Tuesday, 19 February 2008

DNA tests fuel urgency to free the innocent

Charles Chatman, shown at his new apartment in Carrollton, Texas, was convicted of sexual assault in 1981, when DNA testing wasn't available.

By Kevin Johnson, USA TODAY

CARROLLTON, Texas — After spending nearly 27 years buried in the vast Texas prison system for a crime he did not commit, Charles Chatman's first weeks of freedom have been overwhelming.

Each of the six rooms in his new apartment, including the bathroom, is larger than any of his previous cells. The gleaming entertainment system and sleek laptop from family, friends and attorneys might as well be hollow props on a movie set, because Chatman, 47, has little idea how to operate them — testimony to more than a generation lost behind bars.

Chatman was exonerated last month by DNA testing while serving a 99-year sentence for sexual assault. His release Jan. 3 marked the 15th such exoneration in Dallas County during the past five years, the most of any county in the nation. Aside from New York and Illinois, Dallas County also has produced more exonerations than any state.

As DNA technology and investigations identify a mounting number of wrongful convictions, the urgency to find others like Chatman is increasing. From Virginia to California, local prosecutors, law students and defense attorneys are combing through hundreds of thousands of old files in search of flawed convictions.

Last week, two men were cleared of separate murder convictions in Mississippi after new DNA testing led authorities to another man now charged in both slayings. It was the first time post-conviction DNA testing had led to an exoneration in Mississippi, one of eight states that does not have a law allowing for such testing. Lawyers with the Innocence Project pushed the state to move forward with the testing.

FIND MORE STORIES IN: New York Arizona Illinois Virginia Mississippi African-American Peter Neufeld Innocence Project of Texas Charles Chatman

Since 1989, there have been 213 post-conviction DNA exonerations in the USA. Of those, 149 came in the past seven years, according to the Innocence Project, the parent organization of a far-flung network that helps prisoners obtain DNA testing or other evidence that could prove their innocence.

Among efforts to ferret out the wrongfully convicted:

•In Virginia, officials are conducting a sweeping examination of more than 534,000 files, the largest such review in U.S. history. Three years and five exonerations after the effort began, authorities have identified 2,215 more cases they say are worthy of scrutiny.

"If we identified (only) one guy who shouldn't be in prison, would it be worth it? I say yes," says Pete Marone, who as director of the state's Department of Forensic Science is helping to direct the review.

•A team of attorneys and law students at California Western Law School, part of the national Innocence Project network, fields up to 1,000 inmate requests for help each year.

Jeff Chinn, assistant director of the Southern California Innocence Project, says 5% to 10% of those requests are selected for further investigation. Since the program began in 2000, five have been exonerated, including Timothy Atkins, who was freed last year after serving 20 years in prison for a wrongful murder conviction.

•In Arizona, volunteer lawyers, law students and investigators have screened more than 2,500 cases in the past decade and secured one exoneration: Byron Lacy, freed in 2003 after serving six years for killing a security guard and wounding another man. About 20 other prisoners have won some kind of post-conviction relief, such as a shorter sentence.

•In what may be the most aggressive move by a local prosecutor, Dallas County District Attorney Craig Watkins has turned over more than 400 files to law students working for the Innocence Project of Texas. The students are reviewing decisions by previous administrations to reject requests for DNA testing.

Watkins, Dallas County's first African-American district attorney, says opening the files may have been his easiest decision since being sworn in last year, even in a state where politicians have a reputation for supporting aggressive law-and-order policies.

"The reason I'm here is a result of what happened in the past," Watkins says. He cites a tradition of aggressive prosecution in Dallas and routine denials of prisoners' requests for post-conviction reviews, which he says shrouded past errors. Those errors have emerged, Watkins says, largely because the local forensics laboratory preserved the biological evidence at issue in many of the recent challenges by prisoners.

For many places, a review of convictions such as that in Dallas County is not possible because physical evidence has not been preserved. The lack of uniform preservation standards is a big concern among advocates for post-conviction challenges, says Peter Neufeld, co-founder of the Innocence Project.

But for Watkins, the available evidence offered "an opportunity to restore the credibility of this office."

Judge takes interest in case

In 17 years on the bench, Dallas Judge John Creuzot has heard countless defendants declare their innocence. But Chatman's 2001 application for post-conviction DNA testing was different.

"I noticed the guy had been inside for a long, long time," Creuzot says. At the time, Chatman had served 20 years of his 99-year sentence for rape.

It is rare for a prisoner to pursue a challenge after so long behind bars. Creuzot thought of boxer Rubin "Hurricane" Carter, freed after spending about 20 years in prison for the slayings of three men in New Jersey. Carter's case inspired the movie Hurricane.

"Maybe it was the movie," the judge says. "Something about (Chatman's case) caught me."

Chatman had lived in the same neighborhood as the rape victim. He was nearing the end of a four-year term of probation for a 1978 burglary conviction when she was attacked, and he was included in a police lineup of possible suspects. The victim identified him as her attacker, and he was convicted in 1981.

As Creuzot reviewed the file, the possible existence of untested DNA evidence and the identification of Chatman in the lineup — both among the most common reasons for a wrongful conviction — seemed to demand more scrutiny.

Months later, during Chatman's first appearance in Creuzot's courtroom, the judge says something else struck him, and raised questions about Chatman's guilt. "I can just remember his face when he said: 'I didn't do this. I didn't do this,' " he says.

A first attempt at DNA testing of the assailant's biological sample by the Texas Department of Public Safety did not produce a result, according to a chronology of the case prepared by the district attorney's office.

Chatman feared that further testing also would prove inconclusive and consume the biological sample — and with it, any chance of exoneration. Chatman and Michelle Moore, his attorney from the Innocence Project of Texas, asked that additional analysis be suspended in 2004 until testing technology improved.

Moore says Chatman showed remarkable judgment — and patience — in seeking the delay. "How many people would have done that?" she asks.

The opportunity for more reliable testing came last December, when the judge ordered a new analysis using a method known as YSTR testing at Orchid Cellmark Inc., in nearby Farmers Branch, Texas. The new testing allows for better identification of male DNA profiles in samples in which female genetic material often is present, says Robert Giles, Orchid Cellmark's executive director of research and development.

Before ordering the test, Creuzot brought Chatman back to his office to see whether he wished to go forward, knowing that the new test — if inconclusive — likely would leave no more material to analyze.

"I asked him, 'Are you sure? This is it.' "

"Yes," Chatman responded. "I didn't do this."

At 8:30 a.m. on Jan. 2, weeks before results were due, the phone rang in Creuzot's office. Chatman's DNA was "not a match." Creuzot summoned an anxious Chatman from the county jail, where he was staying temporarily while awaiting the results.

"I knew what the test should say, but I still had that little doubt," Chatman says. "I had been a hard-luck guy for a long time."

When Chatman arrived, Creuzot stuck out his hand and said: "Man, Happy New Year!"

"He looked confused at first," the judge says. "I asked if he wanted to call somebody; I handed him my phone. He had never used a cellphone before, so I had to dial the number for him."

There was so much paperwork to process, Creuzot couldn't release Chatman immediately, so he ordered a celebratory lunch.

"I asked what kind of steak he wanted; he didn't know what to say, except to request that he wanted it 'cooked a lot,' " Creuzot says.

Chatman sat with the judge's 7-year-old son, Ethan, at a table in Creuzot's locked courtroom. (Ethan, on a holiday break from school, had accompanied his father to the office.) Chatman hadn't used a knife in years and began tearing the meat with his hands.

Lunch was one small measure of the seismic change in Chatman's world — a change Creuzot made official that day. He called the prison to inform the warden that Chatman was not coming back.

A 'logistical nightmare'

Creuzot was instrumental in securing Chatman's release, but not all of the wrongfully convicted have found similar advocates.

Lack of funding for post-conviction analysis, including DNA testing and expert testimony, has hamstrung prisoner-assistance campaigns. The percentage of overturned cases is small, and the challenges are daunting.

Virginia's Marone calls the historic effort there to review thousands of old cases a "logistical nightmare."

The broad review, ordered more than two years ago by then-governor Mark Warner, was triggered in part by the discovery of blood and other potential biological evidence attached to old case files, some dating to 1973. The evidence had never been disclosed. The state began reviewing all of the files from 1973 to 1988, the time period at issue.

Because the files were not automated during that time, much of the project has required a hand-search of the documents in a labor-intensive and increasingly expensive examination. Marone says the analysis has cost about $1.4 million, and money is running out.

Virginia and the cash-strapped Arizona Justice Project had hoped to win some of the millions of dollars Congress set aside in 2006 to assist in DNA testing. Late last year, USA TODAY disclosed that the Justice Department had not distributed any of the money.

"That is wrong," Senate Judiciary Chairman Patrick Leahy said last month at a hearing to address the issue. "That is irresponsible."

The Justice Department, which pledges to resolve the problem, had said that rules imposed by Congress made it difficult for states to qualify.

For example, the law requires that states' attorneys general compel police departments to preserve biological evidence for testing. However, attorneys general don't always have authority over the operations of all police agencies.

In Dallas County, much of the work to identify the wrongfully convicted is falling to law students and volunteer lawyers. Crowded into a small jury room in the Frank Crowley Courts Building, they leaf through thick case files, some more than three decades old.

Many of the students, drawn from local law schools, get no formal credit for the work. They work on all aspects of the cases, from re-interviewing witnesses to ensuring that those who are freed have new clothing when they leave prison.

Jessica Mines, 27, a second-year law student at Texas Wesleyan, says seeing the release of a prisoner like Chatman is "priceless."

Considering a lawsuit

Since Chatman's release, he has traveled to Washington, where he was welcomed at a Senate hearing and met briefly with Leahy, a vocal backer of legislation to help free the wrongfully convicted.

Chatman is eligible for up to $50,000 per year from the state for each of the 27 years of lost time. He is weighing a lawsuit over his incarceration and will get the state money only if he decides not to sue.

His family and attorneys provide much of what he has — the apartment, furniture and a new pickup. He earned a general educational development (GED) certificate in prison and is considering enrolling in college, or pursuing a career as a welder or auto mechanic.

For now, the new truck mostly sits in a parking space because he fears he'll lose his way if he strays too far from his sprawling apartment complex. But there are plenty of other options for life outside his cell.

"I can just go take a bath," he says, "and lay in the tub any time I want."

Contributing: Chris Joyner, The (Jackson, Miss.) Clarion-Ledger

No comments: