DNA Evidence: Freeing the Innocent

by Dianne Molvig

Christopher Ochoa of El Paso, Texas. Ochoa served 12 years in a Texas prison for a rape/murder he didn't commit.

The passengers on the Jan. 17 flight to El Paso, Texas, were the usual mix of business travelers, vacationers, and grandparents eagerly anticipating visits to grandchildren. For one person on board, however, this was the trip of a lifetime. Christopher Ochoa, 34, was heading home, at last a free man after serving 12 years of a life sentence in a Texas prison for a rape/murder he didn't commit.

Flying with Ochoa, besides family members, were two of the people who'd won his freedom: John Pray, U.W. Law School associate professor and codirector of the Wisconsin Innocence Project, and law student Cory Tennison. Others who worked on the case were Keith Findley, U.W. Law School associate professor and Innocence Project codirector, and law students Wendy Seffrood and Brian Van Denzen.

During the flight, true to his typically "irrepressible nature," as his professors describe it, Tennison asked the attendants for permission to use the plane's public address system. After he'd relayed the story of Ochoa's prison release, the cabin erupted into applause. Fellow passengers came up to wish Ochoa well, and one man handed him a $100 bill. Soon an air-sickness bag was circulating up and down the aisles, returning to Ochoa filled with an additional $400 to help him start a new life.

"It was incredible," Pray says, thinking back on that episode a month later. "People do come through. They really do."

But if Chris Ochoa's case is to truly mean anything, Pray and Findley point out, the criminal justice system also must come through, in terms of self-examination. Otherwise, stories like Ochoa's amount to nothing more than heroic tales of right overpowering wrong - the stuff of countless movies, novels, and superhero comic books.

"Right now we have a 'learning moment,' as Actual Innocence coauthors Barry Scheck and Peter Neufeld like to call it," Findley points out. "The window has been opened by these DNA cases, and it may not stay open. We now have the ability to do DNA testing in cases when it never was done, or when an older (and less precise) form of testing was done, to prove the innocence of people who have been convicted. That also gives us a body of cases from which to study and learn. It's important that we seize that opportunity, while we have it, and that we do, in fact, learn from our mistakes."

Of Mistakes and Miracles

The errors and misjudgments in Ochoa's case seem painfully obvious, with the advantage of hindsight. It began when Ochoa was brought in for questioning about the rape and murder of Nancy DePriest, an Austin, Texas, restaurant manager. After hours of aggressive interrogation, punctuated by desk-pounding and chair-throwing, the officer convinced Ochoa he'd be better off confessing to the crime and copping a prison sentence rather than facing death by injection. Ochoa was scared. He signed the confession, without an attorney's counsel, because he felt it was the only way to save his life. His plea bargain required that he testify against roommate Richard Danziger, who subsequently also was convicted of the crime. (Danziger should be released from prison soon, but will be institutionalized for the rest of his life due to brain damage suffered in a beating by prison inmates, who mistook him for someone else.)

The system failed again in 1996, when Ochoa had already been in prison for eight years. At that time, another Texas inmate, Achim Marino, wrote a letter confessing to DePriest's rape and murder. He told authorities they'd find evidence from the crime - the restaurant bankbag, restaurant keys, and handcuffs used on DePriest - in his mother's closet. And they'd find the murder weapon in the custody of the El Paso police. They'd confiscated Marino's gun after he'd committed other rapes and burglaries. Austin police retrieved the gun, and ballistics tests verified it was the one that killed DePriest.

Internal police department squabbles ensued about what to do with the new evidence. Some wanted to dig deeper to try to clear Ochoa; others clung to believing in Ochoa's guilt, figuring Marino was just a third participant in the crime.

Meanwhile, Ochoa remained in prison. In June 1999, he wrote to the Wisconsin Innocence Project asking for help. Would they find out if there was anything to the rumors he'd heard that someone (whose identity he didn't know) had confessed to the murder? And would they try to locate DNA evidence still in existence that would prove his innocence?

Eventually, Pray, Findley, and their law students were able to accomplish both tasks, thanks to 18 months of persistent effort - and a few miracles. Chief among the latter was the fact that the DNA evidence was still intact. DNA testing had been done after the crime, back in 1988, when the methodology was relatively primitive. Results had shown that Ochoa could have been the perpetrator - as well as 25 percent of the rest of the Latino population.

By sheer luck, the police department still had the original DNA evidence in storage, even after 11 years, as did a private California laboratory that also had conducted DNA tests back in 1988. "In so many of these cases, we find out the DNA evidence was lost or destroyed years ago," Pray reports. "One of the saddest things we have to do is to write back to people and say, 'You may well be innocent, but we're never going to prove it because the DNA evidence is gone.'"

No standard practices exist for preserving DNA evidence within the same state, much less across the country. "We see wide variation within Wisconsin, from one community to the next," Findley points out. "We've had cases when the DNA evidence was still around 15 years later. In other cases, the evidence was destroyed even before the conclusion of the direct appeal."

Another stroke of good fortune was encountering a cooperative district attorney in Texas, which, Findley notes, "is not a uniform experience. Lots of prosecutors resist and don't want to release the evidence." They met no such fight in Austin, Texas. In fact, the district attorney's office agreed to pay for the new tests. With today's more sophisticated techniques, those tests proved Ochoa's innocence. And tests on Marino's DNA confirmed he was the guilty man.

At one point early on, however, Pray and Findley almost wrote off Ochoa. One of their first steps after accepting his case was to call the original defense attorney, who told Pray he remembered the case well. Trying to prove Ochoa's innocence was a waste of time, he said, as Ochoa's fingerprints had been found on the murder weapon, and two eyewitnesses had spotted Ochoa and Danziger outside the restaurant that night. "I figured the case was over," Pray says. "I wrote to Chris asking him why he hadn't told us about the fingerprints and the witnesses."

The lawyer was wrong, Ochoa responded, begging for Pray and Findley to believe him and check further. Indeed, they soon learned nothing the defense attorney had told them was true, and they proceeded with their investigation. "We so easily could have closed the file," Findley says. "That's why this is such a scary proposition. We could have ignored an innocent man in prison."

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