innocence blog

The Sleuth

2007-05-30T09:26:00.000-04:00

This profile on U.S. Patriot News reporter Pete Shellem, which quotes Innocence Institute director Bill Moushey, ran in the American Journalism Review April/ May of 2007.

From AJR, April/May 2007

The Sleuth
June/July Preview » Pete Shellem of Harrisburg ’s Patriot-News has freed four people from jail through dogged, old-fashioned reporting.
By Mario Cattabiani

Patty Carbone.
Steven Crawford.
Barry Laughman.
David Gladden.
Combined, they had spent 66 years in jail. All were destined to die in a prison system that ignored their pleas of innocence--until Pete Shellem started digging.

Since 1998, investigative series by Shellem, a longtime reporter for the Patriot-News of Harrisburg , Pennsylvania , have highlighted grave flaws with those homicide convictions that eventually prompted the state to set all four people free.

At 46, Shellem is a journalistic throwback: a chain-smoking, B-movie reporter who meets sources in bars and immerses himself in his subject. He tirelessly pores over court files searching for nuggets overlooked, in some cases, even by defense lawyers: Altered lab reports. A police informant with a shady past. A previously unknown witness.

In one case, Shellem even tracked down long-forgotten DNA samples preserved for years in a professor's refrigerator in Leipzig , Germany .

"He is a one-man Innocence Project," says former Pennsylvania Attorney General Ernie Preate. "The idea that a single, solitary newspaper reporter can accomplish all this is a remarkable story." And that's from a public official embarrassed by Shellem's reporting. But more about that later.

To Gladden--a retarded man who was released in February after spending a dozen years in prison--Shellem is the journalistic version of "Matlock." "He gets out and finds out what is really going on in this community," says Gladden. "He digs and digs and digs for the truth. Man, this guy is a thorn in somebody's side. But he's a great man to me."

No one keeps records on such things, but experts on journalism and the wrongly convicted cannot think of a present-day reporter who by himself has compiled a résumé of freed prisoners as thick as Shellem's. And he's done it while maintaining a full-time courts beat.

"I was always taught that reporters are supposed to be government watchdogs. The most drastic thing the government can do to an individual is charge them with a crime and send them to jail," says Shellem, a Temple University grad who has spent the past 21 years with the Patriot-News. "We have a good justice system in this country, and it pisses me off to see people misuse it to run over people, most of whom are at some sort of disadvantage."

Despite his success, Shellem is virtually unknown outside Pennsylvania . "If Pete worked at a larger paper, say the Washington Post, and did what he did, everyone would know about him; he would be a hero, and everyone would be talking about him," says John Kirkpatrick, editor and publisher of the Patriot-News, a 100,000-circulation daily in central Pennsylvania . "But he doesn't care about that. He cares about righting these wrongs."

Shellem is more Mickey Spillane than Brian Williams. Some cops tell him he's missed his calling: He should have a detective's badge. This is a guy who, by his own account, reads "police manuals, court transcripts and opinions for entertainment."

He often wears gray hooded sweatshirts, giving him a Unabomber look. He rarely misses a workweek happy hour--that's where some of his best work originates--and knows most bartenders in Pennsylvania 's capital city by name. When the city desk needs to find him for a question on a story, they know where to look--the Glass Lounge, the Gingerbread Man or any number of other taverns in town.

"I don't take this stuff lightly, and I'm not the type that believes every con that comes along," says Shellem. Sometimes, his stories emerge from tips from private investigators working for the defense. Other times, it's simply a nagging sense, honed by years as a courts reporter, that something just isn't right. "But in these cases, I don't start writing until I'm sure I'm right, and if people need to be embarrassed into doing the right thing, I'm happy to oblige them."

Consider a 1998 headline on one of Shellem's projects: "Why is this woman still in prison?"
"Me and my family were wondering that question for years, and no one listened," says Patricia A. Carbone. "Pete got that question out there."

On June 9, 1984, a car pulled alongside Carbone as she walked to a bar in Somerset County . The driver allegedly pulled her into the car, drove down an abandoned street and tried to rape her. She escaped from the car, but the man caught her. She grabbed a knife from her purse and fatally stabbed him before fleeing.

Police and prosecutors didn't believe her story. Neither did a jury. She rejected an offer to plead guilty to manslaughter, was found guilty of first-degree murder and sentenced to life in prison.
Fourteen years later, Shellem reported about another woman, an off-duty police officer who said she had been grabbed by the same man outside another bar just weeks before he was killed. She so feared for her safety that she pulled a pistol to fend him off, but she didn't press charges.
The officer's story, which the trial judge barred the jury from hearing, ate away at the credibility of the man whom family members insisted never touched alcohol and never set foot in a bar. Prosecutors reexamined the case after Shellem's article appeared and allowed Carbone to plead guilty to a reduced charge of third-degree murder. Although her attorneys had argued self-defense, she took the deal and was released based on time already served.

"If it weren't for Pete, I really, truly believe I would still be inside those horrible, horrible prison walls," says Carbone. "He is a blessing from God. He was the answer to my prayers."

Barry Laughman, a man with an IQ of about 70 who rode his bike to work because he couldn't pass his driver's exam, was convicted in 1988 of raping and killing a distant relative known as Aunt Edna.

Shellem's 2003 series on the case pointed out inconsistencies, including a confession that appeared to be coerced and semen found at the scene that didn't match Laughman's blood type. But the real break in the case came in the form of 18 swabs and six microscope slides taken from fluids in Edna Laughman's body.

At the time of the original trial, there wasn't enough DNA to draw any conclusions. But as science improved, there was hope that those samples could yield results. There was just one problem. No one knew where the samples had gone.

After persistent questioning of defense lawyers, who hadn't realized the value of the samples, Shellem traced them to a former anthropology professor at Penn State University who initially had analyzed them for DNA. The professor later moved to Germany and took the samples with him. They proved Laughman was not the killer, and he was freed in 2003.

"I believe Laughman would have served the rest of his natural life in jail for a murder he did not commit if not for Pete Shellem," says William C. Costopoulos, an attorney who is representing Laughman in a wrongful imprisonment civil suit.

In 1970, when Steven Crawford was 14, he allegedly bludgeoned a childhood friend to death with a hammer.

In 2001, Shellem reported about a briefcase of a former detective on the case discarded with the trash. That briefcase--picked up from the curbside by neighborhood kids and eventually confiscated by local police--would help set Crawford free.

It contained the original lab reports about a palm print lifted from the side of a car at the crime scene--the key evidence against Crawford. Months later, Shellem discovered that authorities had built their case against Crawford using a report altered by a state police chemist, not the original one that supported the defense case that the print was not connected to the murder.
"Pete forced us to take a look at really important parts of this case. There were lawyers who had looked at it for 20 years who hadn't," says Dauphin County District Attorney Edward Marsico. Marsico says he was later convinced, not of Crawford's innocence, but that he did not receive a fair trail. Instead of trying him again, Marsico decided to support Crawford's release from jail. He already had served 28 years.

"There was very little hope for me. I was relying on the criminal justice system that had been failing me for 28 years until he came along," Crawford says of Shellem. "He has a pit bull's tenacity. When he grabs hold of something, he doesn't let go until he finds the truth."

Last year, Shellem approached Marsico, asking the DA to open his file--complete with non-public details--on another case, Commonwealth of Pennsylvania vs. David Gladden. "I trusted him enough to do that," says Marsico. "Pete is at a stage where, because of his reputation, I didn't have a problem with it. I can't think of any other reporter I would do that for."

Gladden was convicted in 1995 of killing and setting fire to an elderly woman in Harrisburg . Marsico says it was Shellem who brought him a key fact in the case: A serial killer lived in the same building as M. Geneva Long, whom Gladden was convicted of murdering. That man had preyed on elderly women, sexually assaulting them and setting fire to one to co
ver up the crime--facts identical to the crime Gladden had supposedly committed.

Marsico, as an assistant district attorney, had prosecuted the other man and was familiar with his MO. But he never put two and two together. "My jaw dropped. I know it's a cliché, but it did," Marsico says. "That was enough to raise concerns. As a result of Pete, we took a fresh look at the case."

Shellem also sought out the only eyewitness, who had told authorities he and Gladden had burglarized Long's apartment and that he watched as Gladden choked her. Police had believed the eyewitness even though he gave the wrong location of the murder and couldn't even say whether the victim was black or white. In an interview with Shellem, the man recanted the story and said he had been coerced into confessing to his role in the crime.

All Ellen Pleasant, 93, cared about was living long enough to see Gladden, her grandson, walk from jail a free man. It happened on February 16. "Pete is a God-sent man to us," says Pleasant. "He's part of our family now."

A word to the wise: Don't mess with Shellem's bartenders, and never, ever call any of them Fatso. Several state legislators learned that the hard way.

After a session of the state House of Representatives in 2002, a group of lawmakers went barhopping in Harrisburg . They entered one of Shellem's favorite haunts, some with drinks already in hand. They were obnoxious, and, when a bartender told them they couldn't smoke cigars or leave with their drinks, they insulted her.

In that episode, Shellem saw a story.

He went on to expose a little-known provision in state law: In many instances, state lawmakers are immune from arrest during legislative sessions. City police were powerless to cite the legislators, but at least one was embarrassed publicly by Shellem for his rude ways.

"I don't want to lead anyone to believe I go to bars only to get stories, although it would be nice if my editors did," says Shellem. "In fact, sometimes I go to places to get away from people trying to pitch me stories. But I often run the stories by people, regular people, to see what they think."

Shellem "comes across as B-movie reporter--you know, a chain-smoking tough guy who meets his sources in bars and operates around the edges. But, in the end, he gets pissed off about these people locked up," says Pete Shelly, a former colleague and now a Harrisburg public relations consultant. "The guy has a heart of gold and is a softie deep down. If you print this, he'll kill me--or investigate me--but it's the truth."

Bill Moushey has a tip for Hollywood . "What he's done is a movie. It's a damn movie," says Moushey, one of the few other reporters in the nation who specializes in trying to prove innocence or prosecutorial misconduct. "The idea that Pete has done this by himself, I can't imagine anyone else doing that. He has accomplished more than anyone."

Getting someone out of jail is not easy work, says Moushey, who in 2001 formed the Innocence Institute of Point Park University in Pittsburgh . By special arrangement, the Pittsburgh Post-Gazette publishes his investigative projects. Besides the reams of records, there is the psychological toll. "You put yourself in a position that everyone and their brother wants to take a shot at you," Moushey says.

The cops hate you. The prosecutors hate you. Families of the victims all hate you. After all, they had closure. Someone is paying for the crime, and along comes a reporter trying to take all that away. "Then you start telling people black is white, it raises all kinds of issues," Moushey says.
But, as Shellem has proved, you can win people over. Even a man whom Shellem helped put in jail is now a fan.

In 1994, Preate, then Pennsylvania 's attorney general, was considered the front-runner for governor. But Shellem, along with Shelly, tirelessly pursued allegations that Preate accepted illegal campaign contributions in exchange for soft treatment from his office. The coverage reopened a dormant federal investigation into Preate, who at the time ripped the paper for what he called a salacious witch hunt.

"He busted my ass. But he was just doing his job," says Preate, who, after serving a one-year jail term for campaign-related mail fraud, has devoted his law practice to prison- reform issues. "You've got to recognize the work that he's done and the value he's given to society. He was there when the justice system failed."

After every investigative series, without fail, Shellem is inundated. His phone rings incessantly, and the mail, postmarked from state correctional facilities, starts piling up. Everyone is innocent, and they all want his help proving it.

Since Gladden's February release, Shellem estimates he has received several hundred calls and letters. He tries to take at least a cursory look at all of them. Most of the time, he says, "there's a pretty obvious hook that explains why the person was convicted."

Of the lot, Shellem has set aside three or four that he believes have potential. Among them is perhaps his next project, his fifth freed inmate. "I know sooner or later," Shellem says, "I'm going to find another one that makes me sit back and say 'What the hell?'"

Mario F. Cattabiani (mcattabiani@phillynews.com) covers Harrisburg for the Philadelphia Inquirer.

New York police commisioner orders forensic shakeup

2007-04-20T13:05:00.000-04:00

This article appeared in the New York Times on April 20, 2007:

After Falsified Test Results, Kelly Orders Forensic Shakeup

By Thomas J. Lueck

With the disclosure that two civilian employees reported false results in testing drug bags in 2002 at the police crime laboratory, Police Commissioner Raymond W. Kelly has ordered a shakeup of the Forensic Investigations Division and the creation of an oversight panel, the authorities said yesterday.

The changes come as a rebuke to the forensic unit’s former commander, Deputy Chief Denis McCarthy, who was recently transferred to a patrol division.

Chief McCarthy, a 27-year veteran of the department, was in charge in 2002 when the two employees were found to have engaged in “dry-labbing,” or cutting corners in the process of testing for drugs during an internal integrity test conducted by the department. In addition, the forensics unit failed to report the transgression to state officials and to a national laboratory accreditation board, as it is required to do.

Chief McCarthy’s transfer and the 2002 drug testing falsification were reported yesterday by The New York Post. Mr. Kelly said that Inspector Kevin J. Walsh, formerly of the Counter-Terrorism Bureau, had replaced Chief McCarthy as commander of the forensics division.

A spokesman for the Police Department, Paul J. Browne, said the falsified test results in 2002 had no bearing on actual court cases, since they were revealed in a routine procedure of “blind proficiency tests” designed as internal checks on the integrity and competence of civilian criminalists, 100 of whom are now employed by the crime laboratory.

But some critics are not convinced that it is an isolated incident. Peter Neufeld, a lawyer and co-founder of the Innocence Project, a New York-based legal group that uses DNA evidence to represent people it believes have been wrongly convicted, said it was unclear how many cases were affected in New York and elsewhere by such falsified lab work.

Mr. Browne said the department’s own testing revealed that the two employees had tried to save time by failing to inspect the contents of all the bags believed to hold cocaine, and reporting that they had tested them all. One technician, or criminalist, was told to inspect 37 bags and reported that all contained cocaine, even though four did not. The other criminalist said all six bags contained cocaine, but one did not.

The case was handled by the Internal Affairs Division, and both employees were disciplined in accordance with police policy, Mr. Browne said. But the violation of department rules came when the forensic unit failed to file a report on the matter with both the state and with the American Society of Criminal Laboratory Directors/Laboratory Accreditation Board, a national oversight organization that accredits New York state forensic labs.

“Our own testing worked, but the lapse came in failing to notify,” Mr. Browne said. He said notification would be one of several procedures studied by a new Forensic Science Review Committee being formed with four senior police officials and two civilian forensic scientists.
But the creation of an oversight panel made up mainly of police personnel does not go far enough, Mr. Neufeld said. He added, “Whenever you have a scandal like this, it is essential to bring in an independent entity without any possibility of conflicts of interest.”

Mr. Browne said the 2002 violations had come under renewed scrutiny last month after the current civilian director of the crime lab, Dr. Peter Pizzola, was informed by state officials of an anonymous report that someone in a crime laboratory at an unspecified location was dry-labbing. When he asked about past violations by New York City criminalists, Dr. Pizzola, who was not with the division in 2002, learned that there had been cases that year that were not reported outside the department.

The police said that Dr. Pizzola’s predecessor, W. Mark Dale, had maintained in a recent interview that he believed the violations should not have been reported outside the department because they were being handled by Internal Affairs.

Mr. Browne said that one employee responsible for the 2002 violations, Elizabeth Mansour, had retired, and that the other, Rameschandra J. Patel, had been suspended from crime lab work and restricted to answering telephones.

Men's innocence puts Dallas county on trial

2007-04-18T15:56:00.000-04:00

This article appeared in the Los Angeles Times on April 9, 2007:

Texas men's innocence puts a county on trial
DNA is expected to clear a convicted rapist, as it has 3 of his friends.

By Miguel Bustillo
Times Staff Writer

DALLAS — Many men claim innocence when staring at iron bars. But James Giles knew he was no rapist — and he believed three fellow Texas prisoners who told him they too were wrongly convicted of rape.

They shared their despair over games of chess and dominoes, worked on longshot appeals together in the law library, and dreamed of the day they would win exoneration from a justice system that failed them.

It has taken nearly 25 years, but with the assistance of DNA testing, the men — all African American — are proving they are indeed innocent. Two were freed from prison. A third was cleared last month, years after serving his sentence. Today, Giles is expected to clear his name and become the 13th man from Dallas County to prove with genetic testing that he was wrongly imprisoned.

Giles, who spent 10 years in prison and was paroled in 1993, is seeking to vacate his 1983 conviction. New evidence suggests that another man — also named James Giles — committed the rape. Dallas County prosecutors more than two decades ago knew about the other James Giles, who lived across the street from the victim, but never told Giles' defense.

"I lost everything in the world," said Giles, 53. "I just thank God we finally got someone to see that I was the wrong guy."

Giles struggled to rebuild his life after he got out of prison, branded a rapist. The skilled construction laborer had a hard time finding menial jobs, and his wife, who stuck with him through his prison term, eventually sought a divorce.

The Dallas County district attorney was scheduled to personally apologize to Giles today. The three wrongly convicted men whom Giles befriended in prison will be cheering in the courtroom.

The wrongful convictions of these four men are some of the most dramatic examples of prosecutions in the Lone Star State that have come under increasing scrutiny.

Dallas County has had more people exonerated by DNA than all but three entire states. Texas, which leads the nation in convictions overturned by genetic testing, has had 27, Illinois, 26, and New York, 23. California has had nine exonerations.

Revisiting cases

With countless current and former Texas prisoners clamoring for testing to clear their names — more than 430 in Dallas County — law enforcement officials predict that the number of overturned convictions will grow exponentially.

Texas prosecutors have typically fought activists' attempts to revisit cases. But Dallas County Dist. Atty. Craig Watkins, the first African American elected to the office, has forged an unusual alliance with the Innocence Project, a New York-based group that uses DNA testing to challenge convictions.

Watkins has proclaimed "a new day in Dallas" and is promising to right past wrongs of his office — particularly the many disputed convictions during the reign of Henry Wade, Dallas County's top prosecutor from 1951 to 1987.

"The mentality of the office at that time was, 'I don't care if there is some doubt, let's make sure we keep up our conviction rate,' " Watkins said. Wade died in 2001, and is best known for his role in Roe vs. Wade, the U.S. Supreme Court case that legalized abortion.

"Back then, if you sent someone to jail who was possibly innocent, it was a badge of honor," Watkins said.

Watkins' office helped reinvestigate the Giles case. The exoneration request must ultimately be approved by the Texas Court of Criminal Appeals, but with Watkins' support, that is considered a formality.

Nearly all the Dallas DNA exonerations have involved men who were convicted of sex crimes based on dubious witness accounts. Most are African Americans — Giles will be the 10th.

Unlike many other jurisdictions, including Houston, Dallas County preserved blood samples and other evidence collected decades ago, a stroke of luck that is allowing felons to seek a review of their convictions.

"The biggest tragedy when the wrong person goes behind bars is that the right person got away with it," said state Sen. Rodney Ellis. "We need to make sure the scales of justice are balanced."

Ellis is offering numerous proposals in response to the exonerations, including increased payments to the wrongly convicted, and the creation of an Innocence Commission that would review the wrongful convictions for signs of systemic problems. Giles is to testify at a hearing on the proposals Tuesday in Austin.

Giles' conviction

Giles was found guilty in 1983 of participating in the gang rape of a pregnant woman. The victim picked him out of a photo lineup, though he was bigger and about a decade older than the teenage assailant she initially described to police. That identification was the only evidence linking him to the crime. The victim never saw him in person until the trial. He was the only black man in the courtroom besides a bailiff.

Examining old files, the Innocence Project found that police and prosecutors had learned that a younger, shorter man more closely matching the description — James "Quack" Giles — lived across the street from the victim. He was friends with a neighbor, Stanley Bryant, who confessed to police shortly after the 1982 rape that he had committed the crime with two teenage boys named Michael and James.

"That should have led police to the true James Giles, but it was buried," said Vanessa Potkin of the Innocence Project, Giles' current attorney. "Our client was a decade older, and he had prominent gold teeth. He had phone records and restaurant receipts showing where he was at the time of the crime, as well as the word of his mother and his wife. The evidence was screaming out, 'This is the wrong guy.' "

Police had received a tip that a James Giles had taken part in the rape and immediately focused on the older Giles, who lived across town and was on probation for the attempted murder of a co-worker.

In what Giles' new attorneys called a "remarkable chance encounter," Giles came face to face with the tipster in jail. The man, Marvin Moore, immediately realized his tip had led to the wrong man's conviction and has helped Giles' case.

Dallas prosecutors agreed to review the case in 1991, but did not seek to overturn the conviction, citing insufficient evidence. However, recent DNA tests determined that semen recovered from the rape victim came from Bryant and a man named Michael Brown, a friend of the younger James Giles. Brown was later convicted of another sexual assault and died in prison. The younger Giles went to prison on an unrelated charge and also died while incarcerated.

Last week, Dallas prosecutors revealed that the rape victim's ex-husband, who was present during the crime, recently picked the younger Giles out of a photo lineup. The victim now concedes she is not sure if the older Giles was the right man.

Prison friendships

In the Texas prison system during the 1980s, the three men who also claimed innocence individually befriended Giles, who had a typewriter and helped inmates draft papers seeking reconsideration of their cases. Some of the men would also come to know each other.

"We sat together, ate together and tried to clear our name together," James Waller recalled of his prison days with Giles. Waller was convicted of raping a 12-year-old boy. "When I went into the courtroom, I really thought I would be going home. I never would think I would go to jail for something I didn't do. But I did. That was Dallas County: get a conviction no matter how."

Waller, 50, was exonerated last month, more than 13 years after he finished his sentence. Genetic testing freed Kevin Byrd from prison in 1997 at age 36, after he had served 12 years. A.B. Butler was released in 2000 at age 45 after serving 17 years.

Waller will receive $250,000 for the 10 years he spent in prison. But he said nothing could make up for the humiliation he endured as a convicted sex offender, unable to find a decent job or apartment. Compounding his tragedy, Waller lost his pregnant wife in a 2001 car accident.

"When you are on the sex offender list, you get treated worse than dirt, because at least dirt washes away. Sex offender doesn't wash away," he said as he prepared for a Bible study lesson. "But thank God I made it through that. I became a better person, because it wasn't going to do me any good to be angry."

Giles, who makes a living preparing taxes in Lufkin, about three hours from Dallas, is also set to receive $250,000 once he is exonerated.

But he said no check could make up for his lost life. It won't help him attend the funerals of the aunts and uncles he lost while he was in prison. It won't let him go back and be there at the hospital for his son James Jr., now 28, who was diagnosed with sickle-cell anemia as a child and needed a father's love.

But at least it will prove that he's no rapist.

"The system does still work; it just takes too long," Giles said. "Why has this taken 25 years?"

miguel.bustillo@latimes.com

D.A. Won't Retry Man

2007-04-11T15:41:00.000-04:00

This article appeared in the Los Angeles Times on April 7, 2007:

D.A. won't retry man held 22 years

'I just want to move forward,' says Timothy Atkins. A judge had thrown out his conviction in a Venice slaying.

By Joe Mozingo
Times Staff Writer

Upon learning that he was truly a free man, Timothy Atkins bore the stoic attitude that helped him survive the 22 years he spent in prison before a judge threw out his murder conviction this year.

Prosecutors said Friday they would not retry his case, and Atkins walked into the gray morning, expressing neither glee at his exoneration nor anger at the lost years.

"I just want to move forward, there's nothing to look back for," said Atkins, 39.

Atkins, who has maintained his innocence since he was convicted in 1987 of second-degree murder and two counts of robbery, said he was "going to go home, kick back and play some PlayStation."

Prosecutors insist he was guilty of taking part in a carjacking attempt on New Year's Day 1985, in which florist Vincente Gonzales was shot to death in Venice. But when Superior Court Judge Michael Tynan threw out the conviction in February after the key witness against Atkins said she lied, prosecutors didn't have enough evidence to go forward.

"We believe the right person was tried and convicted," said Deputy Dist. Atty. Scott Collins.

Atkins' attorney, Justin Brooks, called the allegation outrageous and said prosecutors' inability to admit what went wrong at Atkins' trial will ensure innocent people will continue to be put away.

"When a plane crashes, we do an investigation of why the plane crashed," he said. "We need to do that with the justice system…. It does no good for anyone if, after these cases, we just say, 'Oh, well, let's move on.' "

Atkins was a 17-year-old gang member in Venice when Gonzales was killed. He and his friend, Ricky Evans, were arrested after an acquaintance, Denise Powell, told police that Atkins bragged about the killing one night when the three were driving around looking for crack cocaine. Atkins, she told them, said he had "offed" the man.

Evans was killed in jail before he could go to trial. Atkins barely survived the same assault.

Powell could not be located for his trial, but her preliminary hearing testimony, in which Atkins' attorney barely cross-examined her, was read to the jury.

After his conviction, Atkins said he heard that Powell had approached his family and admitted that she lied about him and was sorry.

But he didn't have the money for a lawyer to pursue it and Powell — frequently homeless and in and out of jail — was hard to find.

In 2001, he sent a letter laying out his case to the California Innocence Project at California Western Law School in San Diego. The pro bono clinic took up his cause, but could not locate Powell until February 2005 — at a rehab clinic in El Monte.

Law student Wendy Koen got a video declaration and signed statement from Powell, and at a hearing Powell testified that she had lied under pressure from police.

The district attorney argued that the recantation was dubious and that corroborating evidence supported her original testimony.

On Feb. 9, Tynan ruled that Powell's turnabout was credible and fatally undermined the prosecution's case. He noted that the victim's wife, who was splattered by her husband's blood during the shooting, caught only a one-second glimpse of a suspect whom she described as 5 feet 4 — whereas Atkins is 6 feet tall. He found her subsequent identification of Atkins in a photo lineup "highly questionable, if not totally unreliable."

Tynan ordered Atkins released and gave the district attorney 60 days to decide whether to retry the case or drop the charges.

The district attorney gave no indication of his intention until Friday's deadline.

"Based on the state of the evidence in 2007 and the trial court's ruling on the habeas petition, we are no longer able to proceed on this matter," Collins said.

Tynan dismissed the case.

Atkins hugged his attorneys and told the judge he planned to take a job doing gang intervention in Venice; he said he dropped out of his gang in 1992. "Mr. Atkins, I wish you the best of luck," Tynan said.

Atkins didn't expect an apology, but he was firm about his innocence."The system was wrong. I did [more than two decades] for it."*

joe.mozingo@latimes.com

Dallas judge urges another DNA exoneration

2007-04-09T16:13:00.000-04:00

This article appeared in the New York Times on April 9, 2007:

Judge Urges 13th Dallas DNA Exoneration

By The Associated Press
Filed at 2:18 p.m. ET

DALLAS (AP) -- James Curtis Giles spent 10 years in prison for a gang rape he has long said he did not commit. On Monday, more than a decade after his release, a prosecutor acknowledged Giles' arrest had been a case of mistaken identity, and a judge recommended he be exonerated.
If the appeals court formally approves State District Judge Robert Francis' recommendation as expected, Giles, now 53, will become the 13th Dallas County man to be exonerated since 2001 with the help of DNA evidence.

''I hope we continue to do the right thing in this situation,'' Giles told the judge Monday. ''Don't wait this long to make it right.''

About two dozen relatives packed into the courtroom and broke into applause after Giles spoke.
Giles, who left with courtroom with a smile, said he doesn't hold a grudge against the state. The judge complimented him on his positive attitude about his ordeal.

''This is not what I want to see as a judge,'' Francis said, ''but I'm glad we can rectify as much as we can.''

The Dallas County District Attorney's office and Giles' Innocence Project lawyer, Vanessa Potkin, both told the court they had evidence showing Giles was innocent of the 1982 gang rape of a Dallas woman.

It turned out to be a case of mistaken identity, said Assistant Dallas County District Attorney Lisa Smith.

A man who pleaded guilty to the gang rape, Stanley Bryant, implicated two other men in the crime: a James Giles and a Michael Brown. DNA evidence linked Brown and Bryant to the crime, Smith and Potkin said. Brown was never tried and died in prison after being convicted of another gang rape.

Police eventually arrested James Curtis Giles, who lived 25 miles away and did not match the description of the attacker given by the rape victim, Potkin said. Giles was about 10 years older and had gold teeth.

Investigators ignored another man with a similar name: James Earl Giles. That Giles lived across the street from the victim and had previously been arrested with Brown on other charges, the attorneys said. He died in prison in 2000 while serving time for robbery and assault.

The victim recently acknowledged some doubt as to whether James Curtis Giles was among the rapists. One witness also recently identified the other man, James Earl Giles, in a photo lineup, Smith said.

The DNA evidence that linked Brown to the crime was one factor that helped convince the district attorney's office to investigate James Curtis Giles' claim of innocence, especially because of Brown's ''overwhelming connection'' to the other James Giles, Potkin said.

Giles has had to register as a sex offender since his release. He is married and lives in Lufkin with his wife, working for an accounting business, Potkin said.

''It's been humiliating every day, knowing that a sex offender was the scum of the earth,'' Giles said after the hearing Monday.

Giles, who is black, would be the 13th Dallas County man since 2001 exonerated by DNA evidence, the most of any county in the nation. It would be the third exoneration since District Attorney Craig Watkins took office on Jan. 1 pledging to free anyone wrongfully convicted.

Watkins, the state's first black district attorney, took over an office with a history of racial discrimination, including a staff manual for prosecutors that described how to keep minorities off juries.

Giles is scheduled to appear Tuesday at the state Capitol in Austin with Barry Scheck, the co-director of the Innocence Project, a New York-based legal center that specializes in overturning wrongful convictions. They are scheduled to speak at Senate hearings regarding three reform bills designed to reduce wrongful convictions in Texas, said Eric Ferrero, a spokesman for the Innocence Project.

Texas leads the nation with 27 DNA exonerations, one more than Illinois, according to Innocence Project figures. There have been 198 exonerations nationwide.

Trial of suspected serial killer set to begin as innocent man is set free

2007-04-03T15:05:00.000-04:00

This article appeared in the Los Angeles Times on April 3, 2007:

Trial of suspected serial killer set to begin

Chester Dewayne Turner has been charged with 11 murders dating to 1987.
DNA evidence links him to the crimes.

By John Spano
Times Staff Writer

Cliff Shepard gestured to where Andrea Tripplett's body was found among the weeds in a vacant lot at 7812 S. Figueroa St. It was 1992, and the epidemic of crack was raging.

Another woman, also a prostitute, was found nearby, murdered in a Porta-Potty, a green cord knotted around her neck.

Three other partially clad women were found near the intersection of Figueroa and 98th streets in 1992 — one in a motel, two more on the grounds of Charles W. Barrett Elementary School, Shepard recalled.

All told, more than a dozen victims were sexually assaulted and strangled along 30 blocks of Figueroa during an 11-year stretch beginning in 1987, said Shepard, the LAPD detective who eventually tied all the crimes to the same man.

Today, Chester Dewayne Turner, 39, goes on trial for 11 of the murders; if found guilty, he will join the annals of Los Angeles' most prolific serial killers, along with Freeway Killer William Bonin — convicted of 14 murders — and Night Stalker Richard Ramirez — 13.

Prosecutors say they plan to show jurors 10 DNA connections analysts made between Turner and the 10 dead women; the 11th victim was the murdered Regina Washington's 6 1/2 -month fetus. Police also say they have evidence that Turner beat or choked other women who survived in fights over sex.

His defense is expected to claim that Turner was a drug dealer whose customers were mainly prostitutes who often paid in trade, thus accounting for the DNA evidence.

Authorities have gone to extraordinary lengths to ensure that jurors won't hear something that might shake their faith in the scientific evidence — that a different man was convicted of three of the murders they now attribute to Turner.

David Allen Jones served 11 years in prison before Shepard used DNA tests to prove he was innocent. Jones has an IQ of 60 and speaks like a third-grader, according to his lawyer, yet he confessed after interrogation to being a serial killer who had cleverly evaded detection for years. Jones received $720,000 in compensation for his false conviction and long prison sentence.

Shepard is credited with freeing Jones and arresting Turner. He has interviewed Turner four times, and the defendant has consistently denied killing anyone.

Earlier this year, a judge rejected a defense request to present to the jury elements of the Jones case, ruling them irrelevant to the guilt or innocence of Turner.

Police said they have connected DNA in three slayings originally blamed on Jones to Turner, but he has not been charged with those killings.

Defense attorney John Tyre made it clear that he will not concede the physical evidence. He suggested that decade-old procedures in the LAPD's much-criticized crime lab leave room for error — a legal tactic that worked for O.J. Simpson, who was tried in the courtroom next door to Jones more than 10 years ago.

The standard kits used to collect crime-scene evidence contain 10 swabs for taking fluids. Tyre said only 20% of the swabs in the Turner prosecution were tested for DNA.

"When you only test 20% of the evidence and leave 80% of the evidence untested, you never know what you're missing," Tyre said. "Maybe other DNA was not in the system to match."

Had the LAPD lavished as much attention on Jones' case as it did on Simpson's, very little would have been gained. At the time, Turner's DNA was not in any database and therefore could not have been traced to the crime-scene samples.

Turner was serving an eight-year prison sentence in a rape case when genetic testing in 2003 tied him to the first of the 10 women. There are no witnesses to any of the killings. There is a grainy surveillance camera videotape that appears to show an actual murder, but the footage is so rough that Tyre said it's impossible to identify either the victim or the assailant.

"The real problem is the redundancy of the results," said Barry Scheck, head of the Innocence Project, a group that has cleared almost 200 people falsely convicted. "If you have a number of victims and they have the same profile, and that matches him," the case is more difficult to defend, he said.

Scheck cited the freeing of a Buffalo man Monday who had been imprisoned for 21 years for rapes he did not commit. A schizophrenic, the man was cleared by DNA analysis, which Scheck said has been a factor in proving the innocence of dozens of others.

Turner is unlikely to testify in his own defense. Tyre said he is being held in the Los Angeles County Jail with several convicted multiple killers.

In his investigation, Shepard quickly established that Turner lived for many years in a house within several blocks of Figueroa and 98th streets.

Shepard takes particular satisfaction in solving the case in the area where he served for six years as a patrol cop. On a quick tour Monday, he said the area hadn't changed much."We had more than a thousand murders in the city every year," Shepard recalled. "Our homicide units were overwhelmed. Before they could finish working one crime scene, they were called out on another homicide."

john.spano@latimes.com

Wrongly Convicted Man Freed From Jail

2007-03-30T14:02:00.000-04:00

This article appeared in the New York Times on March 30, 2007:

Wrongly Convicted Man Freed From Jail

By THE ASSOCIATED PRESS
Filed at 4:36 a.m. ET

ST. LOUIS (AP) -- A man who spent 11 years in prison for a carjacking he didn't commit was freed Thursday after DNA analysis exonerated him.

Antonio Beaver, 41, arrived in court wearing an orange prison jumpsuit. Shortly afterward, he was wearing a sport coat and slacks, addressing reporters during his first moments of freedom.
''This feels strange,'' Beaver said. ''I'd like to give my thanks to God, because there is a God, and he knew I was innocent from the start.''

Beaver was convicted of robbery in 1997 and sentenced to 18 years in prison.
In the crime for which he was convicted, someone threatened a woman with a screwdriver and stole her car after a struggle. The woman stabbed the man with the screwdriver, leaving traces of the carjacker's blood in the car.

The victim identified Beaver in a lineup, but his lawyers say the lineup was flawed.
DNA testing at the time couldn't provide conclusive results, St. Louis Circuit Attorney Jennifer Joyce said.

In 2001 Beaver filed his own motion for a new DNA test, and he was later assisted by the Innocence Project, a legal center that seeks to uncover wrongful convictions.

Beaver said he plans to stay with an uncle.

Exonerated man sues Miami

2007-03-22T16:30:00.000-04:00

This article appeared in the New York Times on March 21, 2007:

Man Exonerated of Rape Sues Miami

By THE ASSOCIATED PRESS
Filed at 9:57 p.m. ET

CORAL GABLES, Fla. (AP) -- A man who spent 26 years in prison for rapes he didn't commit sued Miami-Dade County and police Wednesday, accusing them of falsifying records and other illegal actions.

Luis Diaz Martinez, 69, was released in March 2005 after DNA evidence excluded him as the attacker in two rapes and cast doubt on his conviction in all five cases. Earlier, victims had recanted their testimony in two other convictions.

''They railroaded this man and took 26 years of his life. They took away from him any chance of having a family, any chance for a career, and any chance he had at happiness,'' said his attorney Marvin Kurzban. ''We are here to right that wrong.''

County officials did not immediately return messages Wednesday. Police spokesman Carlos Maura said the department had yet to see the lawsuit and could not comment.

Maura said he was not aware of any investigation to find the true rapist.

Diaz, who fled Cuba in 1966, was serving a life sentence when lawyers for the Innocence Project, a nonprofit organization that pushes for DNA exoneration, took his case.

A frail Diaz trembled as he spoke Wednesday of his years in prison.

''They took away my liberty, but always in my heart and in my mind, I always knew that I was innocent,'' he said.

The lawsuit, filed in the 11th Judicial Circuit Court in Miami-Dade County, accuses police officers of false arrest, fabricating evidence and pressuring witnesses to identify Diaz as their attacker, as well as causing him extreme and ongoing emotional. It calls for unspecified damages.

Diaz was convicted of assaults that occurred between 1977 and 1979 in the Bird Road area of Coral Gables, south of downtown Miami.

The convictions were based on identifications made by eight victims, though some of them initially described a much heavier and taller Hispanic attacker who spoke English. Diaz spoke little to no English.

Justice in Dallas

2007-03-12T18:01:00.000-04:00

This article appeared in the Washington Post on March 5, 2007:

New Prosecutor Revisits Justice in Dallas
District Attorney Embraces Innocence Project and 'Smart on Crime' Approach

By Sylvia Moreno
Washington Post Staff Writer

DALLAS -- Craig Watkins is still settling into his 11th-floor office overlooking the city skyline, hanging up pictures, arranging his plaques -- and revolutionizing the criminal justice system he oversees.

Sworn in as Dallas County district attorney on Jan. 1 -- he is the first elected black district attorney in Texas -- Watkins fired or accepted the resignations of almost two dozen high-level white prosecutors and began hiring minorities and women.

DALLAS -- Craig Watkins is still settling into his 11th-floor office overlooking the city skyline, hanging up pictures, arranging his plaques -- and revolutionizing the criminal justice system he oversees.

And in an unprecedented act for any jurisdiction in the nation, he announced he would allow the Texas affiliate of the Innocence Project to review hundreds of Dallas County cases dating back to 1970 to decide whether DNA tests should be conducted to validate past convictions. At 12 in the past five years, Dallas has more post-conviction DNA exonerations than any county in the nation and more than at least two states. A 13th exoneration, of a Dallas County man, is expected to be announced within days.

By his own estimate, Watkins should not be occupying what he calls a "ten-gallon-hat, cowboy-boot-wearing, dip-chewin', lock-'em-up-and-throw-away-the-key" post in the ninth-largest city in the country.

He's black, he's a Democrat, he's young, he was a defense lawyer with an office in a southside neighborhood, and he has no prosecutorial experience -- unless he counts a year-long internship handling misdemeanors in the city prosecutor's office. His two previous applications to work as an assistant district attorney in Dallas County were rejected, in fact, by an office in which a prosecutor once produced a manual on how to exclude minorities from Texas juries.

In November, Watkins, 39, was elected as part of a Democratic sweep in Dallas in which the party took 42 judgeships and six other countywide offices. He is the first Democratic district attorney in 20 years. During the campaign he promised to be "smart on crime," not just tough on crime; to ask for the death penalty when appropriate but also to advocate for better rehabilitation programs and post-release support services for ex-convicts.

"You know what people call it? 'Hug-a-thug,' " said Watkins, imposing at 6 feet 5 yet soft-spoken, as he sat in his office after his latest "guest of honor" appearance, at a local high school's Black History Month assembly. "People say I'll coddle these criminals. But it's not about coddling criminals; it's about being smart."

That, he believes, means ensuring that the right people are behind bars.

Post-conviction DNA analysis in certain cases has been allowed in Texas since 2001. Since then, 354 people convicted in Dallas County -- most were in prison, but some were on parole or probation or were done with their sentences -- have asked for the DNA testing. The Dallas district attorney's office agreed to 19 requests; trial judges, who reviewed the district attorney's recommendations, ultimately granted the requests of 34 people.

That, said Watkins, tells him a "get a conviction at all costs" approach "utterly failed us."
"The question becomes: Do you stand in the way of justice or do you be the wind behind it to make sure that justice gets done?" Watkins said. "We're not being soft on crime. We're being sure we get the right person going to jail."

Most of the exonerations date to cases tried in the 1980s under Dallas's legendary law-and-order district attorney, Henry Wade. Attempts to reach Watkins's predecessor, Bill Hill, were unsuccessful.

This time, the screenings of cases to determine whether they are eligible for post-conviction DNA testing will be done by Texas Weslayan University School of Law students. They will work under Mike Ware, an adjunct law professor and board member of the Innocence Project of Texas, who believes that prosecutors and judges may have previously taken an overly stringent view of the Texas statute and denied testing that might have led to exoneration.

"I have to respect [Watkins's] willingness to certainly take his oath of office to heart and be dedicated to true justice, which is what his oath of office requires," Ware said.

Is it really justice for all?

2007-02-28T16:10:00.000-05:00

This article appeared in the Patriot-News on February 20, 2007:

Is it really justice for all?
Gladden case, others show flaws of conforming evidence to crime

By Pete Shellem
The Patriot-News

The homecomings are always surreal.

In Patty Carbone's case, it was a reuniting with her father and brothers, and later with the 21-year-old daughter she hadn't seen outside prison in about a decade.

Steven Crawford's family rented a limo and took him out for a steak dinner before returning to the family members and well-wishers from whom he had been separated for almost three decades.

Barry Laughman was surrounded by the rural roughneck workers that made up his loved ones.
David Gladden was greeted by nieces and nephews he didn't know he had at his grandmother's Harrisburg home Friday night.

She served him the fried chicken he had been telling me about every time I tried to get him to talk about his case.

They were all joyful moments, but in each case I was struck by overwhelming sadness watching these bewildered souls being thrust back into a life from which they were torn when the justice system ran them over.

They were all at a disadvantage when it happened. Patty Carbone was described as trailer trash. Steven Crawford was a young black man in trouble with the law after the racial unrest of the late 1960s.

Like Laughman, Gladden appears to be mentally challenged. At the time of his 1995 trial, a psychologist said he was functioning at a third-grade level.

While authorities dispute whether he's really retarded, one of the first things Gladden wanted to talk about to me, his attorney Royce L. Morris, and his grandmother when we picked him up from the State Correctional Institution at Mahanoy was the fact that the Cartoon Network had started showing reruns of the old Hanna-Barbara cartoon "Lippy the Lion and Hardy Har Har."
And when I first started writing about Gladden more than a year ago, Steven Crawford -- who was also housed at Mahanoy -- told me Gladden once showed up in the showers wearing a raincoat and boots.

I did write down one thing Gladden said on our three-hour trip from prison Friday:
"The truth of the matter is I still don't know what's going on."

But then again, perhaps he wasn't the only one during this long and sorry case of injustice.
The arson investigators who probed M. Geneva Long's murder initially blamed faulty wiring for the blaze that was set to cover up her death.

Never mind the piles of magazines and papers on top of her body.

It was clear from their reports that they initially suspected Andrew Dillon, staying in a room next door, who would later admit to killing four other elderly women in a similar manner.

Yet, they were led away from those suspicions by a convicted sex offender named Donald "Goofball" Walborn, who met Gladden in prison. At the time, Walborn was facing charges for raping a 12-year-old girl.

In his initial statement, Walborn described Gladden as a Superfly kind of guy, flashing jewelry and money after Long's murder, although it was clear that Long had nothing of value to steal and Gladden couldn't even raise the $100 he needed to get out of jail on a marijuana possession charge.

While on bail for a rape charge, Walborn proceeded to rape another 12-year-old. Within days of being let out of prison last year, he was arrested on charges that he molested a 19-year-old retarded man. Those charges were thrown out, but when the stories came out, Walborn would later accuse me of molesting him. This was the "reliable confidential informant" police used -- a man who referred to himself as "the eyes and ears of the Harrisburg Police Department."

Walborn also implicated a small-time burglar named James A. Carson Jr., who eventually confessed and said he was burglarizing Long's apartment with Gladden and saw Gladden choking her as he ran away.

Police proceeded with this theory even though Carson identified the wrong location, put himself with Gladden when Gladden was in jail, and couldn't even say whether Long was white or black in his initial statements.

Since he was the only witness, I immediately sought out Carson when I began investigating the case. He recanted right away and said he had been coerced into the confession.

I covered Gladden's 1995 trial and was surprised at the verdict, since Carson was the only witness against him. Afterward, I was at a bar with Gladden's attorney, Allen C. Welch, who was railing about the outcome -- first-degree murder and a life sentence. His trial folder was on the bar and I started to page through it. On the first page, Welch had written, "Can I blame Andrew Dillon?"

When I asked what Dillon -- who at the time had been charged in one murder and was the prime suspect in three others -- had to do with it, Welch told me Dillon lived nearby. He said then-District Attorney John F. Cherry had told him authorities had cleared Dillon.

When I later asked Cherry about it, he said they cleared Dillon with polygraphs.

It wasn't until years later when I looked at the case again that I found Dillon had refused a polygraph and Carson had flunked.

So why didn't authorities turn back?

Thomas Carter, the city detective who solved the Dillon case, was telling everyone who would listen that they had the wrong man in Long's murder.

Carter wouldn't talk to me about the case, but he told a Susquehanna High School forensics class I spoke to last year that my stories were on the mark.

When Dauphin County District Attorney Edward M. Marsico Jr. and his first assistant, Fran Chardo, first retrieved the Gladden file, they knew there were major problems.

The file, which they opened to me, had crime-scene photos from Dillon's other murders in it, along with a fax about Dillon's arrest from Carter to Cherry. They were also troubled that a murder trial transcript was only about an inch-and-a-half thick. To their credit, they immediately began conducting an exhaustive review, but there was little with which to work.

The only solid piece of evidence The Patriot-News' series turned up was a witness who said Dillon asked him for an alibi on the night of the slaying. Joseph Baumgartner's statement was corroborated by one Dillon gave police after the murder, in which he said he was with a heavyset white cabdriver named Joe at the time of Long's murder.

Last Thursday, Marsico and Chardo told me to expect some news. But then they hooked Baumgartner up to the lie detector and he failed. He admitted to Morris that he may have embellished the story, but stuck to his guns about Dillon asking for an alibi.

Marsico took the file home with him Thursday night, reviewed it again, and finally decided to pull the plug, saying Long's murder was a signature of Andrew Dillon. Marsico said any reasonable jury would have acquitted Gladden had they known about Dillon.

"The re-investigation has established to our satisfaction that Andrew Dillon was the principal actor in the murder of Margaret Geneva Long," Marsico and Chardo wrote in the petition that freed Gladden.

State Sen. Stewart Greenleaf has formed an innocence commission to review the 10 cases where DNA proved people were doing time for crimes they didn't commit.

Of the four cases I've investigated and written about in the past decade, only Barry Laughman's will be among those 10 because there was fresh DNA evidence.

But there has been a common theme in all of the cases -- investigators trying to conform the evidence to their theories rather than the other way around.

As one state police investigator has always told me, "you can't prove innocence."

Hopefully, the justice system will come up with better ways to assure guilt before it unjustly swallows another large chunk of someone's life.

Pete Williams Officially Exonerated

2007-02-23T12:02:00.000-05:00

This article appeared on the website of the Georgia Innocence Project on February 13, 2007:

PETE WILLIAMS OFFICIALLY EXONERATED

Atlanta -Wishing Pete Williams "the best" for the rest of his life, Judge Thomas Campbell officially exonerated Willie O. "Pete" Williams in a hearing today in Fulton County Superior Court.

The judge granted an Extraordinary Motion for a New Trial filed on Williams' behalf by the Georgia Innocence Project. Representatives from the Fulton District Attorney's office then told the judge they did not intend to prosecute Mr. Williams further.

DNA tests earlier this year proved Williams' innocence of the 1985 rape and kidnapping for which he served nearly 22 years in prison.

Standing by Williams at the brief hearing were his attorneys, GIP Executive Director Aimee Maxwell, volunteer attorney Sandra Michaels, and GIP intern Cliff Williams, who located the DNA evidence that proved Williams' innocence.

Also in the courtroom were Williams' family and dozens of supporters including former GIP intern Ashley Tyson-Mackin, who first identified Williams' case as a strong one, and three previous Georgia exonerees, Robert Clark, Clarence Harrison, and Calvin Johnson, Jr.

Attorney Michael Schumacher, who served as Williams' defense attorney during his trial, was among the first to hug Williams in congratulations at the hearing's conclusion. Schumacher had argued vigorously during the appeals process that another man was responsible for the crime, but those arguments fell on deaf ears. Just days ago, Atlanta police arrested the man that Schumacher contended two decades ago was the real perpetrator. That man had pleaded guilty to three other attacks, and DNA testing by the Georgia Bureau of Investigation found that the DNA in one of those attacks matched the DNA in the case for which Pete Williams was wrongly convicted.

Said Maxwell, "Today is the official end of a decades-long nightmare for Pete Williams. It is now up to us at GIP -- and the entire state -- to help Mr. Williams rebuild his life."

The Atlanta law firm of McKenna, Long & Aldridge is already assisting in that effort. Today, McKenna Long's partner David Balser presented Mr. Williams with several thousand dollars' worth of gift cards, the result of donations from the firm's employees.

Pete Williams becomes the sixth DNA exoneree in Georgia and the 195th in the nation.
To help support GIP, a 501(c)(3) nonprofit corporation which relies on individual donations, grants, and special events for its funding, please visit our Donations page.

For the latest media coverage on the Pete Williams story, please visit our Articles page.
Four of the six Georgia DNA exonerees join together for Pete Williams' exoneration hearing: Calvin Johnson, Jr., Robert Clark, Williams, and Clarence Harrison.

The Dying Death Penalty?

2007-02-21T16:29:00.000-05:00

This article appeared in the Washington Post on February 11, 2007:

The Dying Death Penalty?

By Dahlia Lithwick
Page B02

In a curious application of Newtonian physics, public and state support for capital punishment is steadily declining in America just as the resolve to maintain the death penalty seems to be hardening in the one arena where death-penalty policy once had seemed poised to change: the Supreme Court.

The trend is clear. According to the Death Penalty Information Center, which compiles statistics on capital punishment, two states have imposed formal moratoriums on the death penalty; executions in New York are on hold after the state's death penalty law was declared unconstitutional in 2004; 11 states (including, most recently, Florida and Tennessee) have effectively barred the practice because of concerns over lethal injection; and 11 more are considering moratoriums or repeals.

The raw numbers of executions and death sentences in the United States have plummeted: Information Center statistics show that in 1999 we executed 98 people, and in 2006 that number dropped to a 10-year low of 53. Whereas America steadily condemned about 300 prisoners a year to death through the 1990s, that number has declined by more than half and reached a low of 114 in 2006. Public support also seems to be faltering. A Gallup poll last year showed that two-thirds of the country still supports capital punishment for murderers, but when given the choice between the death penalty and a life sentence without parole, more people preferred the life prison term (48 percent) to capital punishment (47 percent) for the first time in 20 years.

The new uncertainty over capital punishment ranges from queasiness over the methods of execution to concern that we are executing innocents. Lethal injection, the preferred method of execution in 39 of the 40 states that permit capital punishment, is particularly fraught with problems.

In December, then-Gov. Jeb Bush of Florida ended executions following one in which it took the prisoner 34 minutes to die and he suffered chemical burns in the process. Recent scholarship, including a British medical journal report, indicates that the lethal-injection cocktail used may simply mask agonizing pain before death. And state courts are also increasingly bothered about the proper role of physicians -- often mandated by law to supervise the lethal-injection process over objections by medical associations and ethics boards.

There are numerous other reasons for our growing doubts about the death penalty. In a 2005 speech, Justice John Paul Stevens pointed to several, including DNA evidence that has shown that "a substantial number of death sentences have been imposed erroneously," the fact that elected judges face disproportionate pressure to impose capital punishment, and the problem of "death-qualified" jurors (those who oppose capital punishment are barred from sitting on capital cases). For these and other reasons, many Americans have begun to worry that the death penalty in this country is not reserved for the "worst of the worst," but for the poorest of the poor and those whose trial attorneys later prove to have been asleepest at the switch.

The Innocence Project, a nonprofit legal clinic associated with the Benjamin N. Cardozo School of Law at Yeshiva University in New York, says there have been 194 post-conviction DNA exonerations. A wrongful-executions study by Hugo Bedau and Michael Radelet of contends that from 1900 to 1991, 416 clearly innocent people were sentenced to die. And studies about the racism that taints the entire system are unequivocal.In recent years the Supreme Court has also shown concern about the death penalty.

In an article published last year, Duke University professor Erwin Chemerinsky observed that in the final years of the William H. Rehnquist Court, the justices showed a marked tendency to overturn death sentences. Chemerinsky speculated that "a majority of the Court was (and continues to be) deeply concerned about how the death penalty is administered in the United States" and that, as a result of the revelations by various investigators, "the reality of innocent people facing execution has had a profound effect on the Justices."

So in the early years of the new century, the court handed down surprising decisions outlawing executions of the mentally retarded and of those who were juveniles at the time of their crimes, and refining the tests for the ineffectiveness of counsel. Several justices also voiced concerns off the bench: Stevens, Ruth Bader Ginsburg and Sandra Day O'Connor each spoke publicly and passionately about flaws in the capital system.

But, largely as a result of a change in the court's composition, that trend may now be ending. Just as a few states are defiantly expanding their use of the death penalty. And there is some reason to fear that some justices don't share the burgeoning sense that the machinery of death in this country is broken. One is the new chief justice, John G. Roberts Jr., who, when he worked in the Reagan White House, wrote a memo suggesting that the high court could cut its caseload by "abdicating the role of fourth or fifth guesser in death penalty cases."

One case last term involved a man convicted of a rape and murder, who later produced DNA evidence raising serious doubt that he was the culprit. The court ruled 5 to 3 that this new evidence warranted a new hearing. But Roberts led the dissenters, who felt it wasn't enough for the new evidence to cast doubt on the defendant's conviction; to grant relief, the evidence had to prove he "was actually innocent."

In another death-penalty case from 2005, then-Justice O'Connor agreed with the court's liberals that trial counsel was ineffective. That decision reversed an opinion by Samuel A. Alito Jr., then a judge on the U.S. Court of Appeals for the 3rd Circuit, that would have denied relief. The signals are still mixed. In a different case, the entire court allowed death-row inmates to pursue a civil claim against lethal injection.

But also last term, Justice Antonin Scalia wrote a separate opinion in a death-penalty case for the sole purpose of excoriating Justice David H. Souter, who had written in a dissent about exonerated innocents. Scalia's opinion was a full-bore attack on the notion of innocent exonerees "paraded by various professors" and claimed, in effect, that even if those exonerated were not guilty enough to warrant the death penalty, they were still far from "innocent." (How that made them candidates for the death penalty he did not explain.)

Oral argument this term has also revealed a subtle hardening on the part of some of the court's conservatives. In one case, Roberts questioned the need for a trial judge to specifically guide jurors regarding mitigating evidence.

Somehow, just as the American people are beginning to consider the grave injustices pervading the capital system, several justices seem to be staking out strong personal positions on this front in the culture wars.

In his article, Chemerinsky suggests that justices who change course on the death penalty often do so only after decades on the bench. That might suggest that the two new justices will only soften on capital punishment in the far distant future. These justices also would insist that if the death penalty in this country needs fixing, the state legislatures should do it, a process that's already beginning to happen. But if for most Americans the time for stubborn certainty about the death penalty, at least as it's currently practiced, seems to be over, a court that is more certain than ever of its fundamental fairness looks grievously out of step with an American public willing to recognize the dangers of injustice, error and doubt.

dahlia.lithwick@hotmail.com
Dahlia Lithwick covers legal affairs for Slate,
the online magazine at www.slate.com.

Confession of a false witness frees California man

2007-02-20T15:20:00.000-05:00

This article appeared in the Los Angeles Times on February 10, 2007:

Taking deep breath of freedom
After 20 years in prison for a killing that a key witness now says he didn't commit, Timothy Atkins wants only some fresh air.

By Ashraf Khalil, Times Staff Writer

A lifelong heavy drug user, frequently homeless or in jail, Denise Powell was a hard person to track down.

Researchers for the California Innocence Project spent months searching for Powell — who was only in intermittent contact with her own family. Their goal was to finally document on the record what Powell had been openly admitting for years: Her testimony implicating Timothy Atkins for murder was false.

When researcher Wendy Koen finally found Powell in early 2005, in rehab after a recent arrest, she confessed without hesitation."She was ready to talk. She'd been wanting to talk for years," Koen said. "She said, 'I was young and stupid. I didn't know it would come to this. I lied.' "

Thus began the final step in Atkins' 20-year campaign to prove his innocence. On Friday morning, Atkins, now 39, walked out of Los Angeles County Jail and into the arms of his family, free for the first time since his teens.

"It's over. I made it," he said, as weeping, whooping relatives lined up to embrace him. "I don't think the realization hit me until late last night."

In light of Powell's recanted testimony, Los Angeles County Superior Court Judge Michael A. Tynan overturned Atkins' conviction Thursday and ordered his immediate release. Tynan was the trial judge in 1987 when Atkins was convicted of second-degree murder and two counts of robbery and sentenced to 32 years in prison.

In his ruling freeing Atkins, Tynan recalled that Powell's testimony was "the key to the conviction in this case…. The state has no interest in upholding a conviction obtained by false testimony."

On Friday, Atkins still looked a little shellshocked as he was swarmed by dozens of ecstatic family members and the beaming legal team from the California Innocence Project, part of the California Western School of Law in San Diego.

"This is the pinnacle of our existence," said project director Justin Brooks. "This is the whole goal: freeing the innocent."

Back at his cousin Tanya Franklin's house in South Los Angeles, Atkins dispensed hugs and fielded congratulatory phone calls. After decades of incarceration, he spent most of his time outside on the front lawn.

Franklin asked, "You want to come inside?"

"No," he answered, "I want air."

Atkins' conviction stemmed from a New Year's Day 1985 carjacking attempt in which flower shop owner Vincente Gonzales was killed.

Powell, an acquaintance of Atkins at the time, told police that Atkins and another man, Ricky Evans, had bragged about killing Gonzales. Both men were arrested. Evans was beaten to death in jail before the case could come to trial; Atkins was seriously injured in the same jailhouse fight.

"I'm thinking about Ricky a lot today," said Atkins, who has remained in contact with Evans' mother.

If Evans had lived, "He would have been exonerated as well," Koen said. "It was the same evidence against him."

Police were unable to find Powell to testify at Atkins' trial. Instead, her testimony at a preliminary hearing was read aloud in court.

In his ruling releasing Atkins, Tynan wrote that Powell's absence from the trial was crucial. If she had appeared, subject to cross-examination from the defense, "her demeanor and other indicia of truthfulness and veracity, or their absence, would have been observed by the jury," Tynan wrote. "In all reasonable probability the result would have been more favorable" for Atkins.

Other evidence, such as a vague description of the suspects from the victim's widow, were deemed equally shaky in hindsight by Tynan.

The judge also leveled pointed criticism at police for their "casual attitude toward maintaining contact with Powell." The failure to find and produce her for the trial "appears to be an error of constitutional magnitude," Tynan wrote.

Despite losing half his life to the prison sentence, Atkins said he bore no ill will toward Powell or anyone else.

"The past is the past," he said. "If I see her, I'll speak to her and if I can help her, I will."Atkins and several family members expressed sympathy for Powell, who has a long history of drug addiction and legal problems and has said she was remorseful over her role in Atkins' jailing.

Powell told researchers she was pressured by police to name a suspect in Gonzales' slaying.

"They got her into the station and told her, 'You're not going to leave until you tell us something,' " said Brooks, who listened to a recording of Powell's initial interrogation.

"She had a whole lot of guilt over what she had done to Tim's life," said Koen, who videotaped Powell's statement for the Innocence Project and tracked her down a second time to sign an official court declaration of her changed testimony.

"The guilt has really destroyed her life in a lot of ways."Atkins, who said he plans to work counseling at-risk youth, was remarkably philosophical Friday about his ordeal. He admits to a misspent youth before his arrest and views his incarceration as the only reason he's going to live into his 40s.

"I was a gang member. I was a thief and I had a drug habit," he said. "The life that I was living before, I probably would have ended up dead."

The Los Angeles County district attorney has 60 days to refile charges against Atkins. But Brooks does not expect prosecutors to do so.

"They have no case. They had no case 20 years ago," he said.

Brooks plans to file for state compensation, which offers $100 for each day in prison for those found to be wrongfully convicted. For Atkins, that could mean close to $800,000.

There's also the possibility of a civil suit against the police for wrongful imprisonment, "but that would be a tougher nut," Brooks said.

"First we'll go for the compensation and get him some money to get on his feet."

For now, Atkins is celebrating, adjusting to life as a free man and enjoying some home cooking.

"I'm whole now. I got my baby back," said Atkins' mother, Joyce Boney. "I'm going to the store. My boy wants to eat."

ashraf.khalil@latimes.com

Repaying a debt to the innocent

2007-02-12T16:25:00.000-05:00

This article appeared in the Seattle Times on February 12, 2007:

Repaying a debt to the innocent

By Rachel La Corte
The Associated Press

OLYMPIA — Every day for more than five months, Jeff Schmieder walked hundreds of laps around the courtyard at the Regional Justice Center in Kent, where he was serving time for a first-degree rape he did not commit.

"Walking was the only thing I had left. It just gave me a lot of time to think to myself and get my head straight," said Schmieder, who was convicted in 1998 and faced more than 11 years in prison. "Everyone in there says they're not guilty, of course. But when you're really not, it does things to your mind that you can't even imagine."

Schmieder, 49, and another man, Mark Clark, were freed in 1999 after new evidence showed the alleged victim was in jail herself at the time she said she was attacked.

Under a measure lawmakers are considering this year, the state would compensate people such as Schmieder for the years they lost behind bars. If the bill is passed, Washington would join 21 other states, the District of Columbia and the federal government with similar laws on the books.

"When you're imprisoned you lose everything," said state Rep. Joe McDermott, D-Seattle and sponsor of the bill. "We should have procedures in place to make someone who's been wrongfully convicted whole, in some small part."

McDermott's measure — which mirrors federal levels — would require the state to award a wrongly convicted person no less than $50,000 for each year of imprisonment, including time spent awaiting trial. An additional $50,000 would be awarded for each year on death row.

Someone who was released from prison after a wrongful conviction would have to file a claim for damages against the state in Superior Court. Claimants would have to show their convictions were reversed or vacated, and that they did not commit the crime they were charged with.

Once a judge or jury determined the claims were valid, damages could be awarded.

Supporters of compensation laws say the measure is the fair thing to do.

"To the extent that the government has to compensate you if it takes your property, it seems only fair that the government also compensates you when it's taken years of your life and your liberty," said Stephen Saloom, policy director at The Innocence Project, a New York-based legal center that seeks to uncover wrongful convictions.

McDermott said he was made aware of the challenges faced by those who have been wrongly convicted when he saw a documentary called "After Innocence," which followed the lives of people adjusting after being exonerated by DNA evidence.

He showed lawmakers and staff members the movie last year at the Capitol and filed a similar bill last year, but it never received a hearing.

Rep. Pat Lantz, chairwoman of the House Judiciary Committee, said she would give the bill a hearing sometime this month.

"I'm very, very much interested in the concept," said Lantz, D-Gig Harbor. "If you stop and consider it for one moment, finding someone innocent requires more than an 'I'm sorry, here's a new pair of shoes for you, goodbye.' It's a major failure of the justice system."

Sen. Mike Carrell, a Lakewood Republican who sits on the Senate Human Services & Corrections and Judiciary committees, said he agrees with the idea of compensating those who are wrongly incarcerated but said he thinks there's a better way to do it.

"When we wrong somebody, I think that we have to do what we can to make it as right as we possibly can," he said. But he expressed concern about the $50,000 "being one-size fits all" that a judge or jury can raise but not lower.

"What is the appropriate amount?" he asked. "There is no discretion here."

Eric Ferrero, spokesman for The Innocence Project, said that to date, 194 people nationwide have been exonerated with DNA testing. Of those, about 85 have been compensated in some way, though most were through civil lawsuits, not state compensation laws.

Just last month, a decorated Vietnam veteran who spent about 20 years in prison for a rape he did not commit received a full pardon from Texas Gov. Rick Perry. Larry Fuller is one of 12 Dallas County men exonerated by DNA evidence since 2001, and one of 24 in Texas since 1989.
Also last month, a man convicted of rape in Georgia and a man who was unjustly convicted of murder in New York but helped find the real killer from his prison cell were granted their freedom after DNA tests proved their innocence.

Since the nation's first DNA exoneration in 1989, 26 defendants have been cleared in Illinois, 24 in Texas, 21 in New York, nine in California and six in Florida, Ferrero said.

Ferrero said his organization is working with lawmakers in Texas, Florida and Connecticut on compensation bills this year.

A study by professor Sam Gross at the University of Michigan published last year found 340 exonerations, not all DNA-related, in the country between 1989 and 2003. Of those, four were in Washington state, including Schmieder's case.

In talking about his case, Schmieder cried when listing what he and his family endured during his imprisonment: His parents put up their home for his bail so that he didn't have to wait in jail before he was convicted; his teen daughter dropped out of high school because of the taunts at school; his infant granddaughter died and he wasn't able to help plan the funeral.

"Nobody knows what you go through, when all of a sudden everything in your life is gone," he said.

Schmieder doesn't work as a result of an injury he suffered before he went to jail. He's a single dad raising his 10-year-old son in Enumclaw, and he said he's barely getting by.

If McDermott's bill passes, people who are wrongfully convicted would have three years to file a claim. But the measure would be retroactive, so Schmieder would have five years from the time the law took effect to apply for compensation.

He said if the bill passes, it would help him pay the rent and he could buy his son new clothes.
"It's been beyond difficult," he said, crying. "You don't know what it means to have a little bit of hope all of a sudden."

Copyright © The Seattle Times Company

Expert doubts his murder ruling in Green Bay arson case

2007-02-09T15:24:00.000-05:00

This article appeared in the Wisconsin State Journal on January, 22, 2007:

Expert doubts his murder ruling in Green Bay arson case

DEE J. HALL
dhall@madison.com

The former Brown County medical examiner who ruled that a Green Bay woman was murdered in her burned home is now formally questioning his own ruling, saying two agents of the state Division of Criminal Investigation "may have misrepresented" evidence in the case.

Dr. Gregory Schmunk said in a sworn statement signed late last year that former DCI arson investigator Greg Eggum and current agent Kim Skorlinski may have withheld key evidence from him, raising doubts about his finding that Sandra Maloney's death was murder.

The state Department of Justice wouldn't comment on the allegations in the affidavit.

Schmunk signed the affidavit in an effort to help family members and others trying to free former Green Bay Police Officer John Maloney. Maloney is serving a life term for murder, arson and mutilating a corpse in the Feb. 11, 1998, death of his estranged wife. Maloney has maintained his innocence. He and the couple's three children say they believe the evidence points to an accidental death.

Maloney and his supporters have made a half-dozen attempts to reverse his conviction on various grounds. Most recently, the state Supreme Court in October refused a request by Milwaukee investigative consultant Ira Robins to initiate an investigation into alleged "forensic fraud" by Eggum. Schmunk's affidavit was signed Nov. 2, after the Supreme Court decision.

No confidence

Schmunk said he relied in part on Eggum's arson finding when he reached the conclusion that Sandra Maloney was murdered. In early 2004, Schmunk told the Wisconsin State Journal that he no longer had confidence in his opinion that the victim was murdered because of the evidence that had been withheld from him by the special prosecutor, former Winnebago County District Attorney Joseph Paulus, now serving a federal prison term for bribery.

Schmunk's affidavit, obtained by Robins, contains more detailed information about the extent to which he contends state investigators kept evidence from him. Robins said he hopes Schmunk's statement will spark a new investigation into the former Madison woman's death.

Schmunk left Green Bay in 1999 and now is the medical examiner for Polk County, Iowa, which includes Des Moines. He said in his affidavit that Eggum and Skorlinski failed to turn over the following information:

An initial opinion by the Brown County Arson Task Force that the 1998 fire was accidentally caused by Sandra Maloney's careless smoking.

Documentation for two tests that Eggum cited to support his finding that the fire was set.
"Suicide notes written by Ms. Maloney . . . found in a wastebasket in her residence."
Said Robins: "How can you not disclose to the medical examiner that there were suicide notes in there? It just shocks the conscience."

In an interview, Schmunk said he ruled the death "homicidal in nature" based on a finding of "probable manual strangulation" by Milwaukee County Assistant Medical Examiner John Teggatz, who conducted the autopsy, and Eggum's ruling that the fire was intentionally set. But Schmunk said in his sworn statement that because of "relevant information that may have been withheld and/or misrepresented by Agents Skorlinski and Eggum," the cause and manner of death "may need to be revised to . . . undetermined."

In his request to the Supreme Court for an investigation, Robins contended the results Eggum claimed to obtain in two tests are "scientifically impossible." He pointed to tests conducted by Alabama arson expert James Munger patterned after the tests Eggum described in the Maloney prosecution whose results contradict Eggum's.

A video of one of Munger's tests showed that melted polyurethane couch cushions poured onto the floor when ignited - contradicting Eggum's testimony in the Maloney trial that the cushions don't "run" when burned. (Click here for the test video.)

John Lentini, an arson expert who has been following the Maloney case for several years, said in his experience, "polyurethane can and does run." Eggum had testified that couch cushions don't run when burned and could not be used to explain the deep burn patterns around the couch.
Lentini runs Scientific Fire Analysis in Big Pine Key, Fla., and is the author of the book, "Scientific Protocols for Fire Investigation," described as "a critical assessment of common fire investigation errors with a discussion of how these errors affect real cases." Neither he nor Munger has been paid to examine the Maloney case. Lentini has been a consultant on a controversial 1989 arson case in Pennsylvania.

Vodka tests

At trial, Eggum testified that he believed Maloney set fire to Sandra Maloney's living room by pouring vodka on the floor. He cited char patterns on the floor near the couch as evidence that an accelerant was used to set the fire, and he theorized that 80-proof vodka from bottles at the scene was the source.

But Munger's tests showed that the vodka quickly put itself out without scorching the carpet because, said Munger, "it's 60 percent water." In an interview, Munger said he repeatedly reignited the vodka on the carpet to see if it would burn, but it always put itself out without marking the carpet.

Lentini agreed with Munger's conclusion, adding, "Vodka does not work as an accelerant because it contains too much water."

Department of Justice spokesman Michael Bauer wouldn't address the allegations, say whether the department had investigated them or provide documentation of the tests Eggum claims to have done. Eggum, who is retired, didn't respond to a phone message or a certified letter sent to his Germantown home.

"The Wisconsin Department of Justice litigates its cases in courtrooms, not newspapers," Bauer said in a written statement. "If Mr. Maloney believes these allegations will support a request for a new trial, then he is free to pursue that avenue of relief. We will respond in the course of that litigation, not before."

DNA propals stomp too heavily on rights

2007-02-09T15:23:00.000-05:00

This editorial appeared in the Everett, Washington Herald on January 26, 2007:

DNA proposals stomp too heavily on rights

It's worrisome when state lawmakers propose bills that conflict with existing laws and/or civil rights.

Case in point:

Sens. Bob McCaslin and Jerome Devlin have introduced Senate Bill 5095, which would require a DNA sample be taken from anyone arrested for a felony or gross misdemeanor. The DNA would be entered in the Washington State Patrol's DNA database, which feeds the one used by the FBI.

Critics, which should be everyone, say such a law would violate people's Fourth Amendment protections against unreasonable search and seizure.

"The problem we have is that in our justice system, people are assumed innocent until proven guilty," said Sen. Adam Kline, D-Seattle, chairman of the Senate Judiciary Committee.

We trust Kline was being sarcastic by saying the "problem we have" rather than the "beautiful thing we have" to describe the basis of our justice system. But he goes on to say, "I support the idea of the bill, but you can't help law enforcement all the time."

The "idea" of the bill, however, is overreaching, and thus bad.

Another proposal, House Bill 1023, would require DNA samples be taken from people actually convicted of a crime. But it also goes too far, adding gross misdemeanor convictions to existing law, which requires DNA samples be taken from convicted felons.

Supporters say the bills are designed to help authorities catch people who start by committing small crimes and move on to more serious ones, such as murder. Supporters say the House bill will help crack down on repeat offenders, will deter crime, will improve chances of convicting the right person and will lower costs in solving future cases.

Wow.

What it will also do is collect the DNA of teens and adults arrested for shoplifting, or property crimes such as third-degree theft, the same as people convicted of assault, rape or murder.
Very little evidence shows that shoplifting leads to violence.

Narrowing the bill to cover felonies and violent misdemeanors would be a good compromise.
Rep. Mark Miloscia, D-Federal Way, who supports DNA collection upon arrest, makes us shudder:

"For anybody nowadays who watches TV, I don't have to explain how the use of this technology in a fair and balanced manner does help our society," Miloscia said. "With all those shows out there, it's hard to argue that this will harm anyone's civil liberties. The public pretty much understands it and understands the validity of it."

Yes, DNA testing is an unmatched tool in crime fighting. But demanding DNA samples from citizens is not constitutional, or fair. Nor does it guarantee justice.

In Virginia: DNA databank bill clears hurdle

2007-02-09T14:33:00.000-05:00

This article appeared in the Charlottesville, Virginia Daily Progress on January 25, 2007:

DNA databank bill clears hurdle
Many felons' samples still not on file

By Bob Gibson

RICHMOND - A huge hole of thousands of missing samples in Virginia’s first-in-the-nation state DNA databank would largely be filled under legislation that passed its first hurdle Wednesday.

Charlottesville Police Capt. J.E. “Chip” Harding told a House of Delegates committee that the DNA samples from as many as 20 percent of the felons who should have their DNA on file with the state are missing.

Harding testified in favor of a bill sponsored by Del. Rob Bell, R-Albemarle County, that would seek to recover the missing samples from at least 8,000 felons whose blood, saliva or tissue samples either were not taken as required or were lost or not properly listed in the databank.

Harding said that in the course of investigating Charlottesville’s 10-year-old unsolved sexual assaults by a serial rapist, he and state officials discovered many samples were missing from felons who should have provided them.

“Nobody did this on purpose,” Bell said of the state’s failure to obtain and properly store DNA samples in the state’s databank. “What happened was everyone thought someone else was doing it [and] people got missed.”

State authorities are reviewing records of about 60,000 felons currently on probation, parole or court supervision to see how many samples are missing. Initial findings show that about 20 percent of the felons do not have a sample on file, said Clyde Cristman, assistant secretary of public safety.

Cristman said perhaps a fourth of those initially found missing are in the databank but their samples had been mislabeled due to data entry errors. Some dates of birth and some Social Security numbers of those who gave samples were entered incorrectly, he said.

Bell’s House Bill 3034 would set up a system for retrieving all the missing DNA samples required of felons for the past 17 years, although he said some may never be collected if they are no longer on probation and have left the state or country.

After hearing how this is a statewide problem, a subcommittee of the House Courts of Justice Committee unanimously endorsed Bell’s bill.

Harding said he interviewed people who have given three DNA samples while in the correctional system and still are not listed in the databank. “A lot of people who are on probation or parole said that ‘no one ever asked me for a thing,’” he said.

The DNA databank has proven tremendously successful in solving crimes by matching the DNA of felons to the DNA from unsolved cases.

The city police had their first “cold hit” solve a rape case from October of 1999.

“In a three-and-a-half-year period we had 55 [cold hits], which included three serial rapists,” Harding said. “It’s a wonderful tool,” when the DNA samples are properly on file for all felons convicted since 1990, he said.

“The system needs to be fixed,” Harding said. “There are people who are going to be victimized tonight because we have not taken samples from convicted felons.”

“This is a much more extensive problem than we initially thought,” Bell said of the missing DNA samples.

Wrongfully convicted man calls for change

2007-02-09T14:23:00.000-05:00

This article appeared in the Burlington, Vermont Free-Press on January 25, 2007:

Wrongfully convicted man calls for change

By Terri Hallenbeck
Free Press Staff Writer

MONTPELIER -- Dennis Maher served 19 years, two months and 29 days in prison in Massachusetts before he finally proved he didn't commit the two rapes and one assault for which he was convicted.

Today, he drives a car with the license plate DNA 127. He's the 127th person exonerated with the help of DNA, he said.

He'd like to help free more people who were wrongly convicted of crimes, he told the Senate Judiciary Committee on Wednesday, choking up at times as he shared his story. He urged legislators to change state laws to make it easier for such people to prove their cases. Committees in both the Senate and House are interested in legislation that would do that.

"The reason I do this is to help future exonerees," said Maher, now married, the father of two and still living in Massachusetts. "I know what it is to languish in prison with no hope."

Maher earned his freedom in 2003 with the help of the Innocence Project, a New York City-based nonprofit legal clinic, after lawyers with the group tracked down evidence from the case and discovered that Maher's DNA didn't match the evidence.

"I consigned myself to dying in prison," Maher said, "but I always had hope that DNA would exonerate me."

Maher and Innocence Project Policy Director Stephen Saloom encouraged Vermont legislators to change state law to require that crime evidence be kept forever and preserved under certain protocols, permitting inmates to seek testing after their convictions.

"If evidence was not preserved in the post-conviction DNA testing quests of Dennis Maher and the other 190 DNA exonerees, these innocent people would have had no recourse but to spend even more years in prison -- and in some cases, be executed -- for crimes they never committed," Saloom told the committee.

Vermont Defender General Matt Valerio, whose office represents inmates, said Vermont lacks a requirement to preserve evidence, with specific guidelines for how to keep the evidence in good condition.

While DNA is one piece of the puzzle in helping reverse convictions such as Maher's, other changes are needed, too, Maher said. He was convicted of three assaults based on the victims' identification, he said. In the first lineup, he said, the victim identified someone else as the perpetrator, but after that, he contended, police led the victims toward choosing him. He urged Vermont legislators to enact a law that requires a police officer not involved in the investigation to conduct the lineup to make sure victims aren't lured into drawing conclusions.

Valerio said he believes some Vermonters are being wrongly convicted, particularly with understaffed public defenders and prosecutors. He pointed to a recent case in which a judge ruled that police had coerced a confession out of a sexual assault suspect. "This is not an outside-of-Vermont issue," he said. "This is something that happens here."

Valerio recommended that legislators require police to videotape interrogations -- what he called a simple and fairly inexpensive way to guard against coercion. "I don't understand why anyone would contest the need to videotape a confession," he said.

Jane Woodruff, executive director of the Department of State's Attorneys and Sheriffs, said accuracy of convictions is extremely important to police and prosecutors, but she said Vermont already has many protections in place and she worries that proposed solutions will be a huge drain on already tight resources.

"I do not think that the witness identification protocol would ever have happened here in Vermont," she said. "If it did happen initially, I can't think of any judge that would have let that through."

Sen. Richard Sears, D-Bennington, chairman of the Senate Judiciary Committee, said he will continue to take testimony on the issue next week. "I really want to pass an Innocence Project bill this year," Sears said.

Maher, who's been the subject of articles and a film since his release, said, "I had planned on spending 20 years in the military." Instead, he spent almost 20 years in prison, but he's intent on not looking back. "I don't have time to be angry," he said. "If I'm any angry person, I won't have the things I have in my life."

Contact Terri Hallenbeck at thallenb@bfp.burlingtonfreepress.com

Bill may further aid wrongly convicted

2007-02-09T14:20:00.000-05:00

This article appeared in the Houston Chronicle (Austin Bureau) on January 23, 2007:

Bill may further aid wrongly convicted

By Clay Robinson

AUSTIN — Legislation to increase state payments to men and women wrongfully imprisoned and to impose a fee on immigrants who transfer money to their home countries were among bills filed in the Senate on Monday.

SB262 by Sen. Rodney Ellis, D-Houston, would double to $50,000 the amount of compensation the state pays someone for every year spent in prison because of a wrongful conviction.
It would provide a $100,000 payment for every year an innocent person spends on death row and would remove the current $500,000 cap on total payments.

"We need to do more to help these Texans rebuild their shattered lives," Ellis said. "Money obviously will not make up for the past, but Texas can help these people move forward by boosting compensation for those who have been wrongfully imprisoned."

He said the figures in his bill would match what federal law provides for inmates wrongfully convicted in federal courts.

Ellis sponsored the existing state compensation law, which provides for $25,000 for each year an innocent person spends in prison, with a payment limit of $500,000. It was enacted in 2001.
As of January 2006, 29 people had been awarded more than $3.6 million under the current law, according to Ellis' office.

Sen. Dan Patrick, R-Houston, filed SB268, which would impose a 10 percent fee on wire transfers of less than $5,000 to foreign countries.

Patrick, who spent a long weekend touring the border area with other legislators, said his legislation would raise funds for border security.

But he said he was willing to consider also using the revenue to cover other costs associated with illegal immigration, such as health care for the poor and education.

At least two other bills imposing fees on foreign money transfers have been filed. One by Sen. Royce West, D-Dallas, would use the money for health care for the poor.

Dallas man freed through DNA evidence recieves pardon

2007-02-09T14:04:00.000-05:00

Dallas man freed through DNA evidence receives pardon

DALLAS A Dallas County man who spent about 20 years in prison for a rape has received a full pardon from Governor Rick Perry.That's after D-N-A evidence cleared Larry Fuller in the rape of a 37-year-old woman.

Fuller was freed from prison in October when specialized DNA testing showed he didn't commit the crime. The Innocence Project says he's one of 12 Dallas County men to be exonerated by D-N-A evidence since 2001, and one of 24 in Texas since 1989.

The Innocence Project is a New York-based legal center that seeks to uncover wrongful convictions. Texas allows the wrongfully convicted to receive 25-thousand dollars for each year spent in prison -- with a limit of 500-thousand dollars.

Fuller was sentenced to 50 years in prison in 1981. At the time, he was a 32-year-old decorated Vietnam veteran pursuing a career in art. He was released from prison in 1999 but sent back in 2005 for a parole violation.

Copyright 2007 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

The price of innocence

2007-02-08T16:26:00.000-05:00

This article appeared in the Texas Observer on January 26, 2007:

The Price of Innocence

by Dave Mann
Cameron Todd Willing-ham professed his innocence to the very end. Belted to a gurney moments before the potassium chloride pumped into his veins and stopped his heart, Willingham told those gathered to witness his February 2004 execution, “The only statement I want to make is that I’m an innocent man—convicted of a crime I did not commit.” Willingham had been sentenced to death for starting a 1991 house fire that killed his three daughters in the North Texas town of Corsicana. From the beginning, he had maintained that the fire was accidental. He was convicted mainly on the testimony of a single arson investigator, whose forensic evidence has since been debunked. In Willingham, the state of Texas may well have executed an innocent man.

His execution is exactly the kind of case the Texas Forensic Science Commission is supposed to investigate. The Legislature created the nine-member commission—made up of prosecutors, defense attorneys, forensic science experts, and legal analysts—in 2005 to oversee and investigate the state’s troubled forensic crime labs. In the past five years, the Houston police crime lab and several Department of Public Safety labs have produced well-documented failures: tainted and lost evidence, poorly conducted tests, intentionally misleading testimony. The New York City-based Innocence Project, a major proponent of the commission, has uncovered seven cases in which Texas sent innocent men to prison because of faulty forensic evidence. Some have been set free; others, like Willingham, are already dead. Given the many crime lab controversies, Texas legislators saw a need in 2005 for a concept that few states have tried—an independent body that could investigate allegations of misconduct against crime labs and correct poor forensic practices. The bill that created the Forensic Science Commission—sponsored by Sen. Juan “Chuy” Hinojosa, a McAllen Democrat, and Rep. Joe Driver, a Republican from Garland—passed the state House and Senate unanimously. Supporters hoped the commission would free innocent men already in jail and prevent similar injustices in the future.

“The public has to have trust in the criminal justice system, that we’re convicting the right people,” says Hinojosa. “A lot of the labs have been very sloppy and very negligent. The credibility of the system is at stake.”

For nearly two years, however, Texas’ highest elected officials have stalled the commission’s work. It took Gov. Rick Perry and Lt. Gov. David Dewhurst more than 10 months to appoint their seven commissioners. In the year since, the commission has done no work for a simple reason: It has no money. Both Perry and the legislative leadership have refused to provide the commission the small amount of funding it needs for regular meetings and investigations. The nine commissioners hope the current Legislature will provide a budget. Nearly two years after it was created and three years since Willingham’s death, the commission—like the possibly innocent people still in jail—sits and waits.

The commission missed out on funding from the Legislature in 2005 because the bill authorizing the commission passed too late in the session to be included in the two-year state budget. The commission did receive a bit of money from the Texas Legislative Council to convene two meetings in fall 2006. With the Legislature out of session, the Legislative Budget Board—headed by Dewhurst and House Speaker Tom Craddick—has authority to make minor appropriations. But the board hasn’t funded the commission. In addition, Perry could have directed minor administrative funding to the commissioners, but hasn’t done so.

Some commission supporters privately speculate that Perry, who faced three opponents in November’s election, wasn’t eager to preside over the first government body in the nation to confirm the modern execution of an innocent man—perhaps even someone executed during his time in office. States have freed numerous wrongly convicted people from death row in recent years, and several media and anti-death penalty groups have uncovered strong evidence that Texas and other states have executed the innocent. But no American governmental body has yet reached that conclusion. The forensic commission may well become the first.

Perry spokesman Ted Royer says the governor supports the commission, but believes that the Legislature is the appropriate entity to provide funding. “The governor certainly wants to see the commission get the funding it needs,” Royer says. “That will very likely be addressed this legislative session.”

Hinojosa says he doesn’t think election politics stalled the commission so much as resistance within the criminal justice system. “When you bring change to a system, it makes people uncomfortable,” he says.

Perhaps no criminal justice system has produced more crime lab horror stories than that of Texas. Attorney Barry Scheck of the Innocence Project has called it a “legacy of misconduct and neglect.”

“The need for this is obvious,” Scheck says. “To me, it’s obvious that if you want to protect the innocent and apprehend the guilty, few things in the criminal justice system are more important than crime labs that produce reliable work. And you can’t find out if your crime labs are producing reliable work unless you have an oversight body that can investigate and audit whenever serious negligence or misconduct arises, and we have documented cases where that’s happened.”

Take the case of Brandon Moon, convicted of a 1987 rape in El Paso. The victim had mistakenly identified Moon as her attacker. But the conclusive evidence that sent Moon to prison came from the DPS crime lab in Lubbock. DNA testing was in its infancy at the time, and tests on a semen sample recovered from the crime scene proved inconclusive. However, lab testing did show that the semen had come from a so-called non-secreter—someone whose blood type doesn’t show up in bodily fluids such as semen and saliva. Since Moon is a non-secreter, a DPS lab analyst assumed he must be the culprit. The DPS lab overlooked the fact that the victim and her husband were also non-secreters, details that could have exonerated Moon, but never came to light in his trial. A 2002 DNA test showed Moon wasn’t the attacker, but not before he spent 17 years in prison for a crime he didn’t commit. As Scheck points out, the DPS lab technician who botched the Moon case worked at the Lubbock lab for another four years. No one has examined the many other cases he handled, though Scheck requested last April that the forensic commission do so if it ever gets funding.

Then there’s George Rodriguez—a Houston man wrongly convicted of rape because the Houston police crime lab botched an analysis of semen and a hair found at the scene. Rodriguez spent 17 years in jail before DNA testing at the request of the Innocence Project freed him. Meanwhile, the man who actually committed the rape remained free and attacked several more women, including an assault of his mother’s housekeeper, who was five-months pregnant.

The Houston lab has also experienced problems with ballistics testing. Then there are the more than 8,000 missing pieces of forensic evidence from the Houston lab found lying untested in cardboard boxes in a warehouse. Supporters believe the forensic commission must examine many of these issues. But perhaps no area of forensic science in Texas needs more urgent attention than arson cases.

The science of detecting arson has undergone a recent revolution. For years, arson investigations weren’t particularly scientific. Fire investigators operated under a set of assumptions, inherited knowledge from their predecessors, about how to sift through the detritus of a burned building and determine an accidental fire from one that was started intentionally. In the last 15 years, a new generation of arson experts has methodically debunked most of the old assumptions. For instance, investigators once thought the presence of accelerants such as gasoline caused arson fires to burn much hotter than accidental blazes.
Recent experiments have shown that accidental fires can burn just as hot or hotter.

Similarly, it was once thought that a distinctive pattern of cracks in windows—known as crazed glass—was evidence of arson. Investigators believed that the extreme heat of an arson fire caused crazed glass. The presence of crazed glass in Cameron Todd Willingham’s house was one of the key pieces of evidence that led to his conviction. Willingham testified that in December 1991, he had taken a nap and woke up to find the house on fire. He escaped, but couldn’t save his daughters, the oldest of whom was 2. At Willingham’s trial, a deputy state fire marshal testified that he found several forensic indicators of arson, chief among them crazed glass. In fact, recent research has shown that crazed glass also is caused by the temperature change when cold water from fire hoses hits flame-heated windows. Arson experts now say that crazed glass can indeed occur in accidental fires.

Crazed glass and other dubious arson evidence also sent Ernest Ray Willis to death row for killing two women in a 1986 fire in West Texas. In late 2004, after 17 years in prison, Willis was released after arson experts refuted the evidence against him. Given the similarity between the cases, Willis’ exoneration raises disturbing, unresolved questions about Willingham’s death. To this day, Texas officials maintain that Willingham was guilty.

So last year the Innocence Project commissioned the nation’s five leading arson experts to examine the Willis and Willingham cases. Their subsequent report, released in May 2006, concludes that neither fire was the result of arson and that Willingham was wrongfully executed. Scheck sent a copy of the report to the forensic commission with a letter requesting an investigation into arson convictions in Texas. “Willis cannot be found ‘actually innocent’ and Willingham executed based on the same scientific evidence,” Scheck wrote to the commissioners. Texas has the highest percentage of arson convictions in the nation. Many other Texans may have been sent to prison for arson crimes they didn’t commit.

Without money, the commission has taken no action on the Willingham case or any other. Commission Chair Debbie Lynn Benningfield, who works as an administrator in the Houston police fingerprint lab, refuses to comment on cases that might be pending before the commission (other commissioners referred questions to Benningfield). Choosing her words carefully, Benningfield says commissioners are focused primarily on securing funding from the just-convened Legislature.

The commission certainly won’t cost much. Commissioners are unpaid and meet in donated space. The commission would need $156,000 for administrative and setup costs in its first two years, according to an analysis by the Legislative Budget Board. Some proponents of the commission hope the Legislature will make an emergency appropriation so the panel can begin work soon. If lawmakers include funding for the 2008-2009 fiscal year, which isn’t guaranteed, the commissioners will have to wait at least until next September. Hinojosa says the Senate Criminal Justice Committee, chaired by Sen. Whitmire, may hold hearings on the commission’s lack of funding. “We’re going to be pushing this very hard to make sure that there is funding,” he says. “We want some answers as to why it’s taking so long.”

Scheck says, “You can’t blame the commissioners. They haven’t been given anything to work with.” He believes that innocent people may remain in Texas prisons, perhaps on death row, wrongly convicted because of faulty forensic evidence. The longer the commission’s work is stalled, the longer those injustices remain, and the longer negligent forensic practices persist in crime labs that could send more innocent people to jail. “This is all taking entirely too much time,” Scheck says.

Right, wrong and DNA

2007-02-08T14:36:00.000-05:00

This article appeared in the Fort-Worth Star-Telegram:

Right, wrong and DNA

Star-Telegram
Picture a 50-year-old convict standing in front of a judge in Dallas County, once again pleading his innocence in a crime committed more than 23 years ago.

On the one hand, there was something mighty right about what played out Wednesday morning in Judge John Creuzot's courtroom. On the other hand, there was something very wrong.

James Waller was convicted of raping a 12-year-old boy in 1983 and sentenced to 30 years in prison. He served 10 years in the penitentiary before being paroled in 1993 and has been trying ever since to prove he was not guilty of the crime.

During a hearing in Creuzot's court Wednesday, Waller was with attorney Barry Scheck and other lawyers representing the New York-based Innocence Project, and they presented conclusive DNA evidence that Waller did not commit the crime.

What was right about what happened that day was that the judge apologized for the injustice and vowed to expedite the procedures to clear Waller's name. What was so troubling is that Waller is the 12th person in five years in Dallas County to be cleared through DNA testing.

That is an alarming figure by any measure, and something of which Dallas County and the entire state of Texas ought to be ashamed.

More than 185 people in 32 states, according to Innocence Project data, have been exonerated through DNA testing. Dallas County alone has more such cases than most of those states.

For the third time, state Sen. Rodney Ellis, D-Houston, will introduce legislation this month to create an Innocence Commission in Texas that will be designed to investigate wrong convictions.

Several states, including Californian, Pennsylvania, Illinois and North Carolina, already have such commissions.

In the past two legislative sessions, Ellis' bill never made it out of committee. This year, the bill -- or perhaps one even more comprehensive -- should not only make it to the Senate floor but should be passed by both chambers and signed into law.

While they're at it, legislators should fund the state's share of the University of North Texas System Center for Human Identification in Fort Worth for work that the Legislature has ordered sent to it.

Given that the majority of criminal cases don't involve DNA evidence, imagine how many other wrongly convicted people might be sitting in Texas prisons with no hope of ever being exonerated.

These cases from Dallas County alone are a blight on the criminal justice system. Surely our lawmakers can find a way to address this problem to correct and help prevent other miscarriages of justice.

Old cases back to haunt Texas county

2007-02-05T16:34:00.000-05:00

This article appeared in the Dallas Morning News on January 22, 2007:

Old cases back to haunt county
Why were exonerated convicts found guilty to begin with?

By STEVE McGONIGLE
The Dallas Morning News

Dallas County's emergence as a national leader in DNA exonerations of wrongfully convicted men raises fresh questions about the quality of justice the court system has dispensed over the past three decades.

Whether 12 innocent lives were shattered because of honest human error or overreaching by prosecutors remains to be determined. Craig Watkins, the county's new district attorney, said last week that he would investigate.

But, ironically, the high number of exonerations would not have occurred had Dallas County not had a policy of preserving – sometimes for more than 20 years – the biological evidence required for genetic testing.

Case reviews are a hard sell in Texas
Graphic: Dallas County is a leader in post-conviction DNA testing

Dallas has had more DNA exonerations than any other county in the U.S. – 12 since 2001, according to the Innocence Project, a New York-based nonprofit legal clinic dedicated to freeing those wrongfully convicted. The county accounts for half of Texas' 24 DNA exonerations, the group said. By comparison, Illinois has had 26 DNA exonerations and New York state 21.

The latest example of new DNA tests overturning old cases came last week for 50-year-old James Waller, who was convicted of raping a 12-year-old boy in 1982 – a crime he said he never committed. State District Judge John Creuzot apologized at Mr. Waller's hearing and said he anticipated one more DNA exoneration in his court.

Barry Scheck, the New York attorney who co-founded the Innocence Project, said Dallas County's rate of wrongful convictions was "very, very high," but he could not explain the reasons for it.

"It could be something as simple as we find the evidence more here," Mr. Scheck said after the hearing.

"I suspect other cities could have numbers that high if we could find other evidence," he added.

Keep everything

The lack of evidence available for testing around the country is routinely cited by advocates as one of the biggest obstacles to winning exonerations. More than half the time, evidence has been lost or destroyed.

But with the district attorney's backing, Dallas County's forensic lab long ago established a policy to maintain evidence indefinitely. The policy existed for at least a dozen years before state law lengthened the time biological evidence had to be retained.

Dr. Tim Sliter, chief of physical evidence at the county-run Southwest Institute of Forensic Sciences, estimated his lab has at least seven freezers full of rape kits and other biological evidence, each containing 10,000 samples dating to the early 1980s.

The lab has a policy of never consuming a sample in a DNA test, and it never destroys evidence. "It's basically just good practice," Dr. Sliter said.

John Rolater, who until recently handled post-conviction DNA applications for the district attorney's appellate section, said the approach to evidence was "keep everything forever" in case it might be needed for a retrial.

"It was more of a law enforcement motive, but it turns out to benefit everybody," said Mr. Rolater, now an assistant district attorney in Collin County.

Ten of the 12 Dallas County convictions invalidated by DNA occurred in or before 1989, when the first exoneration in the country took place in Chicago.

No state or local law enforcement agency is required to keep statistics on how often evidence has been available for DNA testing by those convicted.

Records of the Texas Department of Public Safety, which conducts the bulk of post-conviction DNA tests around the state, show that Dallas County cases accounted for 26 of the 112 tests processed since 1999 – twice the number of more populous Harris County. The DPS statistics do not explain the differences in numbers between counties.

Including work by private labs, 32 Dallas County cases have undergone post-conviction DNA testing, the district attorney's office said. Twelve produced exonerations, nine affirmed the defendant's guilt, and six are pending. Tests in five cases were inconclusive.

The cases where testing was ordered represent about 7 percent of the 464 applications submitted to Dallas County felony court judges since passage of a 2001 law that allowed for post-conviction genetic analysis.

To be granted a test, the law requires a convicted person to prove that identification was an element in his or her case, that evidence for DNA testing still exists and that the evidence, if known at the time, would have prevented the conviction.

Defense attorneys have complained that the law places too heavy a burden of proof on those convicted and that prosecutors routinely object to testing requests, which can effectively delay action, sometimes for years.

David Dow, director of the Innocence Network at the University of Houston Law Center, estimated thousands of felons have applied for genetic tests but said less than 100 of those applications have been granted by the courts.

"It's not that a lot have been denied," Mr. Dow said. "A lot of these cases sit there, and there's nobody there to move them."

Mr. Dow characterized the 12 DNA exonerations in Dallas as a "staggering" number. But he would not predict a larger number of wrongful convictions in Dallas County than any other jurisdiction. It's just that in Dallas "the evidence exists, and the judges are ordering testing," he said.

Criticism of prosecutors

The dozen Dallas County convictions overturned by DNA over the past six years involve sexual assault or murder cases prosecuted between 1981 and 2000.

A common thread in each is an eyewitness identification corroborated by little or shaky forensic evidence and no DNA test.

According to Mr. Scheck, eyewitness identifications are a crucial factor in about 75 percent of all wrongful convictions overturned by post-conviction DNA evidence.

Nine of the cases were prosecuted during the last four years of Henry Wade's legendary tenure as district attorney, which ended in 1986. His office had a national reputation for hardball tactics, high conviction rates and stiff punishment pleas.

Critics often alleged that Mr. Wade's prosecutors prized conviction rates over their oaths to uphold justice – a charge the DA's office routinely denied.

The first in a series of nationally publicized, non-DNA exonerations – the case of convicted robber Lenell Geter – came to light during Mr. Wade's final year in office. That case was soon followed by those of Randall Dale Adams, a convicted cop killer, and Joyce Ann Brown, a convicted robber. All were prosecuted under Mr. Wade and involved witness testimony that was later discredited.

Randy Schaffer, a Houston defense attorney who represented both Mr. Adams and Mr. Waller, contended a win-at-all-costs attitude of prosecutors is coming back to haunt Dallas County.

"The pool of applicants [for DNA testing] is that much larger because there were so many dirty prosecutions," Mr. Schaffer said.

Mr. Wade's successors, John Vance and Bill Hill, worked as prosecutors in his office and openly admired the folksy, cigar-chewing icon known as "The Chief." Both continued many of Mr. Wade's policies but vowed not to tolerate outlaw prosecutors.

Two DNA exonerations occurred on Mr. Vance's term; one was on Mr. Hill's.
Toby Shook was an assistant under all three men. He conceded that some prosecutors could be close-minded and that many believed in eyewitness identifications. But the Dallas office was not that different from most other prosecution offices, he said.

"I never knew of anybody that would willingly try to prosecute innocent people," said Mr. Shook, who left for private practice after losing the district attorney's race.

Mr. Watkins, who became the county's first black district attorney when he was sworn in Jan. 1, has never worked in the office. He campaigned on a pledge to restore credibility to the prosecutor's office.

Mr. Watkins was present in court last week when Mr. Waller was exonerated, as well as on Jan. 2 for the DNA exoneration of Andrew Gossett. He apologized to both men, an act that veteran observers of wrongful conviction cases called unprecedented.

He, too, wonders how many more wrongful convictions may surface.

"When you look at the facts of all the folks exonerated, you have to question whether past administrations had the best interests of the citizens in mind," he said. "I would hope that they did, but it may have been that they were overzealous."

Mr. Watkins said he plans to have the 12 exonerations reviewed to see if any patterns emerge. If they do, he may order a broader review of cases where DNA evidence could have made a difference in the outcome.

Jeff Blackburn, another of Mr. Waller's attorneys and a director of the Texas Innocence Project, said he is encouraged by Mr. Watkins' apparent willingness to give serious consideration to requests for post-conviction DNA tests.

"I think if you are wrongly convicted, Dallas is a good place to be," he said.

Staff writer Robert Tharp contributed to this report.
E-mail smcgonigle@dallasnews.com

County's Record of Misdeeds
DNA testing has exonerated a dozen Dallas County men since 2001.

DAVID SHAWN POPE, 45, was sentenced to 45 years in prison in the 1986 rape of a Garland woman. The victim in the case testified that a man matching Mr. Pope's description broke into her Garland apartment before dawn in July 1985, threatened her with a knife and raped her.

Mr. Pope had lived in the same apartment complex but was evicted about a month before the attack and at times had slept in his car on the apartment grounds. The woman failed to identify him in a photo lineup but later picked him out of a live lineup. Prosecutors also used "voice print analysis" to link Mr. Pope's voice to messages left on the woman's answering machine in the weeks after the attack. That technology has since come into question and is no longer used in court. Prosecutors voluntarily sought to retest evidence from Mr. Pope's case after an anonymous tipster in January 1999 cast doubt on his guilt. After he spent 15 years in prison, a 2001 DNA test exonerated him and identified a convicted rapist imprisoned in another state as the true attacker.

WILEY FOUNTAIN, 50, was sentenced to 40 years in prison in the rape of a pregnant woman in 1986. The woman picked Mr. Fountain out of a photo lineup and said he was the one who dragged her from a bus stop near Fair Park and raped her at knifepoint. At the time of his arrest, Mr. Fountain was on parole for a 1983 burglary conviction. He was paroled in 2001 after serving 15 years and was sent back to prison because he had failed to find a job and pay fees as a registered sex offender. After first seeking a DNA test in 2000, he was finally released two years later after two DNA tests supported his innocence. He was pardoned in 2003.

KEITH E. TURNER, 45, was sentenced to 20 years in prison after the 1982 rape of a co-worker. Although Mr. Turner provided an alibi, he was convicted in a 1983 trial after the woman identified him visually and by his voice. Mr. Turner served four years in prison and was on parole in 2005 when he was cleared by a DNA test and pardoned.

ENTRE NAX KARAGE, 36, was convicted in a nonjury trial and sentenced to life in prison in 1997 in the 1994 murder of his 14-year-old girlfriend. DNA was not an issue in his trial because prosecutors had theorized that Mr. Karage had beaten and strangled his girlfriend with a coat hanger after finding her having sex with another man. Her body was found in a creek behind an Old East Dallas grocery store. Mr. Karage was unable to provide a solid alibi, and police found the girl's blood inside his car, which she had been driving. Mr. Karage was exonerated after a DNA test linked evidence from the crime to a man convicted of a similar crime. He was pardoned in 2005.

EUGENE IVORY HENTON, 40, took a plea bargain offer and pleaded guilty to a 1984 sex assault charge in exchange for a four-year prison sentence. He was 17 when he was arrested after a woman said that a stranger broke into her home and raped her. The woman said that although the attacker wore a mask she could identify him because he stayed in her home a long time. She also said she watched the attacker from her window waiting at a bus stop and later identified Mr. Henton as the attacker. He was paroled after 18 months and was later convicted of two separate felony charges. Because of his status as a paroled sex offender, the judge stacked his new prison sentences: 20 years for aggravated assault and 42 years for drug possession. While in prison on the new charges, he continued to pursue exoneration, and a 2005 DNA test concluded that he was not guilty of the rape charge.

DONALD WAYNE GOOD, 46, was sentenced to life in prison in a 1983 sexual assault. Mr. Good was arrested and accused of breaking into an Irving home, tying up a young girl and raping her mother. The woman identified Mr. Good in a photo lineup. Mr. Good has alleged in a federal lawsuit that Irving police distorted his photo to increase the chances that the woman would identify him. He was paroled in 1993 as a sex offender but was sent back to prison in 2002 for a minor property crime and his life sentence was reinstated. He was exonerated of the rape charge by DNA analysis in 2004, but he is still serving a five-year sentence for the property crime.

BILLY WAYNE MILLER, 54, was sentenced to life in prison in the abduction and sexual assault of a Dallas woman in 1983. At the time of his arrest, Mr. Miller lived near where the attack occurred and was on parole for a 1972 conviction for assault to commit murder and robbery, stemming from a convenience store robbery. The victim in the sexual assault case later identified Mr. Miller as her attacker. A 2005 DNA test cleared Mr. Miller, and he was pardoned in December 2006.

BILLY JAMES SMITH, 54, was sentenced to life in prison in a 1986 aggravated sexual assault in which a woman was raped at knifepoint. He was convicted even though there was no eyewitness who could identify him as the attacker and detectives found no physical evidence implicating him. The woman's boyfriend identified him as the attacker, but he was not present when the attack occurred. Mr. Smith had an alibi that was supported by his sister at trial. He first requested DNA testing in 2001 but was not granted a test until 2005. Those test results set him free in July 2006 after he had spent 19 years in prison.

GREG WALLIS, 47, was sentenced to 50 years in prison in the 1988 sexual assault of an Irving woman. The woman identified Mr. Wallis as the man who talked his way into her condo and raped and assaulted her. Four months later a confidential informant in jail told police that Mr. Wallis had a tattoo similar to one described by the victim. The woman later picked him from a photo lineup. At trial, Mr. Wallis' wife testified that he had been with her at the time of the assault. A 2005 DNA test could not entirely rule out Mr. Wallis as the rapist, and he rejected an offer that would have freed him from prison provided that he register as a sex offender for life. A second test in 2006 proved that Mr. Wallis was not responsible for the attack, and he was released after 18 years in prison.

LARRY FULLER, 58, was sentenced to 50 years in prison in 1981 in the aggravated sexual assault of a Dallas woman. The victim said she woke up to find an intruder in her house straddling her with a knife in his hand. The victim initially told police that she could not provide a detailed description of her attacker because the assault occurred in the dark. She later picked Mr. Fuller, a 32-year-old Vietnam veteran, as the suspect only after she was presented with two photo lineups in which his picture was the only one present in both lineups. In his trial, a prosecutor inaccurately summed up the scientific testimony by saying it placed Mr. Fuller among 20 percent of the male population that could have committed the crime. Mr. Fuller first contacted the Innocence Project in the mid-1990s. A 2003 DNA test was inconclusive, but a 2006 test ruled him out as the assailant and he was released.

ANDREW GOSSETT, 46, was sentenced to 50 years in prison in the 1999 sexual assault of a Dallas woman. The victim was abducted from her car in Garland and sexually assaulted. Mr. Gossett became a suspect because he matched a general description of the rapist, and he was seen at a convenience store near where the attack occurred. The victim later picked him from a photo lineup, although her descriptions of the attacker in statements to police and at her trial were inconsistent. Mr. Gossett passed a polygraph test, but such tests can't be used as evidence in a trial. Mr. Gossett began seeking a DNA test in 2001. Test results in December 2006 concluded that he was innocent, and he was released in January.

JAMES DOUGLAS WALLER, 50, was convicted in 1983 and sentenced to 30 years in prison after being accused of breaking into an Old East Dallas apartment and raping a 12-year-old boy. The boy said his attacker was wearing a cowboy hat and had a bandanna over his face, but the following day he believed he recognized Mr. Waller's voice and eyes as the attacker's. Mr. Waller, who was significantly taller and heavier than the boy's initial description, lived in the same apartment complex. Jurors in his trial deliberated less than an hour before convicting him. A 2003 DNA analysis was inconclusive, but a 2006 test concluded that Mr. Waller isn't the man who raped the boy.

Compiled by staff writer Robert Tharp
SOURCES: Dallas County court records; Innocence Project

Board accepts $55K settlement

2007-02-05T15:56:00.000-05:00

This article appeared in Pennsylvania's Times Herald on January 21, 2007:

Board accepts $55K settlement

By: CARL ROTENBERG
Times Herald Staff

UPPER MERION - The Board of Supervisors Thursday night agreed to accept a $55,000 settlement from two insurance companies for a federal lawsuit involving DNA testing.

United National Insurance Co. of Bala Cynwyd and Pennsylvania Manufacturers' Association Insurance Co. of Whitpain had refused to pay $600,000 to the township for a $1.6 million settlement of a 2002 lawsuit against the township.

A third insurance company had agreed to pay $1 million of the settlement costs.

The $55,000 settlement means Upper Merion township is obligated to pay the remainder of the settlement from its operating funds, Solicitor Joseph Pizonka, said.

Upper Merion reached a July 2004 legal settlement with former landscaper Bruce Godschalk. Godschalk had filed a federal civil rights lawsuit against the township, Upper Merion police, Montgomery County and the Montgomery County Prosecutor's office for delaying DNA testing.

The 46-year-old Godschalk was convicted by a jury in 1987 of allegedly raping two women in the Kingswood apartment complex in 1986. DNA testing was not commonly performed at the time of the conviction.

He was sentenced to a 10- to 20-year sentence. Starting in 1995, Godschalk began requesting the district attorney's office test the evidence for his DNA. The district attorney's office refused. The state courts upheld that decision.

But a federal court later ordered the DNA testing which exonerated Godschalk. He was freed from state prison on Feb. 14, 2002, after serving some 15 years of his sentence.

Godschalk sued the authorities involved in his case and two former Upper Merion detectives claiming the detectives used "trickery and deceit" to allegedly coerce a confession from him. Montgomery County's insurance company reached a $750,000 out-of-court settlement with Godschalk in October 2003.Times Herald reporter Margaret Gibbons contributed to this story.Carl Rotenberg can be reached at crotenberg@timesherald.com or 610-272-2500, ext. 350.
©The Times Herald 2007

Wrongly convicted man to recieve $4 million

2007-02-05T15:15:00.000-05:00

This article appeared in Oklahoma's Examiner Enterprise:

Wrongly convicted man to receive $4 million settlement

By AP
OKLAHOMA CITY (AP) - A man wrongly convicted of rape due in part to testimony from a fired police chemist will receive $4 million as part of a settlement agreed to by the Oklahoma City Council.

City officials on Tuesday approved a resolution in which they admitted no liability in Jeffrey Todd Pierce's federal lawsuit.

Pierce sued police chemist Joyce Gilchrist, former Oklahoma County District Attorney Bob Macy and the city in 2003 after results of a DNA test showed he didn't rape a woman at an Oklahoma apartment complex in 1985. Gilchrist, who testified about DNA evidence at the trial, and Macy, whose office prosecuted him, both claimed immunity.

Gilchrist's professional credibility was questioned after the Pierce case unraveled, and subsequent investigations resulted in new trials for some defendants who were found guilty based on her testimony. Gilchrist, who was fired in 2001, couldn't be reached for comment on Tuesday.

Pierce maintained his innocence while serving 15 years of a 65-year prison term for rape, sodomy, burglary and assault with a dangerous weapon.Councilman Pete White said the settlement was good for taxpayers and also fair to Pierce.

The city could have been hit for much more," White said. "This guy was wronged, there's no two ways about it. He had no record at all. He was completely clean. He was an innocent man."Pierce's attorney, Clark Brewster, couldn't be reached for comment.

The settlement comes as both sides prepared to go to trial next month.

Pierce's lawsuit claimed his constitutional rights were violated when he was arrested in March 1986 for crimes he didn't commit, according to court documents. Oklahoma City officials denied Pierce's contention that Gilchrist and other police chemists weren't properly trained and added that the actions she allegedly took weren't according to municipal policy.

U.S. District Judge Robin Cauthron denied Gilchrist's motion for a summary judgment in the case on Jan. 16 and a tentative agreement was floated at a settlement conference held the next day.

Gilchrist filed a wrongful termination lawsuit, but a federal judge ruled that her inadequate forensic work was sufficient reason for the city to fire her. She also was denied unemployment benefits.Meanwhile, another lawsuit filed against Gilchrist, Macy and the city by David Bryson is still pending.

Bryson, imprisoned for 17 years in a kidnapping and rape case, was freed in 1999 after testing showed his DNA did not match evidence collected from the victim.

Bryson claims Gilchrist lied in 1988 when she told his lawyer the evidence had been destroyed.

Two innocent even if proven guilty?

2007-02-05T15:08:00.000-05:00

This article appeared in Cleveland's Plain Dealer on January 26, 2007:

Two innocent even if proven guilty?
Attorney: Third man beat woman

Friday, January 26, 2007
James F. McCartyPlain Dealer Reporter

Renowned defense attorney Barry Scheck will file court documents today seeking new trials for two Cleveland men convicted of killing a 74-year-old Slavic Village woman in 1999.

Scheck's Innocence Project has freed wrongfully convicted men in Cuyahoga and Summit counties in recent years using DNA evidence that was so convincing that prosecutors worked with him.

But Scheck shouldn't count on the support of the prosecutor's office this time.

I'll take a closer look at this case, but they lost their way on this one," Cuyahoga County Prosecutor Bill Mason said. "They must be running out of innocent people to represent."

Scheck, in interviews Thursday, said he regretted he won't be teaming with Mason to help free Thomas Siller, 51, and Walter Zimmer, 50. Both men are serving long prison terms.

They were found guilty of tying up Alice Zolkowski in 1997, ransacking her home, and then beating her into a coma.

She died two years later without ever regaining consciousness.

Prosecutors won convictions with no direct evidence except the word of a third suspect, Jason Smith, 37, who testified he was there the night of June 3, but swore he didn't participate in the attack. Siller and Zimmer admitted seeing the victim at her home but denied any involvement in her death.

Smith struck a deal with prosecutors, receiving three years in prison after pleading guilty to aggravated burglary.

Nearly 10 years later, Scheck said he has new evidence that points to Smith's guilt and Siller's and Zimmer's innocence.

Lawyer helps solve bank robbery

2007-02-02T14:12:00.000-05:00

This article appeared in the Elmira Star-Gazette on January 26, 2007:

Lawyer helps solve bank robbery
Barton credited with helping clear falsely accused client, pointing police to robber.

By Salle E. Richards

Half of the bank robberies that occur in the FBI's Rochester region are solved, and usually quickly. The longer a robbery remains unsolved, the less likely it will ever be, says Mark Thompson, FBI agent assigned to Elmira.

The question of who robbed the Bath National Bank branch, at 351 N. Main St. in Elmira, three years ago was finally answered this week in Chemung County Court.

A state prison inmate serving time for burglary admitted he was the robber and had falsely accused two other men when he testified before the grand jury in 2004. The confession came after Christopher A. Barton, defense attorney for one of the accused men, not only cleared his client but found other evidence that led to solving the robbery.

Wayne K. Skinkle, now 26 and in custody at Upstate Correction Facility in Malone, Franklin County, on a second-degree burglary conviction, pleaded guilty Monday before Chemung County Judge Peter C. Buckley to first-degree perjury. Skinkle said the story he told a grand jury on Feb. 5, 2004, was false.

Two other men, Walter Klumpe of Waverly and Joseph Tocco of Elmira, were indicted for the robbery. Those indictments were later dismissed.

Justice sought

The dismissal of those indictments in 2004 didn't satisfy Klumpe's lawyer, Christopher A. Barton, an Elmira criminal defense attorney.

During his own investigation of the case, Barton not only became convinced Klumpe wasn't guilty, he also became committed to bringing out the truth about a justice system that relies on testimony from accomplices and other "jailhouse informants" to make a case.

What really upset him about the false accusations against Klumpe was that besides Skinkle, another jailhouse informant implicated Klumpe to further his own efforts to plea down a sentence. That inmate is now a fugitive from justice.

Barton said Klumpe had told him that the people who had testified against him in grand jury had lied. When Barton recognized one of the names in the grand jury information as the same jail informant who had testified in another murder case, he knew Klumpe was probably railroaded.

Barton also looked more closely at information about Klumpe's main accuser, Skinkle.

Skinkle was one of the first people questioned by police after the robbery. A suspected burglar and known to police, Skinkle had been seen in the vicinity of the bank the morning of the robbery, Barton said.

Because of his work in different criminal cases, Barton heard "street talk" that Skinkle was really the robber.

A key piece of evidence Barton noticed while studying the case was that a customer in the bank had estimated the robber was a skinny guy no taller that 5 feet 7 inches tall. Klumpe is 6 feet 2 inches and weighed 200 pounds at the time of the robbery.

That was a fact that his mother hadn't missed. His mother, Ann Sherwood of Elmira, said after Klumpe's arrest she knew it wasn't her son in the photo of the robbery suspect taken by the bank camera.

"I'm 6 feet," Sherwood said. "We're all big people. I knew it wasn't him."

Skinkle gave his height as 5 feet 9 inches in court documents, Barton said.

Barton pressed Trice to have FBI reconstruction experts look into the case.

Videotape points to shorter suspect

FBI Agent Mark Thompson remembers the Bath National Bank case well.

"Vividly. We don't have that many bank robberies (in the Rochester region)," Thompson said. He said in the last reported period from Oct. 1, 2005, to Sept. 30, 2006, there were 28 bank robberies in the region, with 14 solved.

The case also sticks in his memory because the district attorney called in FBI experts.

"Our lab did a reverse projection," Thompson said of a procedure that used the tape of the bank's video of the robbery to determine the height of the robber. The video showed a view from above the robber so although a frontal view, the robber's face was completely hidden by the brim of a ball cap pulled down and a scarf wrapped around his face.

The lab determined the robber was 5 feet 8 1/2 inches tall.

"Our job isn't just to win convictions," Trice said of the dismissal of the indictment against Klumpe. "It's to do justice."

Barton continued to assemble clues on who really robbed the bank. He found Skinkle's alibi about filling out a job application at Dollar General the morning of the robbery fit the known facts about the robbery better than his later description implicating Klumpe and Tocco.

Skinkle said he was at Dollar General when a repairman came from Coca-Cola at 9:05 a.m. to right a toppled soda machine. He said he helped right the machine and saw the repairman give the manager of Dollar General a receipt at 9:25 a.m., a sequence of events verified by city police investigators.

The next time the police questioned Skinkle, pressing him harder, he changed his story and said he'd name the robber and testify if he wasn't prosecuted for the robbery. He told police he acted as a lookout.

In his second version, he told police he planned the robbery, with Tocco and Klumpe at Tocco's house a few blocks away from the bank the morning of the robbery. Barton said there was not enough time for both scenarios to be true.

The clues continued to accumulate in Barton's file on the robbery. He learned of a cracked mirror that belonged to Skinkle's girlfriend at a rummage sale and obtained it. On it was Skinkle's signature and a handwritten statement: "Robbing banks for a living."

He learns that Skinkle's instant message sign-on was "BNBRobber."

Trice said the original deal with Skinkle not to prosecute him for the bank robbery was still in effect for local charges, but banks also fall under federal jurisdiction.

Thompson kept the case open and questioned Skinkle again about the Elmira bank robbery.

Negotiations became serious during summer 2006 and Skinkle's lawyer, David B. Rynders, finally agreed to a plea that guaranteed Skinkle wouldn't face federal charges if he cleared the record and told the truth.

After several adjourned appearances, the plea finally came Monday.

Elmira Deputy Police Chief Michael Robertson said Thursday the case is finally closed.

"I think that makes our record 100 percent for solving bank robberies," Robertson said.

Chemung County District Attorney John Trice said Barton deserves a lot of credit for his dogged determination to track down the truth.

"He did his own detective work," Trice said.

Skinkle returns to court March 5 for sentencing on the perjury charge. He faces one to three served concurrently with his burglary sentence and must pay back $2,700 in restitution.

That sentence will be complete March 25, 2008, with Skinkle eligible for conditional release in August.

Innocent ex-inmate resumes college as a free man

2007-02-02T13:52:00.000-05:00

This article appeared in the Lower Hudson Journal-News on January 24, 2007:

Innocent ex-inmate from Peekskill resumes college as free man

By Jonathan Bandler
THE JOURNAL NEWS

NEW YORK - Jeffrey Deskovic began classes today at Mercy College in Manhattan, resuming a college education that was cut short more than a decade ago while he was serving a prison sentence for a murder he did not commit.

"I'm moving forward with my life and today represents a major step in me doing that," Deskovic, 33, said before entering Prof. Martin Kelly's Classics course. "I want to fully immerse myself in the classes, get the best grades I can and use this education to make the most of my life."

This semester, he is taking two courses at the Manhattan campus and two online courses, and hopes to graduate from Mercy by next spring.

Deskovic went to prison in 1991 after he was sentenced to 15 years to life in prison for murder. He had falsely confessed under exhaustive interrogation by detectives to the November 1989 slaying of 15-year-old Angela Correa, a classmate at Peekskill High School.

He was freed four months ago after DNA evidence linked another New York inmate, Steven Cunningham, to the slaying.

Deskovic got an associate's degree in prison and completed 90 credits towards a bachelor's degree in psychology before state funding dried up for college courses for inmates. He urged legislators to resume funding for such classes, suggesting that ex-convicts were less likely to reoffend once they get out of prison if they have a college degree.

He said this morning that he hoped to go on to law school and that his dream job would be to work for The Innocence Project, the clinic at Benjamin Cardozo Law School that helped free him and has exonerated more than 185 prisoners across the United States. Deskovic is also hoping to become a professional speaker to share his experiences and combat wrongful convictions.

Innocent man goes free

2007-02-02T13:08:00.000-05:00

This article appeared in New York's Post-Standard on January 24, 2007:

'Innocent man walking'; Roy Brown goes free

By John Stith
Staff writer

Roy Arthur Brown said when he walked out of Elmira Correctional Facility Tuesday morning, fellow inmates chanted, "innocent man walking."

Fifteen years ago to the day, Brown was convicted of second-degree murder. A jury had decided he had killed Cayuga County social worker Sabina Kulakowski.

Tuesday afternoon, Judge Mark H. Fandrich tossed out the conviction and set aside Brown's sentence of 25 years to life. He was freed without bail and is due back in court March 5 to determine if he should be retried.

However, DNA evidence points to another man, Barry Bench, as the possible killer. Bench was the brother of Kulakowski's ex-boyfriend, Ronald.

"Mr. Brown, I'm sorry it's taken such a long time to come to this day," Fandrich told Brown as he was released from custody. "I'm happy for you and your family."

Brown, 46, didn't say anything in court. In answer to a reporter's question later, he said simply, "Prison was hell."

He always insisted he was innocent and conducted his 15-year battle seeking freedom from prison

personally uncovering affidavits that convinced him Bench was the guilty one. He sent Bench an accusatory letter on Christmas Eve 2003, days before Bench stepped in front of an Amtrak train in Wayne County and killed himself.

District Attorney James B. Vargason had Bench's body exhumed late last month. He wanted a tissue sample to see if it matched DNA found on a T-shirt Kulakowski was wearing the night she was murdered. The DNA samples matched.

Kulakowski's nude, battered body was found May 23, 1991, outside her burning Blanchard Road home. A red T-shirt was found nearby. She had been stabbed, bitten and strangled.

Fingerprint matching techniques need reform

2007-02-02T12:10:00.000-05:00

Fingerprint Matching Techniques Need Reform

Fingerprint matches -- key to fighting international terrorism and keeping criminals off the street -- are no longer foolproof, warns a law professor at the University of California, Davis.

Professor Edward Imwinkelried, one of the nation's leading experts on scientific evidence, and co-author Mike Cherry, who designs identification systems, say the reliability of fingerprint identification has declined while the population of the world -- and its fingerprints -- has exploded.

"We can no longer naively assume the reliability of our current fingerprint standards," they write in "How We Can Improve the Reliability of Fingerprint Identification," an article recently published in Judicature. "Given the stakes -- not only justice in a particular case but national security itself -- we must do better."

Imwinkelried, the Edward Barrett Jr. Professor of Law at UC Davis, and Cherry, who is vice chair of the digital technology committee of the National Association of Criminal Defense Lawyers, urge reforms.

The current matching process identifies ridges within a fingerprint and categorizes it into one of three general patterns -- including loops, arches and whorls -- and their subpatterns, and maps predetermined shapes and contours. A fingerprint is said to match when the pattern, subpattern and some of the shapes and contours roughly correspond with each other.

Population and digitization

In the late 1800s, Sir Francis Galton developed the first system for classifying and identifying fingerprints. He is quoted as having famously said that the odds of two individual fingerprints being the same are one in 64 billion. The authors point out that the current world population exceeds six billion persons, and most have 10 prints. In short, they say, the world population of fingerprints now exceeds the odds Galton estimated.

At the same time, the authors say, fingerprint matching techniques that once used cards and then analog photographs to compare up to 10 fingerprints have been taken over by automated computerized systems that use less precise digital images and pre-screen matchers that sometimes use only a single index finger.

"If we're going to rely on the computer technology for the Watch List on terrorism, when we do background checks ... we've got to have some assurance the computer system is reliably accurate," said Imwinkelried. He is co-author of "Scientific Evidence," one of the leading treatises in its field that has been cited on several occasions by the U.S. Supreme Court.

Call for new matching criteria

Imwinkelried and Cherry call for high-powered computer analysis of existing fingerprint databases -- data mining -- to detect new patterns and develop new criteria for matching fingerprints. And they urge the return to the Henry Fingerprint Classification System, which used all 10 fingers to classify an individual.

The Henry system, Imwinkelried and Cherry say, would better help identify suspects who use aliases and would prevent criminal suspects like alleged serial killer Jeremy Jones from being re-released after each arrest because just one print is used for matching.

"If analyzed properly, fingerprints can be as accurate as DNA," they say.

In an earlier Judicature article, Cherry and Imwinkelried argue for greater skepticism of the use of computerized fingerprint analysis, especially for its reliance on digitized images of fingerprint patterns. "The bottom-line is that digital images are simple, incomplete approximations of the images they attempt to capture," they write.

The two authors call on courts to take a more skeptical look at fingerprint testimony, recommend that computer systems check as many fingerprints as are available, and advise greater scrutiny of the matching criteria embedded in the programs that match fingerprints.

Source: University of California, Davis

Democrats propose DNA tests

2007-02-02T12:08:00.000-05:00

This article appeared in Missouri's Belleville News Democrat on January 22, 2007:

Democrats propose DNA tests after all felony arrests

Chris Blank
Associated Press

JEFFERSON CITY, Mo. - House Democrats on Monday proposed expanding the state's DNA database to include people arrested but not yet convicted of felonies and sex crimes.

Rep. John Burnett said testing before convictions would help law enforcement close cases by giving them more to work with sooner. Samples taken from suspects who are not eventually convicted would be removed from the database.

Burnett, D-Kansas City, said any civil liberty concerns are outweighed by the possible good that could come from the additional testing and because DNA evidence can prove innocence as well as guilt.

Burnett said DNA testing is just a scientific way of determining identity, similar to taking finger prints or mug shots.

"You do not have a constitutional right to protect your DNA, to protect your blood, to protect your body fluids," he said.

Missouri has taken DNA samples from those convicted of felonies and sex crimes since 2003. Last year lawmakers approved extending the program until 2013, adding a $60 court fee to drug offenders to pay for the testing on top of the already $30 fee for felons and $15 fee for those convicted of misdemeanors.

A spokesman for the Missouri State Highway Patrol said including felony and sex crime arrests to the DNA testing list would add at least 40,000 tests to the more than 75,000 samples taken last year. A testing kit costs between $30 and $35.

But the bigger problem, Highway Patrol Capt. Tim Hull said, would be keeping track of who already has given a DNA sample so there's no duplication.

Burnett said there has been no cost estimate for the additional testing, but said he doubted it would be unworkable.

"There's always money for something that's a priority," he said.

The proposal came as one of several Democratic crime measures, which included bills to help local police use GPS satellite technology to avoid high-speed chases and to expand the death penalty.

The GPS tracking device would be attached to a fleeing car using a special shooting device, which would allow police to follow the suspect at a safer distance and speed. The Democratic proposal calls for having the state pick up half the cost.

Despite a federal court ruling that has put the state death penalty on ice, Rep. Paul LeVota called for allowing juries to give the death penalty if the victim is a child - even if prosecutors cannot prove there was premeditation.

LeVota, D-Independence, said the "Precious Doe" case - a girl whose body was found in 2001 in Kansas City but not identified until 2005 - illustrated the need for the bill. Police later identified the girl as 3-year-old Erica Green and arrested her stepfather, Harrell Johnson, 25, of Muskogee, Okla., for the murder.

Johnson was initially charged with second-degree murder because prosecutors weren't sure they could prove he had planned the killing. The charges have since been bumped up and prosecutors are seeking the death penalty.

LeVota said eliminating the premeditation requirement for child slayings would eliminate any ambiguity.

DNA leads to suspect in '94 rape case

2007-02-02T11:57:00.000-05:00

This article appeared in the Massachusetts Republican on January 23, 2007:

DNA leads to suspect in 1994 rape case

By Marla A. Goldberg
mgoldberg@repub.com

SPRINGFIELD - The trail has not grown cold on a rape committed in Springfield more than 12 years ago.

Through DNA matching, a suspect in the Oct. 2, 1994, crime, Aurelio Pinero, 37, of Springfield, was identified and charged, Hampden County District Attorney William M. Bennett announced yesterday.

At a press conference surrounded by several local police chiefs and Massachusetts State Police Crime Laboratory officials, Bennett called for a significant expansion of mandatory DNA collection in Massachusetts. He said use of the state's DNA database led to grand jury indictments against six people on Friday, including Pinero, for previously unsolved crimes.

All 50 states now have laws allowing collection of DNA from convicted criminals, for entry into the Federal Bureau of Investigation's three-tiered Combined DNA Index System, or CODIS, which includes local, state and national levels.

"Police chiefs, state police and myself strongly support DNA testing and extension of the CODIS .... (It) identifies the perpetrator, exonerates the innocent and also prevents future crime," Bennett said. "We urge the Legislature to expand the DNA database to include ... all known offenders."

Under Massachusetts law, only people convicted of felonies must provide DNA samples, but Bennett called for broadening the requirement to include those convicted of misdemeanors as well. The commonwealth should also adopt the "California Rule," Bennett said, and collect DNA from everyone arrested on felony charges as soon as possible, "so the truth-finding process is not delayed."

Bennett said crimes go unsolved because perpetrators die first, and DNA should be collected whenever an autopsy is performed, if the deceased is within certain age limits.

William C. Newman, director of the Western Massachusetts office of the American Civil Liberties Union, said the group opposes mandatory DNA testing. "There obviously are enormous privacy concerns .... DNA is not like a fingerprint, it exposes and reveals an enormous amount of personal information to the government," without sufficient controls over its dissemination and use, he said.

Newman cited the potential for misuses, if insurance companies demanded genetic health information, or such data were stolen by computer hackers.

Collecting DNA from people convicted of misdemeanors would also overwhelm the state police laboratories and would ultimately make the system break down, Newman said. "The laboratory would never be able to get to the serious cases that need DNA testing .... It would be a massive waste of state money," he said. "There's no reason to believe that such a massive investment of public funds would contribute to public safety."

After yesterday's press conference, state Sen. Stephen J. Buoniconti, D-West Springfield, said that he has refiled a bill which didn't pass last year, to broaden mandatory DNA collection to include youthful offenders who commit serious crimes, and anyone convicted of an offense carrying a potential jail sentence, regardless of the penalty they ultimately receive.

The proposed legislation is "not as expansive," as the Massachusetts District Attorneys Association is seeking, Buoniconti said.

However, it may be redrafted, to require collection of DNA from people convicted of serious misdemeanors, such as assault and battery. Costs might prohibit collection from those convicted of misdemeanor driving offenses, Buoniconti said.

"Anybody who has been in law enforcement knows that people start with nickel and dime crimes," Buoniconti said at the press conference, citing the importance of stopping criminals early in their careers. DNA collection, Buoniconti said, is "not a serious infringement on a human right or human liberty."

Holyoke Police Chief Anthony R. Scott credited the state police crime lab with finding a consistent DNA profile in three separate cases, including a rape in 1988, a home burglary in 2001, and an armed, masked robbery at a convenience store in 2005, where a bandanna yielded genetic material. Bennett's office plans to bring the cases before a grand jury, and seek indictments against the assailant as "John Doe," until he is identified by name. The crime lab is "helping us bring these animals to justice," Scott said.

Similarly, in July, a grand jury indicted a DNA profile as "John Doe," for the 1991 rape of an Agawam woman. Since then, the same profile was found in a West Springfield rape case, and investigators are sharing information in an effort to identify the suspect.

"A key to the future is to expand that database," said Wilbraham Police Chief Allen Stratton yesterday, displaying a cotton swab in a plastic wrapper. "This is a DNA collection kit," he said.

State Police Crime Lab Director Carl M. Selavka said a new crime lab will open early next month on Carando Drive in Springfield, incorporating facilities formerly in Agawam and Sturbridge. The laboratory will employ about 15 people, he said, including state troopers, chemists, and those working in crime scene and firearms identification services.

Md. lawmakers seek to repeal death penalty

2007-02-01T16:35:00.000-05:00

Md. lawmakers seek to repeal death penalty
O'Malley says he would sign bill that favors life without parole as alternative

By Brian Witte
The Associated Press
Originally published January 25, 2007, 5:59 PM EST

Lawmakers announced plans today to introduce legislation that would repeal the death penalty in Maryland -- a measure Gov. Martin O'Malley said he would sign if the General Assembly approves it.

State Sen. Lisa Gladden, D-Baltimore, and Delegate Samuel Rosenberg, D-Baltimore, are sponsoring bills that would replace the state's death penalty with a prison sentence of life without parole.

O'Malley, a Democrat who personally opposes the death penalty, said he "sure would" sign a bill repealing the death penalty in favor of life without parole."We waste a lot of money pursuing a policy that doesn't work to reduce crime or to save lives, but we could be putting that money into crime reduction," O'Malley said in a brief interview not long after legislators supporting the measure held a news conference. "I'm much more in favor of life without parole."

Although Gladden and Rosenberg both said they believe support for a repeal has grown, they said they would need to find more votes to get the measure through both chambers.

"While I think that it's a difficult task, I don't think it's impossible," Gladden said.

Kirk Bloodsworth, a Maryland man who spent two years on death row and was later released from prison because of DNA evidence, said at the news conference that he was "living proof that the criminal justice system makes serious mistakes."

Bloodsworth was convicted twice of killing a 9-year-old girl in 1984. He was placed on death row following his first trial. He was convicted again in a second trial, but received a life sentence instead of capital punishment. He was exonerated by DNA evidence in 1993.

Bloodsworth said his experience proved an innocent person can end up on death row.

"If it can happen to me, it can happen to anybody in this room and anybody in the state of Maryland," Bloodsworth said.

Gladden said Bloodworth's case demonstrated a need for ending capital punishment.

"I think that we have standing examples of why it's important that we repeal this," she said. "It doesn't work. The system's broken."

Last month, the state's highest court ruled that executions in Maryland can't go forward until a legislative committee reviews Maryland's lethal injection protocol. The Court of Appeals ruling was made four days after executions were halted in California and Florida over concerns that lethal injections, as carried out, constitute cruel and unusual punishment.

Delegate Anne Healey, who co-chairs the committee that would have to hold hearings on the protocol, said it was up to the governor to decide whether the committee should take up the review. She said she hasn't heard from O'Malley on the matter.

Healey, D-Prince George's, said she's not sure lawmakers want to wade into such a divisive debate this year.

"I think it's a big question mark whether people are interested taking it up this year," said Healey, who opposes the death penalty. Senate Minority Leader David Brinkley, a death penalty supporter who represents parts of Frederick and Carroll counties, said he believes the lethal injection review should be taken up to affirm the use of capital punishment in the state. However, the Republican said he didn't think the committee would bother this session, because lawmakers want to focus on budget issues.

"I think it's going to put it on the back burner," Brinkley said.

Sen. Paul Pinsky, a death penalty opponent who co-chairs the Joint Legislative Committee on Administrative Review that would have to hold hearings on the state's lethal injection protocol, said it was unclear whether the committee would take up the matter this year.

"Right now, we have a default moratorium, which I think is fine," Pinsky said.

NOPD's crime lab begs for help

2007-02-01T15:33:00.000-05:00

This article appeared in the New Orleans City Business on January 22, 2007:

‘Begging for Help’
NOPD’s crime lab faces severe gear shortfall

by Richard A. Webster

New Orleans Police Department Sgt. Jay Vitrano examines crime scene evidence under a microscope. The crime lab staff has been working out of a trailer in a fenced lot off Broad Street.

There’s no silver Humvee or blue pastel mood lighting or models in white lab coats and stilettos playing cops to the soundtrack of The Who’s “Won’t Get Fooled Again.”

There’s no space-age crime lab equipped with 23rd century technology capable of solving a case in 24 hours. There’s barely a laboratory at all.

Post-Katrina life for the members of the New Orleans Police Department crime lab is nothing like that of their counterparts on the popular CBS television series “CSI.” The depleted staff responsible for collecting and analyzing evidence works out of a trailer in a drab fenced lot off Broad Street.

They lost a permanent facility on Tulane Avenue and floodwaters destroyed more than $5 million in vital forensic equipment, which has yet to be replaced more than 17 months after the storm.

“I personally would not want to be in their shoes,” said Ronald Singer, president of the International Association of Forensic Sciences and a New Orleans native. “They are operating under quite a severe handicap and it’s a marvel they’re doing anything at all.”

To conduct a firearms test, NOPD crime lab investigators travel to St. Tammany Parish. If they want to test narcotics they go to Jefferson Parish. And to develop crime scene film, they have to drive to a lab in Baton Rouge.

The extra travel and wait time slows the investigative process while the city is under siege from murderous drug dealers and the number of open cases mount.

NOPD Capt. Tami Brisset, head of the crime lab, said its staff dropped 59 percent from 90 to 37 after the storm but the caseload has not slowed. They handled 30 cases a week immediately after the hurricane but are back to the pre-storm workload of 150 with a backlog of more than 1,500 narcotics cases now.

“The system is not working as effectively, it’s not as proficient and it’s not at maximum performance. But it’s the best we can do right now,” Brisset said. “It’s hard because we were the best when we had our own 24/7 lab but now we’re begging for help.”

The NOPD is waiting on the Federal Emergency Management Agency to approve funding for a temporary crime lab while costs are determined to build a new facility. Brisset hopes to have a temporary site by Christmas.

Until then the crime lab can’t even buy new equipment because it has no storage space, said Sgt. Becky Benelli who houses excess crime lab equipment in her Algiers home.

The Jefferson Parish Sheriff’s Office allows the NOPD to use its crime lab facilities for up to four hours a day to conduct tests and analyze evidence. Jefferson Parish lab director Milton Dureau said it is all they can afford to offer given the increase in Jefferson Parish homicides. There were a record 66 murders in Jefferson in 2006.

“We can only allow so much time for them to do their work because we have a ton of work ourselves,” Dureau said. “And the time we’re giving them is adversely affecting our output. It’s weighing us down.”

The new year in New Orleans kicked off with six murders in a 24-hour span, which added stress in an already overburdened crime lab. Brisset said she pulled in as many people as possible and asked them to work countless hours of overtime.

“I handled one case where there were 128 pieces of evidence, the majority of them being bullet casings,” Brisset said. “In the olden days when people had revolvers they didn’t have as much evidence but with automatic guns, when they shoot they just don’t shoot once. This isn’t Barney Fife days. When they shoot you can have a trail of casings two blocks long.”

Criminal forensics is far more tedious and time consuming than it is portrayed on television, said Brisset. Investigators spend up to eight hours photographing and collecting evidence at each crime scene. Each piece of evidence is then placed in an envelope, documented and catalogued. Before the storm, the NOPD crime lab had as many as nine investigators on each shift. Now it has five.

“When we had that 24-hour period of shootings, everybody came out and worked it,” Benelli said. “We handled one case at a time and didn’t rush but we just kept hoping we wouldn’t have too many more violent calls. But they kept coming.”

Without its own dedicated lab, the NOPD has to send DNA samples to outside agencies, which can cost up to $20,000 depending on the nature of the sample and results can take more than two months to develop. Transporting evidence to outside locations raises the risk of contamination or the loss of evidence, complications that can threaten a case, Singer said.
“The more you start to fool around with evidence, the more potential you have for something to happen to it,” Singer said.

“When you start out with that as a premise, you have some issues. I would hate to have to be an orphan working at someone else’s lab because eventually your cases start to pile up. But in the case of the NOPD, they really don’t have any other choice. There’s that old saying, ‘There’s no place like home.’”

Perserverance pays off

2007-01-31T16:06:00.000-05:00

This article appeared in Georgia's Macon Telegraph on January 26, 2007:

Perseverance pays off
Midstate law student plays key role in exonerating man convicted of rape, kidnapping

By Phillip Ramati
TELEGRAPH STAFF WRITER

For Ashley Tyson-Mackin, it started with a gut feeling.

The 24-year-old Jones County native was combing through files last January as part of her internship with the Georgia Innocence Project, looking at dozens of the more than 2,600 letters sent by convicted criminals asking the agency to re-examine their cases.

Tyson-Mackin came across the case of Willie O. "Pete" Williams, convicted of aggravated sodomy, kidnapping and rape in April 1985. That's when she started to believe the Innocence Project had a genuine shot at making a difference.

"The prisoners write in, and there are thousands of files we slowly go through," Tyson-Mackin said. "The best case is when (the crime committed) is stranger-on-stranger and there's mistaken identification involved.

"When I talked with his defense attorney ... Willie was one of the few clients he knew was innocent, and the case really upset him."

Tyson-Mackin, a Georgia State University law student at the time, ended up downloading a picture of Williams and taping it to the door of the project's Atlanta office, telling anyone who would listen that Williams would be the next person exonerated.

"I just had this gut feeling," she recalled. "I knew this was our next exoneree. I just knew it."
Georgia Innocence Project director Aimee Maxwell said she loved the enthusiasm.

"She kept us all enthusiastic," Maxwell said.

But a gut feeling of innocence and being able to prove it in court are two entirely different things.
Williams was convicted almost entirely because of the eyewitness testimony of the victim. The prosecution's case was strengthened when a second woman was able to fight off her attacker five days later and identified the police sketch of the suspect from the first assault as the same attacker.

When the original victim testified at the trial, Tyson-Mackin said the woman told the jury that she was "120 percent" certain her attacker was Williams. Though a rape kit was used during the investigation, DNA testing hadn't yet been developed, which could have been used to prove Williams' guilt or innocence.

Tyson-Mackin needed to find the DNA evidence after nearly 22 years, a monumental task because most evidence from closed cases during that era is usually junked.

"Actually finding the evidence is literally like finding a needle in a haystack," Maxwell said. "It's miraculous, particularly in this case, because the GBI did purge the evidence and sent it back to the original counties. But they had saved some swabs from some rape kits. Nobody knew why they saved those particular swabs, because they end up making slides and usually the first thing they throw out is the swabs."

But even having DNA evidence didn't mean a jackpot for Williams and the project. Because of the high cost of DNA testing, first a judge needed to sign off on it, because the project is a not-for-profit agency with limited resources.

In addition, the sample was one in a long line of other DNA samples awaiting testing at the GBI crime lab.

But finally after more than a year's work on the case, the project got the news it had been waiting for for so long: The DNA test exonerated Williams.

Williams emerged from Fulton County Jail on Tuesday night a free man, greeted by friends and family. Had the Innocence Project been unable to help him, Williams would not have been eligible for parole until 2021. Assuming he had been granted parole at that point, he would have spent almost 36 years in prison for a crime he didn't commit.

Williams became the sixth Georgia prisoner to be exonerated after DNA evidence proved his innocence. He became the Georgia Innocence Project's third success story since it was formed in 2003, Maxwell said.

Williams was at a loss for words when he was first released.

"I can't even explain," he told the Associated Press.

Maxwell credited Tyson-Mackin's work ethic and perseverance as being a big part of the project's success with the case.

"Ashley is a bundle of energy," Maxwell said. "She was Pete's biggest advocate. She just truly believed in him. She did an excellent job investigating the case. She was an exceptional intern, very enthusiastic, very committed."

Tyson-Mackin has never met Williams face to face, but hopes to do so when she attends Williams' hearing, likely in mid-February. Technically, Williams has been released on his own recognizance but must still have his record wiped clean by the court.

The project's work with Williams is far from done. Part of the project's function is to help people reintegrate into society through counseling and help them to find work.

Tyson-Mackin said Williams likely would get sizable compensation for his time in prison, though he could never get back the years he lost. She said the state has compensated other exonerees in the past for wrongful imprisonment.

"We hope he gets taken care of," she said. "I once worked out that if he had made $7.50 an hour during all those years, he'd have had $500,000 in earnings. But how do you compensate someone for those lost opportunities - getting married, having children, having a job, missing Christmases?"

Tyson-Mackin used to go to court with her grandfather, Weyman Roberts, in Jones County when she was as young as 6 or 7. Though Roberts wasn't an attorney, he was fascinated with what was going on in Jones County, and Tyson-Mackin fell in love with the courtroom.

After graduating from Jones County High School, she attended the University of Georgia as an undergraduate student. Having since earned her law degree from Georgia State, Tyson-Mackin got married in September and lives in Macon. She's preparing for the bar exam next month.

She also has seen the courtroom from the opposing side, having worked as an intern with the Houston County District Attorney's Office after finishing her time with the Innocence Project.

Once she passes the bar, she said she is going to work for the Fricks law firm, where she will do real estate law and family law as well as criminal work.

But she acknowledges she may have a hard time topping her work on the Williams case.

"To know you were involved with saving his life, to know that he was going to be (in prison) until at least 2021 - that's really cool," she said. "He's a super nice guy. To help somebody like that is awesome."

To contact Phillip Ramati, call 744-4334 or e-mail pramati@macontel.com.

DNA frees man after 21 years

2007-01-31T16:04:00.000-05:00

This article appeared in the Atlanta Journal-Constitution on January 23, 2007:

DNA frees man after 21 years
Fulton district attorney agrees with Georgia Innocence Project; Willie O. Williams will be released from prison today.

By Bill Torpy
The Atlanta Journal-Constitution

Willie O. Williams will be released from prison today after serving more than 21 years for a crime he did not commit.

"We are convinced today Mr. Williams is not responsible for this," Fulton County District Attorney Paul Howard announced Monday at a brief news conference outside the courthouse in Atlanta.

Deputies will retrieve Williams from the D. Ray James Correctional Facility in South Georgia and drive him five hours to Atlanta, where he will be processed at the Fulton County jail and released on a recognizance bond. Howard said Williams, 44, has been a model prisoner and will be officially cleared within two weeks.

Williams was convicted of raping a woman on April 5, 1985, in Sandy Springs based on eyewitness testimony of the victim and another woman who was attacked five days later.
But DNA tests conducted on behalf of the Georgia Innocence Project indicated last week that Williams did not commit that rape. Howard reviewed the group's data before making Monday's announcement.

Upon hearing the news, Michael Schumaker, Williams' defense attorney from 1985, said: "DNA doesn't lie. What can you say? The system worked."

Schumaker said he was troubled by the case for years.

"Thank God for the Innocence Project," he said. "Thank God for the character of Mr. Williams, who sat there for 21 years knowing he's innocent."

Howard said his office has started an investigation "to find out who committed this crime. We hope to take this person into custody."

Prosecutors on Monday asked GBI Crime Lab technicians to search the lab's vault for a rape swab from a separate attack that occurred in June 1985, according to Ted Staples, manager of forensic biology section at the crime lab.

Prosecutors want to use the swab to get a DNA sample of a convicted rapist who has since been released from prison. They will see if that DNA matches samples collected from the rape kit in the Williams case. That DNA technology was not available at the time of the crimes.

Another man was convicted of a similar rape at a nearby apartment complex that occurred June 17, 1985, when Williams was already in jail. The second man's name was brought up as a suspect in court by Williams' defense attorney 20 years ago, and Georgia Innocence Project officials had asked prosecutors to match samples from the two cases.

In the April 1985 rape that Williams was convicted of, the victim was approached by a man as she tried to get out of her car in a parking lot at an apartment complex on Roswell Road. The man put a gun to her head and ordered her to move over. He then drove to a nearby dead-end street, where he raped and sodomized her. Afterward, he drove her car back to the parking lot and ran away.

The man suspected by the Georgia Innocence Project lived on Roswell Road. In the June 17, 1985, attack, the man sneaked up on the victim in a Roswell Road apartment parking lot, forced open her car door, held a pistol to her, drove her to another area and raped her. After the attack, the man drove her back to her complex and fled. The man pleaded guilty to that attack and was sentenced to four years.

Aimee Maxwell, director of the Georgia Innocence Project, said DNA tests of the June 1985 rape and the Williams case could fairly quickly determine if the other suspect committed the other crime.

Asked if prosecutors were looking at the June 1985 rape sample, Howard nodded yes and said, "We're looking at all the circumstances. It might be one of the circumstances."

On Saturday, Howard said the victim of the April 1985 rape remained convinced Williams was her attacker. He did not address that Monday.

Maxwell said a new suspect can be charged in the Williams case because the statute of limitations on rape is renewed when new evidence comes to light.

Williams was victimized by a confluence of bad circumstances in 1985, including the victim telling a jury that she was certain he was the rapist.

But two decades later, Williams benefited from a different set of circumstances that allowed the evidence to still exist.

In the late 1990s, the crime lab purged evidence, returning some to police agencies, Staples said. But for some reason, the rape swabbings from the 1980s were not returned. Those boxes were later marked to be destroyed, Staples said. But again they were not, and the GBI kept them after a 2003 state law mandated that DNA evidence be kept to free those wrongly accused and to find criminals in unsolved cases.

Maxwell, of the Georgia Innocence Project, stood near Howard's news conference with Cliff Williams, a Georgia State University law school student who did much of the legwork in retrieving the Williams case evidence.

"Holy cow, I didn't expect [Williams' release] this quick," said Maxwell, who said she was going to bring Williams back to her office today and —- among other things —- "introduce him to the world of $4 Starbucks coffee."

She lauded Cliff Williams —- no relation to Willie Williams —- for his dogged work in the case. "Before he ever becomes a lawyer, he's already done the best thing he's ever going to do," she said.

He smiled and said he would be on hand for Willie Williams' release. "I'll miss class tomorrow," he said.

Rapist pleads guilty to molesting 2 girls

2007-01-31T15:52:00.000-05:00

This article appeared in the San Francisco Chronicle on January 23, 2007:

OAKLAND:
Rapist pleads guilty to molesting 2 girls

Henry K. Lee
Chronicle Staff Writer

A paroled rapist pleaded guilty Monday in connection with the sexual assaults of two 10-year-old Oakland girls during break-ins at their homes, a prosecutor said.

Kalonji Lee, 31, was identified by DNA evidence in the first attack in January 2004, but Oakland police acknowledged that they didn't follow up on the match until after the second victim was assaulted in December 2004, authorities said.

Alameda County Superior Court Judge Leo Dorado is expected to sentence Lee on April 18 to 50 years to life in prison, said Deputy District Attorney Tim Wellman, who called the attacks "every parent's worst nightmare, let alone the kids' worst nightmare."

"I'm pleased we were able to work out a sentence that will assure the defendant will never be able to terrorize another family again," Wellman said.

On Jan. 3, 2004, a 10-year-old girl awoke to go to the bathroom and was accosted by Lee, who had entered her home through an unlocked bedroom window. He told her, "Don't scream, or I'll kill you," authorities said.

Lee pleaded guilty Monday to performing a lewd act on a child during a residential burglary.

On Dec. 13, 2004, Lee entered another 10-year-old girl's home through an unlocked sliding glass door and assaulted her. The girl's father chased him, but Lee escaped. However, he was later identified through a cell phone that he left at the scene, Wellman said.

On Monday, Lee pleaded guilty to digital penetration during the course of a residential burglary.
The state Department of Justice DNA computer database matched DNA evidence found on the first victim to Lee, court records show. In June 2004, the state informed Oakland police of the "cold hit," the term for the DNA identification of a suspect not otherwise known to be connected to a crime.

But according to court records, the police did not try to look for Lee until after the second assault.

Judge denies prisoner's DNA request

2007-01-31T15:51:00.000-05:00

This article appeared in Alabama's Mobile Press-Register on January 5, 2007:

Judge denies prisoner's DNA request

By Brendan Kirby
Staff Reporter

A federal judge in Mobile has ruled that Dewayne Scott Cunningham, convicted of rape 10 years ago, may not have access to evidence that Cunningham insists could prove him innocent through DNA testing.

U.S. District Judge Kristi DuBose decided against Cunningham on each of the half-dozen legal arguments made by his lawyers from the University of Wisconsin Innocence Project.

"I'm obviously disappointed by the decision," attorney Keith Findley said. "It's something we need to pursue further because I think Mr. Cunningham deserves and has a right to have access to DNA testing."

Assistant Alabama Attorney General Clay Crenshaw praised Dubose's decision.

"It looks like the judge wrote a real extensive order that addressed all the plaintiff's arguments," he said.

But she quoted from an opinion written by Chief Judge J. Harvie Wilkinson III of the 4th U.S. Circuit Court of Appeals on a DNA case: "Our system however does not allow any person to press a claim of innocence at any time, at any place, and in any manner."

Wilkinson wrote in that case in 2002 of his hope that Congress would act on behalf of inmates who believe DNA testing could prove they were wrongfully convicted.

The court's decision helped prompt passage of the Innocence Protection Act of 2004, which established procedures for federal inmates requesting DNA tests and provided grants to help states pay for post-conviction DNA testing.

Although the Alabama attorney general's office opposed Cunningham's request, Crenshaw said the department does not always oppose such post-conviction DNA testing. He said officials determine two facts: Was the DNA testing available at the time the defendant was convicted, and would the testing be conclusive?

For example, Crenshaw said, the office supported testing for Olin Grimsley, who was convicted of a 1990 murder in Houston County largely on the basis of a cigarette that placed him at the scene of the crime.

DNA tests were conducted on the cigarette, which confirmed that Grimsley had smoked it.
Cunningham now must decide between two unlikely routes -- asking the judge to reconsider her decision or appealing to the 11th U.S. Circuit Court of Appeals. Findley said his client will consider both.

"We'll look at all of our options," he said.

Cunningham, 37, has been in prison since 1996, when a judge sentenced him for the 1995 rape of a Flomaton woman.

The Escambia County jury took a couple of hours to find Cunningham guilty of the crime.

The victim, who had just finished jogging around a track in Flomaton's Hurricane Park on Aug. 20, 1995, identified Cunningham as her attacker about 15 minutes later at the police station. She also identified him from the witness stand.

Based on Cunningham's criminal record, the judge sentenced him as a habitual offender to life in prison. Though he remains eligible for parole, Cunningham has said he holds little hope that he will win his freedom that way.

Cunningham, a homeless man with a history of mental problems, said in an interview at Fountain Correctional Center near Atmore last month that he spent his time in those days sneaking onto freight trains across the country.

He insisted he was in the wrong place at the wrong time when a Flomaton police officer approached him.

Police searching the park found a condom wrapper of the same brand Cunningham had in his wallet. A rape examination of the woman also turned up several strands of foreign hair in her pubic area.

Authorities did not conduct DNA tests, which at the time were less sophisticated than they are now.

Cunningham, who challenged inconsistencies between the victim's description of her attacker and his actual appearance, asked for the condom wrapper and the hair samples so that DNA tests could be run.

When state and local officials refused, he filed a federal suit. It was his only option, since Alabama is one of a handful of states with no law providing for post-conviction DNA testing.
The lawsuit claimed that denying Cunningham's request violated his civil and constitutional rights. He made a number of claims that DuBose rejected one by one.

For instance, he claimed that the state impeded his ability to prove his innocence based on newly discovered evidence.

"There is not a viable newly discovered evidence based claim because there is no newly discovered evidence. There is only a hope of newly discovered evidence, which is insufficient to establish actual injury," DuBose wrote in her 26-page order.

DuBose noted that Cunningham's lawyers had argued that they face a Catch-22 because he cannot demonstrate that he has newly discovered evidence until he is given a chance to run the tests. "This is true, but that fact does not provide a basis for this court to ignore the actual injury requirement of a denial of access to court claim," DuBose wrote.

The judge expressed some sympathy for Cunningham's predicament.

"The plaintiff has made numerous meritorious policy arguments in support of his position for this court to require the state to allow him access to the evidence for DNA testing," she wrote.

Virginia DNA Review Hobbled

2007-01-23T15:36:00.000-05:00

This article appeared in the Washington Post on December 27, 2006:

Virginia DNA Review Hobbled
As Crime Lab Chief Steps Down, Slow Pace Is Criticized

By Candace Rondeaux
Washington Post Staff

A year after Virginia's crime lab launched an unprecedented review of old cases that experts said could free dozens of wrongly convicted people, the project appears to be years from completion, and some are questioning the credentials of the private company selected to do the DNA testing.

Former Virginia governor Mark R. Warner (D) ordered a full review of the cases last December after an analysis of old evidence revealed that two men were not guilty of sexual assault. Warner pardoned the men, who became part of a wave of exonerations that reignited a national debate over post-conviction DNA testing.

At the time, Virginia crime lab director Paul Ferrara predicted that the retesting project would be completed within two years and could free dozens of innocent inmates. But now, just days from retirement, Ferrara has revised his prediction, saying changes at the lab have stalled progress.

"We got nowhere for a while. It has suffered some delays because of staff turnover," Ferrara said. "But we're as interested and as anxious to see this thing through as everyone else. We could see as many as 30 possible exonerations when this is all over with."

The physical evidence came to light in 2001, when an inmate asserted his innocence under a new state law that for the first time granted the right to request testing of newly discovered evidence more than 21 days after sentencing. Lab analyst Mary Jane Burton, who retired in 1988 and died in 1999, and two other lab workers meticulously preserved pieces of clothing smeared with blood, semen or saliva before DNA testing got underway in the early 1990s. A cursory review of a small sample of Burton's files has exonerated five former convicts.

Earlier this year, legal experts speculated that the retesting effort could be slowed when Ferrara, 64, announced in August plans to retire by the end of this year. Gov. Timothy M. Kaine (D) has not selected Ferrara's successor, but the state's Forensic Science Board has interviewed several internal and external candidates, and a decision is expected next month, Virginia officials familiar with the process said.

The evidence review entails a painstaking, multi-step process of separating out cases contained in 660 boxes packed with thousands of files from 1973 through 1988, identifying suspects convicted in each case and determining if physical evidence samples can be tested for DNA.

So far, graduate students hired to help with the project have sifted through more than 329,000 cases, Ferrara said. They will sort and index about 234,000 more files held at regional labs across the state before the bulk of the work is done. They have logged 3,135 cases that have some form of biological evidence retained in the file. No DNA tests have been performed on any of the evidence yet, but Ferrara said he hopes to send the first batch out for testing soon.

"It's going to be slow," Ferrara said. "But I think anyone would rather see us proceed cautiously rather than haphazardly."

The slow pace, however, concerns some. Peter Neufeld, co-director of the New York-based Innocence Project, which has helped exonerate more than 170 inmates, lauded the state for launching the review, saying other states should follow Virginia's example. But Neufeld, who said his organization has several cases pending in Virginia, worries that the review isn't moving quickly enough.

"To allow that to drag as long as it has is unfortunate. It undermines the efficacy of what Governor Warner had intended. It slows down the exoneration of innocent Virginians who are languishing in prison," Neufeld said.

The state selected Bode Technology, a private Fairfax County-based lab, to conduct DNA tests on the samples, a contract valued at an estimated $1.4 million. Bode has won several contracts with the state and has been awarded about $9.3 million overall for outsourced work, according to the Virginia Department of Forensic Science.

But Bode's recent dealings with another state crime lab have been rocky. In August 2005, the company made national headlines after the Illinois State Police canceled a $7.7 million contract with Bode because it failed to identify semen on 22 percent of the rape kit samples it was charged with testing.

Edward Blake of Forensic Science Associates in California, a pioneer of DNA testing, said he is skeptical of Bode's ability to handle the retesting effort in Virginia. A longtime critic of Virginia's crime lab, Blake said the dust-up in Illinois raises serious questions about quality control at Bode.

"I wouldn't trust anything that they did -- not after seeing their work on several cases and the problems in Illinois. With Bode especially since they have a long-term contract with the state of Virginia, they are totally motivated not to see a problem," Blake said.

Calls to Bode General Manager and Vice President Maureen Loftus were not returned.

Ferrara said he's confident Bode is up to the task. "Over the course of the last 20 years, people have found occasions to criticize every private and public lab there is," he said. "That's to be expected. We've worked with Bode for a long time and have long experience with them."

2007-01-22T16:05:00.000-05:00

This article appeared in the New York Times on January 18, 2007:

A 12th Dallas Convict Is Exonerated by DNA

By RALPH BLUMENTHAL

HOUSTON, Jan. 17 — A 50-year-old Dallas man whose conviction of raping a boy in 1982 cost him nearly half his life in prison and on parole won a court ruling Wednesday declaring him innocent. He said he was not angry, “because the Lord has given me so much.”

The parolee, James Waller, was exonerated by DNA testing, the 12th person since 2001 whose conviction in Dallas County has been overturned long after the fact as a result of genetic evidence, lawyers said.

“Nowhere else in the nation have so many individual wrongful convictions been proven in one county in such a short span,” said Barry C. Scheck, co-founder of the Innocence Project, the legal clinic that championed Mr. Waller’s case. In fact, Mr. Scheck said, those 12 such instances are more than have occurred anywhere else except the entire states of New York and Illinois since the nation’s first DNA exoneration, in 1989.

In the aftermath of the new evidence, prosecutors had joined defense lawyers in calling for the clearing of Mr. Waller, who spent more than 10 years behind bars before he was paroled in 1993.

“I’m sorry that happened to you, man,” Craig Watkins, the county’s new district attorney, told Mr. Waller on Wednesday, shaking his hand in the Dallas courtroom where a judge later approved a motion to vacate the conviction. That motion now goes to the Texas Court of Criminal Appeals for formal approval.

Mr. Waller broke down once at the hearing, when describing how his car crashed on the way to a court proceeding in 2001, an accident that killed his pregnant wife, Doris, and the unborn daughter they had wanted to call Grace. “I said, ‘Well, I don’t want to live no more,’ ” he recalled, mopping his face with a tissue.

One of his lawyers, Nina Morrison, patted him on the back. “He lost 10 years 11 months and 3 days of his liberty literally picking cotton in the fields for no pay,” she told the court. “His perseverance is an inspiration to all of us.”

The judge, John C. Creuzot of Criminal District Court, sought to console Mr. Waller, who stood before him in a tan suit, a white shirt and a tie. “A lot of times we are tested in life, and you certainly had a terrible test,” Judge Creuzot said. “On behalf of any and all public officials at that time, I want to apologize.”

Earlier in the day, the Innocence Project provided synopses of the county’s dozen DNA exonerations. “Nobody knows the reason why we have 12-and-counting here in Dallas, but we’ll find out the answers,” Mr. Scheck said. One Texas lawmaker, State Senator Rodney Ellis, a Houston Democrat, has introduced a bill that would establish a Texas Innocence Commission to study exonerations for ways of eliminating wrongful convictions.

The case against Mr. Waller was largely based on the 12-year-old victim’s identification of him, court papers show.

Around 6 a.m. on Nov. 2, 1982, the boy, identified only as Jay S., was alone in his family’s dark apartment with his 7-year-old brother when he was sodomized by an intruder he described as a black man about 5-foot-8 and weighing 150 pounds, his lower face concealed by a red bandana.

By the boy’s account, he heard the voice of his attacker that night at a 7-Eleven near his home, and turned to see Mr. Waller, who was then 25 and lived with his family in the same apartment complex as the victim, the only black family there. Although there were discrepancies in the boy’s account — Mr. Waller is almost 6-foot-4 and was heavy — and although Mr. Waller presented witnesses saying he was home at the time, he was convicted in 46 minutes and sentenced to 30 years. He won parole in 1993 but had to register as a sex offender.

He had begun petitioning for retesting of the state’s rape evidence in 1989, and redoubled his efforts in 2001 after Texas passed a law granting post-conviction access to DNA testing. Results of hair testing appeared to rule out Mr. Waller as the attacker, but the Court of Criminal Appeals found it inconclusive.

Still, “the Lord kept pushing me because I wanted my name back,” Mr. Waller said Wednesday.
Last month the Innocence Project, through use of a previously unavailable technology called Y-STR DNA, found that genetic material recovered from the victim conclusively excluded Mr. Waller and the victim and could have come only from someone else.

Mr. Waller has started a lawn care business, but remains on parole pending the formal action of the appeals court and must shy from all contact with children. “It has been a long struggle for me,” he said. “They look at you like you’re an animal.”

Mr. Watkins, Dallas County’s first African-American district attorney, took office two weeks ago in a Democratic sweep. “I can say I’m sorry all day,” he told Mr. Waller in court. “I know that doesn’t mean much to you, but I can guarantee to you in the future when I’m the district attorney we will insist that we will not send anyone who’s innocent to prison.”

“The sad thing,” he said, “is the person who actually did this crime is still out there on the streets.”

Gretel C. Kovach contributed reporting from Dallas.

False Confession and Court Errors May Result in Appeal

2007-01-04T13:25:00.000-05:00

Appeal hinges on shaky confession
COURT ERRORS DECRIED IN 25-TO-LIFE SENTENCE
By Fredric N. Tulsky
Mercury News

It was no surprise that a jury convicted Richard Kolacki of first-degree murder.
After all, he provided the gun and a getaway car to the killer who shot an Alviso grocer in February 1993. He confessed to police that he knew the killer, William Harley, planned to commit a robbery when Kolacki drove him to the store. And that knowledge made him legally responsible for murder.

But Kolacki's case, which seemed open and shut, has become one more controversial Santa Clara County jury trial, marred by trial judge errors and compounded by a faulty appellate review.
In a federal court petition, Kolacki says jurors never learned that his confession was false, given under duress. And he says the judge's errors, coupled with new evidence, caused an injustice.
Bolstering his contention, three jurors now say they would never have convicted him had they known then what they know now.

In its series ``Tainted Trials, Stolen Justice,'' the Mercury News documented that a sizable percentage of Santa Clara County jury trials have been marred by questionable conduct of prosecutors, judges and defense lawyers, or appellate justices in their review. Such errors increase the small but significant chance of wrongful conviction.

The danger is heightened when a prosecution is based on certain kinds of evidence, such as eyewitness identification or a jailhouse informant. And earlier this year, the state Commission on the Fair Administration of Justice identified false confessions as another significant source of wrongful convictions.

``Most people do not believe that an innocent person would confess to a crime,'' said Richard A. Leo, a University of San Francisco law professor. But Leo, a false-confessions expert, said the pressures of police interrogations can cause some suspects, worn down by the process, to tell police what they want to hear -- even if it is false.

Kolacki's interview with two detectives was recorded on three cassettes. Superior Court Judge Paul R. Teilh permitted jurors to hear the tapes of Kolacki confessing that he knew Harley intended to commit a robbery. But Teilh did not allow jurors to hear the lengthy first cassette, in which Kolacki insisted he did not know Harley was planning to do anything but collect some money. Higher courts later found Teilh's ruling wrong.

Only after jurors voted to convict both men in 1996 did Harley tell them that Kolacki had no idea Harley intended to commit robbery. Kolacki has passed a polygraph supporting that contention.

But lawyers in the state Attorney General's Office say Harley's statements and the jurors' reaction have been considered and rejected by the state courts.

For the whole scoop, click here:

Exonerated Prisoner Relishes Freedom

2007-01-02T10:00:00.000-05:00

This article ran in the Miami Herald Christmas day, 2006.

Exonerated prisoner embraces a free life
BY LISA ARTHUR
larthur@MiamiHerald.com

MARATHON - The first time Orlando Boquete walked into P. Morgan Hill's kitchen last summer she handed him a cup of coffee. He cradled the ceramic mug in his hands, feeling the warmth against his palms. Tears welled up in his eyes.

''A real cup,'' he said. In prison, dinnerware had been plastic. He hadn't held a mug in years. That August morning -- his first full day of freedom after DNA evidence cleared him of a 1983 sexual assault conviction -- was a morning of firsts.

He swam in the ocean off Sombrero Beach. He caught a sand grunt after borrowing a fishing line from a man on the shore. He did his first radio interview and talked about his legal odyssey: a wrongful conviction, 12 years in prison, two escapes, 10 years as a fugitive and three months spent at the Krome detention center as lawyers fought a deportation order.

In some ways, Boquete is like many of the other 187 exonerated prisoners across the country. He's catching up on so many lost years. He missed watching his family grow up. And even the simplest pleasures, like sipping coffee in a real cup, were taken from him.

But he's also different. He doesn't have the haunted eyes and expression that many exonerees wear for months -- and sometimes years -- as they struggle to make peace with injustice and reconnect with society. And he's not bitter.

''I'm enjoying my life now,'' he told The Miami Herald in an interview in early December as he prepared to enjoy his first Christmas outside of prison in 11 years. ``Everything makes me happy, even driving my bike.''
• • •
In the four months since his release from Krome, Boquete has found a new life and settled into a community in the Keys. The city of Marathon has embraced him, easing his reentry into society.
Home is a comfy two-room bungalow in Marathon, where he's living rent-free courtesy of Hill, a well-off real estate entrepreneur and her business partner Paula Nardone. The women own three Exit Realty offices in the Keys. They pay him $10-an-hour to do landscaping on their properties.

''God blessed me and he brings love into my life through all these people who have helped me,'' Boquete said ``I had a lot of bad luck in the past. But now I have nothing but good luck.''
He still juggles two lives -- his past and present.

Each week, he takes a three-hour bus ride to Immigration and Customs Enforcement offices in Miami to check in with immigration authorities. It's part of a supervised release program negotiated by his lawyers to defer action on a deportation order and free him from Krome. Because he's Cuban, it's unlikely under current law that Boquete would actually be deported, but the order could keep him from becoming a U.S. citizen.

But he also meets with movie producers who are interested in the rights to his life story and a reporter from The New York Times who is writing a piece for the paper's Sunday magazine chronicling Boquete's daring escape from prison and his life on the run.

``I tell those movie producers that that guy in The Fugitive has nothing on me because my story is real. You know, if they ever make a movie, I think Johnny Depp should play me. He looks like me when I was younger, really. Don't you think?''

It's all a little overwhelming for the former ship engine mechanic who arrived in Miami at age 26 during the Mariel boatlift.

Two years later, police charged him with the sexual assault of a Stock Island woman after she pointed him out on the street as the man who had just attacked her in her bed. In 1983, a jury convicted him based on the victim's id. He escaped two years later and ran for a decade before he was caught and sent back to prison. In 2003 he saw a television show about the Innocence Project and asked them for help.

He knew he'd get out one day, but said he never expected all the interest in his story. He says he can be shy sometimes, but he does enjoy the attention being paid to his prison break. The usually humble Boquete has a bit of a swagger about his resourcefulness in busting out, an adventure that included a dangerous encounter with an alligator in a canal and a long trek through swamplands. He never really felt free, but at least he wasn't in prison, and he's proud he was able to stay out for so long.
• • •
He ended up working for Hill after she heard his radio interview in August. She called his attorney Hal Schuhmacher, an old friend.

''Is there anything we can do to help him?'' asked Hill. When she heard Boquete was starting his new life living in a cramped public housing apartment with his brother and sister-in-law, his niece, her husband and their three children, she offered him the empty bungalow.

Boquete's reaction to the ceramic mug the first time she met him instantly melted through her feisty wise-cracking tough-talking outer layer.

''I was amazed that he wasn't bitter. He just wanted to work and fish,'' she said. The two have become fast friends.

Following Hill and Nardone's lead, many in Marathon rallied around Boquete. He walked out of Krome only with the clothes on his back, an extra pair of shoes and a Bible. He didn't even have ID -- during his first few days of freedom he carried around a newspaper with his photograph on the front page so he could explain to people who he was.

The staff in their three real estate offices pitched in, donating two pick up trucks of pots, pans, dishes, linens and lace curtains to help furnish his place. A local merchant donated a bed. An optometrist made him a set of stylish and expensive rimless glasses for cost. Others bought him clothes.

''People here have taken to him,'' said Schuhmacher, the local attorney who worked with the New York-based Innocence Project to free Boquete. ``He's sort of become a semi-celebrity.''
• • •
It's a warm December afternoon and Boquete is planting shrubs at Hill and Nardone's one-acre waterfront estate. He relishes working outside, with the Atlantic Ocean as his companion. The view, however, is a constant reminder of the one thing about his freedom that upsets him. He's not allowed to ride in a boat.

Even though the sexual assault conviction was cleared, he pleaded guilty in Miami-Dade to burglary and dealing in stolen property under an alias while he was on the run. He served six months in a Miami-Dade jail for the third-degree felonies.

Those convictions triggered deportation proceedings after he was freed from prison in May. His lawyers struck a deal with federal officials to get him released from Krome and defer the deportation hearing. But he had to agree to a number of conditions, including not leaving Florida and not getting on a boat.

''It hurts me,'' he said. ``I appreciate ICE deferring deportation orders. But I wish they would let me get on a boat.''

There are no restrictions on riding his bike, his main mode of transportation.

In prison, Boquete said, he would have a recurring nightmare. He was in Cuba, running barefoot through the countryside.

'All these people kept passing me by on their bicycles. I couldn't keep up with them. And in the dream I would think `I should have brought a bicycle.' Now, I'm so happy to finally have my bike.''

The 52-year-old is wearing cargo pants that fit loosely around his 28-inch waist and a tank top T-shirt that shows off his well-defined upper arms as he rakes pebbles to fill in between the plants.

``I'm a little man, but I'm strong. I kept my body in shape in prison. My face got old, though.''
He says he really saw his face for the first time in more than a decade in May, at the Marathon courthouse the day a judge overturned his sexual assault conviction.

''In prison, you only have those little steel mirrors, so I never got a good look,'' he said. His reflection in a courthouse bathroom mirror stunned him.

'I was standing there talking to myself in that mirror: "Oh my God, look at me.' But that's OK.''
• • •
After work Boquete makes a quick stop at his bungalow to clean up before dinner. A small string of Christmas lights hang from the awning. He put them up before Thanksgiving.

'Ms. Morgan, she said to me `Orlando, it's too early for Christmas lights.' Not for me. It's not too early.''

He showers and then it's off to his niece Danay Rodriguez's house.

She's been his champion for years, the one in the family who regularly wrote to him in prison. She formed her bond with him while he was on the run and would visit.

Her three children rush to the door to greet him. ''Tio, Tio,'' they yell. Allan, the 2-year-old, wraps his arms around Boquete's leg.

''That makes me feel good that an innocent child love me so much,'' he said.
Rodriguez, 23, smiles.

``He's finally home for Christmas and that's just awesome.''

They banter about Christmas gifts and how they'll spend the holiday.

''You should have seen him at Thanksgiving. He danced like a crazy man with his friend he brought,'' Rodriguez said.

A girlfriend?

''No. No,'' Boquete said.

''Uh, for him to get a girlfriend, I have to approve,'' Rodriguez said.

``I don't need girlfriends right now. I need lady friends. And family and all the wonderful people who are helping me get to my dreams.''

Man Sues New Jersey for Wrongful Conviction

2006-12-19T13:29:00.001-05:00

This article ran in the Trentonian on December 17, 2006.

An Innocent Man: Browns Mills man sues New Jersey over wrongful conviction
12/17/2006

By RICK MURRAY
Journal Register News Service

A gruesome rape-murder nearly 20 years ago led to the wrongful conviction of a Browns Mills man for felony murder.

And now a prominent Moorestown attorney is suing the state, seeking financial compensation for the exonerated prisoner, who languished almost 18 years behind bars. Under New Jersey law, the award could amount to $20,000 for each year of incarceration.

The suit on behalf of Larry Leon Peterson, 54, involves the first murder case in New Jersey ever to be overturned primarily because of DNA evidence. It is the 180th such case nationwide, according to the Innocence Project, the team of lawyers that fought for Peterson’s ultimate exoneration in March of this year.

"Society owes Larry Peterson a lot," said William H. Buckman, an attorney noted for both criminal and civil rights litigation, who filed the civil claim on Peterson’s behalf last week in Burlington County Superior Court.

Buckman said the complaint names as defendant the state Department of Treasury, because that agency holds the state’s purse strings. But Buckman said he may also pursue civil action against the Burlington County detectives, who initially gathered evidence in the Peterson case.

"The case was not dismissed simply because the DNA showed Peterson was innocent," Buckman said. "Many witnesses against him gave false testimony, some of it because of coercion by original detectives."

Peterson is now working at a minimum wage job, unable to find better employment because of his prison background, according to Buckman.

Meanwhile, Jack Smith, spokesperson for the Burlington County Prosecutor’s Office, declined to comment on the suit. However, Smith did say the nearly 20-year-old murder case is still "open," which is to say that, one way or the other, the killer is still out there.

The Peterson case began on the morning of Aug. 24, 1987, when a woman walking her dog on a wooded path in Browns Mills happened upon the partially naked body of 25-year-old Jacqueline Harrison. Investigators soon determined the victim had been manually strangled and sexually assaulted.The investigation also soon indicated that the body had been mutilated, with a stick left in the victim’s mouth and another inserted in her genital area.

Harrison’s best friend, as well as a former boyfriend, reported afterward that they had seen Peterson, a neighbor, with what appeared fresh "fingernail" scratches on his arms. Upon hearing of the allegations, the record shows Peterson voluntarily turned himself in to authoritiesPeterson denied committing the crime, noting he had an alibi for the timeline in which the slaying allegedly occurred.

But investigators were also talking to three other area men, each of whom claimed to have heard Peterson confess to the rape/murder, while the four men car-pooled to work on a day in the immediate aftermath of the crime.

"Two jailhouse informants also testified at trial that they had heard Peterson admit that he had killed the victim," according to a case summary issued by the Innocence Project, one of whose founders is attorney Barry Scheck, famous for his DNA work in the O.J. Simpson case.

Ultimately, the most incriminating evidence came compliments of the New Jersey State Police crime lab, which microscopically analyzed three loose pubic hairs found on the victim. The lab determined the hairs matched samples taken from the defendant. Additionally, state forensic specialists testified Peterson’s pubic hair had been found on a stick near the crime scene.

Investigators learned that the victim had performed sex acts with two other men in consensual arrangements on the same fateful night prior to her murder, but forensic tests found no matches between the DNA of those two partners and any recovered from the crime scene.Tests on sperm and seminal fluid taken from the body, however, proved inconclusive at the time.

Meanwhile, Peterson testified on his own behalf, and several witnesses corroborated his alibi. Records uncovered by investigators also showed that Peterson did not go to work on the day the three men from the carpool said he confessed.

Nonetheless, in March 1989, a Superior Court jury in Mount Holly found Peterson guilty of felony murder and aggravated sexual assault. The judge sentenced him to life in prison, plus 20 years.

Unknown MalePeterson didn’t begin seeking redress through DNA testing until the early 1990s. By 1995, the Innocence Project took his case, ultimately winning a motion to authorize the Serological Research Institute (SERI) to undertake mitochondrial and other DNA tests on the hairs and fluids recovered from the victim and crime scene."

Although the New Jersey State Police Laboratory had reported that there was no semen in the victim’s rape kit, SERI identified sperm on her oral, vaginal and anal swabs," notes the Innocence Project summary. "Two different male profiles were found.

"One of the profiles matched one of the victim’s consensual lovers. The other profile belonged to an unknown male."The unknown male was found on all of the swabs in her rape kit," notes the Innocence Project. "Significantly, the unknown male profile was not found on the victim’s underwear or jeans, indicating that she did not put these items of clothing back on before she was killed, consistent with the fact she was found partially nude."

Most significantly, scrapings from the victim’s fingernails underwent tests that showed they did not match the DNA of Peterson, but rather that of the same unknown male profiled in earlier forensic testing.

Peterson’s conviction was thus vacated by July of 2005 but the Burlington County Prosecutor’s office decided to re-try him, despite the loss of the forensic evidence. Peterson’s family and friends struggled to raise the $20,000 for the defendant’s release on bail.

Then, in late May of this year, prosecutors finally dropped the case against Peterson and Superior Court Judge Thomas S, Smith signed the order dismissing all charges."I was emotional, overwhelmed," Peterson was quoted as saying at the time. "I have proclaimed my innocence for so long, and now others will know I’m innocent as well."
©The Trentonian 2006

Victim of 34 Minute Execution Claimed Innocence

2006-12-18T11:51:00.000-05:00

This article, written by former Innocence Institute grad assistant Nate Crabbe, appeared in the Gainesville Sun Times on December 14, 2006.

Inmate takes 34 minutes to die

By NATHAN CRABBE
Sun staff writer
December 14. 2006 6:01AM
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Angel Nieves Diaz shuddered and appeared to grimace in pain during his execution Wednesday, requiring two rounds of lethal drugs before dying.Diaz, 55, was declared dead 34 minutes after the process started, about 20 minutes longer than recent executions have taken.

His appeals claimed lethal injection constituted cruel and unusual punishment, and his execution seems likely to fuel the debate over the process.

The Puerto Rican native was sentenced to death for the murder of a Miami topless club manager 27 years ago this month. He professed his innocence in his last statement, which was spoken in Spanish and translated by a prison official.

"The state of Florida is killing an innocent person. The state of Florida is committing a crime because I am innocent," he said.

Observers couldn't recall another execution that required two rounds of drugs since lethal injection was instituted in 2000. Inmates are typically given three drugs in the process: the first to render unconsciousness, the second to cause paralysis and the third to stop the heart.

Department of Corrections spokeswoman Gretl Plessinger said Diaz had liver disease, slowing the effectiveness of the drugs and requiring the second round. Plessinger said Diaz didn't feel pain during the procedure.

"Once the first set of drugs was introduced, he did not recover," she said.But Diaz's family members and death-penalty advocates assembled outside Florida State Prison questioned her explanation. Mark Elliott of Floridians for Alternatives to the Death Penalty said Diaz would have felt intense pain if he was conscious when the third drug was administered."The sensation is supposed to be like being burned alive from the inside out," he said.

Cousin Maria Otero of Orlando said the family wasn't aware Diaz had liver disease and demanded more facts about what happened. One of 16 family members who spent 45 minutes with Diaz earlier in the day, she said he was calm and professed his innocence.

"He asked for us not to lose the faith, to try to be united," she said.

Family members aren't allowed to witness executions, so they assembled with protesters in the pasture across the street from the prison. Relatives cried out in grief during the protests, and two passed out from what a relative said was anxiety.

The U.S. Supreme Court rejected his last-ditch appeals in the hour before the execution. Diaz claimed he was not the triggerman in the killing of Joseph Nagy during a robbery at the Velvet Swing Lounge.

He was convicted largely on the testimony of a jailhouse informant who claimed the Spanish-speaking Diaz mimed a confession. The informant later said he lied.While a co-defendant cut a deal with prosecutors and was given life in prison, Diaz acted as his own attorney at trial and was sentenced to death.

Diaz turned down requests for a final meal and was served the day's standard prison meal of turkey tacos, which he turned down. He later met with prison chaplain Dale Recinella and received last rites from Father Jose Maniyangat.

He asked that his body be sent to Puerto Rico for funeral services. Puerto Rican Gov. Acevedo Vila and other officials had asked Gov. Jeb Bush to stop the execution. The U.S. territory abolished the death penalty in 1929.

The execution was the fourth this year, the most since 2000 even with delays caused by challenges to the lethal injection method. Convicted cop killer Clarence Hill stopped his execution in January with such a challenge, only to be executed in September when further appeals were not allowed.

All four inmates executed this year have challenged the lethal injection procedure as cruel and unusual punishment, claiming inmates can wake and feel pain during the process. The state has argued the process is designed to ensure inmates are unconscious after the first drug is administered.

But Diaz's execution would appear to contradict that claim.After making his last statement at 6 p.m., Diaz appeared to wince and mouth words. Over the course of 10 minutes, he grimaced and shuddered at several junctures. He then moved his mouth in a way that made it appear he was gasping for air. Diaz stopped moving at 6:24, and was declared dead by prison officials 10 minutes later.

Nathan Crabbe can be reached at 352-338-3176 or crabben@gvillesun.com.

Conviction Overturned in 1997 Rape & Slaying

2006-12-01T11:47:00.000-05:00

This article appeared in the Washington Post on December 1, 2006:

Conviction Overturned In 1997 Rape, Slaying
Judge Cites Failure to Contest Confession

By Tom Jackman
Washington Post Staff Writer

A Norfolk judge has ruled that a sailor convicted in a 1997 rape and murder should be retried or released because his attorney did not attempt to have the sailor's confession thrown out.

Derek E. Tice, 36, is one of the convicted "Norfolk 4" sailors, who have launched a campaign to establish their innocence in the attack on Navy wife Michelle Moore-Bosko. Three of the four -- Tice, Danial Williams, 34, and Joseph Dick, 30 -- received life sentences for murder. Williams and Dick pleaded guilty. A fourth sailor, Eric Wilson, 29, was acquitted of murder but convicted of rape, served eight years, and has been released.

At one point, Norfolk authorities charged seven sailors in Moore-Bosko's rape and death, which occurred July 8, 1997, while her husband was at sea. But the defendants' DNA did not match DNA from the scene; their statements contained inaccuracies; and the Norfolk apartment yielded no evidence of a gang rape.

Then, an eighth man, Omar Ballard, confessed and said he had acted alone. And his DNA did match. Prosecutors dismissed charges against three of the sailors and went to trial against Tice and Wilson.

Last year, lawyers agreed to take on the cases of Tice, Williams and Dick at the request of the Innocence Project, which works on behalf of inmates the group believes were wrongly convicted. The group filed clemency petitions with the governor late last year, contending in part that the men were coerced into falsely confessing. The petitions are pending.

But Deborah L. Boardman, a Washington attorney for Tice, also filed a civil habeas corpus suit alleging that Tice was being illegally imprisoned. In particular, she asked how Norfolk homicide detectives obtained Tice's incriminating statement and whether Tice's attorney did enough to suppress it. Such suits rarely succeed.

After being warned against self-incrimination, Tice agreed to talk to two detectives. Then he was turned over to another detective, Randy Crank. According to Crank's notes, Tice told Crank that he had decided "not to say any more; that he might decide to after he talks with a lawyer or spends some time alone thinking about it."

Crank did not question Tice again. But the first two detectives resumed questioning, and Crank apparently did not tell them of Tice's comment, according to Norfolk Circuit Court Judge Everett A. Martin Jr.'s ruling.

Tice's "right to silence was not scrupulously honored," Martin wrote.

Tice was represented at trial by James O. Broccoletti and Jeffrey R. Russell of Norfolk, experienced criminal defense lawyers. Broccoletti testified at a hearing in September that "there must have been some reason I didn't file" a suppression motion, but he couldn't remember why. "I find," Martin wrote, "there is a reasonable probability the jury would have acquitted [Tice] if his confession had not been admitted into evidence." He concluded that Tice's right to competent, reasonable assistance of counsel had been violated.

Tice's father, Larry Tice of Clayton, N.C., said the ruling "just does to prove what I've known for years, that these men are innocent."

Assistant Attorney General Stephen R. McCullough said the state would appeal to the state Supreme Court. If the state loses on appeal, the Norfolk commonwealth's attorney would have to decide whether to retry the case.

Moore-Bosko's parents, Carol and John Moore of Pittsburgh, said they were "profoundly disappointed" by the ruling and believe that the evidence is clear that Tice raped and murdered their daughter.

Why the innocent confess

2006-11-29T16:12:00.000-05:00

This editorial appeared in the Los Angeles Times:

Why the innocent confess

By Alan Hirsch, ALAN HIRSCH, a visiting professor of legal studies at Williams College, created and operates .

In the penalty phase of his trial, Zacarias Moussaoui declared that he planned to fly a fifth hijacked airplane into the White House on Sept. 11, 2001. No independent evidence suggests that such a plan ever existed. It seems quite possible that Moussaoui, who appears to be deranged in one way or another and clearly enjoys taunting his captors, fabricated it. Nevertheless, many commentators instantly declared that Moussaoui had sealed his fate — death — with this confession.

They may well be right. That's because, in our legal system, confessions are among the most persuasive kinds of evidence juries hear. Juries — like all of us — find it extremely difficult to believe that anyone would confess to a crime he didn't commit, or in this case, that he didn't plan to commit.

It's a notion that requires scrutiny. The commentators in the Moussaoui case, and the jury too, are presumably unaware that more than 200 people claimed to have kidnapped the Lindbergh baby. Desire for notoriety is among the many causes of false confessions. In fact, a surprising number of innocent people confess to crimes they did not commit.Thanks in large part to DNA testing, we have learned that innocent people are convicted with greater frequency than anyone imagined. Since 1989, DNA testing has exonerated 175 people convicted of crimes. Intriguingly, one-fifth of them had confessed (among them, the five teenagers convicted of assaulting the "Central Park jogger").

Spurred by the DNA exonerations, several scholars have sought to show the prevalence of false confessions. Professors Richard Leo and Steven Drizin recently published a study in the North Carolina Law Review documenting 125 false confessions. Although it is impossible to estimate the total number or percentage of false confessions, experts believe that the known cases represent only the tip of the iceberg.

Many social scientists explain that a major cause of false confessions is interrogation tactics that leave an innocent suspect feeling there is no escape except an admission of guilt. Courts condone these tactics, apart from extreme cases. Interrogators exaggerate or fabricate evidence, telling a murder suspect, for example, that he was identified as the culprit in the victim's dying declaration. They threaten him with severe punishment unless he confesses, or they suggest mitigating circumstances and hint at lenient treatment, if only he confesses. Throughout the interrogation, they communicate unbreakable certainty of his guilt.

In the face of all this, at some point many suspects find the situation hopeless and conclude that they are simply better off confessing. That decision may be foolish, but it is not irrational. It reflects a conscious or unconscious cost-benefit analysis — albeit an analysis skewed by fear and fatigue.

But aren't the interrogators obligated to inform the suspect of his rights to counsel and to remain silent? Yes, but many false confessors don't fully understand their Miranda rights. Moreover, the innocent suspect may feel no need to exercise these rights, believing he has nothing to hide. Paradoxically, his innocence only makes things worse. His aggressive denials of guilt cause interrogators to more insistently assert his guilt, triggering a Kafka-esque cycle of deepening despair.

Experts have identified many additional explanations for false confessions. Some innocent suspects actually come to believe they committed the crime. Others may confess to protect a friend or loved one, or to expiate guilt over other improper actions.

Once the confession is made, people assume it to be true because of the incorrect intuition that an innocent person would not confess, absent extreme coercion such as torture. When defendants who ultimately turned out to be false confessors pleaded not guilty and went to trial — aggressively recanting the confession and working to contradict it — studies show that conviction rates were high, ranging 73% to 81%.

The power of confessions also is on depressing display among prosecutors. After DNA exonerations of false confessors, prosecutors generally refuse to admit error, instead coming up with a new theory of the case (for example, that the confessor had an accomplice who physically committed the crime) even if no evidence supports it.

The reality is that confessions should be regarded as one piece of evidence only, and analyzed to determine, among other things, their consistency with other evidence and whether they disclose details of the crime unknown to the public. Instead, the authorities commonly regard a confession as a guarantee of guilt that forecloses the need for further inquiry.

Which brings us back to Moussaoui. It would be foolish to make him the poster child for false confessions — his admissions of involvement with Al Qaeda have been verified; he almost certainly trained to commit terrorist acts, and he is unrepentant, to put it mildly. But if the jury sentences him to death, let's hope it is based on hard evidence of what he actually did rather than on a dubious, unsupported confession.

Few will shed tears for Moussaoui, but the deeply engrained habit of taking confessions at face value is one we desperately need to break.

Ex-inmate's malpractice suit is settled with noted lawyers

2006-11-27T15:46:00.000-05:00

This article appeared in the New York Times on November 21, 2006:

Ex-Inmate’s Malpractice Suit Is Settled With Noted Lawyers

By WILLIAM K. RASHBAUM

Barry C. Scheck and Peter J. Neufeld, founders of a legal clinic that pioneered the use of DNA technology to help free innocent prisoners, have agreed to pay $900,000 to a man wrongly convicted of rape who sued them for malpractice, lawyers on both sides of the case said yesterday.

The man, Lee Long, had sued Mr. Scheck; Mr. Neufeld; another lawyer, Nick Joel Brustin; and the law firm of Cochran, Scheck & Neufeld, charging that they missed a deadline for filing his wrongful-imprisonment claim in state court after his rape conviction had been overturned.
Mr. Long, 46, served six years in state prison after a Queens jury convicted him of raping a woman in her car in Jackson Heights in 1994. Mr. Long, who had consistently maintained his innocence, was walking home eating strawberry ice cream when he was arrested and charged in the attack.

He was freed in June 2000 after an investigation by the Queens Legal Aid Society and the office of District Attorney Richard A. Brown uncovered evidence that showed that he did not commit the crime.

Mr. Long hired Mr. Scheck and Mr. Neufeld, founders of the Innocence Project at the Benjamin N. Cardozo School of Law, and the law firm to bring a wrongful-imprisonment lawsuit against New York State. It was filed in 2002.

In his malpractice action, filed in United States District Court in Brooklyn in June 2005 by his new lawyer, Joel Berger, Mr. Long claimed that the lawsuit against the state was filed after the two-year deadline for such claims had passed.

The New York State Court of Claims threw out Mr. Long’s lawsuit in 2003, saying it had been filed improperly and too late. He appealed to the Appellate Division of State Supreme Court, Second Department; it declined to overturn the lower court, but cited other reasons.

The state’s highest court, the Court of Appeals, concluded that he had not missed the deadline in the Court of Claims. But it ruled that the case had been improperly filed because Mr. Scheck had sworn to the truth of the lawsuit’s complaint, as opposed to Mr. Long, as is required for such suits filed in the Court of Claims.

The $900,000 settlement was announced in a single-page news release issued jointly by Mr. Berger, the lawyer for Mr. Long; and Ronald C. Minkoff, who represented the Cochran law firm, Mr. Scheck, Mr. Neufeld and Mr. Brustin. The release also said that a civil rights lawsuit Mr. Long filed against New York City had been settled for $50,000.

The news release said both sides had agreed to make no other public statement about the settlement. Neither Mr. Berger nor Mr. Minkoff would comment yesterday.

Mr. Scheck and Mr. Neufeld, who have won praise for their work on behalf of destitute clients, have represented or assisted in the cases of two-thirds of the 187 post-conviction DNA exonerations that have been obtained by the Innocence Project nationwide.

2006-11-27T15:41:00.000-05:00

Court Halts Planned Execution

2006-11-15T16:07:00.000-05:00

This article appeared on the WashingtonPost.com on November 14, 2006:

Court Halts Planned Execution in Texas

By MICHAEL GRACZYK
The Associated Press
LIVINGSTON, Texas -- A condemned inmate set to die this week for slaying a convenience store owner in 1997 won a reprieve from the state's highest criminal court, which ordered a hearing on his claim of prosecutor misconduct.

Charles Anthony Nealy, 42, had faced lethal injection Thursday evening. Defense lawyers argued the Dallas man was innocent and that a nephew of Nealy testified against him because of pressure from prosecutors.

In this photo released by the Texas Department of Criminal Justice, death row inmate Charles Nealy is shown. Nealy has won a reprieve, halting his execution scheduled for Thursday, Nov. 16, 2006. Nealy, 42, faced lethal injection for the 1997 slaying of a Dallas convenience store owner, one of two men gunned down during a robbery of the store. A state appeals court delayed the execution after a witness from his 1998 capital murder trial recanted his testimony and said a prosecutor had pressured and intimidated him before the trial.

The postponement by the Texas Court of Criminal Appeals, issued late Monday, leaves the execution tally for 2006 in the nation's busiest capital punishment state at 24, about average for Texas over the past decade. No other executions are scheduled until early next year.

Store owner Jiten Bhakta, 25, was robbed and killed by a shotgun at his Expressway Mart just south of downtown Dallas. Also killed was an employee, Vijay Patel, 25, who was shot by another man.

Bhakta's brother, also at the store, identified the man with the shotgun as Charles Nealy, and his nephew Claude Nealy as the second gunman. Claude Nealy received a life sentence for Patel's slaying.

In its ruling, the Court of Criminal Appeals denied the actual innocence claim but ordered the state district court in Dallas to hold a hearing on the claim of prosecutor misconduct.

The robbery, but not the shootings, was recorded on a poor quality surveillance tape that made it difficult to positively identify the gunmen. Memphis Nealy, Claude's brother, had identified his brother and uncle as the robbers but he later recanted and said prosecutors bullied him.

"That's absurd," George West, a former Dallas County assistant district attorney who prosecuted the case, told The Dallas Morning News. "He's trying to help his uncle."

Charles Nealy said recently from death row at a prison outside Livingston that he was in Oklahoma at the time.

The robbers fled with about $4,000 in a briefcase, some other cash from the register, a bottle of wine and some cold beer.

Man Freed After 14 Years Sues NYC

2006-11-14T15:45:00.000-05:00

This article appeared in the New York Times on November 14, 2006:

Man Freed After 14 Years Sues NYC

By THE ASSOCIATED PRESS

NEW YORK (AP) -- A man whose murder conviction was overturned after he spent 14 years in prison has filed a $50 million lawsuit against the city, claiming authorities mishandled dozens of cases and failed to train and supervise prosecutors.

The lawsuit filed Monday in federal court for Olmado Hidalgo seeks damages for false arrest, malicious prosecution and false imprisonment.

Hidalgo was freed last year after a judge threw out his conviction, saying there was ''powerful'' evidence that someone else committed the murder of nightclub bouncer Marcus Peterson in 1990.

The lawsuit claims the lead police investigator and the case prosecutor both ignored evidence that contradicted their theory of the crime, and that prosecutors did not keep records that might have proven Hidalgo's innocence, The New York Times reported in Tuesday's editions.
The lawsuit cites 27 other cases that it says reflect similar misconduct, and it suggests some problems were due to insufficient training, supervision and discipline of prosecutors.

''There seems to be a type of pattern,'' said Irving Cohen, Hidalgo's lawyer.

A spokeswoman for Manhattan District Attorney Robert Morgenthau declined to comment on the lawsuit Monday, saying prosecutors had not yet seen the court papers. A call to the office early Tuesday was not immediately returned.

Paul J. Browne, deputy commissioner of the Police Department, said he would not comment because of the pending litigation.

Hidalgo, now in his 40s, has returned to his native Dominican Republic.

Wrongful conviction amounts to $450,000

2006-11-13T14:47:00.000-05:00

This article appeared on the HoustonChronicle.com:

Wrongful conviction amounts to $450,000

By RENÉE C. LEE

Arthur Mumphrey, who spent 18 years in prison on a wrongful conviction, is keeping his day job as steel foreman even though he will soon be nearly a half-million dollars richer.

Mumphrey, released from prison Jan. 26 after new DNA test results cleared his name, has been awarded $452,082 before taxes in restitution from the state.

He recently got his first lump sum of $226,041 and will get another lump sum in the same amount in August 2007, according to the Texas Comptroller's Office.

He will have to report the compensation to the Internal Revenue Service, and tax officials will decide if and how much he will pay in taxes, said a comptroller official.

Mumphrey, who did not respond to a request for an interview, has been mum about his compensation. Not even his wife, Angela, or his attorney, Eric Davis, know what he plans to do with his money.

''That's his business," said Angela Mumphrey, who described her husband as a quiet ''homebody" since his release nine months ago.

A jury convicted Mumphrey of sexually assaulting a 13-year-old girl in a wooded area of Conroe on Feb. 28, 1986, partly based on blood tests that could not rule him out as one of the two attackers.

A Montgomery County judge later ordered Mumphrey released from prison based on new test results using technology not available in the 1980s.
The tests proved he was not responsible for the attack.

Gov. Rick Perry signed a pardon based on innocence for Mumphrey on March 17, expunging the conviction from his record and making him eligible for compensation.

Busy on the job

Mumphrey received his first payment in August, but the windfall hasn't changed his priorities.

The Conroe native still spends most of his time working. His first job after his release was at a Houston glass company. The past seven months he has worked at a Houston steel company, where he was promoted to foreman last month, his wife said.

When he's not working 14 to 16 hours, six days a week, Mumphrey relaxes at his Houston home, watching football and basketball.

"On Sundays, he plays dominoes with my dad, and he talks on the phone with his sisters every weekend," Angela Mumphrey said.

Davis, who reopened the case in 2005, described Mumphrey as ''hardworking and industrious."

"He's a good success story in making the transition" from prison to the real world, Davis said.

Mumphrey gained his freedom thanks to the persistence of Davis, who spent months tracking down the original DNA in the case.

Davis found the evidence at the Texas Department of Public Safety's Houston crime lab, but when prosecutors inquired about the DNA, lab officials said they did not have it.

Stunned by the reversal, Davis kept digging until he reached a lab supervisor who found the samples stored in a refrigerator.

Prosecutors now think Mumphrey's younger brother, Charles, might be one of the attackers in the case.

Statute of limitations is up

Just days before Arthur Mumphrey was released, Charles Mumphrey, 35, confessed to an investigator for the Montgomery County District Attorney's Office during a jail interview, said Assistant District Attorney Marc Brumburger, who handles post-conviction and appeal cases.

No criminal charges will be filed against Charles Mumphrey because the statute of limitations has expired.

But his DNA has been submitted to the state crime lab to be compared with evidence from the case.

Brumburger said he has not received any information about the evidence since submitting it about nine months ago.

Charles Mumphrey, like his brother, is now free. He completed his one-year sentence for unauthorized use of a motor vehicle and was released April 21, according to Texas Department of Criminal Justice records.

He could not be reached for comment.

renee.lee@chron.com

Texas Man Wins Wrongful Conviction Suit

2006-11-13T12:34:00.000-05:00

Wrongful conviction amounts to $450,000
By RENÉE C. LEE

Arthur Mumphrey, who spent 18 years in prison on a wrongful conviction, is keeping his day job as steel foreman even though he will soon be nearly a half-million dollars richer.

Mumphrey, released from prison Jan. 26 after new DNA test results cleared his name, has been awarded $452,082 before taxes in restitution from the state.

He recently got his first lump sum of $226,041 and will get another lump sum in the same amount in August 2007, according to the Texas Comptroller's Office.

He will have to report the compensation to the Internal Revenue Service, and tax officials will decide if and how much he will pay in taxes, said a comptroller official.

Mumphrey, who did not respond to a request for an interview, has been mum about his compensation. Not even his wife, Angela, or his attorney, Eric Davis, know what he plans to do with his money.

''That's his business," said Angela Mumphrey, who described her husband as a quiet ''homebody" since his release nine months ago.

A jury convicted Mumphrey of sexually assaulting a 13-year-old girl in a wooded area of Conroe on Feb. 28, 1986, partly based on blood tests that could not rule him out as one of the two attackers.

A Montgomery County judge later ordered Mumphrey released from prison based on new test results using technology not available in the 1980s.
The tests proved he was not responsible for the attack.

Gov. Rick Perry signed a pardon based on innocence for Mumphrey on March 17, expunging the conviction from his record and making him eligible for compensation.

Busy on the job

Mumphrey received his first payment in August, but the windfall hasn't changed his priorities.

The Conroe native still spends most of his time working. His first job after his release was at a Houston glass company. The past seven months he has worked at a Houston steel company, where he was promoted to foreman last month, his wife said.

When he's not working 14 to 16 hours, six days a week, Mumphrey relaxes at his Houston home, watching football and basketball.

"On Sundays, he plays dominoes with my dad, and he talks on the phone with his sisters every weekend," Angela Mumphrey said.

Davis, who reopened the case in 2005, described Mumphrey as ''hardworking and industrious."

"He's a good success story in making the transition" from prison to the real world, Davis said.

Mumphrey gained his freedom thanks to the persistence of Davis, who spent months tracking down the original DNA in the case.

Davis found the evidence at the Texas Department of Public Safety's Houston crime lab, but when prosecutors inquired about the DNA, lab officials said they did not have it.

Stunned by the reversal, Davis kept digging until he reached a lab supervisor who found the samples stored in a refrigerator.

Prosecutors now think Mumphrey's younger brother, Charles, might be one of the attackers in the case.

Statute of limitations is up

Just days before Arthur Mumphrey was released, Charles Mumphrey, 35, confessed to an investigator for the Montgomery County District Attorney's Office during a jail interview, said Assistant District Attorney Marc Brumburger, who handles post-conviction and appeal cases.

No criminal charges will be filed against Charles Mumphrey because the statute of limitations has expired.

But his DNA has been submitted to the state crime lab to be compared with evidence from the case.

Brumburger said he has not received any information about the evidence since submitting it about nine months ago.

Charles Mumphrey, like his brother, is now free. He completed his one-year sentence for unauthorized use of a motor vehicle and was released April 21, according to Texas Department of Criminal Justice records.

He could not be reached for comment.

renee.lee@chron.com

Woman's husband may get out of prison

2006-11-08T16:50:00.000-05:00

This article appeared in Washington state's South Bend Tribune on October 30, 2006:

South Bend woman's husband may get out of prison after witness admits lying

MARTI GOODLAD HELINE
Tribune Staff Writer

Rose Marie Kaseweter has been waiting for 10 years.Waiting, hoping and praying that her husband will be released from prison and come home to her and their daughter in South Bend.But her longest wait may be from now to Thanksgiving.

That is when the Bremen High School teacher expects to learn if a judge may free her husband based on new evidence in his case. The hearing was last week in Vancouver, Wash.

The judge heard testimony from a man who said he lied to save himself from a long prison sentence when he claimed Bob Kaseweter was behind an attempted abduction and shooting in 1992.

Bob Kaseweter has always said he was not involved in the 1992 incident for which he was convicted. He was accused of conspiring to kidnap a woman and a man, who was wounded in the hand as the couple drove away.

"It went wonderfully," Rose Marie Kaseweter said in a telephone interview of the hearing she'd been waiting for since 2003."

He said he wanted to clear his conscience," she said of James Shirk, the key witness.

She said Shirk told law students working on the case from the University of Washington's Innocence Project that he did not realize until 2003 he had put an innocent person behind bars because of his brother's lies.

It was the work of law professor and Innocence Project Director Jacqueline McMurtrie and her students that took Bob Kaseweter's case this far, Rose Marie Kaseweter said.

For the hearing, James Shirk was flown in with his wife from Twin Falls, Idaho. He admitted he had implicated Bob Kaseweter to avoid a 25-year-sentence, according to Rose Marie Kaseweter. Shirk served only nine months in jail.Shirk's brother, Donovan, is still serving a prison sentence in Washington for his role in the 1992 crimes.

Donovan Shirk, who worked for Kaseweter in a Vancouver auto parts store, at first implicated his boss, but since has said from prison that Kaseweter was not involved in the case, Rose Marie said.She and 11-year-old Mikhala were on their 26th trip out west since their husband and father began his prison term in June 1996, after an unsuccessful appeal.

Rose Marie and Bob met in the summer of 1992 on a mission trip to Mexico and continued their romance long distance. After Bob was arrested, tried and convicted in 1993, the couple married while he was free on bond during the appeal.

Last week was the first time Mikhala could remember that she had ever seen her father with a clean-shaven face, according to her mother, and somewhere other than in a prison.

Going to court and seeing her father without "face fuzz," as she usually does during semi-annual trips to Washington at Christmas vacation and in July, "made a huge impression," Rose Marie said.

"The week has been exhausting but good," Rose Marie said from Portland, Ore., where she and her daughter stayed with one of Bob's brothers. Mother and daughter were to return Saturday to South Bend.

After hearing the testimony of James Shirk, his wife and two other character witnesses, the judge asked questions of her husband's public defender and McMurtrie, and even the prosecutor, Rose Marie said.

She said the district attorney told the judge that if the conviction is overturned, the prosecution has virtually no case left."I was thrilled to hear it," Rose Marie said.

The judge in Clark County took the matter under advisement for 30 days.

If the judge orders a new trial, her husband's lawyers will seek his immediate release if the district attorney does not plan to try it again, Rose Marie said.

She hopes both things happen soon. Otherwise, her husband must remain in prison four more years.After the Shirks testified, Rose Marie said that she thanked James' wife, "for being the good woman behind the man." Rose Marie said she shook James' hand.

"I told him we've forgiven him and had no ill feelings for him."

Reflecting two days later, she said. "I had to do it. It was cleansing. I had say it when I saw him. It was a powerful, emotional day."

Rose Marie and her daughter were bolstered at the hearing with the attendance of her brothers-in-law, a sister-in-law, two pastors and one of the pastor's wives.

Plus there were law students McMurtrie brought from the Innocence Project.

Rose Marie said she appreciates all the prayers and support her family has received through their churches and from friends and colleagues.

Staff writer Marti Goodlad Heline:mheline@sbtinfo.com(574) 235-6327

Comal to start long-delayed rape response program

2006-11-08T16:47:00.000-05:00

This article appeared in the San Antonio Express-News on October 26, 2006:

Comal to start long-delayed rape response program

Roger CroteauExpress-News Staff Writer

NEW BRAUNFELS — After years of delays, the final contracts and protocols have been signed to begin a Sexual Assault Response Team program at McKenna Memorial Hospital.
The breakthrough came Thursday after county officials and members of the nonprofit board pushing for the program expressed frustration at the slow pace of progress and prepared to run the program out of the Comal County Health Department instead of the hospital.

Until now, rape victims in Comal County have been sent to San Antonio to have the sexual assault examination done. The delay sometimes led to the loss of crucial evidence, officials said.
Sexual assault victims are not supposed to disrobe, urinate, bathe or smoke before the exam, which gathers evidence to help prosecute the case. And often victims simply did not have transportation or want to drive 45 miles, which left some rape cases without enough evidence to go to trial.

Nearby Seguin and San Marcos have had the programs for years, and supporters of starting the program in Comal County said the absence of a local program was an inexcusable hardship on rape victims.

Members of the team said the Sexual Assault Nurse Examiners were trained months ago, the equipment needed for the program was purchased, the room at the hospital made available and everything was ready to go. But they blamed McKenna Hospital officials for neglecting to work with them on the protocols and memorandum of understanding needed to get the program up and running.

Hospital officials committed to getting the program started in November 2004, predicting it would be a reality by spring 2005. But roadblocks, including insurance concerns and finding a room at the hospital that could be dedicated to the program, caused some of the delay, board members said.

McKenna did not send a representative to several meetings in a row of the board trying to set up the program, leading to more months of delays, they said.

"They quit going to our board meetings months ago," said board member Pat Keyes. "So we would be on hold and on hold and waiting and waiting. It's just been dragging their feet and there is no excuse for that."

County Commissioner Jan Kennady complained that hospital officials "haven't done a thing," and Commissioner Greg Parker said hospital officials "say all the right things at meetings, but then nothing happens."

County commissioners considered a motion to move forward without the hospital Thursday, but then voted 3-2 to give one more week to iron out a deal with the hospital.

Within an hour, Patty Toney, McKenna Hospital vice president of nursing, met with county officials and board members and came out with the contracts signed and the program ready to start.

"I'm very excited," Toney said. "It's a great moment. There was just a lot of work to be done on both sides. We're glad it's done and signed and we have a program."

Toney said there are a few "housekeeping duties" that should be ironed out by next Friday and then they will do a mock run-through to see if there are any other issues to work out before offering the exams at McKenna Hospital.

Again, DNA frees a convict

2006-11-08T16:40:00.001-05:00

This article appeared in the Dallas Morning News on October 30, 2006:

Again, DNA frees a convict
Activists demand to know why Dallas County near top in exonerations

By ROBERT THARP / The Dallas Morning News

DNA testing is unlocking prison doors for another wrongfully convicted Dallas man on Tuesday, bringing to 10 the number of felony exonerations in the county after such tests in the last five years.

After maintaining his innocence for more than 25 years, Larry Fuller, 58, is expected to be released from custody without any opposition from prosecutors after an afternoon hearing. He was convicted of aggravated rape in 1981 and sentenced to 50 years in prison based on a sexual assault victim's identification of him.

National leaders of the DNA exoneration movement are traveling to Dallas for the hearing and say they will demand that the county immediately investigate why the string of wrongful convictions occurred and ask area police departments to change their investigative techniques.
Lawyer Barry Scheck, co-director of the Innocence Project, compared the series of exonerations in Dallas County to an airport that has had multiple plane crashes. The county's rate of exonerations is among the highest nationwide, he said.

"When you've got 10 plane crashes in the last five years, you'd get an investigation," he said.
Mr. Fuller is the most recent man to be freed after petitioning to have microscopic physical evidence from his case tested using DNA analysis techniques that were not available at the time of his trial.

All but one of the 10 wrongful convictions took place in the 1980s, and most hinged on eyewitness testimony.

The case

Mr. Fuller, a Vietnam veteran, was 32 in April 1981 when he was arrested on a charge of sexually assaulting a 37-year-old woman inside her Oak Lawn apartment.

After his return from Vietnam, where he served as a helicopter gunner and was shot down several times, he had been convicted of robbery in 1972 and served three years in prison.
After his release from prison, Mr. Fuller attended Dallas Baptist University and Dallas Art Institute and was living less than a mile away with his girlfriend and her two young children when he was arrested in the rape.

The victim told police that she woke up before dawn with her attacker on top of her, threatening her with a butcher knife. When she tried to resist, the man cut her on the hand, neck and back.

The woman initially told police that she could not provide a detailed description of the man beyond a vague idea of his skin tone, race and height. The attack occurred about an hour before sunrise, and the only light in the room came from a window and the dial from a small clock radio.
Mr. Scheck said Dallas police investigators used flawed procedures when they asked the woman to examine a photo lineup to try to identify the attacker. About a week after the attack, a detective showed the woman photos of six men, including an image of Mr. Fuller.

The woman told police that Mr. Fuller's photo "looks a lot like the guy," but she was not positive. At that point, a detective wrote in a report that the case should be "suspended" unless new information surfaced, according to court files.

A detective returned a few days later with another photo lineup that included a more recent photo of Mr. Fuller with a beard. The woman identified Mr. Fuller's image but said she did not think her attacker had facial hair.

Mr. Scheck said the use of a second lineup after the victim failed to make a positive identification the first time was irresponsible.

"He was a victim of unreliable procedures," he said. "There may be other lessons from these cases, but there's one we already know about. We already know mistaken eyewitness identification is a problem."

Dallas police declined to comment specifically about Mr. Fuller's case. Assistant Chief Ron Waldrop, a longtime supervisor over major investigations, said that in general, a suspect's photo would not show up in a second lineup unless the person was at least tentatively identified in the first lineup.

"If we show someone a lineup and they do not make an ID, do we show them a second one with the same person? No. The person might see a common picture in two different lineups. I just wouldn't do it."

The trial

During Mr. Fuller's trial, the victim testified that she was certain he was the man who raped her.
In hours of questioning, a forensic scientist provided complicated and confusing testimony that ultimately could not rule out any male as a possible source of the semen recovered by investigators. And in closing arguments, according to the writ of habeas corpus seeking Mr. Fuller's immediate release, a prosecutor inaccurately summed up the scientific testimony by saying it placed Mr. Fuller among 20 percent of the male population that could have committed the crime.

Jurors deliberated 35 minutes before returning a guilty verdict. In the punishment phase of the trial, Mr. Fuller maintained his innocence and expressed disbelief that he had been convicted.
"I come here believing in the word of justice, justice with eyes, not justice that would be blind," he testified. "I felt that I would receive a fair trial, or I felt that justice would be done; and I felt that me being innocent, it could be proven. I just felt beyond all shadows of any doubt, I could be excluded from the matter."

A prosecutor then used Mr. Fuller's refusal to admit his guilt as proof that he could not be rehabilitated. "The first step to being rehabilitated is to admit that you have made a mistake and that you need help," the prosecutor argued. "He has not done that. He will not do that, apparently."

Former District Judge Marvin Blackburn Jr. sentenced Mr. Fuller to 50 years in prison.
Mr. Fuller maintained his innocence throughout his incarceration and after he was paroled in 1999. His parole was revoked and he was sent back to prison after a routine urinalysis found traces of drugs in his system.

The numbers

DNA exonerations have increased in the last five years as a result of a state law that gives Texas convicts the ability to petition the courts for DNA analysis.

Although there is no governmental agency that keeps an official compilation of exoneration cases, the Innocence Project has reported at least 185 nationwide.

Mr. Scheck said an Innocence Project analysis, aided by a Dallas Morning News story that identified some cases that were not on the Innocence Project's lists, places Dallas County among jurisdictions with the highest number of DNA exonerations.

Comparing lists is difficult because of reporting variations. But Mr. Scheck said the number of wrongful convictions in Dallas County is troubling.

"This is as high as any jurisdiction in the United States," he said.

Dallas County Assistant District Attorney John Rolater said the recent exonerations are the result of practices that are no longer in use.

"I don't think 10 is really a cause for concern," he said. "These are the kinds of cases that nowadays we do DNA testing during the investigation stage. Just because someone says 'That's the guy who did it,' the investigation doesn't stop. And if the DNA doesn't match the suspect, it's going to stop."

Prosecutors also instruct police agencies to work harder on cases that rely on eyewitness accounts and lack physical evidence, Mr. Rolater said. "We expect, and the agencies know, that we expect them to go back and work the case as hard as they can," he said.

But even today, many cases will boil down to an eyewitness account, and those must still be prosecuted, he said.

"Sometimes that's what we have," he said. "Justice calls for us to go out and prosecute it even when we have one person's word against another's."

Chief Waldrop agreed that police investigations are less reliant today on eyewitness testimony.
"You have a lot of forensic evidence today that you didn't have then," he said. "We don't want to base a case on an eyewitness ID. We want other evidence that connects a person. Sometimes that's not possible."

He said the Police Department's aim is to put criminals, not innocent people, behind bars.

"We want them [eyewitnesses] to be objective and accurate and don't want to do anything that would skew the process," Chief Waldrop said. "Everything we do is geared toward that."

Staff writer Jason Trahan contributed to this report.
E-mail rtharp@dallasnews.com

CLEARED BY DNA IN DALLAS COUNTY
The Dallas County district attorney's office receives about 60 requests a year from convicts seeking a DNA test to challenge their convictions. In many cases, either no DNA evidence was collected or the evidence cannot be found to test. Still, DNA testing has freed at least nine Dallas County men in the last five years, including:

David Shawn Pope: Sentenced to 45 years in prison in the 1985 rape of a Garland woman at knifepoint. Pardoned in 2001 after DNA tests exonerated him.

Wiley Fountain: Sentenced to 40 years in prison in the rape of a pregnant woman in 1986. Exonerated through DNA testing and released in 2002.

Keith E. Turner: Sentenced to 20 years in prison in the 1982 rape of a co-worker. Exonerated by a DNA analysis and pardoned in December 2005.

Entre Nax Karage: Sentenced to seven years in prison in the 1994 murder of his girlfriend. Pardoned in December 2005 after DNA analysis pointed to a man who had been previously convicted of a similar crime.

Eugene Ivory Henton: Sentenced to four years in prison in a 1984 sexual assault. Exonerated through DNA testing in 2005.

Donald Good: Sentenced to life in prison in the 1983 sexual assault of an Irving woman. He was paroled in 1993 as a sex offender, but his parole was revoked in 2002 and his life sentence was reinstated because of a minor property crime. He was exonerated by DNA analysis in 2004, but he's still serving a five-year sentence for the property crime.

Billy Wayne Miller: Served 22 years of a life sentence before a DNA test cleared him of the 1983 sexual assault of a Dallas woman. Mr. Miller was released in May.

Billy James Smith: Sentenced to life in prison in an aggravated sexual assault. He was released from custody this month after a DNA test cleared him.

Greg Wallis: Sentenced to 50 years in prison in a case where an Irving woman identified him as the man who raped and assaulted her in 1988. He was released after being exonerated by a DNA test in March.

Richland sheriff's DNA lab wins national honor

2006-11-08T16:40:00.000-05:00

This article appeared in South Carolina's The State on November 2, 2006:

Richland sheriff's DNA lab wins national honor

By RICK BRUNDRETT
rbrundrett@thestate.com

By early December of last year, Richland County Sheriff’s detectives suspected they were dealing with a serial rapist.

Three women reported being raped within a three-month period on Hilltop Road, a secluded dirt road in the county.

In each case, a man picked up a woman walking alone on Farrow Road, drove her to Hilltop Road, raped her and then drove off, leaving her to find her way home, investigators said.

What linked Andrew Hingleton to the crimes was his DNA, detectives said. The department’s DNA laboratory matched crime-scene DNA to Hingleton, 41, who was charged in January with the three assaults and a fourth rape.

The lab, which opened in November 2004, was recognized Wednesday with a national certification that only two other local police agencies in the country — in Florida and Ohio — have obtained.

“We’re solving cases that we never could have solved two, three years ago,” Sheriff Leon Lott said. “It’s really making our job more effective and a lot more easier for our officers on the street.”

The certification was awarded by the American Society of Crime Laboratory Directors and required compliance with more than 300 standards.

The six-member forensics team in the department’s DNA lab works quietly behind the scenes to crack cases that otherwise couldn’t be solved.

They will tell you their work isn’t as glamorous as what’s portrayed on television.
Demi Garvin, the lab’s director, said her lab is one of only a few in the nation that analyzes samples from violent and nonviolent crimes.

“We’re probably doing about 500 (cases) per year — 80 percent are burglaries,” said Gray Amick, the lab’s DNA technical leader.

Lab analyst John Barron said suspects from as far away as Texas and Florida have been charged with crimes in Richland County based on DNA samples analyzed by the lab.

The county’s DNA profile database is hooked to a statewide database maintained by the State Law Enforcement Division, which regularly sends its information to the FBI’s national database.
Lott said his lab can obtain DNA profiles “within 24 hours” compared to SLED’s lab, which can take months to process samples because of larger caseloads.

So far, the Richland County lab has a “hit” or match rate of about 45 percent, Lott said.

Reach Brundrett at (803) 771-8484.

Former Pa. death row inmate freed from prison

2006-11-08T16:31:00.000-05:00

This article appeared on CentreDaily.com on October 18, 2006:

Former Pa. death row inmate freed from prison

Associated Press

ALLENTOWN, Pa. - A former death row inmate accused of setting a house fire that killed his three sons was freed from prison after entering a plea Wednesday to three counts of third-degree murder.

Dennis Counterman, 46, who spent a decade on death row before his conviction was overturned by a Lehigh County judge in August 2001, entered an Alford plea, in which he did not admit wrongdoing but acknowledged that prosecutors would likely win conviction at trial.

Judge Lawrence J. Brenner sentenced Counterman to nine to 18 years in prison, plus five years of probation. Because he has already served more than the maximum sentence, Counterman was immediately released, and walked out of the courthouse with his friends and family.

Brenner had earlier ruled that prosecutors withheld key information from Counterman's lawyers during his 1990 trial. Prosecutors continued to insist that Counterman started the fire on July 25, 1988, in his Allentown home that killed Christopher, 6, James, 4, and 10-week-old Scott.

A Crisis at Tulsa's Crime Lab

2006-11-08T16:28:00.000-05:00

This article appeared on the website of KOTV in Oklahoma on November 1, 2006:

A Crisis At Tulsa's Crime Lab

The Tulsa Police crime lab is in a position it's never been in before, with a 6-month backlog for DNA results. That means even violent cases, like rape and murder, are in limbo while victims wait for answers.

News on 6 crime reporter Lori Fullbright says Tulsa's only DNA analyst predicted to us 18 months ago that this crisis was coming, that's because, even in a city with more crime than Oklahoma City, they have five people working on DNA and Tulsa has one.

Walter and Grace Brown [pictured] were murdered in their Tulsa home in April. Police had no suspects until a series of violent attacks targeted older people.

The clerk of J&J was beaten and robbed, the owner of Grandpa's furniture, beaten and robbed. Then, 68 year old Alonzo Tibbs was beaten and killed in his home on North Hartford.

Tulsa Police arrested Billy Marshall, a convicted criminal now charged with murder and robbery. It's only logical, detectives would wonder whether Marshall was connected to the Brown's murders, so they sent DNA to the lab in early summer and waited, and are still waiting, even though it's now November.

Tulsa Police Sgt. Mike Huff: "it doesn't give much hope to a family that's hanging by every piece of information."

There are close to 20 murder cases on hold, awaiting DNA results as well as rape cases and other violent crimes. That pushes property crimes like burglaries to the bottom of the pile. "Technology is wonderful, but, you need to have people to feed the technology."

Dr. Valerie Fuller is Tulsa's only DNA analyst and even though she is doing four times as many DNA cases as the national average, the caseload is just too great.

She told the News on 6, 18 months ago, the city must hire more people or the lab would be in a crisis. Now, it's here.

Part of the backlog is due to the serial rapist investigation. The lab can do 36 DNA samples a month. 177 men were eliminated as serial rape suspects, which put the lab nearly five months behind. The lab does work for Tulsa Police, the Tulsa County DA, the public defender's office and has had to stop assisting other agencies recently, like Broken Arrow and Sand Springs.
Tulsa does now have two DNA analysts in training; one will be ready to begin hands-on testing in January, the other, by summer. But Tulsa will still be behind other comparable cities in the number of active DNA analysts.

Could they send these DNA tests to labs elsewhere? Officials say it costs Tulsa less than $100 per sample to test here. It would cost a $1,000 a sample to send out, plus, the expense of flying that person to Tulsa to testify.

The lab says DNA in the Brown murders should be back in a few weeks.

New crime lab needed

2006-11-08T16:24:00.000-05:00

This article appeared in the Rochester Democrat & Chromicle on October 30, 2006:

New crime lab needed

Backlogs on DNA testing slow efforts toward justice

Prosecuting a case that puts an innocent person behind bars is one of the great fears a district attorney faces. So Monroe County District Attorney Mike Green is right to advocate for an expanded crime lab.

A county task force on public safety laboratory needs is expected to release a report soon. The state, federal and county governments should be ready with resources for a modern lab.

The county's current public safety lab was built in 1962. It has long outgrown its cramped office space, which lacks proper temperature controls for sensitive scientific work. There is currently a 1,200-case backlog for firearms work and a 600-case backlog for DNA testing.

That makes it difficult to evaluate DNA evidence for all of the cases that are about to go to trial, let alone review DNA evidence from old cases that may reveal wrongful convictions. That's worrisome considering the case of Jeffrey Deskovic of Westchester County, who was recently released from prison after DNA testing evidence revealed he was innocent of a murder for which he had been convicted. He lost 16 years of his life. How many other cases are there like his?

If the state's DNA database is expanded, as many legislators demand, there will be even greater need for a modern lab.

Scientific advances can make the criminal justice system much fairer and more efficient if counties such as Monroe receive the resources to make use of them. Greater use of DNA evidence, for example, can help relieve the burdened court system. If a criminal defendant knows a jury will see DNA evidence that the odds are one in a quintillion that someone else committed the crime, he will be more likely to plead guilty. Innocent people will be spared costly and stressful trials.

For the sake of justice in Monroe County, a new crime lab must be a priority.

Statehouse power at stake in '06

2006-11-08T16:21:00.000-05:00

This article appeared on Stateline.org on October 30, 2006:

Statehouse power at stake in '06
By Eric Kelderman
Stateline.org Staff Writer

The fight for control of Congress is dominating the Nov. 7 election, but a high-priced battle for control of the nation’s statehouses also is being waged and promises to be a nail-biter in at least 14 states.State legislatures – much like the American public – are almost evenly divided politically. A shift of five seats or fewer could cost Republicans their majority in one or both chambers in seven states -- Indiana, Iowa, Michigan, Minnesota, Nevada, Tennessee and Wisconsin. Democrats also are clinging to control by a handful of seats in seven states -- Colorado, Kentucky, Maine, Montana, North Carolina, Oklahoma and Oregon.The Iowa Senate and the Montana House are currently deadlocked, so the flip of just one seat there would decide political control.

Overall, 6,119 of the nation’s 7,382 seats in state legislatures will be on the ballot in 46 states. Nearly 37 percent of those lawmakers are running unopposed, but the razor-thin margins in so many state legislatures raise the competitive stakes on Election Day.The outcome will determine which party sets the policy agenda in state legislatures for the next two years and which has the upper hand heading toward all-important redistricting of legislative and congressional districts after the 2010 census – if not before. But the outcome will be telling in other ways, too.

Election Day will show whether national discontent with the Iraq war and the GOP-controlled Congress and White House trickles down to local races, and if so, whether it tars just Republicans -- or incumbents more generally. It will determine whether Democrats can build on their 2004 victories in statehouses and regain ground the party has lost to Republicans between 1994 and 2002.

It also will test efforts by rich donors, in states such as Colorado, Michigan and West Virginia, to single-handedly shape control of their home-state legislatures.

Currently, the GOP controls both chambers in 20 state legislatures, compared to Democratic majorities in both chambers in 19 states. Ten statehouses are split between the parties (Nebraska has the nation's only nonpartisan, unicameral Legislature). Out of 7,382 state legislative seats, Democrats now have a tiny, 21-member majority.

Among the most competitive states is Iowa, where Democratic wins two years ago tied the state Senate, and left the GOP clinging to a 51-49 majority in the House. Democrats also gained seats in 2004 to tie the Montana House and won a 27-23 majority in the state Senate.

Also closely watched this year is Colorado, where the governor’s seat also is open. Surprise victories in 2004 gave Democrats majorities in both legislative chambers for the first time in more than four decades. Political analysts look to Colorado as a bellwether of Democrats' future success in the West.

Republicans had their own surprise victory in 2004, winning control of the Georgia Legislature and sparking a flurry of Democrats to switch parties in the Peach State.

But Republicans will have to overcome several built-in disadvantages to make gains at the statehouse level in 2006. The first is history. Only once since 1938 has the president's party won state legislative seats in a mid-term election. That was in 2002, when the nation rallied behind President Bush and Republicans in the wake of terrorist attacks on New York and the Pentagon. In that year, Republicans finally gained a nationwide majority of seats in state legislatures.

Another problem is that many more Democratic state legislators than Republican lawmakers are running unopposed, according to data from the National Conference of State Legislatures. Democratic state House candidates are unchallenged in nearly 64 percent of races across the country, compared to a little more than 36 percent of Republicans, NCSL elections expert Tim Storey said.

More than 56 percent of Democratic state Senate candidates have no challenger for the Nov. 7 election, compared to nearly 44 percent of Republicans, NCSL found.

On top of that, the public's growing disdain for the war in Iraq, congressional ethics and sex scandals and federal inaction on illegal immigration and other issues are overshadowing the entire political landscape, said NCSL Executive Director William Pound.

"There is, I think, a general sense of dissatisfaction ... that the country isn't going the right way, and in many places it's a vote against the Republicans -- whoever's in control. It may affect the Democrats that way in places where they're in control," Pound said.

Pound said several factors could limit Democratic gains, including sophisticated redistricting after the 2000 elections that employed computer technology to ensure that districts remained safe for incumbents.

State legislative races in 2006 have attracted unprecedented amounts of money from national party groups, business and labor interests and even wealthy individuals who aim to tilt the political playing field, Pound said.

The largest portions of money flowing into statehouse races are coming from the Democratic Legislative Campaign Committee and Republican State Leadership Committee. Both are in the top 10 of all so-called 527s -- nonprofit political advocacy groups that can use unlimited contributions for issue advertising or get-out-the-vote efforts but that are prohibited from directly advocating for the election or defeat of a specific federal candidate.

The Republican State Leadership Committee (RSLC) has spent nearly $14 million in this election cycle, including expenditures supporting lieutenant governor and attorney general candidates, according to the nonpartisan Center for Responsive Politics.
The Democratic Legislative Campaign Committee (DLCC), which backs only statehouse candidates, has spent more than $6 million, the Center reported.

Both groups are funded primarily by corporate or labor interests and have surpassed their spending totals for the 2004 elections, when roughly the same percentage of lawmakers was up for election.

While similar groups have sprung up in key states across the country, a growing number are backed by wealthy individuals specifically to help state legislative committees. In Michigan, for example, Kalamazoo billionaire Jon Stryker has spent a record $4.7 million to help Democrats try to erase their four-seat minority in both chambers of the state Legislature.

In Colorado, Stryker's sister was a key founder of the Coalition for A Better Colorado, which spent $574,368 and is credited with helping the Democrats gain control of the state Legislature in 2004. Since then, more than a dozen dueling 527s have formed to influence state-level races in the Rocky Mountain State, including the Trailhead Group, which is backed primarily by beer magnate Pete Coors and has spent more than $1.5 million to support Republican state legislative candidates and the GOP gubernatorial contender, U.S. Rep. Bob Beauprez.

In West Virginia, coal magnate Don Blankenship has spent at least $700,000 in a long-shot bid to give Republicans a majority in the state Legislature, where they are heavily outnumbered. Because West Virginia caps the amount individuals can give to 527s, Blankenship has simply financed his own political advertising blitz.

The amount of campaign dollars invested in state legislative races has grown as states find themselves at the forefront of a wide range of policy innovations and regulation on the environment, international trade and even illegal immigration.

In addition, states are handing out larger amounts of money as their budgets continue to rebound from the recession earlier this decade and as the federal government provides greater flexibility for spending grants given to the states for programs such as Medicaid.

But the big political prize for this year's elections may not pay off until after the 2010 U.S. Census, when lawmakers will redraw the boundaries of their state legislative and congressional districts.

Although the U.S. Supreme Court approved a mid-decade redistricting plan by Texas Republicans, no partisan groups have stepped forward since that ruling to test early redistricting possibilities in other states.

Convicted Rapist Supports Patrick

2006-11-08T16:13:00.000-05:00

This article appeared in Massachusetts' Sentinel & Surprise on October 30, 2006:

Convicted rapist supports Patrick

Editorial / Opinion Sentinel & Enterprise

My name is Ben LaGuer. I am one of the men at the center of Lt. Governor Kerry Healey's political campaign ads attacking Deval Patrick. The truth about my care of who I am cannot be found anywhere in Kerry Healey's disingenuous campaign ads. In 1983, after just getting out of the Army and with no criminal record, I was charges and subsequently wrongly convicted of rape and sentenced to life in prison. I was initially offered a two-year sentence under a plea bargain; however, I could not plead guilty to a horrendous crime that I did not commit. During the past 23 years in prison, I have maintained my innocence which has only kept me in jail longer. However, I continue to have faith in our judicial system and pray that the truth will some day prevail. In a short time, The Supreme Judicial Court will hear my case.

For years the Worcester District Attorney John J. Conte's office has waged a scurrilous prosecution against me. Due process of law required that the prosecutor timely disclose evidence in his possession that could materially aid in my defense. The prosecutor withheld for almost two decades fingerprints lifted from crucial crime scene evidence- fingerprints that excluded me. In addition, the widely held view that the DNA test "further linked LaGuer to the rape" is not accurate. Personal articles taken from my bedroom were sent for DNA testing, but were misrepresented to lab technicians as being taken from the crime scene. A group of independent forensic experts, including prominent scientists from Harvard and John Jay College of Criminal Justice, has concluded that the DNA testing in my case has no forensic value. There are numerous other irregularities that challenge the integrity of the prosecutor's case against me, all of which should be of concern to any fair-minded individual- especially to someone holding public office.

As the Kerry Healey campaign continues to run smear and fear ads featuring me, I am hopeful that the people of Massachusetts will choose a Governor based on real issues that affect their daily lives. I only with that Republicans and Democrats could come together and act for the greater and common good of all people.

Ben LaGuer

Judge favors DNA testing for lifer

2006-11-08T16:08:00.000-05:00

This article appeared in the Patriot Ledger on October 31, 2006:

Judge favors DNA testing for lifer;
Man must prove tests ‘could raise serious doubts’

By Sue Reinert
The Patriot Ledger

A mildly retarded man who confessed to a torture murder in Plymouth, only to be acquitted, now has a second chance to prove he did not rape and murder an elderly woman in Lakeville.

A federal judge has raised the possibility of DNA testing that could free Robert Wade, 57, from a sentence of life without parole for first-degree murder.

U.S. District Court Judge Nancy Gertner has ruled that Wade might be entitled to have the elderly woman’s clothing and bed sheets tested for DNA if he can show the tests ‘‘could raise serious doubts about the original verdict.’’

‘‘In accordance with the State’s interest in doing justice, exculpatory DNA evidence may allow the state to both free the innocent and convict the guilty,’’ Gertner wrote.

It is the first time a judge in New England has said that prisoners have a constitutional right to the sophisticated tests after conviction.

The ruling did not order DNA tests on evidence in Wade’s case. He must first show that the tests could exonerate him, that he didn’t wait too long to appeal, and meet other standards, Gertner said.Although DNA evidence has exonerated 183 people nationwide, Gertner’s decision is the first to give prisoners the right to DNA testing after conviction if it might prove them innocent.Wade’s appeal lawyer, Lenox attorney Janet H. Pumphrey, said she has sought DNA testing for five years.

‘‘It could exonerate him,’’ she said.Blood tests used in Wade’s conviction were ‘‘elementary,’’ she said.Pumphrey said the Innocence Project, a group of lawyers and law students based in New York city, who have won freedom for prisoners across the country on the basis of DNA tests, helped her in Wade’s appeal.

She called Gertner’s ruling ‘‘an important decision both in the area of civil rights litigation and in particular, post-conviction DNA testing.’’Wade, who lived in Lakeville, confessed in 1986 to killing a disabled 23-year-old Plymouth man, Paul Rober Jr. Wade and Kurt Kegler beat and tortured Rober for six hours before they strangled him with rope provided by a Carver woman, prosecutors said.

A Plymouth Superior Court judge threw out Wade’s confession, ruling it was not voluntary because he is mildly retarded and was drunk when police questioned him. A jury acquitted Wade.

The second murder accusation came in 1993. Police arrested Wade for raping Johanna Francescon, 84, the mother of the man who employed Wade on a Lakeville pig farm. Wade was charged with murder after Francescon, who had advanced Alzheimer’s disease, died of pneumonia in a hospital after the attack.

Wade denied raping the elderly woman, although she was found in his cabin on the farm with fractures and abrasions.

Tests on blood and semen found on the victim’s clothes suggested that it might have come from a second person as well as Wade, Gertner wrote in her decision.

Wade’s defense attorney at his trial did not seek DNA tests, which were not widely used at the time. Instead, the lawyer argued that Francescon consented to have sex with Wade. The jury convicted him of murder as a result of the rape.

Lower state courts and the state’s Supreme Judicial Court have denied Wade’s appeals for DNA testing. Wade filed an appeal in federal court in 2004.

Terence Burke, spokesman for Attorney General Thomas Reilly, who opposed DNA tests for Wade, said Reilly’s office is reviewing the ruling.Bridget Norton Middleton, spokeswoman for Plymouth County District Attorney Timothy Cruz, referred questions to Reilly’s office.

Relatives of Paul Rober Jr. were angry when Wade’s first conviction was overturned. Rober’s father, Paul Rober Sr., who moved his family to Braintree after the murder, co-founded the Boston chapter of Parents of Murdered Children.The elder Rober died of cancer in 2000. His son, James Rober of Brockton, took up the campaign for murder victims.

Sue Reinert may be reached at sreinert@ledger.com
Copyright 2006 The Patriot Ledger

Death penalty defines contest

2006-11-08T15:38:00.000-05:00

This article appeared in the Baltimore Sun on November 1, 2006:

Death penalty defines contest
Baltimore County prosecutor rivals split on selectivity

By Jennifer McMenamin
sun reporter

As the two men campaigning to be Baltimore County's top prosecutor drop in on retirement communities, candidate forums and political club gatherings, the questioning inevitably turns to one topic: the death penalty.

In a county that has drawn national notice for how many convicted killers it has sent to death row, voters will choose next week between a veteran prosecutor who says he will continue his boss's policy of seeking a death sentence in virtually every eligible case and a career litigator who says he will evaluate each case before deciding what sentence to pursue.

The issue presents a stark difference between Republican Stephen Bailey, the handpicked successor of longtime State's Attorney Sandra A. O'Connor, and his Democratic opponent, Scott D. Shellenberger, a former county prosecutor who has spent the past 13 years with the law firm of Peter G. Angelos."

Like it or not, Sandy O'Connor has had this legacy," said Jane Henderson, executive director of Maryland Citizens Against State Executions. "If you take her time as state's attorney and what she did with the death penalty out of the picture, that takes out more than half of the [death row] cases. It's a huge chunk of Maryland's history of the death penalty."

O'Connor is retiring this year at the end of her eighth term -- and her 32nd year -- as the county's top prosecutor. This year marks the first time there has been a contested election for the job since 1982, when a Democratic challenger lost to O'Connor, receiving only 32 percent of the vote.

Her stated policy of seeking death sentences in all eligible murder cases -- with the exception of those that would depend on a co-defendant's testimony and those in which the victim's family objects -- has attracted national attention and death penalty opponents' criticism.

In 2002, researchers from Columbia, Rutgers and New York universities ranked Baltimore County second among large counties nationwide in the rate at which convicted murderers are sentenced to death. A year later, a state-funded University of Maryland study found racial and geographic disparities in the state's use of capital punishment, including the fact that Baltimore County prosecutors sought death sentences more often than any others in the state.

Bailey and Shellenberger describe themselves as death penalty supporters, and both have prosecuted capital cases. They also both characterized the task of standing before a jury and asking 12 men and women to sentence someone to death as an "awesome responsibility."

Bailey, 44, of Towson, has spent his entire 20-year career in the county prosecutor's office. He describes capital punishment as "something I wrestled with."

In 1988, within months of becoming a prosecutor, Bailey served as second chair in his first death penalty case -- a case that also happened to be his first jury trial. Kenneth L. Collins was convicted and sentenced to death for the 1986 robbery and shooting of a banker from Towson. The sentence was later overturned.

After the trial, Bailey said he asked O'Connor not to assign him to any more capital cases.

"It wasn't that I didn't think it was an appropriate sentence in that case, because I absolutely did," Bailey said in an interview. "But I had never been thrust into that situation before. People think they know what they believe about the death penalty until they're called upon to participate in a trial like that or serve as a juror. It takes it out of the realm of theory."

In 1993 or 1994, Bailey said, after several years of prosecuting serious, noncapital crimes, watching victims' families struggle with the criminal justice system and "feeling like they hadn't received a full measure of justice with a life sentence," he told his boss that he would again handle capital cases.If elected, Bailey says, he would continue O'Connor's policy.

Under Maryland law, prosecutors have discretion in seeking punishments but generally can pursue a death sentence for a convicted killer -- not an accomplice -- in cases with a so-called aggravating factor, such as the killing of a police officer or multiple victims, a killing by a prisoner, or a killing committed during a robbery, kidnapping or rape.

Bailey, now one of O'Connor's two deputies, has repeatedly defended her practice as the best way to ensure the process is not discriminatory. He stresses that prosecutors' decision to file notice of intent to seek a death sentence means only that death will be one option for the judge or jurors to consider when deciding a defendant's sentence. And he has often criticized his opponent's promise to abandon O'Connor's approach and evaluate cases individually.

"That sounds like a pretty good idea," Bailey told a gathering of voters at a Republican club event. "But that's like saying, 'I'm going to put my pants on before I go to work in the morning.' The question is, what standard will you use? Saying you're going to decide on a case-by-case basis is like having no standard at all.

"Shellenberger, 47, of Parkville spent 11 years in the county prosecutor's office before joining Angelos' firm to do criminal defense work and plaintiffs' cases. He says he has supported capital punishment for as long as he can recall.

"I can specifically remember, at the age of 22, as a law clerk in the state's attorney's office, being asked if I wanted to work on a death penalty case, and I had absolutely no hesitation," he said.

On the campaign trail and in his mailings, Shellenberger frequently promotes his role in prosecuting Steven H. Oken, who was convicted of sexually assaulting and killing three young women in 1987. The mother of one victim has campaigned for him. After years of appeals, Oken was put to death in 2003.

Shellenberger, who has prosecuted four men in capital cases, says a state's attorney should evaluate each eligible murder case on its merits before deciding whether to seek a death sentence.

"Every day, the state's attorney makes decisions as to what charges to pursue and what sentence to ask for in every criminal case that gets prosecuted," he said in an interview. "Why is it that when it comes to whether to seek the ultimate punishment, the state's attorney doesn't do that?"

Shellenberger has, on occasion, blended his stated intention of taking a different approach to capital cases by pursuing death sentences "for those who commit the most heinous murders" with a promise to "continue" O'Connor's policy -- a pair of seemingly contradictory claims. Asked to explain, Shellenberger said that he used the word "continue" to signal that he would "be a strong advocate for the death penalty."

Supporters of both men say the death penalty issue is important."

Scott's got the right read on that," said Baltimore County Executive James T. Smith Jr., who oversaw a dozen capital cases during his 16 years as a judge. "I think a policy of pursuing the death penalty in every case that technically allows for it is not even consistent with the legislation that sets up the death penalty.

"You shouldn't just turn it over to a judge or jury to decide," added Smith, who appears in Shellenberger's TV and print ads and has indirectly contributed $315,000 from his own election coffers. "There is a first level of responsibility, and I think Scott is accepting that level of responsibility."

Lisa Dever, a county prosecutor who has contributed financially to Bailey's campaign, countered that O'Connor and Bailey's approach is the fairest way to handle the imposition of the nation's most serious punishment.

"People who oppose the policy say it should only be applied to the most heinous crimes," she said. "Who are we to tell that family that the loss of their family member is not a heinous crime? It's not for us to decide. ... If you do go for it in every eligible case, you take away all the bias and prejudice that's inherent whenever you start choosing."

jennifer.mcmenamin@baltsun.com

DNA pioneer voices concern over database

2006-11-08T15:30:00.000-05:00

This article appered in Yahoo News on November 1, 2006:

DNA pioneer voices concern over database

By Astrid Zweynert

LONDON (Reuters) - A pioneer of Britain's DNA database said on Wednesday it may have grown so far beyond its original purpose that it now risks undermining civil rights.

Professor Alec Jeffreys told BBC radio that hundreds of thousands of innocent people's DNA was now held on the database, a disproportionate number of them young black men.

The database, set up in 1995, has expanded to 3.6 million profiles, making it the largest in the world.

Everyone who has ever been arrested by the police, even if not charged, is obliged to provide a DNA sample for the database, which also includes victims of crime and others who have volunteered a sample to help a criminal investigation.

"The real concern I have in the UK is what I see as a sort of 'mission creep,"' said Jeffreys, who developed the techniques for DNA fingerprinting and profiling. When the database was initially established, it was meant to hold DNA from criminals, he added.

"Now hundreds of thousands of entirely innocent people are populating that database, people who have come to the police's attention for example by being charged with a crime and subsequently released."

The samples were "skewed socioeconomically and ethnically," he said. "In my view that is discriminatory."

Civil rights campaigners say a third of black males in England and Wales are on the database. They are also concerned about the lack of public consultation about the database.

DNA sampling has helped considerably in improving crime detection, helping to clear up cases that had remained unsolved for years.

For all recorded crime, the detection rate is 26 percent when there is no DNA evidence, but 40 percent when there is a sample, according to government data.

Jeffrey's comments coincided with the launch of a consultation on Wednesday to ask members of the public about their views on whether the laws allowing police to take, store and analyze DNA should be revised amid concern about a lack of public consultation on the database.

The study by the Nuffield Council on Bioethics, an independent research body, follows comments by British Prime Minister this month that a maximum number of people should be included in the database as it was vital for catching serious criminals.

The Council said that police have powers, "unrivalled internationally," to take DNA from an arrested person without consent.

"We want to hear the public's views on whether storing the DNA profiles of victims and suspects who are later not charged, or acquitted, is justified by the need to fight crime," said Professor Bob Hepple, chairman of the Council.

Deal on Wrongful Conviction

2006-11-08T15:22:00.000-05:00

This article appeared in the Chicago Tribune on October 31, 2006:

Deal on wrongful conviction
City panel approves $2 million settlement

By Maurice Possley and Gary Washburn
Tribune staff reporters

The Chicago City Council's Finance Committee unanimously approved a $2 million settlement on Monday of a wrongful-conviction lawsuit alleging that police coerced a false confession from a 15-year-old youth, then falsified and destroyed reports to cover it up.

The settlement, which was forwarded for full City Council approval on Wednesday, came in a lawsuit filed on behalf of Eric Kittler, who was 15 when he was arrested. Kittler, who had never been arrested before, was charged as an adult with the robbery and murder of Abdel Khalil, a candy salesman who was in Adam's Grocery, 2625 W. 59th St., when two men robbed it on March 9, 1997.

At the time, police said that Kittler confessed. Convicted in 1999, Kittler was sentenced to 35 years in prison.However, his trial attorney, Steven Greenburg, appealed to the Illinois Appellate Court and won a new trial after the appeals court ruled that Kittler's arrest was illegal and therefore, any alleged confession was improper.

Kittler was acquitted at a retrial and released after 5 years in prison. Greenburg contended that Kittler had been falsely implicated by another youth, Thomas Harvey, who was 17 at the time. Harvey was ultimately charged with the crime, convicted of it and is serving a 25-year prison term.

At the time of trial, police officers contended that Harvey told them only that someone named Eric was involved in the crime. The officers said they went to Kittler's home and he voluntarily came to a police station and confessed almost immediately, according to court documents.

However, attorney Michael Kanovitz, who filed the civil lawsuit, said Kittler signed a statement prepared by the officers after being held in an interrogation room for 12 hours.

Kanovitz also found records that showed the officers actually were looking for another man named Eric with a different last name who lived less than a block from Kittler.

Kanovitz said that after Kittler signed a statement admitting involvement, the officers created false reports to show that they were looking for Kittler all along, Kanovitz said.

The civil lawsuit alleged that Detectives Steven Buglio and Thomas Coughlin improperly coerced the confession and that other officers, including Detective Sergio Rajkovich, suppressed evidence that showed Kittler was innocent, destroyed notes of interviews and created false police reports.

The lawsuit alleged that after the detectives obtained a confession through interrogation tactics that "crossed the line," they "fabricated a story about how they had [Kittler] as their suspect all along and then buried independent proof that contradicted their account."

"Nobody with a brain on either side of this case believes Eric Kittler had anything to do with this crime," Kanovitz said Monday. "And those detectives knew they weren't sitting in a room with a murderer, but they didn't care."

Kent Sinson, who was a Cook County prosecutor at the time of the arrest, testified in a deposition that he took the statement directly from Kittler, that he took a Polaroid photograph of Kittler and that Kittler signed the back of the photograph.

A handwriting expert examined a signature and determined it was not Kittler's handwriting, Kanovitz said."Sinson took down a confession that the detectives gave him and falsely claimed that Kittler was the source of the confession," Kanovitz said. "Kittler was innocent, and the Sinson statement was riddled with errors."

Sinson was initially named as a defendant in the case but was later dismissed. Efforts to reach Sinson on Monday were unsuccessful.

mpossley@tribune.comgwashburn@tribune.com
Copyright © 2006, Chicago Tribune

Unasked Questions

2006-11-08T15:21:00.000-05:00

This article appeared in the Daytona Beach News on October 30, 2006:

Unasked questions
Tonight's debate should dig deeper

When you watch tonight's gubernatorial debate -- if you watch it, and we all should -- think about the slogans and carefully thought-out position statements you're hearing.

Then think about what you're not hearing. Think about the issues that neither campaign is addressing, issues that are certainly important enough to merit attention. Look at the performance of Attorney General Charlie Crist and U.S. Rep. Jim Davis, not just in the actions each man boasts about (or jabs the other for) but in issues that matter to Floridians: Poverty. Justice. The struggle between man and nature.

These issues received short shrift in Tuesday's heated debate. Floridians deserve to hear more, and tonight (with Reform Party candidate Max Linn joining the fray) they should.

One moment from Tuesday's debate demands more attention. Crist had just fired off a question about Davis' refusal, while serving in the state Legislature, to support compensation for Freddie Pitts and Wilbert Lee. The two men spent 12 years in prison for a murder they did not commit. They waited another 23 years for the Legislature to approve a bill to compensate them for that lost time. Davis replied that he had asked both men for forgiveness. He noted that Pitts was in the audience supporting him. And, then, they moved on.

Left behind was a question that many expected Davis to bring up. The nightmare faced by Pitts and Lee is by no means unique, as the emergence of scientific evidence like DNA proves.

Yet under Crist, the Attorney General's Office has fought aggressively against DNA testing, and even battled efforts to release inmates after DNA testing proved them innocent. Lawyers in Jacksonville are still warring over the case of Chad Heins, convicted 10 years ago of raping and murdering his sister-in-law. DNA evidence obtained since then points to another assailant, yet, Crist's office is fighting court action that would result in Heins being freed. Prosecutors did the same in the case of Wilton Dedge, a Brevard County man who spent 22 years in prison for a rape he didn't commit.

When is Crist going to apologize to Wilton Dedge and Chad Heins? We'd like to know, and Davis should ask.

The two men should also account for their respective parties' inability to stop the slow slide of many Floridians into poverty. Welfare reform -- once presented as a chance for people to work their way off the dole and into a productive life -- has turned into a sorry sham. Too many people are shuffled into low-paying jobs, missing out on the help they need. Many others are afraid to ask for help.

And the state deserves to hear what Davis and Crist plan to do to preserve the remaining vestiges of Florida's once-abundant natural beauty. "Planned growth" received a brief mention Tuesday, but most Floridians have seen through that buzz-phrase as bulldozers continue their march across forestland and pasture. As a steward of Florida's natural environment, Florida's next governor should have a plan that focuses on preservation, not development.

These issues might not be as highly charged as those debated last week. But voters deserve to know where the candidates stand on each.

Settlement reached in Broward wrongful arrest lawsuit

2006-11-08T14:54:00.000-05:00

This article appeared in the South Florida Sun-Sentinel on October 13, 2006:

Settlement reached in Broward wrongful arrest lawsuit

Associated Press

FORT LAUDERDALE, Fla. - A settlement has been reached in a lawsuit filed against the Broward County Sheriff's Office by a man who was wrongly convicted and faced the death penalty for a 1986 murder he did not commit.

Broward County Circuit Judge Thomas M. Lynch IV has scheduled a hearing Oct. 27 on whether the settlement agreement with Carl Stephen Rosati should remain confidential. Rosati, 46, had rejected an offer of $500,000 to settle the case three years ago.

The lawsuit against the sheriff's office claimed that Sgt. Thomas Murray and former detectives Dominick Gucciardi and Steven Wiley illegally coerced a confession from Peter Dallas that implicated Rosati and Peter Roussonicolos.

The suit contended that investigators ignored a tape recording pointing to different men who ultimately were charged with the 1986 murder of Joe Viscido Jr., of Deerfield Beach. An independent prosecutor cleared Rosati and Roussonicolos after they spent 16 months in jail.

Mistrials were declared in Rosati's lawsuit in October 2003 and April 2004. Dallas settled for an undisclosed amount and a separate lawsuit filed by Roussonicolos is still pending.

Bruce Jolly, attorney for the sheriff's office and the two detectives, declined to acknowledge that a settlement had been reached.

"Pending the conclusion of the litigation, anything about any settlement remains confidential," Jolly said.

Rosati returned to his native Rhode Island after his release from jail. A message left on his answering machine seeking comment was not immediately returned Friday.
---
Information from: South Florida Sun-Sentinel
http:// WWW.SUN-SENTINEL.COM

Innocent man exonerated after 22 years in prison

2006-11-08T14:42:00.000-05:00

This article appeared in the Greenwich Time on November 2, 2006:

Innocent man tells of ordeal
Exonerated after 22 years in prison

By Martin B. Cassidy
Staff Writer

If not for the interest of the Innocence Project, Alan Newton's quest for the DNA evidence needed to reverse his rape conviction might have stalled forever, he said yesterday."Nobody wanted to take the time to deal with a convicted armed felon until the Innocence Project helped," said Newton, who spent 22 years in New York state prisons for a rape he didn't commit.

Newton, who was freed in July, spoke to the Greenwich Retired Men's Association yesterday morning about the New York-based group affiliated with the Benjamin N. Cardozo School of Law, which has so far freed 185 prisoners nationwide through retesting of crime-scene DNA.

For 11 years Newton was told the cache of evidence, including the attacker's DNA, had been misplaced or destroyed. But in November 2005, the Innocence Project got a Bronx prosecutor to unearth the materials in a storage barrel in a Queens warehouse, the very same spot where it had been inventoried and catalogued. The test results ultimately set Newton free.

Newton said he never completely lost hope that the truth would someday be known.

"They gave me all kinds of excuses and I kept hope that they would find it," said Newton. "I kept my hope up. Well, it was sitting in the same barrel, but nobody wanted to take the time to deal with it."

In June 1984, Newton said he was living in New York City, working as a salesman for Bell System and engaged to be married. Then a rape victim picked his mug shot -- taken because of a 5-year-old misdemeanor assault conviction -- out of a book of hundreds, and later she and a convenience store clerk identified him as her assailant.

In May 1985, Newton was convicted of rape, robbery and assault and sentenced to 13 to 30 years for sexually assaulting the woman in an abandoned building in the Bronx. The prosecution based its case on the flawed identifications, Newton said.

At his trial, Newton's fiancee testified she was with Newton watching a movie the night of the attack, he said.

"I was keeping my nose clean and trying to bank some money for college," Newton said of that time. "The things I did when I was young came back to haunt me."

In 1994 he requested post-conviction DNA testing, but the court and police officials said the evidence was lost, he said.

He did the "New York tour" of the prison system, living among hardened criminals in Sing Sing and Attica, earning dozens of college credits but also suffering disciplinary consequences for getting into fights, he said.

Newton said he struggled to maintain his hope that he would prove his innocence.

"When you're an innocent man it's harder than being a guy who is trying to get out on a technicality," Newton said.

"My mother died in 1986 of a broken heart and my dad died five years ago. Neither of them saw my exoneration, but I hope they are smiling down."

The investigative flaws which lead to wrongful convictions include shaky witness identifications and confessions gained by pressure or physical abuse, while forensic foul-ups with fingerprints or biological evidence are often egregious, Audrey Levitin, the Innocence Project's director of development, told the audience.

Levitin cited the case of Stephan Cowans, whose 1997 conviction for shooting a Boston police officer was overturned in 2004 when the Innocence Project established that the gunman's fingerprint was somehow transposed onto a card labeled as Cowans' prints.That case spurred a massive internal investigation in the Boston Police Department and a $3.2 million civil settlement for Cowans.So far 22 states have adopted legislation governing compensation for the exonerated, Levitin said.

State Sen. Andrew Mc-Donald, D-Stamford, head of the Judiciary Committee, said in a telephone interview that the Connecticut legislature will draft a bill in January to establish a system for compensating the wrongly convicted. Lawmakers have been considering the systems adopted in other states to try to determine what type of compensation is fair based on factors that contributed to the conviction.

After Newton's talk, Chuck Standard, 87, said he would probably donate to the Innocence Project, and that Newton's fortitude impressed him."I didn't know about this group until today, but now I want to learn more about it," Standard said. "I don't know how that man isn't more bitter after 22 years in jail."

Barry Nova, 73, said he imagines there are thousands of wrongly convicted prisoners in the justice system trying to prove their innocence."If they've freed 185 individuals, how many do you think are out there?" Nova asked.Newton said he was exploring a lawsuit for damages, but had yet to file it. He said he hopes to become a lawyer after he graduates from Medgar Evers College in Brooklyn, which he is attending on a scholarship from the Thurgood Marshall Scholarship Fund.

Newton said that giving presentations about his wrongful conviction helps him deal with it."It's very important for me," Newton said. "It's like if you have a wound or cut, it's good to let it have some air."

Copyright © 2006, Southern Connecticut Newspapers, Inc.

Robbery Charges Dropped in Rap Sheet Mixup

2006-11-08T14:37:00.000-05:00

This article appeared in the Mercury News on October 27, 2006:

Robbery charges dropped in rap sheet mixup case
Salinas Widower Victim of Clerical Error

By Fredric N. Tulsky
Mercury News

Larry Lashere Adams, a Salinas widower who became a robbery suspect because of a bizarre error in state records, was cleared of the crime Friday when charges were dropped in Santa Clara Superior Court.

Adams became a suspect in a 2005 home invasion largely because state records showed he had committed a similar crime in Contra Costa County 15 years earlier. But Adams had done no such thing. Instead, a man named James Adams was convicted of the crime and officials have been unable to explain how that conviction wound up on Larry Adams' rap sheet.

Defense attorney Allen H. Schwartz said the error was one of a series of ``uncanny coincidences,'' which ended in Adams' arrest seven months ago after police surrounded his car while he was on a lunch break from his job as a supervisor at Mervyn's.

``He was an unfortunate victim of circumstances,'' said Schwartz, after Judge Jerome Nadler Friday granted a prosecution motion to dismiss the case based on insufficient evidence during a hearing that lasted less than a minute. ``But today justice was served,'' Schwartz said, crediting deputy district attorney Victor Chen for moving to dismiss the charges.

Chen said simply, ``The continuing police investigation led to the conclusion that the evidence was insufficient.''

Adams was not in court Friday and could not be reached for comment. But Walter Wilson, a Silicon Valley NAACP official who is Adams' uncle, said the real lesson is that ``the system failed again.''

Wilson said officials were notified about the mistaken rap sheet well before his nephew was charged with robbery. ``But instead they went ahead and charged him and locked him up,'' Wilson said. ``It's just not right.''

The case unfolded amid increased attention to the potential for wrongful convictions. The Mercury News series ``Tainted Trials, Stolen Justice'' reported that questionable conduct repeatedly mars Santa Clara County jury trials and that such conduct increases the small but significant potential for wrongful conviction.

In Adams' case, the clerical error was compounded by a suspect eyewitness identification that occurred more than a year after the robbery. Adams spent three weeks in jail on charges and initially faced a life sentence. Because authorities saw a prior robbery on Adams' record, as well as a domestic violence conviction, he was originally charged with under the state's strict ``Three Strikes, You're Out'' law.

Police had been seeking the ringleader of a group of robbers who burst into a San Jose home not far from Monterey Road and Capitol Expressway shortly after midnight Jan. 23, 2005. A group of teenagers were present; some had been drinking, one had a bag of marijuana, according to police reports. The intruders separated two brothers who lived in the house and asked each where the valuables were hidden.

Police soon arrested two men in the crime. By monitoring visitors to the jail, they later came up with Adams' name -- his former girl friend was the mother of one of the men charged and she listed a cell phone registered to Adams on jail records. When police discovered that Adams met the general description -- a large black man 39 years old -- and that he had a prior robbery conviction, officers showed the brothers a photographic lineup.

Because identification is subject to the frailties of human memory, Santa Clara County police agencies have enacted safeguards to reduce the chances of wrongful identifications -- safeguards that a state commission believes agencies throughout the state should adopt. Those safeguards include showing photographs to victims sequentially, rather than in a group and having the lineup administered by an officer who does not know the suspect's identity.

In their reports, detectives Ronnie Lopez and Ramon Avalos noted that they followed county protocols. But they described administering the lineups themselves instead of relying on an officer who did not know the identity of their suspect.

It took weeks before Adams was released from custody in April after his bail was lowered to $75,000.

Court records show that he was convicted of domestic violence after a 1991 incident in which his girlfriend withheld his car keys to prevent him from driving while drunk. He also has been convicted of driving under the influence of alcohol in the past.

Adams has said the rap sheet error came up when he was arrested for domestic violence and again during a recent custody dispute with his wife, who has since died.

Adams' aunt, Brenda Wilson, works in the Santa Clara County public defender's office, and has helped him obtain documents to show he did not commit a robbery in Contra Costa. She again notified officials of the error after his arrest in March.

The Wilsons noted that the family had to spend thousands of dollars to win Adams' release on bail. Furthermore, ``If it hadn't been for where I work, he would have lost his job and his kids would have been taken away,'' said Brenda Wilson. ``This just should not have happened.''

Contact Fredric N. Tulsky at rtulsky@mercurynews.com.

DNA at center of trial in '72 slaying

2006-11-08T13:55:00.000-05:00

This article appeared in the Los Angeles Times on October 30, 2006:

DNA at center of trial in '72 slaying

The rape and murder case uses `abandoned' genetic evidence: saliva from a cup and napkin discarded by the suspect.

By Andrew Blankstein
Times Staff Writer

Los Angeles police detectives had been trailing a serial murder suspect for about a month during the summer of 2003 when they finally got their needed break.

Adolph Theodore Laudenberg, then 77, thought police wanted to question him as a witness in an unrelated car theft case and agreed to meet with an LAPD investigator at a Torrance doughnut shop. As they talked, Laudenberg sipped coffee out of a Styrofoam cup and occasionally paused to wipe his mouth with a napkin.

This week, the former cabdriver goes on trial in the 1972 strangulation and sexual assault of a San Pedro woman. The DNA from saliva he left behind on the discarded cup and napkin will provide the foundation for the state's case against him.

The use of "abandoned DNA" in criminal cases is a relatively new law enforcement practice, but one that legal experts said has broader implications for constitutional issues linked to privacy and protections against unreasonable searches and seizures.

UC Davis law professor Elizabeth Joh, who is following the trend, said law enforcement agencies generally have not adopted standards dealing with the collection of abandoned DNA and worries that that could pave the way for future abuse.

"We leave traces — skin, saliva, hair and blood — of our genetic identity nearly everywhere we go," Joh said in a 2005 Northwestern University Law Review article. "Should the police be permitted, without restriction, to target us and collect the DNA that we leave behind?"

In an interview, she said that although investigators in the Laudenberg case claimed they took DNA only for investigative reasons, "that's a constraint imposed by the police themselves, not the law."

Albert E. Scherr, a professor at the Franklin Pierce Law Center in Concord, N.H., said the abandoned DNA debate is only in its infancy, and will linger long after the Laudenberg case is concluded.

"It's old behavior for police to surreptitiously obtain a fingerprint by inviting a suspect for a cup of coffee or a cigarette," Scherr said. "But it's only recently that you can use a cup of coffee to get a sample of their DNA, which is much more powerful, much more personal and more multifaceted than the ridges in a fingerprint."

Prosecutors and police contend that a person's DNA is no different than any other clue inadvertently left behind in the public domain, whether it's a fingerprint or, in this case, saliva.

When it comes to identifying criminals, "there is no legal distinction between a genetic fingerprint and fingerprint in the traditional sense," said Deputy Dist. Atty. Lisa Kahn.

Suspects "don't have an expectation of privacy in abandoned property. And that would definitely apply to a cup left behind at a McDonald's or Denny's."

Police usually can recover DNA from suspects in several ways.

In a search warrant, police typically ask a judge for approval to seize personal objects that could contain genetic material, including toothbrushes, combs and utensils. A suspect also may voluntarily turn over a sample of his or her DNA. This can be compared to genetic material retrieved from a crime scene.

Authorities also can compare the genetic evidence from a crime scene with previously existing DNA reference samples contained in national and state forensic databases known as "cold-hit cases."

Still, case law on abandoned DNA is evolving.

Earlier this year, the Washington Supreme Court heard arguments about the legality of using DNA lifted from a self-addressed stamped envelope. In that case, authorities used the ruse of a class-action lawsuit over parking tickets to get suspect John Athan to lick and send in a selfaddressed, stamped envelope. The DNA collected from the saliva on the stamp helped to convict him of the 1982 rape and murder of a 13-year-old Seattle girl.

Among the issues before the court is whether police violated Athan's privacy when they collected his DNA.

In California, the legality of abandoned DNA has not yet come to a Supreme Court test.

However, Laudenberg's attorney, Harvey Sherman, filed Los Angeles County Superior Court briefs this month arguing that privacy issues should require judicial approval before DNA is seized from a public setting.

In the Laudenberg case, the officer who interviewed him quietly placed the napkin in his pocket, poured out the coffee and set the cup next to a trashcan. An undercover officer then retrieved the cup, according to court documents.

Police justified their actions, saying they took Laudenberg's genetic evidence from a public place where he had no expectation of privacy, according to court papers. Also, if they had obtained a search warrant, they risked tipping off the suspect to their investigation.

Superior Court Judge Anita Dymant agreed with police and ruled that authorities did nothing improper. She ruled that all DNA evidence against Laudenberg will be admissible in trial.

Authorities said in court documents that they also will use that DNA to link Laudenberg to another killing in the San Francisco Bay Area during the 1970s. He has not yet been charged with that crime.

The current Laudenberg case revolves around the slaying of Lois Petrie, who was found strangled in her San Pedro home the day after Christmas in 1972.

In addition to the DNA evidence, prosecutors said in court documents that they plan to call witnesses who will testify that Laudenberg confessed to relatives in 1975 and then again in 2002 that he killed four women. Both times, police were contacted after he talked to his relatives, generating police reports, but not his arrest.

In 2002, Laudenberg allegedly told his daughter-in-law that when he was a San Pedro cabdriver in the early 1970s, he often would pick up merchant marines and their dates, according to court documents. Laudenberg would end up driving the women home and sometimes they would ask him for money, the court papers state.

"This would upset Adolph," who got so angry that "he would strangle the women," his daughter-in-law told police.Police also were told that "the reason he killed those women was because they either said something or did something that reminded him of his wife," according to the documents.

Both of the police reports eventually made their way to Det. Rich Bengston of the Los Angeles Police Department's cold-case homicide unit, who tracked Laudenberg and ultimately set up the 40-minute meeting at the doughnut shop.*

andrew.blankstein@latimes .com

Wrongly convicted O.C. man is free

2006-11-08T13:52:00.000-05:00

This article appeared in the Los Angeles Times on November 2, 2006:

Wrongly convicted O.C. man is free -- and out of state

He says he's been scared straight by the experience of 10 months in prison, and he's left town to start fresh.

By H.G. Reza
Times Staff Writer

Three days into his trial for carjacking and armed robbery, James Ochoa weighed his options. He had turned down the prosecution's offer of a guilty plea in exchange for two years in state prison because he knew he was innocent.But Orange County Superior Court Judge Robert F. Fitzgerald had threatened him with a life sentence if convicted. Unwilling to risk life in prison, the 20-year-old ended his trial and pleaded guilty in December 2005.

Ten months later, Ochoa walked out of Centinela State Prison an innocent man, cleared by the same DNA evidence Orange County prosecutors had brushed aside. The DNA at the crime scene was linked to Jaymes T. McCollum, a 20-year-old inmate locked up in a Los Angeles County jail on carjacking charges, said Ochoa attorney Scott A. Borthwick.

Susan Kang Schroeder, spokeswoman for Dist. Atty. Tony Rackauckas, said her office "feels terrible" about Ochoa's wrongful conviction. "As soon as we found out the guilty plea was no longer reliable, we did everything we could to get him out of custody," she said.

In most cases where DNA is used to free someone wrongly convicted, the evidence is uncovered after trial. In Ochoa's case the Orange County district attorney's office knew beforehand that DNA in the case did not come from Ochoa but went ahead anyway.

Ochoa's case was first reported last year by the OC Weekly, which called it a miscarriage of justice. Prosecutors and police harshly criticized the paper for taking up the case.

Ochoa was accused of robbing two men with a pellet gun May 23, 2005, in Buena Park and stealing one of their cars. The Volkswagen was found around the corner from his Buena Park home. The gunman had left a black baseball cap and long-sleeved gray shirt in the car. The gun, hidden in the rear bumper, fell out when the car was towed.

At the time, Ochoa was on parole and had been out of prison two weeks after serving six months for possession of methamphetamine.

One victim identified his mugshot. The other two photos were of young-looking teenagers. He then picked out Ochoa from the back seat of a police car that drove by while Ochoa stood outside his home, handcuffed, barefoot and wearing only boxer shorts. The other victim also identified Ochoa, but he was less certain, Borthwick said.

Tests done by the sheriff's forensic lab about a month later found no link between Ochoa and the DNA recovered from the cap and shirt. A print lifted from the Volkswagen's gear knob did not match Ochoa's either. Still, the Orange County district attorney's office took the case to trial, basing it largely on eyewitnesses.

On Oct. 13, the California Department of Justice lab linked McCollum's DNA to evidence left at the crime scene during a routine check. Six days later, Orange County prosecutors acknowledged that the wrong man had been convicted and asked Fitzgerald to sign an order freeing him.

In an interview last week at his lawyer's Santa Ana office, Ochoa, 21, talked about his frightening experience with a justice system that ignored evidence pointing to someone else along with his repeated claims of innocence.

Tall and muscular with a shaved head, Ochoa said he spent much of his time in prison working out. Several times during a three-hour interview he broke into a wide grin as he paused to remember details of his case, occasionally turning to his father, Ubaldo, for help.

Ochoa said he took the prosecution's deal against his attorney's advice because he was afraid of what would happen if the jury found him guilty. Borthwick was so convinced of his client's innocence that he offered to represent him for free if Ochoa would reject the offer.

"I don't want to go to prison for something I didn't do, especially for life," he said. "I'm thinking: How did it get this far? The DNA. The print. They weren't mine."

Judge Fitzgerald had made it clear before the trial what would happen if he was convicted, warning that he would show no mercy and impose a life sentence, Borthwick said.

The judge's remarks at sentencing, when he sent Ochoa to prison for two years, were no more reassuring.

"He looked down at [Ochoa] and said, 'All right. You're off to prison. See you later, kid,' " Borthwick recalled.

Fitzgerald declined to comment.

Borthwick said the prosecution went out of its way to ignore the DNA evidence. "The prosecutor had an ethical duty not to prosecute someone who's innocent," he said.

Supreme Court Weighs Man's Delayed Suit

2006-11-06T15:38:00.000-05:00

This article appeared in the New York Times on November 6, 2006:

Supreme Court Weighs Man's Delayed Suit

By THE ASSOCIATED PRESS

WASHINGTON (AP) -- The lawyer for a man whose illegal arrest led to more than eight years behind bars pleaded with the Supreme Court on Monday to allow his client to sue the police who arrested him.

To do otherwise, lawyer Kenneth Flaxman said, the justice system would be saying, ''It's just tough. You're seized for 8 1/2 years and you can't go to state court and you can't go to federal court.''

Flaxman's client, Andre Wallace, was freed from prison in 2002, after Illinois courts ruled his arrest was illegal, reversed his murder conviction and caused prosecutors to drop charges against him. He had been in custody since his arrest in 1994 for the killing of John Handy.

Yet when Wallace filed a federal civil rights lawsuit a year later against the Chicago police officers who arrested him, federal judges told him he had waited too long and dismissed the suit.
On Monday, justices expressed some sympathy for his predicament, but also some skepticism that he would prevail.

What about the police officers, wondered Chief Justice John Roberts? If Wallace had the right to sue so long after his arrest, the officers wouldn't know ''if they're going to be sued for 10 years, 12 years,'' Roberts said.

Wallace had two years in which to file his civil rights claim. The question before the justices is whether the two-year clock began running at the time of Wallace's arrest in 1994, when he was released from custody in 2002, or some point in between.

The 7th U.S. Circuit Court of Appeals said Wallace should have taken some action in the two years following his arrest. In similar cases in other parts of the country, appeals courts have said false arrest claims can't be filed until convictions are nullified.

Wallace was 15 when Chicago police officers Kristen Kato and Eugene Roy brought him in for questioning in the murder of John Handy in January 1994. In the course of an interrogation that went through the night, Wallace said he was subjected to a ''good cop/bad cop'' routine that included being slapped and kicked. In the officers' account, Wallace was free to leave at any time.

Eventually, Wallace confessed. He tried and failed to have his statements thrown out on the grounds that he was arrested without probable cause and that his confession was coerced.
He was convicted of first degree-murder in 1996 after a trial in which Wallace claimed he shot Handy in self defense or, alternatively, in mutual combat, attorneys for the officers argued in court papers.

Wallace appealed the conviction. The Illinois Appellate Court ruled in 1998 that the arrest was made without probable cause, but still ordered a lower court to determine whether the confession could stand.

The court said it could, affirming the conviction. The Illinois Appellate Court considered the case again and this time, reversed the conviction.

Prosecutors at that point decided not to try Wallace again, but would reinstate the murder charge against Wallace if they get additional evidence, the officers' lawyers said.

The case is Wallace v. Chicago Police Officers, 05-1240.

DNA Clears Man in Rape, Judge Rules

2006-11-03T10:16:00.000-05:00

This article appeared in the New York Times on November 1, 2006:

DNA Clears Man in Rape, Judge Rules

By THE ASSOCIATED PRESS

DALLAS, Oct. 31 (AP) — A man convicted of rape 25 years ago walked out of a courtroom a free man Tuesday after a judge ruled that he would probably not have been found guilty if DNA testing had been available.

“My faith was tested, and I won,” said the man, Larry Fuller, 57, who trembled slightly as he left the courthouse carrying two worn Bibles.

After the ruling by Judge Lana McDaniel of District Court, supporters of Mr. Fuller broke out in applause. The assistant district attorney, John Rolater, who was not involved in the original case, apologized to Mr. Fuller.

“Thank you,” Mr. Fuller said. “Apology accepted.”

Mr. Fuller was sentenced to 50 years after jurors convicted him of aggravated rape in 1981, finding that he had broken into a woman’s apartment and raped her, using a butcher knife to cut her thumb, neck and back as she struggled.

The victim looked at two photo lineups, both of which included Mr. Fuller. She picked him in the second one, even though he was bearded in the picture and she had said her attacker had no facial hair.

At the time, Mr. Fuller was a 32-year-old Vietnam veteran who had received the Air Medal for taking care of his crew. He was pursuing a career in art and had worked as a driver and warehouse employee.

Mr. Fuller had no convictions for sexual assault, but he had pleaded guilty to robbing a convenience store in 1975 and had been sentenced to three years in prison. He served 18 years on the rape conviction. He was released in 1999 but sent back last year for a parole violation.
All the while, Mr. Fuller professed his innocence in the rape case and tried to prove it through DNA. This year, the Dallas County district attorney’s office agreed to allow the additional testing.

Mr. Fuller’s subsequent exoneration makes him the 10th Dallas County man in five years cleared by DNA testing. More than 20 men have been exonerated in Texas by such testing, according to the Innocence Project. Nationwide, 185 people have been cleared through DNA after their convictions, according to the Innocence Project. In most cases, testimony from mistaken witness identification led to the wrongful conviction, the group said.

Finally, a Life Resumed in New York City

2006-10-31T16:52:00.000-05:00

This article appeared in the New York Times on October 29, 2006:

Finally, a Life Resumed

By JEFF VANDAM

AFTER 22 years in Dannemora, Sing Sing, Attica, Great Meadow, Elmira and the Downstate Correctional Facility at Fishkill, Alan Newton came home to the Bronx one unremarkable day last July, his age doubled, his life renewed. As had been proved incontrovertibly, he did not commit the crimes that made the prisons of New York State his home for more than two decades.

One June evening in 1984, Mr. Newton had gone to see “Ghostbusters” in a Downtown Brooklyn movie theater, and within a week he found himself accused of rape, robbery and assault. He had not even been in the Bronx at the time the crimes were committed, but no matter. He did the time.

Now, the years of prison, and endless efforts to have the city find the DNA evidence that would prove his innocence, were history. Mr. Newton returned to the city of his birth with a characteristic sense of purpose. He had successfully taken on the system that wrongly imprisoned him; now, he would take on a normal life, or a life approaching normal.

To encounter Mr. Newton’s muscular frame and his smiling, unlined face while knowing nothing of his background is to meet a congenial man who seems happy simply to be living in his hometown again. And he is no wizened Rip Van Winkle. Although Mr. Newton, 45, has spent nearly half his life behind bars, he is unexpectedly comfortable in 21st-century New York, ready not only to navigate its high-tech byways, but also to discuss everything from the viability of the Mets’ current outfield to the exploits of Agent Jack Bauer on the television series “24.”

In addition, he is dealing with such mundane matters as finding a place to live, having enough money to buy food and clothing, and making his way to and from classes at Medgar Evers College in Crown Heights, Brooklyn, where he is earning a bachelor’s degree in business administration. In these and other respects, Mr. Newton’s is a life resumed, if not restored.

•One drizzly evening a few weeks after his release, Mr. Newton took a stroll along the narrow, boutique-lined streets of NoLIta, a neighborhood that at the time he entered the penal system was simply considered part of Little Italy. The storefronts filled with glittery drop earrings and pointy-toed suede heels represented a drastic change from the warehouses and food distribution centers of old. But asked if the place looked different, Mr. Newton simply shrugged.

Heading west toward SoHo, he came upon a former post office that had been gutted and transformed into a palace of translucent glass and ambient sound. It was the Apple Store, where snowy white computers flanked by matching speakers sat atop every table, alongside tiny iPods.

Admittedly, some of what’s new in New York has caught him unawares. He has been bemused, for example, by the offerings at Starbucks. Of any given Starbucks product, Mr. Newton said, "It tastes like a milkshake." And iced coffee? “It used to be, if somebody had cold coffee sitting there, they didn’t want it anymore.”

But mostly, he is taking the new New York in stride. At the Apple Store, Mr. Newton looked at the equipment with respectful interest, but he was neither shocked nor amazed. Less than two months out of prison, which he entered the year the first Macintosh personal computer hit the market, he was hardly fazed at all by the nation’s palace of personal technology. Almost indifferently, he checked his e-mail on one of the wireless computers — his sister Grace taught him how to do this — before heading out to the damp of Prince Street.

LATER, over dinner within the snug confines of Lombardi’s Pizzeria on Spring Street, it became clear through Mr. Newton’s remembrances and observations that little in the way of material comforts could surprise a man who had caromed like a racquetball through countless prisons over 22 years — “the New York tour,” as inmates call it. Only in the brief but ever-present mentions of “when I was inside,” as he puts it, does the sheer enormity of what weighs on him become apparent.

In the summer of 1984, Mr. Newton was a 23-year-old business representative trainee for the New York Telephone Company, living with his two brothers and five sisters in a public housing project in Morrisania in the Bronx. In his off-hours, he cut loose at hip-hop dance parties up and down the Bronx, especially in Echo Park on Valentine Avenue, at the schoolyard of Public School 63 and at clubs like the T Connection and the Sparkle.

“Wherever the parties were, I was there,” Mr. Newton recalled over a large half-eaten pizza. “Somebody jumped out a cab, they’d say: ‘Hey, there’s a party uptown at the T Connection! Let’s go!’ ”

But after he saw “Ghostbusters” on the evening of June 22, there would be no more dance parties. That night, a 25-year-old woman was grabbed as she was leaving a bodega in the Tremont section of the Bronx, and she was raped once in nearby Crotona Park and again in an abandoned building. Her eye was sliced by the assailant, who drove a Pontiac Grand Prix, and her money and cigarettes were taken.

Though the victim identified the man who attacked her as “Willie,” she picked Mr. Newton out of a photo lineup, as did a clerk at the bodega. Mr. Newton did not own a Grand Prix, but he lived less than a mile from the bodega, and he had a criminal record from a fight as a teenager. The following May, he was convicted. The sentence was 13 1/3 to 30 years.

Maintaining his innocence in prison long after most convicts do, Mr. Newton formally requested DNA testing multiple times, only to be told that the relevant evidence could not be found.

In 2004, his case was taken up by the Innocence Project, a nonprofit legal clinic based in Manhattan that has helped free prisoners based on DNA evidence. Last November, the evidence was found in a decrepit police warehouse on Pearson Place, a twig of a street in Long Island City, Queens, that sits between a rail yard and the Long Island Expressway.

The discovery inside the four-story brown building, home of the New York Police Department Property Unit, was not the result of luck. The evidence was in Bin No. 2002-1, which, as it turned out, was exactly where everything needed to exonerate Mr. Newton was always supposed to be.

Mr. Newton does not speak much about his years behind bars. “I got into a few fights,” he said, “but basically, you know, it was the years I did that were hard. I basically came out of there unscratched, compared to other guys.”

He sometimes wonders, however, about the chain of events that led to his release. Somehow he acquired a photograph of the inside of the building at Pearson Place. Every so often, he takes it out and looks at the image of barrels and barrels containing evidence, and the forklifts required to move them around.

HERE is the most startling news about Alan Newton: he is not angry. Hardly a trace of bitterness can be heard in his soft, unemotional voice when he discusses the events of his life, and this despite the fact that his troubles aren’t entirely behind him.

Nearly every day, Mr. Newton goes through endless trials that are part of his efforts to re-enter a society from which he was excluded for more than two decades. Simply acquiring a document stating his identity, for example, a piece of paper most people obtain with barely a moment’s thought, presented an almost insurmountable challenge.

Because he had no birth certificate within easy reach and the state would not take a prison ID as proof of his existence, Mr. Newton found himself out of luck when he requested the photo ID that the state’s Department of Motor Vehicles routinely issues to New Yorkers who don’t drive.

His luck changed only after The Daily News published an article about his unexpected release from prison; he cut out the article, took it with him to the D.M.V. office on 125th Street in Harlem and held it up to the window to show the clerk, who finally relented.

“I don’t know how to describe it,” Mr. Newton said of the month it took him to receive an otherwise routine document. “Not having ID, it’s like you’re not a person, especially now, here in New York.” Now, he added with relief, “I can travel without a newspaper article.”

Crown Heights is not known as a college town. The low-rise red-brick buildings of Medgar Evers College hardly stand out along the stretch of Bedford Avenue on which they sit, overwhelmed by the Ebbets Field Apartments next door, a collection of light brown towers that occupy the land once filled by the mourned ballpark.

The neighborhood is neither quiet nor lush with trees and brownstones. On the contrary, it is loud and lively. Trucks and auto body shops are a constant. The college’s neighbors on the other side of Bedford Avenue include a check-cashing place, the Balboa Caribbean Restaurant, the Principe de Paz Iglesia de Dios Pentecostal, and the Coral Church of Righteousness and Light Inc.

Bright and early most mornings, this is the scene Mr. Newton enters.

After 22 years of being rigidly kept in his place in prison and being told repeatedly that his situation could not be helped, Mr. Newton now seeks quick and definitive solutions to even the most ordinary problems. This was apparent the afternoon this summer when he elbowed his way through throngs at the student bookstore in search of a textbook called “Discovering the Universe,” for his course in physical science.

Blending into the crowd in his dark pants and off-white, open-collar shirt, he walked up to a classmate who was standing in line and addressed her in a friendly but businesslike manner. His voice, typically soft and pleasant, grew louder and more direct. “They got that book?” he asked. She shook her head.

This was clearly not the first time he had confronted such a problem.

Immediately, Mr. Newton pulled out one of his two cellphones, each a gift from a brother, and dialed direct to the office of the college’s vice president of operations, which was helping him get settled.

“Yes, this is Alan Newton, again,” he said crisply. “Could you inform Mr. Davis that they don’t have that book, either?”

Thanks to courses he took in prison, Mr. Newton had earned an associate’s degree in business administration and accumulated 99 academic credits. Nevertheless, applying to Medgar Evers was hardly a snap.

“The first time Alan came into our downtown office, this lady was like, ‘Why are you applying for this so late?’ ” said Christopher Hundley, acting director of the college’s office of communications, describing his first meeting with Mr. Newton just weeks after his release.

“Then he said, ‘I’m that guy’ ” — the guy whose face and story had been splashed all over CNN and the newspapers. “We had no idea. It’s like, what do you even say?”

Mr. Newton will most likely need to spend only one year at Medgar Evers to earn all the credits he needs to acquire a bachelor’s degree. Beyond that, he is not certain what he will do. With his vast experience in wrangling with the criminal justice system, law school often comes to mind, as does starting some sort of business on the Internet.

“I got to plan,” Mr. Newton said. “I got to think. And I got to do for myself now, to make things work.”

Relaxing one evening a few weeks ago in an upper-deck seat behind home plate at Shea Stadium, a steaming hot dog in one hand and a Spaten Oktoberfest beer in the other — it was Oktoberfest night at Shea, though it was still September — Mr. Newton seemed at home. He had not been to Shea since 1983, but it was hard to tell. Did the old blue bowl of Flushing look any different?

“Nahhhh,” he replied. “All stadiums look the same.”

Mr. Newton, who was wearing warm-up pants, aerodynamic Nike sneakers and a black Medgar Evers hat, settled into his seat and began discussing the fortunes of that other New York team in the Bronx. He expounded on the career of Jose Reyes, the Mets’ All-Star shortstop, who was born a year before he went to prison.

During the game, Mr. Newton got a call on one of his cellphones from an old friend. He invited him to attend a family gathering that Saturday, a nephew’s birthday party he wouldn’t miss for the world.

“I got a whole bunch to get off my chest,” he told the caller with a laugh. “You got like nine hours?”

Mr. Newton’s parents died while he was in prison, but the other members of his family, which includes a multitude of nieces, nephews and cousins, have stood by him and continue to stand by him. His younger brother, Ray, for example, an aerospace engineer who lives in Bloomfield, N.J., often comes to the city to hang out with Alan, doing ordinary things like watching the Giants on television and wandering around Manhattan.

Yet Ray Newton and his siblings know that their brother is still struggling to maintain the basics of his life. He does not have his own apartment; he splits his time between a friend’s place in Harlem and the home of his other brother, Anthony, in Canarsie. He is exploring the possibility of going to court to seek compensation for his wrongful conviction, but when he was released from prison he received nothing.

Mr. Newton is earning a little money doing counseling and clerical work at the Male Development and Empowerment Center at Medgar Evers, where ex-convicts and young men from struggling backgrounds go to seek help. But he needs help from his family to buy basics like food and clothing, and, perhaps more important, to provide camaraderie and support.
“The transitioning is still a little rough on him,” Ray Newton said. “If he’s going somewhere for the first time, he wants somebody with him. It’s strange to go from being isolated to the heart of New York City.”

In their time together, Ray Newton has been able to assess small changes in his brother’s personality; while the Alan Newton of old was a little sloppy and disorganized, today he makes an effort to keep his life in order. “Al used to pay me and my little sister to clean his room and tidy up his stuff,” Ray said. “And now, to see how he’s very organized, it’s shocking to me.”
Even so, after years of communicating solely with visitors, prison officials, lawyers and fellow inmates, Mr. Newton is ready to greet life again. Riding the No. 7 train home from the Mets game that September night, he stretched out comfortably on a row of shiny orange and yellow seats. “It’s just good talking to people again,” he said, describing the experience of randomly meeting strangers on 42nd Street, asking for directions or just chatting. Half-smiling, he gazed out the window. “I missed this, you know?”

As the train descended into the ground, it hurtled past Pearson Place, the street where the evidence that brought Mr. Newton his freedom was held and presumed lost for so many years. But he did not notice. He was looking forward to getting back to the city.