innocence blog

A Web log for the Innocence Institute of Point Park University

Friday, February 09, 2007

Expert doubts his murder ruling in Green Bay arson case

This article appeared in the Wisconsin State Journal on January, 22, 2007:

Expert doubts his murder ruling in Green Bay arson case

DEE J. HALL
dhall@madison.com

The former Brown County medical examiner who ruled that a Green Bay woman was murdered in her burned home is now formally questioning his own ruling, saying two agents of the state Division of Criminal Investigation "may have misrepresented" evidence in the case.

Dr. Gregory Schmunk said in a sworn statement signed late last year that former DCI arson investigator Greg Eggum and current agent Kim Skorlinski may have withheld key evidence from him, raising doubts about his finding that Sandra Maloney's death was murder.

The state Department of Justice wouldn't comment on the allegations in the affidavit.

Schmunk signed the affidavit in an effort to help family members and others trying to free former Green Bay Police Officer John Maloney. Maloney is serving a life term for murder, arson and mutilating a corpse in the Feb. 11, 1998, death of his estranged wife. Maloney has maintained his innocence. He and the couple's three children say they believe the evidence points to an accidental death.

Maloney and his supporters have made a half-dozen attempts to reverse his conviction on various grounds. Most recently, the state Supreme Court in October refused a request by Milwaukee investigative consultant Ira Robins to initiate an investigation into alleged "forensic fraud" by Eggum. Schmunk's affidavit was signed Nov. 2, after the Supreme Court decision.

No confidence

Schmunk said he relied in part on Eggum's arson finding when he reached the conclusion that Sandra Maloney was murdered. In early 2004, Schmunk told the Wisconsin State Journal that he no longer had confidence in his opinion that the victim was murdered because of the evidence that had been withheld from him by the special prosecutor, former Winnebago County District Attorney Joseph Paulus, now serving a federal prison term for bribery.

Schmunk's affidavit, obtained by Robins, contains more detailed information about the extent to which he contends state investigators kept evidence from him. Robins said he hopes Schmunk's statement will spark a new investigation into the former Madison woman's death.

Schmunk left Green Bay in 1999 and now is the medical examiner for Polk County, Iowa, which includes Des Moines. He said in his affidavit that Eggum and Skorlinski failed to turn over the following information:

An initial opinion by the Brown County Arson Task Force that the 1998 fire was accidentally caused by Sandra Maloney's careless smoking.

Documentation for two tests that Eggum cited to support his finding that the fire was set.
"Suicide notes written by Ms. Maloney . . . found in a wastebasket in her residence."
Said Robins: "How can you not disclose to the medical examiner that there were suicide notes in there? It just shocks the conscience."

In an interview, Schmunk said he ruled the death "homicidal in nature" based on a finding of "probable manual strangulation" by Milwaukee County Assistant Medical Examiner John Teggatz, who conducted the autopsy, and Eggum's ruling that the fire was intentionally set. But Schmunk said in his sworn statement that because of "relevant information that may have been withheld and/or misrepresented by Agents Skorlinski and Eggum," the cause and manner of death "may need to be revised to . . . undetermined."

In his request to the Supreme Court for an investigation, Robins contended the results Eggum claimed to obtain in two tests are "scientifically impossible." He pointed to tests conducted by Alabama arson expert James Munger patterned after the tests Eggum described in the Maloney prosecution whose results contradict Eggum's.

A video of one of Munger's tests showed that melted polyurethane couch cushions poured onto the floor when ignited - contradicting Eggum's testimony in the Maloney trial that the cushions don't "run" when burned. (Click here for the test video.)

John Lentini, an arson expert who has been following the Maloney case for several years, said in his experience, "polyurethane can and does run." Eggum had testified that couch cushions don't run when burned and could not be used to explain the deep burn patterns around the couch.
Lentini runs Scientific Fire Analysis in Big Pine Key, Fla., and is the author of the book, "Scientific Protocols for Fire Investigation," described as "a critical assessment of common fire investigation errors with a discussion of how these errors affect real cases." Neither he nor Munger has been paid to examine the Maloney case. Lentini has been a consultant on a controversial 1989 arson case in Pennsylvania.

Vodka tests

At trial, Eggum testified that he believed Maloney set fire to Sandra Maloney's living room by pouring vodka on the floor. He cited char patterns on the floor near the couch as evidence that an accelerant was used to set the fire, and he theorized that 80-proof vodka from bottles at the scene was the source.

But Munger's tests showed that the vodka quickly put itself out without scorching the carpet because, said Munger, "it's 60 percent water." In an interview, Munger said he repeatedly reignited the vodka on the carpet to see if it would burn, but it always put itself out without marking the carpet.

Lentini agreed with Munger's conclusion, adding, "Vodka does not work as an accelerant because it contains too much water."

Department of Justice spokesman Michael Bauer wouldn't address the allegations, say whether the department had investigated them or provide documentation of the tests Eggum claims to have done. Eggum, who is retired, didn't respond to a phone message or a certified letter sent to his Germantown home.

"The Wisconsin Department of Justice litigates its cases in courtrooms, not newspapers," Bauer said in a written statement. "If Mr. Maloney believes these allegations will support a request for a new trial, then he is free to pursue that avenue of relief. We will respond in the course of that litigation, not before."

DNA propals stomp too heavily on rights

This editorial appeared in the Everett, Washington Herald on January 26, 2007:

DNA proposals stomp too heavily on rights

It's worrisome when state lawmakers propose bills that conflict with existing laws and/or civil rights.

Case in point:

Sens. Bob McCaslin and Jerome Devlin have introduced Senate Bill 5095, which would require a DNA sample be taken from anyone arrested for a felony or gross misdemeanor. The DNA would be entered in the Washington State Patrol's DNA database, which feeds the one used by the FBI.

Critics, which should be everyone, say such a law would violate people's Fourth Amendment protections against unreasonable search and seizure.

"The problem we have is that in our justice system, people are assumed innocent until proven guilty," said Sen. Adam Kline, D-Seattle, chairman of the Senate Judiciary Committee.

We trust Kline was being sarcastic by saying the "problem we have" rather than the "beautiful thing we have" to describe the basis of our justice system. But he goes on to say, "I support the idea of the bill, but you can't help law enforcement all the time."

The "idea" of the bill, however, is overreaching, and thus bad.

Another proposal, House Bill 1023, would require DNA samples be taken from people actually convicted of a crime. But it also goes too far, adding gross misdemeanor convictions to existing law, which requires DNA samples be taken from convicted felons.

Supporters say the bills are designed to help authorities catch people who start by committing small crimes and move on to more serious ones, such as murder. Supporters say the House bill will help crack down on repeat offenders, will deter crime, will improve chances of convicting the right person and will lower costs in solving future cases.

Wow.

What it will also do is collect the DNA of teens and adults arrested for shoplifting, or property crimes such as third-degree theft, the same as people convicted of assault, rape or murder.
Very little evidence shows that shoplifting leads to violence.

Narrowing the bill to cover felonies and violent misdemeanors would be a good compromise.
Rep. Mark Miloscia, D-Federal Way, who supports DNA collection upon arrest, makes us shudder:

"For anybody nowadays who watches TV, I don't have to explain how the use of this technology in a fair and balanced manner does help our society," Miloscia said. "With all those shows out there, it's hard to argue that this will harm anyone's civil liberties. The public pretty much understands it and understands the validity of it."

Yes, DNA testing is an unmatched tool in crime fighting. But demanding DNA samples from citizens is not constitutional, or fair. Nor does it guarantee justice.

In Virginia: DNA databank bill clears hurdle

This article appeared in the Charlottesville, Virginia Daily Progress on January 25, 2007:

DNA databank bill clears hurdle
Many felons' samples still not on file


By Bob Gibson

RICHMOND - A huge hole of thousands of missing samples in Virginia’s first-in-the-nation state DNA databank would largely be filled under legislation that passed its first hurdle Wednesday.

Charlottesville Police Capt. J.E. “Chip” Harding told a House of Delegates committee that the DNA samples from as many as 20 percent of the felons who should have their DNA on file with the state are missing.

Harding testified in favor of a bill sponsored by Del. Rob Bell, R-Albemarle County, that would seek to recover the missing samples from at least 8,000 felons whose blood, saliva or tissue samples either were not taken as required or were lost or not properly listed in the databank.

Harding said that in the course of investigating Charlottesville’s 10-year-old unsolved sexual assaults by a serial rapist, he and state officials discovered many samples were missing from felons who should have provided them.

“Nobody did this on purpose,” Bell said of the state’s failure to obtain and properly store DNA samples in the state’s databank. “What happened was everyone thought someone else was doing it [and] people got missed.”

State authorities are reviewing records of about 60,000 felons currently on probation, parole or court supervision to see how many samples are missing. Initial findings show that about 20 percent of the felons do not have a sample on file, said Clyde Cristman, assistant secretary of public safety.

Cristman said perhaps a fourth of those initially found missing are in the databank but their samples had been mislabeled due to data entry errors. Some dates of birth and some Social Security numbers of those who gave samples were entered incorrectly, he said.

Bell’s House Bill 3034 would set up a system for retrieving all the missing DNA samples required of felons for the past 17 years, although he said some may never be collected if they are no longer on probation and have left the state or country.

After hearing how this is a statewide problem, a subcommittee of the House Courts of Justice Committee unanimously endorsed Bell’s bill.

Harding said he interviewed people who have given three DNA samples while in the correctional system and still are not listed in the databank. “A lot of people who are on probation or parole said that ‘no one ever asked me for a thing,’” he said.

The DNA databank has proven tremendously successful in solving crimes by matching the DNA of felons to the DNA from unsolved cases.

The city police had their first “cold hit” solve a rape case from October of 1999.

“In a three-and-a-half-year period we had 55 [cold hits], which included three serial rapists,” Harding said. “It’s a wonderful tool,” when the DNA samples are properly on file for all felons convicted since 1990, he said.

“The system needs to be fixed,” Harding said. “There are people who are going to be victimized tonight because we have not taken samples from convicted felons.”

“This is a much more extensive problem than we initially thought,” Bell said of the missing DNA samples.

Wrongfully convicted man calls for change

This article appeared in the Burlington, Vermont Free-Press on January 25, 2007:

Wrongfully convicted man calls for change

By Terri Hallenbeck
Free Press Staff Writer

MONTPELIER -- Dennis Maher served 19 years, two months and 29 days in prison in Massachusetts before he finally proved he didn't commit the two rapes and one assault for which he was convicted.

Today, he drives a car with the license plate DNA 127. He's the 127th person exonerated with the help of DNA, he said.

He'd like to help free more people who were wrongly convicted of crimes, he told the Senate Judiciary Committee on Wednesday, choking up at times as he shared his story. He urged legislators to change state laws to make it easier for such people to prove their cases. Committees in both the Senate and House are interested in legislation that would do that.

"The reason I do this is to help future exonerees," said Maher, now married, the father of two and still living in Massachusetts. "I know what it is to languish in prison with no hope."

Maher earned his freedom in 2003 with the help of the Innocence Project, a New York City-based nonprofit legal clinic, after lawyers with the group tracked down evidence from the case and discovered that Maher's DNA didn't match the evidence.

"I consigned myself to dying in prison," Maher said, "but I always had hope that DNA would exonerate me."

Maher and Innocence Project Policy Director Stephen Saloom encouraged Vermont legislators to change state law to require that crime evidence be kept forever and preserved under certain protocols, permitting inmates to seek testing after their convictions.

"If evidence was not preserved in the post-conviction DNA testing quests of Dennis Maher and the other 190 DNA exonerees, these innocent people would have had no recourse but to spend even more years in prison -- and in some cases, be executed -- for crimes they never committed," Saloom told the committee.

Vermont Defender General Matt Valerio, whose office represents inmates, said Vermont lacks a requirement to preserve evidence, with specific guidelines for how to keep the evidence in good condition.

While DNA is one piece of the puzzle in helping reverse convictions such as Maher's, other changes are needed, too, Maher said. He was convicted of three assaults based on the victims' identification, he said. In the first lineup, he said, the victim identified someone else as the perpetrator, but after that, he contended, police led the victims toward choosing him. He urged Vermont legislators to enact a law that requires a police officer not involved in the investigation to conduct the lineup to make sure victims aren't lured into drawing conclusions.

Valerio said he believes some Vermonters are being wrongly convicted, particularly with understaffed public defenders and prosecutors. He pointed to a recent case in which a judge ruled that police had coerced a confession out of a sexual assault suspect. "This is not an outside-of-Vermont issue," he said. "This is something that happens here."

Valerio recommended that legislators require police to videotape interrogations -- what he called a simple and fairly inexpensive way to guard against coercion. "I don't understand why anyone would contest the need to videotape a confession," he said.

Jane Woodruff, executive director of the Department of State's Attorneys and Sheriffs, said accuracy of convictions is extremely important to police and prosecutors, but she said Vermont already has many protections in place and she worries that proposed solutions will be a huge drain on already tight resources.

"I do not think that the witness identification protocol would ever have happened here in Vermont," she said. "If it did happen initially, I can't think of any judge that would have let that through."

Sen. Richard Sears, D-Bennington, chairman of the Senate Judiciary Committee, said he will continue to take testimony on the issue next week. "I really want to pass an Innocence Project bill this year," Sears said.

Maher, who's been the subject of articles and a film since his release, said, "I had planned on spending 20 years in the military." Instead, he spent almost 20 years in prison, but he's intent on not looking back. "I don't have time to be angry," he said. "If I'm any angry person, I won't have the things I have in my life."

Contact Terri Hallenbeck at thallenb@bfp.burlingtonfreepress.com

Bill may further aid wrongly convicted

This article appeared in the Houston Chronicle (Austin Bureau) on January 23, 2007:

Bill may further aid wrongly convicted

By Clay Robinson

AUSTIN — Legislation to increase state payments to men and women wrongfully imprisoned and to impose a fee on immigrants who transfer money to their home countries were among bills filed in the Senate on Monday.

SB262 by Sen. Rodney Ellis, D-Houston, would double to $50,000 the amount of compensation the state pays someone for every year spent in prison because of a wrongful conviction.
It would provide a $100,000 payment for every year an innocent person spends on death row and would remove the current $500,000 cap on total payments.

"We need to do more to help these Texans rebuild their shattered lives," Ellis said. "Money obviously will not make up for the past, but Texas can help these people move forward by boosting compensation for those who have been wrongfully imprisoned."

He said the figures in his bill would match what federal law provides for inmates wrongfully convicted in federal courts.

Ellis sponsored the existing state compensation law, which provides for $25,000 for each year an innocent person spends in prison, with a payment limit of $500,000. It was enacted in 2001.
As of January 2006, 29 people had been awarded more than $3.6 million under the current law, according to Ellis' office.

Sen. Dan Patrick, R-Houston, filed SB268, which would impose a 10 percent fee on wire transfers of less than $5,000 to foreign countries.

Patrick, who spent a long weekend touring the border area with other legislators, said his legislation would raise funds for border security.

But he said he was willing to consider also using the revenue to cover other costs associated with illegal immigration, such as health care for the poor and education.

At least two other bills imposing fees on foreign money transfers have been filed. One by Sen. Royce West, D-Dallas, would use the money for health care for the poor.

Dallas man freed through DNA evidence recieves pardon

Dallas man freed through DNA evidence receives pardon

DALLAS A Dallas County man who spent about 20 years in prison for a rape has received a full pardon from Governor Rick Perry.That's after D-N-A evidence cleared Larry Fuller in the rape of a 37-year-old woman.

Fuller was freed from prison in October when specialized DNA testing showed he didn't commit the crime. The Innocence Project says he's one of 12 Dallas County men to be exonerated by D-N-A evidence since 2001, and one of 24 in Texas since 1989.

The Innocence Project is a New York-based legal center that seeks to uncover wrongful convictions. Texas allows the wrongfully convicted to receive 25-thousand dollars for each year spent in prison -- with a limit of 500-thousand dollars.

Fuller was sentenced to 50 years in prison in 1981. At the time, he was a 32-year-old decorated Vietnam veteran pursuing a career in art. He was released from prison in 1999 but sent back in 2005 for a parole violation.

Copyright 2007 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Thursday, February 08, 2007

The price of innocence

This article appeared in the Texas Observer on January 26, 2007:

The Price of Innocence

by Dave Mann
Cameron Todd Willing-ham professed his innocence to the very end. Belted to a gurney moments before the potassium chloride pumped into his veins and stopped his heart, Willingham told those gathered to witness his February 2004 execution, “The only statement I want to make is that I’m an innocent man—convicted of a crime I did not commit.” Willingham had been sentenced to death for starting a 1991 house fire that killed his three daughters in the North Texas town of Corsicana. From the beginning, he had maintained that the fire was accidental. He was convicted mainly on the testimony of a single arson investigator, whose forensic evidence has since been debunked. In Willingham, the state of Texas may well have executed an innocent man.

His execution is exactly the kind of case the Texas Forensic Science Commission is supposed to investigate. The Legislature created the nine-member commission—made up of prosecutors, defense attorneys, forensic science experts, and legal analysts—in 2005 to oversee and investigate the state’s troubled forensic crime labs. In the past five years, the Houston police crime lab and several Department of Public Safety labs have produced well-documented failures: tainted and lost evidence, poorly conducted tests, intentionally misleading testimony. The New York City-based Innocence Project, a major proponent of the commission, has uncovered seven cases in which Texas sent innocent men to prison because of faulty forensic evidence. Some have been set free; others, like Willingham, are already dead. Given the many crime lab controversies, Texas legislators saw a need in 2005 for a concept that few states have tried—an independent body that could investigate allegations of misconduct against crime labs and correct poor forensic practices. The bill that created the Forensic Science Commission—sponsored by Sen. Juan “Chuy” Hinojosa, a McAllen Democrat, and Rep. Joe Driver, a Republican from Garland—passed the state House and Senate unanimously. Supporters hoped the commission would free innocent men already in jail and prevent similar injustices in the future.

“The public has to have trust in the criminal justice system, that we’re convicting the right people,” says Hinojosa. “A lot of the labs have been very sloppy and very negligent. The credibility of the system is at stake.”

For nearly two years, however, Texas’ highest elected officials have stalled the commission’s work. It took Gov. Rick Perry and Lt. Gov. David Dewhurst more than 10 months to appoint their seven commissioners. In the year since, the commission has done no work for a simple reason: It has no money. Both Perry and the legislative leadership have refused to provide the commission the small amount of funding it needs for regular meetings and investigations. The nine commissioners hope the current Legislature will provide a budget. Nearly two years after it was created and three years since Willingham’s death, the commission—like the possibly innocent people still in jail—sits and waits.

The commission missed out on funding from the Legislature in 2005 because the bill authorizing the commission passed too late in the session to be included in the two-year state budget. The commission did receive a bit of money from the Texas Legislative Council to convene two meetings in fall 2006. With the Legislature out of session, the Legislative Budget Board—headed by Dewhurst and House Speaker Tom Craddick—has authority to make minor appropriations. But the board hasn’t funded the commission. In addition, Perry could have directed minor administrative funding to the commissioners, but hasn’t done so.

Some commission supporters privately speculate that Perry, who faced three opponents in November’s election, wasn’t eager to preside over the first government body in the nation to confirm the modern execution of an innocent man—perhaps even someone executed during his time in office. States have freed numerous wrongly convicted people from death row in recent years, and several media and anti-death penalty groups have uncovered strong evidence that Texas and other states have executed the innocent. But no American governmental body has yet reached that conclusion. The forensic commission may well become the first.

Perry spokesman Ted Royer says the governor supports the commission, but believes that the Legislature is the appropriate entity to provide funding. “The governor certainly wants to see the commission get the funding it needs,” Royer says. “That will very likely be addressed this legislative session.”

Hinojosa says he doesn’t think election politics stalled the commission so much as resistance within the criminal justice system. “When you bring change to a system, it makes people uncomfortable,” he says.

Perhaps no criminal justice system has produced more crime lab horror stories than that of Texas. Attorney Barry Scheck of the Innocence Project has called it a “legacy of misconduct and neglect.”

“The need for this is obvious,” Scheck says. “To me, it’s obvious that if you want to protect the innocent and apprehend the guilty, few things in the criminal justice system are more important than crime labs that produce reliable work. And you can’t find out if your crime labs are producing reliable work unless you have an oversight body that can investigate and audit whenever serious negligence or misconduct arises, and we have documented cases where that’s happened.”

Take the case of Brandon Moon, convicted of a 1987 rape in El Paso. The victim had mistakenly identified Moon as her attacker. But the conclusive evidence that sent Moon to prison came from the DPS crime lab in Lubbock. DNA testing was in its infancy at the time, and tests on a semen sample recovered from the crime scene proved inconclusive. However, lab testing did show that the semen had come from a so-called non-secreter—someone whose blood type doesn’t show up in bodily fluids such as semen and saliva. Since Moon is a non-secreter, a DPS lab analyst assumed he must be the culprit. The DPS lab overlooked the fact that the victim and her husband were also non-secreters, details that could have exonerated Moon, but never came to light in his trial. A 2002 DNA test showed Moon wasn’t the attacker, but not before he spent 17 years in prison for a crime he didn’t commit. As Scheck points out, the DPS lab technician who botched the Moon case worked at the Lubbock lab for another four years. No one has examined the many other cases he handled, though Scheck requested last April that the forensic commission do so if it ever gets funding.

Then there’s George Rodriguez—a Houston man wrongly convicted of rape because the Houston police crime lab botched an analysis of semen and a hair found at the scene. Rodriguez spent 17 years in jail before DNA testing at the request of the Innocence Project freed him. Meanwhile, the man who actually committed the rape remained free and attacked several more women, including an assault of his mother’s housekeeper, who was five-months pregnant.

The Houston lab has also experienced problems with ballistics testing. Then there are the more than 8,000 missing pieces of forensic evidence from the Houston lab found lying untested in cardboard boxes in a warehouse. Supporters believe the forensic commission must examine many of these issues. But perhaps no area of forensic science in Texas needs more urgent attention than arson cases.

The science of detecting arson has undergone a recent revolution. For years, arson investigations weren’t particularly scientific. Fire investigators operated under a set of assumptions, inherited knowledge from their predecessors, about how to sift through the detritus of a burned building and determine an accidental fire from one that was started intentionally. In the last 15 years, a new generation of arson experts has methodically debunked most of the old assumptions. For instance, investigators once thought the presence of accelerants such as gasoline caused arson fires to burn much hotter than accidental blazes.
Recent experiments have shown that accidental fires can burn just as hot or hotter.

Similarly, it was once thought that a distinctive pattern of cracks in windows—known as crazed glass—was evidence of arson. Investigators believed that the extreme heat of an arson fire caused crazed glass. The presence of crazed glass in Cameron Todd Willingham’s house was one of the key pieces of evidence that led to his conviction. Willingham testified that in December 1991, he had taken a nap and woke up to find the house on fire. He escaped, but couldn’t save his daughters, the oldest of whom was 2. At Willingham’s trial, a deputy state fire marshal testified that he found several forensic indicators of arson, chief among them crazed glass. In fact, recent research has shown that crazed glass also is caused by the temperature change when cold water from fire hoses hits flame-heated windows. Arson experts now say that crazed glass can indeed occur in accidental fires.

Crazed glass and other dubious arson evidence also sent Ernest Ray Willis to death row for killing two women in a 1986 fire in West Texas. In late 2004, after 17 years in prison, Willis was released after arson experts refuted the evidence against him. Given the similarity between the cases, Willis’ exoneration raises disturbing, unresolved questions about Willingham’s death. To this day, Texas officials maintain that Willingham was guilty.

So last year the Innocence Project commissioned the nation’s five leading arson experts to examine the Willis and Willingham cases. Their subsequent report, released in May 2006, concludes that neither fire was the result of arson and that Willingham was wrongfully executed. Scheck sent a copy of the report to the forensic commission with a letter requesting an investigation into arson convictions in Texas. “Willis cannot be found ‘actually innocent’ and Willingham executed based on the same scientific evidence,” Scheck wrote to the commissioners. Texas has the highest percentage of arson convictions in the nation. Many other Texans may have been sent to prison for arson crimes they didn’t commit.

Without money, the commission has taken no action on the Willingham case or any other. Commission Chair Debbie Lynn Benningfield, who works as an administrator in the Houston police fingerprint lab, refuses to comment on cases that might be pending before the commission (other commissioners referred questions to Benningfield). Choosing her words carefully, Benningfield says commissioners are focused primarily on securing funding from the just-convened Legislature.

The commission certainly won’t cost much. Commissioners are unpaid and meet in donated space. The commission would need $156,000 for administrative and setup costs in its first two years, according to an analysis by the Legislative Budget Board. Some proponents of the commission hope the Legislature will make an emergency appropriation so the panel can begin work soon. If lawmakers include funding for the 2008-2009 fiscal year, which isn’t guaranteed, the commissioners will have to wait at least until next September. Hinojosa says the Senate Criminal Justice Committee, chaired by Sen. Whitmire, may hold hearings on the commission’s lack of funding. “We’re going to be pushing this very hard to make sure that there is funding,” he says. “We want some answers as to why it’s taking so long.”

Scheck says, “You can’t blame the commissioners. They haven’t been given anything to work with.” He believes that innocent people may remain in Texas prisons, perhaps on death row, wrongly convicted because of faulty forensic evidence. The longer the commission’s work is stalled, the longer those injustices remain, and the longer negligent forensic practices persist in crime labs that could send more innocent people to jail. “This is all taking entirely too much time,” Scheck says.

Right, wrong and DNA

This article appeared in the Fort-Worth Star-Telegram:

Right, wrong and DNA

Star-Telegram
Picture a 50-year-old convict standing in front of a judge in Dallas County, once again pleading his innocence in a crime committed more than 23 years ago.

On the one hand, there was something mighty right about what played out Wednesday morning in Judge John Creuzot's courtroom. On the other hand, there was something very wrong.

James Waller was convicted of raping a 12-year-old boy in 1983 and sentenced to 30 years in prison. He served 10 years in the penitentiary before being paroled in 1993 and has been trying ever since to prove he was not guilty of the crime.

During a hearing in Creuzot's court Wednesday, Waller was with attorney Barry Scheck and other lawyers representing the New York-based Innocence Project, and they presented conclusive DNA evidence that Waller did not commit the crime.

What was right about what happened that day was that the judge apologized for the injustice and vowed to expedite the procedures to clear Waller's name. What was so troubling is that Waller is the 12th person in five years in Dallas County to be cleared through DNA testing.

That is an alarming figure by any measure, and something of which Dallas County and the entire state of Texas ought to be ashamed.

More than 185 people in 32 states, according to Innocence Project data, have been exonerated through DNA testing. Dallas County alone has more such cases than most of those states.

For the third time, state Sen. Rodney Ellis, D-Houston, will introduce legislation this month to create an Innocence Commission in Texas that will be designed to investigate wrong convictions.

Several states, including Californian, Pennsylvania, Illinois and North Carolina, already have such commissions.

In the past two legislative sessions, Ellis' bill never made it out of committee. This year, the bill -- or perhaps one even more comprehensive -- should not only make it to the Senate floor but should be passed by both chambers and signed into law.

While they're at it, legislators should fund the state's share of the University of North Texas System Center for Human Identification in Fort Worth for work that the Legislature has ordered sent to it.

Given that the majority of criminal cases don't involve DNA evidence, imagine how many other wrongly convicted people might be sitting in Texas prisons with no hope of ever being exonerated.

These cases from Dallas County alone are a blight on the criminal justice system. Surely our lawmakers can find a way to address this problem to correct and help prevent other miscarriages of justice.

Monday, February 05, 2007

Old cases back to haunt Texas county

This article appeared in the Dallas Morning News on January 22, 2007:

Old cases back to haunt county
Why were exonerated convicts found guilty to begin with?


By STEVE McGONIGLE
The Dallas Morning News

Dallas County's emergence as a national leader in DNA exonerations of wrongfully convicted men raises fresh questions about the quality of justice the court system has dispensed over the past three decades.

Whether 12 innocent lives were shattered because of honest human error or overreaching by prosecutors remains to be determined. Craig Watkins, the county's new district attorney, said last week that he would investigate.

But, ironically, the high number of exonerations would not have occurred had Dallas County not had a policy of preserving – sometimes for more than 20 years – the biological evidence required for genetic testing.

Case reviews are a hard sell in Texas
Graphic: Dallas County is a leader in post-conviction DNA testing

Dallas has had more DNA exonerations than any other county in the U.S. – 12 since 2001, according to the Innocence Project, a New York-based nonprofit legal clinic dedicated to freeing those wrongfully convicted. The county accounts for half of Texas' 24 DNA exonerations, the group said. By comparison, Illinois has had 26 DNA exonerations and New York state 21.

The latest example of new DNA tests overturning old cases came last week for 50-year-old James Waller, who was convicted of raping a 12-year-old boy in 1982 – a crime he said he never committed. State District Judge John Creuzot apologized at Mr. Waller's hearing and said he anticipated one more DNA exoneration in his court.

Barry Scheck, the New York attorney who co-founded the Innocence Project, said Dallas County's rate of wrongful convictions was "very, very high," but he could not explain the reasons for it.

"It could be something as simple as we find the evidence more here," Mr. Scheck said after the hearing.

"I suspect other cities could have numbers that high if we could find other evidence," he added.

Keep everything

The lack of evidence available for testing around the country is routinely cited by advocates as one of the biggest obstacles to winning exonerations. More than half the time, evidence has been lost or destroyed.

But with the district attorney's backing, Dallas County's forensic lab long ago established a policy to maintain evidence indefinitely. The policy existed for at least a dozen years before state law lengthened the time biological evidence had to be retained.

Dr. Tim Sliter, chief of physical evidence at the county-run Southwest Institute of Forensic Sciences, estimated his lab has at least seven freezers full of rape kits and other biological evidence, each containing 10,000 samples dating to the early 1980s.

The lab has a policy of never consuming a sample in a DNA test, and it never destroys evidence. "It's basically just good practice," Dr. Sliter said.

John Rolater, who until recently handled post-conviction DNA applications for the district attorney's appellate section, said the approach to evidence was "keep everything forever" in case it might be needed for a retrial.

"It was more of a law enforcement motive, but it turns out to benefit everybody," said Mr. Rolater, now an assistant district attorney in Collin County.

Ten of the 12 Dallas County convictions invalidated by DNA occurred in or before 1989, when the first exoneration in the country took place in Chicago.

No state or local law enforcement agency is required to keep statistics on how often evidence has been available for DNA testing by those convicted.

Records of the Texas Department of Public Safety, which conducts the bulk of post-conviction DNA tests around the state, show that Dallas County cases accounted for 26 of the 112 tests processed since 1999 – twice the number of more populous Harris County. The DPS statistics do not explain the differences in numbers between counties.

Including work by private labs, 32 Dallas County cases have undergone post-conviction DNA testing, the district attorney's office said. Twelve produced exonerations, nine affirmed the defendant's guilt, and six are pending. Tests in five cases were inconclusive.

The cases where testing was ordered represent about 7 percent of the 464 applications submitted to Dallas County felony court judges since passage of a 2001 law that allowed for post-conviction genetic analysis.

To be granted a test, the law requires a convicted person to prove that identification was an element in his or her case, that evidence for DNA testing still exists and that the evidence, if known at the time, would have prevented the conviction.

Defense attorneys have complained that the law places too heavy a burden of proof on those convicted and that prosecutors routinely object to testing requests, which can effectively delay action, sometimes for years.

David Dow, director of the Innocence Network at the University of Houston Law Center, estimated thousands of felons have applied for genetic tests but said less than 100 of those applications have been granted by the courts.

"It's not that a lot have been denied," Mr. Dow said. "A lot of these cases sit there, and there's nobody there to move them."

Mr. Dow characterized the 12 DNA exonerations in Dallas as a "staggering" number. But he would not predict a larger number of wrongful convictions in Dallas County than any other jurisdiction. It's just that in Dallas "the evidence exists, and the judges are ordering testing," he said.

Criticism of prosecutors

The dozen Dallas County convictions overturned by DNA over the past six years involve sexual assault or murder cases prosecuted between 1981 and 2000.

A common thread in each is an eyewitness identification corroborated by little or shaky forensic evidence and no DNA test.

According to Mr. Scheck, eyewitness identifications are a crucial factor in about 75 percent of all wrongful convictions overturned by post-conviction DNA evidence.

Nine of the cases were prosecuted during the last four years of Henry Wade's legendary tenure as district attorney, which ended in 1986. His office had a national reputation for hardball tactics, high conviction rates and stiff punishment pleas.

Critics often alleged that Mr. Wade's prosecutors prized conviction rates over their oaths to uphold justice – a charge the DA's office routinely denied.

The first in a series of nationally publicized, non-DNA exonerations – the case of convicted robber Lenell Geter – came to light during Mr. Wade's final year in office. That case was soon followed by those of Randall Dale Adams, a convicted cop killer, and Joyce Ann Brown, a convicted robber. All were prosecuted under Mr. Wade and involved witness testimony that was later discredited.

Randy Schaffer, a Houston defense attorney who represented both Mr. Adams and Mr. Waller, contended a win-at-all-costs attitude of prosecutors is coming back to haunt Dallas County.

"The pool of applicants [for DNA testing] is that much larger because there were so many dirty prosecutions," Mr. Schaffer said.

Mr. Wade's successors, John Vance and Bill Hill, worked as prosecutors in his office and openly admired the folksy, cigar-chewing icon known as "The Chief." Both continued many of Mr. Wade's policies but vowed not to tolerate outlaw prosecutors.

Two DNA exonerations occurred on Mr. Vance's term; one was on Mr. Hill's.
Toby Shook was an assistant under all three men. He conceded that some prosecutors could be close-minded and that many believed in eyewitness identifications. But the Dallas office was not that different from most other prosecution offices, he said.

"I never knew of anybody that would willingly try to prosecute innocent people," said Mr. Shook, who left for private practice after losing the district attorney's race.

Mr. Watkins, who became the county's first black district attorney when he was sworn in Jan. 1, has never worked in the office. He campaigned on a pledge to restore credibility to the prosecutor's office.

Mr. Watkins was present in court last week when Mr. Waller was exonerated, as well as on Jan. 2 for the DNA exoneration of Andrew Gossett. He apologized to both men, an act that veteran observers of wrongful conviction cases called unprecedented.

He, too, wonders how many more wrongful convictions may surface.

"When you look at the facts of all the folks exonerated, you have to question whether past administrations had the best interests of the citizens in mind," he said. "I would hope that they did, but it may have been that they were overzealous."

Mr. Watkins said he plans to have the 12 exonerations reviewed to see if any patterns emerge. If they do, he may order a broader review of cases where DNA evidence could have made a difference in the outcome.

Jeff Blackburn, another of Mr. Waller's attorneys and a director of the Texas Innocence Project, said he is encouraged by Mr. Watkins' apparent willingness to give serious consideration to requests for post-conviction DNA tests.

"I think if you are wrongly convicted, Dallas is a good place to be," he said.

Staff writer Robert Tharp contributed to this report.
E-mail smcgonigle@dallasnews.com

County's Record of Misdeeds
DNA testing has exonerated a dozen Dallas County men since 2001.

DAVID SHAWN POPE, 45, was sentenced to 45 years in prison in the 1986 rape of a Garland woman. The victim in the case testified that a man matching Mr. Pope's description broke into her Garland apartment before dawn in July 1985, threatened her with a knife and raped her.

Mr. Pope had lived in the same apartment complex but was evicted about a month before the attack and at times had slept in his car on the apartment grounds. The woman failed to identify him in a photo lineup but later picked him out of a live lineup. Prosecutors also used "voice print analysis" to link Mr. Pope's voice to messages left on the woman's answering machine in the weeks after the attack. That technology has since come into question and is no longer used in court. Prosecutors voluntarily sought to retest evidence from Mr. Pope's case after an anonymous tipster in January 1999 cast doubt on his guilt. After he spent 15 years in prison, a 2001 DNA test exonerated him and identified a convicted rapist imprisoned in another state as the true attacker.

WILEY FOUNTAIN, 50, was sentenced to 40 years in prison in the rape of a pregnant woman in 1986. The woman picked Mr. Fountain out of a photo lineup and said he was the one who dragged her from a bus stop near Fair Park and raped her at knifepoint. At the time of his arrest, Mr. Fountain was on parole for a 1983 burglary conviction. He was paroled in 2001 after serving 15 years and was sent back to prison because he had failed to find a job and pay fees as a registered sex offender. After first seeking a DNA test in 2000, he was finally released two years later after two DNA tests supported his innocence. He was pardoned in 2003.

KEITH E. TURNER, 45, was sentenced to 20 years in prison after the 1982 rape of a co-worker. Although Mr. Turner provided an alibi, he was convicted in a 1983 trial after the woman identified him visually and by his voice. Mr. Turner served four years in prison and was on parole in 2005 when he was cleared by a DNA test and pardoned.

ENTRE NAX KARAGE, 36, was convicted in a nonjury trial and sentenced to life in prison in 1997 in the 1994 murder of his 14-year-old girlfriend. DNA was not an issue in his trial because prosecutors had theorized that Mr. Karage had beaten and strangled his girlfriend with a coat hanger after finding her having sex with another man. Her body was found in a creek behind an Old East Dallas grocery store. Mr. Karage was unable to provide a solid alibi, and police found the girl's blood inside his car, which she had been driving. Mr. Karage was exonerated after a DNA test linked evidence from the crime to a man convicted of a similar crime. He was pardoned in 2005.

EUGENE IVORY HENTON, 40, took a plea bargain offer and pleaded guilty to a 1984 sex assault charge in exchange for a four-year prison sentence. He was 17 when he was arrested after a woman said that a stranger broke into her home and raped her. The woman said that although the attacker wore a mask she could identify him because he stayed in her home a long time. She also said she watched the attacker from her window waiting at a bus stop and later identified Mr. Henton as the attacker. He was paroled after 18 months and was later convicted of two separate felony charges. Because of his status as a paroled sex offender, the judge stacked his new prison sentences: 20 years for aggravated assault and 42 years for drug possession. While in prison on the new charges, he continued to pursue exoneration, and a 2005 DNA test concluded that he was not guilty of the rape charge.

DONALD WAYNE GOOD, 46, was sentenced to life in prison in a 1983 sexual assault. Mr. Good was arrested and accused of breaking into an Irving home, tying up a young girl and raping her mother. The woman identified Mr. Good in a photo lineup. Mr. Good has alleged in a federal lawsuit that Irving police distorted his photo to increase the chances that the woman would identify him. He was paroled in 1993 as a sex offender but was sent back to prison in 2002 for a minor property crime and his life sentence was reinstated. He was exonerated of the rape charge by DNA analysis in 2004, but he is still serving a five-year sentence for the property crime.

BILLY WAYNE MILLER, 54, was sentenced to life in prison in the abduction and sexual assault of a Dallas woman in 1983. At the time of his arrest, Mr. Miller lived near where the attack occurred and was on parole for a 1972 conviction for assault to commit murder and robbery, stemming from a convenience store robbery. The victim in the sexual assault case later identified Mr. Miller as her attacker. A 2005 DNA test cleared Mr. Miller, and he was pardoned in December 2006.

BILLY JAMES SMITH, 54, was sentenced to life in prison in a 1986 aggravated sexual assault in which a woman was raped at knifepoint. He was convicted even though there was no eyewitness who could identify him as the attacker and detectives found no physical evidence implicating him. The woman's boyfriend identified him as the attacker, but he was not present when the attack occurred. Mr. Smith had an alibi that was supported by his sister at trial. He first requested DNA testing in 2001 but was not granted a test until 2005. Those test results set him free in July 2006 after he had spent 19 years in prison.

GREG WALLIS, 47, was sentenced to 50 years in prison in the 1988 sexual assault of an Irving woman. The woman identified Mr. Wallis as the man who talked his way into her condo and raped and assaulted her. Four months later a confidential informant in jail told police that Mr. Wallis had a tattoo similar to one described by the victim. The woman later picked him from a photo lineup. At trial, Mr. Wallis' wife testified that he had been with her at the time of the assault. A 2005 DNA test could not entirely rule out Mr. Wallis as the rapist, and he rejected an offer that would have freed him from prison provided that he register as a sex offender for life. A second test in 2006 proved that Mr. Wallis was not responsible for the attack, and he was released after 18 years in prison.

LARRY FULLER, 58, was sentenced to 50 years in prison in 1981 in the aggravated sexual assault of a Dallas woman. The victim said she woke up to find an intruder in her house straddling her with a knife in his hand. The victim initially told police that she could not provide a detailed description of her attacker because the assault occurred in the dark. She later picked Mr. Fuller, a 32-year-old Vietnam veteran, as the suspect only after she was presented with two photo lineups in which his picture was the only one present in both lineups. In his trial, a prosecutor inaccurately summed up the scientific testimony by saying it placed Mr. Fuller among 20 percent of the male population that could have committed the crime. Mr. Fuller first contacted the Innocence Project in the mid-1990s. A 2003 DNA test was inconclusive, but a 2006 test ruled him out as the assailant and he was released.

ANDREW GOSSETT, 46, was sentenced to 50 years in prison in the 1999 sexual assault of a Dallas woman. The victim was abducted from her car in Garland and sexually assaulted. Mr. Gossett became a suspect because he matched a general description of the rapist, and he was seen at a convenience store near where the attack occurred. The victim later picked him from a photo lineup, although her descriptions of the attacker in statements to police and at her trial were inconsistent. Mr. Gossett passed a polygraph test, but such tests can't be used as evidence in a trial. Mr. Gossett began seeking a DNA test in 2001. Test results in December 2006 concluded that he was innocent, and he was released in January.

JAMES DOUGLAS WALLER, 50, was convicted in 1983 and sentenced to 30 years in prison after being accused of breaking into an Old East Dallas apartment and raping a 12-year-old boy. The boy said his attacker was wearing a cowboy hat and had a bandanna over his face, but the following day he believed he recognized Mr. Waller's voice and eyes as the attacker's. Mr. Waller, who was significantly taller and heavier than the boy's initial description, lived in the same apartment complex. Jurors in his trial deliberated less than an hour before convicting him. A 2003 DNA analysis was inconclusive, but a 2006 test concluded that Mr. Waller isn't the man who raped the boy.

Compiled by staff writer Robert Tharp
SOURCES: Dallas County court records; Innocence Project

Board accepts $55K settlement

This article appeared in Pennsylvania's Times Herald on January 21, 2007:

Board accepts $55K settlement

By: CARL ROTENBERG
Times Herald Staff

UPPER MERION - The Board of Supervisors Thursday night agreed to accept a $55,000 settlement from two insurance companies for a federal lawsuit involving DNA testing.

United National Insurance Co. of Bala Cynwyd and Pennsylvania Manufacturers' Association Insurance Co. of Whitpain had refused to pay $600,000 to the township for a $1.6 million settlement of a 2002 lawsuit against the township.

A third insurance company had agreed to pay $1 million of the settlement costs.

The $55,000 settlement means Upper Merion township is obligated to pay the remainder of the settlement from its operating funds, Solicitor Joseph Pizonka, said.

Upper Merion reached a July 2004 legal settlement with former landscaper Bruce Godschalk. Godschalk had filed a federal civil rights lawsuit against the township, Upper Merion police, Montgomery County and the Montgomery County Prosecutor's office for delaying DNA testing.

The 46-year-old Godschalk was convicted by a jury in 1987 of allegedly raping two women in the Kingswood apartment complex in 1986. DNA testing was not commonly performed at the time of the conviction.

He was sentenced to a 10- to 20-year sentence. Starting in 1995, Godschalk began requesting the district attorney's office test the evidence for his DNA. The district attorney's office refused. The state courts upheld that decision.

But a federal court later ordered the DNA testing which exonerated Godschalk. He was freed from state prison on Feb. 14, 2002, after serving some 15 years of his sentence.

Godschalk sued the authorities involved in his case and two former Upper Merion detectives claiming the detectives used "trickery and deceit" to allegedly coerce a confession from him. Montgomery County's insurance company reached a $750,000 out-of-court settlement with Godschalk in October 2003.Times Herald reporter Margaret Gibbons contributed to this story.Carl Rotenberg can be reached at crotenberg@timesherald.com or 610-272-2500, ext. 350.
©The Times Herald 2007

Wrongly convicted man to recieve $4 million

This article appeared in Oklahoma's Examiner Enterprise:

Wrongly convicted man to receive $4 million settlement

By AP
OKLAHOMA CITY (AP) - A man wrongly convicted of rape due in part to testimony from a fired police chemist will receive $4 million as part of a settlement agreed to by the Oklahoma City Council.

City officials on Tuesday approved a resolution in which they admitted no liability in Jeffrey Todd Pierce's federal lawsuit.

Pierce sued police chemist Joyce Gilchrist, former Oklahoma County District Attorney Bob Macy and the city in 2003 after results of a DNA test showed he didn't rape a woman at an Oklahoma apartment complex in 1985. Gilchrist, who testified about DNA evidence at the trial, and Macy, whose office prosecuted him, both claimed immunity.

Gilchrist's professional credibility was questioned after the Pierce case unraveled, and subsequent investigations resulted in new trials for some defendants who were found guilty based on her testimony. Gilchrist, who was fired in 2001, couldn't be reached for comment on Tuesday.

Pierce maintained his innocence while serving 15 years of a 65-year prison term for rape, sodomy, burglary and assault with a dangerous weapon.Councilman Pete White said the settlement was good for taxpayers and also fair to Pierce.

The city could have been hit for much more," White said. "This guy was wronged, there's no two ways about it. He had no record at all. He was completely clean. He was an innocent man."Pierce's attorney, Clark Brewster, couldn't be reached for comment.

The settlement comes as both sides prepared to go to trial next month.

Pierce's lawsuit claimed his constitutional rights were violated when he was arrested in March 1986 for crimes he didn't commit, according to court documents. Oklahoma City officials denied Pierce's contention that Gilchrist and other police chemists weren't properly trained and added that the actions she allegedly took weren't according to municipal policy.

U.S. District Judge Robin Cauthron denied Gilchrist's motion for a summary judgment in the case on Jan. 16 and a tentative agreement was floated at a settlement conference held the next day.

Gilchrist filed a wrongful termination lawsuit, but a federal judge ruled that her inadequate forensic work was sufficient reason for the city to fire her. She also was denied unemployment benefits.Meanwhile, another lawsuit filed against Gilchrist, Macy and the city by David Bryson is still pending.

Bryson, imprisoned for 17 years in a kidnapping and rape case, was freed in 1999 after testing showed his DNA did not match evidence collected from the victim.

Bryson claims Gilchrist lied in 1988 when she told his lawyer the evidence had been destroyed.

Two innocent even if proven guilty?

This article appeared in Cleveland's Plain Dealer on January 26, 2007:

Two innocent even if proven guilty?
Attorney: Third man beat woman


Friday, January 26, 2007
James F. McCartyPlain Dealer Reporter

Renowned defense attorney Barry Scheck will file court documents today seeking new trials for two Cleveland men convicted of killing a 74-year-old Slavic Village woman in 1999.

Scheck's Innocence Project has freed wrongfully convicted men in Cuyahoga and Summit counties in recent years using DNA evidence that was so convincing that prosecutors worked with him.

But Scheck shouldn't count on the support of the prosecutor's office this time.

I'll take a closer look at this case, but they lost their way on this one," Cuyahoga County Prosecutor Bill Mason said. "They must be running out of innocent people to represent."

Scheck, in interviews Thursday, said he regretted he won't be teaming with Mason to help free Thomas Siller, 51, and Walter Zimmer, 50. Both men are serving long prison terms.

They were found guilty of tying up Alice Zolkowski in 1997, ransacking her home, and then beating her into a coma.

She died two years later without ever regaining consciousness.

Prosecutors won convictions with no direct evidence except the word of a third suspect, Jason Smith, 37, who testified he was there the night of June 3, but swore he didn't participate in the attack. Siller and Zimmer admitted seeing the victim at her home but denied any involvement in her death.

Smith struck a deal with prosecutors, receiving three years in prison after pleading guilty to aggravated burglary.

Nearly 10 years later, Scheck said he has new evidence that points to Smith's guilt and Siller's and Zimmer's innocence.