February 8, 2009
New Efforts Focus on Exonerating Prisoners in Cases Without DNA Evidence
By JOHN ELIGON
In 1988, nine years after Gary Dotson was convicted of raping a woman in a Chicago suburb, his lawyer tried to clear his name with what was then a novel approach: DNA testing, which was conducted on the woman’s underwear.
The DNA did not match Mr. Dotson’s, and a year later, the rape charge was overturned, making him one of the first people in the country exonerated as a result of DNA evidence.
Two decades later, DNA evidence has been used to exonerate more than 230 people wrongfully convicted nationwide, including 24 in New York State. The resulting stories of innocent men being freed after decades in prison have captured the public’s imagination and provided fodder for a number of Hollywood dramas.
But the proliferation of such exonerations, as well as the wider availability of DNA evidence, has also made it harder for prisoners seeking to prove their innocence in the much larger number of cases that do not involve DNA evidence. Many lawyers have grown more reluctant to take on these kinds of cases because they are much harder and more expensive to pursue.
Now efforts are emerging to change that.
Glenn A. Garber, a defense lawyer in Manhattan, in January began the Exoneration Initiative, a clinic devoted to investigating wrongful-conviction cases without DNA evidence.
A similar clinic began operating the same month at the University of Michigan, and a new clinic at the University of Virginia is also planning to handle mostly non-DNA cases.
So-called innocence projects at Northwestern, the University of Wisconsin and the University of Cincinnati have reported that their non-DNA caseloads have risen. And for almost a year the district attorney in Dallas has been focusing on wrongful-conviction claims that lack DNA evidence.
“All these hundreds of DNA exonerations across the country have demonstrated to anyone who’s paying attention that there are far more innocent people in prison than anybody could imagine,” said James McCloskey, the founder of Centurion Ministries, an innocence project based in New Jersey.
Cases that lack what many call the “magic bullet” of DNA often require cumbersome investigations, including finding and re-interviewing witnesses or poring over thick files to find anything vital that a trial lawyer might have missed. Even when crucial evidence is uncovered — witness recantations or exculpatory statements that were ignored by prosecutors — judges, juries and prosecutors often treat it with skepticism.
One of the most recent successes for Centurion Ministries illustrates the promise and challenges of trying to exonerate a prisoner without DNA evidence.
A state judge in Missouri last August overturned the conviction of a man who had served 23 years for a murder in St. Louis. The judge cited the credibility of the prosecution’s main witness, who had recanted his testimony that the convicted man was the killer.
But the judge’s decision came six years after a panel of federal judges, having considered much of the same evidence, ruled that though it had “a nagging suspicion that the wrong man may have been convicted of capital murder,” it could not overturn the conviction of the man, Darryl Burton, because of numerous procedural impediments. The panel suggested that the state court take another look at the case.
Despite the challenges, a study by Samuel R. Gross, a law professor at the University of Michigan, said that 195 prisoners were exonerated without the help of DNA from 1989 to 2003, with the number spiking from 2000 to 2003.
The New York State Bar Association, in a report issued last month, found that a majority of wrongful convictions it examined in New York were reconciled not because of new DNA evidence but because of mistakes by law enforcement officials, as well as the misidentification of the accused by victims or witnesses.
And the National Academy of Sciences, in a draft report, has found that forensic evidence, like fingerprinting and firearms identification, was often based on poor science practices. That finding from an influential scientific research group is likely to drive even more exoneration efforts.
Criminal justice experts say exonerations have shed light on two circumstances once thought to be extremely rare or even inconceivable: Witnesses are sometimes wrong, and people sometimes confess to crimes they did not commit.
As a result, about a dozen states are considering legislation that would require the taping of police interrogations and mandate new guidelines for the use of lineups to identify suspects.
But those involved in prosecuting crimes say that while the legal system is far from perfect, exonerations represent only a tiny fraction of those convicted of crimes. “Innocence projects try to paint the problem as epidemic,” said Joshua Marquis, a member of the board of directors of the National District Attorneys Association. “I believe the problem is episodic.”
At least one prosecutor in Texas, however, has moved aggressively to uncover wrongful convictions in cases that do not involve DNA.
Craig Watkins, the Dallas County district attorney, said he began taking aim at such cases after DNA tests performed by his office led to 13 exonerations. Now his office has established a conviction integrity unit to re-examine the validity of hundreds of convictions.
“This is about the duty of the district attorney to seek justice,” Mr. Watkins said. “Justice means we right the wrongs of the past.”
Mr. Garber, the lawyer in Manhattan, said he was inspired to start an innocence project after helping to free a relative of his secretary. The relative, Hector Gonzalez, who was convicted of murder, was freed in 2002 after DNA testing proved that blood found on his clothes did not belong to the victim. But Mr. Gonzalez might never have gotten that far if not for some unscientific help: Several witnesses stepped forward to say that he had no role in the killing.
“There’s a huge void in New York — there’s no program handling non-DNA cases,” Mr. Garber said. “These are the more difficult cases. They’re heavier lifting and we need a program that’s going to do that.”
At the University of Michigan, David A. Moran, a director of the new innocence project there, said it was “scary” that compelling evidence of innocence was sometimes not enough to persuade judges or prosecutors.
In its first case, the clinic is working to clear two men, Deshawn Reed and his uncle Marvin Reed, who were convicted in 2001 of shooting another man in a suburb of Detroit, leaving the victim paralyzed.
Though the victim originally identified the Reeds as the suspects, he has since recanted, saying he was coaxed into accusing the two men by family members, according to court papers. Beyond that, ballistics testing conducted by defense experts linked a gun recovered from another man to the one used in the shooting, Mr. Moran said.
Still, two Michigan appeals courts have denied motions for a new trial, and the Reeds continue serving prison sentences of at least 20 years. According to court papers, prosecutors remain skeptical for two reasons: The victim has been inconsistent in describing what happened, and in his latest account, he simply said he did not know who shot him.
“One thing we’ve learned by studying these cases and litigating these cases is it could really happen to anybody,” said Daniel S. Medwed, a professor at the University of Utah who studies wrongful convictions. “Nobody is immune.”
||Truth in Justice