innocence blog

A Web log for the Innocence Institute of Point Park University

Friday, November 03, 2006

DNA Clears Man in Rape, Judge Rules

This article appeared in the New York Times on November 1, 2006:

DNA Clears Man in Rape, Judge Rules

By THE ASSOCIATED PRESS

DALLAS, Oct. 31 (AP) — A man convicted of rape 25 years ago walked out of a courtroom a free man Tuesday after a judge ruled that he would probably not have been found guilty if DNA testing had been available.

“My faith was tested, and I won,” said the man, Larry Fuller, 57, who trembled slightly as he left the courthouse carrying two worn Bibles.

After the ruling by Judge Lana McDaniel of District Court, supporters of Mr. Fuller broke out in applause. The assistant district attorney, John Rolater, who was not involved in the original case, apologized to Mr. Fuller.

“Thank you,” Mr. Fuller said. “Apology accepted.”

Mr. Fuller was sentenced to 50 years after jurors convicted him of aggravated rape in 1981, finding that he had broken into a woman’s apartment and raped her, using a butcher knife to cut her thumb, neck and back as she struggled.

The victim looked at two photo lineups, both of which included Mr. Fuller. She picked him in the second one, even though he was bearded in the picture and she had said her attacker had no facial hair.

At the time, Mr. Fuller was a 32-year-old Vietnam veteran who had received the Air Medal for taking care of his crew. He was pursuing a career in art and had worked as a driver and warehouse employee.

Mr. Fuller had no convictions for sexual assault, but he had pleaded guilty to robbing a convenience store in 1975 and had been sentenced to three years in prison. He served 18 years on the rape conviction. He was released in 1999 but sent back last year for a parole violation.
All the while, Mr. Fuller professed his innocence in the rape case and tried to prove it through DNA. This year, the Dallas County district attorney’s office agreed to allow the additional testing.

Mr. Fuller’s subsequent exoneration makes him the 10th Dallas County man in five years cleared by DNA testing. More than 20 men have been exonerated in Texas by such testing, according to the Innocence Project. Nationwide, 185 people have been cleared through DNA after their convictions, according to the Innocence Project. In most cases, testimony from mistaken witness identification led to the wrongful conviction, the group said.

Tuesday, October 31, 2006

Finally, a Life Resumed in New York City

This article appeared in the New York Times on October 29, 2006:

Finally, a Life Resumed

By JEFF VANDAM

AFTER 22 years in Dannemora, Sing Sing, Attica, Great Meadow, Elmira and the Downstate Correctional Facility at Fishkill, Alan Newton came home to the Bronx one unremarkable day last July, his age doubled, his life renewed. As had been proved incontrovertibly, he did not commit the crimes that made the prisons of New York State his home for more than two decades.

One June evening in 1984, Mr. Newton had gone to see “Ghostbusters” in a Downtown Brooklyn movie theater, and within a week he found himself accused of rape, robbery and assault. He had not even been in the Bronx at the time the crimes were committed, but no matter. He did the time.

Now, the years of prison, and endless efforts to have the city find the DNA evidence that would prove his innocence, were history. Mr. Newton returned to the city of his birth with a characteristic sense of purpose. He had successfully taken on the system that wrongly imprisoned him; now, he would take on a normal life, or a life approaching normal.

To encounter Mr. Newton’s muscular frame and his smiling, unlined face while knowing nothing of his background is to meet a congenial man who seems happy simply to be living in his hometown again. And he is no wizened Rip Van Winkle. Although Mr. Newton, 45, has spent nearly half his life behind bars, he is unexpectedly comfortable in 21st-century New York, ready not only to navigate its high-tech byways, but also to discuss everything from the viability of the Mets’ current outfield to the exploits of Agent Jack Bauer on the television series “24.”

In addition, he is dealing with such mundane matters as finding a place to live, having enough money to buy food and clothing, and making his way to and from classes at Medgar Evers College in Crown Heights, Brooklyn, where he is earning a bachelor’s degree in business administration. In these and other respects, Mr. Newton’s is a life resumed, if not restored.

•One drizzly evening a few weeks after his release, Mr. Newton took a stroll along the narrow, boutique-lined streets of NoLIta, a neighborhood that at the time he entered the penal system was simply considered part of Little Italy. The storefronts filled with glittery drop earrings and pointy-toed suede heels represented a drastic change from the warehouses and food distribution centers of old. But asked if the place looked different, Mr. Newton simply shrugged.

Heading west toward SoHo, he came upon a former post office that had been gutted and transformed into a palace of translucent glass and ambient sound. It was the Apple Store, where snowy white computers flanked by matching speakers sat atop every table, alongside tiny iPods.

Admittedly, some of what’s new in New York has caught him unawares. He has been bemused, for example, by the offerings at Starbucks. Of any given Starbucks product, Mr. Newton said, "It tastes like a milkshake." And iced coffee? “It used to be, if somebody had cold coffee sitting there, they didn’t want it anymore.”

But mostly, he is taking the new New York in stride. At the Apple Store, Mr. Newton looked at the equipment with respectful interest, but he was neither shocked nor amazed. Less than two months out of prison, which he entered the year the first Macintosh personal computer hit the market, he was hardly fazed at all by the nation’s palace of personal technology. Almost indifferently, he checked his e-mail on one of the wireless computers — his sister Grace taught him how to do this — before heading out to the damp of Prince Street.

LATER, over dinner within the snug confines of Lombardi’s Pizzeria on Spring Street, it became clear through Mr. Newton’s remembrances and observations that little in the way of material comforts could surprise a man who had caromed like a racquetball through countless prisons over 22 years — “the New York tour,” as inmates call it. Only in the brief but ever-present mentions of “when I was inside,” as he puts it, does the sheer enormity of what weighs on him become apparent.

In the summer of 1984, Mr. Newton was a 23-year-old business representative trainee for the New York Telephone Company, living with his two brothers and five sisters in a public housing project in Morrisania in the Bronx. In his off-hours, he cut loose at hip-hop dance parties up and down the Bronx, especially in Echo Park on Valentine Avenue, at the schoolyard of Public School 63 and at clubs like the T Connection and the Sparkle.

“Wherever the parties were, I was there,” Mr. Newton recalled over a large half-eaten pizza. “Somebody jumped out a cab, they’d say: ‘Hey, there’s a party uptown at the T Connection! Let’s go!’ ”

But after he saw “Ghostbusters” on the evening of June 22, there would be no more dance parties. That night, a 25-year-old woman was grabbed as she was leaving a bodega in the Tremont section of the Bronx, and she was raped once in nearby Crotona Park and again in an abandoned building. Her eye was sliced by the assailant, who drove a Pontiac Grand Prix, and her money and cigarettes were taken.

Though the victim identified the man who attacked her as “Willie,” she picked Mr. Newton out of a photo lineup, as did a clerk at the bodega. Mr. Newton did not own a Grand Prix, but he lived less than a mile from the bodega, and he had a criminal record from a fight as a teenager. The following May, he was convicted. The sentence was 13 1/3 to 30 years.

Maintaining his innocence in prison long after most convicts do, Mr. Newton formally requested DNA testing multiple times, only to be told that the relevant evidence could not be found.

In 2004, his case was taken up by the Innocence Project, a nonprofit legal clinic based in Manhattan that has helped free prisoners based on DNA evidence. Last November, the evidence was found in a decrepit police warehouse on Pearson Place, a twig of a street in Long Island City, Queens, that sits between a rail yard and the Long Island Expressway.

The discovery inside the four-story brown building, home of the New York Police Department Property Unit, was not the result of luck. The evidence was in Bin No. 2002-1, which, as it turned out, was exactly where everything needed to exonerate Mr. Newton was always supposed to be.

Mr. Newton does not speak much about his years behind bars. “I got into a few fights,” he said, “but basically, you know, it was the years I did that were hard. I basically came out of there unscratched, compared to other guys.”

He sometimes wonders, however, about the chain of events that led to his release. Somehow he acquired a photograph of the inside of the building at Pearson Place. Every so often, he takes it out and looks at the image of barrels and barrels containing evidence, and the forklifts required to move them around.

HERE is the most startling news about Alan Newton: he is not angry. Hardly a trace of bitterness can be heard in his soft, unemotional voice when he discusses the events of his life, and this despite the fact that his troubles aren’t entirely behind him.

Nearly every day, Mr. Newton goes through endless trials that are part of his efforts to re-enter a society from which he was excluded for more than two decades. Simply acquiring a document stating his identity, for example, a piece of paper most people obtain with barely a moment’s thought, presented an almost insurmountable challenge.

Because he had no birth certificate within easy reach and the state would not take a prison ID as proof of his existence, Mr. Newton found himself out of luck when he requested the photo ID that the state’s Department of Motor Vehicles routinely issues to New Yorkers who don’t drive.

His luck changed only after The Daily News published an article about his unexpected release from prison; he cut out the article, took it with him to the D.M.V. office on 125th Street in Harlem and held it up to the window to show the clerk, who finally relented.

“I don’t know how to describe it,” Mr. Newton said of the month it took him to receive an otherwise routine document. “Not having ID, it’s like you’re not a person, especially now, here in New York.” Now, he added with relief, “I can travel without a newspaper article.”

Crown Heights is not known as a college town. The low-rise red-brick buildings of Medgar Evers College hardly stand out along the stretch of Bedford Avenue on which they sit, overwhelmed by the Ebbets Field Apartments next door, a collection of light brown towers that occupy the land once filled by the mourned ballpark.

The neighborhood is neither quiet nor lush with trees and brownstones. On the contrary, it is loud and lively. Trucks and auto body shops are a constant. The college’s neighbors on the other side of Bedford Avenue include a check-cashing place, the Balboa Caribbean Restaurant, the Principe de Paz Iglesia de Dios Pentecostal, and the Coral Church of Righteousness and Light Inc.

Bright and early most mornings, this is the scene Mr. Newton enters.

After 22 years of being rigidly kept in his place in prison and being told repeatedly that his situation could not be helped, Mr. Newton now seeks quick and definitive solutions to even the most ordinary problems. This was apparent the afternoon this summer when he elbowed his way through throngs at the student bookstore in search of a textbook called “Discovering the Universe,” for his course in physical science.

Blending into the crowd in his dark pants and off-white, open-collar shirt, he walked up to a classmate who was standing in line and addressed her in a friendly but businesslike manner. His voice, typically soft and pleasant, grew louder and more direct. “They got that book?” he asked. She shook her head.

This was clearly not the first time he had confronted such a problem.

Immediately, Mr. Newton pulled out one of his two cellphones, each a gift from a brother, and dialed direct to the office of the college’s vice president of operations, which was helping him get settled.

“Yes, this is Alan Newton, again,” he said crisply. “Could you inform Mr. Davis that they don’t have that book, either?”

Thanks to courses he took in prison, Mr. Newton had earned an associate’s degree in business administration and accumulated 99 academic credits. Nevertheless, applying to Medgar Evers was hardly a snap.

“The first time Alan came into our downtown office, this lady was like, ‘Why are you applying for this so late?’ ” said Christopher Hundley, acting director of the college’s office of communications, describing his first meeting with Mr. Newton just weeks after his release.

“Then he said, ‘I’m that guy’ ” — the guy whose face and story had been splashed all over CNN and the newspapers. “We had no idea. It’s like, what do you even say?”

Mr. Newton will most likely need to spend only one year at Medgar Evers to earn all the credits he needs to acquire a bachelor’s degree. Beyond that, he is not certain what he will do. With his vast experience in wrangling with the criminal justice system, law school often comes to mind, as does starting some sort of business on the Internet.

“I got to plan,” Mr. Newton said. “I got to think. And I got to do for myself now, to make things work.”

Relaxing one evening a few weeks ago in an upper-deck seat behind home plate at Shea Stadium, a steaming hot dog in one hand and a Spaten Oktoberfest beer in the other — it was Oktoberfest night at Shea, though it was still September — Mr. Newton seemed at home. He had not been to Shea since 1983, but it was hard to tell. Did the old blue bowl of Flushing look any different?

“Nahhhh,” he replied. “All stadiums look the same.”

Mr. Newton, who was wearing warm-up pants, aerodynamic Nike sneakers and a black Medgar Evers hat, settled into his seat and began discussing the fortunes of that other New York team in the Bronx. He expounded on the career of Jose Reyes, the Mets’ All-Star shortstop, who was born a year before he went to prison.

During the game, Mr. Newton got a call on one of his cellphones from an old friend. He invited him to attend a family gathering that Saturday, a nephew’s birthday party he wouldn’t miss for the world.

“I got a whole bunch to get off my chest,” he told the caller with a laugh. “You got like nine hours?”

Mr. Newton’s parents died while he was in prison, but the other members of his family, which includes a multitude of nieces, nephews and cousins, have stood by him and continue to stand by him. His younger brother, Ray, for example, an aerospace engineer who lives in Bloomfield, N.J., often comes to the city to hang out with Alan, doing ordinary things like watching the Giants on television and wandering around Manhattan.

Yet Ray Newton and his siblings know that their brother is still struggling to maintain the basics of his life. He does not have his own apartment; he splits his time between a friend’s place in Harlem and the home of his other brother, Anthony, in Canarsie. He is exploring the possibility of going to court to seek compensation for his wrongful conviction, but when he was released from prison he received nothing.

Mr. Newton is earning a little money doing counseling and clerical work at the Male Development and Empowerment Center at Medgar Evers, where ex-convicts and young men from struggling backgrounds go to seek help. But he needs help from his family to buy basics like food and clothing, and, perhaps more important, to provide camaraderie and support.
“The transitioning is still a little rough on him,” Ray Newton said. “If he’s going somewhere for the first time, he wants somebody with him. It’s strange to go from being isolated to the heart of New York City.”

In their time together, Ray Newton has been able to assess small changes in his brother’s personality; while the Alan Newton of old was a little sloppy and disorganized, today he makes an effort to keep his life in order. “Al used to pay me and my little sister to clean his room and tidy up his stuff,” Ray said. “And now, to see how he’s very organized, it’s shocking to me.”
Even so, after years of communicating solely with visitors, prison officials, lawyers and fellow inmates, Mr. Newton is ready to greet life again. Riding the No. 7 train home from the Mets game that September night, he stretched out comfortably on a row of shiny orange and yellow seats. “It’s just good talking to people again,” he said, describing the experience of randomly meeting strangers on 42nd Street, asking for directions or just chatting. Half-smiling, he gazed out the window. “I missed this, you know?”

As the train descended into the ground, it hurtled past Pearson Place, the street where the evidence that brought Mr. Newton his freedom was held and presumed lost for so many years. But he did not notice. He was looking forward to getting back to the city.

Tenth Dallas Man to Be Exonerated

Tenth Dallas County Man in Just Five Years Is Proven Innocent

Through DNA Evidence; Larry Fuller Set To Be Released Today



25 years after wrongful conviction for rape, DNA proves Fuller’s innocence;

unprecedented number of cases in Dallas County ‘demands a closer look’



( DALLAS , TX ; October 31, 2006 ) – For the tenth time in five years, a Dallas County man who was wrongly convicted has been proven innocent through DNA testing, the Innocence Project said today. Based on eyewitness misidentification, Larry Fuller, 57, was convicted of aggravated rape in August 1981 and sentenced to 50 years in prison.



Tuesday afternoon, October 31, the Innocence Project will file legal papers to vacate Fuller’s conviction and release him from prison. Fuller will appear in court with Innocence Project Co-Director Barry Scheck and Staff Attorney Vanessa Potkin at 1 p.m. Tuesday in front of Judge Lana McDaniel in 203rd Judicial District Court in Dallas ( Frank Crowley Courts Building , 7th Floor). The Innocence Project anticipates that Fuller will be released at the conclusion of the hearing. Fuller, Scheck, and Potkin – joined by several of the other nine men who have been proven innocent through DNA testing in Dallas County – will speak to reporters outside the courthouse following the hearing, along with Jeff Blackburn of the Innocence Project of Texas and local co-counsel Frank Jackson.



Including Fuller, 10 Dallas County men have been proven innocent through DNA testing since 2001 – a pattern that the Innocence Project said is both unprecedented and troubling. “Nowhere else in the nation have so many individual wrongful convictions been proven in one county in such a short span of time. It is clear today that there’s an alarming pattern of wrongful convictions in Dallas County , which demands a closer look through an independent investigation,” Scheck said.



The Innocence Project said today that the Dallas County District Attorney should order a full, independent review of the 10 recent cases where DNA has proven innocence, as well as other cases from the same timeframe. Of the 10 Dallas County convictions where DNA has recently proven innocence, nine are sexual assault-related cases; the convictions were between 1981 and 1994, with eight of the 10 in a five-year span in the mid-1980s. Several of the wrongful convictions involved eyewitness misidentification.



“ Texas needs a statewide mechanism to identify and address the causes of wrongful convictions, but Dallas County can’t wait for the state to act,” Scheck said. “When one plane crashes, the NTSB launches an immediate investigation to determine the cause and prevent it from happening again. These wrongful convictions in Dallas County are like a series of plane crashes at the same airport, in the same era, and they require immediate, serious action.” A review ordered by the District Attorney would help identify common patterns in the cases – such as eyewitness misidentification – and might identify additional cases where people may have been wrongly convicted, the Innocence Project said.



In Fuller’s case, eyewitness misidentification was the primary basis for wrongful conviction – as it is in 75 percent of wrongful convictions overturned by DNA evidence nationwide. In April 1981, a Dallas woman woke up at 6 a.m. to find a black man with a knife on top of her. It was 45 minutes before sunrise on a foggy day, and the only light in the room (other than any light from outside before dawn) came from a digital alarm clock. The intruder cut the woman several times and raped her. Motile sperm were collected in a rape kit at the hospital shortly after the attack, but DNA testing was not available in 1981. Police showed the victim several photos at her home two days after the rape; although Fuller’s photo was among the six she was shown, the victim did not identify him. The investigating police officer issued a report recommending that the investigation be “suspended,” noting that the victim “was unsure of the suspect at this time.” The investigation continued, however – and police investigating the crime apparently remained focused on Fuller.



Several days later, police again showed the victim several photographs at her home to see whether she could identify her attacker. Fuller’s photo was the only one in the second photo array that was also in the first one. The victim was alarmed that Fuller had a full beard, since she had said her attacker did not have facial hair. Placing her fingers over the bottom part of the photo, to block half of Fuller’s face, she then positively identified him, and he was arrested. In August 1981, Fuller had a two-day trial – in which the prosecution said the victim had “never wavered” in identifying him. After deliberating for 35 minutes, the jury convicted him.



“Police focused on Larry Fuller almost immediately, and they continued to pursue him even though the victim was unable to identify him,” Potkin said. “For decades, scientific research has proven that the procedures which led the victim to misidentify Larry Fuller decrease the accuracy of identifications. This case – and the nine before it – begs the question of how many other innocent people have been convicted in Dallas County based on eyewitness misidentification or other factors.”



Fuller was 32 years old at the time of the rape, and he was raising two young children with his girlfriend. Years earlier, while attending Dallas Baptist College , he was drafted into the U.S. Army and served two tours of duty in Vietnam (while he was drafted for the first tour, he volunteered for the second). He was shot down several times in duty, and received the Air Medal. After being honorably discharged, he pursued an education in the arts while holding several jobs.



In the mid-1990s, Fuller wrote to the Innocence Project, which took his case. The Dallas County District Attorney’s Office initially opposed efforts to seek DNA testing in the case, which a court ultimately ordered. In 1999, Fuller was released on parole after 18 years in prison. Fuller’s parole was revoked in 2005 for a violation of his release conditions, and he was sent back to prison to serve the remainder of his sentence.



Not including Fuller (who will need to apply for a pardon from Texas ’s governor), 185 people in 32 states have been exonerated through DNA testing. The Innocence Project, affiliated with the Benjamin N. Cardozo School of Law, has provided direct representation or consultation in most of them. The Innocence Project of Texas has worked on several of the Dallas County cases.



##



Dallas County Cases Where DNA Has Proven Innocence



In just the last five years, 10 men who were wrongly convicted have been proven innocent through DNA testing. Following are short descriptions of their cases.



1. David Shawn Pope

David Shawn Pope was convicted in 1986 of a 1985 aggravated sexual assault and sentenced to 45 years. He was pardoned in 2001 after spending 15 years in prison.



Background:

In the evening of July 24, 1985 , in Garland , Texas , an unknown man knocked on a woman’s door, asked for someone who did not live there, and left. At 6 a.m. the next morning, she woke up to a man standing over her bed with a knife, and she was raped. After her assault, the victim followed her attacker to the patio door and stood next to him. She described her rapist to the police as a young white male, around 5' 8" tall, 140 pounds, blond, slim, very tan, and wearing beige pants and no shirt. The victim was unable to identify Pope in a photographic lineup, but over a month later, she identified Pope in a live lineup. The victim also identified Pope in court as the man who raped her. The prosecution’s evidence also included a knife found in his car that resembled one stolen from the victim’s kitchen and used during the attack, and a “voice print analysis,” which was said to match Pope’s voice to messages left on the victim’s answering machine in the weeks after the crime. (Scientists have questioned the accuracy of voice print analysis, and it is no longer used in courts.) Pope maintained his innocence and testified on his own behalf in the punishment phase of his trial. He testified that he had lived in the same apartment complex as the victim until the month prior to the rape when he was evicted, and that during the month of the attack, he at times lived out of his car on the apartment complex’s grounds. In January 1999, the Dallas County District Attorney’s Office received an anonymous call that supported Pope’s claim of innocence. The case was reopened and the rape kit was submitted to DNA testing, which excluded Pope as the perpetrator and matched a convicted rapist. Governor Rick Perry pardoned Pope on February 2, 2001 .





2. Wiley Fountain

Wiley Fountain was convicted in 1986 of aggravated sexual assault and sentenced to 40 years in prison. Fountain was released on parole in February 2001, but his parole was revoked months later when he failed to find a job and pay fees as a registered sex offender. He was finally released from prison in 2002 after DNA excluded him from rape kit evidence, and he was fully pardoned by Governor Rick Perry in 2003.



Background:

A pregnant woman was grabbed from behind while walking to a bus stop in Dallas and raped at knifepoint. The perpetrator dragged the victim to a nearby driveway, raped her, and stole money from her. The victim told police that moments before she was accosted, she saw her attacker, whom she believed to be Fountain because she had recently seen him in her apartment complex. According to the victim, she and her attacker were face to face, just inches apart, at different points during the attack. She later gave police a description of her attacker, and an officer stopped Fountain (who was on parole at the time for a 1983 burglary conviction) a block from the victim’s apartment because he was wearing clothing that matched the description of the suspect. The victim later identified him in a photo lineup. Fountain asserted that he had been at home when the rape happened, and he had an alibi witness at trial. Testing of the biological evidence was inconclusive at that time. He was convicted in 1986 and sentenced to 40 years in prison. In 2002, with the urging of the Dallas County Public Defender’s Office, DNA testing was conducted on a vaginal swab and excluded Fountain as the perpetrator. After the DNA was submitted for testing twice more with the same results, Governor Rick Perry pardoned Fountain on March 18, 2003 .





3. Donald Wayne Good

Donald Wayne Good was convicted in 1984 of committing a 1983 rape and burglary. He was sentenced to life in prison. He was paroled in 1993, but his parole was revoked in 2002 (for a minor property crime); he is still serving a five-year sentence for the property crime. In 2004, DNA testing proved that Good could not have been the man who committed the 1983 crimes.

.

Background:

A perpetrator broke into a Dallas County woman’s home, restrained her daughter in one room, then put a pillowcase over the victim’s head and raped her in a separate room. Both the daughter and mother identified Good. He was in police custody on unrelated charges when a police officer saw a resemblance with the composite sketch and included his photo in a photo array. Good’s first trial ended in a hung jury. At the second trial, in 1984, Good was convicted and sentenced to life in prison. Good represented himself in an appeal and lost. Besides the identification, the prosecution also relied on serological testing of the victim’s clothing and a blanket, which matched Good as well as a significant percentage of the white male population. In 1993, Good was paroled and registered as a sex offender. In 2002, he was arrested for a minor property crime and had his parole revoked and his life sentence reinstated. He received a five-year sentence for the property crime. In 2003, Good’s motion requesting DNA testing was granted and the court ordered testing of the rape kit. In April 2004, DNA test results excluded Good as the perpetrator. In November, Good’s conviction was overturned. He remains in prison for the minor property crime charge and is expected to be released in May 2007.





4. Keith E. Turner

In 1983, Keith E. Turner was convicted of a 1982 aggravated sexual assault and sentenced to 20 years in prison, of which he served four years. Turner was exonerated and pardoned in 2005.



Background:

A rape victim in Dallas identified Turner as her assailant. She and Turner worked for different branches of the same company and came into contact when Turner was transferred. She identified him both visually and by his voice. Turner provided an alibi, but he was convicted in 1983 and spent four years in prison. He was out on parole when Governor Rick Perry pardoned him on December 22, 2005 , based on exculpatory DNA test results.





5. Entre Nax Karage

In 1997, Entre Nax Karage was convicted of committing a 1994 murder and sentenced to life in prison, of which he served seven years. He was exonerated and pardoned in December 2005.



Background:

In 1994, Karage’s 14-year-old girlfriend was murdered. Three years later, Karage was convicted of the crime by Judge Karen Greene in a non-jury trial. DNA testing at the time of the trial did not match Karage, but this was consistent with the prosecutors’ belief that Karage had found his girlfriend with another man and killed her in a jealous rage. Karage provided a written statement asserting his innocence, but he didn’t have a solid alibi. Also, some of his girlfriend’s blood was found in the trunk of Karage’s car. None of the prosecution’s evidence linked him to the scene of the crime. He was convicted and sentenced to life in prison. Seven years later, authorities finally ran the DNA test through the federal database of convicted offenders and found a match to another man who was previously convicted of a similar crime. Karage was pardoned by Governor Rick Perry in 2005.





6. Eugene Ivory Henton

Eugene Ivory Henton was convicted of sexual assault in 1984 and sentenced to four years. He served 18 months in prison on that charge. DNA testing exculpated Henton in 2005.



Background:

Henton pleaded guilty to the sexual assault charge in exchange for a four-year sentence. He was paroled after 18 months and is now serving time for two unrelated convictions: a 42-year sentence for drug possession and a 20-year sentence for aggravated assault.





7. Gregory Wallis

Gregory Wallis was convicted in 1989 of burglary of a habitation with intent to commit sexual assault in 1988. He was sentenced to 50 years in prison and served 18 years. He was released in March 2006.



Background:

In January 1988, a man talked his way into an Irving , Texas , condo and for two hours repeatedly raped and assaulted the woman living there. The victim gave a description to police, but without any leads, the investigation went cold. Four months later, after police circulated a flier about the attack in a local jail, an inmate made a deal with Irving detectives and became a confidential informant. The informant told police that Greg Wallis had a tattoo similar to the description given by the victim. After Wallis became a suspect, the victim picked him out of a photo array. The police had no physical evidence tying Wallis to the crime, and his wife testified that he had been with her at the time of the attack. Weeks before his trial, he was offered – and rejected – a plea bargain offer of 10 years. At trial, the victim testified that she knew for a fact Wallis was the man who raped her. He was convicted and sentenced to 50 years. In December 2005, results of a first round of DNA testing could not entirely exclude Wallis. He was offered his freedom if he would agree to be a life-time registered sex offender. He declined. In 2006, another (more advanced) DNA test was conducted and the results proved that Wallis was not the perpetrator. He was released from prison in March 2006.





8. Billy Wayne Miller

In 1984, Billy Wayne Miller was convicted of abducting and sexually assaulting a woman in 1983. He was released from prison in May 2006 after serving 22 years.



Background:

The victim of a 1983 abduction and sexual assault identified Miller as her attacker. At the time Miller was arrested, he was on parole for a 1972 conviction for assault to commit murder and robbery, stemming from a convenience store hold-up. Investigators could not find evidence from Miller’s trial for the 1983 crimes that could be subjected to DNA testing, so DNA testing was performed on evidence from the victim’s hospital examination. In 2005, testing excluded Miller as a contributor of the DNA sample. After the victim was located and her DNA was compared with the original evidence, and a second test showed the same results, Miller was released.





9. Billy James Smith

Billy James Smith was convicted of aggravated sexual assault while using and exhibiting a deadly weapon in 1986. He was sentenced to life in prison. Smith was released in July 2006.



Background:

Smith was convicted of raping a woman while using a knife as a weapon. His conviction was based in part on an incorrect identification made by the victim’s boyfriend – who did not witness the attack (the Court of Criminal Appeals called this identification “questionable”). The police who searched Smith’s belongings did not find clothing that the victim said the perpetrator wore. The clothes that police confiscated from Smith contained no DNA evidence whatsoever. Also, Smith’s sister testified at trial, corroborating his alibi. There was no evidence in the record that the victim had engaged in sex with anyone besides her attacker in the 24 hours prior to her rape. The prosecution used the presence of semen to prove that a rape had occurred, and Smith was convicted. After Smith requested DNA testing in 2001, the state argued that because the victim had a live-in boyfriend, it may have been possible that the semen belonged to him and therefore, according to the state, results excluding Smith would not prove his innocence. Both the trial court and an appeals court denied his requests for DNA testing. Finally, in June 2005, the Texas Court of Criminal Appeals overruled the two lower courts and granted Smith’s request for testing, which would set him free in July 2006.





10. Larry Fuller

Larry Fuller was convicted in 1981 of aggravated rape and sentenced to 50 years. (In 1999, he was released on parole, but in YEAR, he returned to prison because of a minor parole violation.) DNA testing in 2006 proved that he could not have been the man that committed the crime, and he was released.



Background:

In the pre-dawn hours of April 26, 1981 , a woman woke up to find a man sitting on top of her with a knife in his hand. When she resisted, he cut her hand, both sides of her neck, and her buttocks. He then raped her and left. The victim claimed that she could see her attacker from a crack of light from her window and the light of her digital alarm clock. She identified Fuller from a photo array and also at trial. The victim was shown two photo arrays. She was unable to make a positive identification from the first array. In the second array, a more recent picture of Fuller was included showing him with a full beard. She identified Fuller from this photo – even though she didn’t remember her attacker having any facial hair and the photo had been taken only one week after the attack. Fuller was the only man to appear in both arrays. According to a state serology expert at Fuller’s trial, testing of the blood and semen sample showed it to be consistent with Fuller and exclusionary to 80 percent of the population. However, upon cross-examination the expert conceded that the results were not definitive. Fuller’s alibi was corroborated and he had no record of sex crimes. Nevertheless, he was convicted and sentenced to 50 years in prison. He first contacted the Innocence Project in the mid-1990s. After his release in 1999, he continued to seek post-conviction DNA testing to prove his innocence. In 2003, an initial round of DNA testing was inconclusive. Finally, in 2006, more advanced DNA testing showed that Fuller was not the perpetrator; he is set to be released October 31, 2006 .



##



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










--------------------------------------------------------------------------------

Tenth Dallas Man to Be Exonerated

Tenth Dallas County Man in Just Five Years Is Proven Innocent

Through DNA Evidence; Larry Fuller Set To Be Released Today



25 years after wrongful conviction for rape, DNA proves Fuller’s innocence;

unprecedented number of cases in Dallas County ‘demands a closer look’



( DALLAS , TX ; October 31, 2006 ) – For the tenth time in five years, a Dallas County man who was wrongly convicted has been proven innocent through DNA testing, the Innocence Project said today. Based on eyewitness misidentification, Larry Fuller, 57, was convicted of aggravated rape in August 1981 and sentenced to 50 years in prison.



Tuesday afternoon, October 31, the Innocence Project will file legal papers to vacate Fuller’s conviction and release him from prison. Fuller will appear in court with Innocence Project Co-Director Barry Scheck and Staff Attorney Vanessa Potkin at 1 p.m. Tuesday in front of Judge Lana McDaniel in 203rd Judicial District Court in Dallas ( Frank Crowley Courts Building , 7th Floor). The Innocence Project anticipates that Fuller will be released at the conclusion of the hearing. Fuller, Scheck, and Potkin – joined by several of the other nine men who have been proven innocent through DNA testing in Dallas County – will speak to reporters outside the courthouse following the hearing, along with Jeff Blackburn of the Innocence Project of Texas and local co-counsel Frank Jackson.



Including Fuller, 10 Dallas County men have been proven innocent through DNA testing since 2001 – a pattern that the Innocence Project said is both unprecedented and troubling. “Nowhere else in the nation have so many individual wrongful convictions been proven in one county in such a short span of time. It is clear today that there’s an alarming pattern of wrongful convictions in Dallas County , which demands a closer look through an independent investigation,” Scheck said.



The Innocence Project said today that the Dallas County District Attorney should order a full, independent review of the 10 recent cases where DNA has proven innocence, as well as other cases from the same timeframe. Of the 10 Dallas County convictions where DNA has recently proven innocence, nine are sexual assault-related cases; the convictions were between 1981 and 1994, with eight of the 10 in a five-year span in the mid-1980s. Several of the wrongful convictions involved eyewitness misidentification.



“ Texas needs a statewide mechanism to identify and address the causes of wrongful convictions, but Dallas County can’t wait for the state to act,” Scheck said. “When one plane crashes, the NTSB launches an immediate investigation to determine the cause and prevent it from happening again. These wrongful convictions in Dallas County are like a series of plane crashes at the same airport, in the same era, and they require immediate, serious action.” A review ordered by the District Attorney would help identify common patterns in the cases – such as eyewitness misidentification – and might identify additional cases where people may have been wrongly convicted, the Innocence Project said.



In Fuller’s case, eyewitness misidentification was the primary basis for wrongful conviction – as it is in 75 percent of wrongful convictions overturned by DNA evidence nationwide. In April 1981, a Dallas woman woke up at 6 a.m. to find a black man with a knife on top of her. It was 45 minutes before sunrise on a foggy day, and the only light in the room (other than any light from outside before dawn) came from a digital alarm clock. The intruder cut the woman several times and raped her. Motile sperm were collected in a rape kit at the hospital shortly after the attack, but DNA testing was not available in 1981. Police showed the victim several photos at her home two days after the rape; although Fuller’s photo was among the six she was shown, the victim did not identify him. The investigating police officer issued a report recommending that the investigation be “suspended,” noting that the victim “was unsure of the suspect at this time.” The investigation continued, however – and police investigating the crime apparently remained focused on Fuller.



Several days later, police again showed the victim several photographs at her home to see whether she could identify her attacker. Fuller’s photo was the only one in the second photo array that was also in the first one. The victim was alarmed that Fuller had a full beard, since she had said her attacker did not have facial hair. Placing her fingers over the bottom part of the photo, to block half of Fuller’s face, she then positively identified him, and he was arrested. In August 1981, Fuller had a two-day trial – in which the prosecution said the victim had “never wavered” in identifying him. After deliberating for 35 minutes, the jury convicted him.



“Police focused on Larry Fuller almost immediately, and they continued to pursue him even though the victim was unable to identify him,” Potkin said. “For decades, scientific research has proven that the procedures which led the victim to misidentify Larry Fuller decrease the accuracy of identifications. This case – and the nine before it – begs the question of how many other innocent people have been convicted in Dallas County based on eyewitness misidentification or other factors.”



Fuller was 32 years old at the time of the rape, and he was raising two young children with his girlfriend. Years earlier, while attending Dallas Baptist College , he was drafted into the U.S. Army and served two tours of duty in Vietnam (while he was drafted for the first tour, he volunteered for the second). He was shot down several times in duty, and received the Air Medal. After being honorably discharged, he pursued an education in the arts while holding several jobs.



In the mid-1990s, Fuller wrote to the Innocence Project, which took his case. The Dallas County District Attorney’s Office initially opposed efforts to seek DNA testing in the case, which a court ultimately ordered. In 1999, Fuller was released on parole after 18 years in prison. Fuller’s parole was revoked in 2005 for a violation of his release conditions, and he was sent back to prison to serve the remainder of his sentence.



Not including Fuller (who will need to apply for a pardon from Texas ’s governor), 185 people in 32 states have been exonerated through DNA testing. The Innocence Project, affiliated with the Benjamin N. Cardozo School of Law, has provided direct representation or consultation in most of them. The Innocence Project of Texas has worked on several of the Dallas County cases.



##



Dallas County Cases Where DNA Has Proven Innocence



In just the last five years, 10 men who were wrongly convicted have been proven innocent through DNA testing. Following are short descriptions of their cases.



1. David Shawn Pope

David Shawn Pope was convicted in 1986 of a 1985 aggravated sexual assault and sentenced to 45 years. He was pardoned in 2001 after spending 15 years in prison.



Background:

In the evening of July 24, 1985 , in Garland , Texas , an unknown man knocked on a woman’s door, asked for someone who did not live there, and left. At 6 a.m. the next morning, she woke up to a man standing over her bed with a knife, and she was raped. After her assault, the victim followed her attacker to the patio door and stood next to him. She described her rapist to the police as a young white male, around 5' 8" tall, 140 pounds, blond, slim, very tan, and wearing beige pants and no shirt. The victim was unable to identify Pope in a photographic lineup, but over a month later, she identified Pope in a live lineup. The victim also identified Pope in court as the man who raped her. The prosecution’s evidence also included a knife found in his car that resembled one stolen from the victim’s kitchen and used during the attack, and a “voice print analysis,” which was said to match Pope’s voice to messages left on the victim’s answering machine in the weeks after the crime. (Scientists have questioned the accuracy of voice print analysis, and it is no longer used in courts.) Pope maintained his innocence and testified on his own behalf in the punishment phase of his trial. He testified that he had lived in the same apartment complex as the victim until the month prior to the rape when he was evicted, and that during the month of the attack, he at times lived out of his car on the apartment complex’s grounds. In January 1999, the Dallas County District Attorney’s Office received an anonymous call that supported Pope’s claim of innocence. The case was reopened and the rape kit was submitted to DNA testing, which excluded Pope as the perpetrator and matched a convicted rapist. Governor Rick Perry pardoned Pope on February 2, 2001 .





2. Wiley Fountain

Wiley Fountain was convicted in 1986 of aggravated sexual assault and sentenced to 40 years in prison. Fountain was released on parole in February 2001, but his parole was revoked months later when he failed to find a job and pay fees as a registered sex offender. He was finally released from prison in 2002 after DNA excluded him from rape kit evidence, and he was fully pardoned by Governor Rick Perry in 2003.



Background:

A pregnant woman was grabbed from behind while walking to a bus stop in Dallas and raped at knifepoint. The perpetrator dragged the victim to a nearby driveway, raped her, and stole money from her. The victim told police that moments before she was accosted, she saw her attacker, whom she believed to be Fountain because she had recently seen him in her apartment complex. According to the victim, she and her attacker were face to face, just inches apart, at different points during the attack. She later gave police a description of her attacker, and an officer stopped Fountain (who was on parole at the time for a 1983 burglary conviction) a block from the victim’s apartment because he was wearing clothing that matched the description of the suspect. The victim later identified him in a photo lineup. Fountain asserted that he had been at home when the rape happened, and he had an alibi witness at trial. Testing of the biological evidence was inconclusive at that time. He was convicted in 1986 and sentenced to 40 years in prison. In 2002, with the urging of the Dallas County Public Defender’s Office, DNA testing was conducted on a vaginal swab and excluded Fountain as the perpetrator. After the DNA was submitted for testing twice more with the same results, Governor Rick Perry pardoned Fountain on March 18, 2003 .





3. Donald Wayne Good

Donald Wayne Good was convicted in 1984 of committing a 1983 rape and burglary. He was sentenced to life in prison. He was paroled in 1993, but his parole was revoked in 2002 (for a minor property crime); he is still serving a five-year sentence for the property crime. In 2004, DNA testing proved that Good could not have been the man who committed the 1983 crimes.

.

Background:

A perpetrator broke into a Dallas County woman’s home, restrained her daughter in one room, then put a pillowcase over the victim’s head and raped her in a separate room. Both the daughter and mother identified Good. He was in police custody on unrelated charges when a police officer saw a resemblance with the composite sketch and included his photo in a photo array. Good’s first trial ended in a hung jury. At the second trial, in 1984, Good was convicted and sentenced to life in prison. Good represented himself in an appeal and lost. Besides the identification, the prosecution also relied on serological testing of the victim’s clothing and a blanket, which matched Good as well as a significant percentage of the white male population. In 1993, Good was paroled and registered as a sex offender. In 2002, he was arrested for a minor property crime and had his parole revoked and his life sentence reinstated. He received a five-year sentence for the property crime. In 2003, Good’s motion requesting DNA testing was granted and the court ordered testing of the rape kit. In April 2004, DNA test results excluded Good as the perpetrator. In November, Good’s conviction was overturned. He remains in prison for the minor property crime charge and is expected to be released in May 2007.





4. Keith E. Turner

In 1983, Keith E. Turner was convicted of a 1982 aggravated sexual assault and sentenced to 20 years in prison, of which he served four years. Turner was exonerated and pardoned in 2005.



Background:

A rape victim in Dallas identified Turner as her assailant. She and Turner worked for different branches of the same company and came into contact when Turner was transferred. She identified him both visually and by his voice. Turner provided an alibi, but he was convicted in 1983 and spent four years in prison. He was out on parole when Governor Rick Perry pardoned him on December 22, 2005 , based on exculpatory DNA test results.





5. Entre Nax Karage

In 1997, Entre Nax Karage was convicted of committing a 1994 murder and sentenced to life in prison, of which he served seven years. He was exonerated and pardoned in December 2005.



Background:

In 1994, Karage’s 14-year-old girlfriend was murdered. Three years later, Karage was convicted of the crime by Judge Karen Greene in a non-jury trial. DNA testing at the time of the trial did not match Karage, but this was consistent with the prosecutors’ belief that Karage had found his girlfriend with another man and killed her in a jealous rage. Karage provided a written statement asserting his innocence, but he didn’t have a solid alibi. Also, some of his girlfriend’s blood was found in the trunk of Karage’s car. None of the prosecution’s evidence linked him to the scene of the crime. He was convicted and sentenced to life in prison. Seven years later, authorities finally ran the DNA test through the federal database of convicted offenders and found a match to another man who was previously convicted of a similar crime. Karage was pardoned by Governor Rick Perry in 2005.





6. Eugene Ivory Henton

Eugene Ivory Henton was convicted of sexual assault in 1984 and sentenced to four years. He served 18 months in prison on that charge. DNA testing exculpated Henton in 2005.



Background:

Henton pleaded guilty to the sexual assault charge in exchange for a four-year sentence. He was paroled after 18 months and is now serving time for two unrelated convictions: a 42-year sentence for drug possession and a 20-year sentence for aggravated assault.





7. Gregory Wallis

Gregory Wallis was convicted in 1989 of burglary of a habitation with intent to commit sexual assault in 1988. He was sentenced to 50 years in prison and served 18 years. He was released in March 2006.



Background:

In January 1988, a man talked his way into an Irving , Texas , condo and for two hours repeatedly raped and assaulted the woman living there. The victim gave a description to police, but without any leads, the investigation went cold. Four months later, after police circulated a flier about the attack in a local jail, an inmate made a deal with Irving detectives and became a confidential informant. The informant told police that Greg Wallis had a tattoo similar to the description given by the victim. After Wallis became a suspect, the victim picked him out of a photo array. The police had no physical evidence tying Wallis to the crime, and his wife testified that he had been with her at the time of the attack. Weeks before his trial, he was offered – and rejected – a plea bargain offer of 10 years. At trial, the victim testified that she knew for a fact Wallis was the man who raped her. He was convicted and sentenced to 50 years. In December 2005, results of a first round of DNA testing could not entirely exclude Wallis. He was offered his freedom if he would agree to be a life-time registered sex offender. He declined. In 2006, another (more advanced) DNA test was conducted and the results proved that Wallis was not the perpetrator. He was released from prison in March 2006.





8. Billy Wayne Miller

In 1984, Billy Wayne Miller was convicted of abducting and sexually assaulting a woman in 1983. He was released from prison in May 2006 after serving 22 years.



Background:

The victim of a 1983 abduction and sexual assault identified Miller as her attacker. At the time Miller was arrested, he was on parole for a 1972 conviction for assault to commit murder and robbery, stemming from a convenience store hold-up. Investigators could not find evidence from Miller’s trial for the 1983 crimes that could be subjected to DNA testing, so DNA testing was performed on evidence from the victim’s hospital examination. In 2005, testing excluded Miller as a contributor of the DNA sample. After the victim was located and her DNA was compared with the original evidence, and a second test showed the same results, Miller was released.





9. Billy James Smith

Billy James Smith was convicted of aggravated sexual assault while using and exhibiting a deadly weapon in 1986. He was sentenced to life in prison. Smith was released in July 2006.



Background:

Smith was convicted of raping a woman while using a knife as a weapon. His conviction was based in part on an incorrect identification made by the victim’s boyfriend – who did not witness the attack (the Court of Criminal Appeals called this identification “questionable”). The police who searched Smith’s belongings did not find clothing that the victim said the perpetrator wore. The clothes that police confiscated from Smith contained no DNA evidence whatsoever. Also, Smith’s sister testified at trial, corroborating his alibi. There was no evidence in the record that the victim had engaged in sex with anyone besides her attacker in the 24 hours prior to her rape. The prosecution used the presence of semen to prove that a rape had occurred, and Smith was convicted. After Smith requested DNA testing in 2001, the state argued that because the victim had a live-in boyfriend, it may have been possible that the semen belonged to him and therefore, according to the state, results excluding Smith would not prove his innocence. Both the trial court and an appeals court denied his requests for DNA testing. Finally, in June 2005, the Texas Court of Criminal Appeals overruled the two lower courts and granted Smith’s request for testing, which would set him free in July 2006.





10. Larry Fuller

Larry Fuller was convicted in 1981 of aggravated rape and sentenced to 50 years. (In 1999, he was released on parole, but in YEAR, he returned to prison because of a minor parole violation.) DNA testing in 2006 proved that he could not have been the man that committed the crime, and he was released.



Background:

In the pre-dawn hours of April 26, 1981 , a woman woke up to find a man sitting on top of her with a knife in his hand. When she resisted, he cut her hand, both sides of her neck, and her buttocks. He then raped her and left. The victim claimed that she could see her attacker from a crack of light from her window and the light of her digital alarm clock. She identified Fuller from a photo array and also at trial. The victim was shown two photo arrays. She was unable to make a positive identification from the first array. In the second array, a more recent picture of Fuller was included showing him with a full beard. She identified Fuller from this photo – even though she didn’t remember her attacker having any facial hair and the photo had been taken only one week after the attack. Fuller was the only man to appear in both arrays. According to a state serology expert at Fuller’s trial, testing of the blood and semen sample showed it to be consistent with Fuller and exclusionary to 80 percent of the population. However, upon cross-examination the expert conceded that the results were not definitive. Fuller’s alibi was corroborated and he had no record of sex crimes. Nevertheless, he was convicted and sentenced to 50 years in prison. He first contacted the Innocence Project in the mid-1990s. After his release in 1999, he continued to seek post-conviction DNA testing to prove his innocence. In 2003, an initial round of DNA testing was inconclusive. Finally, in 2006, more advanced DNA testing showed that Fuller was not the perpetrator; he is set to be released October 31, 2006 .



##



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










--------------------------------------------------------------------------------

Tenth Dallas Man to Be Exonerated

Tenth Dallas County Man in Just Five Years Is Proven Innocent

Through DNA Evidence; Larry Fuller Set To Be Released Today



25 years after wrongful conviction for rape, DNA proves Fuller’s innocence;

unprecedented number of cases in Dallas County ‘demands a closer look’



( DALLAS , TX ; October 31, 2006 ) – For the tenth time in five years, a Dallas County man who was wrongly convicted has been proven innocent through DNA testing, the Innocence Project said today. Based on eyewitness misidentification, Larry Fuller, 57, was convicted of aggravated rape in August 1981 and sentenced to 50 years in prison.



Tuesday afternoon, October 31, the Innocence Project will file legal papers to vacate Fuller’s conviction and release him from prison. Fuller will appear in court with Innocence Project Co-Director Barry Scheck and Staff Attorney Vanessa Potkin at 1 p.m. Tuesday in front of Judge Lana McDaniel in 203rd Judicial District Court in Dallas ( Frank Crowley Courts Building , 7th Floor). The Innocence Project anticipates that Fuller will be released at the conclusion of the hearing. Fuller, Scheck, and Potkin – joined by several of the other nine men who have been proven innocent through DNA testing in Dallas County – will speak to reporters outside the courthouse following the hearing, along with Jeff Blackburn of the Innocence Project of Texas and local co-counsel Frank Jackson.



Including Fuller, 10 Dallas County men have been proven innocent through DNA testing since 2001 – a pattern that the Innocence Project said is both unprecedented and troubling. “Nowhere else in the nation have so many individual wrongful convictions been proven in one county in such a short span of time. It is clear today that there’s an alarming pattern of wrongful convictions in Dallas County , which demands a closer look through an independent investigation,” Scheck said.



The Innocence Project said today that the Dallas County District Attorney should order a full, independent review of the 10 recent cases where DNA has proven innocence, as well as other cases from the same timeframe. Of the 10 Dallas County convictions where DNA has recently proven innocence, nine are sexual assault-related cases; the convictions were between 1981 and 1994, with eight of the 10 in a five-year span in the mid-1980s. Several of the wrongful convictions involved eyewitness misidentification.



“ Texas needs a statewide mechanism to identify and address the causes of wrongful convictions, but Dallas County can’t wait for the state to act,” Scheck said. “When one plane crashes, the NTSB launches an immediate investigation to determine the cause and prevent it from happening again. These wrongful convictions in Dallas County are like a series of plane crashes at the same airport, in the same era, and they require immediate, serious action.” A review ordered by the District Attorney would help identify common patterns in the cases – such as eyewitness misidentification – and might identify additional cases where people may have been wrongly convicted, the Innocence Project said.



In Fuller’s case, eyewitness misidentification was the primary basis for wrongful conviction – as it is in 75 percent of wrongful convictions overturned by DNA evidence nationwide. In April 1981, a Dallas woman woke up at 6 a.m. to find a black man with a knife on top of her. It was 45 minutes before sunrise on a foggy day, and the only light in the room (other than any light from outside before dawn) came from a digital alarm clock. The intruder cut the woman several times and raped her. Motile sperm were collected in a rape kit at the hospital shortly after the attack, but DNA testing was not available in 1981. Police showed the victim several photos at her home two days after the rape; although Fuller’s photo was among the six she was shown, the victim did not identify him. The investigating police officer issued a report recommending that the investigation be “suspended,” noting that the victim “was unsure of the suspect at this time.” The investigation continued, however – and police investigating the crime apparently remained focused on Fuller.



Several days later, police again showed the victim several photographs at her home to see whether she could identify her attacker. Fuller’s photo was the only one in the second photo array that was also in the first one. The victim was alarmed that Fuller had a full beard, since she had said her attacker did not have facial hair. Placing her fingers over the bottom part of the photo, to block half of Fuller’s face, she then positively identified him, and he was arrested. In August 1981, Fuller had a two-day trial – in which the prosecution said the victim had “never wavered” in identifying him. After deliberating for 35 minutes, the jury convicted him.



“Police focused on Larry Fuller almost immediately, and they continued to pursue him even though the victim was unable to identify him,” Potkin said. “For decades, scientific research has proven that the procedures which led the victim to misidentify Larry Fuller decrease the accuracy of identifications. This case – and the nine before it – begs the question of how many other innocent people have been convicted in Dallas County based on eyewitness misidentification or other factors.”



Fuller was 32 years old at the time of the rape, and he was raising two young children with his girlfriend. Years earlier, while attending Dallas Baptist College , he was drafted into the U.S. Army and served two tours of duty in Vietnam (while he was drafted for the first tour, he volunteered for the second). He was shot down several times in duty, and received the Air Medal. After being honorably discharged, he pursued an education in the arts while holding several jobs.



In the mid-1990s, Fuller wrote to the Innocence Project, which took his case. The Dallas County District Attorney’s Office initially opposed efforts to seek DNA testing in the case, which a court ultimately ordered. In 1999, Fuller was released on parole after 18 years in prison. Fuller’s parole was revoked in 2005 for a violation of his release conditions, and he was sent back to prison to serve the remainder of his sentence.



Not including Fuller (who will need to apply for a pardon from Texas ’s governor), 185 people in 32 states have been exonerated through DNA testing. The Innocence Project, affiliated with the Benjamin N. Cardozo School of Law, has provided direct representation or consultation in most of them. The Innocence Project of Texas has worked on several of the Dallas County cases.



##



Dallas County Cases Where DNA Has Proven Innocence



In just the last five years, 10 men who were wrongly convicted have been proven innocent through DNA testing. Following are short descriptions of their cases.



1. David Shawn Pope

David Shawn Pope was convicted in 1986 of a 1985 aggravated sexual assault and sentenced to 45 years. He was pardoned in 2001 after spending 15 years in prison.



Background:

In the evening of July 24, 1985 , in Garland , Texas , an unknown man knocked on a woman’s door, asked for someone who did not live there, and left. At 6 a.m. the next morning, she woke up to a man standing over her bed with a knife, and she was raped. After her assault, the victim followed her attacker to the patio door and stood next to him. She described her rapist to the police as a young white male, around 5' 8" tall, 140 pounds, blond, slim, very tan, and wearing beige pants and no shirt. The victim was unable to identify Pope in a photographic lineup, but over a month later, she identified Pope in a live lineup. The victim also identified Pope in court as the man who raped her. The prosecution’s evidence also included a knife found in his car that resembled one stolen from the victim’s kitchen and used during the attack, and a “voice print analysis,” which was said to match Pope’s voice to messages left on the victim’s answering machine in the weeks after the crime. (Scientists have questioned the accuracy of voice print analysis, and it is no longer used in courts.) Pope maintained his innocence and testified on his own behalf in the punishment phase of his trial. He testified that he had lived in the same apartment complex as the victim until the month prior to the rape when he was evicted, and that during the month of the attack, he at times lived out of his car on the apartment complex’s grounds. In January 1999, the Dallas County District Attorney’s Office received an anonymous call that supported Pope’s claim of innocence. The case was reopened and the rape kit was submitted to DNA testing, which excluded Pope as the perpetrator and matched a convicted rapist. Governor Rick Perry pardoned Pope on February 2, 2001 .





2. Wiley Fountain

Wiley Fountain was convicted in 1986 of aggravated sexual assault and sentenced to 40 years in prison. Fountain was released on parole in February 2001, but his parole was revoked months later when he failed to find a job and pay fees as a registered sex offender. He was finally released from prison in 2002 after DNA excluded him from rape kit evidence, and he was fully pardoned by Governor Rick Perry in 2003.



Background:

A pregnant woman was grabbed from behind while walking to a bus stop in Dallas and raped at knifepoint. The perpetrator dragged the victim to a nearby driveway, raped her, and stole money from her. The victim told police that moments before she was accosted, she saw her attacker, whom she believed to be Fountain because she had recently seen him in her apartment complex. According to the victim, she and her attacker were face to face, just inches apart, at different points during the attack. She later gave police a description of her attacker, and an officer stopped Fountain (who was on parole at the time for a 1983 burglary conviction) a block from the victim’s apartment because he was wearing clothing that matched the description of the suspect. The victim later identified him in a photo lineup. Fountain asserted that he had been at home when the rape happened, and he had an alibi witness at trial. Testing of the biological evidence was inconclusive at that time. He was convicted in 1986 and sentenced to 40 years in prison. In 2002, with the urging of the Dallas County Public Defender’s Office, DNA testing was conducted on a vaginal swab and excluded Fountain as the perpetrator. After the DNA was submitted for testing twice more with the same results, Governor Rick Perry pardoned Fountain on March 18, 2003 .





3. Donald Wayne Good

Donald Wayne Good was convicted in 1984 of committing a 1983 rape and burglary. He was sentenced to life in prison. He was paroled in 1993, but his parole was revoked in 2002 (for a minor property crime); he is still serving a five-year sentence for the property crime. In 2004, DNA testing proved that Good could not have been the man who committed the 1983 crimes.

.

Background:

A perpetrator broke into a Dallas County woman’s home, restrained her daughter in one room, then put a pillowcase over the victim’s head and raped her in a separate room. Both the daughter and mother identified Good. He was in police custody on unrelated charges when a police officer saw a resemblance with the composite sketch and included his photo in a photo array. Good’s first trial ended in a hung jury. At the second trial, in 1984, Good was convicted and sentenced to life in prison. Good represented himself in an appeal and lost. Besides the identification, the prosecution also relied on serological testing of the victim’s clothing and a blanket, which matched Good as well as a significant percentage of the white male population. In 1993, Good was paroled and registered as a sex offender. In 2002, he was arrested for a minor property crime and had his parole revoked and his life sentence reinstated. He received a five-year sentence for the property crime. In 2003, Good’s motion requesting DNA testing was granted and the court ordered testing of the rape kit. In April 2004, DNA test results excluded Good as the perpetrator. In November, Good’s conviction was overturned. He remains in prison for the minor property crime charge and is expected to be released in May 2007.





4. Keith E. Turner

In 1983, Keith E. Turner was convicted of a 1982 aggravated sexual assault and sentenced to 20 years in prison, of which he served four years. Turner was exonerated and pardoned in 2005.



Background:

A rape victim in Dallas identified Turner as her assailant. She and Turner worked for different branches of the same company and came into contact when Turner was transferred. She identified him both visually and by his voice. Turner provided an alibi, but he was convicted in 1983 and spent four years in prison. He was out on parole when Governor Rick Perry pardoned him on December 22, 2005 , based on exculpatory DNA test results.





5. Entre Nax Karage

In 1997, Entre Nax Karage was convicted of committing a 1994 murder and sentenced to life in prison, of which he served seven years. He was exonerated and pardoned in December 2005.



Background:

In 1994, Karage’s 14-year-old girlfriend was murdered. Three years later, Karage was convicted of the crime by Judge Karen Greene in a non-jury trial. DNA testing at the time of the trial did not match Karage, but this was consistent with the prosecutors’ belief that Karage had found his girlfriend with another man and killed her in a jealous rage. Karage provided a written statement asserting his innocence, but he didn’t have a solid alibi. Also, some of his girlfriend’s blood was found in the trunk of Karage’s car. None of the prosecution’s evidence linked him to the scene of the crime. He was convicted and sentenced to life in prison. Seven years later, authorities finally ran the DNA test through the federal database of convicted offenders and found a match to another man who was previously convicted of a similar crime. Karage was pardoned by Governor Rick Perry in 2005.





6. Eugene Ivory Henton

Eugene Ivory Henton was convicted of sexual assault in 1984 and sentenced to four years. He served 18 months in prison on that charge. DNA testing exculpated Henton in 2005.



Background:

Henton pleaded guilty to the sexual assault charge in exchange for a four-year sentence. He was paroled after 18 months and is now serving time for two unrelated convictions: a 42-year sentence for drug possession and a 20-year sentence for aggravated assault.





7. Gregory Wallis

Gregory Wallis was convicted in 1989 of burglary of a habitation with intent to commit sexual assault in 1988. He was sentenced to 50 years in prison and served 18 years. He was released in March 2006.



Background:

In January 1988, a man talked his way into an Irving , Texas , condo and for two hours repeatedly raped and assaulted the woman living there. The victim gave a description to police, but without any leads, the investigation went cold. Four months later, after police circulated a flier about the attack in a local jail, an inmate made a deal with Irving detectives and became a confidential informant. The informant told police that Greg Wallis had a tattoo similar to the description given by the victim. After Wallis became a suspect, the victim picked him out of a photo array. The police had no physical evidence tying Wallis to the crime, and his wife testified that he had been with her at the time of the attack. Weeks before his trial, he was offered – and rejected – a plea bargain offer of 10 years. At trial, the victim testified that she knew for a fact Wallis was the man who raped her. He was convicted and sentenced to 50 years. In December 2005, results of a first round of DNA testing could not entirely exclude Wallis. He was offered his freedom if he would agree to be a life-time registered sex offender. He declined. In 2006, another (more advanced) DNA test was conducted and the results proved that Wallis was not the perpetrator. He was released from prison in March 2006.





8. Billy Wayne Miller

In 1984, Billy Wayne Miller was convicted of abducting and sexually assaulting a woman in 1983. He was released from prison in May 2006 after serving 22 years.



Background:

The victim of a 1983 abduction and sexual assault identified Miller as her attacker. At the time Miller was arrested, he was on parole for a 1972 conviction for assault to commit murder and robbery, stemming from a convenience store hold-up. Investigators could not find evidence from Miller’s trial for the 1983 crimes that could be subjected to DNA testing, so DNA testing was performed on evidence from the victim’s hospital examination. In 2005, testing excluded Miller as a contributor of the DNA sample. After the victim was located and her DNA was compared with the original evidence, and a second test showed the same results, Miller was released.





9. Billy James Smith

Billy James Smith was convicted of aggravated sexual assault while using and exhibiting a deadly weapon in 1986. He was sentenced to life in prison. Smith was released in July 2006.



Background:

Smith was convicted of raping a woman while using a knife as a weapon. His conviction was based in part on an incorrect identification made by the victim’s boyfriend – who did not witness the attack (the Court of Criminal Appeals called this identification “questionable”). The police who searched Smith’s belongings did not find clothing that the victim said the perpetrator wore. The clothes that police confiscated from Smith contained no DNA evidence whatsoever. Also, Smith’s sister testified at trial, corroborating his alibi. There was no evidence in the record that the victim had engaged in sex with anyone besides her attacker in the 24 hours prior to her rape. The prosecution used the presence of semen to prove that a rape had occurred, and Smith was convicted. After Smith requested DNA testing in 2001, the state argued that because the victim had a live-in boyfriend, it may have been possible that the semen belonged to him and therefore, according to the state, results excluding Smith would not prove his innocence. Both the trial court and an appeals court denied his requests for DNA testing. Finally, in June 2005, the Texas Court of Criminal Appeals overruled the two lower courts and granted Smith’s request for testing, which would set him free in July 2006.





10. Larry Fuller

Larry Fuller was convicted in 1981 of aggravated rape and sentenced to 50 years. (In 1999, he was released on parole, but in YEAR, he returned to prison because of a minor parole violation.) DNA testing in 2006 proved that he could not have been the man that committed the crime, and he was released.



Background:

In the pre-dawn hours of April 26, 1981 , a woman woke up to find a man sitting on top of her with a knife in his hand. When she resisted, he cut her hand, both sides of her neck, and her buttocks. He then raped her and left. The victim claimed that she could see her attacker from a crack of light from her window and the light of her digital alarm clock. She identified Fuller from a photo array and also at trial. The victim was shown two photo arrays. She was unable to make a positive identification from the first array. In the second array, a more recent picture of Fuller was included showing him with a full beard. She identified Fuller from this photo – even though she didn’t remember her attacker having any facial hair and the photo had been taken only one week after the attack. Fuller was the only man to appear in both arrays. According to a state serology expert at Fuller’s trial, testing of the blood and semen sample showed it to be consistent with Fuller and exclusionary to 80 percent of the population. However, upon cross-examination the expert conceded that the results were not definitive. Fuller’s alibi was corroborated and he had no record of sex crimes. Nevertheless, he was convicted and sentenced to 50 years in prison. He first contacted the Innocence Project in the mid-1990s. After his release in 1999, he continued to seek post-conviction DNA testing to prove his innocence. In 2003, an initial round of DNA testing was inconclusive. Finally, in 2006, more advanced DNA testing showed that Fuller was not the perpetrator; he is set to be released October 31, 2006 .



##



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










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Monday, October 30, 2006

‘Accomplice’ Recants Alibi in Killing of Long Island Couple

This article appeared in the New York Times on October 25, 2006:

‘Accomplice’ Recants Alibi in Killing of L.I. Couple

By BRUCE LAMBERT

Peter Kent offered a novel alibi two years ago when new witnesses accused him of involvement in the murders of a Long Island couple in 1988.

At the time of the attacks, Mr. Kent testified in court, he was busy elsewhere committing other crimes with an accomplice, buying and using illicit drugs in the middle of a robbery spree.

Now the man he says was his accomplice, Daniel Raymond, has come forward — not to corroborate the alibi, but to deny it. Further, he charges that Mr. Kent was desperate to concoct a cover story and intimidated him by threatening his wife and children.

Mr. Raymond’s affidavit, cited in a motion filed last week in Suffolk County Court, is the latest development in the long-running battle over who killed Seymour and Arlene Tankleff. The case has drawn national attention, and some criminal justice experts have called it a miscarriage of justice.

The couple were bludgeoned and slashed in their waterfront home in Belle Terre early on Sept. 7, 1988. Their son, Martin, 17, was arrested, based on a confession he disavowed and never signed. He insisted he was innocent, but a jury convicted him in 1990, and he has been in prison ever since.

Three years ago, his lawyers started presenting witnesses who implicated three former convicts, Mr. Kent, Joseph Creedon and Glenn Harris, saying they acted at the behest of Seymour Tankleff’s embittered business partner, Jerard Steuerman. The two partners had feuded over control of their bagel stores and Mr. Steuerman’s $500,000 debt to Mr. Tankleff, according to testimony at the original trial. On the night of the attacks, Mr. Steuerman was in the Tankleff home, but the police said he was never a suspect.

This year Judge Stephen L. Braslow declined to overturn Mr. Tankleff’s convictions, faulting the new evidence as belated, hearsay or not credible. The Tankleff lawyers appealed his ruling, and while the case is pending, they have turned up more evidence and filed new motions to free Mr. Tankleff.

Mr. Raymond is the sixth witness to implicate Mr. Kent. Mr. Harris said he was the getaway driver who took Mr. Kent and Mr. Creedon to and from the murder scene. An acquaintance testified that the crew visited him that night and invited him to join. Mr. Creedon was quoted by his son as saying that Mr. Kent killed Mrs. Tankleff. A former co-worker quoted Mr. Kent as bragging about killing the couple. A former boss said that when he assigned Mr. Kent to work on the pool at the former Tankleff home, Mr. Kent said he had been there before.

Mr. Kent’s lawyer, Thomas Lavallee, did not respond to telephone messages seeking comment.
The Suffolk County assistant district attorney who opposes the Tankleff appeal, Leonard Lato, said Mr. Raymond’s new account contradicted what he said in 2004. In an interview with Mr. Lato then, Mr. Raymond said he and Mr. Kent “were together all day, every day during the spree,” Mr. Lato said.

After being accused in the killings in 2003, a “very nervous” Mr. Kent coerced Mr. Raymond to concoct the alibi, Mr. Raymond’s affidavit said. Mr. Kent warned that Mr. Creedon and Mr. Steuerman were involved and “are watching your family,” and he cited Mr. Raymond’s children and where they lived, the affidavit said.

Mr. Raymond also quoted Mr. Kent as declaring Mr. Harris — the first to accuse Mr. Kent in the murders — to be a “dead man” who is “going to disappear and there won’t be a body this time.” Mr. Tankleff’s lawyer, Bruce A. Barket, said Mr. Raymond had nothing to gain by his affidavit and called it an important disclosure.