innocence blog

A Web log for the Innocence Institute of Point Park University

Thursday, September 22, 2005

PA Internet court records would be limited

Associate Press

HARRISBURG -- The Pennsylvania court system is giving the public two months to comment on a draft set of rules that will determine how much of its records will be made available on the Internet.

The proposal would give Internet users basic docket information about criminal cases but prevent them from seeing the names of victims, witnesses or jurors. It would keep defendants' dates of birth and exact street addresses out of view.

David S. Price, a staff lawyer who chaired the Administrative Office of Pennsylvania Courts committee that drafted the proposal, said the panel studied how courts in other states and in the federal system have balanced openness with concerns about privacy and security.

"We really did think it struck the balance appropriately," he said.

Basic information about criminal cases is currently available through the state court system's Web site for county courts in 55 of Pennsylvania's 67 counties. The new proposal would apply to county-level cases as well as criminal records within the appellate and magisterial district court
computer systems.

Access to the original paper files at courthouse clerk's offices won't be affected. Dates of birth and exact street addresses will be listed electronically on public-access computers at the courthouses.

Norristown lawyer Robert C. Clothier, a media-law specialist, said privacy concerns are increasingly being used to justify denying people information about governmental actions. He criticized some of the proposed restrictions, including the ban on making jurors' names widely available.

"Someday I imagine that all judicial records will be available only in computer form, and what access rights will the public have then?" Clothier said.

Also intending to weigh in is Community Legal Services Inc., which provides legal services to low-income Philadelphians.

The group's managing attorney, Sharon M. Dietrich, said easier access to criminal case records will increase the incidence of mistaken identities when employers or landlords do background checks.

She said correcting an error -- something the policy would require counties to do -- can be difficult or impossible.

"I'm convinced there are going to be a good number of people who can't find work because they're being confused with somebody who does have a record. I already have these cases," Dietrich said.

Her preference is to not list any cases before there is a conviction and to include defendants' dates of birth and the last four digits of their Social Security numbers.

Pennsylvania Newspaper Association lawyer Teri Henning said any records available at the courthouse should, with very limited exceptions, also be available electronically.

"An individual's right to access public court records should not depend on whether they have a functioning car, or whether they can leave work to get to the courthouse before it closes," she said.

The seven-member AOPC committee, which included lawyers and technical-support workers, developed the proposal over three years and published it in the Pennsylvania Bulletin on Saturday. The comment period ends Nov. 17, after which the staff will examine the responses and possibly
revise the draft.

The decision on whether to adopt it as policy rests with the state Supreme Court. If enacted in its current form, counties would not be allowed to deviate from the policy by releasing more or less information electronically

Wednesday, September 21, 2005

Drew Whitley granted DNA test

September 21st, 2005


A decade after a West Mifflin man began a fight for DNA testing to prove his innocence in the early-morning slaying of a 22-year-old McDonald’s manager in 1988, an Allegheny County Common Pleas Judge has ordered 39 pieces of hair found in a nylon mask used in the crime to be examined.

The ruling by Judge Walter Little not only breathed new life into the case that has caused Drew Whitley to be imprisoned for life, but signaled a shift in policy by the Allegheny County District Attorney who has fought against that test - as well as several others -- on grounds that an exclusion from DNA evidence does not always prove innocence.

After the hearing, Whitley, who has long claimed testing will prove he is not the man who waited outside a McDonald’s near Kennywood Park to rob, then murder Noreen Malloy said he was “very happy” with the ruling in the case that he called “a nightmare,” repeating what he has said since his imprisonment 17 years ago: “I’m an innocent man.”

Yesterday, despite a decade of legal efforts by the office to prevent the test in Whitley’s case, District Attorney Stephen Zappala said he would not appeal the ruling.

While his office and that of his predecessor have in the past fought requests for DNA testing all the way to the Pennsylvania Supreme Court, yesterday Zappala said he changed his approach after his experience with the exoneration of Thomas Doswell last month – a test his office also initially fought to stop.

He said he took a new look at a 2003 state law authorizing DNA testing for those convicted of major crimes. It says a defendant has to convince a judge that DNA testing will prove actual innocence. Zappala said he previously felt if a convict could not prove that DNA was the only element that caused a conviction, his office would oppose the testing, which can cost up to $1,000 per specimen.

After Doswell was released from 19 years in prison for a rape conviction when DNA testing proved his innocence, Zappala said he began to personally examine every such case with the new belief that if a judge rules the testing should be done, he will not fight it.

“Let’s see what we’ve got. If there is any possibility this guy didn’t do it, let’s check it,” said Zappala.

During the protracted legal battle in the Whitley case, two hair samples were destroyed and deemed scientifically inconclusive in determining if they were Whitley’s. Then prosecutors claimed for a time that the rest of the DNA samples from the nylon mask were lost in a downtown flood.

After they were found in 2004, Whitley, a small time, petty criminal before the murder charge, argued the hair should be tested because during his 1989 trial the district attorney’s office offered testimony from experts – who did not have the benefit of DNA testing -- who said the hair found in the mask worn by Malloy’s assailant closely resembled Whitley’s.

“That was the strongest evidence in the case,” said Scott Coffey, Whitley’s appellate lawyer.

Prosecutors also believe even if the hair does not match Whitley, a jury would convict him again because two independent witnesses implicated him in the crime. One of them repeatedly denied seeing Whitley at the murder scene, then changed his story. The other is a two time convicted murderer who escaped a death sentence after testifying Whitley confessed to him in prison. Whitley claims he never met either of the witnesses.

Yesterday, Coffey suggested the witness testimony was faulty and that a coat and hat worn by the assailant did not fit Whitley, causing the hair evidence to be extremely important.

“If these hairs are found not to be his, I believe he will be proven innocent,” Coffey said.

Post-Gazette Staff Writer Bill Moushey also is Director of the Innocence Institute of Point Park University. It teaches investigative reporting by researching and writing about allegations of wrongful convictions. He can be reached at Bmoushey@pointpark.edu or 412-392-3416.