Innocence Project wants 1989 murder evidence re-examined

UIS students Sarah Wellard, left, and Priyanka Deo of the Downstate Innocence Project have been researching documents in the murder of Melissa Koontz.

By SARAH ANTONACCI
STATE JOURNAL-REGISTER

Posted Aug 31, 2008 @ 01:42 AM

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When Melissa Koontz disappeared June 24, 1989, her story brought to life every young woman’s biggest fear and every parent’s worst nightmare.

A week later, authorities discovered the body of the 18-year-old Culver-Stockton College honor student dumped in a cornfield west of town. Koontz had been stabbed to death. Though the body was fully clothed, Koontz’s bra was unfastened and her underwear torn.

Eventually, five people were sent to prison for the crime, which authorities said at the time began as a robbery. Two of the accused, Gary Edgington and Tom McMillen, are serving life sentences in prison.

Edgington confessed to helping murder Koontz, but McMillen has steadfastly denied he had anything to do with it.

Nearly 20 years after the crime, the Downstate Innocence Project at the University of Illinois at Springfield wants to see if McMillen is telling the truth.

The group this week is expected to ask a Springfield circuit judge to order that evidence left from the Koontz murder be re-examined. With advances in science over the past two decades, project organizers say, items that were not helpful to investigators in 1989 could provide new insights.

The project is asking:

That a fingerprint found on the rearview mirror of Koontz’s car be run through the Automatic Fingerprint Identification System to see if it matches that of any known criminals. The print has never been linked to the defendants, police or Koontz or her family.
That three pubic hairs collected from Koontz’s body undergo DNA testing.
That Koontz’s clothing be retested for the presence of seminal fluid, which then also could be tested.
“The evidence contradicts the idea that they killed Melissa Koontz for beer money,” said Bill Clutter, director of investigations for the Downstate Innocence Project. “There’s no question that when one looks at the facts of the case that the crime was one of a sexual predator, not one of robbery.”

Clutter and two UIS students, Priyanka Deo and Sarah Wellard, have spent the past several weeks presenting their evidence to local authorities. Included are statements from key witnesses who now say they didn’t tell the truth during the original investigation.

Sheriff: No objection

Sangamon County Sheriff Neil Williamson, whose department handled the investigation although the crime occurred before he became sheriff, said he has no objection to taking another look at the Koontz evidence.

“I don’t think it’s a bad thing myself,” he said. “If technology exists today that didn’t 20 years ago and it can be utilized either to convict someone who hadn’t been taken to court or exonerate someone who has, it’s a good thing.”

Capt. Tom Hendrickson, head of the investigations division at the sheriff’s department, said he’s also met with the Innocence Project. His office is attempting to find evidence from the case and make sure its chain of custody is intact.

“Some of the issues they presented to us are factual in nature and those factual issues may be able to be resolved,” he said. “What will be there will be there. We will attempt to see if there is validity to their concerns.”

Innocence Project staff members also have met with John Milhiser, first assistant state’s attorney.

“It would be premature for us to respond prior to receiving the filed motion along with all the exhibits,” Milhiser said.

Bob and Ann Koontz, Melissa’s parents, said last week that they “feel the justice system has worked in the past and will continue to do so now.

“We feel that the evidence was concrete and substantial in the conviction of McMillen for murdering our daughter, Melissa,” the Koontzes said in a brief written statement to The State Journal-Register.

Prosecutors at the time said McMillen, Edgington, Donald “Goose” Johnston and Danny Pocklington — then only about 15 years old — had driven toward New Berlin that night from the Modesto area. Their plan allegedly was to rob the first person who came along in order to get money for beer and gas for Pocklington’s mother’s 1972 Chevrolet.

Johnston testified in McMillen’s trial that they flagged down Koontz’s car as she was driving from her job at the former Cub Foods on Veterans Parkway in Springfield to her home in Waverly. They intended to rob her, Johnston said, but things got out of hand.

Once Koontz’s car was stopped on the Waverly Blacktop, Johnston testified, he watched as McMillen pulled Koontz from the car and stabbed her in the arm. McMillen and Edgington then dragged her down the road.

Koontz was placed in the back seat of the Chevy, and the group drove off toward Springfield.

Conflicting evidence

Johnston said he and Pocklington got out when they put Koontz in and walked a long distance up the road, figured they were going the wrong way, turned back and passed Koontz’s car. He said he closed the passenger door using his feet and then saw a brown and white police car approaching.

He said the two hid in a field, but saw that the officer was looking for the girl and that the officer “had a poster out.”

Johnston said he and Pocklington eventually were given a ride home by a man and woman who had a baby and a dog with them and that he knew the man but couldn’t remember their names.

In its petition, the Innocence Project points out inconsistencies in Johnston’s story. It was impossible for a missing-person poster to have been produced the night Koontz disappeared, the petition says, no blood was found where Koontz supposedly was stabbed and dragged, and no money was missing from her car or purse.

In a videotaped interview with the Innocence Project, Johnston has recanted his story, saying he pleaded guilty to a crime he didn’t commit.

“Them officers said you’re guilty, you’re guilty,” he said on the tape.

Danny Pocklington also says in a new affidavit that, in 1989, he said whatever police told him to say because investigators told him that Johnston, Pocklington’s cousin, would get the death penalty if he didn’t.

Mary Pocklington Heinrich, Danny Pocklington’s mother, says her story was true from the start, according to an affidavit taken this summer. Heinrich said in 1989 and repeats today that she was with her son and Edgington that night at Edgington’s sister’s trailer in Scottville. She had her car with her, Heinrich said.

Johnston came to the attention of police before Koontz’s body was found.

Johnston was being given a ride home by a Macoupin County sheriff’s deputy on June 28, 1989, and saw a missing person poster about Koontz. Johnston told the officer he had seen Koontz and a girl named “Sissy” at noon that day in Carlinville.

About 10 days later, Johnston got drunk. While he was being booked into the Macoupin County Jail for urinating in public, he told deputies that McMillen killed Koontz and he knew it because he was there and watched.

However, Johnston also told the deputy that he had known Koontz for 13 years and knew her mother, too. He didn’t. And he said Koontz had been choked to death but she wasn’t, the Innocence Project points out.

Innocence Project staff members also point to statistics that indicate a large percentage of false confessions are made by people who are mentally retarded. An IQ test administered in July 2008 showed Johnston has “mild to moderate retardation,” and newspaper stories from the early 1990s indicate all five of the defendants had little education and seemed intellectually slow. McMillen’s sister has said her brother can neither read nor write.

Richard Leo, a professor of law at the University of San Francisco who is an expert in false confessions, said people with low intelligence make up a significant portion of those found to have made false confessions.

“They are easily led, easily manipulated, slow, they ... pretend to understand things when they don’t,” Leo said. “They look to authority figures for clues on how to behave. They rely on teachers and police their whole lives.”

Prosecutor: Strong case

However, former Sangamon County state’s attorney Don Cadagin, who prosecuted the case, said other strong evidence suggests the right people are in prison.

A Palmyra man who owned a red Camaro testified at McMillen’s trial that he had driven along the Waverly Blacktop about the time that Koontz disappeared. Johnston had told authorities he’d seen such a car.

Authorities also had Edgington’s taped confession, along with a videotape of a conversation between Edgington and McMillen in which they discussed the murder. In the 80-minute conversation, taped without McMillen’s knowledge, newspaper accounts from the trial indicate that Edgington keeps telling McMillen that McMillen did the stabbing, but McMillen continuously denies it.

Detectives found blood in Mary Pocklington’s car when they first examined it. McMillen said the blood was his, but when officers went back to recover the car to test the blood, the car had been disposed of.

“It had been compacted — not sold or abandoned, but compacted,” Cadagin said. “I don’t know of anybody who has had a car compacted. I don’t even know where you go to have it done.”

In addition, Mary Pocklington turned over to police a necklace that had belonged to Koontz, according to an April 1991 story in The State Journal-Register.

Cadagin said he doesn’t oppose a re-examination of the case, though.

“I’m happy to see it, actually,” he said. “I think McMillen is guilty and did at the time and still do. But you know, there are always situations where there could be a mistake made.”

McMillen’s sister, Debbie Hudson, was the person who contacted Clutter to ask that the Innocence Project re-examine the case against her brother.

“I totally believe in Tom’s innocence and never did think he was guilty,” she said.

Hudson said she sees her brother two to three times a year and he calls from prison two to three times a month.

She also feels for the Koontz family, Hudson said.

“I feel sorry for the Koontzes right now, because they’ll feel he’s guilty until they have absolute proof he’s not,” she said.

But Hudson isn’t the only one who believes McMillen could be innocent. His attorney, Mike Costello, from the 1991 trial believes so, too.

“When I talked to him, he was so sincere. He didn’t have the demeanor that he would resort to violence like some other mopes,” Costello said.

“You can put this in,” he added. “It makes no difference to trial counsel if their client is guilty or innocent. The only concern is that he can ethically prove the client innocent on the facts.

“With McMillen, I believed he was innocent.”



Sarah Antonacci can be reached at 788-1529.

Innocence and the Death Penalty

http://www.deathpenaltyinfo.org/article.php?did=412&scid=6

No moratorium on the death penalty's flaws

By Hooman Hedayati

In 2007, the Supreme Court accepted a case from a Kentucky inmate challenging the constitutionality of lethal injections. This created a national moratorium on executions that lasted for more than seven months. Now, after the longest death penalty moratorium in 25 years, executions have resumed in the U.S. Georgia executed the first inmate, and Texas followed, executing eight more people. The next execution in Texas is scheduled for Sept. 9. Litigation that caused the moratorium did not question the death penalty itself but rather the manner in which it is carried out. This forest-for-the-trees approach, however, avoids a fundamental question: What did we learn during the seven-month-plus postponement? And how should what we learned influence us as we go forward?

Arizona Judge Rudolph Gerber, who came to oppose the death penalty after serving on the state's appeals court, recently noted that the moratorium has had several ripple effects. "Around the country, no judges are staying up late awaiting the final appeals from the condemned," he wrote in an op-ed for The Sacramento Bee. "Governors and justices of the Supreme Court are not worrying that the person about to be executed may be the exceptional one who is innocent. Prison guards, family members of victims and of death row inmates, and even the media are relieved of the tension and uncertainty that each pending execution brings."

"But much of the death penalty system remains unaffected by this hold on executions," Gerber continued. "Prosecutions, trials, appeals and the rituals of death row continue to absorb an enormous share of the judicial system's time and resources. Justices from some of the states' highest courts have complained about the extraordinary strain this one issue places on the bench. In many states, there are not enough qualified lawyers willing to handle the appeals."

Gerber brought a real-world analysis to the issue of capital punishment. But he could have gone even further. The fact is, our 30-year experiment with capital punishment has failed. The death penalty system remains flawed and fraught with blunders, biases and bureaucracies. Blunders, because too often it convicts innocent people and sends them away to await execution. Biases, because no matter how much we tinker, we can't get around the fact that race and class influence who receives the ultimate penalty. Bureaucracies, because appeals can take decades - and it is the murder victim's family members who suffer as the appeals of the perpetrator who took their loved one away wend interminably through the courts.

During the recent moratorium on executions, several notable things happened. Three states - California, North Carolina and Tennessee - launched studies of their death penalty systems. Two states, Maryland and Nebraska, debated abolishing the death penalty in their state legislatures. A third state, New Jersey, did away with capital punishment altogether. For the first time in Texas, Rick Reed, a candidate for the Travis County district attorney's office, ran on a platform opposing capital punishment.

What happened when states paused and contemplated the pros and cons of this public policy? If anything, more Americans came to question whether the death penalty is really necessary. And more Texans learned that without the death penalty, the word doesn't turn upside down, murder rates don't skyrocket and death-row inmates don't run away from prisons murdering more people. During this period, more people questioned what we are accomplishing and if the significant costs of conducting trials and appeals could be put to better use.

One American who thought so was Supreme Court Justice John Paul Stevens. "The time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived," Stevens wrote in the latest court case. Stevens - voting to uphold the constitutionality of a specific lethal injection protocol but expressing his view that the death penalty itself now violates the Eighth Amendment - saw the forest for the trees. As Texas rushes to execute more inmates, we all could use Stevens' clarity and vision.

Hedayati, a government senior, is president of Students Against the Death Penalty, member of Campaign to End the Death Penalty and Campus Progress at the Center for American Progress advisory board member.

No fatal mistakes

By Joseph D. Tydings
August 22, 2008

As a lawyer and former U.S. attorney, I have both prosecuted and defended death penalty cases. As a member of the Maryland House of Delegates and as a U.S. senator, I have studied and dealt with this issue for more than 40 years. While I have never been philosophically opposed to the death penalty, and have supported it in special cases, I now have deep concerns about the failures in our criminal justice system in capital cases.

The Maryland Commission on Capital Punishment - which is holding public hearings in Annapolis and must submit a final report in December - can play a vital role in educating the public and the General Assembly that our present failure to provide competent lawyers for the accused who can't afford one will likely lead to the execution of innocent defendants. The fact that Maryland pays less than any state other than Mississippi for such representation underscores the seriousness of this problem.

The commission needs to address two key issues: First, what is the present risk that Maryland will execute innocent people over the next decade? Second, can and will Maryland ensure that indigent defendants facing the death penalty - generally minorities, frequently mentally impaired - are provided with a competent lawyer and fair trial, as required by the Constitution?

We now know that in recent years, 129 people in the United States who were found guilty of capital offenses in a trial and were facing a sentence of death were later found to be innocent. In some of these cases, witnesses lied; in others, police or prosecutors took constitutionally unlawful shortcuts; in some, the defense lawyer did not put on a defense.



As pro bono counsel, I unsuccessfully litigated a Virginia appeal of a mentally retarded minor who had been convicted and sentenced to death for a crime that I firmly believe he didn't commit, because his court-appointed attorney didn't want to represent him and was basically worthless as his lawyer. After seven years, the Virginia governor ultimately lacked the courage to stay the sentence, and my client was executed.

Maryland is not immune to this type of miscarriage of justice. Kirk Bloodsworth, a resident of our Eastern Shore, was sentenced to death and later found to be innocent. Mr. Bloodsworth is a member of the state study commission today. Too many Marylanders have been prosecuted, convicted and sentenced to life for crimes they did not commit - and in some of those cases, it was only a matter of chance that they were not sentenced to death and executed.

Americans are just beginning to focus on miscarriages of justice in capital offenses and the fact that our nation, in all likelihood, continues to execute innocent people. Former Supreme Court Justice Sandra Day O'Connor - like myself, a supporter of capital punishment - in 2001 stated: "If statistics are any indication, the system may well be allowing some innocent defendants to be executed." Since she made that comment, several more people have been shown to be innocent after being sentenced to death.

An accused innocent is most likely to be charged in a highly emotional atmosphere after a heinous crime has been committed, when there is tremendous public pressure on prosecutors and police to find and charge a defendant. The targets in many of these situations have no financial or family resources and are forced to rely on state-paid attorneys, who often are inexperienced and unprepared to defend them in this type of case. Defendants with substantial wealth seldom face a risk of execution.

The defense of a person accused in a death penalty case is enormously time-consuming and professionally demanding for a lawyer. When a state fails to provide the funds necessary to retain a competent lawyer, our state justice system is forced to rely on the altruism of a dwindling number of pro bono attorneys willing to endure the economic sacrifice and emotionally draining task of defending a capital case. Without a competent lawyer, the likelihood of a wrongful conviction rises drastically.

Like Ms. O'Connor, I see the deep and irrefutable flaws that are built into our present system of capital punishment. These flaws hold the most risk for those at the margins of society.

I am very skeptical that these flaws can be fairly repaired in today's fiscal climate, where Maryland's state budget is as crunched as any state. A study this year released by the Abell Foundation revealed that the present death penalty system in Maryland has cost the state nearly $200 million over the last 30 years because of "extra" costs of incarceration and prosecution.

Unless we are prepared to invest even more in the future for competent lawyers, I believe that there is a very real risk that Maryland (and other states that still have death penalty statutes) will execute innocent people. The commission has heard testimony from veteran defense attorneys about the inadequacy of the pay the state provides to attorneys in capital cases. Maryland pays the second-lowest rate in the nation for such attorneys - far below what it costs a lawyer to take on such a case.

Today, the system relies on a dwindling number of lawyers who take the cases at a financial sacrifice because they believe in the importance of providing good counsel to capital defendants.

We must honor America's fundamental democratic and constitutional principle that innocent people shall not be executed. The penalty for conviction in capital cases should be changed to life imprisonment without the possibility of parole until we are willing or able to provide the resources to stop these frightfully tragic miscarriages of justice.

Joseph D. Tydings is a former U.S. senator from Maryland, a former U.S. attorney and a former member of Maryland's General Assembly. He is now a partner in a law firm. His e-mail is tydingsj@dicksteinshapiro.com.

Fourth anniversary of Florida exoneration

When Wilton Dedge was arrested for a December 1981 rape, he weighed 125 pounds and stood at 5′5″ - not at all like the tall, muscular, 160-pound man the victim had originally described to the police. Despite the mismatched between her description and Dedge, she identified him as her attacker. Due to the misidentification and other unreliable evidence, Dedge would serve 22 years for a crime he didn’t commit. Finally exonerated on August 11, 2004, he marks the fourth anniversary of his exoneration today.

Dedge’s case underscores not only the fallibility of eyewitness identification, but also the importance of granting access to DNA testing when it can prove innocence and overturn a wrongful conviction. Once the tests are conducted, state laws must also ensure that the new evidence can be heard in court.

It took Dedge five years to obtain access to the DNA testing that proved his innocence, but then It took three more years for his release. Prosecutors argued that the test results were not permissible in court because they had been obtained before a new DNA access law was in place. According to the law, they argued, he had proven his innocence too early.
Seven states still don’t have a law guaranteeing inmate access to postconviction DNA testing-meaning more inmates could suffer the same injustices as Dedge. Click here to learn if your state allows access to testing.

Help us ensure DNA access for inmates across the country by signing our petition for DNA testing access today.

Dedge’s case is featured in the award-winning documentary “After Innocence.” Buy a copy of the film today from Amazon.com (a portion of proceeds benefits the Innocence Project) or rent it from Netflix.

Other exoneration anniversaries this week:

Thursday: Gary Dotson, Illinois (Served 10 years, Exonerated 08/14/89 )

Roy Criner, Texas (Served 10 years, Exonerated 08/15/2000)

Friday: Eduardo Velasquez, Massachusetts (Served 12.5 years, Exonerated 08/15/01)

Picking the Wrong Black Man

1n 1984, Jennifer Thompson-Cannino wrongly identified, Ronald Cotton, an innocent black man, as her rapist, while her guilty black assailant went free. Years later, DNA evidence proved Cotton’s innocence, and he was released. Thompson-Cannino and Cotton are now writing a book together called Picking Cotton.

It’s hard to imagine what either person would say to the other in a situation like this. Thompson-Cannino wrote briefly,

By the spring of 1997, the psychological toll forced me to act. In a small church no more then a few miles from where I had been brutally raped, I met Ronald and struggled for words I could say to him. How completely inadequate “I’m sorry” seemed. As Ronald and his new wife, Robbin, came into the room I began to cry and shake. “Ronald, if I spent the rest of my life telling you how sorry I am it wouldn’t be enough,” I said. Ronald immediately took my hands and replied, “I forgive you. I want you to be happy and live a good life. Don’t look over your shoulders thinking I will be there because I won’t.”
The Innocence Project’s mission has been freeing innocent men many of whom were convicted simply for being Black.



The American Bar Association, meeting in New York, is considering whether to recommend that judges use their discretion to make juries aware of the problems that can plague cross-racial identifications.

California, Massachusetts, New Jersey and Utah already employ such instructions in some cases.

“The majority race is not as good at identifying minorities as it is its own race. This is hard-wired in some way that we don’t completely understand. But the phenomenon should be presented to the jury,” said Barry Scheck, co-founder of The Innocence Project.

Prosecutors, however, do not want judges to raise the issue with juries.

“This is not an appropriate area for judges to go into,” said Josh Marquis, district attorney in Astoria, Ore., and a member of the executive committee of the National District Attorneys Association. “Yes, eyewitness ID across races has its issues. But is there a rampant problem to the degree that we need to get judges to start telling juries this is the law? No.”


Over 200 people in the U.S. have had their convictions overturned by DNA evidence. Three-quarters of these cases involved mistaken eyewitness testimony, making it the leading cause of wrongful conviction.

Increasing Access to Post-Conviction DNA Testing

DNA is a powerful scientific tool for proving guilt or innocence, but barriers throughout the criminal justice system are preventing this tool from being used effectively.

Increasing Access to Post-Conviction DNA Testing: A Policy Review is a new publication from The Justice Project designed to foster a dialogue among policy makers and to help states implement better DNA testing procedures and practices. This policy review provides an overview of problems with current post-conviction DNA testing laws, offers solutions to these problems, profiles cases of injustice, highlights states with good laws and policies for DNA testing, and includes a model policy.

As TJP President John Terzano wrote on The Huffington Post, “The sad truth is that it often takes a series of miracles to gain access to post-conviction DNA testing. … Our criminal justice system is too fraught with error to rely on miracles to find the truth. Post-conviction DNA testing serves the interests of fairness, accuracy and public confidence in the criminal justice system, and states should make every effort to facilitate testing for defendants claiming innocence.”

You can read Terzano’s blog post here and learn about post-conviction DNA testing here.
Research on the exonerations of innocent people has identified many of the primary causes of wrongful convictions. Based on these findings, The Justice Project has constructed a national agenda for reform designed to eliminate common, preventable errors that undermine the fairness and accuracy of our criminal justice system. Increasing access to post-conviction DNA testing is one of TJP’s eight initiatives for criminal justice reform.

Learn more about all eight initiatives here.

Post-Conviction DNA Testing Shouldn't Depend on Miracles

By now everyone knows that DNA testing is a powerful scientific tool for proving guilt or innocence in our criminal justice system. Often post-conviction DNA testing provides the only evidence that can correct the injustice of wrongful conviction.

But what if all the biological evidence is destroyed while you're still in prison? What if there is evidence but it's not discovered until after state-imposed deadline for seeking DNA testing? What if the state denies your petition for testing because you accepted a plea bargain to avoid a harsher sentence for a crime you didn't commit? And what if you're indigent and can't afford an attorney to help navigate the complex legal and scientific issues involved in obtaining a DNA test?

The sad truth is that it often takes a series of miracles to gain access to post-conviction DNA testing. That's because our criminal justice system continues to place significant obstacles in the way of post-conviction DNA testing that could determine whether the wrong people have been convicted and punished for crimes they didn't commit.

Today, The Justice Project is releasing Increasing Access to Post-Conviction DNA Testing: A Policy Review. This policy review explains the problems surrounding post-conviction DNA testing policies and procedures and identifies the best practices for states to adopt to ensure that post-conviction DNA testing contributes to a more accurate criminal justice system and restores public confidence in the system's ability to correct its own errors.

To date, more than 200 people -- including 16 who were sentenced to death -- have been proven innocent by DNA testing. In many of those cases, the same DNA test helped bring the real perpetrators to justice.

But seven states -- Alabama, Alaska, Massachusetts, Mississippi, South Carolina, South Dakota and Oklahoma -- don't even have laws on the books allowing for post-conviction DNA testing. And those that do have laws fall short of what is needed to ensure that DNA testing can be used effectively to correct the injustice of wrongful conviction.

All but 12 states and the District of Columbia lack statutes requiring the preservation of evidence throughout an inmate's incarceration. An investigative series this year by The Columbus Dispatch found that "evidence had been lost or destroyed nearly two-thirds of the time that prosecutors agreed to search for it because Ohio does not require evidence to be catalogued and saved." States should require the preservation of biological evidence throughout a defendant's sentence and devise standards regarding the custody of evidence.

States should also ensure that all inmates with a DNA-based innocence claim may petition for DNA testing at any time without regard to plea, confession, self-implication, the nature of the crime, or previous unfavorable test results. Nearly a dozen of the more than 200 DNA exonerees initially plead guilty, and 50 purportedly confessed to crimes they did not commit. And because DNA testing technology continues to improve, a defendant's right to request testing must not be subject to time limitations. If new technology develops that might change the outcome of a test, the test should be performed.

The complexity of the petitioning process also creates an unreasonable burden for a wrongfully convicted person who needs DNA testing to prove his or her innocence. The steps involved in obtaining DNA testing are difficult even for experienced advocates. That's why states should provide counsel and cover the cost of post-conviction DNA testing for indigent petitioners.

These are just a few of the steps that need to be taken. As with any good policy, the benefits of post-conviction DNA testing statutes outweigh the costs. While improving access to post-conviction DNA testing will require states to incur some initial costs, those costs are minimal and could end up saving states money in the long run.

The federal government recognized the importance of post-conviction DNA testing with the passage of the Innocence Protection Act (IPA) in 2004. The IPA includes the Kirk Bloodsworth Post-Conviction DNA Testing Program, which authorizes $25 million over five years to help states defray the cost of post-conviction DNA testing. The program is named for Kirk Noble Bloodsworth, the first person sentenced to death to be exonerated by DNA evidence.

In Bloodsworth's case, the DNA test results not only proved that he did not sexually assault and murder nine-year-old Dawn Hamilton, they also identified the real perpetrator who then confessed to the crime. But it took another series of miracles for that to happen. It was only through a chance encounter that Bloodsworth's attorney learned that the trial judge had kept some of the evidence in a cardboard box in his chambers. And the attorney paid for the testing out of his own pocket.

Our criminal justice system is too fraught with error to rely on miracles to find the truth. Post-conviction DNA testing serves the interests of fairness, accuracy and public confidence in the criminal justice system, and states should make every effort to facilitate testing for defendants claiming innocence.

John F. Terzano is the President of The Justice Project, a nonpartisan organization that works to increase fairness and accuracy in the criminal justice system, with a focus on the capital punishment system.

Copies of "Improving Access to Post-Conviction DNA Testing: A Policy Review" are available at http://www.thejusticeproject.org/

Law students to work on freeing innocent inmates

The odds will be steep, the clients reviled and the long path ahead is already marked by rejection and failure.

But that's just fine when the potential payoff is freedom and justice, said University of Michigan law professors David Moran and Bridget McCormack.

Moran and McCormack are spending the summer setting up the Michigan Innocence Clinic, a student law clinic to challenge what they believe are wrongful convictions of innocent people. They plan to be fully under way by the winter semester, and in the fall they plan to select student participants and begin reviewing potential cases.

Their model is the famed Innocence Project founded by Barry Scheck, part of O.J. Simpson's legal dream team, but with a crucial difference: Their appeals will not be based on DNA or similar scientific material.

Instead, they will go after jailhouse snitches, lazy lawyers, shady cops and overlooked evidence.

Scheck, who knows both Moran and McCormack, said in an e-mail that such legal clinics are needed because "only 5 to 10% of all criminal cases involve biological evidence that could be subjected to DNA testing."

The clinic was just accepted as part of the Innocence Network, a national organization of groups investigating and overturning wrongful convictions. The Thomas M. Cooley Law School in Lansing has a DNA-based innocence program.

Even though the U-M clinic has not officially started, "the letters from prisoners are already pouring in," said Moran, who joined the U-M faculty after stints with Wayne State University and the State Appellate Defenders Office.

The Innocence Clinic will be a program where selected students will investigate and work on cases in which all the traditional and routine appeals have been exhausted but that appear to be wrongful convictions.

And because they are not focused on DNA, the clinic's cases will expose students to frauds, thefts and other crimes and give them hands-on experience tracking down and interviewing witnesses, surveying crime scenes, reviewing case files and revisiting old police files.

Moran brings a fighting spirit to classes and courts, said Timothy Baughman, head of appeals for the Wayne County Prosecutor's Office who held joint seminars with Moran and squared off against him in cases that went all the way to the U.S. Supreme Court.

"I always want the defendant to have the best representation possible, and professor Moran provides that to his clients," Baughman said.

To winnow promising cases from the meritless jailhouse "I was framed" chorus, Moran and McCormack put together a 19-page questionnaire covering witness, confessions, tests, evidence and past attorneys.

Moran said they take on cases knowing they have to meet a higher standard just to get back into court: "We are looking for new evidence -- and we have to show why that evidence that wasn't presented the first time and why the new evidence is likely to result in an acquittal."

McCormack said students will be asked to commit to spending at least two semesters with the clinic -- twice the usual commitment.

"The case we take will tend to be big and sprawling, so we'll have to start slowly," she said.

Moran said the clinic could work up to 10 years on a case, meaning that a project could pass through the hands of dozens of aspiring lawyers, training them in identifying appellate issues and investigative techniques.

DNA exonerations have captured the public imagination, and television shows like "CSI" have given criminal justice the patina of scientific certainty from microscopic examination of blood and other biological bits.

Real life, real crime is much messier, Moran said, and not so sure: "We're looking for different kinds of evidence."

Wrongful convictions, he said, tend to fall into major categories, including mistaken eyewitnesses, incompetent lawyers, police or prosecutor misconduct, jailhouse snitches and discredited clinical or investigative processes.

"Bad science is a red flag," Moran said, explaining that human hair and bite comparisons used for years in court have not stood up to rigorous challenges.

Likewise, he said, longtime standard techniques in arson investigations are coming under question.

"Our students will see the whole range -- from murder to fraud," Moran said.

Contact JOE SWICKARD at 313-222-8769 or jswickard@freepress.com.

The Rat Trap: Death Row Exonerations Expose Pitfalls of the "Snitch" System

Levon Jones was freed from North Carolina's death row in May after a paid informant recanted her testimony



By Christopher Moraff, In These Times
Posted on August 5, 2008, Printed on August 6, 2008

Levon Jones is supposed to be dead.

If the state of North Carolina had its way, Jones, 49, would have been strapped to a gurney years ago, hooked to an IV and pumped full of a lethal, three-drug cocktail until he asphyxiated.

Instead, on May 2, he walked out of prison a free man after spending 13 years on death row, and another 24 months locked up awaiting retrial -- all for a murder he almost certainly did not commit.

Jones -- known to friends and family as "Bo" -- was released with the help of the American Civil Liberties Union's (ACLU) Capital Punishment Project after the prosecution' s star witness recanted her testimony against him. (Lovely Lorden, a former girlfriend, admitted she'd collected $4,000 in reward money in exchange for testifying against Jones.)

He was an easy target: an African-American ex-con with a history of mental illness and violent behavior. When Lorden came forward with her story -- a full three years after the 1987 shooting of a local bootlegger named Leamon Grady -- Jones was doing time on an unrelated assault charge.

The prosecution felt little obligation to question the veracity of Lorden's claim. And if the witness is to be believed today, investigators actually helped her keep her story straight.

As a result of Lorden's testimony -- and despite the lack of physical evidence tying him to the crime -- a jury convicted Jones in 1993 and he was sentenced to die for Grady's killing.

What Jones' attorneys didn't know at the time -- and, as it turns out, didn't really bother trying to uncover -- is that Lovely Lorden had made something of a career out of testifying against people close to her. By her own admission, she has aided law enforcement in dozens of investigations and says she helped police make cases against several other boyfriends, as well as her own brother and sons.

What's more, her work as a confidential informant didn't stop after Jones was sent to death row. Jones' attorneys sent In These Times copies of receipts that show Lorden was paid money at least seven times for her work as a confidential informant from December 2003 to April 2004, while Jones sat in jail.

Today, Lorden contends she testified against Jones under pressure from the police, in particular Dalton Jones (no relation), the lead officer in the case.

That doesn't surprise Jones' ACLU attorney, Brian Stull, who says it's not uncommon for police to find a suspect first and worry about making a case later.

"I think often times they look at the usual suspects," Stull says. "I think Dalton Jones was thinking, 'This is a dangerous person, and whether he did it or whether he didn't, I'm going to get him off the street.' "

Jones owes his freedom in part to an astute federal judge who sensed something amiss with Lorden's testimony during a 2006 penalty appeal.

In granting Jones a new trial, U.S. District Judge Terrence Boyle, of the Eastern District of North Carolina, noted Lorden's statements to police were "riddled with inconsistencies" and "reflect that Lorden is unable to fairly and reliably describe the circumstances of the offense."

Unfortunately, the case of Levon Jones is not an anomaly. He is the fifth death row prisoner to be exonerated in the past year. Since December, North Carolina alone has released three inmates from death row after it was determined that they did not commit the crimes for which they were convicted. Of these three men, two, including Jones, were convicted on the false testimony of snitches.

The other, Jonathon Hoffman, was released in December 2007 after spending seven years on death row. His freedom came when the prosecution' s key witness -- Hoffman's cousin -- admitted that he had lied to get back at Hoffman for stealing money and had been both paid for his testimony and given a reduced sentence for bank robbery. At the time of Hoffman's trial, prosecutors withheld the deal from defense attorneys, the jury and even the judge.

A Recipe for Disaster

In a country where more than one out of every 100 citizens is now incarcerated, criminal justice advocates are scrutinizing the way in which police and prosecutors go about getting the information to pursue and prosecute suspects. This inquiry has increasingly focused on the extent to which incentivized informants and jailhouse snitches are contributing to the convictions of innocent people.

A cursory review of the Jones case would be enough to suggest something is wrong. But a thousand Levon Jones stories don't elicit the same amount of outcry as one Kathryn Johnston case does.

In November 2006, Atlanta police gunned down Johnston -- an elderly Atlanta grandmother -- inside her home. The officers, who were from the city's narcotics task force, claimed to be acting on information they received from a confidential informant that drugs were being sold from the house. That allegation turned out to be false.

The Johnston tragedy shined a spotlight on the cavalier use of informant information to obtain arrest and search warrants. The Justice Department launched a federal probe and, nine months after the shooting, in July 2007, the House Committee on the Judiciary held a hearing on law enforcement' s use of confidential informants.

"We've got a serious problem here that goes beyond coughing up cases where snitches were helpful," said committee chair Rep. John Conyers (D-Mich.) at the hearing. "The whole criminal justice system is being intimidated by the way this thing is being run, and, in many cases, especially at the local level, mishandled. … A lot of people have died because of misinformation. "

It isn't known if any of those people have died at the hands of the state; but judging by some of the relevant corollary statistics, it's plausible that some have.

Falsified informant testimony accounts for nearly half of all wrongful convictions in capital cases nationwide, according to data from Northwestern University Law School's Center on Wrongful Convictions. Since 1973, 129 innocent people were released from death row -- more than 50 of whom were sentenced to death based partly or wholly on false informant testimony, according to the Center.

Alexandra Natapoff, an associate professor of law at Loyola University and one of the country's foremost authorities on the problems with paid informants, thinks that's just the tip of the iceberg.

"We have the most data on capital and homicide convictions because they are the most high profile," she says, "so we have no idea how many wrongful convictions there are in larceny cases or assault cases or any other because nobody is paying any attention to those."

Natapoff has written extensively on the role of snitch testimony in wrongful convictions and says that informants have become law enforcement' s investigative tool of choice.

"The government's use of criminal informants is largely secretive, unregulated and unaccountable, " she says. "This lack of oversight and quality control leads to wrongful convictions, more crime, disrespect for the law and sometimes even official corruption."

She continues: "If the criminal system can't get homicide cases right, then it's very unlikely that we're getting other things right."

A Broken System

With the expansion of the "war on drugs" during the crack epidemic of the late 1980s, police began to abandon traditional investigative work in favor of insider cooperation. Cops say it's almost impossible to make a drug case any other way. But critics say the practice has led to a "dumbing down" of police work across the board.

"The drug war has eroded law enforcement practices," says investigative reporter Ethan Brown, whose recently published book, Snitch: Informants, Cooperators and the Corruption of Justice, traces the genesis of the informant culture and its effect on communities.

Those who study the snitch culture trace the problem to a criminal justice policy that has created the perfect atmosphere for what Brown calls the "cooperator institution" to thrive.

Most notably, Brown says, federal sentencing guidelines, adopted in 1987, have exacerbated the growth of the cooperator institution over the past two decades. Until a 2005 Supreme Court ruling gave judges more flexibility in sentencing, the guidelines made cooperating with authorities the only real option for defendants seeking leniency.

"Those guidelines really forced drug defendants into cooperating, " says Brown. "Very few people will look at that kind of prison time and not cooperate."

But over the years, a practice once confined mainly to drug investigations has become standard operating procedure for the prosecution of all kinds of crime.

The reasons are myriad, but the simple matter of resources looms large. In a system severely taxed by an unwinnable drug war, relying on informants is a cheap and easy investigative option. It can cost thousands of dollars to house, feed and protect an actual witness until trial, and, depending upon the offense and the defendant, such protection can carry on for years after conviction. By contrast, criminal informants are often compensated with leniency or are paid small sums, and often simply released into the same streets from which they came.

"It's all about this staggering misallocation of resources," says Brown. "We have this incredible institution for cooperators and informants, yet, for the kind of cooperating we need the most, there are really no resources."

This mutually beneficial relationship between police officers and their informants is what Natapoff calls "a disturbing marriage of convenience. "

Prosecutors and police know the pitfalls, but in many cases write them off as the cost of doing business and making cases.

In a 1999 study published in the Fordham Law Review, Ellen Yaroshefsky, a law professor from the Benjamin N. Cardozo School of Law, interviewed a number of assistant U.S. attorneys from the Southern District of New York and found that while most said they made every effort to be diligent in assessing the veracity of informants, they admitted it's easy to get in too deep and lose objectivity.

In her study, Yaroshefsky described this as "fall[ing] in love with their rat."

"You're not supposed to, of course. You are trained to maintain your objectivity, " an anonymous participant in Yaroshefsky' s study said. "But you spend time with this guy, you get to know him and his family, you like him. You believe that he has come clean. Hopefully the assistant has a skeptical mindset, but the reality is that the cooperator's information often becomes your mindset."

Still, other times investigators are already working under an assumption of guilt and are simply seeking confirmation.

"[Sometimes] prosecutors are convinced they have the guilty guy, then they go about seeking to convict and do not carefully look at things that are funny about their case," one of Yaroshefsky' s sources said.

Former prosecutor and now Howard University law professor Andrew Taslitz says that when he started out in the Philadelphia district attorney's office, his youth and ambition often clouded his judgment when it came to reliance on informants who had received incentives. He says he thinks his experience is the norm.

"Most prosecutors are very, very young, especially at the state level," Taslitz says. "They're new graduates of law school or they've done some other job for a few years but they're mostly in their late 20s, early 30s tops, with very little experience. It's one of the reasons that office policies that just tell them what to do are so important."

Another problem is that many of the assumptions that courts make about how witness testimony is received simply don't pan out.

The Supreme Court established the constitutional basis for using paid informants in 1966 with U.S. v. Hoffa, which decided that rewarding a witness for testimony does not violate due process. In its opinion, the court wrote: "The established safeguards of the Anglo-American legal system leave the veracity of a witness to be tested by cross examination, and the credibility of his testimony to be determined by a properly instructed jury."

But Natapoff says, in practice, those mechanisms are deeply ineffective at protecting defendants from lying informants.

"Let's say the government does disclose [compensation] and the jury knows about it," she says. "You would think, and the Supreme Court certainly thinks, that that will make a difference. Well, psychological research has found that it makes almost no difference, that jurors ignore the fact that the witness is compensated. "

And that's only for the cases that go to trial. Because 95 percent of criminal cases are resolved through plea agreements, defendants rarely get the chance to challenge an informant's story or credibility.

"The Supreme Court has held that while defendants who go to trial are entitled to impeachment material about their informants, defendants who plead guilty are not," Natapoff says. "So that means that most defendants will never see the deal that the informant got."

In spite of all the potential pitfalls, police and prosecutors say the benefits of informants outweigh the potential for abuse.

Ronald E. Brooks, president of the National Narcotic Officers' Associations' Coalition, calls informants "indispensable investigative assets" and cautions against issuing a blanket judgment on the use of confidential informants by police officers for "a few instances of mismanagement or wrongdoing."

"When we appropriately manage informants, great cases, ones that make our community safe are the result," he says. "When informants are improperly used, the results can be devastating. But without the ability to freely use informants, law enforcement would have very few significant investigative successes."

A Call for Reform

Since the 2007 House Judiciary Committee hearing in the wake of the death of Kathryn Johnston, little headway has been made in reforming the practice of using incentivized informants to send people to jail -- and, possibly, execution.

According to the American Bar Association (ABA), 18 states now require corroboration of an accomplice's statements. Those that require corroboration for other forms of incentivized witnesses, however, are few and far between.

Illinois currently mandates corroboration in capital cases, and courts in Nebraska and Oklahoma have required corroboration for jailhouse snitches. Texas, meanwhile, has a different requirement, not for jailhouse snitches, but for undercover drug operatives working for the police.

Criminal justice reformers say they want to make sure police and prosecutors are following protocol in how and when they use paid or incentivized informants.

Taslitz, who serves in the ABA's Criminal Justice Section, says more transparency is needed during the discovery phase. For example, he'd like to see defendants who are negotiating a plea agreement have access to the information and witnesses being used against them.

In a 2005 ABA resolution that Taslitz helped write, the association urged federal, state and local authorities to require that informants meet certain standards of credibility and that courts mandate corroboration in all cases that involve jailhouse snitches.

But so far there has been little in the way of reform.

"It's a slow process," Taslitz says, "and it doesn't have to necessarily be a matter of legislation, but it could be a matter of individual prosecutors' offices adopting specific policies; it can be a matter of local ordinances; it can be case law where judges start to intervene. It's a slow process and, as of yet, there is no uniform informants act."

For cases that do go to trial, Natapoff has been pushing for "pre-trial reliability hearings" as a potential remedy. Under such a system, the burden would be on the government to prove witness reliability by a preponderance of evidence. Courts would be required to consider such factors as the criminal history of the informant, any compensation for their testimony, and other cases in which the informant has testified, among other things.

"Given the prevalence of informant falsehoods in wrongful capital convictions, such hearings should be mandatory in capital cases, even where the defense intends to concede guilt and move directly to the sentencing phase," Natapoff says.

Considering that for every innocent person convicted of murder, a real murderer escapes justice, requiring such checks and balances is as much a victim's rights issue as a matter of criminal justice.

For his part, in spite of losing a decade and a half of his life, Levon Jones says he holds no grudge against the snitch that put him on death row.

Rather, he attributes his ordeal to a miscarriage of justice.

Says Jones: "It was the system itself."

Christopher Moraff is a writer, journalist and photographer and a frequent contributor to In These Times and The American Prospect Online. He also works as a correspondent for The Philadelphia Tribune and is senior editor of the monthly online political journal Common Sense Magazine. He lives and works in Philadelphia.

Since 1973, 129 innocent people were released from death row -- more than 50 of whom were sentenced to death based partly or wholly on false informant testimony

David Pope, exonerated in Dallas County in '01, is still struggling to find his place

After 15 years in prison for a rape he didn't commit, David Pope became the first of 18 men to be exonerated by DNA evidence in Dallas County.

12:00 AM CDT on Sunday, August 10, 2008

COTATI, Calif. – Seven years ago, David Pope became the charter member of a select club: Dallas County exonerees cleared by DNA.

Mr. Pope, 46, spent 15 years in prison for a rape he didn't commit. Now he finds himself a solitary figure who works odd jobs but spends most of his time quietly tending to the small rental house he shares with his mother.

He says he suffers post-traumatic stress from his prison years, likening exonerees to combat veterans who are comfortable on the battlefield but ill at ease in civilian life.

After years of freedom, "I don't quite know where I fit," a bewildered Mr. Pope says.


Family ties

For Mr. Pope, freedom came abruptly, with little time to prepare.

During a decade and a half behind bars, he had settled into prison life, where he was told when to get up, when to eat, when to work, when to play, when to sleep.

Then one day he was fetched from his cell. After years of investigating an anonymous tip, DNA testing cleared him. Prosecutors finally admitted the wrong man was incarcerated.

"They wanted me to walk out in the middle of the night," he says, "but I couldn't get a bus or anything at that hour."

A guard let him spend the night in an unlocked cell and brought him dinner. An officer thrust a faxed pardon from the governor into his hands, and the next day Mr. Pope walked out the front gate in a set of secondhand clothes.

An awkward family reunion followed, made tougher by the fact that Mr. Pope coped with prison by learning to "emotionally shut down."

He'd also been estranged from much of his family before his arrest and now, everyone had changed. His father had a new family. He hadn't seen his mother in more than 15 years.

Patricia Pall, who wrote often, says she always knew her son was innocent. She planned to fly David to California when he was released, but airplanes "made me feel out of control," he says.

"When something like this happens to you, you have control issues."

They rented a car.

For the first few days, Mr. Pope mentally looked over his shoulder, worrying that "they're going to come and kidnap me again and say, 'Oh, we made a mistake; we shouldn't have let you out.' "

He gradually relaxed and became reacquainted with his family.

"We had to learn how to treat each other," his mother says. "The best way we can get along now is to not talk, but just do our separate lives and leave each other notes about where we're going to go and when we're going to get back."

Like most mothers, she wanted to fix things for her son, but all she can do is listen.

"It's been a long period of transition," Ms. Pall says. "It's still going on."

Despite still having a family – some exonerees do not – Mr. Pope feels isolated.

"A lot of guys get out of prison and can't make it," he says. "The loneliness is a big [issue]."

He has few friends and though he knows it sounds odd, he misses the camaraderie of the shared prison experience.

"There were a lot of good guys in there," he says, noting that troublemakers are usually separated from the general population.

"When you're living in that environment, around hundreds of people, there was an energy. And when you get out, that's gone," he says.

"That was one of the most surprising things," Ms. Pall says with a grimace. "He missed prison."


Jobs and money

At age 23, when he was arrested, Mr. Pope was working odd jobs, living with a friend, staying at his father's house or sleeping in his car.

He says he'd only been in trouble for a few minor things, such as shoplifting as a kid and traffic violations.

When wrongly arrested for the July 1985 knife-point sexual assault of a 38-year-old Garland woman, he expected the criminal justice system to prove his innocence.

Voice print analysis – later discredited – and mistaken witness identification soon put him behind bars with a 45-year sentence. Even then, he assumed "the appeal process clears up these things," he says.

When the system failed him again, Mr. Pope resigned himself to prison life and hoped for parole.

"For the first five years, it's a lot of anger and it's like hell, OK? ... Then, at some point, you start moving forward."

Mr. Pope investigated religions and immersed himself in the Bible. He had nothing to repent, but "I wanted to understand what my purpose was, for instance, why I was there."

He studied cabinet making, electrical trades and horticulture. He worked prison jobs.

Eventually, he expected to be paroled to a halfway house, get help finding a job, and have state support to ease his transition back into society.

But that didn't happen: As an exoneree – an innocent person wrongly convicted – he received restitution several months later but didn't have the same services and structure as criminals who are freed after doing their time.

"It was literally like they said, 'Get away from us. ... You're on your own, you're free, but we're not going to help you much,' " he says.

His brother helped him land a job stocking shoes at a store. But Mr. Pope couldn't get along with a co-worker. He quit, and the pattern has been repeated.

Sometimes he feels like "Rambo-comes-back-from-Vietnam," he says. "And somebody does something or says something or harasses him – he just ain't going to hear it anymore. He just wants to be left alone."

For instance, Mr. Pope won't work with anyone he thinks has gang ties. He's offended by the glamorization of gangster culture: rap music, prison slang, baggy clothes and tattoos.

"All these young people want to be gangsters," he says. "And when they put me around people like that, it makes me nervous."

He tried attending college to finish his bachelor's degree, but he didn't fit in there, either.

"Going to college in prison ... there's no distractions," he says. "Going to college in the free world ... it's about acting out, having fun, dating, sleeping late, partying a lot."

Mr. Pope would like a relationship but has little in common with the women he meets.

"Which peer group do I fit in with?" he asks. "People my own age or younger people? When I was released, I was 39 going on 40. ... I was, emotionally, still 24 in certain respects, interacting with the opposite sex, dating. "

Life in the free world, particularly California, revolves around materialism, he says – what you wear, where you work, what you drive. That's a shock after the spare simplicity of the Texas Department of Criminal Justice, where everyone wore the same white uniforms, ate the same food and rode prison buses.

"Out here, it's all the selfish pursuit of money," he says.

He had money – for a while. But the $384,000 in restitution from the state of Texas disappeared quickly. He bought cars, traveled and gave money to relatives. He also paid taxes, lawyers and therapists.

Mr. Pope admits he's no good at managing money. He says exonerees would be better off if they got restitution in annual payments, or if the state funneled money through a trust fund.

He suspects that many exonerees share his inability to plan for the future. "Delaying your gratification, doing these things you need to do," he says with a shrug, "well, you don't live that way in prison."

Mr. Pope no longer has money for counseling but says telling his story helps him cope. He encourages other exonerees to do the same. "That's just the therapy itself," he says.

He still reads his Bible, keeping it "right next to my bed," he says.

Sometimes he wonders how life might have turned out had he not been wrongfully convicted. But he's not bitter, he says – he's sad.

"I'm sad about the fact that I haven't been able to make a life for myself," he says.

djennings@dallasnews.com

When the guilty really are innocent

Microscopic strands of proof: Post-conviction DNA testing has shown that not every inmate who claims, “I didn’t do it,” is lying

By STEPH GREEGOR
Published: Thursday, August 7, 2008 12:10 PM EDT

Ohio Innocence Project director Mark Godsey is every convict’s fairy godmother—and his ability to get post-conviction DNA testing is his magic wand.

“Our organization provides a couple benefits,” Godsey said. “We try to eradicate social injustices and I think we reform the criminal justice system and make it better.”

Robert McClendon is one of the group’s biggest fans. After serving 18 years in an Ohio prison for a rape he says he didn’t commit, McClendon got the attention of the Ohio Innocence Project, which conducted a post-conviction DNA test and revealed the semen found in the victim’s underwear did not match McClendon’s. He’s now hoping a release date and a huge apology is on the horizon.

The Ohio Innocence Project’s impact extends beyond the freedom of one man.

Since its founding in 2003, the University of Cincinnati-based group has received over 4,000 requests from inmates seeking release based on their innocence, said Godsey.

“We’ve only gone to court for five people claiming they were innocent,” he said. “We’ve gone to court for about 30 other cases and just said ‘there needs to be DNA testing.’”

He said going to court claiming an inmate’s innocence requires new evidence. Sometimes the new evidence is a DNA test; sometimes it’s a confession from the real perpetrator. When the group goes to court requesting a DNA test, it’s based on Senate Bill 262 that says a DNA test can be requested without new evidence, he said.

Through post-conviction DNA testing, the OIP has confirmed the guilt of two and exonerated two, bringing Ohio’s exoneration total to six—four were under the New York Innocence Project’s direction, which handled Ohio before the Buckeye State had its own IP.

“I’m happy when it comes back guilty, as much as when it’s innocent,” Godsey said. “Because in that case, it shows the system got it right.”

Nationally, the impact is even greater. The Ohio effort is part of a nationwide Innocence Project, which was founded in 1992. To date, 218 convicts have been exonerated nationally based on post-conviction DNA testing—16 of whom spent time on Death Row. Altogether, they served an average of 12 years in prison before being released.

To date, 218 convicts have been exonerated nationally based on post-conviction DNA testing—16 of whom spent time on Death Row.

But freeing the innocent is only part of the Innocence Project’s mission. It also endeavors to spark reforms in the criminal justice system to correct some of the mistakes that land the wrongly accused in prison in the first place.

In Ohio, Godsey said he and the OIP are leading a crusade to change lenient state laws that rely too heavily on witness testimony and allow investigators to throw away valuable DNA evidence.

“When it comes to DNA and eyewitness ID reform, Ohio is not on the cutting edge. In Ohio, you can get DNA evidence and then just throw it in the trash without any penalty,” he said. “The state is slow to adopt these bills compared to similar states with similar bills across the nation. We won’t be slow anymore.”

He’s hoping that Legislative Service Committee bill 127 1984-2, set to be introduced to the general assembly this fall, will help prevent the kind of mistakes that occurred in McClendon’s case, he said, where swabs from the victim’s medical exam were discarded after his trial—and in other cases, where exonerated inmates were convicted based on erroneous witness testimony.

“All these exonerations are showing that testimonies are unreliable,” Godfrey said. “There are ways to improve wrong ID’s and there’s different ways you can show photos to a witness to increase the chance of it being correct, but police bureaucracies are slow to change.”

The efforts have highlighted problems such as sloppy detective work, poor DNA collection and overzealous prosecutors who latch on to a certain suspect and won’t let go, often leaving the real perpetrator on the loose. LSC 127 calls for DNA preservation, recorded interrogation methods, and reforming eyewitness identification procedures to address those issues.

“Post-conviction DNA testing has shown that there are ways you can greatly improve police investigations,” said Godsey. “I mean, it’s sort of a myth that DNA testing is always being done on the front end.”

In addition to pushing for tougher laws and freeing innocent prisoners, the Innocence Project has also been able to find genetic matches for the real guilty party in some 40 percent of its cases.

“Our goal is not just to get people off—we strive to find the real perpetrator,” said Godsey.

McClendon’s case also highlighted another inherent problem in the criminal sciences—the rapid advance of technology. In McClendon’s case, since the original swab had been thrown away, the only place for scientists to look for DNA evidence almost 20 years later was the victim’s underwear, still in storage. In 1990, Columbus police couldn’t find any semen on the underwear. But in 2008, faint traces of semen were discovered because more powerful equipment was able to detect it.

“There could be a murder tomorrow and we can’t do DNA testing today—but 10 years from now, we’ll have the technology so we can,” Godsey said. “It’s constantly advancing.”

The DNA testing in the OIP cases is typically done by a private lab, not the state lab, and in McClendon’s case, the DNA Diagnostics Center—a Cincinnati-based lab—performed the testing for free at the request of Godsey’s organization. The state Bureau of Criminal Identification lab requires a judge’s order to perform a post-conviction DNA test, said BCI lab spokeswoman Jennifer Brindisi.

“We don’t do many,” she said. “Maybe a handful a year. We’re not involved with the investigations. Post-conviction DNA testing is an issue between prosecutors and defense attorneys.”

As for McClendon, his fate now rests in the hands of his attorneys, Franklin County Prosecutor Ron O’Brien and Common Pleas Judge Charles A. Schneider.

“We are still going through testing additional information and evidence that we have in connection with the case,” said O’Brien.

Said Godsey: “It’s hard to imagine something worse than being in prison for something you didn’t do. It’s your biggest nightmare. I don’t have any interest in whether the result is innocent or guilty. Either way, we should want to know.”

Legislators, Exonerees Call for Criminal Justice Reform

August 4, 2008

In the 1980s, Charles Chatman, Billy James Smith, and James Woodard were arrested, tried, and convicted of aggravated sexual assault and murder crimes and spent a total of 70 years behind bars.

All three are now free men, but none of them were ever guilty of the crimes for which they were incarcerated.

Mr. Chatman, Mr. Smith, and Mr. Woodard represent the hundreds of thousands of men and women who are currently serving prison sentences for crimes they did not commit, proof that the criminal justice system in America is in need of reform.

To discuss the prevalence of wrongful convictions and the role DNA technology will play in increasing the number of exonerations in Dallas County and around the country,

Congresswoman Eddie Bernice Johnson hosted a panel discussion of legislators, legal representatives and recently exonerated men at Cedar Valley College last weekend. "There is no greater failure in any part of democracy than the incarceration of the wrongfully accused," said Congresswoman Johnson.

"We all expect this system to work, but it doesn't. We expect that when a judge finds someone guilty he is, but that just isn't the case," said Dallas County Criminal District Court No. 4 Judge John Creuzot.

Saturday's panel discussion was more than an ideological think tank that only paid lip service, said Congressman John Conyers, the first African American to chair the U.S. judiciary commission. He said the discussion was meant to generate ideas that would translate into meaningful reform.

"If you're rich and guilty, you're likely to not go to prison, but if you're poor and innocent then your chances of going to prison increase significantly," said Mr. Conyers.

Wrongful convictions can occur for a host of reasons; however, the most common are due to eye witness misidentification, false forensic testimony, erroneous "snitch" testimonials, false or coerced criminal confessions and suppression of evidence.

"If you don't want a faulty conviction, it would help to not be broke, not to be black and to not have an incompetent lawyer," said Senator Rodney Ellis.

Unfortunately, many people will plead guilty for an offense because they don't have faith in the system, choosing to take the lesser prison sentence for a crime they didn't commit instead of placing their fate in the hands of jurors eager for a conviction, Ellis added.

DNA technology is proving to be an effective method for proving the innocence-or guilt-of men and women behind bars.

Thirty-three men have been exonerated in Texas since 1984, more than in any state in the nation. Due to its history of preserving records and evidence, Dallas County has freed more wrongfully incarcerated prisoners than any county in country.

At the helm of Dallas County's crusade to reincorporate justice into the criminal justice system is District Attorney Craig Watkins whose partnership with the Innocence Project of Texas has facilitated the freeing of men like Mr. Chatman.

"I'm just letting innocent people out of jail," said Mr. Watkins who has received more than an ounce of criticism for his justice reform measures. "I hope this hug-a-thug mentality catches on because I have no intention on changing my philosophy any time soon."

But DNA testing will be less than fully effective in a system that, according to some, is flawed to the core and structured to be against the minorities and the poor.

"I am not optimistic about Texas correcting its behavior on its own," said Innocence Project of Texas attorney Jeff Blackburn. "It's going to take federal mandates. Texas is a national embarrassment, and it should be until it cleans up its act."

Whereas the Innocence Project of Texas is a non-profit organization with limited funds and resources, every case cannot be investigated, resulting in innocent victims on both sides of the aisle. The community would be better served if the correct verdicts were handed down the first time, Mr. Blackburn says.

Meanwhile, Mr. Chatman and Mr. Smith say they are adjusting to life outside prison.

"I'm getting there. It's been a long process, but I know God has His hand on my life," said Mr. Chatman who was exonerated seven months ago after spending 27 years incarcerated for a sexual assault he didn't commit.

Despite still waiting for a pardon from Gov. Rick Perry and being unable to find employment because he his record has yet to be expunged, Mr. Chatman says he's glad to be a free man. However, he says his happiness is bated by the knowledge that there are still men and women behind bars who shouldn't be.

"Although we are here, we are not the only ones," Chatman said. "For every innocent person convicted, there is a guilty person walking the street committing crime. If that's all we want [a conviction], then this is a poor place to be. Incarceration might not be so bad."

Although Mr. Chatman showed restrained enthusiasm about being released from prison life, Mr. Woodard had no qualms about expressing his feelings.

"I'm excited to be out. I'm glad to be out," he said. "I try not to look back because who wants to relive a bad dream? I don't."

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Abolish capital punishment

Marge McMillen - East Amherst, N.Y.

Are you not amazed at the number of convicted prisoners who have been exonerated lately thanks to DNA?

It's obvious that we, as a society, have probably executed a number of innocent people. If that alone doesn't convince people that the death penalty should be scrapped, then maybe the cost might make more sense.

USA TODAY's article "Prisoners' death row time doubles" pointed out the high cost of keeping a prisoner on death row for years and years of waiting before an execution takes place, if ever.

Also, a California commission report said, "It costs about $90,000 more per year to house a death row inmate than other inmates."

Give all prisoners convicted of the death penalty life without parole. Let them live to regret the day they committed the crime that put them there, and if by chance society did get the wrong person, they still have the opportunity to prove their innocence.

At the same time, it would save you, the taxpayer, $90,000 per death row inmate per year. It's clearly a win-win situation.

Judge tosses out convictions for DNA exonoree

DALLAS -- A judge on Tuesday recommended clearing the record of a wrongly convicted man who spent 25 years in prison for a series of sex crimes he did not commit.

Steven Phillips responded by removing a tracking device that had been strapped to his ankle since December, when he was released from prison on parole. He held up the ankle monitor to a cheering courtroom packed with a dozen family members and at least six fellow exonorees, who collectively served more than 100 years of hard time until DNA tests proved their innocence.

"There was a lot of faith involved _ the faith of my mother, the faith of my friends and my own faith," said Phillips, 50. "It's a wonderful day."

The judge's recommendation comes about a year after DNA testing showed Phillips was innocent of a 1982 sexual assault and burglary. Additional DNA testing earlier this year linked the crimes to Sidney Alvin Goodyear, who died in prison in 1998.

Phillips will be officially exonerated once the state Court of Criminal Appeals upholds the judge's recommendation or Gov. Rick Perry grants a pardon.

Phillips, a soft-spoken grandfather, was occasionally interrupted by the electronic beeping of his court-ordered tracking device. He said he spent his time in prison writing letters to his mother and three children. Two were in court Tuesday, including Spc. Zachary Phillips, who wore his dress uniform and has served two tours in Iraq.

"I would wake up and say, I'm innocent ... ," Phillips said. "Sometimes that was all there was to hang onto. Unfortunately, it took 25 years to come into play."

Phillips is one of 19 men in Dallas County since 2001 proven innocent by DNA testing, a national high, according to the Innocence Project, a New York-based legal center that represented Phillips and specializes in wrongful convictions.

Phillips' case differs from the previous 18, complicated by his pleading guilty to nine similar sex crimes after two juries convicted him in separate trials for sexual assault and burglary. He received 30-year sentences in both cases and said he feared life sentences if he did not plead guilty to the other charges.

After a lengthy investigation, Dallas County prosecutors now believe Goodyear committed all 11 crimes that sent Phillips to prison.

"We were getting smashed in court," Phillips said of his decision to plead guilty. "The truth had already slipped away."

In recommending his convictions be overturned, Judge Lena Levario cited DNA testing showing Phillips was innocent and the state's failure to disclose evidence favorable to Phillips.

Dallas police were investigating a series of sex crimes in 1982 around the same time police in Kansas City were investigating a similar spree, said Barry Scheck, co-director of the Innocence Project. A man breaking into homes and raping women was also entering health spas, holding up women at gunpoint and forcing them to commit sexual acts.

Kansas City police correctly focused their investigation on Goodyear, and sent his photo to Dallas police, Scheck said. At least one victim in the Dallas crimes identified Goodyear. Other Dallas victims identified Phillips, who resembled Goodyear in that both were white men with receding hair lines.

At one point, an arrest warrant was issued in Dallas for Goodyear, but it was later dropped. That information was not disclosed to defense attorneys, Dallas County District Attorney Craig Watkins said.

But Dallas police ignored evidence that didn't point to Phillips, Scheck said. Scheck declined to identify the lead investigator on the case, whom Phillips said has since retired.

"There is this issue of tunnel vision on the part of police officers zeroing in on one suspect and not following the other leads," Scheck said.

Other evidence also connects Goodyear to the crimes. The gun, clothing, car and threats used in the Dallas cases are identical to those from crimes committed by Goodyear in other states, Scheck said.

Phillips said he was victimized by police, who targeted him as the suspect and could not be persuaded otherwise.

"Once they got started, I think they just could not turn off the machine," Phillips said.

Phillips first applied for DNA testing in 2001, a motion opposed by the Dallas County district attorney at the time. He reapplied last year, a motion unopposed by Watkins, who has been examining cases of wrongful conviction since taking office in January 2007.

Appeals court vacates Ohio death sentence

By Terry Kinney
Associated Press writer

POSTED: 06:28 p.m. EDT, Aug 04, 2008

CINCINNATI: A man who has been on death row nearly 23 years received ineffective legal counsel in the sentencing phase of his trial, a federal appeals court panel ruled today.

The three-judge panel of the 6th U.S. Circuit Court of Appeals ordered Robert Van Hook's death sentence thrown out unless the state conducts a new penalty phase within 180 days.

Van Hook, 48, was convicted of murdering a man he met in a gay bar. He never denied strangling and repeatedly stabbing David Self in Self's apartment in Cincinnati in 1985, but claimed temporary insanity.

''We think it is the correct decision under the circumstances, and we think there is even more evidence than they discussed that will support their decision,'' Keith Yeazel, the Columbus attorney who has represented Van Hook in his federal appeals, said of Monday's ruling.

Jim Gravelle, a spokesman for the Ohio attorney general's office, said options open to prosecutors include asking the panel to review its decision, asking the full court to review it or appealing to the U.S. Supreme Court. He said a decision could be made in about two weeks.

The same panel earlier ruled the murder conviction invalid, but the full appeals court, which consistently splits on death penalty issues, overturned that decision last year. This time, the panel reviewed aspects in the trial that it did not address a year ago.

Van Hook was convicted by a three-judge panel in Hamilton County Common Pleas Court.


CINCINNATI: A man who has been on death row nearly 23 years received ineffective legal counsel in the sentencing phase of his trial, a federal appeals court panel ruled today.

The three-judge panel of the 6th U.S. Circuit Court of Appeals ordered Robert Van Hook's death sentence thrown out unless the state conducts a new penalty phase within 180 days.

Van Hook, 48, was convicted of murdering a man he met in a gay bar. He never denied strangling and repeatedly stabbing David Self in Self's apartment in Cincinnati in 1985, but claimed temporary insanity.

''We think it is the correct decision under the circumstances, and we think there is even more evidence than they discussed that will support their decision,'' Keith Yeazel, the Columbus attorney who has represented Van Hook in his federal appeals, said of Monday's ruling.

Jim Gravelle, a spokesman for the Ohio attorney general's office, said options open to prosecutors include asking the panel to review its decision, asking the full court to review it or appealing to the U.S. Supreme Court. He said a decision could be made in about two weeks.

The same panel earlier ruled the murder conviction invalid, but the full appeals court, which consistently splits on death penalty issues, overturned that decision last year. This time, the panel reviewed aspects in the trial that it did not address a year ago.

Van Hook was convicted by a three-judge panel in Hamilton County Common Pleas Court.

Steven Phillips cleared in Dallas

Innocence Project client Steven Phillips was cleared today in Dallas more than a quarter-century after his wrongful conviction of a string of sex crimes when a judge recommended that his convictions be vacated. He became the 19th person cleared by DNA evidence in Dallas County, and his case will now go to the Court of Criminal Appeals, which could make his exoneration official.
“What a great day. Today is the day the Lord has made and I am grateful to him,” Mr. Phillips said.
Read the full story here. (Dallas Morning News, 08/05/08)

Read more about Phillips’ case here.

FORMER CONVICT, CLEARED BY DNA TEST, WALKS OUT OF DALLAS COURT A FREE MAN
By DIANE JENNINGS / The Dallas Morning News 08/05/08 djennings@dallasnews.com

Steven Charles Phillips walked into a Dallas courtroom this morning as a registered sex offender and 25-year veteran of the Texas prison system. He walked out with a grin and a chance at a new life after being completely cleared of a series of sex crimes in the 1980s.

“What a great day. Today is the day the Lord has made and I am grateful to him,” Mr. Phillips said.

Mr. Phillips, 50, was initially cleared of two charges of sexual assault and burglary of a building last fall after DNA evidence identified another man, who died in a Texas prison 10 years ago. Clearing his name of nine other charges took months because Mr. Phillips had pleaded guilty to them in an attempt to avoid a life sentence.

He is one of 18 men exonerated by DNA evidence in Dallas County since 2001.

Dallas County assistant district attorney Mike Ware, who heads the conviction integrity unit, said though DNA evidence was not available in every rape Mr. Phillips had been accused of, “I don’t have any doubt that he didn’t do these.”

Mr. Phillips fought his convictions for years but made little headway until the Innocence Project championed his cause. Attorney Barry Scheck said the Phillips case was “one of the worst cases of tunnel vision we’ve ever seen. Police seized on Steven Phillips as a suspect and refused to see mounting evidence that someone else actually committed these crimes.”

Mr. Phillips was identified by 10 different victims, many of whom had described the attackers striking blue eyes. Mr. Phillips’ eyes are green and his wife and two other relatives testified that he was with them when the crime occurred.

Mr. Ware was unwilling to characterize the original investigation as sloppy or intentionally misdirected, but said he hoped his office could “reach some sort of reasonable opinion as to what went wrong, and then, you know, begin to talk about what can be done to fix this (procedurally).”

The real perpetrator of the crimes has been identified as Sidney Alvin Goodyear, who died while serving a 45-year-sentence for a burglary of habitation with intent to commit sexual assault. Mr. Goodyear’s DNA was identified in the first two crimes. He also admitted to, and was convicted of, a series of offenses similar to those in Dallas before and after Mr. Phillips was arrested.

The crime sprees were distinctive – in addition to women who were raped after their homes were broken into, the perpetrator held groups of women at area health spas at gunpoint, forcing them to disrobe and commit sexual acts.