innocence blog

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Wednesday, November 08, 2006

Again, DNA frees a convict

This article appeared in the Dallas Morning News on October 30, 2006:

Again, DNA frees a convict
Activists demand to know why Dallas County near top in exonerations



By ROBERT THARP / The Dallas Morning News

DNA testing is unlocking prison doors for another wrongfully convicted Dallas man on Tuesday, bringing to 10 the number of felony exonerations in the county after such tests in the last five years.

After maintaining his innocence for more than 25 years, Larry Fuller, 58, is expected to be released from custody without any opposition from prosecutors after an afternoon hearing. He was convicted of aggravated rape in 1981 and sentenced to 50 years in prison based on a sexual assault victim's identification of him.

National leaders of the DNA exoneration movement are traveling to Dallas for the hearing and say they will demand that the county immediately investigate why the string of wrongful convictions occurred and ask area police departments to change their investigative techniques.
Lawyer Barry Scheck, co-director of the Innocence Project, compared the series of exonerations in Dallas County to an airport that has had multiple plane crashes. The county's rate of exonerations is among the highest nationwide, he said.

"When you've got 10 plane crashes in the last five years, you'd get an investigation," he said.
Mr. Fuller is the most recent man to be freed after petitioning to have microscopic physical evidence from his case tested using DNA analysis techniques that were not available at the time of his trial.

All but one of the 10 wrongful convictions took place in the 1980s, and most hinged on eyewitness testimony.

The case

Mr. Fuller, a Vietnam veteran, was 32 in April 1981 when he was arrested on a charge of sexually assaulting a 37-year-old woman inside her Oak Lawn apartment.

After his return from Vietnam, where he served as a helicopter gunner and was shot down several times, he had been convicted of robbery in 1972 and served three years in prison.
After his release from prison, Mr. Fuller attended Dallas Baptist University and Dallas Art Institute and was living less than a mile away with his girlfriend and her two young children when he was arrested in the rape.

The victim told police that she woke up before dawn with her attacker on top of her, threatening her with a butcher knife. When she tried to resist, the man cut her on the hand, neck and back.

The woman initially told police that she could not provide a detailed description of the man beyond a vague idea of his skin tone, race and height. The attack occurred about an hour before sunrise, and the only light in the room came from a window and the dial from a small clock radio.
Mr. Scheck said Dallas police investigators used flawed procedures when they asked the woman to examine a photo lineup to try to identify the attacker. About a week after the attack, a detective showed the woman photos of six men, including an image of Mr. Fuller.

The woman told police that Mr. Fuller's photo "looks a lot like the guy," but she was not positive. At that point, a detective wrote in a report that the case should be "suspended" unless new information surfaced, according to court files.

A detective returned a few days later with another photo lineup that included a more recent photo of Mr. Fuller with a beard. The woman identified Mr. Fuller's image but said she did not think her attacker had facial hair.

Mr. Scheck said the use of a second lineup after the victim failed to make a positive identification the first time was irresponsible.

"He was a victim of unreliable procedures," he said. "There may be other lessons from these cases, but there's one we already know about. We already know mistaken eyewitness identification is a problem."

Dallas police declined to comment specifically about Mr. Fuller's case. Assistant Chief Ron Waldrop, a longtime supervisor over major investigations, said that in general, a suspect's photo would not show up in a second lineup unless the person was at least tentatively identified in the first lineup.

"If we show someone a lineup and they do not make an ID, do we show them a second one with the same person? No. The person might see a common picture in two different lineups. I just wouldn't do it."

The trial

During Mr. Fuller's trial, the victim testified that she was certain he was the man who raped her.
In hours of questioning, a forensic scientist provided complicated and confusing testimony that ultimately could not rule out any male as a possible source of the semen recovered by investigators. And in closing arguments, according to the writ of habeas corpus seeking Mr. Fuller's immediate release, a prosecutor inaccurately summed up the scientific testimony by saying it placed Mr. Fuller among 20 percent of the male population that could have committed the crime.

Jurors deliberated 35 minutes before returning a guilty verdict. In the punishment phase of the trial, Mr. Fuller maintained his innocence and expressed disbelief that he had been convicted.
"I come here believing in the word of justice, justice with eyes, not justice that would be blind," he testified. "I felt that I would receive a fair trial, or I felt that justice would be done; and I felt that me being innocent, it could be proven. I just felt beyond all shadows of any doubt, I could be excluded from the matter."

A prosecutor then used Mr. Fuller's refusal to admit his guilt as proof that he could not be rehabilitated. "The first step to being rehabilitated is to admit that you have made a mistake and that you need help," the prosecutor argued. "He has not done that. He will not do that, apparently."

Former District Judge Marvin Blackburn Jr. sentenced Mr. Fuller to 50 years in prison.
Mr. Fuller maintained his innocence throughout his incarceration and after he was paroled in 1999. His parole was revoked and he was sent back to prison after a routine urinalysis found traces of drugs in his system.

The numbers

DNA exonerations have increased in the last five years as a result of a state law that gives Texas convicts the ability to petition the courts for DNA analysis.

Although there is no governmental agency that keeps an official compilation of exoneration cases, the Innocence Project has reported at least 185 nationwide.

Mr. Scheck said an Innocence Project analysis, aided by a Dallas Morning News story that identified some cases that were not on the Innocence Project's lists, places Dallas County among jurisdictions with the highest number of DNA exonerations.

Comparing lists is difficult because of reporting variations. But Mr. Scheck said the number of wrongful convictions in Dallas County is troubling.

"This is as high as any jurisdiction in the United States," he said.

Dallas County Assistant District Attorney John Rolater said the recent exonerations are the result of practices that are no longer in use.

"I don't think 10 is really a cause for concern," he said. "These are the kinds of cases that nowadays we do DNA testing during the investigation stage. Just because someone says 'That's the guy who did it,' the investigation doesn't stop. And if the DNA doesn't match the suspect, it's going to stop."

Prosecutors also instruct police agencies to work harder on cases that rely on eyewitness accounts and lack physical evidence, Mr. Rolater said. "We expect, and the agencies know, that we expect them to go back and work the case as hard as they can," he said.

But even today, many cases will boil down to an eyewitness account, and those must still be prosecuted, he said.

"Sometimes that's what we have," he said. "Justice calls for us to go out and prosecute it even when we have one person's word against another's."

Chief Waldrop agreed that police investigations are less reliant today on eyewitness testimony.
"You have a lot of forensic evidence today that you didn't have then," he said. "We don't want to base a case on an eyewitness ID. We want other evidence that connects a person. Sometimes that's not possible."

He said the Police Department's aim is to put criminals, not innocent people, behind bars.

"We want them [eyewitnesses] to be objective and accurate and don't want to do anything that would skew the process," Chief Waldrop said. "Everything we do is geared toward that."

Staff writer Jason Trahan contributed to this report.
E-mail rtharp@dallasnews.com

CLEARED BY DNA IN DALLAS COUNTY
The Dallas County district attorney's office receives about 60 requests a year from convicts seeking a DNA test to challenge their convictions. In many cases, either no DNA evidence was collected or the evidence cannot be found to test. Still, DNA testing has freed at least nine Dallas County men in the last five years, including:

David Shawn Pope: Sentenced to 45 years in prison in the 1985 rape of a Garland woman at knifepoint. Pardoned in 2001 after DNA tests exonerated him.

Wiley Fountain: Sentenced to 40 years in prison in the rape of a pregnant woman in 1986. Exonerated through DNA testing and released in 2002.

Keith E. Turner: Sentenced to 20 years in prison in the 1982 rape of a co-worker. Exonerated by a DNA analysis and pardoned in December 2005.

Entre Nax Karage: Sentenced to seven years in prison in the 1994 murder of his girlfriend. Pardoned in December 2005 after DNA analysis pointed to a man who had been previously convicted of a similar crime.

Eugene Ivory Henton: Sentenced to four years in prison in a 1984 sexual assault. Exonerated through DNA testing in 2005.

Donald Good: Sentenced to life in prison in the 1983 sexual assault of an Irving woman. He was paroled in 1993 as a sex offender, but his parole was revoked in 2002 and his life sentence was reinstated because of a minor property crime. He was exonerated by DNA analysis in 2004, but he's still serving a five-year sentence for the property crime.

Billy Wayne Miller: Served 22 years of a life sentence before a DNA test cleared him of the 1983 sexual assault of a Dallas woman. Mr. Miller was released in May.

Billy James Smith: Sentenced to life in prison in an aggravated sexual assault. He was released from custody this month after a DNA test cleared him.

Greg Wallis: Sentenced to 50 years in prison in a case where an Irving woman identified him as the man who raped and assaulted her in 1988. He was released after being exonerated by a DNA test in March.

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