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    Wisconsin Lawyer
    April 01, 2001

    Wisconsin Lawyer April 2001: DNA Evidence: Freeing the Innocent

    DNA Evidence: Freeing the Innocent

    Recent exoneration cases using DNA evidence offer a "learning moment" to make needed criminal justice reforms.

    by Dianne Molvig

    Christopher Ochoa

    Christopher Ochoa of El Paso, Texas. Ochoa served 12 years in a Texas prison for a rape/murder he didn't commit.

    The passengers on the Jan. 17 flight to El Paso, Texas, were the usual mix of business travelers, vacationers, and grandparents eagerly anticipating visits to grandchildren. For one person on board, however, this was the trip of a lifetime. Christopher Ochoa, 34, was heading home, at last a free man after serving 12 years of a life sentence in a Texas prison for a rape/murder he didn't commit.

    Flying with Ochoa, besides family members, were two of the people who'd won his freedom: John Pray, U.W. Law School associate professor and codirector of the Wisconsin Innocence Project, and law student Cory Tennison. Others who worked on the case were Keith Findley, U.W. Law School associate professor and Innocence Project codirector, and law students Wendy Seffrood and Brian Van Denzen.

    During the flight, true to his typically "irrepressible nature," as his professors describe it, Tennison asked the attendants for permission to use the plane's public address system. After he'd relayed the story of Ochoa's prison release, the cabin erupted into applause. Fellow passengers came up to wish Ochoa well, and one man handed him a $100 bill. Soon an air-sickness bag was circulating up and down the aisles, returning to Ochoa filled with an additional $400 to help him start a new life.

    "It was incredible," Pray says, thinking back on that episode a month later. "People do come through. They really do."

    But if Chris Ochoa's case is to truly mean anything, Pray and Findley point out, the criminal justice system also must come through, in terms of self-examination. Otherwise, stories like Ochoa's amount to nothing more than heroic tales of right overpowering wrong - the stuff of countless movies, novels, and superhero comic books.

    Self-examination entails searching for answers to troubling questions: What went wrong in the Ochoa case? Why and how did the justice system fail Ochoa and the 81 others, so far, who have been freed from life imprisonment or death row - some only days away from execution - after being exonerated by DNA evidence? What do these episodes tell us about needed reforms in our criminal justice system?

    "Right now we have a 'learning moment,' as Actual Innocence coauthors Barry Scheck and Peter Neufeld like to call it," Findley points out. "The window has been opened by these DNA cases, and it may not stay open. We now have the ability to do DNA testing in cases when it never was done, or when an older (and less precise) form of testing was done, to prove the innocence of people who have been convicted. That also gives us a body of cases from which to study and learn. It's important that we seize that opportunity, while we have it, and that we do, in fact, learn from our mistakes."

    Of Mistakes and Miracles

    The errors and misjudgments in Ochoa's case seem painfully obvious, with the advantage of hindsight. It began when Ochoa was brought in for questioning about the rape and murder of Nancy DePriest, an Austin, Texas, restaurant manager. After hours of aggressive interrogation, punctuated by desk-pounding and chair-throwing, the officer convinced Ochoa he'd be better off confessing to the crime and copping a prison sentence rather than facing death by injection. Ochoa was scared. He signed the confession, without an attorney's counsel, because he felt it was the only way to save his life. His plea bargain required that he testify against roommate Richard Danziger, who subsequently also was convicted of the crime. (Danziger should be released from prison soon, but will be institutionalized for the rest of his life due to brain damage suffered in a beating by prison inmates, who mistook him for someone else.)

    The system failed again in 1996, when Ochoa had already been in prison for eight years. At that time, another Texas inmate, Achim Marino, wrote a letter confessing to DePriest's rape and murder. He told authorities they'd find evidence from the crime - the restaurant bankbag, restaurant keys, and handcuffs used on DePriest - in his mother's closet. And they'd find the murder weapon in the custody of the El Paso police. They'd confiscated Marino's gun after he'd committed other rapes and burglaries. Austin police retrieved the gun, and ballistics tests verified it was the one that killed DePriest.

    Internal police department squabbles ensued about what to do with the new evidence. Some wanted to dig deeper to try to clear Ochoa; others clung to believing in Ochoa's guilt, figuring Marino was just a third participant in the crime.

    Meanwhile, Ochoa remained in prison. In June 1999, he wrote to the Wisconsin Innocence Project asking for help. Would they find out if there was anything to the rumors he'd heard that someone (whose identity he didn't know) had confessed to the murder? And would they try to locate DNA evidence still in existence that would prove his innocence?

    Eventually, Pray, Findley, and their law students were able to accomplish both tasks, thanks to 18 months of persistent effort - and a few miracles. Chief among the latter was the fact that the DNA evidence was still intact. DNA testing had been done after the crime, back in 1988, when the methodology was relatively primitive. Results had shown that Ochoa could have been the perpetrator - as well as 25 percent of the rest of the Latino population.

    By sheer luck, the police department still had the original DNA evidence in storage, even after 11 years, as did a private California laboratory that also had conducted DNA tests back in 1988. "In so many of these cases, we find out the DNA evidence was lost or destroyed years ago," Pray reports. "One of the saddest things we have to do is to write back to people and say, 'You may well be innocent, but we're never going to prove it because the DNA evidence is gone.'"

    No standard practices exist for preserving DNA evidence within the same state, much less across the country. "We see wide variation within Wisconsin, from one community to the next," Findley points out. "We've had cases when the DNA evidence was still around 15 years later. In other cases, the evidence was destroyed even before the conclusion of the direct appeal."

    Another stroke of good fortune was encountering a cooperative district attorney in Texas, which, Findley notes, "is not a uniform experience. Lots of prosecutors resist and don't want to release the evidence." They met no such fight in Austin, Texas. In fact, the district attorney's office agreed to pay for the new tests. With today's more sophisticated techniques, those tests proved Ochoa's innocence. And tests on Marino's DNA confirmed he was the guilty man.

    At one point early on, however, Pray and Findley almost wrote off Ochoa. One of their first steps after accepting his case was to call the original defense attorney, who told Pray he remembered the case well. Trying to prove Ochoa's innocence was a waste of time, he said, as Ochoa's fingerprints had been found on the murder weapon, and two eyewitnesses had spotted Ochoa and Danziger outside the restaurant that night. "I figured the case was over," Pray says. "I wrote to Chris asking him why he hadn't told us about the fingerprints and the witnesses."

    The lawyer was wrong, Ochoa responded, begging for Pray and Findley to believe him and check further. Indeed, they soon learned nothing the defense attorney had told them was true, and they proceeded with their investigation. "We so easily could have closed the file," Findley says. "That's why this is such a scary proposition. We could have ignored an innocent man in prison."

    Triage

    John Pray (left) and Keith Findley

    Law School professors John Pray (left) and Keith Findley review applications requesting legal assistance from the Wisconsin Innocence Project.

    Ochoa is the first prisoner exonerated by the Wisconsin Innocence Project team. Findley and Pray launched the project in September 1998, after hearing about the work of Barry Scheck and Peter Neufeld, organizers of the Innocence Project at the Benjamin N. Cardozo School of Law in New York City, the first of its kind in the country.

    Starting a similar project in Wisconsin seemed a natural for the U.W. Law School, which has had a strong "law in action" tradition since the 1960s through its clinical education program. With other projects already in place providing other kinds of legal services to prisoners, an Innocence Project was a logical next step. Findley and Pray's proposal met wholehearted support from administrators at the law school, which funds the project jointly with the state Department of Corrections. The project focuses mainly on Wisconsin cases, but also considers cases from other states.

    Currently, 20 students participate in the project's casework and classwork components. Demand from students who want to enroll has been beyond what Findley and Pray could supervise, so they must limit the number. They acknowledge that some students may merely be drawn to the glamour, but all quickly learn that freeing innocent people entails lots of hard work, frustration, and even drudgery.

    When Pray and Findley returned to their offices from Texas after Ochoa's release, they each found some 200 emails awaiting their attention. Some were duplicates; many weren't.

    Most were pleas from people seeking help for imprisoned relatives or friends. In addition, each day brings numerous phone calls and anywhere from three to 20 requests for help in the mail. News of Ochoa's release, plus interviews on "Good Morning America," "Sally Jesse Raphael," and Wisconsin Public Radio have fueled the demand for the Innocence Project's assistance.

    To cope with the massive inflow of requests, "we have to do triage," Findley says. Even so, they're troubled knowing they may well turn away cases they shouldn't. "Or, in other cases, if we'd persisted to do enough digging, we could have proved someone innocent. That's even worse," Pray adds. Currently, about 400 case files await screening by Findley and Pray, and roughly 20 other cases are in progress.

    Of the active cases, one of the most compelling is that of Maurice Carter, a Benton Harbor, Mich., man who's been in prison for 25 years for shooting an off-duty police officer at a record shop. Unlike the Ochoa case, no DNA samples were left at the scene of this crime - as is typical in the vast majority of serious felonies. Findley notes, for example, that of the 94 death row inmates exonerated of their crimes over the last 25 years, only about 10 percent could be cleared by DNA tests. Yet, with the wrongful convictions already uncovered by DNA evidence, odds are that a sizeable fraction of those convicted in non-DNA cases are innocent as well.

    That's why Findley and Pray remain open to taking both DNA and non-DNA cases, such as the Carter case, which they've been working on since the early days of the Innocence Project. "We've chosen to spend hundreds of hours on this case," Pray explains, "because anyone who looks at it can't believe this guy ever got convicted. It really stinks."

    Uphill Battles

    Carter's conviction relied upon eyewitness testimony of the officer, who had split seconds to view the gunman while rolling on the floor trying to dodge bullets; of the officer's wife who, like her husband, admitted she'd paid no attention to the man before he started shooting; and of a legal secretary who caught a glimpse of the shooter from across the street as he ran off.

    All three failed to pick out Carter from among the mugshots shown them after the shooting. Then, two years later, another man facing life for a heroin charge fingered Carter as the shooter in exchange for reduced charges on his own offense. Carter's picture subsequently ran in the newspaper as a suspect. It was then, two years after the shooting, that the officer, wife, and legal secretary identified Carter. But to this day, the record store clerk who'd been waiting on the gunman as a customer for several minutes before he opened fire - and got a better look at him than anyone - remains adamant Carter is the wrong guy, as does another in-store witness. Add to that the fact that the shooter was left-handed, while Carter is right-handed. And that the jailhouse informant later recanted his story about Carter and was convicted of perjury for the false accusation. Oddly, the target of the perjury, Carter, remains in prison.

    "We think there's a strong case (to prove Carter's innocence)," Findley says. "But we recognize that without DNA evidence, trying to reverse a conviction is an uphill battle."

    The same can be said, however, in DNA cases, although the slope may be slightly less steep. Resistance to postconviction scrutiny in DNA cases remains strong. Police and prosecutors refuse to release evidence. Judges refuse to order DNA tests to prove innocence years after conviction. Even with tests confirming innocence, governors tiptoe around granting pardons because they fear being labeled as soft on crime. And when DNA tests are done, arguments often arise about who should cover the costs, which can run to several thousand dollars per test.

    In their Innocence Project work, Pray and Findley frequently hear colleagues state, "it can't happen here." The lawyers are better in Wisconsin, people say. Indigent defense is better. Certainly, Wisconsin is known for its strong public defender program, in contrast to Texas, for example, which has no program. "But the truth is," Findley points out, "police interrogate much the same way everywhere. Eyewitnesses make the same mistakes no matter where they are. The same things that happen in other places can happen here."

    Others contend that cases such as Chris Ochoa's prove that the system did work. After all, the innocent were set free. "That's a common refrain," Pray notes. "But in Ochoa's case, Marino came forward and confessed. That wasn't the system; that was a miracle. Look at Anthony Porter, who was only hours from being executed before journalism students at Northwestern University found the real killer. That wasn't the system. It was just luck that these journalism students decided to stick their noses into the case. Or Randall Adams. He got out because a guy made a movie (The Thin Blue Line) about his life. These incidents happen again and again. So I disagree with that line, 'the system worked.'"

    Barriers

    As a criminal defense attorney in New York City for more than 20 years, Peter Neufeld counts himself among those who once believed in the relative infallibility of the criminal justice system. "Those of us toiling in the trenches - the defense attorneys, prosecutors, and judges - assume we get it right 99.9 percent of the time," he says. "But I've learned that's not the case at all. The system is much more vulnerable to error."

    Neufeld has uncovered many of those errors in his work at the Innocence Project at Benjamin N. Cardozo Law School, which he cofounded in 1992 with Barry Scheck. Their work has freed 42 wrongly convicted people as of late February. Unlike their Wisconsin counterparts, Neufeld and Scheck take only DNA cases.

    But like Findley and Pray, the New York duo have encountered a range of obstacles to freeing wrongly convicted inmates. Take, for instance, their most recent success story, Earl Washington Jr., who walked out of a Virginia prison on Feb. 13 after serving 18 years - nine-and-a-half of them on death row - for a 1982 rape/murder he didn't commit. DNA tests performed in 1994 proved Washington's innocence. But it took seven more years to win a governor's pardon.

    One of the brick walls in Washington's case was the Virginia statute of limitations. "More than 30 states have fixed statutes of limitations, after which you cannot go back into court with new evidence," Neufeld says. The time periods vary immensely from state to state. In Virginia, it's only 21 days - long expired by the time DNA testing technology evolved sufficiently in the 1990s to help Washington. That's why his case had to be decided by the governor rather than the court.

    But at least in Washington's case the original DNA evidence from the crime scene was still intact. Usually it's not. "In 75 percent of the cases we initially accept," Neufeld claims, "we learn that the evidence has either been lost or destroyed in the intervening years. So we can't do anything." In his and Scheck's work on cases around the country, they find a hodgepodge of policies on retaining DNA evidence, or simply no policies at all. "In some places they destroy the evidence shortly after conviction," he notes. "Some keep it for years. And some just forget to throw it out. Sometimes our students just keep digging and find the DNA evidence, even though the prosecutors, police, and clerks all claimed it was lost or destroyed."

    Such impediments to DNA testing to determine postconviction innocence are especially troubling, Neufeld adds, in light of statistics from the Federal Bureau of Investigation, which began doing DNA tests in 1989. In its first decade, FBI DNA testing excluded 25 percent of the primary suspects in rapes and homicides before they were brought to trial.

    That's not to say that 25 percent of those sent to prison in the days before DNA testing, or who for some reason have been denied DNA tests since, are innocent. But it hints that the proportion may be sizeable. "We may have thousands of innocent people in prison," Neufeld says.

    Remedies

    Various legislative and procedural changes could help correct past injustices and prevent new ones (see sidebar, "A Sampling of Proposed Reforms"). But underlying any reforms must be a shift in approach. "We need to bring a scientific methodology, with the kinds of quality controls that exist in science, into the criminal justice system," Neufeld says. "The law has always been anything but scientific. We could do a lot better."

    Scientific methodology goes beyond DNA testing. For instance, since the 1970s, psychological research has been poking holes in the reliability of eyewitness testimony. Still, the criminal justice system continues to highly value such testimony. The more certain a witness is, the more reliable his or her testimony is deemed to be. But numerous studies show no correlation between eyewitness confidence and testimony validity. Also, crime laboratories, like medical laboratories, should have to meet regulatory and licensing requirements to weed out those doing shoddy work. And when a wrongful conviction is uncovered, a sort of legal "autopsy" should delve into the causes.

    "I'm on the board of a New York medical center," Neufeld points out. "If we have an unexpected death, we do a serious peer review to find out what went wrong. It's not to point the finger, but to improve the system and reduce the likelihood of it happening again. We do nothing like that in criminal justice. Yet every time an innocent person gets convicted, it's no different from an operation going awry in the operating room."

    DNA testing has proven to be a powerful tool for detecting cases when justice went awry. It gave Chris Ochoa, Earl Washington, and 80 others their lives back. But DNA testing isn't the real issue, Neufeld contends.

    "DNA testing simply answers the question of how people who were wrongly convicted got out of prison," he notes. "The real question is how did these innocent people get convicted, and in some cases sentenced to death? Unless we confront the causes and reform them, we're doomed to repeat the same mistakes, with or without DNA. And we'll have many innocent people in prison for decades to come."

    Dianne Molvig operates Access Information Service, a Madison research, writing, and editing service. She is a frequent contributor to area publications.


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