Atlanta Journal Constitution

DNA Denial: Ga. inmate learns courts callous to evidence of innocence

By Brad Schrade and Jodie Fleischer - The Atlanta Journal-Constitution 2
Posted: Wednesday, May 18, 2016

Bharadia in tux

DNA evidence tested after his trial points to another man, but the courts say that isn’t enough to get a new trial. Bharadia was in his mid-20s when he went to prison.

It’s been 15 years since the sexual assault that sent Sandeep “Sonny” Bharadia away for life, but Kisha Pitts can’t let go of the case or the mundane details of her life that weekend.

“I feel like there’s a man sitting in prison for a crime he didn’t commit,” she said. “It actually has done something to me because I know he’s innocent and just feel like the justice system failed him.”

Pitts, a suburban Atlanta mother, testified as an alibi witness at the 2003 trial. She says it was impossible for him to have committed the crime. She described how Bharadia, her husband’s friend from work, spent significant parts of the weekend with their family in Stone Mountain — 250 miles away from the Savannah suburb where a young school teacher was sexually assaulted by a man inside her apartment as she returned home from church.

Despite the lack of physical evidence linking Bharadia to the crime scene, a jury convicted him swiftly. Ten days after the attack, after one inconclusive lineup, the teacher identified him as the man who blindfolded her, bound her and sexually assaulted inside her bedroom.

The Nov. 18, 2001 assault occurred on the same Sunday that Pitts said Bharadia came by the family’s Stone Mountain home twice to retrieve and return tools borrowed from her husband.

“I think about Sonny all the time,” Pitts said. “He’s missed a lot of his life.”

Pitts is speaking out publicly, as Bharadia, 41, awaits a hearing later this summer in a last ditch appeal to get a new trial. He has maintained his innocence from the start. And DNA evidence recovered from skin cells inside the attacker’s gloves, tested a year after Bharadia’s trial, was from someone else. But at the time investigators failed to run it through a criminal database to identify that man.

The Georgia Supreme Court last year denied Bharadia’s request for a new trial even though the DNA from the gloves matched Sterling Flint, his acquaintance who spent time in prison for a string of burglaries in the 1990s. Investigators found items stolen from the teacher’s apartment in Flint’s possession, but he cut a deal deal with prosecutors, pleaded guilty to receiving stolen property and testified against Bharadia at his 2003 trial. In 2012, the DNA from inside the attackers gloves was run through a criminal database and matched Flint’s DNA, raising doubts about his testimony in the original trial.

“Flint was trying to figure out how he was going to get out from under this crime,” said Georgia Innocence Project Director Aimee Maxwell, who joined Bharadia’s case in 2011. “I am sure (Flint) knew that he was in incredible trouble.”

In Georgia, DNA evidence isn’t always enough to overturn a conviction. A 2011 state law intended to use DNA evidence that emerges after conviction to help free innocent people doesn’t guarantee a new trial.

“Some states are more open to granting a new trial based on new evidence of innocence,” said Julie Seaman, an Emory law professor who has written about Bharadia’s case in The New York Times. “Georgia, however, is one of the states where there is a narrower avenue for getting a new trial.”

That was a flaw in the legislation passed in Georgia, according to its sponsor, who said proponents ran into stiff opposition from prosecutors and others who opposed an automatic new trial in cases where new DNA evidence suggested innocence. Instead, the law allows for DNA testing, but the original trial judge gets to determine if a new trial is warranted.

“The whole goal of the criminal justice system should be to find the truth,” said Stephanie Stuckey Benfield, the former Democratic state legislator who sponsored the bill. “What’s the point of doing testing if you can’t get it back in front of the court and have a new trial?…It’s frustrating and it’s a breakdown in the system.”

The Bharadia case is the second spotlighted this year in an AJC/Channel 2 Action News examination of the DNA evidence law. In a 1998 case in Cook County, Devonia Inman, now 38, was convicted of murder and is serving a life sentence without parole for the death of a Taco Bell manager in Adel who was shot in a late night robbery.

Eyewitness testimony linked Inman, who had recently moved to the small South Georgia community, to the crime, but several witnesses later recanted their statements. And DNA evidence recovered from a mask used in the crime was tested more than a decade after his conviction.

It pointed to another killer who is serving time for a double murder that occurred after the Taco Bell crime.

Inman’s lawyers petitioned a Cook County judge for a new trial in 2014, but it was denied. And the Georgia Supreme Court chose not to take the case.

“It’s especially heartbreaking when I hear the facts of [Inman’s] case, that there were two victims subsequent to this because the wrong person was convicted,” said Benfield.

Bharadia’s alibi

Pitts has vivid memories of the fateful weekend in mid-November 2001 that forever altered her view of the criminal justice system. The weekend stood out because she attended a close friend’s wedding reception on Nov. 16, a Friday.

The next morning, Sonny Bharadia, her husband’s friend from work, who Pitts was not particularly close to at the time, stopped by the family’s Stone Mountain home to repair her minivan. He returned later in the day with his girlfriend and the girlfriend’s daughter. They were headed to see the new Harry Potter movie at the Starlight drive-in and offered to take the Pitts’ three young daughters. The girls didn’t get home until pretty late that night, Pitts recalls.

Bharadia came back the next morning, a Sunday, between 9 a.m. and 9:30 a.m. to borrow tools from Pitts’ husband. He returned them later that afternoon between 5 and 6 p.m., before dark, Pitts said. She said she felt prosecutors tried to confuse her about what she remembered, but she was unwavering.

“I told the truth as I knew it to be, based on the facts that I knew were accurate,” she said. “I’m 100 percent sure that if it happened that weekend, he couldn’t have done it.”

Bharadia’s girlfriend, who went to the movie, also testified. But court transcripts show prosecutors tripped her up on the dates while she was on the stand, getting her to testify they may have gone to the movie the weekend before. The movie didn’t open until Friday, Nov. 16, the weekend of the crime.

A fateful photo lineup

Prosecutors painted a very different portrait of Bharadia and his actions that Sunday.

They say he was burglarizing the teacher’s apartment inThunderbolt, a small town east of Savannah that Highway 80 slices as it runs out to Tybee Island. She came home from church a little after noon and found a strange man in her apartment. He forced her into a closet, blindfolded her and told her to undress.

The woman’s attacker held her at knife point in her apartment for more than two hours, she said. At one point he moved her to her bed and sexually assaulted her. She was blindfolded for much of the attack, but she testified that she was able, at times, to see under the blindfold and catch glimpses of her attacker.

Emotions were still raw from the 9/11 terrorist attacks that occurred two months earlier. The victim said her attacker spoke with a Middle Eastern accent, told her that al-Qaida had sent him to steal her computer and that he would kill her if she looked at him or did anything stupid. Bharadia speaks with a Southern drawl.

The teacher described a pair of blue-and-white golf-style gloves that investigators later recovered from Flint’s girlfriend’s home, along with a knife and other items stolen from the victim’s apartment. Flint’s girlfriend told police that Flint brought the items to her home.

The victim said she recognized Flint in a photo lineup police showed her a week and a half after the crime. She also recognized another man, but did not positively identify either as her attacker. When investigators showed her a second lineup the next day she picked Bharadia, who at the time was on parole for a string of car theft convictions. The teacher later testified that when she saw his face she knew he was her attacker.

“I automatically knew that was who it was,” she testified. “Without any doubt whatsoever.”

Police lost both sets of photo lineups before trial, but the results were used to convict Bharadia anyway.

Faulty eyewitness testimony

Steve Cole, an adjunct professor of psychology at Emory University, has researched eyewitness identification for four decades. He has consulted on more than 100 cases, including Bharadia’s, and has never seen a line-up misplaced in any other case.

“It’s horrendous, it’s astounding,” said Cole.

Like other researchers, he has concluded that eyewitness testimony alone can be faulty.

At least 329 inmates have been exonerated by DNA since 1989. Roughly 75 percent of those were wrongly identified by eyewitnesses.

“It is staggering,” Cole said. “By far, the most unreliable kinds of evidence are those of eyewitnesses.”

In this case, the victim was in a highly stressful situation, was identifying someone of a different race and wasn’t presented the photo lineups until a week and a half after the crime — all factors that can decrease the reliability of the identification, Cole said.

The jury convicted Bharadia based on the victim’s testimony and the testimony of Flint. In 2012, after Maxwell’s Innocence Project convinced a judge that the DNA from the gloves should be identified, the match came back to Flint.

He had already served his sentence for receiving the victim’s property and was back in prison for a more recent series of burglaries. Flint was recently released on parole and lives in Atlanta. He declined to comment when reached by phone.

Life in prison and dwindling options

Bharadia, too, might have been a free man by now. Before his 2003 trial, he rejected a plea offer that would have sentenced him to 10 years in prison. Instead, he is serving life without parole at the Valdosta State Prison.

The Georgia Department of Corrections has effectively silenced Bharadia from talking about his case. Bharadia signed an affidavit in April requesting to be interviewed after reporters contacted his lawyers. But the department denied the request. Officials refused to let reporters meet with him or even to let him speak by phone.

And as has his lawyers prepare for what could be his final hearing later this summer, the courts in Georgia thus far have found no compelling legal reason to order a new trial, even as the DNA evidence points to the strong possibility someone else committed the crime.

His lawyers plan to argue that his original defense lawyer mishandled the case. By not ordering DNA testing before trial, they will argue that Bharadia received ineffective counsel.

The courts have previously found that to be unpersuasive, but their logic has been inconsistent when it comes to his original attorney’s performance. On one hand, they’ve ruled that Bharadia’s attorney was ineffective because he could have tested the gloves for DNA before trial and didn’t. But winning a new trial based on ineffective counsel relies on a different legal standard. On that measure, the Georgia courts have found his attorney was effective.

“Innocence doesn’t really matter to the courts,” said Maxwell. “It’s caused many sleepless nights, trying to figure out how it is we ended up here.”

Jodie Fleischer is an investigative reporter for Channel 2 Action News.

Innocent Imprisoned
Truth in Justice