DNA Evidence: Freeing the Innocent

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Triage

Law School professors John Pray (left) and Keith Findley review applications requesting legal assistance from the Wisconsin Innocence Project.

Starting a similar project in Wisconsin seemed a natural for the U.W. Law School, which has had a strong "law in action" tradition since the 1960s through its clinical education program. With other projects already in place providing other kinds of legal services to prisoners, an Innocence Project was a logical next step. Findley and Pray's proposal met wholehearted support from administrators at the law school, which funds the project jointly with the state Department of Corrections. The project focuses mainly on Wisconsin cases, but also considers cases from other states.

Currently, 20 students participate in the project's casework and classwork components. Demand from students who want to enroll has been beyond what Findley and Pray could supervise, so they must limit the number. They acknowledge that some students may merely be drawn to the glamour, but all quickly learn that freeing innocent people entails lots of hard work, frustration, and even drudgery.

When Pray and Findley returned to their offices from Texas after Ochoa's release, they each found some 200 emails awaiting their attention. Some were duplicates; many weren't.

Most were pleas from people seeking help for imprisoned relatives or friends. In addition, each day brings numerous phone calls and anywhere from three to 20 requests for help in the mail. News of Ochoa's release, plus interviews on "Good Morning America," "Sally Jesse Raphael," and Wisconsin Public Radio have fueled the demand for the Innocence Project's assistance.

To cope with the massive inflow of requests, "we have to do triage," Findley says. Even so, they're troubled knowing they may well turn away cases they shouldn't. "Or, in other cases, if we'd persisted to do enough digging, we could have proved someone innocent. That's even worse," Pray adds. Currently, about 400 case files await screening by Findley and Pray, and roughly 20 other cases are in progress.

Of the active cases, one of the most compelling is that of Maurice Carter, a Benton Harbor, Mich., man who's been in prison for 25 years for shooting an off-duty police officer at a record shop. Unlike the Ochoa case, no DNA samples were left at the scene of this crime - as is typical in the vast majority of serious felonies. Findley notes, for example, that of the 94 death row inmates exonerated of their crimes over the last 25 years, only about 10 percent could be cleared by DNA tests. Yet, with the wrongful convictions already uncovered by DNA evidence, odds are that a sizeable fraction of those convicted in non-DNA cases are innocent as well.

That's why Findley and Pray remain open to taking both DNA and non-DNA cases, such as the Carter case, which they've been working on since the early days of the Innocence Project. "We've chosen to spend hundreds of hours on this case," Pray explains, "because anyone who looks at it can't believe this guy ever got convicted. It really stinks."

Uphill Battles

Carter's conviction relied upon eyewitness testimony of the officer, who had split seconds to view the gunman while rolling on the floor trying to dodge bullets; of the officer's wife who, like her husband, admitted she'd paid no attention to the man before he started shooting; and of a legal secretary who caught a glimpse of the shooter from across the street as he ran off.

All three failed to pick out Carter from among the mugshots shown them after the shooting. Then, two years later, another man facing life for a heroin charge fingered Carter as the shooter in exchange for reduced charges on his own offense. Carter's picture subsequently ran in the newspaper as a suspect. It was then, two years after the shooting, that the officer, wife, and legal secretary identified Carter. But to this day, the record store clerk who'd been waiting on the gunman as a customer for several minutes before he opened fire - and got a better look at him than anyone - remains adamant Carter is the wrong guy, as does another in-store witness. Add to that the fact that the shooter was left-handed, while Carter is right-handed. And that the jailhouse informant later recanted his story about Carter and was convicted of perjury for the false accusation. Oddly, the target of the perjury, Carter, remains in prison.

"We think there's a strong case (to prove Carter's innocence)," Findley says. "But we recognize that without DNA evidence, trying to reverse a conviction is an uphill battle."

The same can be said, however, in DNA cases, although the slope may be slightly less steep. Resistance to postconviction scrutiny in DNA cases remains strong. Police and prosecutors refuse to release evidence. Judges refuse to order DNA tests to prove innocence years after conviction. Even with tests confirming innocence, governors tiptoe around granting pardons because they fear being labeled as soft on crime. And when DNA tests are done, arguments often arise about who should cover the costs, which can run to several thousand dollars per test.

In their Innocence Project work, Pray and Findley frequently hear colleagues state, "it can't happen here." The lawyers are better in Wisconsin, people say. Indigent defense is better. Certainly, Wisconsin is known for its strong public defender program, in contrast to Texas, for example, which has no program. "But the truth is," Findley points out, "police interrogate much the same way everywhere. Eyewitnesses make the same mistakes no matter where they are. The same things that happen in other places can happen here."

Others contend that cases such as Chris Ochoa's prove that the system did work. After all, the innocent were set free. "That's a common refrain," Pray notes. "But in Ochoa's case, Marino came forward and confessed. That wasn't the system; that was a miracle. Look at Anthony Porter, who was only hours from being executed before journalism students at Northwestern University found the real killer. That wasn't the system. It was just luck that these journalism students decided to stick their noses into the case. Or Randall Adams. He got out because a guy made a movie (The Thin Blue Line) about his life. These incidents happen again and again. So I disagree with that line, 'the system worked.'"

Barriers

As a criminal defense attorney in New York City for more than 20 years, Peter Neufeld counts himself among those who once believed in the relative infallibility of the criminal justice system. "Those of us toiling in the trenches - the defense attorneys, prosecutors, and judges - assume we get it right 99.9 percent of the time," he says. "But I've learned that's not the case at all. The system is much more vulnerable to error."

Neufeld has uncovered many of those errors in his work at the Innocence Project at Benjamin N. Cardozo Law School, which he cofounded in 1992 with Barry Scheck. Their work has freed 42 wrongly convicted people as of late February. Unlike their Wisconsin counterparts, Neufeld and Scheck take only DNA cases.

But like Findley and Pray, the New York duo have encountered a range of obstacles to freeing wrongly convicted inmates. Take, for instance, their most recent success story, Earl Washington Jr., who walked out of a Virginia prison on Feb. 13 after serving 18 years - nine-and-a-half of them on death row - for a 1982 rape/murder he didn't commit. DNA tests performed in 1994 proved Washington's innocence. But it took seven more years to win a governor's pardon.

One of the brick walls in Washington's case was the Virginia statute of limitations. "More than 30 states have fixed statutes of limitations, after which you cannot go back into court with new evidence," Neufeld says. The time periods vary immensely from state to state. In Virginia, it's only 21 days - long expired by the time DNA testing technology evolved sufficiently in the 1990s to help Washington. That's why his case had to be decided by the governor rather than the court.

But at least in Washington's case the original DNA evidence from the crime scene was still intact. Usually it's not. "In 75 percent of the cases we initially accept," Neufeld claims, "we learn that the evidence has either been lost or destroyed in the intervening years. So we can't do anything." In his and Scheck's work on cases around the country, they find a hodgepodge of policies on retaining DNA evidence, or simply no policies at all. "In some places they destroy the evidence shortly after conviction," he notes. "Some keep it for years. And some just forget to throw it out. Sometimes our students just keep digging and find the DNA evidence, even though the prosecutors, police, and clerks all claimed it was lost or destroyed."

Such impediments to DNA testing to determine postconviction innocence are especially troubling, Neufeld adds, in light of statistics from the Federal Bureau of Investigation, which began doing DNA tests in 1989. In its first decade, FBI DNA testing excluded 25 percent of the primary suspects in rapes and homicides before they were brought to trial.

That's not to say that 25 percent of those sent to prison in the days before DNA testing, or who for some reason have been denied DNA tests since, are innocent. But it hints that the proportion may be sizeable. "We may have thousands of innocent people in prison," Neufeld says.

Remedies

Various legislative and procedural changes could help correct past injustices and prevent new ones (see sidebar, "A Sampling of Proposed Reforms"). But underlying any reforms must be a shift in approach. "We need to bring a scientific methodology, with the kinds of quality controls that exist in science, into the criminal justice system," Neufeld says. "The law has always been anything but scientific. We could do a lot better."

Scientific methodology goes beyond DNA testing. For instance, since the 1970s, psychological research has been poking holes in the reliability of eyewitness testimony. Still, the criminal justice system continues to highly value such testimony. The more certain a witness is, the more reliable his or her testimony is deemed to be. But numerous studies show no correlation between eyewitness confidence and testimony validity. Also, crime laboratories, like medical laboratories, should have to meet regulatory and licensing requirements to weed out those doing shoddy work. And when a wrongful conviction is uncovered, a sort of legal "autopsy" should delve into the causes.

"I'm on the board of a New York medical center," Neufeld points out. "If we have an unexpected death, we do a serious peer review to find out what went wrong. It's not to point the finger, but to improve the system and reduce the likelihood of it happening again. We do nothing like that in criminal justice. Yet every time an innocent person gets convicted, it's no different from an operation going awry in the operating room."

DNA testing has proven to be a powerful tool for detecting cases when justice went awry. It gave Chris Ochoa, Earl Washington, and 80 others their lives back. But DNA testing isn't the real issue, Neufeld contends.

"DNA testing simply answers the question of how people who were wrongly convicted got out of prison," he notes. "The real question is how did these innocent people get convicted, and in some cases sentenced to death? Unless we confront the causes and reform them, we're doomed to repeat the same mistakes, with or without DNA. And we'll have many innocent people in prison for decades to come."