The Columbus Dispatch (Ohio), Home Final Edition
SECTION: NEWS; Test of Convictions; Pg. 01A
BYLINE: Geoff Dutton and Mike Wagner, THE COLUMBUS DISPATCH, gdutton@dispatch.com
Columbus, OH
Other states made similar changes to protect innocent
A new bipartisan coalition focused on preventing wrongful convictions is pushing for changes in how crimes are investigated and prosecuted in Ohio.
DNA tests nationally have cleared more than 200 people sent to prison for crimes they didn’t commit, including six men convicted of rape or murder in Ohio.
Gov. Ted Strickland has called for sweeping changes to catch errors and prevent mistakes, citing a yearlong Dispatch investigation published in January that found deep flaws in Ohio’s system for testing DNA to uncover wrongful convictions.
The Ohio Innocence Project director, the Ohio public defender and a former attorney general delivered a 42-page proposal last week to Strickland. It marks the beginning of what likely will be a lengthy, wide-ranging debate among lawmakers.
“We need to establish additional safeguards to make sure this stuff doesn’t happen here,” said former Attorney General Jim Petro, a Republican who while in office pushed for DNA testing that freed a man wrongfully convicted of rape and murder.
Ohio Public Defender Tim Young agreed. “Make a list of the worst things that can happen in life, and being locked in prison for a crime you didn’t do is near the top of that list. We have a fundamental responsibility, especially with DNA evidence, to make sure justice was done.”
The coalition’s proposal suggests establishing statewide standards for preserving evidence, revamping police lineups, requiring police to record interrogations, creating more oversight for government crime labs and assembling a panel of experts to assess problems in Ohio.
Here’s how other states have grappled with such changes:
Preserving evidence
Wisconsin decided it wasn’t enough to adopt an inmate DNA testing law in 2001.
Lawmakers also required police, prosecutors, courts and crime labs to keep biological evidence until a convict is out of prison and released from parole.
State Rep. Cory Mason noted that the testing law “doesn’t mean much if there’s no evidence to test.”
Wisconsin was among the first states to pass a law to preserve evidence.
Now, 22 states have similar rules. The laws focus on blood, semen, hair, fingernails, teeth and bones — human cells, in various forms, embedded with a person’s unique genetic “fingerprint.”
Experts think that just as a DNA identification now can be obtained from samples that were too small five years ago, biological evidence unusable today could yield results in the future as technology improves.
Wisconsin prosecutors supported the preservation law in exchange for defense lawyers’ agreement to extend the statute of limitations for rape. That meant DNA testing on old evidence could free the innocent or convict the guilty years after a crime.
“There was very little resistance,” said Keith Findley, co-director of the Wisconsin Innocence Project.
The preservation law later was tweaked to clear up confusion about what, for example, authorities should do about a car seat or other large pieces of evidence with blood or semen stains.
The answer: Cut out and save the stained portion of fabric, and throw away the rest.
There still are costs and logistical challenges. But a state law eliminates guesswork for law-enforcement officials who otherwise are stuck deciding evidence disposal case by case.
“I don’t care if I have to keep it 20 years — just tell me,” said Joseph Latta of the International Association for Property and Evidence.
Identifying suspects
The background on the murder suspect’s mug shot was a slightly different color than the six others picked for a photo lineup by police homicide detective Carl Riley.
The witness identified a man who eventually was convicted of murder, but defense attorneys accused Riley of biasing the witness.
That was in the old days, as Riley calls it, before New Jersey implemented guidelines in 2001 that prevent law-enforcement agencies from using traditional suspect lineups.
“A lot of us, including me, were afraid of the changes and thought we were going to get hardly any identifications,” said Riley, a detective for the Union County prosecutor’s office in Elizabeth, N.J. “But the way we handle witnesses now is far better for everyone. It eliminates the accusations that we tainted witnesses.”
New Jersey attorney general’s office guidelines require officers to show witnesses one suspect photo at a time. Studies have shown that witnesses have a tendency to compare photos when they are shown simultaneously, a practice that has led to errors.
The guidelines also require a system in which neither the officer handling the photo lineup nor the witness knows which person is the suspect.
Witness misidentification is the greatest cause of wrongful convictions nationally. It’s a factor in about 75 percent of convictions overturned through DNA testing. Seven states have passed witness reforms in recent years.
Lori Linskey, senior counsel for the New Jersey Division of Criminal Justice, said the changes have not reduced the number of identifications in criminal cases.
“It’s only made our prosecutions stronger, and we have had very few complaints,” she said. “I would encourage prosecutors to embrace these reforms.”
Recording interrogations
Neil Nelson was a St. Paul homicide detective when the ruling came down from the Minnesota Supreme Court.
The justices decreed in 1994 that an audio or video recorder must start rolling as soon as officers read suspects their rights.
“I remember all the homicide cops being unbelievably upset with this decision,” Nelson said.
They resented the edict. They worried about technological glitches. They feared criminals would clam up.
“I said, ‘I’ve been doing this for years. You’re going to love it.’ “
Overwhelmingly, they have loved it, said Nelson, now a St. Paul police commander who teaches interrogation techniques across the country.
Minnesota is among eight states, plus Washington, D.C., that mandate recordings.
At least 600 police agencies nationwide, including two dozen in Ohio, also require recordings, said Thomas P. Sullivan, a former U.S. attorney in Chicago who studies the issue.
The goal is to avoid false confessions and unsavory police tactics.
“It benefits the police far more than the defendants,” Sullivan said. “Most of the time, the confessions are true, and once you get them recorded, you’ve got them dead in the water.”
Recording also heads off lengthy legal skirmishes about alleged statements and their use at trial.
In Illinois, unrecorded statements can’t be admitted as evidence without an acceptable explanation. Wisconsin’s law doesn’t specify a penalty, but police have embraced recording.
“The criminal defendants could no longer come in and say, ‘He didn’t read me my rights; he beat me’ … all this nonsense,” said Norman Gahn, an assistant district attorney in Milwaukee.
Policing government labs
Texas released Ronald Gene Taylor from prison four months ago, after he served 14 years of a 60-year sentence for a rape that recent DNA tests showed he didn’t commit.
There’s a certain irony to Taylor’s being a poster boy for the crime-solving power of science. A scientific blunder doomed him to prison in the first place.
The Houston Police Department’s crime lab had examined a stain on the victim’s bedsheet before trial but determined it wasn’t semen. However, recent tests showed it was semen — from a sex offender who lived in the area at the time of the crime and was an early suspect.
Taylor’s was the third wrongful conviction blamed on missteps by the Houston lab, which an independent audit in 2002 found to be plagued with “serious and pervasive” flaws.
The scandal helped persuade Texas lawmakers in 2005 to impose outside oversight of government crime labs. Maryland, Minnesota, Oklahoma and Virginia also have passed laws in recent years, either creating oversight boards or requiring professional accreditation.
“Both are important,” said Brandon Garrett, a University of Virginia law professor who studies the role of labs in wrongful convictions.
Nationally, flawed science was the second-leading cause of wrongful convictions, tainting 65 percent of the cases in which a convict later was exonerated by DNA testing.
Congress has pushed states to establish independent overseers for their crime labs, providing millions in grant money to labs that meet the standard. But inspector general audits have found the U.S. Department of Justice hasn’t enforced the requirement.
More than a third of the labs awarded grants in 2006 didn’t have such oversight, according to an audit released in January.
Creating commissions
The man was still raping her while Jennifer Thompson-Cannino scoured his body for scars, searched for tattoos, even studied his hairline.
The mental notes were fresh when she picked her attacker out of one photo and one live lineup.
Ronald Cotton was convicted and sentenced to life in prison. Eleven years later, in 1995, a DNA test proved he was not the rapist.
“I thought for sure I had the right guy,” said Thompson-Cannino, a mother of three who lives in Winston-Salem, N.C. “That test proved we had real flaws in our criminal justice system.”
Cotton’s release from prison, followed by several other exonerations, prompted a North Carolina Supreme Court justice in 2002 to form a commission to study wrongful convictions. The group included prosecutors, judges, police officers, defense attorneys and advocates such as Thompson-Cannino. Six states now have similar panels.
In 2006, North Carolina moved a step further, becoming the only state to form a commission that reviews individual criminal cases for wrongful convictions.
North Carolina’s commission can subpoena records, interview witnesses and consider new evidence. If a majority of the eight commissioners believes the case deserves review, it is sent to a panel of three judges. Those judges must decide unanimously that an inmate was actually innocent to overturn the conviction.
The commission costs the state about $277,000 a year to operate.
“Commissions like these are meant to fill that void in our justice system,” said Kendra Montgomery, the commission’s executive director.
The commission has reviewed 243 cases. So far, one has made it to the three-judge panel.
“The commission is a last hope for those of us that are innocent,” said Cotton, who received $110,000 from the state for serving 11 years for a rape he didn’t commit. “There are more of us in those prisons than people think.”
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International Association for Property and Evidence
“Law Enforcement Serving the Needs of Law Enforcement”
www.IAPE.org
