innocence blog

A Web log for the Innocence Institute of Point Park University

Friday, October 06, 2006

DNA Proves Innocence After 21 Years

News from the Innocence Project, October 6, 2006:

DNA Proves Scott Fappiano’s Innocence 21 Years
After He Was Wrongly Convicted of Rape in Brooklyn


Fappiano is set to be released Friday morning; case highlights flawed eyewitness identification procedures and problems with retrieving critical evidence in New York City, just days before state legislative hearings on evidence issues.


(BROOKLYN, NY; October 6, 2006) – DNA tests prove that Scott Fappiano did not commit a rape in Brooklyn for which he was convicted in 1985, the Innocence Project said today.

Fappiano was convicted based on significantly flawed eyewitness identification procedures, and his innocence was almost impossible to prove because New York City’s troubled evidence preservation system lost items that could be subjected to DNA testing. Ultimately, the Innocence Project located evidence at a private DNA lab – which had merged with another private lab that had received two items of evidence from Fappiano’s case in 1989 and kept it in storage. A wealth of other evidence that could have been tested years earlier was never located in the New York Police Department’s storage facility, the Innocence Project said.

Friday morning, October 6, the Innocence Project will file a motion to vacate Fappiano’s conviction and release him from custody. The District Attorney’s Office has informed the Innocence Project it will consent to the motion at the hearing. Fappiano will appear in court with Nina Morrison, his Innocence Project attorney, at 11:30 a.m. Friday in front of Kings County Supreme Court Judge L. Priscilla Hall, 320 Jay Street, 19th Floor, in Brooklyn. The Innocence Project anticipates that Fappiano will be released at the conclusion of the hearing. Fappiano and Morrison will speak to the media following the hearing.

In 1983, an NYPD officer and his wife were asleep when a man broke into their home, restrained the man, and raped his wife. At trial, the only evidence against Fappiano was an eyewitness identification from the rape victim – an identification that was made in lineups that the Innocence Project said were deeply flawed and unreliable. (The victim’s husband viewed the same lineup, but did not select Fappiano.) Fappiano was also five inches shorter than the 5’10” perpetrator described by the victim.

Despite blood-typing tests which excluded Fappiano as the source of what police initially believed was critical crime scene evidence left by the perpetrator (cigarettes and stained clothing), the prosecution twice took the case to trial. At his trial in 1984, the jury could not reach a verdict (voting 11-1 for acquittal), and he was retried in 1985, when the jury convicted him. He was sentenced to a term of 20-50 years in prison.

“Scott Fappiano’s case is the starkest yet in a long line of New York cases where innocent people were convicted based on eyewitness misidentification. In case after case, we have proven that faulty eyewitness identification procedures in New York lead to wrongful convictions,” Morrison said. “Nobody can look at these cases and say there isn’t a serious problem – yet New York still hasn’t taken problems with eyewitness identification seriously and implemented reforms.”

The Innocence Project also said that the NYPD’s inability to locate evidence in Fappiano’s case demonstrates the urgent need to reform the city’s system of collecting, preserving, and retrieving such evidence. Earlier this summer, another Innocence Project client, Alan Newton, was exonerated a full 12 years after he initially requested DNA testing; in his case, the evidence was finally located in the NYPD Pearson Place Warehouse, in the exact location it was supposed to be all along. Next Tuesday (October 10), the New York State Assembly Committee on Codes is holding a public hearing in Manhattan on evidence preservation and retrieval problems. Innocence Project Co-Director Peter Neufeld will testify at the hearing, which Newton will also attend.

“Scott Fappiano could have been exonerated more than three years ago – when the Innocence Project began searching for the evidence in his case – if the NYPD had adequate policies and procedures for its evidence warehouse,” Morrison said. “New Yorkers have to wonder how many innocent people are sitting in prison because the NYPD can’t find evidence that could be subjected to DNA testing.”

Indeed, the DNA which established Fappiano’s innocence this week was only located because a portion of that material happened to have been preserved outside the NYPD’s custody. Last year, Orchid Cellmark, Inc. (a DNA laboratory based in Dallas, Texas), discovered two vials of DNA material containing spermatozoa from the perpetrator of the rape for which Fappiano had been convicted. The material had been submitted to a now-defunct DNA laboratory, Lifecodes, for attempted (but unsuccessful) DNA testing in the case in 1989, and, following a corporate acquisition of the former Lifecodes lab, Cellmark obtained and diligently catalogued dozens of boxes of Lifecodes’ old DNA materials. New DNA testing by the New York City Medical Examiner’s Office scientifically confirmed that the evidence came from this case and that Fappiano was not the rapist.

In New York City, the Innocence Project has six open cases and 17 closed cases where evidence in NYPD custody has still not been found after years of searching. At next Tuesday’s legislative hearing, the Innocence Project will share details about some of those cases and the organization’s efforts to work with NYPD leadership to resolve the systemic problems.

There have been 183 DNA exonerations nationwide. In 75% of these cases, eyewitness identification played a role in wrongful convictions, according to the Innocence Project, which is affiliated with Benjamin N. Cardozo School of Law at Yeshiva University.

Eric Ferrero
Director of Communications
The Innocence Project
Office: 212-364-5346
Cell: 646-342-9310
100 Fifth Ave., 3rd Floor
New York, NY 10011
www.innocenceproject.org

Wednesday, October 04, 2006

DNA Evidence in 1995 Murder Belongs to Victim

This article appeared in Washington State's Daily Herald on September 27, 2006:

DNA evidence in 1995 murder belongs to victim, not a suspectFired detective not a suspect, sheriff says.

By Scott NorthHerald Writer

A vial of blood and five hairs mishandled in a woman's 1995 murder case can't be used to identify her killer.

That's not because the evidence languished for four years in a former Snohomish County homicide detective's closet.

Instead, genetic tests conducted six years ago determined the blood and all the hairs belonged to murder victim Patti Berry - and almost certainly nobody else, The Herald has learned.
Berry, 26, of Arlington was killed July 31, 1995. The Arlington woman left behind a daughter, then just 2.

The investigation of Berry's killing has been assigned to a special "cold case" unit at the Snohomish County Sheriff's Office. The unit exists in part because the slain woman's mother, Nancy Stensrud, joined with the families of other murder victims to lobby the sheriff's office for detectives who are given the time to focus solely on long unsolved killings.

Published reports have raised doubts whether Berry's killer will ever be brought to justice.
A Sept. 13 article in a Seattle newspaper detailed how a former lead detective on the case, John Padilla, was fired from the sheriff's office in 2004 after investigations focused on alleged domestic violence and stalking of his now ex-wife and a former girlfriend.

The report also detailed how investigators were shocked to learn that an envelope containing what the writers characterized as "critical DNA evidence" from the Berry case had turned up in the closet at Padilla's home. The detective's mishandling of the evidence also was grounds for termination, records show.

Padilla had sent five hairs and a vial of Berry's blood to a North Carolina lab for advanced genetic tests. The items were tested and mailed back to the sheriff's office in May 2000. That was five months after Padilla had been promoted to sheriff's sergeant, and reassigned to duties other than investigating Berry's killing.

The Herald in 1999 negotiated access to many of the records in the Berry murder investigation.
Documents reviewed at the time showed that other tests performed by the state crime lab had determined that four of the five hairs found on Berry's body came from her.

The source of a fifth hair could not be determined using genetic testing methods then available in Washington. Padilla asked the sheriff's office for permission to send the hairs to the North Carolina lab because it was using techniques that allowed comparison of the mitochondrial DNA found inside the hairs.

The North Carolina tests concluded to a high degree of certainty that all five of the hairs came from Berry, sheriff's Sgt. Shawn Stich said Tuesday. He supervises the detectives now investigating Berry's killing.

It was those hairs - all from Berry - that were inside the sealed evidence envelope found in Padilla's home and brought to the sheriff's office by his ex-wife in 2004.

There are more than 200 other pieces of physical evidence logged in Berry's case, Stich said. The case file, reorganized by the cold-case unit, is now 16 volumes and growing.
"I think it is a solvable case," Stich said.

Stensrud, Berry's mother, said Tuesday she is comforted to know that genetic evidence that may have pointed to her daughter's killer was not lost. Even so, Sheriff Rick Bart owes her an apology for failing to make certain she knew that there could be problems with the case, she said.

"I know, in the beginning they said there are certain things they can't tell us, but there are also so many things they can tell us, little things, to ease our minds," she said.

Bart said his department's practice is to make certain that the families of homicide victims are the first to learn of significant developments in murder cases.

He said he couldn't explain why that did not happen with the Padilla revelations, particularly when the sheriff's office discovered the problems more than two years ago.

The sheriff also was at a loss to explain comments attributed to him in the Seattle newspaper, describing how he had ordered detectives to investigate Padilla as a possible suspect in Berry's killing.

"I'm not saying I didn't say it," Bart said Tuesday. He was quick to add, however, that Padilla never was a suspect in Berry's killing and was not investigated for anything other than failing to return evidence from the case.

"I do not believe John Padilla killed anybody," Bart said. "I do not believe John Padilla tried to conceal evidence ... I believe he made a mistake in handling evidence."

Padilla also did a lot that was right in the case, Bart said.

"I think John's investigation is going to lead to the killer. Nobody else's. John's," Bart said. "I think it is a big leap to go from evidence in the house in the closet to 'He's the killer.'†"

Stich said he worked the Berry case with Padilla and on Tuesday recalled poring over the woman's blood-spattered car together.

"Even now, if somebody in my family was murdered, I wouldn't hesitate to have him handle the case," he said.

Padilla declined comment for this story on the advice of a civil attorney he's been consulting since issues surrounding his termination at the sheriff's office became public.

Stensrud on Tuesday said she never felt good about Padilla's work on her daughter's case. She was uncomfortable enough at one point that she complained to his supervisors at the sheriff's office.

Questions about catching her daughter's killer have plunged her back into grief, she said.
"This is way beyond hurt," Stensrud said.

Exonerated Man Awaits Legal Reversal of Rape Convictions

This article appeared in the Virginian Pilot on September 28, 2006:

Exonerated man awaits legal reversal of rape convictions

By DUANE BOURNE

NORFOLK - Arthur Lee Whitfield, who was exonerated for two 1981 rapes by DNA evidence, remains on the state's sex offender registry because his convictions have not been legally overturned by a court or the governor.

The question arose Monday when The Virginian-Pilot accompanied a state trooper on Operation Vigilant Locator, which aims to find 300 sex offenders who have not provided current employment information to the state registry.

Whitfield was among 160 people on the registry who provided law enforcement agents with updated information Monday.

In 2004, the state Parole Board released Whitfield from prison at the request of the Norfolk Commonwealth's Attorney's Office. He had served 22 years of a 63-year sentence.

Although DNA testing of evidence cleared Whitfield of the two rapes in Norfolk's Ghent neighborhood, no action by a judge or the governor has been taken to vacate his convictions.
"He is still a convicted individual until somebody does something," said Thomas Lambert, a legal specialist for the State Police.

In December, Whitfield asked the governor for a pardon. His attorney, Michael Fasanaro Jr., said the petition could take at least a year.

Earlier, Whitfield had sought a writ of actual innocence from the state Supreme Court. The court said it did not have jurisdiction because Whitfield had been released from prison, Fasanaro said.

Test Links Inmate to Murder

This article appeared in Cleveland's The Plain Dealer on September 29, 2006:

Test links inmate to murder
Defense attorney disputes DNA analysis in 1984 case

Jim Nichols, Plain Dealer Reporter

Death-row inmate Anthony Apanovitch has proclaimed for more than two decades that he's innocent of the 1984 rape and murder of Mary Ann Flynn.

Now, prosecutors say, there's even more proof of his guilt - enough to remove any doubt that Apanovitch killed Flynn at her West Side home.

An independent California laboratory's new analysis of DNA from long-stored biological evidence removed from the 33-year-old victim's body shows conclusively that the sample came from Apanovitch's body, Cuyahoga County Prosecutor Bill Mason said Thursday.

How conclusively? The analysis, Mason's office says, shows that only one person out of every 140 million could be matched to the crime-scene semen specimen.

"He has the right to say he's innocent," Mason said. "But we have the right to prove he's not. And we feel that what we've done here proves he's a liar as well as a murderer."

One of Apanovitch's lawyers said the test proves nothing reliably because the tested evidence and the state's handling of it over the years are both tainted.

The testing lab could only analyze a fragment of DNA, rather than a full genetic blueprint, said federal Public Defender Dale Baich.

Moreover, what was tested had been mixed with DNA from at least three other people - possibly another killer, or perhaps investigators who mishandled the sample that even prosecutors have acknowledged had been lost for years.

"Their statement about conclusively proving is a gross overstatement," said Baich, a former Clevelander now in Phoenix.

Even if the test did prove what Mason says it does, Baich added, it should have no bearing on Apanovitch's ongoing legal appeals.

The current case before the 6th U.S. Circuit Court of Appeals in Cincinnati contends prosecutors unconstitutionally withheld evidence favorable to the defense at Apanovitch's 1984 trial. There's no legally justifiable place in the process for those appeals judges to look at new DNA evidence favorable to the state, Baich argued Thursday.

If Apanovitch wins a new trial, Baich said, prosecutors could present the new DNA results to a jury.

The last jury found Apanovitch, then 29, raped, beat and strangled Flynn at her Archwood Avenue home, which she had hired him to paint. Witnesses testified he intimidated and lusted after her, coaxed friends to fabricate alibis, and he gave police conflicting statements.
This article appeared in Cleveland's The Plain Dealer on September 29, 2006:

Test links inmate to murder
Defense attorney disputes DNA analysis in 1984 case

Jim Nichols, Plain Dealer Reporter

Death-row inmate Anthony Apanovitch has proclaimed for more than two decades that he's innocent of the 1984 rape and murder of Mary Ann Flynn.

Now, prosecutors say, there's even more proof of his guilt - enough to remove any doubt that Apanovitch killed Flynn at her West Side home.

An independent California laboratory's new analysis of DNA from long-stored biological evidence removed from the 33-year-old victim's body shows conclusively that the sample came from Apanovitch's body, Cuyahoga County Prosecutor Bill Mason said Thursday.

How conclusively? The analysis, Mason's office says, shows that only one person out of every 140 million could be matched to the crime-scene semen specimen.

"He has the right to say he's innocent," Mason said. "But we have the right to prove he's not. And we feel that what we've done here proves he's a liar as well as a murderer."

One of Apanovitch's lawyers said the test proves nothing reliably because the tested evidence and the state's handling of it over the years are both tainted.

The testing lab could only analyze a fragment of DNA, rather than a full genetic blueprint, said federal Public Defender Dale Baich.

Moreover, what was tested had been mixed with DNA from at least three other people - possibly another killer, or perhaps investigators who mishandled the sample that even prosecutors have acknowledged had been lost for years.

"Their statement about conclusively proving is a gross overstatement," said Baich, a former Clevelander now in Phoenix.

Even if the test did prove what Mason says it does, Baich added, it should have no bearing on Apanovitch's ongoing legal appeals.

The current case before the 6th U.S. Circuit Court of Appeals in Cincinnati contends prosecutors unconstitutionally withheld evidence favorable to the defense at Apanovitch's 1984 trial. There's no legally justifiable place in the process for those appeals judges to look at new DNA evidence favorable to the state, Baich argued Thursday.

If Apanovitch wins a new trial, Baich said, prosecutors could present the new DNA results to a jury.

The last jury found Apanovitch, then 29, raped, beat and strangled Flynn at her Archwood Avenue home, which she had hired him to paint. Witnesses testified he intimidated and lusted after her, coaxed friends to fabricate alibis, and he gave police conflicting statements.

Army Reopens 1985 Murder Case

This article appeared on the ABC 11 TV News website on September 28, 2006:

Army Reopens 1985 Murder Case

(09/28/06 - FAYETTEVILLE) - A retired Army master sergeant who was convicted of a triple murder, then released from death row after being acquitted at a second trial, has been recalled to active duty because the military is investigating the case, a Fort Bragg spokesman said Thursday.

Retired Master Sgt. Timothy B. Hennis, who has been ordered to report to Fort Bragg no later than Oct. 30, is not charged with any crime, said post spokesman Col. Billy Buckner. He said Hennis, who retired in July 2004, is being recalled to active duty because of an Army investigation of new evidence in the May 1985 rape and killing of an Air Force captain's wife and the slaying of two of their children.

The recall notice was hand-delivered to Hennis on Tuesday at his home in Lakewood, Wash., Buckner said. Hennis was not arrested and is not considered a flight risk. Gerald Beaver, one of Hennis' lawyers during his first two trials, did not immediately return a message Thursday seeking comment.

"The decision about whether he will be court-martialed has not been made yet," Buckner said. "Right now it is inappropriate for me to speculate on what might happen to him."

Hennis was acquitted in 1989 in state court in the stabbing deaths of 32-year-old Kathryn Eastburn and two of her children, Kara Sue, 5, and Erin Nicole, 3. They were killed just days after Hennis, a sergeant stationed at Fort Bragg, adopted the family's dog.

A third child, 22-month-old Jana Eastburn, was not harmed.

Hennis was convicted in 1986 and sentenced to death. The state Supreme Court granted him a new trial in 1988 after concluding his first trial was run unfairly and the evidence against him was weak. He was then acquitted in April 1989.

The state can't pursue any case against Hennis because of the constitutional prohibition against double jeopardy, but the military can, Buckner said.

The State Bureau of Investigation has tested DNA samples from the crime scene, and local prosecutors got the results in June, said District Attorney Ed Grannis. DNA testing was unavailable at the time of the Eastburn murders.

Grannis said the DNA evidence warrants the reopening of the case.

"We realize we have a double jeopardy issue which cannot be avoided. And so I contacted our friends at Fort Bragg and asked them if they would assign people to look into this matter, which they did," Grannis said.

Kathryn Eastburn's husband Gary was an Air Force captain in 1985, when Eastburn was chief of air traffic control operations at Pope Air Force Base, which adjoins Fort Bragg. Gary Eastburn was attending a military school in Alabama when his wife and children were killed.

Jeffrey Deskovic is the New Face of the Death Penalty Debate

This article appeared in New York's Journal News on September 25, 2006:

Jeffrey Deskovic is the new face of the death penalty debate

When you hear that a man was in prison for 16 years for a murder he didn't commit, you can't help but think, "What if he had been executed?"

You watch him give his first news conference, his slight frame under a dark blue suit, and picture him on a gurney.

He wouldn't be here asking the reporters to identify themselves the way it's done on TV. He wouldn't be talking about having mussels and baked ziti for lunch.

When Jeffrey Deskovic was released in White Plains last week, he became the 184th man freed by the Innocence Project, a nonprofit legal clinic at Benjamin N. Cardozo Law School devoted to overturning wrongful convictions through DNA testing. Deskovic is the newest face in the death penalty debate.

The justice system has made a lot of mistakes. More precisely, we the jury have made a lot of mistakes, because that is who decides guilt or innocence. Ordinary people like you or me convicted Deskovic.

New York has the death penalty. It was re-enacted in 1995 after Gov. George Pataki campaigned for bringing it back.

In the years before the U.S. Supreme Court halted executions in this country, 1,130 inmates were put to death in New York state, according to the Death Penalty Information Center in Washington, D.C. If anyone was ever confident that each one was guilty, it's hard to be sure now. What if the Innocence Project had been in business then? How many of those people would have been freed?

In the 11 years since New York reinstated the death penalty, no one has been executed. In fact, the state's highest court ruled the punishment unconstitutional two years ago, and so far lawmakers have not addressed its objections.

To be very clear: Deskovic was imprisoned before the death penalty was reinstated. His punishment was 15 years to life. His crime, though, was the kind that could have qualified.
Deskovic was charged with rape and murder. The body of his classmate, Angela Correa, was found near Griffin's Pond in Peekskill two days after her family reported the 15-year-old missing. She had last been seen taking photographs for a class.

Looking back, you can wonder how Deskovic was convicted. The hair and semen found on Correa were not his. His confession came after he was in police custody for nine hours without his parents or an attorney and without any food, according to the Innocence Project; at the end, he curled up under a desk in a fetal position and sobbed. He seemingly was an impressionable young man, a 16-year-old high school sophomore, eager to help. He confessed because that was what the police wanted to hear, he says now.

Obviously the jurors were wrong when they found him guilty, but who can say that they would not have been swayed by the detectives' testimony or the assistant district attorney's arguments? Why would Deskovic confess to a crime he didn't commit, you might ask. Even if you know that false confessions occur, it's still hard to grasp.

Yet, according to the Innocence Project, about 25 percent of the wrongful convictions it has overturned involved some kind of false confession. People make them when they are afraid or subjected to force or devious interrogation techniques, the Innocence Project says. They might be exhausted, hungry, drunk or high, have limited mental abilities or limited education.

To guard against this, the Innocence Project recommends interrogations be recorded electronically — the entire interrogation, from a Miranda warning through to a confession.
In a way, Deskovic is luckier than many others who have been exonerated. A new DNA test found a match: an inmate already serving time for murder who, according to the Westchester District Attorney's Office, confessed to Correa's killing.

You can argue that as DNA technology gets more and more sophisticated and reliable, fewer innocent men and women will be imprisoned. And you can make an argument in favor of the death penalty. If DNA can exonerate, it can make guilt more certain too.

But here's something to consider. Last year, according to the Innocence Project, a report conducted by the American Society of Crime Laboratory Directions found that the Virginia State Crime Lab had committed serious testing errors in the case of a man who spent years on death row. Not only that, but the laboratory's system for finding mistakes also failed. Yes, testing will become more foolproof, but nothing is ever infallible when human beings are involved.

"New York's death penalty is crafted carefully so that only the most inhuman murderers are eligible for it," Pataki wrote in USA Today in 1997 in support of his position.

Deskovic was the fifth man freed in New York in the last 10 months who was convicted based on a false confession and whose guilt was overturned by DNA evidence. Safeguards can only go so far.

The death penalty may be an issue that you decide in your gut and then look for arguments to back your belief.

False confessions, mistaken identifications, bad lawyers, crooked cops, racial discrimination — all of those are factors if you oppose the death penalty. You look at people like Deskovic and other instances where justice went horribly wrong.

If you are in favor of the death penalty, you probably focus on the most gruesome crimes, the ones that are so cruel and terrible that they are impossible to comprehend. It is difficult to think of reasons for those criminals to be alive.

But in the end it comes down to whether you believe the government should put someone to death, and I don't. We should not give government that kind of power. Life in prison without parole, but not death.

As the group New Yorkers Against the Death Penalty wrote in a news release after Deskovic's release: "The death penalty is a system which buries its worst mistakes."

Human beings seek revenge. I might want revenge. But the state should not be in the business of killing.

Kelly Pledges to Help with Convict DNA Project

This article appeared on the website of New York 1:

Kelly Pledges To Help With Convict DNA Project

The city's top cop is reportedly pledging to help find missing DNA evidence that could clear more than a dozen convicts.

Police Commissioner Ray Kelly says he'll help the Innocence Project locate evidence that had been feared lost or destroyed.

Kelly will help the project in the cases of 17 city convicts.

The project – led by former OJ Simpson lawyer Barry Scheck – had looked for years for DNA evidence in some 23 cases, but gave up after police claimed it was lost or destroyed.

In addition to helping find the missing evidence, Kelly says he's working to ensure better management and storage of DNA so exonerations are not held up in the future.

Inmates Seek a Legal Pass out of State's DNA Databank

This article appeard in the New Jersey Star-Ledger on September 27, 2006:

Inmates seek a legal pass out of state's DNA databank

BY RICK HEPP, Star-Ledger Staff

Convicts may check their liberty at the prison door, but forcing them to provide samples of their DNA to state officials violates their civil rights, an attorney representing inmates told the state Supreme Court yesterday.

"You don't lose all your rights in prison," said Lawrence Lustberg, contending that requiring inmates to donate their DNA samples to the state's crime-fighting databank is unconstitutional.

State attorneys argued that collecting DNA samples helps solve crimes and set free innocent inmates.

The state's high court is trying to decide who must submit DNA to the state's databank and whether the state can keep those samples forever. Two appeals courts have ruled the collection is constitutional but have split on whether or not the state can retain the samples.

Lustberg argued that if the Legislature crafted the 2003 law to help police solve crimes, it should conform with the strict rules police must follow in any other crime investigation -- including how they conduct searches.

Despite the law's "vast array of benefits," Lustberg said collecting DNA is "unconstitutional because it's a search, and a search is only allowed under certain circumstances. You still have your Fourth Amendment rights."

The Attorney General's Office argued the collection of DNA samples is no different than the collection of fingerprints, saying the samples are used primarily to identify offenders in the system but can also be employed by law enforcement to solve other crimes.

"There is no expectation of privacy in a criminal's identity," said Senior Deputy Attorney General Larry Etzweiler. "You sacrifice it permanently."

Etzweiler argued that since its primary purpose was keeping an accurate database of offenders, the law meets a set of "special needs" that exempts it from the rigorous standards for a typical search.

At one point, Chief Justice Deborah Poritz asked Lustberg whether his argument would change if he considered that DNA samples collected from offenders have been used to exonerate other prisoners wrongly accused of crimes.

"Exoneration is the flip side of law enforcement," Lustberg said. "The investigation continues until you make sure you got the right person. This is what law enforcement does."

The constitutionality of DNA databanks established by the federal government and all 50 states has long stood. Without exception, courts have ruled the ability of DNA to solve crimes and exonerate the innocent outweighs the minimal intrusion of requiring a blood sample or cheek-swabbing.

New Jersey has collected 141,658 DNA samples since 1994, when it started requiring them from all convicted sex offenders. It expanded that program in September 2003 to require all adults and juveniles convicted of crimes to provide samples.

Since 2003, the database has produced 315 matches with DNA samples collected from crime scenes, according to Peter Aseltine, a spokesman for the Division of Criminal Justice. Information about those matches is forwarded to police and prosecutors for further investigation.

As usual, the justices reserved their decision.

DNA Test Raises Questions in Case of Man Imprisoned 24 Years

This article appeared on Wood TV of Grand Rapids, Michigan's website on October 2, 2006:

DNA test raises questions in case of man imprisoned 24 years

DETROIT (AP) -- DNA test results have prompted authorities to re-examine the case of a man imprisoned since 1982 for his role in the rape of a woman who was shot-gunned to death during a botched burglary at her rural southwestern Michigan home.

Charles S. Kent admitted that he and three others broke into the house. But he said they thought no one was home, and he repeatedly denied killing or sexually assaulting Melvina Daisy, a 28-year-old wife and mother.

Now, because of DNA tests that didn't exist when he was convicted -- and conducted under a 2001 state law -- the man who turned 46 in an Upper Peninsula prison last Saturday could have a chance for a new trial.

The new tests found that semen from the crime scene could not have been Kent's, but it had deteriorated too much to prove whose it was, said Berrien County Assistant Prosecutor Aaron Mead.

The prosecutor's office received the results Sept. 5 and filed a court motion two days later asking that a public defender be named for Kent, Mead said. A judge agreed this week, but a lawyer had not yet been named, a court clerk said.

Whether the new evidence will win Kent a new trial is far from certain.

"It's preliminary to say he was exonerated," Mead said. "We've just taken it one step at a time."
Nationwide, at least 183 people have had their convictions reversed since 1989 based on DNA evidence, according to the Innocence Project at Benjamin Cardozo Law School in New York.
State prison records and stories at the time in The Herald-Palladium give a vivid account of the killing and the trials that followed.

On the afternoon of Jan. 26, 1982, Ronald Daisy picked up his 7-year-old daughter Rhonda at school and drove to their house in Coloma Township, 10 miles from the county seat of St. Joseph and 165 miles west of Detroit.

Ronald and Melvina Daisy worked for the same company in St. Joseph, but she stayed home sick that day.

Ronald Daisy said he found his wife's car gone and the house in disarray. He went upstairs and found her body in a blood-spattered bedroom. She had been blindfolded and her hands tied. An autopsy found she had been shot twice with a shotgun.

One of the suspects was the 21-year-old Kent, a 325-pound bad-check convict on work release from a state lockup in nearby Benton Harbor.

Kent first denied, then confessed to a role in the crime but said he was innocent of rape.
Prosecutors said they would charge him only with conspiracy to commit burglary if he testified truthfully, and Kent was a key witness against slaying suspect Gerald G. Barker, 31, who was tried first, convicted of felony murder and sentenced to life without parole.

But prosecutors struck a separate deal with 19-year-old co-defendant Christopher Cochran, who then testified that first Barker and then Kent sexually assaulted Daisy.

Prosecutors filed new rape and robbery charges against Kent. They reduced the charges against Cochran from felony murder to unarmed robbery, and he received a 10- to 15-year sentence after pleading guilty.

At Kent's trial, state police crime lab expert Glen Moore testified that Kent had the same A blood type as the source of semen from the crime scene. Moore said none of the other male defendants or the victim's husband had the same blood type.

Kent took the stand in his own defense.

"I have never raped anyone in my life," he told the jury. "This is the truth and the whole truth."
The jury found Kent guilty of first-degree criminal sexual conduct and armed robbery, and Judge Zoe Burkholz gave him two life sentences.

After Kent's conviction, a third trial found Cochran's 39-year-old mother, Barbara Cochran, guilty of armed robbery. She received a life sentence.

Kent became eligible for parole after 10 years, but the Michigan parole board declined to release him in 1992, 1997 and again in 2002. He is scheduled for another hearing in 2007, said Corrections Department spokesman Leo Lalonde.

From the Kinross Correctional Facility, Kent petitioned in 2004 to have tests run to compare his DNA with the crime scene evidence under a 2001 Michigan law. After several false starts, a court ordered the tests Dec. 6, Mead said.

DNA tests have only been available as evidence in Michigan courts since the mid-1990s, according to Norman Fell, head of the Cooley Law School Innocence Project at the school's Lansing campus.

The project has reviewed more than 3,000 old cases for possible DNA but has gone to court in fewer than 20 so far, Fell said.

The facts in Kent's case suggest that he's a long way from exoneration but does have hope, Fell said.

"He should at least get a new trial," Fell said.

Mead said the case is only the second his office has handled under the 2001 DNA testing law. Tests in the first case confirmed the convict's guilt.

He said he did not know where Kent's case might lead.

"All the significant developments are ahead of us," Mead said.

(Copyright 2006 by The Associated Press. All Rights Reserved.)

Laboratories of Justice

This article appeared in the Boston Globe on September 24, 2006:

Laboratories of justice

GLOBE EDITORIAL

IN TELEVISION crime dramas, forensic scientists work in sprawling facilities, produce case-closing lab results in a matter of hours, and earn enough money to support runway-worthy office attire. At the Massachusetts State Police crime lab, forensic scientists have backlogs of cases, inadequate bench space, and $35,000 salaries that recently led five of the state's 32 crime lab chemists to seek work in other states -- a 15 percent turnover in one year. Most real-world DNA crime labs fall short of prime-time standards. But, according to a review of investigation practices by the state's District Attorneys Association earlier this month, the Massachusetts lab desperately needs improvement to ensure the integrity of the justice system.

The state was slow to build a facility that can keep up with the needs of the justice system. As recently as two years ago, the lab had limited district attorneys' offices to one DNA analysis per month in cases other than murder.

The state has made important strides since then. The crime lab has tripled its staff since 2004. And with a new facility in Maynard set to open next month, the lab is on course to dramatically expand from the 24,000 square feet it now occupies in two Sudbury buildings to a total of 100,000 square feet.

The upgrades have shaved the turnaround time for DNA analysis in half, from as long as 15 or 16 months to about six to eight months, according to State Police Colonel Mark Delaney. But for police and prosecutors pursuing rape and murder suspects, six months can be an impossibly long wait. And the existing backlog of cases awaiting DNA work will take years more to clear.
While the upcoming expansion is desperately needed, it is still a tight squeeze: Together, the three facilities will provide only about one-third of the space the lab needs. Staffing is an even more serious problem. Delaney said the lab's target turnaround time for DNA analysis is 30 days. To get there, the state would need another 50 forensic chemists.

Right now, the state is not only losing chemists to other labs with better pay; it's also losing the $24,000 investment in state training for each one who leaves. ``These are people with advanced degrees in biology, and they are testifying [in court] on complex DNA issues," Delaney said. ``They deserve a working wage that would be comfortable." Lieutenant Governor and Republican candidate Kerry Healey, who has made criminal justice a focus of her tenure and her campaign, has said she supports the 30-day target goal for DNA analysis, and the additional 50 chemists it would take to get there.

In Delaney's view, state forensic chemists should earn at least $50,000. At that rate, hiring and training 50 more would mean upward of $4 million. It will be up to the new governor to confront this price tag, and the serious public safety issues that hinge on timely DNA analysis.

Laboratories of Justice

This article appeared in the Boston Globe on September 24, 2006:

Laboratories of justice

GLOBE EDITORIAL

IN TELEVISION crime dramas, forensic scientists work in sprawling facilities, produce case-closing lab results in a matter of hours, and earn enough money to support runway-worthy office attire. At the Massachusetts State Police crime lab, forensic scientists have backlogs of cases, inadequate bench space, and $35,000 salaries that recently led five of the state's 32 crime lab chemists to seek work in other states -- a 15 percent turnover in one year. Most real-world DNA crime labs fall short of prime-time standards. But, according to a review of investigation practices by the state's District Attorneys Association earlier this month, the Massachusetts lab desperately needs improvement to ensure the integrity of the justice system.

The state was slow to build a facility that can keep up with the needs of the justice system. As recently as two years ago, the lab had limited district attorneys' offices to one DNA analysis per month in cases other than murder.

The state has made important strides since then. The crime lab has tripled its staff since 2004. And with a new facility in Maynard set to open next month, the lab is on course to dramatically expand from the 24,000 square feet it now occupies in two Sudbury buildings to a total of 100,000 square feet.

The upgrades have shaved the turnaround time for DNA analysis in half, from as long as 15 or 16 months to about six to eight months, according to State Police Colonel Mark Delaney. But for police and prosecutors pursuing rape and murder suspects, six months can be an impossibly long wait. And the existing backlog of cases awaiting DNA work will take years more to clear.
While the upcoming expansion is desperately needed, it is still a tight squeeze: Together, the three facilities will provide only about one-third of the space the lab needs. Staffing is an even more serious problem. Delaney said the lab's target turnaround time for DNA analysis is 30 days. To get there, the state would need another 50 forensic chemists.

Right now, the state is not only losing chemists to other labs with better pay; it's also losing the $24,000 investment in state training for each one who leaves. ``These are people with advanced degrees in biology, and they are testifying [in court] on complex DNA issues," Delaney said. ``They deserve a working wage that would be comfortable." Lieutenant Governor and Republican candidate Kerry Healey, who has made criminal justice a focus of her tenure and her campaign, has said she supports the 30-day target goal for DNA analysis, and the additional 50 chemists it would take to get there.

In Delaney's view, state forensic chemists should earn at least $50,000. At that rate, hiring and training 50 more would mean upward of $4 million. It will be up to the new governor to confront this price tag, and the serious public safety issues that hinge on timely DNA analysis.

City to Consider Cameras in Police Interrogation Room

This article appeared in the Baltimore Sun on September 26, 2006:

City to consider cameras in police interrogation rooms

Metro Digest

The Baltimore Police Department has deployed cameras on some of the city's most crime-ridden streets, but it does not have similar surveillance devices inside interrogation rooms.

Now, with officers facing accusations of misconduct, Council President Sheila Dixon wants to discuss the department's policy on internal monitoring.

Dixon introduced a resolution last night inviting Commissioner Leonard D. Hamm to explain his department's policy "on the use of video and audio recording in custodial interrogations." She wants the hearing to analyze how cameras can prevent wrongful convictions and protect officers from false accusations.

Police Department spokesman Matt Jablow said there are no cameras in interrogation rooms.
"It's not a policy," Jablow said. "That's just how it's always been."

Dixon said the department has sent her a draft policy from the 1970s that requires another officer to be present during an interrogation.

"We need to come into the 21st century," said Dixon, adding that if officers are doing their jobs properly they should have no problem with the cameras.

"It provides more accountability," Dixon said.

Judge Wants DNA Claims in Brown's Case Spelled Out

This article appeared in the Chicago Tribune on September 27, 2006:

Judge wants DNA claims in Brown's case spelled out
Lawyers on both sides given Oct. 4 deadline

By Carlos Sadovi, Tribune staff reporter


A judge on Tuesday ordered lawyers involved in the upcoming trial of two men charged in the 1993 Brown's Chicken slayings to document allegations about lost or damaged DNA evidence linked to the crime.Cook County Criminal Court Judge Vincent Gaughan made the ruling after lawyers representing the Illinois State Police said they have been unable to locate DNA evidence in the case.

"I want a chronological order of the DNA mishaps, things that have happened," Gaughan said during a pre-trial hearing for Juan Luna, 32, and James Degorski, 34, who are charged with killing seven people in the Palatine restaurant on Jan. 8, 1993. "I want you all to focus because this is starting to slip all over the place," he said.

Prosecutors and defense lawyers have until Oct. 4 to detail the problems.

Lawyers for the state attorney general's office, which represents the Illinois State Police, said in court Sept. 20 that DNA evidence missing for about two years had not been located.

The evidence in question includes seven swabs that may have contained evidence taken from partially eaten pieces of chicken found by Palatine police in a garbage can. Illinois State Police officials said they sent the evidence via United Parcel Service in 2004 to Palatine police, which said they never received it.

At Tuesday's hearing Assistant Atty. Gen. Mark Bina turned paperwork over to Gaughan and the other lawyers detailing the investigation of the missing items.

Neither side ever requested analysis of the DNA swabs to determine if they contained evidence. Prosecutors said they have evidence taken from the chicken that links Luna to the restaurant the night the seven people were massacred.

Separately, state police officials also have admitted they discarded a computer that held the results of a DNA analysis. The computer was retrieved after it was sold for scrap.

Also on Tuesday, Gaughan allowed Luna's lawyer, Clarence Burch, to depose Dr. Pam Fish, a controversial former scientist with the Illinois State Police Crime lab. Fish, whose DNA analysis helped put several people in jail who later were cleared, trained the scientist who analyzed DNA in the case.

Burch added Fish's name as a witness in the upcoming trial and wanted to question her under oath about what role she played in the analysis.

Cook County Assistant State's Atty. Tom Biesty objected to deposing Fish because she did not do the work.

"The only reason to put her on the [witness] list is to say, Dr. Fish, Dr. Fish, Dr. Fish," Biesty said. "She did nothing in this case."

Copyright © 2006, Chicago Tribune

Inmate Exonerated by DNA Urges Youngsters to Work Hard

This article appeared in the Hartford Courant on September 26, 2006:

Inmate exonerated by DNA urges youngsters to work hard

Associated Press

NEWINGTON, Conn. -- Adjusting to freedom hasn't been easy for James Tillman, a prison inmate for 18 years.
Tillman, whose conviction on a rape charge was overturned last summer following updated DNA evidence, has recently been speaking with young men considered at-risk of going to prison.

"I can't dwell on what happened because that doesn't get me anywhere," he said before
speaking to a group of teenage boys in Newington on Monday. "I'd rather do what I can to help these kids."

Three months after the DNA evidence led to his exoneration and release from prison, Tillman spoke publicly for the first time about how his faith in God and determination to find purpose helped him overcome his wrongful conviction.

"Things are coming along but I'm still getting used to everything," he said.

Since his release in July, Tillman continues to adjust to life as a free man, such as driving a car or living according to his schedule, not that of a prison.

He has taken a job with the Capitol Region Education Council and his lawyers have established a fund for private donations for him and his family.

Tillman, 45, served 18 years of a 45-year prison sentence after being convicted of raping and beating a woman in downtown Hartford in 1988. The victim identified him as her attacker, but Tillman was exonerated after DNA testing showed he could not have been the suspect.

Tillman is the first prisoner to be freed by lawyers for the state Innocence Project, a state public defender's program that tries to use advances in DNA and other testing to free those who have been wrongfully convicted.

On Monday, Tillman spoke to youngsters as part of a mentoring program.

One youngster asked about prison food. Another youth wanted to know how much time inmates have to shower every day.

Tillman addressed a 12-year-old boy who was caught nodding off during the program."I was the same way when I was your age," he told him. "You need to pay attention because I'm trying to help you. We're all trying to help you."

Tillman urged the youngsters to work hard to overcome the obstacles they face."Look at me. I went to prison for something I didn't do," he said. "What do you think will happen if you go out and actually do something that can land you in jail?"

Editorials Fund the Crime Lab

This article appeared in the Contra Costa Times on September 26, 2006:

Editorials Fund the crime lab

ANYONE WHO HAS SEEN the hit television drama "CSI" knows that DNA samples are often the key to unlocking a tough case. And that analysis of those samples can be churned out in a matter of minutes. Right? Well, not exactly. Not in real life, anyway.

Despite having a clear mandate from voters, the state crime lab in Richmond is literally years behind and it is backlogged by more than 250,000 DNA samples.

The backlog is getting worse. To offer perspective as to the magnitude of the problem, officials said that at its current pace the lab would take 21/2 years to clear the backlog, providing there were no new samples added. That last little caveat, of course, is a fantasy because the lab, on average, is taking in 20,000 new cases a month.

In 2004, voters overwhelming supported Proposition 69, which was supposed to make California the nation's leader in using DNA as a crime-solving tool.

The proposition requires that all convicted felons, certain misdemeanor offenders and all rape and murder suspects give up DNA samples. The samples are tested and uploaded into what is called CODIS, the combined DNA index system administered by the FBI.

The idea behind the system is that once loaded into CODIS, these DNA samples can help identify or, for that matter, eliminate suspects. More than 285,000 samples have been loaded into CODIS and the program yielded 2,670 hits. That may not sound like much, but to the victims and their families in these cases this is a godsend.

The bitter irony is that we have the technology and the support of the people, but experts say that funding is lacking dramatically.

One of the primary causes of the problem is that the Richmond lab pays technicians much lower wages than similar positions in police departments around the state. Currently there are 34 technician vacancies in the Richmond lab.

The program was supposed to have paid for itself because counties were supposed to turn over $1 of every $10 in misdemeanor fines to a penalty fund that was expected to rise to about $25 million.

But for unexplained reasons, some counties aren't contributing and the penalty pot is only at about $7.5 million. That is unacceptable. The voters passed this measure and the counties should be made to turn over the money. If they do not, the attorney general should demand to know why they haven't.

Instead, the Legislature this year allocated another $1 for every $10 for the program. That will help, but only if the state is willing to enforce it.

Meanwhile, thousands of cases languish and many criminals remain free, while some innocents sit in jail. If state government is seriously interested in fighting crime, resolving this mess should be a top priority.

Tucson PD panel to scrutinize procedures of photo lineups

This article appeared in the Arizona Daily Star :

TPD panel to scrutinize procedures of photo lineups
Eyewitness IDs susceptible to suggestion, critics say


By Alexis Huicochea and Kim Smith


In any criminal investigation, finding a witness who can identify a suspect by looking at a photo lineup is like hitting the jackpot.

Or is it?

The traditional photo lineup is a tool that many law enforcement agencies have used for decades, but in recent years, with all of the advances in DNA testing, the effectiveness of traditional photo lineups has come under fire.

The Tucson Police Department has formed the Eyewitness Identification Project Advisory Committee to look at other methods of conducting photo lineups to ensure that an innocent person doesn't get sent to prison, said Lt. John Stamatopoulos.

The committee consists of UA researchers, UA College of Law representatives, prosecutors and defense attorneys, he said.

One reason, he said, is that out of the first 40 convictions overturned nationally through the work of the Innocence Project, 36 were based on eyewitness testimony.

The Innocence Project is a nonprofit legal group that only handles cases in which post-conviction DNA testing of evidence can yield conclusive proof of innocence, according to its Web site.
Tucson police couldn't point to any local cases in which DNA evidence later led to the overturning of a conviction based on eyewitness testimony, but they want to study the lineup issue.

"The Tucson Police Department is progressive. We are always looking for ways to better ourselves, so we hope to make ourselves available for scientific pilot studies to determine what really is the best method," Stamatopoulos said.

In a traditional photo lineup, the detective working a case will take a photo of a suspect and gather five photos of people similar in appearance to show to a witness or victim with the hope that they will select the right person.

However, mistaken identifications are the No. 1 cause of wrongful convictions, so anything that can improve the reliability of the identification process would be welcome, said defense attorney Rick Lougee.

"An officer knows what they want, and they can unwittingly suggest (a suspect), even the most honest cop," Lougee said. "It can be their tone of voice or their inflection, and the witness is looking for cues."

People naturally want to be helpful, Lougee said.

The department is fully aware of the concerns that Lougee raises and that is one of the reasons, Stamatopoulos said, that it is considering a double-blind method in which someone not associated with the case would administer the lineup.

Defense attorney Dan Cooper says one of his clients was arrested for first-degree murder last year because police manipulated a witness during a series of photo lineups. The veteran attorney has asked Judge Richard Fields of Pima County Superior Court to throw out the identification; the matter is pending.

According to authorities, Tony Cornejo's lifeless body was found in Tucson several hours after he and two other men were severely beaten at a Phoenix tire shop by two men.

One of the victims, Juan Ceniceros-Lopez, told police that one of the men shown in a photo lineup looked a little like the tall man who beat him. The man was not Cooper's client, Dominique Martinez.

Three months later, police showed Ceniceros-Lopez another lineup with Martinez in it. Cooper said that although lineups are supposed to include pictures of similar-looking people, the other men in the lineup looked vastly different from Martinez. One had a shaved head, two were obese and another was dark-complected when the attacker was light-skinned.

Ceniceros-Lopez again said one of the men looked a little bit like the attacker, but said he was too old. Again, the man was not Martinez.

According to Cooper, the detectives then asked Ceniceros-Lopez to focus in on Martinez, asking him if he would look like the tall attacker if his head was shaved, if his hair was shorter, if his hair was longer.

Ceniceros-Lopez eventually said Martinez looked "similar" to his attacker.
By the time Ceniceros-Lopez was asked to participate in a live lineup, he'd seen Martinez's picture twice and no one else from the photo lineups was included, Cooper said.

Ceniceros-Lopez picked out Martinez and again said he looked "similar" to his attacker.

Again and again the police would simply not accept Ceniceros-Lopez's inability to positively identify his attacker, Cooper said in his court motion.

"They did precisely what years of cases have precluded as technique and continued to prod and lead the witness until they receive a partial identification," Cooper said. "A more flawed and unfair eyewitness confrontation process could not be imagined."

● To contact reporters: Alexis Huicochea, 629-9412 or ahuicochea@azstarnet.com; Kim Smith, 573-4241 or kimsmith@azstarnet.com.

Tuesday, October 03, 2006

110 Arrests in Doubt

This article appeard in the Chicago Tribune and the Los Angeles Times on September 29, 2006:

110 Arrests in Doubt: Prosecutors Must Drop Cases of 9 Chicago Officers in Scandal's Shadow

By David Heinzmann and Carlos Sadovi

CHICAGO — Top Cook County prosecutors have ordered their staff to drop any case that nine special-operations police officers had a significant role in handling, which could nullify the arrests of 110 people charged in gun, drug, burglary and violence cases, according to a memo circulated this month in the Cook County state's attorney's office. Four of the Chicago police officers have been charged with robberies and kidnappings. Prosecutors have alleged they falsely arrested many people.

The other five officers have been stripped of their police powers but not charged. Prosecutors decided to drop their cases because they doubted the cases could proceed with police witnesses stripped of their authority.Those officers could eventually be exonerated, but "there's no timetable on how long those investigations will take," said Bernard Murray, chief of felony prosecutions for the state's attorney's office.

State's Atty. Richard A. Devine had earlier said his office planned to review whether cases needed to be dropped. The Sept. 12 memo instructs staffers to drop any case in which the nine officers made the arrest, recovered physical evidence, signed a search warrant or provided information from an informant that led to the arrest.

Murray said the memo, listing 110 arrests tied to the officers, was written to guide prosecutors on how to proceed. "We made the decision to err on the side of caution," he said.

One case to be dropped, alleging drug dealing, involves a suspect who separately has been charged with murder. In the drug case, the arresting officer was one of the policemen charged this month; the murder case does not involve detectives connected to the officers' charges. The drug and murder cases had been moving through the courts together, but now only the murder case will move forward.

"We cannot prove our cases," Murray said. "The cases where the defendant was indicted and they were the main officers, we cannot sustain the burden of proof."