USA Today

August 5, 2008

In lieu of DNA evidence, exoneration proves tougher

By Kevin Johnson, USA TODAY

SAN DIEGO — It took more than four years of pure grunt work to free Timothy Atkins.

Timothy Atkins
Timothy Atkins, freed the hard way, without DNA.
There was no DNA evidence to support Atkins' claims of innocence in a fatal Los Angeles carjacking. Instead, students at California Western School of Law pored over old police reports and searched for one critical witness whose false testimony had led to Atkins' 1987 conviction.

More than any other victory in the campaign to free the innocent, the work that secured Atkins' release symbolizes where the movement is heading, some of its key members say. Dogged investigative efforts such as this are likely to become more common, they say, as DNA is being used up in some of the oldest post-conviction cases, primarily because of uneven efforts by states to preserve it.

A shortage of DNA evidence would remove the most dramatic and clearest path to exoneration.

"This is very much an untold story," says Justin Brooks, executive director of the California Innocence Project, which engineered Atkins' release. "We're seeing very few DNA cases where testing is a possibility."

Of the project's pending investigations, 90% are non-DNA cases. Instead, other evidence, such as new witnesses, is needed to prove innocence. Nearly 10 years ago, half of its cases depended on DNA testing.

Jeff Blackburn, chief counsel for the Innocence Project of Texas, fears Texas cases dependent on DNA could "run out" within a year. Of the 700 cases his group believes have potentially credible claims, 225 would be heavily weighted on the outcome of DNA analysis — if the material exists. The rest involve issues such as witness identification problems and coerced confessions.

Some advocates' concerns over the availability of DNA have injected tension into a movement to free the wrongfully convicted.

Barry Scheck, co-director of the Innocence Project, a national group whose work relies almost exclusively on DNA testing, says enough cases exist to sustain a decade's worth of potential exonerations. His group says the DNA caseload has increased from 141 in 2004 to 278 this year.

"These cases are not slowing down," he says, adding his colleagues "are not looking hard enough." He says DNA cases will decline eventually — but not yet.

Unraveling testimony

Timothy Atkins had been in prison 14 years in 2001, when his last-ditch request for legal help arrived here on the California Western campus.

There was no request for DNA testing, no new evidence to challenge Atkins' 32-year prison sentence in the robbery and murder of Vincente Gonzalez.

Yet the files contained a tantalizing 1999 letter, allegedly written by a key witness against Atkins, Denise Powell. In the letter to Atkins' grandmother, Powell said she had lied to police, without specifics. In her interrogation and in court, she had said Atkins confessed to being an accomplice in the 1985 murder.

On its own, the letter could not be offered as new evidence because of its lack of detail, Atkins' lawyers say. Powell had vanished. "Everybody knew that if we couldn't find Denise, there was no case," says Wendy Koen, one of the main investigators.

Koen, 43, then a second-year law student, took over the file in September 2004. She spent weeks talking to people in the Venice neighborhoods who knew Powell best. Over four months, there were at least four unconfirmed sightings of Powell. None panned out — until January 2005, when a contact called with a tip that Powell had been arrested on drug charges.

When Koen interviewed Powell one month later at a drug treatment facility, Powell said she had fabricated the story about Atkins' confession because she wanted the long police interrogation to end. "The information just poured out of her," Koen says of the videotaped interview.

Powell confirmed her account in a September 2006 court hearing before the same judge who presided at Atkins' original trial. The judge ultimately threw out his conviction, and Atkins was set free Feb. 9, 2007.

"When you think about how things came together," Koen says, "it's a miracle."

Movement enters new phase

The investigation that freed Atkins may be the blueprint for what defense lawyers face in future innocence cases, says Rob Warden, executive director of the Center on Wrongful Convictions at Northwestern University's School of Law.

Warden and his colleagues have assisted in the exonerations of 32 people. About half have been non-DNA cases, and he says that number is increasing.

After his release, Atkins went to live with his father near Los Angeles and found work as a security guard. He has a 7-month-old son, Timothy Jr. Under state law, Atkins could be eligible to receive up to $800,000 for his years spent in prison. "I'd rather have the time back," he says.

For Koen, who finished law school and works as a lawyer for the California Innocence Project, Atkins' case is an inspiration. "Not a day goes by that I don't think that Timothy is free," she says.

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