Access to DNA Testing

Despite the widespread acceptance of DNA testing as a powerful and reliable form of forensic evidence that can conclusively reveal guilt or innocence, many prisoners do not have the legal means to secure testing on evidence in their case.

Barriers to the truth
Forty-eight states have some form of law permitting inmates access to DNA testing. The other two states have no law granting such access. Click here to learn if your state allows access to testing.

Even in many of the states that grant access to DNA testing, the laws are limited in scope and substance. Motions for testing are often denied, even when a DNA test would undoubtedly confirm guilt or prove innocence and an inmate offers to pay for testing.

Federal incentives for granting access to DNA testing
Federal law, the 2004 Justice For All Act, grants access to DNA testing for federal inmates claiming innocence and also allocates various justice-related funding to any state that grants DNA testing access to inmates claiming innocence. To meet the requirements of the federal law, states should pass or strengthen laws granting access to DNA testing.

Clear and comprehensive laws can ensure justice
Some states have passed statutes that include barriers to testing that are insurmountable for most prisoners. These include restrictions against inmates who pled guilty or whose lawyers failed to request DNA testing at trial. In many cases, the questionable evidence used to convict a defendant at trial – like eyewitness identification or snitch testimony – is used by judges as grounds to deny a DNA test. These barriers keep innocent people from securing DNA tests that could prove their innocence.

An effective post-conviction DNA access statute must:

• Allow testing in cases where DNA testing can establish innocence – including cases where the inmate pled guilty


• Not include a “sunset provision” or expiration date for post-conviction DNA access


• Require states to preserve and account for biological evidence


• Eliminate procedural bars to DNA testing (allow people to appeal orders denying DNA testing; explicitly exempt DNA-related motions from the restrictions that govern other post-conviction cases; mandate full, fair and prompt proceedings once a motion seeking testing is filed)


• Avoid creating an unfunded mandate, and instead provide the money to back up the new statute
  Provide flexibility in where and how DNA testing is conducted

For the Innocence Project’s complete recommendations for post-conviction DNA access statutes, view our DNA access fact sheet or review model legislation on the issue.

Alaska, Welcome to the Club

From the blog PLAIN ERROR :

Seth — May 28, 2010 @ 2:30 PM

We forgot to document an important story that happened a few weeks ago. Alaska, then only one of three states left without a DNA access law which would allow for postconviction DNA testing, finally passed such a law. Out of all places, the Dallas Morning NEws Crime Blog covers it:

On May 14, Alaska Gov. Sean Parnell signed a new state law allowing prisoners to seek post-conviction DNA testing in cases where it can prove innocence. The groundbreaking new law will help Alaska prisoners fight injustice and leaves only Oklahoma and Massachusetts without such measures.

Passed this month with unanimous support in both houses of Alaska’s legislature, the critical reform came about thanks to years of work by a coalition of advocates including the Alaska Innocence Project and the Innocence Project. Among other provisions, it provides for state funding in cases where a judge decides that DNA testing could prove innocence and requires the state to preserve biological evidence from crime scenes as long as a defendant is in prison (or for 50 years in unsolved crime).

Congrats to the One-Man Innocence Project, Bill Oberly, director of the Alaska Innocence Project and the folks at The Innocence Project for making this a reality. Now what is the matter with Oklahoma and Massachusetts, the last holdouts?

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In Death-Penalty Cases, Innocence Has to Matter

By Adam Cohen

Hank Skinner, who is on death row in Texas, had a simple request. Before the state took his life, he wanted to test DNA evidence from the crime scene that could prove he was wrongly convicted. Texas prosecutors, whose love for the death penalty is legendary, refused.

Skinner then sued, claiming that federal civil rights laws gave him a constitutional right to do the testing. A federal appeals court ruled against him. (See TIME's death penalty covers.)

On Monday, the U.S. Supreme Court agreed to hear Skinner's case. That's good news. The Justices should use the case to expand the right to do DNA testing. But Skinner's case also gives the court a chance to confront a disturbing aspect of the nation's approach to the death penalty: the fact that the legal system does not always seem to care whether the people it executes are actually guilty.

There's no denying the crime Skinner, now 48, was convicted of in 1995 was a vicious one. Skinner's girlfriend and her two mentally challenged sons were stabbed, strangled and bludgeoned to death. But Skinner has always insisted he is innocent. The evidence against him is largely circumstantial, and his lawyers argue that the girlfriend's uncle, who they say had been harassing her that night and acted suspiciously after the crime, was likely the real murderer.

When students from Northwestern University's Medill Innocence Project investigated, they found evidence that raised serious questions about the prosecution's case. A toxicologist who testified for the defense said he had "never known a verdict of the jury to be so at variance with what I believe to be scientific fact."

It's not hard to believe Skinner could have been wrongly convicted. With the rise of DNA evidence, we now know that people are falsely convicted of crimes, including capital crimes, all too often. According to the Death Penalty Information Center, 138 people have been released from death row since 1973 with evidence of innocence. (Read "The Death Penalty: Racist, Classist and Unfair.")

Skinner has tried for 10 years to get access to key pieces of biological evidence — including his girlfriend's rape kit and two knives that may have been used in the killings. After prosecutors turned him down, Skinner sued, arguing that the refusal violated due process and constituted cruel and unusual punishment.(Comment on this story.)

The U.S. Court of Appeals for the Fifth Circuit, one of the most conservative courts in the country, rejected his claim in a brief decision. The judges focused on legal fine points without engaging the larger injustice of the situation — that Texas was seeking to execute a man while denying him access to evidence that could exonerate him.

Skinner's case never should have gotten this far. When someone facing the death penalty asks for relevant evidence for DNA testing, the state's answer should simply be yes. After all, the government's interest is not in seeing people put to death or in reflexively defending criminal convictions. It is in making sure that the guilty are punished and the innocent go free.

Prosecutors do not always see it that way. They defend all sorts of practices that call into question the reliability of the convictions they obtain. A while back, in an infamous case, Texas fought to execute an inmate even though his lawyer slept at his trial — repeatedly, and for long stretches of time. The Fifth Circuit ultimately ruled that the defendant was entitled to a new trial.

This callousness about death-penalty cases is not limited to states like Texas — or to prosecutors.

Supreme Court Justice Antonin Scalia set off a firestorm last summer when he wrote a dissent — joined by Justice Clarence Thomas — that the highest court in the land is not necessarily concerned with whether a person facing execution had actually committed the crime. The court "has never held," Justice Scalia wrote, "that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a ... court that he is 'actually innocent.'" Scalia was taking issue with the court's ruling that a lower court give Georgia death-row inmate Troy Davis a new hearing.

This idea that the Constitution allows innocent people to be put to death should be abhorrent to anyone who cares about justice. As Harvard Law School professor Alan Dershowitz pointed out, Justice Scalia seemed to be saying that if a man was convicted of murdering his wife and then showed up in court with the wife, who was still alive, seeking a new trial, it should not matter. As long as the man's conviction was procedurally proper, Justice Scalia apparently believes, he should still be executed. (See a photo gallery of Supreme Court Justice John Paul Stevens.)

The Supreme Court — which will take up Skinner's case in its next term — should rule that people accused of capital crimes can use federal civil rights laws to obtain the DNA evidence they need to prove their innocence.

And the Justices should use the case to underscore that we, as a nation, care whether people facing the death penalty have actually committed the crimes they were accused of.

— Cohen, a lawyer, is a former TIME writer and a former member of the New York Times editorial board

Wrongful Convictions Clinic client released from prison

May 07, 2010 | Duke Law News

Duke Law students and faculty welcomed the release of Shawn Giovanni Massey after 12 years of incarceration for crimes he didn’t commit.

Massey, a client of the Law School’s Wrongful Conviction Clinic, was released from the Maury Correctional Institution in Maury, N.C., on Thursday, after Mecklenburg County District Attorney Peter Gilchrist ’65 secured a Superior Court order vacating his conviction on multiple counts of second-degree kidnapping, as well as one count each of felonious breaking and entering and robbery with a dangerous weapon. Incarcerated since his May 1998 arrest for the crimes against a Charlotte woman and her two young children, Massey, 37, had two years left to serve on his sentence.

Clinic co-directors James Coleman and Theresa Newman picked Massey up from prison and took him to Charlotte where he was reunited with his jubilant family. Coleman, Newman, and Kim Kisabeth ’07, a fellow with Duke’s Center for Criminal Justice and Professional Responsibility, have worked with numerous other students, alumni, and friends for more than four years to build their argument that Massey was a victim of erroneous eyewitness identification.

Their case turned on the perpetrator’s hair style and weight, two key issues at Massey’s trial. On noting his resemblance to her attacker in a series of photos, the victim told the police that he lacked her attacker’s cornrow braids. She made the same observation on seeing him in person for the first time prior to the start of his trial, and also observed that he had a lighter complexion and weighed less than her attacker. These observations, and photo notations uncovered years later by Duke students investigating the case, were not passed on to Massey’s trial lawyer.

“We believe the evidence is clear that Shawn is innocent and this was an erroneous eyewitness identification,” said Coleman, the John S. Bradway Professor of the Practice of Law. “We think when the victim identified him at trial she did so in good faith, but we think she made a mistake. She confirmed to us that the person who committed the crime had cornrows. We are certain that Shawn did not have cornrows at the time — he couldn’t have had cornrows. And we presented evidence to the district attorney that supports that.” Coleman credits the victim for her willingness to meet with Kisabeth and others to discuss her identification of Massey during their investigation of the case.

For Kisabeth, who first worked on Massey’s case as a student enrolled in the Wrongful Convictions Clinic, it was a joy to call Massey in prison to tell him he would be released within hours. “He was thrilled,” she said. “This has been a long time coming and I think he was speechless. His initial reaction was excitement at getting to reunite with his grandmother and with his aunts and especially to be able to see his son, Dantrez, who is now a junior in high school.” It was equally thrilling to tell his aunt and grandmother to expect him home, she said.

“Both of them just started crying as soon as I gave them the news. [His aunt] started praying and thanking God for making this happen — and thanking Duke for making this happen.”

Three teams of Wrongful Convictions Clinic students worked on Massey’s case: Kisabeth and Aleksandra Kopec ’07; Susan Pourciau ’09 and Emily Sauter ’09; and Jessica Neiterman ’09 and Toby Coleman ’10. Last fall, Pourciau joined Kisabeth in Georgia to interview the victim about her identification of Massey as her attacker. As the case neared a resolution, the clinic also enlisted the assistance of Tommy Holderness and Adam Doerr ’06, a partner and associate, respectively, at Robinson Bradshaw & Hinson in Charlotte.

“These cases really do take a village,” said Jim Coleman. “This is an effort that a lot of people worked on. And I think all of them contributed something that was important to the result.”

Kisabeth recalled her first meeting with Massey, during her student days, as being her first lawyer-client interaction — and her first ever visit to a prison. “It was a great learning experience. And having that experience under Jim and Theresa’s leadership was wonderful,” she said. “Having been so invested in this case as a student, I was excited for the opportunity to come back as a fellow and build on the work that the other students had done. They did amazing work on this case.”

Taking in the reaction of Massey’s aunt and grandmother to news of his release offered another lesson, she added.

“I think it’s easy to lose sight of the fact that the legal system impacts people, and this is really about people.”

Wife’s outrage over wait for murder appeal

By Colin Adwent, 
Crime reporteThursday, 20 May, 2010
12:00 PM

CAPEL ST MARY: Outraged by the wait for the date of her husband’s appeal against his murder conviction, Simon’s Hall’s wife has written to the new Home Secretary.

Hall, 32, formerly of Hill House Road, Ipswich, was given a life sentence for stabbing to death 79-year-old Joan Albert at her home in Boydlands, Capel St Mary, on December 16, 2001.

However, Hall has always strenuously denied killing the pensioner.

In October last year the Criminal Cases Review Commission (CCRC) decided to refer Hall’s conviction to the Court of Appeal as it found new forensic evidence.

Despite a directions hearing in March this year, Hall and those fighting for his freedom are still awaiting a date for the appeal.

Now his wife Stephanie has sent a letter to Home Secretary Teresa May and the new Justice Secretary and Lord Chancellor Ken Clarke, along with Prime Minister David Cameron and Deputy Prime Minister Nick Clegg.

The letter briefly outlines the background to Hall’s case.

Mrs Hall, who lives in Ipswich, then comments: “Simon has served nearly eight years in prison for another man’s crime and has had to wait for over seven months, and is still waiting for a date for his appeal to be heard. It is absolutely outrageous that a public body has been allowed to stall and avoid accountability. I am therefore contacting you to ask that this matter be looked into at the earliest possible opportunity.”

The CCRC has said it believes its findings cast doubt on whether Hall is guilty of the murder.

They centre partly on fresh forensic analysis of fibre samples taken from the crime scene and other locations during the original police investigation.

There is also said to have been significant evidence relating to another burglary in Capel St Mary on the same night as Mrs Albert was murdered.

At the time it announced it was referring Hall’s case for appeal, a spokesman for the CCRC said: “The commission has decided to refer the case to the Court of Appeal because it believes that new forensic evidence is capable of undermining key forensic evidence presented at the trial and therefore raises the real possibility that the court would quash the murder conviction.”

Hall was convicted at Norwich Crown Court in February, 2003. He appealed against his conviction, but it was dismissed in April 2004.

Hall then applied to the CCRC for a review in June 2005.

Court takes prosecutorial immunity case (March 22, 2010)

The Supreme Court has agreed to decide whether a district attorney's office can be held liable for the actions of prosecutors in the case of a former death row inmate who accused them of withholding evidence to help convict him of murder.

The case concerns John Thompson, who was convicted of attempted armed robbery in 1985, shortly before he was scheduled to stand trial in an unrelated murder case. He did not testify during the murder trial. Prosecutors used Thompson's conviction in the robbery case to help secure the death penalty in the murder case.

In 1999, an investigator working on Thompson's case discovered a crime lab report that prosecutors had not turned over, indicating Thompson's blood type did not match the perpetrator in the attempted robbery.

A state appeals court set aside Thompson's murder conviction in 2002 after deciding he'd been unconstitutionally deprived of his right to testify during the murder trial. That cleared the way for the new trial in which Thompson was acquitted.

After Thompson's acquittal, he sued the district attorney's office that was led at the time of his 1985 conviction by Harry Connick, alleging that evidence had been wrongfully withheld.

The current Orleans Parish District Attorney, Leon Cannizzaro, has said the judgment is roughly equal to his office's annual operating budget and would have "devastating" financial consequences.

On March 22, the U.S. Supreme Court accepted the case for review. The justices will hear oral arguments in the fall.

Question presented: Does imposing liability for failing to train a prosecutor on a district attorney’s office for a single Brady violation contravene rigorous culpability and causation standards?

Source(otd.oyez.org)

Thirteen police officers accused of framing three men over Cardiff prostitute murder

4/03/2009

Thirteen police officers were yesterday accused of framing three men wrongly jailed for killing a prostitute 21 years ago.

They are alleged to have fabricated evidence in the case of Lynette White, 21, who was stabbed 70 times.

Her boyfriend and two friends - dubbed the Cardiff Three - were originally jailed for life for the killing but freed two years later on appeal.

The real murderer Jeffrey Gafoor was eventually convicted six years ago through DNA evidence.

This sparked an inquiry into the detective work in Lynette's case.

Now the CPS says there is enough evidence to prosecute 13 officers - three serving and 10 retired - involved in the original investigation.

They are to be charged with conspiracy to pervert justice. Two civilian workers face perjury raps.

Tom Davies, the Independent Police Complaints Commission boss in Wales, said yesterday: "It is important for public confidence in the police and the complaints process that the full story of this re-investigation is told.

"The trial of these people will enable that to happen."

Lynette was murdered in a flat above a betting shop in Cardiff in 1988. Stephen Miller, Yusef Abdullahi and Anthony Paris were jailed for murder but released in 1990 after their convictions were quashed by the Court of Appeal.

Last October, three witnesses were jailed for perjury after admitting lying under police pressure at their trial.

The CPS decision to charge 15 officers and civilian staff over a miscarriage of justice is unprecedented in its scale.

Few officers have ever been tried over claims they fabricated evidence.

The accused have been summonsed to appear at City of Westminster magistrates court next month.

The maximum sentence for conspiracy to pervert justice is life. The longest for perjury is seven years.

DUE IN COURT

The 13 summonsed with conspiracy to pervert the course of justice are: PC John Howard Murray, Det Sgt Paul Stephen, Det Con Paul Jennings, Wayne Pugh (now a civilian police worker) and former officers Graham Mouncher, Richard Powell, Thomas Page, Michael Daniels, John Brian Gillard, Peter Greenwood, John Seaford, Rachel O'Brien and Stephen Hicks.

Civilians Violet Perriam and Ian Massey are summonsed with two counts of perjury in relation to the evidence they gave at the murder trials.

"Last chance to prove my innocence," Skinner tells Medill student-reporters

By Gaby Fleischman and Emily Glazer
May 2, 2010

LIVINGSTON, TEXAS – For the past five weeks, Henry “Hank” Skinner wakes up hoping to hear that the Supreme Court has taken his case, and given him a chance to leave Texas Death Row a free man.

On Monday, the Supreme Court is expected to make its decision. Since granting Skinner a stay of execution on March 24, there have been three delays.

“Every Monday morning I come out on pins and needles, about to have a stroke,” he said. “In a way you're relieved, but then I’ve gotta live the rest of this week wondering what’s gonna happen now.”

Skinner, who was convicted of a triple homicide in 1995, has been on Death Row for 15 years. Less than an hour before his scheduled execution, he was told the high court had spared his life – at least for the time being.

If the Supreme Court takes the case, it could lead to DNA testing of all the crime scene evidence. Much of the physical evidence in Skinner’s case has yet to be tested and could conclusively prove his guilt or innocence.

“I was trying to get the DNA tested because I really feel that’s my last chance to prove my innocence,” Skinner said in an interview Wednesday afternoon.

Skinner has always maintained his innocence. He was sentenced to death for the brutal murders of his live-in girlfriend, Twila Busby, and her two sons, Randy Busby and Elwin Caler. Skinner does not deny being present at the time of the murders, but says he was passed out from a combination of codeine, alcohol and anti-anxiety medication. According to toxicology reports, Skinner would have been in a near-comatose state. He was found several hours later at a neighbor's house, his clothing stained with blood from two of the victims. All of his appeals have been denied, leading him to ask the Supreme Court to review his case.

After the Court granted the stay of execution, Skinner and his legal team said they thought they would hear an update the following Monday, March 29. But Monday came and went without word from the nine justices.

Waiting for the Supreme Court decision has not been easy for Skinner. He compared the experience to a game of Russian Roulette.

“The first 20 or 30 times it would scare you, but after 20 years when someone does that to you…you’d just become so unaffected by it,” he said.

Doug Robinson, one of Skinner’s appellate lawyers, has also anxiously awaited the decision.

“The last two Mondays I sat at my computer just hitting the refresh button on the Supreme Court website waiting for that order list to come up,” he said.

Robinson said he does not think the decision will be a “plain old ordinary” denial of a writ of certiorari, the most common way the Court is asked to hear a case. (Last term, the justices denied 98% of all such writs.)

There are many possibilities, but Robinson said it’s probable there could be a denial of certiorari with a dissent, which means the Supreme Court would not take the case over the written objection of one or more of the justices.

Another possibility is a summary judgment where the Court orders a hearing on the DNA evidence in the federal district court. Down the road, this could turn into a suit based on federal civil rights law, Robinson hopes.

“If we’re successful, it would provide a means by which a lot of other prisoners in Hank’s situation could get DNA testing,” he said.

Skinner’s legal team has been unsuccessfully pushing for complete DNA testing for the last decade.

The current Gray County District Attorney, Lynn Switzer, has repeatedly refused to release the biological evidence for DNA testing.

“It's already been handled,” Gray County District Attorney Lynn Switzer told the Texas Tribune on March 30. Switzer is the third district attorney in Pampa involved with the Skinner case, but she is the one being sued to release the DNA evidence.

“He doesn't need to keep trying it over and over and over again. It's already been handled.”

In legal documents opposing the DNA testing, lawyers for Switzer have contended there was sufficient evidence to convict Skinner without additional DNA testing and that Skinner waived his rights to new tests when he didn't request them before his trial.

Harold Comer, Skinner’s attorney at the time, did not respond to repeated interview requests.

Some evidence that was tested did not match Skinner, including a head hair found in Twila’s hand and blood found on the sidewalk in front of the home. The majority of the evidence found at the crime scene, including the murder weapons, the rape kit, skin cells under Twila’s fingernails, and a windbreaker found next to her body, have still not been tested. The blood-stained windbreaker was similar to one worn by an alternative suspect in the case -- a man who witnesses saw stalking Twila shortly before the murders.

Skinner said the untested evidence could prove his innocence and unveil the imperfections of the justice system.

“Citizens think in terms of us and them. If you’re one of us, you’re one of the good guys and if you’re one of them, you’re one of bad guys,” Skinner said. “So this evidence…proves that I’m not one of them, I’m still one of us. And if it could happen to me, it could happen to you, your sister, your brother, your son, your daddy.”

Skinner’s two daughters, Kristen Keaton and Natalie Skinner, said they pray the Supreme Court will make the “right” decision. Kristen and Natalie were re-united with their father the day before his scheduled execution.

“I wanted the glass out of the way," Natalie said. "I wanted to be home across the kitchen table or anywhere but where we were…the setting was not proper for the feelings."

Despite the circumstances, just seeing his daughters was life changing for Skinner.

“When my daughters came back into my life, I had a renewed reason to live because of them,” he said.

But for now, like Skinner, his daughters can only wait.

“I’m scared for him,” Kristen said. “I’m scared for him more if he doesn’t get justice, if he doesn’t get a fair shake at this.”

Robinson, Skinner's attorney, said when you’re dealing with a person’s life all the evidence should be tested.

“It should not be the law in this country that it’s possible to execute someone when there is troubling evidence as to their guilt or innocence, and there’s still some uncertainty about it,” he said.

But for now, Skinner’s fate is out of his hands and with the Supreme Court’s decision on Monday.

“I gotta deal with whatever happens and I don’t know what’s gonna happen,” he said. “You just have to try and pull yourself together with every fiber you got and hold on to your sanity.”

Rachel Cicurel and Alexandra Johnson contributed to this article.


Editor's note: The Supreme Court on Monday, May 3 once again failed to announce a decision in the Skinner case. No reason was given for the delay, the fourth time the justices have met to consider the case without issuing a ruling. The next date the justices will conference is Thursday, May 13, with announcements of their decisions expected on Monday, May 17.

Frank Sterling and the Next Exoneree

On April 28, 2010, Innocence Project client Frank Sterling was exonerated in Rochesterm New York. He served 18 years in prison for a murder he didn’t commit before DNA testing proved his innocence and implicated another man as the real perpetrator.

The Innocence Project is committed to helping Sterling and other clients adjust to life after exoneration, and we’re hard at work on freeing other innocent prisoners across the United States.

Can you donate $25 today to help us answer cries for help from prisons across the United States? Click here to donate online today.

Learn more about Frank Sterling’s case here.

(Photo: Frank Sterling and Innocence Project Staff Attorney Vanessa Potkin)

Source(www.innocenceproject.org)

A PLEA FOR JUSTICE: The Timothy Cole Story

During the closing months of 1984 and extending through March 25, 1985, a number of violent rapes occurred around Texas Tech in Lubbock, Texas. As a result, females, both students and employees of the university, along with those who worked in the general area, were caught up in a wave of terror in the persona of the Tech rapist.

A PLEA FOR JUSTICE: The Timothy Cole Story recounts how a 24-year-old black student, an army veteran also attending Tech, became entangled in a web of deceit that branded him as the assailant.

After conducting a brief investigation that yielded no physical evidence whatsoever to link Tim Cole with a recent rape, overly-aggressive police detectives concluded nonetheless that he committed the aggravated sexual assault on a fellow student whom he had never actually seen until the first day of his trial.

Before he passed away while serving the thirteenth of a twenty-five year sentence, Tim Cole expressed a fervent desire to be vindicated, exonerated, and pardoned, and in an effort to honor his last wishes, a devoted mother and family, supported and represented by the Innocence Project of Texas, carried the fight through the court system, both houses of the Lone Star State’s legislature, to the Board of Pardons and Paroles, and finally to the governor.

This is a gut-wrenching story of courage, devotion, conviction, honor, a family that never compromised its principles—and at the end of a struggle that lasted almost twenty-five years, the manner in which the Lone Star State conducts criminal investigations and treats its exonerees is rocked to the very core.

Read more: FOREWORD by Jeff Blackburn, founder and chief counsel, the Innocence Project of Texas

Source(www.timothybriancole.com)