innocence blog

A Web log for the Innocence Institute of Point Park University

Tuesday, July 11, 2006

DNA Proof May Not Go to Jury

This article was originally published in the LA Times on July 10, 2006

By Henry Weinstein, Times Staff Writer July 10, 2006

An unusual wrinkle has developed in the case of a man who was exonerated by DNA testing after serving 12 years in prison for a rape and robbery he did not commit.

Although the Riverside County district attorney declared Herman Atkins innocent six years ago, the county wants to prevent the jury hearing his wrongful conviction lawsuit from learning about the evidence that cleared him.

Atkins, now 40, was accused of raping a woman during a 1986 robbery in a Lake Elsinore shoe store. DNA tests not available during Atkins' 1988 trial were later requested by the defense, and they eliminated him as a source of semen on the victim's sweater. The FBI lab confirmed the results.

The rapist was never caught.As soon as Riverside County Dist. Atty. Grover Trask II learned in early 2000 of the DNA findings, he filed court papers saying Atkins should be freed immediately.

DNA tests had eliminated Atkins "as a possible source of [the] semen … and thus, [he] was not her assailant," Trask's motion said.

"The case underscores how profoundly advances in science and technology have affected criminal justice," he said.Atkins filed suit, claiming that a Riverside detective had fabricated evidence and misrepresented proof in court.

Facing a July 18 trial date in Los Angeles federal court, private lawyers representing Riverside County have argued that innocence does not matter. The sole issue is whether Atkins' rights were violated, they say.

They are also challenging the reliability of the DNA tests. If the county were able to cast doubt on Atkins' innocence, that could have a significant impact on the trial.

In a court declaration filed recently, Riverside's attorney, Christopher D. Lockwood, wrote, referring to the DNA sample, "I am aware of multiple reasons to question the chain of custody. I have never seen any evidence to show that the DNA testing was done properly or that DNA evidence is always 100% conclusive."

Atkins' attorneys sharply disagree with the county's position."The prejudice to Atkins would be immeasurable if the jury did not hear conclusive evidence that he is innocent," Atkins' attorneys Peter Neufeld, Deborah Cornwall and Cameron Stewart said in court papers.

A hearing on the issue is set for Tuesday before U.S. District Judge Percy Anderson.Both Lockwood and Atkins' lawyers declined to comment beyond what was in their court papers.

Earlier in the civil case, Riverside sheriff's Det. Danny C. Miller, a key investigator in the rape case, said in a signed pleading that Atkins' innocence had been established by the DNA tests.

But Lockwood has told the court that Miller is unwilling to file an admission that Atkins had been cleared, although he has offered no evidence to refute the FBI tests, according to papers filed by Atkins' attorneys.

While keeping out the DNA results, the county's lawyers also want to introduce evidence that the rape victim and two witnesses identified Atkins during his trial.

Atkins' attorneys counter that it would be absurd to allow Riverside's lawyers to introduce eyewitness testimony that has been refuted by DNA tests, particularly if the defense is not allowed to present the DNA results.

"In light of the uncontested DNA results, this ID testimony can no longer be considered reliable, or even probative, evidence of Atkins' guilt," they wrote in a recent motion. "Human memory is fallible. DNA testing, when replicated by two laboratories and where there is no evidence of contamination, is not. Miller's mere innuendo cannot change this irrefutable fact."


Their brief emphasizes that 78% of the first 130 DNA exonerations in the U.S. involved mistaken eyewitness identifications.Edward T. Blake, director of Forensic Science Associates in Richmond, Calif., and a nationally known expert, did the initial DNA testing in this case.

He became apoplectic when asked about Lockwood's questioning of the DNA evidence.

"The fully documented and illustrated scientific reports in the Atkins case are a matter of public record and certainly available to Mr. Lockwood," Blake said.

"There never has been any issue in the Atkins case with regard to evidence 'chain of custody' issues, nor has there ever been any issue with regard to the scientific rigor of the analysis that exonerated Mr. Atkins.

"Lockwood's statement is "an insult to everyone in the criminal justice system" who participated in Atkins' release, including defense lawyers, Blake's lab, the FBI lab, Trask and the judge who freed Atkins, Blake said in a telephone interview.

"Do you think that just because a guy in prison and a defense lawyer say he's innocent that everyone falls over backward and says 'OK. We will open the prison doors.' You must be kidding," Blake said.He said that when a convicted inmate is seeking release from prison, he has to meet a very high standard.

"If Herman Atkins had not met that burden of proof, he would not be a free man today," Blake said.

Legal experts said it was highly unusual for a lawyer to attempt to negate DNA results in a case like this one.Locke Bowman, legal director of the MacArthur Justice Center in Chicago, has worked on several civil suits following wrongful convictions.

He said there are "precious few legal authorities" on the issue of whether a jury is entitled to hear about the actual innocence of an exonerated inmate.In one recent case, U.S. District Judge Paul Plunkett in Chicago issued a strong ruling in favor of bringing evidence of innocence before a jury, Bowman noted.

After spending 15 years of a life sentence in prison for murder during a store robbery, James Newsome was cleared after new technology showed that fingerprints left in the store by the killer did not match his.


Jim Edgar, then the governor of Illinois, pardoned Newsome and declared him innocent.Newsome filed a damages case against Chicago asserting, among other points, that detectives rigged a lineup against him. Lawyers for the city asserted that the issue of innocence was irrelevant.

Plunkett disagreed, saying that excluding the evidence of innocence would have been "highly prejudicial."

"It would have invited jurors to draw the impermissible inference that he was actually guilty and thus absolve defendants of any misconduct," the judge said.

Chicago lawyer Phil Beck, who represented Newsome in the civil suit, said in a phone interview, "The case would not have had nearly the appeal on the damages side if it were a situation that he was wrongfully convicted because the police did not read him his Miranda rights and it was an open question whether he did it.

"I argued that it's 100 times worse to be in prison if you are innocent because the mental anguish you go through is much worse," Beck said. The jury awarded Newsome $15 million, a verdict that was upheld on appeal.

Atkins lives in Fresno, where he is pursuing a graduate degree in psychology. He and his wife, Machara Hogue, have set up a small foundation to help others who have been exonerated obtain basic necessities when they get out of prison.

Copyright © 2006, The Los Angeles Times

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