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

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

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

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

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

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

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

In his opinion, Judge McLaughlin said:

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

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

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

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

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

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

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

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

The conviction

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

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

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

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

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

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

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

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

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

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

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

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

Questioning testimony

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

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

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

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

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

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

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

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

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

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

The retrial

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

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

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

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

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

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

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

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

Weimer Case Rejected by State’s Top Court

Conviction Stands Despite Questionable Witnesses and Controversial Forensic Debate

By Marie Do Rego

Innocence Institute of Point Park University

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

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

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

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

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

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

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

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

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

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

The Truth May Set Terrell Johnson Free

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Little Kid, Life Sentence

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

via Philadelphia City Paper

Innocence Project appeals rape conviction of Allegheny County man

By Rich Cholodofsky- Pittsburgh Tribune Review- Pittsburgh, PA

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The Justice Project Releases New Report on Prosecutorial Review

The Justice Project-Washington, D.C.

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

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

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

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

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

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

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

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

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

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

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

Problems with police

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

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

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

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

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

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

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

Meeting with Perry

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

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

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

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

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

Monday, April 13, 2009

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Innocence Institute of Point Park University- Pittsburgh, PA

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

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

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

Innocence Project Comes To Temple

MyFox Philadelphia- Philadelphia, PA

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

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

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

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

Exonerated inmates are free from prison but not from its effects

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

RESTORING LOST LIVES

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

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

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

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

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

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

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

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

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

A MATTER OF RESTITUTION

Twenty-five states offer restitution to some exonerated convicts.

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

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

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

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

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

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

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

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

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

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

FAMILY TIES

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Report: DOJ no CSI-Fails to Enforce Forensic Oversight

North Country Gazette-Chestertown, NY

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

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

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

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

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

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

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

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

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

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

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

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

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

• Designated entities aren’t appropriate for conducting investigations.

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

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

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

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

• Forensic negligence and misconduct can result in wrongful conviction.

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

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

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

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

Pa.'s New Innocence Project Based on DNA Evidence

John Ostapkovich-KYW Radio-Philadelphia, PA

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

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

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

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

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

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

February 24, 2009

By Staff from KHOU.COM- Houston, TX

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

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

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

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

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

He faces up to life in prison if convicted.

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

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

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

Former Innocence Institute Student Aids in an Exoneration in Missouri

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

Bridget DiCosmo-SE Missourian-Cape Girardeau, Missouri

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

No other physical evidence linked Kezer to the crime.

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

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

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

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

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

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

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

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

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

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

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

Unsolved homicide

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

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

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

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

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

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

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

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

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

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

"We got everything we wanted," he said.

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

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

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

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

UK program helps free innocent prisoners

February 10, 2009

By Kelly Berger KENTUCKY KERNEL Lexington, KY

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

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

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

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

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

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

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

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

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

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

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

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

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

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

High court to hear Alaska man's DNA appeal

February 9, 2009

By Lisa Demer ANCHORAGE DAILY NEWS Anchorage, AK

Even the defense says it was a brutal crime.

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

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

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

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

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

THE TWO SIDES

The state's answer: "No."

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

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

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

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

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

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

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

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

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

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

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

ALASKA STANDS ALONE

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

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

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

The state says it's not that simple.

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

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

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

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

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

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

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

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

HOW GOOD IS DNA TESTING?

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

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

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

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

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

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

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

THE EVIDENCE

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

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

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

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

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

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

"DOUBLE CHECKING"

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

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

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

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

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

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

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

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

OSBORNE'S VIEW

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Current and Former Prosecutors

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

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

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

Following are current and former prosecutors who signed the brief:

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

Crime Victims and Victim’s Families

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

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

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

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

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

People Exonerated with Post-Conviction DNA Testing

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

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

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

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

Civil Liberties and Legal Rights Organizations

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

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

Following are organizations that signed the brief:

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

People Who Received Clemency through Post-Conviction DNA Testing

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

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

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

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

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

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

Matt Dwyer WTIC RADIO Farmington, CT

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

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

He was found recently through the use of DNA testing.

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

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

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

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