When the DNA Exclusion Is Not Enough
If DNA has such powerful probative value, then it would stand to reason that judges, juries, prosecutors, and the public would accept a negative finding as definitive evidence of innocence. In fact, DNA samples that do not match should hold more probative value for a case of innocence than DNA samples that do match should hold for evidence of guilt, since there is always a chance that a match might have occurred as a result of contamination (see chapter 16). But even the best evidence of innocence can be explained away by alternative hypotheses, however improbable. This is illustrated in the prosecution of Darryl Hunt. This case began on October 10, 1984, when the body of Deborah Sykes, a local reporter, was found in a field near her place of employment in Winston-Salem, North Carolina. The medical examiner reported that Sykes had suffered multiple stab wounds and that she had been sexually assaulted both vaginally and anally.
Two different juries found Darryl Hunt guilty of murdering Sykes. He was first tried and convicted in 1984 and sentenced to life imprisonment. The North Carolina Supreme Court overturned the conviction on direct appeal when it found that the state allowed a police officer to testify on the substance of unsworn statements by Hunt’s girlfriend. Hunt was retried in 1990 and was convicted once again for felony murder and sentenced to life imprisonment. The second sentence was upheld on appeal.
During both of Hunt’s trials the state offered no direct evidence linking Hunt to the kidnapping, robbery, sexual assault, or murder of Sykes. The state’s evidence was based on the testimony of an eyewitness who placed Hunt near the scene of the crime. A hotel employee claimed that Hunt entered the hotel bathroom later that morning and exited, leaving bloody hand towels behind.
On the prompting of Hunt’s lawyer, Mark Rabil, PCR DNA testing was performed on a fluid sample taken from Sykes’s body after Hunt’s trial. It showed that Hunt was not a contributor to the sperm contained in the sample. Rabil filed motions for a new trial on the basis of newly discovered evidence. His motion was denied by the superior court and the North Carolina Supreme Court. The court argued that the burden for a new trial on the basis of the appearance of postconviction evidence is very high and requires a “truly persuasive demonstration of actual innocence.” According to the court, Hunt would have to show that, on the basis of the newly discovered evidence and the entire record of the case before the jury, “no rational trier of fact could [find] proof of guilt beyond a reasonable doubt.”14 In its decision the court wrote:
Hunt has made no such showing. If we evaluate the PCR/DNA test results along with the entirety of the evidence introduced at both trials, we are unable to conclude that no rational jury would have convicted Hunt of the murder. The new evidence is simply not sufficiently exculpatory to warrant a new trial. Indeed, as the magistrate judge explained, the DNA results do nothing to discount a number of other possible scenarios reasonably implicating Hunt in the sexual assault. Hunt’s sperm might have been present on a different untested sample; Hunt raped Ms. Sykes but did not ejaculate; or Hunt sodomized Ms. Sykes. Moreover, the DNA results do not exonerate Hunt from committing the murder, from committing the other underlying crimes of kidnapping or robbery, or from aiding and abetting any of these crimes, including the sexual assault.15
The North Carolina district attorney initially indicated that he would dismiss the case on grounds of the failed DNA match, but in the face of public attitudes and local politics he changed his position. When Hunt was not released after his DNA cleared him as a rapist in a case where murder and rape were interconnected, the members of his legal team began their own investigation of possible suspects. They figured that the only way Hunt would be freed would be if they found a match of the real killer-rapist. Mark Rabil said, “We began lining up suspects and did DNA tests secretly. We spoke to them and saved their cigarette butts. Then we had the butts tested for DNA.”16 Hunt’s legal team even considered a suspect who had committed suicide years earlier. They traced his son, obtained a DNA sample, and ran a test on it. The test eliminated the deceased suspect.
Between 1996 and 2000 Rabil pursued a pardon for Hunt, which under law is under the governor’s authority. But that proved futile. Having failed to find a DNA match with the suspects they could muster, the members of Hunt’s legal team filed a motion in 2003 to have the crime-scene DNA checked against the North Carolina forensic DNA database. They received approval to determine whether there was a match between the DNA found on the rape victim and that of a person whose DNA profile was entered into the DNA felony profile database in North Carolina. There was no match. However, a partial match was found with the DNA of Anthony Brown, whose profile had been entered into the database around 2003. North Carolina FBI forensic DNA laboratory specialists told Rabil that there was no basis from the partial match to assume that the source of the DNA came from a close relative of Anthony Brown. Rabil received the opposite response from Alabama police forensic experts, who claimed that the close match constituted a familial connection.
The intent of seeking a match of the crime-scene DNA with the North Carolina forensic DNA data bank was to find a cold hit with a felon who had been convicted of other crimes. It was not a familial search, where one selects a predetermined number of alleles, less than the number used in a precise match, on the basis of the population genetics of family kinship. But the results of obtaining one match of seven out of nine alleles did open up the investigation to family members of Anthony Brown. One of those was Willard Brown.
Ironically, Willard Brown was a suspect in another case. A woman (Regina K.) was abducted, raped, and stabbed repeatedly on February 2, 1985. On April 1, 1986, she identified Willard Brown as her assailant from photographs. There was no physical evidence, and she was discouraged from pressing charges. The police dropped the case against Willard Brown even though they noted the similarities between the 1985 rape and the Sykes case. One detective specifically made the connection, but a typographical error in jail records led him to believe incorrectly that Brown was in custody at the time of Sykes’s murder. According to a report by the city manager of Winston-Salem, “Police detectives should have connected the Sykes and Regina K. cases in the spring of 1986 and connected Willard Brown’s blood group evidence with that from the Sykes case since the same investigator was working on both cases at the time.”17 Instead, Willard Brown was not reactivated as a suspect until the partial DNA match of his brother was made in 2003.
Police secured a discarded cigarette butt from Willard Brown and found a precise match with the crime-scene evidence in the Sykes case, and in December 2003 he confessed to the 1984 rape and stabbing. Only after Brown confessed was Darryl Hunt released after having served about 18 years of a life sentence. On February 6, 2004, a Superior Court judge vacated Hunt’s murder conviction. Despite the exonerating evidence and the admission by Brown, there remained people in Winston-Salem who refused to accept Hunt’s innocence, including the victim’s mother.
Frederick Bieber uses the case of Darryl Hunt to support familial DNA searching. However, it is worth noting that authorities would not have had to resort to a partial match to find Willard through his brother Anthony if Willard had been in the database or if the police investigation had been done thoroughly. The reference to familial matches in this case by Bieber overstates their value as an investigative tool.
Barriers to Postconviction DNA Testing
The progressive movement to use DNA for exculpatory purposes faces several obstacles. First, it requires considerable human resources to review cases involving claims of innocence, to undertake investigations, and to hire lawyers to reactivate a case that has, in the court’s and prosecutor’s mind, reached finality. Second, even when a claim of innocence looks promising, there may not be any crime-scene DNA to test against the DNA of the incarcerated individual. The crime-scene evidence may have been discarded or lost. Many states do not have laws requiring the preservation of DNA evidence. Without preservation of the biological sample there is no cas
e for innocence when the critical issue in question is whether there is a match or mismatch between the crime-scene DNA and the suspect’s DNA. Third, some states do not have laws that give convicted felons the right to postconviction DNA testing, although 44 states have some form of legislation. Fourth, even if the crime-scene DNA has been preserved, the convicted felon has a legal right to postconviction DNA testing, and the incarceree’s DNA does not match that of the crime scene, the prosecutors and the courts may not agree to exoneration. They may come up with other theories to rationalize guilt that override their conception of the probative value of the DNA evidence.
Exonerations of wrongfully convicted individuals have been hampered by the premature disposal or misplacement of crime-scene DNA. Typically, prosecutors and police have little incentive to forage around in search of lost DNA. In one notable case described below, members of the Innocence Project, a nonprofit legal clinic of the Benjamin N. Cardozo School of Law, by dint of persistence and luck, discovered critical DNA evidence that was believed to have been destroyed.18
In December 1982 an all-white jury in Hanover, Virginia, convicted Marvin Lamont Anderson, an African American, of kidnapping and raping a 24-year-old white woman.
Marvin Lamont Anderson had a spotless record, but he lived near the victim, and he dated a white woman. Police included his photo in a [photo] spread. The victim picked out Anderson’s picture. An hour later, she picked him out of a lineup. The photograph of the man who raped and tortured the petite, blue-eyed blond was [also] in the photo spread. But his name is John Otis Lincoln. It was Lincoln who dragged the woman into the woods the night of July 17, 1982. Anderson was at his mother’s house washing his car.19
At the 1982 trial forensic DNA was not yet available. A state forensic scientist testified that she was unable to determine the rapist’s blood type from the semen recovered from the victim. The jury found Anderson guilty, and he was sentenced to 210 years in prison on the basis of the mistaken identification. Just 19 years old, he cried when the verdicts were read. He spent the next 15 years in prison.
Six years after Anderson was convicted, another suspect admitted to the crime. Governor L. Douglas Wilder pardoned Anderson in 1993, but his felony conviction was not removed from his record. The Innocence Project took on the case to have his record cleared. Codirector of the Innocence Project Peter Neufeld noted: “The first thing that was so extraordinary about Marvin’s case is that the only reason he was picked out for identification is because the perpetrator, who was a black man, said to the victim, ‘I got me a white girlfriend.’” 20 Neufeld also noted: “It is the only case in America—of all the DNA exonerations—where the real perpetrator was shown to the victim, and instead she picked an innocent guy.”21
The Innocence Project’s investigators requested from the police a sample of the semen that had been obtained from the victim. At first it seemed like a lost cause. The police had thrown out the rape kit. Neufeld describes the serendipity of the misplaced DNA on which rested Anderson’s exoneration:
Well, Marvin’s case is kind of special because we looked for the evidence for five years, and we were told it was destroyed. But fortunately, they took one last look back in the archives where the criminalist kept her notebooks, and they found that she had broken the rules in Virginia and instead of returning the evidence to the rape kit to be destroyed, she Scotch taped it into her lab notebook. Had she followed the rules, Marvin would still be convicted.22
Brandon Garrett, writing in the Columbia Law Review, examines how the U.S. criminal justice system handled the first 200 cases of convicted felons proved innocent and exonerated by DNA evidence. From his study of the background of these cases he concluded: “Even after DNA testing became available, courts and law enforcement imposed obstacles to conducting DNA testing and then denied relief even after DNA proved innocence. These data show how reluctant our criminal system remains to redress false convictions.”23
According to the Innocence Project, 22 percent of the claims of innocence that its team investigated between the years 2004 and 2008 were terminated because the crime-scene DNA evidence was not available.24 At least 24 states either have no statutes that require preservation of DNA evidence or, if they have statutes, do not require preservation of the DNA for all violent felonies, covering the full length of the incarceration. Without such a statute, wrongly convicted individuals do not have the opportunity to prove their innocence through DNA testing. Some states, like Arizona, have a preservation statute for sex offenses and homicides but not other felony offenses.25 In Garrett’s study of the first 200 exonerees he noted, “Even given its potential as exculpatory biological evidence, in a high percentage of cases DNA evidence is not preserved.”26
Alan Newton was freed from prison in New York City on July 6, 2006, after 22 years of wrongful conviction for rape. Newton had requested DNA testing for 12 years. Both he and the courts were told by prosecutors that repeated searches of police storage facilities did not yield the rape kit from the case. The rape kit was last recorded to be at a police facility in 1985. A newly assigned prosecutor requested that the commanding officer of the police department renew the search for the rape kit. When a hand search of the specific bin was undertaken, the rape kit was discovered inside it. DNA testing of the sample conclusively proved Newton’s innocence. He was finally exonerated by a joint state-defense motion.27
The next case is one of several documented by the Innocence Project in which, by some act of serendipity or pure coincidence, DNA evidence from a criminal case, which proved to be a critical piece of corroborating evidence for a claim of innocence, was not destroyed. The evidence could just as easily have been lost, removing the chance of exoneration. Calvin Johnson was convicted of rape in Clayton County, Georgia, in 1983. It was the practice in Clayton County for the court stenographer to keep all the evidence entered as exhibits after the trial was concluded. The stenographer who participated in the Johnson case had accumulated a closet full of evidence. When he was about to retire, he asked what he should do with the evidence. He was told to throw it away, which he did.
A district attorney saw the boxes of evidence in a parking-lot dumpster outside the courthouse and decided that the evidence should be saved. Because the DNA evidence was salvaged from the dumpster, Calvin Johnson was able to compare that DNA with his own and prove his innocence.28 The Innocence Project has reported 10 cases to date in which evidence initially believed to have been lost or destroyed was subsequently found. In all these cases DNA testing exculpated a wrongfully convicted individual.
Arizona resident Larry Youngblood was picked up as a suspect in the sexual assault of a 10-year-old boy in 1983. Youngblood was placed in a police lineup because his description matched that given by the victim. Detectives had taken possession of the boy’s underwear and T-shirt, which had stains of the molester’s semen. However, police did not refrigerate the stains. As a consequence, the DNA degraded and could not be used to validate Youngblood’s claim of innocence. The Arizona Court of Appeals reversed the conviction on the grounds that the state had failed to preserve the evidence.29
In 1989 the U.S. Supreme Court reinstated Youngblood’s conviction, ruling that the plaintiff could not show that the police had acted in bad faith when they failed to preserve the biological evidence from the victim.30 Justice Harry Blackmun, speaking in the minority, wrote: “The Constitution requires that criminal defendants be provided with a fair trial, not merely a ‘good faith’ try at a fair trial.”31 The Court set the precedent that negligence on the part of the police in handling evidence is not grounds for relief, even when the evidence has exculpatory potential. According to Barry Scheck of the Innocence Project, more than 40 percent of their cases go unsolved because of missing or discarded evidence that was in the possession of the police.32
When a convicted felon has confessed to a crime, prosecutors are dubious about putting any resources into claims of innocence. After all, as one often hears, “Why would an innocent perso
n admit to the crime?” However, false confessions are not uncommon in the criminal justice system. Indigent suspects charged with homicide, who may face execution if they are convicted of a crime they did not commit, might choose a plea bargain that guarantees prison and avoids capital punishment. It has also been shown that police can force a confession from an individual by deploying heavy-handed interrogation and deprivation. In Garrett’s study “Judging Innocence,” false confessions were introduced in 31 out of 200 cases (15.5 percent).33 Eleven out of 223 DNA exonerees (4.9 percent) investigated by the Innocence Project pled guilty to crimes they did not commit.
One of these is the case of Christopher Ochoa. The case began with the rape-murder of Nancy DePriest in 1988 at a Pizza Hut in Austin, Texas, where she had worked. Christopher Ochoa and his roommate Richard Danziger worked in another Austin-area Pizza Hut. They became prime suspects when a Pizza Hut waitress observed them drinking beer and toasting the victim. After being interviewed by a brutal police officer who threatened him with a needle, Ochoa confessed to the homicide to avoid the death penalty. He also implicated his friend Richard Danziger in the rape. Both Ochoa and Danziger were convicted and received a life sentence. Years after the rape-murder a private forensic laboratory in California cleared Ochoa and Danziger of the crime on the basis of DNA evidence. DNA evidence eventually implicated the real perpetrator of the crime, Achem Josef Marino, who, while serving three life sentences, declared that he had a religious conversion, and, while Ochoa and Danziger were serving life sentences, revealed details of the crime to police, including the location of items stolen from the Pizza Hut. In February 1996 Marino wrote letters to the Austin Police Department and to the Austin American-Statesman in which he claimed that he alone had killed DePriest and that Danziger and Ochoa were innocent. For two years there was no response to Marino’s letters even though police found items he had described. It was only after a letter from Marino was made public that Ochoa and Danziger were able to obtain DNA tests, which excluded them and incriminated Marino. Danziger and Ochoa were officially exonerated in 2001. By then, Danziger had been attacked in prison by inmates, kicked in the head, and sustained serious brain damage. Ochoa was released from prison and entered Wisconsin Law School.34 A report on false confessions in Psychology Today stated,
Genetic Justice Page 17
