DNA Evidence: Freeing the Innocent
Recent exoneration cases using DNA evidence offer a
"learning moment" to make needed criminal justice reforms.
by Dianne Molvig
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Christopher Ochoa of El Paso, Texas. Ochoa served 12 years in a Texas
prison for a rape/murder he didn't commit.
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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
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Law School professors John Pray (left) and Keith Findley review
applications requesting legal assistance from the Wisconsin Innocence
Project.
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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.
Wisconsin Lawyer
