Honolulu Star Advertiser

Years of toil led to freedom for innocent man
The release of a Maui inmate is the first success by the Hawaii Innocence Project

By Michael Tsai

Feb 13, 2011

Twenty years of "Law and Order" notwithstanding, securing the release of the wrongfully imprisoned is an arduous process measured in years of anonymous toil, not 12-minute programming blocks.

It is no crime, therefore, that so few Hawaii residents were aware of the existence of the Hawaii Innocence Project until last month's release of a Maui man who spent two decades in jail for a crime that DNA evidence now says he did not commit.

Maui Circuit Judge Joel August's decision to throw out rape, kidnapping and burglary convictions against Alvin Jardine III marked the first time that the Hawaii affiliate of Barry Scheck and Peter Neufeld's national Innocence Project had secured the release of a convicted criminal through independent investigation and DNA testing. For the Hawaii project's near-skeletal staff of attorneys and law students, it was a milestone moment in an ongoing effort to ensure that flaws in the legal system are duly checked.

"(The legal system) strives to get to that point where these kinds of errors are prevented, but it will never happen," said Virginia Hench, the Hawaii Innocence Project director and a University of Hawaii law school professor. "These things can happen even when you're acting in good faith. We don't assume a person is innocent or guilty, but we look at the available information with fresh eyes. If they're telling the truth, what could prove it?"

Scheck and Neufeld, who both served on the defense team in O.J. Simpson's 1994-95 murder trial, founded the Innocence Project in 1992 to take advantage of advances in DNA testing and to change public policy in an effort to exonerate people who have been wrongfully convicted and imprisoned. With affiliate programs now spread out across the country, the project has helped overturn the convictions of some 260 people.

Neufeld first contacted UH's William S. Richardson School of Law about starting a local Innocence Project in the late 1990s, but the school lacked the resources to move forward. By 2004, however, the school reached an agreement to collaborate with California Western School of Law faculty and students and the California Innocence Project, enabling the Hawaii project to begin a year later.

Hench assumed the role of director and was joined by attorneys William Harrison, Brook Hart and Susan Arnett, who share a single professorship salary. The staff works with 12 to 15 second- and third-year law students in a clinical course each semester. Before a recent move, the project was housed in an office roughly the size of a parking stall, according to Hench.

While the project gets requests for assistance every day, it is able to act only on those in which the person is currently incarcerated, is serving a lengthy sentence, was convicted in Hawaii and has a credible claim of innocence of the crime for which they are incarcerated.

"By the time people come to us, they've exhausted every other avenue," Harrison said. "There's usually very little evidence and people have already gone over it again and again. It's very tedious work trying to find that one proverbial straw that will help get a conviction overturned."

The project does not charge for its services, relying instead on grants and donations to cover the considerable expense of vetting and testing potential evidence. Among the project's benefactors, the Office of Hawaiian Affairs has been particularly active in covering the costs of investigations for prisoners of native Hawaiian descent.

Harrison said it typically takes years to find and evaluate evidence that has the potential to exonerate a client. From there, it can take several months for a lab to properly test each sample and report a set of legally viable results.

Typically, Harrison said, the process is slowed by the active resistance of those who prosecuted the prisoner.

In the case of Jardine, who had served 20 years of a 35-year sentence, Innocence Project attorneys encountered minimal resistance from the prosecutor of the case — "He had the same interest in making sure that the right person was in jail," Harrison said — yet it still took two years of intensive work to build an argument strong enough to get Jardine's convictions thrown out.

Jardine, 41, was convicted in 1992 on four counts of first-degree sexual assault, three counts of attempted first-degree sexual assault, kidnapping and first-degree burglary. He was sentenced to 35 years after he was identified by the victim as the person who broke into her home, held her at knifepoint and repeatedly raped her during a 1990 attack. But two separate trials ended in hung juries before a third jury, compelled to reach a decision by the presiding judge, found Jardine guilty.

Jardine maintained his innocence throughout, even denying himself the possibility of an early parole by refusing to enter a sex-abuse treatment program that would have required him to admit guilt. He served most of his time in mainland prisons, most recently in Arizona.

Still, he and his family held out hope that he would one day be exonerated. The process started when they contacted the Innocence Project in 2008.

All the evidence from the original case had been destroyed save for a tablecloth that had covered a chair on which the rapist sat during and after the assault. Once suitable genetic material was identified on the fabric, the tablecloth was sent to Orchid Cellmark for extensive — and costly — DNA testing. The results excluded Jardine as the source in three of the four samples; tests on the remaining sample were inconclusive.

That was enough to sway Judge August, who ruled that the original DNA evidence was insufficient and that the new results would likely have resulted in a different outcome at the trial had they been available.

The U.S. Justice Department estimates that as many as 5 percent of people incarcerated in the United States have been wrongfully convicted, but Hench said that figure is likely unreliable given the number of variables in play. According to Harrison, the Hawaii Innocence Project is investigating about 20 active cases.

"I think it's important for people to realize that not everyone who is in prison is guilty," Harrison said. "We assume that if they went through trials and appeals that they must be guilty, but to be honest there is no real presumption of innocence. People tend to assume a person is guilty unless they are proven innocent. It's important to educate the public that innocent people are sometimes convicted and that something can be done to correct those problems."

For more information on the Hawaii Innocence Project, or to download a screening form, visit www.innocenceprojecthawaii.org.

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