Lost hope
When DNA evidence goes missing, so does the chance for an exoneration
By Geoff Dutton and Mike Wagner
THE COLUMBUS DISPATCH
A man on Ohio's Death Row held faint hope that a DNA test might keep him from his grave. But no one could find the evidence in the Cleveland man's murder case.
Another man was changing a flat tire when a 5-year-old girl pointed to him as the man who had raped her 11 weeks earlier. The Toledo man was convicted on little more than her word. A DNA test could end all doubts, but swabs from the girl's medical exam are lost in an evidence room the manager describes as a disaster.
A judge ordered a DNA test for a Cleveland man, but the evidence remains untested more than two years later. When his father died, the prisoner stood alone over the casket, in shackles and unable to prove his innocence.
These cases reflect the empty promises and missed opportunities typical of Ohio's inmate DNA testing program.
A yearlong Dispatch investigation revealed a system in which prosecutors ignore court orders for testing, judges reject inmates without following the law, and evidence is routinely lost or destroyed before it can be tested.
The flaws have ruinous consequences for inmates, victims and society at large.
Presented with The Dispatch's findings, Gov. Ted Strickland immediately called for a compete overhaul that would speed up the review process, open up testing to more inmates and establish statewide standards for preserving evidence.
"It's not honoring the victim to take the chance that an innocent person is paying the price for victimizing them, because the flip side of the coin is that means the guilty party has escaped justice," Strickland said.
"It's just a matter of trying to do everything we can to be as careful and as accurate as we possibly can be."
The Dispatch reviewed the 313 cases of inmates who requested DNA testing and found:
• Evidence had been lost or destroyed nearly two-thirds of the time when prosecutors agreed to search for it. Ohio does not require evidence to be catalogued and saved, as 22 states do.
• Even when evidence was available, the applications for testing typically went nowhere. Judges didn't bother rejecting the requests in 53 cases; they simply ignored them.
• Ohio law requires judges to cite a reason when they reject a DNA test. Nearly a third of the time, they didn't. Many rulings were one-sentence denials.
• Even in cases in which a judge granted testing, the inmate's odds of actually receiving a test still were no better than a coin toss. The Dispatch discovered 13 cases in which testing hadn't been done more than a year after a judge approved it -- in some cases, more than two years.
• Tests have been done in only 14 cases since a 2003 law allowed inmates to apply. Two resulted in exonerations. Seven confirmed guilt. The others were inconclusive.
Across the United States, the number of convicts cleared by DNA surpassed 200 last year. While the innocent were in prison, the actual rapists and murderers remained free.
The exonerations have inspired new laws in other states that preserve key evidence and allow more inmates access to DNA testing.
Ohio lawmakers, fearing a flood of frivolous applications from prisoners, tightly restricted eligibility for testing when they created the state program in 2003. But only 313 of more than 50,000 prisoners have applied for DNA tests -- which can just as powerfully prove guilt as innocence. A test result confirming their guilt can poison their chances with the parole board, potentially extending their stay in prison.
No one oversees the process closely enough in Ohio to gauge the extent of the problems -- which are consistent across small rural counties and large cities, and for low-profile convictions as well as headline-grabbing murders that sent men to Death Row.
"When we take someone's life or we take their freedom, we want to be certain that we've done everything we can," Ohio Supreme Court Chief Justice Thomas J. Moyer said. "The information you've given me is troubling, because I see two or three places where the process does not seem to be working the way it should be."
The Ohio Judicial Conference, which represents judges, acknowledges problems with tracking court filings by inmates, and says judges would be open to finding a solution.
Change can't come fast enough for those whose lives hinge on those tests.
"Sooner or later, this is going to happen to you or someone you know," said Ray Smith, 47, a Lorain man serving a life sentence for murder. "Being accused of a crime you didn't do can happen to anyone. The justice system is broken, and there are guys like me who are paying with their lives for it."
Seeds of change
Twenty years ago, DNA testing revolutionized crime-fighting. Suddenly, a speck of blood, semen, hair or skin from a crime scene could be matched to a suspect with scientific certainty, using a person's unique genetic "fingerprint" embedded in the core of every microscopic human cell.
Although DNA tests are far more sensitive and sophisticated than even a few years ago, prosecutors in Ohio routinely object to inmates getting them.
Many contend that DNA is not significant enough in most cases to override the other evidence. Granting more testing, they say, would muddy the water and unfairly traumatize victims.
"There needs to be some compelling reason in the facts of the case," said Matthew Meyer, an assistant prosecutor in Cuyahoga County, which handled more than three times as many requests as any other. "It should be more than a fishing expedition."
The Dispatch investigation prompted action for change even before it was completed. The newspaper filed more than 150 public-records requests across 51 of Ohio's 88 counties and interviewed three dozen inmates and former inmates, as well as prosecutors, judges and victims.
Prosecutors in two counties have reconsidered and consented to DNA tests for inmates who had been rejected.
In four cases rejected several years ago because evidence supposedly had been destroyed, evidence was recently discovered in storage rooms after prodding by the newspaper and the Ohio Innocence Project.
And Cuyahoga County prosecutors vowed to follow through on stalled testing orders and promised to renew a search for evidence missing in a Death Row case.
Ohio Attorney General Marc Dann and every prosecutor interviewed for this series said they were open to a state law requiring that evidence be saved and catalogued.
"I think a statute makes sense," Dann said. "DNA is not a silver bullet for solving crimes … but when there's a possibility that somebody has been wrongfully convicted, I think we owe it to the administration of justice to do that testing."
Prosecutors said their motive in evaluating any criminal case is to deliver justice, not simply a conviction.
"I don't want one single solitary person who is innocent sitting in prison," said Franklin County Prosecutor Ron O'Brien. "The prosecutors rejected these cases because they were not eligible under the law that was in place at that time."
Others say prosecutors make it nearly impossible for the law to work in favor of the inmates.
"The prosecutors have this tremendous leverage. I think they just feel they don't owe anything to anybody," said David H. Bodiker, the Ohio public defender who retired this month after 13 years in the office. "I think they can bend and twist the laws to their satisfaction."
Inmate advocates say the testing system has more value to society than just identifying the innocent.
"If you've got a guy who has been in prison for years screaming innocence and a DNA test is able to absolutely confirm guilt, that shuts him up," said Mark Godsey, director of the Ohio Innocence Project, a nonprofit legal clinic based at the University of Cincinnati's College of Law.
"Part of the cost of finding innocent people is doing testing on cases where all it's going to do is confirm guilt."
Lost or destroyed evidence
Nearly all of the evidence in Ceasar Vines' case had been destroyed less than a year after his 1988 rape conviction, but he thought he had one last chance to clear his name.
Vines, 56, of Cleveland, eagerly awaited the results of a court-ordered DNA test on vaginal swabs from the victim.
But with no money for an attorney to monitor his case, Vines was unaware that after a judge granted his DNA test, prosecutors determined that those swabs, too, had been destroyed.
When told by a reporter there was nothing left to test, Vines sprang from his seat in the sterile prison room. His eyes bulged wildly and he gripped the table with his fingers. He bellowed in agony.
"I have hoped and prayed, but now my hope is gone," yelled Vines, who is 20 years into his 51- to 85-year sentence at the Mansfield Correctional Institution. "It's all gone. I can't believe they have done this to me."
Even if the legal system were more open to tests, hope still would not exist for many inmates.
In DNA cases across the state, lost or destroyed evidence ended any chance for the convicts to use scientific advances that often were unavailable during their trials.
The potentially life-changing evidence is typically passed through a maze of hospitals, law-enforcement agencies, crime labs, coroner's offices and court-controlled property rooms.
In some cases, the evidence is systematically destroyed by law-enforcement agencies, each with its own retention rules. In others, evidence disappears without explanation. Sometimes, it's stored improperly, degrades and is rendered useless.
Prosecutors argue that much of the evidence was lost or destroyed during a time when DNA testing wasn't available or advanced enough to be useful.
"For the past 20 years, agencies haven't kept every bit of evidence," said Lisa Reitz Williamson, supervisor of the Cuyahoga County prosecutor's appellate division. "In 1970, we didn't know there was going to be such sophisticated testing."
Still, even prosecutors say the state needs a uniform evidence-retention law.
"It's a mess and frustrating when you can't keep track of evidence," said Lucas County Prosecutor Julia Bates. "We have 88 counties with sheriff departments, police departments and dozens of other entities, and everyone does evidence retention differently."
Two Toledo cases show the fallout of lost or destroyed evidence.
David Purnell, 43, of Toledo, was convicted in 1992 of kidnapping and raping a 5-year-old girl. Purnell was mainly convicted by the girl's testimony. While riding in a car with her grandfather 11 weeks after the rape, the girl saw Purnell on the street changing a tire and identified him as her attacker.
Despite testimony that Purnell was in Detroit the morning of the rape, he was convicted and sentenced to life in prison. The hospital took swabs of DNA from the girl but destroyed them within five days. Other evidence in the case cannot be found.
"How could they do that to the evidence?" Purnell asked. "This is why so many of us don't have faith in the justice system."
Carlton Manning, 39, of Toledo, was convicted in 1992 of raping a woman and fondling her 7-year-old daughter. The victim identified Manning in a lineup, but he said he had never seen the woman.
Manning, who was sentenced to 28 to 65 years, wanted a DNA test at the time of the trial but it was too expensive. About a decade later, Manning applied for a DNA test but was rejected because a police detective said he destroyed the evidence shortly after Manning's conviction.
During the Dispatch investigation, a box of evidence containing the victim's underwear was found in December.
Like some other prosecutors, Bates is not responsible for storing or tracking the evidence after a conviction; that duty lies with the court system. Bates, however, told T he Dispatch that her office will send the evidence to a lab for testing and search for any remaining evidence in Purnell's case.
Some inmates are filled with hope shortly after their requests are granted, only to have it ripped away later when evidence goes missing.
Ray Towler, 50, of Cleveland, was convicted in 1981 of raping a young girl and assaulting a young boy in a park. He was granted a DNA test in 2004.
Prosecutors arranged to send a hair, but technicians at a private lab said the envelope arrived empty. A month later, they sent fingernail scrapings. Again, an empty envelope.
Nobody's ever explained what happened to the evidence.
"The big question is whether someone threw it away on purpose, or was it gone before I even asked for testing?" Towler said. "When that happened, my life sentence got even longer."
Mistakes or misdeeds?
DNA cases in Ohio go awry for all sorts of reasons, many of which boil down to simple indifference. They are cases stalled or doomed by official inaction more than any suspected misdeed, records show.
Then there are cases such as Michael Hamilton's.
Hamilton, 57, of Springfield, requested a DNA test 14 years after he was convicted of raping a teenage girl in Clark County. But the rape kit -- typically oral, vaginal and anal swabs taken at a hospital -- was gone.
The prosecutor said a detective had returned clothing and a watch, along with the rape kit, to the 13-year-old victim after the trial.
"That would be strange," acknowledged Assistant County Prosecutor Daniel Driscoll in a recent interview. He agreed to look into it but never provided an explanation, despite at least four attempts to reach him again for details. The Dispatch couldn't locate the victim.
"The state does not have a duty to preserve evidence indefinitely after a conviction has become final," the judge noted in denying a DNA test for Hamilton.
But the ruling didn't address that the evidence, according to the prosecutor, was preserved for only 25 days after Hamilton's trial.
Most DNA cases clouded by allegations of misconduct never attracted attention and quietly faded away.
An exception was the case of Anthony Michael Green, 42, of Cleveland, who was freed from prison in 2001 after serving 13 years for a rape that DNA tests showed he didn't commit. As part of a $1.6 million settlement, Green demanded an audit of the Cleveland crime-lab analyst whose testimony helped convict him.
The review found that analyst Joseph Serowik "intentionally fabricated evidence." He was fired.
Auditors also determined last year that Serowik misled the jury in a murder case that led to lengthy sentences for Thomas Siller and Walter Zimmer, both of whom now want a new trial. The review of Serowik's 17 years of work at the lab continues. Serowik could not be reached for comment.
Inmate Phillip Gammalo, 50, of Cleveland, was convicted in 2000 of rape and murder. Four years later, a prosecutor reported that only a bottle and a jar -- debris, apparently, from the crime scene -- remained in the evidence room.
But the state public defender's office, with one phone call to the same evidence room, turned up five more pieces of evidence, including clothing and a blanket.
The discovery, his lawyer said, "cast serious doubt" on the prosecutor's statements that "no biological materials exist" for DNA testing.
A judge granted a DNA test.
"I was so happy," Gammalo said. "'Now I'm gonna prove my innocence!' "
That was in April 2006. No one has done the DNA test yet.
The forgotten inmates
With shackles around his arms and legs, Cedric Crawford stood alone over his father's open casket. The convicted rapist had been granted a DNA test eight months earlier and desperately wanted to give his ailing father the result he believes would prove his innocence.
But that test wasn't performed before his dad's death and now, 32 months after a judge granted his wish, he is still waiting.
"It's hard when you know you're innocent, and you're away from your family, and you're waiting so long for testing," he said, as his voice broke and tears welled in his eyes. "It's been rough."
The odds and the law are against any Ohio inmate being granted a DNA test. But for Crawford and a dozen other inmates, there are no guarantees of a test even after a judge says they can have one.
Some are just lost in the massive justice system, some are stonewalled by prosecutors who still oppose the test, and others are simply forgotten.
Crawford, 47, of Cleveland, was convicted in 1991 of raping a 9-year-old girl. He received a life sentence.
Prosecutors opposed his request for a DNA test in October 2004, saying no biological material was found on swabs taken during the girl's medical exam. But a judge ordered the evidence sent to a lab in June 2005. Crawford's attorneys believe advanced testing could detect sperm or skin cells not found in 1991, a relative Stone Age of genetic testing.
"The prosecutor's not responding at all," Crawford said.
Cuyahoga County Assistant Prosecutor T. Allan Regas was ordered to send the evidence, along with evidence in two other rape cases that have languished, untested.
"He's following through with that to make sure that it happens," said Williamson of Cuyahoga County, noting that delays can occur for any number of reasons. "If there are any problems, we will deal with them."
Crawford, however, is ahead of some inmates who are ignored altogether. Some have filed an application for a DNA test without ever receiving a response. The law doesn't require prosecutors to respond, but if they do file one, it must be done within 45 days.
Judges can lose track of DNA applications, or any court filings by prisoners, for a variety of reasons, said Mark Schweikert, executive director of the Ohio Judicial Conference, an advocacy and oversight organization for judges.
The inmates often don't have lawyers. The paperwork is filed under the original case numbers, which can be decades old and long since labeled as closed. And the outcome of post-conviction DNA cases isn't among the information judges report to the state Supreme Court.
"It's in our interest for all this stuff to work properly," said Schweikert, a retired Hamilton County judge. "If there's a breakdown in the system, we want to know about that and help to be part of the solution."
Moyer, the chief justice, said the Supreme Court would consider requiring judges to report the outcome of DNA cases. "That's a piece that we can control. It's a matter of over 700 judges in the system, and we have to be certain that every one of them understands their responsibility."
James Ball asked for a DNA test in March 2004. Ball, 57, of Akron, was convicted of rape.
"I never got a response from anyone," Ball said. "I guess no one ever saw it, or they did and didn't care, or they just threw it away."
After nearly four years, prosecutors filed a response last month, telling Ball his request had no merit. Prosecutors acknowledged that they responded to Ball only after inquiries by T he Dispatch, and a judge still hasn't ruled.
"I don't know how or why this case was missed," said Mary Ann Kovach, chief counsel for the Summit County prosecutor's office.
No one is more aware of the importance of fixing Ohio's DNA testing program than Melinda Elkins. She fought for years to free her then-husband, Clarence Elkins, 45, of Stark County, who was convicted of killing her mother and raping her niece.
"The only way to prove Clarence's innocence was to test the evidence, and people shouldn't have to fight the system as hard as I did to do that," said Melinda Elkins, who now works for the Ohio Innocence Project.
A DNA test cleared Clarence Elkins, who was released from prison in 2005 after serving six years. The man whose DNA was found at the crime scene is scheduled to go on trial for rape and murder in August.
"The idea of ignoring evidence or throwing it away should outrage both the victims and the public," Melinda Elkins said. "I believe it's time to begin using the justice system as a way to find the truth."
