New York Times

July 6, 2006

New York Fails at Finding Evidence to Help the Wrongfully Convicted

Alan Newton, a former bank teller from the Bronx, is due to leave prison today after serving 22 years for a rape he did not commit -- a victim first of mistaken identification, then of a housekeeping problem of epic scope.

For more than a decade, Mr. Newton, 44, pleaded in state and federal courts for DNA testing that was not available when he was tried, but Police Department officials said they could not find the physical evidence from the case. That evidence, a rape kit taken from a woman who was kidnapped and assaulted, was located only after a special request was made last year by a senior Bronx prosecutor to a police inspector.

The rape kit, it turned out, was in its original storage bin from 1984, Barrel No. 22, in the same police warehouse that the authorities said they had searched at least three times since Mr. Newton first asked in 1994.

The long-delayed DNA tests proved the innocence of Mr. Newton, who had refused to participate in a sex-offender treatment program in prison, ruining his chance for an earlier parole. He plans to come to court today dressed in one of the suits he wore to work half his lifetime ago.

At least 17 other people who have been convicted of serious crimes in New York City, and who maintain that they are innocent, have been unable to obtain DNA testing because the authorities say they cannot find the evidence, said Vanessa Potkin, a staff lawyer with the Innocence Project at the Benjamin N. Cardozo School of Law in Manhattan, a legal clinic that helps convicts get DNA tests.

By the Innocence Project's tally, the city has one of the worst records in the country for finding old evidence when it is sought by people seeking to clear their names:

Of the New York City cases that the project has been unable to resolve, 50 percent involved DNA evidence that had been lost or destroyed, compared with an average of 32 percent nationally.

"It has been much more difficult for us to locate forensic evidence in New York City than any other jurisdiction," Ms. Potkin said. "Mr. Newton could have been proven innocent in 1994."

A police official, Deputy Commissioner Paul J. Browne, said the department was investigating why the rape kit had not been found earlier. "Beginning five years ago," he said, "the Property Clerk's Office improved its procedures regarding DNA evidence, which includes approximately 17,000 rape kits, by segregating DNA evidence and storing it separately from all other evidence."

With more people and more crime than any other American city, New York also stores more evidence — over 1 million pieces in a central warehouse in Queens, and more in satellite facilities in each borough — and until recently, its inventory system consisted of handwritten ledgers and index cards. Besides storerooms run by the Police Department, the Office of the Chief Medical Examiner also keeps some biological evidence.

One man who, with a co-defendant, has unsuccessfully chased evidence through the criminal justice system, said he appreciated that vast amounts of material must be stored but said even tiny fractions of it could have the power to right lives.

"I understand there's megatons of evidence all over the place," said the man, Reginald Connor, 38, who was paroled two years ago. "But these are people's lives that are being turned upside down because of stuff like this. Where is the stuff that can overturn our case and show we are innocent?"

Except for the outcome, Mr. Newton's case in the Bronx has a number of parallels to the case of Mr. Connor in Brooklyn, where he was convicted with another man, Everton Wagstaffe, of kidnapping a young woman in 1992. She was found murdered, but a judge dismissed homicide charges against them for lack of evidence.

Both the Bronx and Brooklyn crimes took place late at night, on streets in high-crime neighborhoods, and the prosecution cases were based almost entirely on the testimony of a single eyewitness. Both show the high stakes and perplexing difficulties of tracking down old evidence.

In the Bronx case, a woman leaving a bodega around 4 a.m. was forced into a car by a man who sexually assaulted and robbed her in a park. After she walked away, the attacker struck again, this time taking her to an abandoned building, where he then severely cut her face.

Mr. Newton, who had a criminal record from a fight as a teenager, was picked out of a photo array, then identified by the victim. Although she later said she was unsure if Mr. Newton was the assailant, the prosecution's case rested almost entirely on her testimony and a fleeting identification by the bodega clerk; Mr. Newton offered an alibi, saying he had spent the night at the home of a woman in Queens. No biological evidence was presented at the trial, and he was convicted in 1985.

In 1994, Mr. Newton filed the first of his own motions to seek DNA testing of the rape kit, which contained swabs taken from the victim's genitals immediately after the attack. In 1994, 1997 and 1998 he lost those motions because the evidence was not available.

"Currently there is no original voucher in the active file, therefore it must have been destroyed," Police Sgt. Patrick J. McGuire wrote in 1998. As for any record of the destruction of the evidence, Sergeant McGuire wrote: "Unfortunately there was a fire in our facility during the summer of 1995 which destroyed these files."

In 2005, Ms. Potkin asked the chief prosecutor of sex crimes in the Bronx, Elisa Koenderman, to help.

"Many district attorneys would have relied on the representations that officials in the past had already 'looked,' and the kit was lost or destroyed," Ms. Potkin said yesterday.

Ms. Koenderman wrote to Inspector John Trabitz, who is in charge of the police evidence facilities, sending along a copy of the original evidence voucher.

The rape kit was found in Barrel 22, and tests by two laboratories reached the same result: The evidence "conclusively excludes Mr. Newton as the source of the sperm recovered" from the victim, according to a motion filed jointly by the Innocence Project and the Bronx district attorney's office.

"I can't explain why the evidence wasn't found before," Ms. Koenderman said. "It's tragic. I don't know what else to say. This man did not commit this crime and has languished in jail this many years."

In the Brooklyn case, the charges against Mr. Wagstaffe and Mr. Connor were based largely on a single eyewitness: a troubled drug addict who admitted during testimony that she continued to use drugs.

A young woman, Jennifer Negron, vanished from a street in East New York late one night in 1992, and her body was found the following morning. The witness came forward some hours later and told the police that she saw Mr. Wagstaffe and Mr. Connor drag Ms. Negron into a car.

The case was investigated under the supervision of a detective in Brooklyn who was involved in three wrongful convictions and who said after he retired that the workload in his precinct was so high that he almost never had time to investigate serious crimes properly.

Both Mr. Wagstaffe and Mr. Connor denied being involved and took polygraph tests, which they passed but which are not admissible as evidence. They were convicted and sentenced to 12½ to 25 years.

From prison, Mr. Wagstaffe began to file motions seeking tests of the material recovered from Ms. Negron's body, but the evidence has not been found.

During the autopsy, the medical examiner's office had prepared swabs of her genitals, clipped her fingernails, which had blood beneath them, and recovered a single black hair from the palm of one of her hands.

A lawyer who represents Mr. Connor, Elizabeth Emmons of the Legal Aid Society, said she could not find the evidence in the medical examiner's office and has asked police property clerks to help in the search. None of it has been located.

Mr. Connor said that when he appeared before the parole board, he refused to budge on his assertion of innocence. On his release in 2004, he was forced to register as a sex offender. He discovered that meant he could not live in the new home he and his wife had bought because it was too close to a school, so he is renting an apartment separately nearby to comply with the terms of his parole.

Mr. Wagstaffe, 37, who says he will not attend a parole hearing, remains in prison and continues to hunt for the missing evidence. "I have refused to go to the parole board and will continue to refuse," Mr. Wagstaffe wrote in a recent letter. "Because I would rather die inside here fighting to prove my innocence than to live on the street like my co-defendant and carry the title of, and register as, a sadistic murderer and rapist."

The reporter for this article is a co-author of the book "Actual Innocence" (Doubleday, 2000), with Barry C. Scheck and Peter J. Neufeld, who founded the Innocence Project.


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