained his innocence since his arrest, and in a filing under the Post Conviction Relief Act, claimed that DNA tests that weren't available at the time of his arrest and conviction could now exonerate him.

Adams testified in his own defense that he came into the store as a customer and was attacked by three men. When the attack was over, Adams testified he found Frankhouser dead in the back room of the store.

Although Leskinen ordered testing on some items, he also noted that some DNA tests already conducted in the case have shown only genetic material from Frankhouser and Adams.

Leskinen agreed to have DNA testing done on a cash register handle, Frankhouser's left sock, Adams' shoes and the knife used to kill Frankhouser.

Prosecutors were ordered to submit the items, and if they could not be analyzed, Leskinen asked for an affidavit attesting to that.

He gave District Attorney Nancy D. Vernon 60 days to provide the results to Adams' court-appointed attorney, Mark Mehalov.

Leskinen said he would determine if another hearing was necessary after the DNA results were returned from the lab.

Mehalov said the cash register handle is the "most crucial piece of evidence" because robbery was considered a motive for the killing. The handle of the register is a 2-inch by 1-inch piece of black plastic. There is a smear of what is believed to be blood on it.

There was testing done on some items before Adams' 1983 trial, however, that testing dealt with blood-typing, not DNA.

During the trial prosecutors presented evidence that Adams' blood type matched blood found on Frankhouser's clothes and on the cash register.

Adams testified he went into the hardware store to buy a part for a leaky faucet, and was attacked by three men who were already inside the store. After the men fled, Adams told a jury that he went looking for Frankhouser, and found him in the back room of the store. He testified he never touched Frankhouser's body.

"He's maintained his innocence from day one," Mehalov said during Wednesday's proceeding.

Vernon also addressed two other claims made in the petition. In one, Adams claimed that because there were so many stab wounds - nearly 30 - that some of Frankhouser's blood would have to be on him, and none was. Adams also claimed that because Frankhouser's body was moved, he would have had blood on him, but did not.

Vernon said Frankhouser's DNA on Adams' pants discounts the latter claim. The first claim, Vernon said, was discounted at trial by a medical expert who testified that the stab wounds were such that they would not have spurted or sprayed blood.

Frankhouser was wearing three layers of clothes at the time, and Vernon said that would have further discounted the possibility that blood would have been sprayed when the victim was stabbed.

Mehalov also said that he had newly discovered evidence, which can be presented under the Post Conviction Relief Act. A crime scene diagram, which was evidence in the trial, showed a shoe print, the length of which corresponds to a 9 1/2 size shoe, Mehalov said.

Adams wears a size 12, Mehalov said.

Testimony at Adams' trial indicated that the tread of that shoe print matched the tread of the shoes Adams was wearing when he went into the hardware store.

"That puts another person in the store who could have committed this crime, as Mr. Adams has maintained since this homicide occurred," Mehalov said.

Vernon said that the shoe print was talked about during the trial, but noted that the trooper who testified about it also told jurors that he could not be sure it came from the same size shoe as Adams'.

Leskinen said that the scope of Adams' current post-conviction petition deals with DNA, not newly discovered evidence. To bring that up, he said that Mehalov would have to prove that the evidence was supported by something.

The jurist noted that the print could have been a partial one. He said that Mehalov should further examine the print.

Adams was not present for the hearing because of a mix-up with paperwork that ordered him to be transported from the State Correctional Institution at Fayette to the county jail.

DNA innocence testing for convicts on back burner

October 11, 2007

By Richard Willing, USA TODAY

WASHINGTON — Since 2006, the Justice Department has yet to spend any of the $8 million set aside by Congress for DNA tests for convicts to prove their innocence while it has used $214 million to collect DNA from convicted criminals and improve crime labs, records show.

"DNA evidence is such a powerful tool in proving guilt or innocence that it's inexcusable not to use it," says Sen. Patrick Leahy, D-Vt., the chief sponsor of a bill to provide more funding for what is known as innocence testing.

If spent, the $8 million could affect dozens of cases, says Barry Scheck, a defense lawyer who specializes in using DNA to overturn convictions. Exact costs for a DNA test vary from case to case.

Rules imposed by Congress have made it difficult for states to qualify for post-conviction DNA grants, says the department's National Institute of Justice, which administers the funds. Only Virginia, Connecticut and Arizona have applied.

The law requires a state's attorney general to certify that the state requires police departments to take "reasonable measures" to preserve biological evidence for possible future testing.

But attorneys general can't vouch for every police authority in their state, says John Morgan, the institute's assistant director. The rule has made it "next to impossible" for states to qualify, he says.

Arizona applied for a grant but was turned down in June because the Justice Department determined it did not meet the legal requirements, says Kent Cattani, an assistant attorney general in that state.

Cattani surveyed Arizona crime labs, prosecutors, judges and defense attorneys and found that all had at least unofficial policies to retain evidence. "Other than passing a law, I don't know what more we could have done," he says.

Leahy doesn't think the rules are a problem. His staff has been meeting with Morgan to try to find a way to allow the $8 million to be spent.

DNA profiles are matched to unsolved crimes through an FBI-controlled network of databases. Testing has also helped cast doubt on convictions obtained before DNA testing came into widespread use in the late 1990s.

Convicted killer says DNA exonerates him

October 10, 2007

By Mary Pickels, Pittsburgh Tribune-Review

A Fayette County man sentenced to life in prison after his conviction in the 1982 beating death of a North Union store clerk is seeking a new trial based on DNA testing.

Charles M. Adams, 58, who is in SCI-Fayette, filed an appeal under the Post Conviction Relief Act. He will appear before Common Pleas Judge Steve P. Leskinen this morning.

Adams' petition is based on results of DNA testing showing none of the victim's blood was found on Adams' clothing or shoes.

He claims that authorities failed to follow a court order to analyze some items collected at the crime scene, including clothing, knife and blood samples.

Adams was still at Associated Hardware on Jan. 6, 1982, when state police arrived to investigate Harry Frankhouser's death at the former store along Route 40.

Adams was convicted in October 1983 of first-degree murder and attempted robbery.

Over the years, Adams, formerly of Uniontown, has repeatedly requested new trials and post-conviction hearings, filing numerous motions on his own.

In one document, he referred to himself as the "most convenient suspect," and he claimed that the state was using "stall tactics in fear of exposing the error of their ways."

In July, Fayette County District Attorney Nancy Vernon said that authorities cooperated with a court order by using DNA technology that was not available in the early 1980s. She said at the time that she did not believe Adams discovered any evidence that could prove his innocence.

In a petition filed in July, a defense attorney argued that the testing by police constituted newly discovered evidence that could warrant another trial.

Adams has maintained that he went to the store to purchase a 12-cent O-ring for a leaky faucet, according to court records.

He claimed three men jumped on him, with one cutting him and another punching him.

Adams claimed he found Frankhouser's body after the men left through the front door. He said he never touched Frankhouser, a shovel near the body or the cash register.

Authorities said Frankhouser, 68, had multiple stab wounds, cuts and blunt-force injuries.

Adams was treated for cuts on his left index finger and bleeding on his right palm.

Mark Mehalov, Adams' court-appointed attorney, could not be reached for comment yesterday.

Man cleared for rape granted $10 bond

Oct. 9, 2007

By LIZ AUSTIN PETERSON, The Associated Press

HOUSTON — A man who spent a dozen years in prison for a rape he didn't commit was freed Tuesday and headed straight for City Hall to discuss shortcomings in the criminal justice system with local officials.

Wearing dark clothes and carrying a red mesh gym bag and a paper sack containing his belongings, Ronald Taylor greeted his family with warm embraces outside the Harris County Jail.

"It hasn't really sunk in. I'm just glad to see my family," said Taylor, the third Texas prison inmate to be released because of problems with the Houston Police Department's crime lab.

Although his plans included eating shrimp, a delicacy he missed during the 12 years he spent in a state prison, and moving to Atlanta to marry Jeannette Brown, the fiancee who has waited for him since the mid-1990s, his first stop was City Hall.

After receiving a standing ovation from the audience, Taylor quietly urged City Council to prevent other innocent prisoners from rotting behind bars.

"They don't have the finances, they don't have nobody to help them," said Taylor, 47. "I think something needs to be done about that."

Taylor was convicted in 1995 of raping a woman two years earlier. He was sentenced to 60 years in prison.

The victim picked Taylor out of a lineup but acknowledged she only caught a glimpse of her attacker's face. During his trial, a crime lab analyst testified that no body fluids were present on the victim's bedsheet.

This summer, the Innocence Project paid to have a New Orleans lab retest the victim's bedsheet. Semen that lab found on the sheet matched the DNA of a man already in prison for failing to register as a sex offender.

Harris County District Attorney Chuck Rosenthal made a rare courtroom appearance on Tuesday to apologize to Taylor, and several council members echoed his regret.

State District Judge Denise Collins gave Taylor a $10 bond. He then had to sift through paperwork at the Harris County Jail before he could be a free man.

"We've just been praying and I just had faith and I knew, I knew within my heart that one day he would get out," said his mother, Dorothy Henderson, a food-services supervisor at the Walker County Jail. "I didn't know how long, but I knew one day he would."

Taylor and Henderson said they didn't blame the criminal justice system for his imprisonment.

"I don't hold any grudges because I believe in God and I knew he would be free," Henderson said.

Roosevelt Carroll, the man whose DNA matched the evidence on the sheet, will not be prosecuted because the statute of limitations has expired. He also has been convicted of burglary with intent to commit sexual assault.

Taylor had a minor criminal record before he was accused of the rape, said Barry Scheck, the co-director of the Innocence Project. Taylor's initial efforts for post-conviction DNA testing were unsuccessful.

The rape conviction won't be cleared from Taylor's record unless the Texas Court of Criminal Appeals grants a writ of habeas corpus or Gov. Rick Perry pardons him. Scheck said he will seek a pardon as soon as possible.

Houston officials have been struggling to fix the troubled crime lab for years. An independent audit in 2002 raised concerns about DNA analysis procedures. In June, a former U.S. Justice Department inspector hired by the city cited hundreds of "serious and pervasive" flaws in forensic cases mishandled by the lab's DNA and serology sections. Taylor's case was not one of those identified in the audit.

Scheck said the lab's handling of Taylor's case was "as unacceptable as it gets." After spending the day meeting with prosecutors and city officials, however, he said he is hopeful that big changes will be made and the questionable cases will be reviewed.

"Everybody's got to pull together to rectify a legacy of injustice and to make sure that the innocent are exonerated and the people who really committed the crimes are identified," he said.

Duke Lacrosse Players File Federal Lawsuit

October 5, 2007, North Country Gazette, NY

DURHAM, NC—Calling the rape case against three former Duke lacrosse players as “one of the most chilling episodes of premeditated, police, prosecutorial and scientific misconduct in modern American history”, the athletes’ attorneys filed a federal lawsuit Friday against convicted and disbarred prosecutor Mike Nifong, the city of Durham and the police detectives who conducted the investigation.

Despite an iron-clad alibi from at least one of the players and a DNA test which showed no genetic material from any of the three men could be linked to the African-American stripper who said the players had raped her at a March 2006 team party, Nifong had refused to drop the charges. The DNA testing showed material on the stripper from several other men not charged. Nifong waited months to tell the defense about this—while all the while insisting publicly the three athletes were guilty.

Colin Finnerty, David Evans and Reade Seligmann are seeking unspecified punitive and compensatory damages in their lawsuit, attorneys’ fees and seeks reforms in the criminal investigatory procedures of the Durham Police Department.

In early September as Nifong reported to jail for his one day sentence after being found guilty of contempt for withholding evidence, the athletes’ attorneys unsuccessfully met with Durham city officials in an attempt to reach a settlement in the case.

It had been reported that the attorneys for the three athletes were seeking $30 million–$10 million for each to be paid over five years—as well as legal reforms.

Seligman’s attorney, Richard D. Emery, said “This is not about money for the boys, though obviously they deserve compensation. This is about sending a message to public officials who only get the message when they have to pay the money.”

In August, Superior Court Judge W. Osmond Smith III found that Nifong had willfully made false statements to the court last September in the rape case when he said he had given defense attorneys all the results from DNA testing. The DNA evidence withheld by Nifong from defense attorneys would have immediately exonerated the three Duke athletes.

Nifong has been disbarred and forced to resign from office.

In July, for the first time Nifong had admitted that there was “no credible evidence” that the three Duke lacrosse players had committed any of the crimes he had accused them of in relation to the alleged rape.

The North Carolina Bar found the veteran prosecutor had made misleading and inflammatory comments about the athletes under suspicion, withholding potentially exculpatory DNA evidence from the defense, and lying both to the court and bar investigators. Nifong was forced to drop the rape charges last December when the woman changed her story but he unwisely forged ahead with charges of sexual assault and kidnapping.

It was only after the Bar accused Nifong of violating the rules of professional conduct that he finally turned the case over to state prosecutors who dropped all charges in April, who said that the three players were “innocent” victims of a rogue prosecutor’s “tragic rush to accuse.

Following a trial in June, the bar association unanimously found that Nifong had engaged in “dishonesty, fraud, deceit and misrepresentation”. He was disbarred for his prosecutorial misconduct emanating from the malicious prosecution.

A solution for HPD crime lab

Oct. 6, 2007

By BARRY SCHECK and STATE SENS. RODNEY ELLIS and JOHN WHITMIRE, Houston Chronicle Viewpoints, Outlook

When Ronald Taylor walks out of prison this week, he will be a free man for the first time in 14 years. Because of faulty work at the Houston Police Department crime lab, he was arrested in 1993 and convicted in 1995 for a rape that DNA now proves he did not commit.

Taylor's case is a stark and deeply troubling reminder that there are hundreds of old cases from the HPD crime lab that need to be investigated and resolved. This must be done for the sake of innocent people who may still be imprisoned, for the law enforcement benefit of apprehending the guilty who committed serious crimes, and for the very integrity of the system, so it won't ignore its worst mistakes by claiming the criminal justice bureaucracy is just too intractable to correct them.

The independent audit of the HPD crime lab identified an extraordinary number of cases that involved questionable serology, bodily fluid typing that was a precursor to DNA testing. The report recommended that a Special Master be appointed to oversee a process of reviewing the cases and determining which ones should be subjected to new testing. Mayor Bill White, Police Chief Harold Hurtt and Harris County District Attorney Chuck Rosenthal all rejected the proposal for a Special Master, suggesting that the Innocence Project and related organizations could look into the cases.

We cannot take responsibility for the massive problem of representing hundreds of people whose cases were affected by the HPD crime lab, but we do have a solution.

The Innocence Project has identified 419 serology cases from the audit that are the most likely candidates for retesting. Of these, 274 are cases where crime scene evidence tested positive for blood or semen but was never subjected to further testing, and 139 are cases where blood-type testing was performed on crime scene evidence but was never compared to the blood type of victims or suspects. These should be the top priority because they are precisely the kinds of cases where DNA testing can confirm guilt or innocence. (These 419 cases include 74 of the 180 cases identified by the independent audit as having "major issues." The 419 cases had incomplete serological testing; the 180 had serious errors and the overlapping 74 had both errors and incomplete testing.)

The first step should be to locate the evidence from these 419 cases. Next, for all of the cases where the evidence still exists, the defendants need to be contacted to see whether they want DNA testing to be conducted. Testing then needs to be conducted on the appropriate pieces of evidence and compared to samples from the victims and defendants. That's how we approach cases like this at the Innocence Project, and it is how we've helped use DNA to exonerate dozens of wrongfully convicted people in Texas and nationwide.

This is a big job. Ronald Taylor is just one man whose case wasn't even among those identified in the independent audit, since he was convicted in 1995 and it took the Innocence Project several years to secure his upcoming release.

The magnitude of the problem, and the gravity of the consequences, will require involvement and support from across the community. The mayor and police chief were right to support an unprecedented audit of lab cases, and now they need to come together to help resolve these cases. Ultimately, a full-time staff, including an attorney, paralegal and forensic expert, will need to be engaged for two to three years to handle these cases. The Houston Police Department needs to help locate evidence in these cases quickly. The district attorney and the courts need to secure expedited access to police reports and court records from the cases. Local law firms need to step up to provide office space, expertise and resources. Community foundations and other funding sources need to underwrite the modest cost of staffing such an operation for a couple of years.

The district attorney says that many of the 180 of the "major issues" cases have been sent to an administrative judge to locate the original attorneys who represented the defendants at trial or to appoint new attorneys. Our experience in handling cases like this over the last two decades is that often the original attorneys will not have files from the cases, and new court-appointed attorneys will not have the necessary forensic expertise to handle these cases expeditiously or properly.

The HPD crime lab cases can be handled cost-effectively, quickly and reliably. While this is an extremely large project, it is not an impossible one and too much is at stake not to do it right.

Scheck is the co-founder and co-director of the Innocence Project. Ellis and Whitmire are Texas state senators representing districts in Harris County.

Man exonerated 14 years after rape conviction
Mix-up on DNA deals HPD lab another blow

Oct. 4, 2007

By Mike Tolson and Roma Khanna, Houston Chronicle

Few people listened when Ronald Gene Taylor declared himself innocent of a rape charge 14 years ago. But the Harris County District Attorney's Office finally agreed with him Wednesday, acknowledging that the scandal-plagued Houston Police Department crime lab was responsible for sending yet another wrong person to prison.

Incarcerated since being picked out of a lineup in June 1993, Taylor was exonerated by new DNA testing this summer that showed another man was guilty of the crime. Harris County District Attorney Chuck Rosenthal said he was sickened when he got the news late last week of the wrongful conviction.

"I feel awful," Rosenthal said. "Nobody wants to have an innocent person wrongfully convicted and sent to prison. It's a very regrettable thing."

The exoneration of the 47-year-old Taylor is another blow to the tattered reputation of the Houston Police Department crime lab, which has been rocked by scandal in recent years over the reliability of its testing and quality controls.

Rosenthal said he will work quickly toward Taylor's release and pardon. A hearing before state District Judge Denise Collins is scheduled for Oct. 12. Collins could release him on a personal recognizance bond at that time.

Lived near crime scene

The testing was done at the request of the Innocence Project, a New York-based legal clinic that assists prisoners in getting DNA evidence reviewed. It has worked on the case since 1998, when it was contacted by Taylor's stepfather, who was pressing his son's claim of innocence.

The HPD crime lab originally reported that a bed sheet it tested did not contain semen, a conclusion that led an appeals judge to deny a request for additional testing. Absent conclusive forensic evidence, Taylor's conviction was based on an eyewitness identification by the victim and the fact that he lived nearby.

New tests on the sheet, done this summer by ReliaGene Technologies, yielded the DNA profile not of Taylor but another convicted sex offender serving time in Texas prisons. The statute of limitations for prosecuting that case has expired, Rosenthal said.

Rosenthal said the victim's bad ID was understandable.

"The two men are remarkably similar in appearance," he said. "One can see how a mistake in identification can be made."

Fleeting glimpse, in dark

According to Taylor's lawyers, the victim never got a good look at her attacker. She felt some of his features and saw him briefly as he was fleeing her apartment. That glimpse came in a dark room lit only by a nearby street light.

She viewed the lineup in the presence of one police officer without witnesses or attorneys for the defendant, Taylor's lawyers claim. While watching the video, the victim suddenly recalled that the perpetrator had a tooth missing — not part of her initial description — and she identified Taylor, who had been placed in the lineup because a neighbor interviewed by police recalled seeing him in the area the night of the assault.

The Innocence Project has been critical of convictions based primarily on eyewitness identification by strangers. Bolstered by numerous studies that show the fallibility of such IDs, it has called for major changes in the ways police departments present lineups to crime victims.

Taylor, the eldest of five children who were raised near Huntsville, had moved to Houston about six months before the May 1993 attack in which he was accused, according to his mother, Dorothy Henderson.

"We had concerns from the beginning that this was a case of mistaken identification," said Shelton Sparks, the attorney who handled Taylor's appeal. "But we did not pursue DNA testing because we did not believe there was any evidence to be tested based on the (HPD analyst's) testimony at trial."

Family didn't give up

As Taylor served his sentence in a prison in Tennessee Colony, his family worked to prove he had been wrongly convicted. They got lucky when the Innocence Project agreed to take on the case.

"He always said that he was innocent, and I kept the faith that one day it would come through that it was not him," Henderson said. "We have suffered so much, but soon, now, when I can hug him and know that he is free, we will have peace."

Henderson plans to attend next week's court hearing, after which she hopes to take him home to Huntsville "for a home-cooked meal."

Assistant District Attorney Jack Roady said he will work with Innocence Project lawyers to agree on findings of fact to present to Collins. If she signs off on them, Taylor's habeas corpus petition will be presented to the Texas Court of Criminal Appeals for final action.

Assuming Taylor is granted a pardon based on innocence, he would be eligible for compensation from the state at a rate of $50,000 per year of incarceration, for a total of $600,000 or more.

Taylor's is the third conviction to crumble since scrutiny of work from the Houston crime lab began late in 2002 after news reports and an audit exposed poorly trained personnel and inaccurate work in the DNA division. Two other men were released from prison after new DNA tests discredited HPD's analyses.

Josiah Sutton was released from prison in March 2003 when DNA tests challenged the HPD work that helped secure his conviction in a 1998 rape. Sutton received a pardon on the basis of innocence and the state has compensated him with more than $118,000 for the time he served.

George Rodriguez served more than 17 years in prison in the 1987 rape of a 14-year-old girl before new forensic evidence discredited the HPD crime lab work on his case and led prosecutors to dismiss the case against him.

Since HPD's crime lab problems first came to light, errors have been found in several types of analyses, including those of firearms and of controlled substances, casting doubt on thousands of convictions and unsettling the local justice system.

Faulty evidence in the cases against Rodriguez and Taylor included serology, the science of typing body fluids that was a precursor to DNA testing.

Independent investigators who studied the crime lab over 26 months and issued a final report in June have called the work of the HPD serology division among the most troubling and problematic work from the crime lab.

Their scientists identified about 180 cases in which HPD serology work had "major issues" and called for a review of those cases to determine whether the forensic evidence played an essential role in securing convictions. Taylor's case was not among those highlighted in the report.

The serologist who handled Taylor's case worked in the lab from 1993 until 1996. Call for systematic review

The investigative team recommended the appointment of an independent "special master" to review those cases. Local officials rejected the proposal. Instead, HPD and the district attorney's office have begun their own reviews of those cases.

Barry Scheck, a founder of the Innocence Project, said Taylor's case should highlight the need for a systematic review.

"The Ronald Taylor case ought to be a galvanizing example of what has to be done to correct the historical injustices that have occurred because of the Houston crime lab," Scheck said.

Scheck, other lawyers and local elected officials have begun working on a proposal to form a panel of lawyers to review these cases. Rosenthal was receptive to the idea of such a panel, Scheck said, and the lawyers have contacted the presiding judge over Harris County's courts, state District Judge Debbie Mantooth Stricklin, about how to proceed with the proposal.

"There has got to be an expeditious way to go through these cases and determine whether more testing is possible and appropriate," Scheck said. "That sort of vetting requires expertise, competence and an infrastructure to do that."