False Forensics or Junk Science
AS FAR BACK as history can take us, the engines of human striving have been driven by the quest for absolute certainty. Socrates searched for truth and justice in their immutable forms. Aristotle ventured farther afield, seeking the heart of the matter in pursuits as different as drama and biology, poetry and politics. The scientific method picked up where the frontier of philosophy ended. The laboratory became the temple in which those of serious mind bent a knee to worship. Each new advance brought us closer to a truth that could not be questioned, and that, after all, was the goal. Certainty, as difficult to apprehend as the Holy Grail, would free us from error and doubt and make us secure in our belief that truth was the coin of our noblest endeavors.
It took a while before we discovered that science was a fickle accomplice. Today’s truth was at best tomorrow’s probability. Scientific certainty was as fragile as any other. It seemed that the more we learned, the less we could be sure of, for each new discovery put in question all that preceded it. Every Ptolemy would be succeeded by a Galileo; for every true believer, a Darwin was waiting in the wings. Truth depended, finally, on the prism through which it was viewed. When what once passed for scientific certainty is eclipsed by new findings, it is disparagingly referred to as junk science or, at trial, false forensics.
In the courtroom, the introduction of scientific evidence is replete with hazards. There is always the question of whether the jurors—and in some instances even the judge—are able to comprehend it, and the more formidable question of how seriously that theory’s application is treated by the forensic community. In recent years, the testimony of handwriting analysts has been called into doubt, and even more critically, the infallibility of fingerprint identification, once considered the bedrock of absolute certainty, has become suspect.
In a 1993 case dealing with handwriting analysis, Daubert v. Merrell Dow Pharmaceuticals, the Supreme Court ruled that judges may exercise their own discretion in deciding whether to admit expert testimony regardless of their personal knowledge in that field. Judges in two subsequent cases took opposite views on the matter of handwriting analysis. One decided that it was not sufficiently scientific to be admissible. The other, citing a recent study, noted that the relatively new use of computer programs invested the technique with 98 percent accuracy.
Until the advent of DNA technology, fingerprints had long been considered the surest route to forensic certainty. The Chinese were said to have used thumb prints as a means of identification more than two thousand years ago, but the father of modern fingerprint technology was Sir William J. Herschel, a British government official in Bengal, India. Herschel’s system, devised principally as a means of preventing impersonation, was in popular use by 1858. Sir Francis Galton founded the present system about thirty years later, and Juan Vucetich, of Argentina, applied it to criminal investigations for the first time in 1891.
The core of fingerprint analysis is the belief that no two individuals have the same set of prints. Of course that is a premise based on scientific projection. Not every set of prints has been compared with every other, but the sheer volume of instances in which the principle has held true without contradiction had wrapped fingerprint identification in a cloak of infallibility. Recently, however, it has come under closer scrutiny. In criminal investigations, the critical question is not whether two sets of prints can be exactly alike, but whether they can be similar enough to fool an analyst. There have been numerous cases in which fingerprints have been misidentified. Prints taken at a crime scene, for example, are often smudged or too indistinct to be identified with absolute certainty. The FBI’s computerized fingerprint identification system is said to be more than 99 percent accurate, but when it is unable to tell the difference between two sets of prints, human analysts make the determination, and their conclusions often differ.
All the same, fingerprint analysis is still far more reliable than other forms of “junk science” evidence. Suspects have been wrongly convicted on the basis of faulty ballistics technology, inaccurate medical diagnoses, and testimony induced under hypnosis. Even DNA technology, now considered as close to infallible as one might ever hope, is subject to human error. If the test is not made with proper controls, it can lead to the conviction of the wrong man.
Anthony Ray Hinton
Alabama
Good Friday, 2015, was better than good for Anthony Ray Hinton. It was, one might say, a resurrection of sorts. It was the day that Hinton walked free after spending thirty years on Alabama’s death row following a decades-long fight to prove his innocence. Hinton was convicted of the 1985 murders of two fast-food restaurant managers on the flimsiest of evidence.
The murders occurred five months apart. On February 25, 1985, John Davidson, assistant manager of a Southside Mrs. Winner’s, was forced into the restaurant’s cooler and shot twice in the head. Thomas Vason, an assistant manager at a Captain D’s in Woodlawn, suffered the same fate in precisely the same manner. But it was a third such crime, in which the victim survived, that drew the attention of the police to Hinton. On July 26, the night manger of a Bessemer Quincy restaurant, was assaulted and identified Hinton as the perpetrator. The police searched his mother’s home, where Hinton lived, and found a handgun which, they said, matched the bullets found at the scene. They concluded that it was the same gun used in the other two shootings. Hinton was promptly arrested, convicted of the two murders, and sentenced to death.
The state’s case was weak, almost non-existent. There was no eyewitness testimony that placed Hinton at the scene of either crime. He was never charged with the Quincy shooting whose victim had identified him. Furthermore, Hinton had what the defense described as a “powerful alibi”: a cadre of co-workers confirmed that he was at work at the time of the Quincy shootings, fifteen miles away from the crime scene. As for the forensic evidence, subsequent tests raised doubts that the weapon taken from Hinton’s home had fired the bullets; it even called into question whether all the bullets were fired from the same gun. Hinton’s court-appointed lawyer, Sheldon C. Perhacs, mistakenly believed that he was allowed only $1,000 to hire an expert witness. Hiring on the cheap, Perhacs retained as a ballistics expert a visually impaired civil engineer with no expertise in firearms identification who admitted he could not operate the machinery necessary to examine the evidence. At trial, jurors chuckled as the defense’s “expert” struggled to answer questions under cross-examination. According to a report by Alan Blinder in The New York Times, a prosecutor described him as a “one-eyed charlatan.”
Time moved slowly on death row and more than a decade passed before Hinton found respite. Bryan Stevenson, the executive director of the Equal Justice Initiative, intervened, providing Hinton a new defense, Stevenson filed a motion for dismissal. A panel of experts, including a former FBI official, reviewed the forensic evidence and reported that the conclusions of the Alabama authorities were suspect. But state authorities were unyielding. According to the Times, the Alabama attorney general said, “The experts did not prove Mr. Hinton’s innocence, and the state does not doubt his guilt.”
The US Supreme Court thought otherwise. In 2014, the Court ruled that Hinton’s trial defense had been “constitutionally deficient,” mandating a new trial and obliging prosecutors to examine the forensic evidence which they knew to be the backbone of their case. They later wrote that Hinton’s conviction depended on “an absolute, conclusive determination that the bullets recovered from [the victims’] bodies were in fact fired through the barrel of the firearm taken from the defendant’s home.” Following a new analysis, the prosecutors found that state experts “could not conclusively determine that any of the six bullets were or were not fired through the same firearm recovered from the defendant’s home.”
After the Supreme Court’s decision, the Alabama Court of Criminal Appeals granted Hinton a new trial. His defense attorneys asked Jefferson County Judge Laura Petro to dismiss the case. On April 1, 2015, two Alabama prosecutors—Chief Deputy County District Attorney John Bowers and Assistant District Attorney Mike Anderton—filed a motion to drop all charges against Hinton when three experts were unable to link the bullets to the gun. Petro dismissed the case and ordered Hinton freed.
Stevenson summed up Hinton’s ordeal this way: “We have a system that treats you better if you’re rich and guilty than if you’re poor and innocent, and this case proves it.” He went on to say, “Race, poverty, inadequate legal assistance, and prosecutorial indifference to innocence conspired to create a textbook example of injustice. I can’t think of a case that more urgently dramatizes the need for reform than what has happened to Anthony Ray Hinton.
Robert Dunham, executive director of the Death Penalty Information Center, tied Hinton’s case to the decline of public approval of capital punishment. “Cases like Anthony Ray Hinton’s,” he said, “give the public pause about the death penalty. From the very outset, this case exhibited many of the classic signs of innocence.”
Upon his release, Hinton sounded grateful but, not surprisingly, a degree bitter. “I shouldn’t have sat on death row for thirty years,” he told reporters. “All they had to do was test the gun. They had every intention of executing me for something I didn’t do.” But it was Good Friday, and Hinton spoke also of mercy. “I’ve got to forgive,” he said. “I lived in hell for thirty years, so I don’t want to die and go the hell. So I’ve got to forgive. I don’t have a choice.”
Timothy Howard and Gary Lamar James
Ohio
Four smudged fingerprints were the only forensic evidence that the state presented in a trial that sent Timothy Howard and Gary Lamar James to prison for twenty-six years for a crime they did not commit. The crux of the matter was that none of the fingerprints belonged to either suspect, the police knew it and withheld that bit of information from the defense.
The crime at issue took place on December 21, 1976, when two armed men robbed the Ohio National Bank in Columbus. One jumped over the teller’s cage and stole approximately $1,207 while the other fatally shot the seventy-four-year-old security guard, Berne Davis.
The trouble for Howard and James, childhood friends and both 23 years old, began almost immediately when two eyewitnesses picked them out of a police lineup. When the Columbus Dispatch printed their photos, identifying them as suspects, the two men went voluntarily to the police on December 23 to offer alibis and clear their names. Howard said he had spent the day at home with his sister, but she declined to sign a waiver of rights until she consulted her attorney. James contended he had been at the optometrist with his girlfriend less than an hour after the robbery, but he didn’t have enough money to pay for his glasses. Neither alibi satisfied the police, and both men were arrested and charged with capital murder.
Howard and James were tried separately in 1977. The heart of the state’s case, aside from the false forensics, was the eyewitness testimony, which was none too convincing. Most of the eyewitnesses said they had seen the photos of the two men in the newspaper following the murder. The bank’s security camera was of no help, as it was not equipped with film on the day of the crime. During the trial, the prosecution, apparently aware of the weakness of its case, told the jury that Howard and James had robbed a U-Haul rental store owned by a friend of Berne Davis on the day before the bank robbery. However, a later investigation would uncover a police report indicating that the owner of the store, whose identification was the only evidence against the two men, had been unable to pick the suspects out of a photo lineup.
While eyewitnesses were less certain in their identification of Howard than of James, both men were convicted and sentenced to death in 1977. Their death sentences were commuted to life in prison a year later when the Ohio courts declared the death sentence to be unconstitutional. That same year, James’s appeal to the Ohio Tenth Circuit Court of Appeals was denied. Howard’s appeals to the Ohio Supreme Court were rejected in December 1978 and again in April 1982. But Howard was persistent. He continued to claim his innocence, filing requests for case documents under the Freedom of Information Act and soliciting the help of attorneys, ministers, and the media. Finally, in 1997, some twenty years after being sent to prison, his luck turned. The Centurion Ministries, a New Jersey-based non-profit organization that investigates wrongful convictions, agreed to take on both his and James’s case.
Assisted by a private investigator, Centurion discovered evidence that Howard and James had been convicted as a result of police corruption, primarily on the part of Detective Thomas James. A thorough investigation revealed that the case of Howard and James was not unique. James was found to have made a practice of twisting and concealing evidence to achieve convictions, and he had been thrown off the Columbus police force for misconduct. During the course of its investigation, Centurion learned that many eyewitness reports contradicted testimony that identified Howard and James as the perpetrators. In addition, a Columbus police officer was found to have lied when he testified that fingerprints found at the scene were too smudged to be of any use. In fact, one of the prints had been analyzed and offered no match for either Howard or James. The investigator also obtained an affidavit from an FBI agent who had aided the prosecution, stating that he had doubted the guilt of the defendants since 1977, when two Cincinnati men, one of whom bore a strong resemblance to James, were arrested for robbing another Ohio National Bank.
In December 2002, the Franklin County Court of Common Pleas held a hearing to reconsider Howard’s guilt in the light of the new evidence. At the same time, attorneys continued to pursue a hearing for James. Having examined the new evidence, the judge and prosecutors offered Howard a deal: If he pled no contest to manslaughter, he would be released from prison for time served. Howard disdained the offer, refusing to confess to a crime he did not commit. He chose instead to remain in prison until he was legally exonerated. A few months later, on April 16, 2003, the court overturned his conviction and he was released on bond. The Franklin County prosecutor, after filing a motion to appeal, thought otherwise and dismissed the charges against both men.
Still, Howard was not yet ready to let it go. He filed a wrongful conviction suit against the state seeking to be compensated for the time he spent in prison. The case went to trial early in 2006. The testimony of the eyewitnesses was raked over, the defense showing that most every eyewitness was, at one time or another, less than certain of their identifications. In one typical instance, Franklin County Deputy Sheriff Diana Smoot shifted her position while still on the witness stand. Smoot, who was fourteen when the bank was robbed, was entering the bank at the time Davis was shot, She had testified against Howard at the first trial and identified him as one of the suspects and she repeated that testimony at the new court proceeding. But when defense attorney James Owen cross-examined her, Smoot was no longer certain. She said she could not say that her identification was 100 percent accurate.
“Would it be fair to say,” Owen asked, “that during those conversations you’d said you could not make a positive ID now, and you couldn’t back then either?”
“Right,” Smoot said, “I said l couldn’t be definite.”
Another witness, bank manager Lillian Joyce Williams, had identified James as the shooter in 1977, but could not identify his accomplice. But on the witness stand twenty-nine years later, when asked to identify the second man, she pointed at Howard. Under cross-examination, it was disclosed that she was unable to identify him in 1977.
“The question is, did you look at both of them?” the defense attorney asked. “And your answer was ‘Just vaguely. I cannot tell you what the other one looked like, other than he was a black person.’ And that was it. Do you recall saying that?”
“Uh, yeah,” she said, “I probably would have said that.”
During summation, Owen addressed the issue of the fingerprints: “The forensic evidence you got were those four latent prints which don’t incriminate Timmy,” he said. “Any other forensic evidence, crime scene, search unit, FBI, police? Anything? Nothing … Those fingerprints aren’t his because he wasn’t there. It’s plain and simple.”
Plain and simple it was. Howard was awarded $2.5 million in compensation from the state of Ohio. It was a victory that, though sweet, was short-lived. Just about one year later, he died of a massive heart attack. He was fifty-three years old. He had spent about half his life behind bars for a crime he did not commit.
James, in a separate suit, was awarded $1.5 million.
Ernest Ray Willis
Texas
Faulty forensics sent Ernest Ray Willis to death row for eighteen years, convicted of capital murder in the death of two people who were killed in a house fire in Iraan, Texas. He was charged with committing arson on the basis of a botched investigation which led the authorities and the court to conclude that the fire had been set intentionally. As it turned out, the fire was caused by an electrical failure; there was no convincing evidence that arson was involved.
The fire broke out in the early hours of June 11, 1986, in the home of Cheryl and Michael Robinson. Killed in the blaze were twenty-four-year-old Elizabeth Belue and twenty-five-year-old Gail Allison who had been up late drinking with their hosts. Willis and his cousin, Bill Willis, house guests of the Robinsons, escaped unharmed. The Robinsons, ironically, were not home when the fire erupted. They had been arrested following a violent quarrel outside the house. The four guests remained and went to sleep. When the flames engulfed the house, only the Willises made it out safely. Belue and Allison were found dead.
For reasons unknown, the sheriff investigating the case suspected the fire had been set intentionally. Arson experts corroborated his suspicion. They said they found “pour patterns” on the floor—charred marks that were presumably left by a flammable liquid, or accelerant, that had been poured inside the house and found in the carpet. Ernest Ray Willis, who was the first out of the house and who had suffered less injury than his cousin, became the state’s number one suspect. Officers at the scene said Willis had been acting strangely, but there was no physical evidence pointing to him and he clearly had no motive. He was, in fact, an unlikely suspect.
Willis was staying with the Robinsons as their guest because he suffered from chronic back pain that made it difficult for him to work and they offered him a place to stay in exchange for his repairing their car. Willis told police that the fire woke him at about 4 a.m. and that he ran through the house trying to wake the others before he was forced to flee the flames. Outside, he said, he started breaking windows to allow air into the house and to create routes of escape.
Nonetheless, the police found Willis’s story unconvincing. He was arrested in October and charged with capital murder. At trial, prosecutors described him as a “cold-hearted” murderer, a “monster,” an “animal,” and a “satanic demon.” They reinforced their characterization of Willis by referring to his dazed mental state at the scene of the crime and by noting that throughout the trial he appeared confused and emotionless. The defense offered nothing to rebut the state’s contentions. They did not, for example, tell the jury that Willis’s distracted mental state might well have been the result of state-administered medication he was taking. Nor did they call any character witnesses, including several who could have testified that Willis had once risked his life to save a boy from drowning. He was convicted on August 4, 1987 and sentenced to death. The conviction was upheld by the Texas Court of Criminal Appeals in 1989 and, a year later, the US Supreme Court denied a petition for a writ of certiorari, which would have mandated the Court to hear an appeal of the conviction.
The road to justice and freedom was a long and winding one for Willis, and it was embarked on inadvertently. While in prison, Willis took to writing letters as a means of connecting to the outside world. One of his favored correspondents was the mother of a mentally retarded inmate who refused to communicate with his family. Willis sent her periodic updates on her son, and by way of gratitude she sent copies of his letters to the law firm of Latham & Watkins. In 1992, a team of the firm’s attorneys agreed to take Willis’s case on a pro bono basis.
Among their findings was that for several months before the start of the trial, the state had been giving Willis high doses of anti-psychotic drugs along with his usual pain medication without telling him, despite the fact that he had displayed no signs of psychosis. It was likely the effects of these drugs that accounted for the defendant’s dazed, expressionless state at trial. Investigators also discovered a psychological evaluation that concluded that Willis would present no threat to society if released. That report, which might well have spared him the death penalty, was never turned over to the defense.
Based on the newly discovered evidence, an appellate court granted Willis’s petition for habeas corpus, but it was denied by the Texas Court of Criminal Appeals in 2000. However, the new developments raised doubts regarding Willis’s guilt. A new Pecos County district attorney initiated his own review of the case. He retained arson experts who determined that the previous arson specialists had reached false conclusions. There was, they said, no substantive evidence that the fire had been set intentionally. The “accelerant” that was suspected of causing the fire was in fact “flashover burning,” which is consistent with an electrical fault fire. Their final conclusion was that the cause of the fire was “undetermined.”
In 2004, US District Judge Royal Ferguson granted a federal writ of habeas corpus, ruling that the state had administered medically inappropriate anti-psychotic drugs without Willis’s consent, that the state suppressed evidence favorable to Willis, and that Willis had received ineffective counsel at both the guilt and sentencing phases of his trial. He ordered the state to either free Willis or retry him. The state attorney general’s office decided not to appeal and all charges against him were dropped. He was released from prison on October 6, 2004 with $100, ten days of medication, and the clothes on his back. As of 2012, he had received nearly $800,000 in compensation from the State of Texas.
Coincidentally, and tragically, another case of false arson, very similar to Willis’s, was played out at around the same time but with far different results. Cameron Todd Willingham was convicted in 1992 of setting fire to his home in Corsicana, Texas, in which his three daughters perished. Willingham was convicted on the basis of the same false forensics that the state introduced in Willis’s case, but he did not enjoy the good fortune of a private investigation. On February 17, 2004, eight months before Willis was freed, Willingham was executed by legal injection. Almost certainly, Texas executed an innocent man.
In a 2006 report, an independent five-member panel that included some of the country’s leading arson experts found that neither of the fires was set intentionally; there was no arson. The panel reported that the evidence and forensic analysis in both the Willingham and Willis cases “were the same” and that “each and every one” of the forensic interpretations state experts made in both men’s trials has been proven scientifically invalid. The report stated: “While any case of wrongful conviction, acknowledged or not, is worthy of review, the disparity of outcomes in these two cases warrants a closer inspection.”
Barry Scheck, co-director of the Innocence Project, which is affiliated with the Cardozo School of Law in New York City, urged the Texas Forensic Science Commission to fully investigate the issue and recommend changes in the state’s forensic system that could prevent wrongful convictions in the future. Even at the time of Willingham’s trial, he said, the forensic methods used by prosecution experts to classify the fire as arson were known to be faulty and unreliable.
John Ballard
Florida
Florida leads the nation in overturned convictions. That can be interpreted in two ways: either the state’s trial system is ineffective or its appellate system is exceptionally alert at detecting trial-court errors. In the case of John Ballard there could be little doubt which view applied. Ballard was convicted of two murders and sentenced to death in 1999 on virtually no evidence at all.
The two victims—Jennifer Jones, seventeen, and Willy Ray Patin Jr., twenty-two—were found bludgeoned to death in the duplex apartment they shared in Golden Gate, Florida, a small town in southwestern Collier County. Ballard became a suspect on the basis of a few hairs and a fingerprint of his found in the apartment. That was the only physical evidence the state had and it was hardly compelling. Ballard was a neighbor and long-time friend of the couple and visited their home often. After a two-year investigation that yielded nothing further, Ballard was arrested on two counts of murder and one of robbery although nothing appeared to be missing.
Ballard went to trial in 2003. Although the state held robbery to be the motive, the subject was never put before the jury. Nor was any attention given to Jones’s past. She was a known drug addict and had been the object of gang violence more than once. Just a week before the couple was killed, another man had fired shots at their apartment but no effort was made to identify or locate the man. Also ignored were bloody fingerprints and about 100 other hair samples found at the scene, none of them belonging to Ballard. The prosecution’s flimsy case was good enough for the jury; he was found guilty on all charges. Although only nine of the twelve jurors voted to apply the death sentence, the judge decided otherwise, saying, “You have not only forfeited your right to live among us, but under the laws of the State of Florida, you have forfeited your right to live at all.”
The Florida Supreme Court did not agree. In 2006, it found that the evidence presented by the state was insufficient and unanimously overturned Ballard’s conviction, ordering his acquittal. It was only the third time in the past thirty years that the court ordered a judgment of acquittal rather than asking for a retrial.
Curtis Edward McCarty
Oklahoma
Curtis Edward McCarty was convicted twice and sentenced to death three times based on forensic evidence that was mishandled and manipulated by an analyst who was later fired for committing forensic fraud in a number of cases. The crime in question was the 1982 murder of a police officer’s daughter. Pamela Kaye Willis was found dead in her Oklahoma City home. She was nude and had been stabbed and strangled. McCarty fell under suspicion for no other reason than that he was an acquaintance of the victim.
Shortly after the murder, Oklahoma City Police chemist Joyce Gilchrist compared hairs found at the crime scene with McCarty’s and determined there was no similarity. All the same, police continued to interview McCarty periodically over the next three years. Finally, in 1985, he was arrested and charged with Willis’s murder. The basis for his arrest was the word of Gilchrist, who had changed her notes to indicate that the hairs found at the scene could have been McCarty’s. Defense attorneys did not discover the change in her testimony until 2000 when Gilchrist was being investigated for fraud in other cases.
At McCarty’s trial in 1986, Gilchrist testified that forensic tests on the hair samples showed McCarty “was in fact” at the crime scene. She also stated that McCarty’s blood type matched the blood type of semen found on the victim’s nude body. That was the crux of the prosecution’s case. McCarty was convicted and sentenced to death.
He spent two years on death row before his conviction was overturned by the Court of Criminal Appeals due to prosecutorial misconduct and improper forensic procedures. Oklahoma District Attorney Robert H. Macy was singled out by the court, citing the case as being “replete with error” and Macy’s conduct as “improper” and “unprofessional.” Barry Scheck, whose Innocence Project would later take up McCarty’s case, said: “This is by far one of the worst cases of law enforcement misconduct in the history of the American criminal justice system. Bob Macy has said that executing an innocent person is a risk worth taking—and he came very close to doing just that with Curtis McCarty.” Macy had a history which would not belie Scheck’s judgment. He had sent seventy-three people to death row during his twenty-one-year career, more than any other prosecutor in the country. Twenty of them had been executed.
McCarty was retried in 1989 with Gilchrist once again offering her flawed testimony for the state. Her testimony was the same as at the first trial and the jury returned the same verdict. McCarty was again convicted and sentenced to death. In 1995, an appellate court upheld McCarty’s conviction but ordered a new sentencing trial because the judge in the second trial was deemed to have committed an error in his instructions to the jury. After hearing four days of testimony in 1996, the new jury handed down McCarty’s third death sentence.
In 2000, Gilchrist was being investigated for reporting false forensic results in other cases. She was also asked to re-examine the hair evidence in McCarty’s case and she agreed that it was suitable for DNA testing. But the result would never be known, for when the defense asked to see the new evidence, Gilchrist told them that the samples had been either lost or stolen. The hairs never were found. At the close of the investigation, Gilchrist was fired for the forensic fraud she had committed in several cases. Her false testimony, it was discovered, had contributed to two other wrongful convictions that were later overturned by DNA testing. She had testified in thousands of other cases during her twenty-year career, leaving one to wonder how many others were wrongfully convicted on the basis of her fraudulent forensic testimony and how many of them had been executed.
In 2002, attorneys for McCarty were able to secure DNA testing on sperm recovered from the victim’s body. The tests showed no match with McCarty. A year later, McCarty’s fortunes turned when the Innocence Project became involved in his case. Post-conviction attorneys Vicki Werneke and John Echols also joined the defense team. In 2005, they won a new trial after an evidentiary hearing before Judge Twyla Mason Gray. Judge Gray ruled that McCarty’s conviction was tainted by Gilchrist’s misconduct. At a third trial, McCarty was represented by the Innocence Project, along with attorneys Perry Hudson and Marna Franklin. In 2007, additional DNA testing nullified any connection to McCarty. Further forensic analysis showed that a bloody footprint on the victim’s body could not have been McCarty’s. Based on the new, exculpatory evidence and the misconduct of Gilchrist, the defense moved to dismiss the charges before a third trial was held. On May 11, 2007, Judge Gray granted the motion and McCarty was released. He had been in Oklahoma prisons and jails for twenty-two years, nineteen on death row.
Commenting on the case, Peter Neufeld, co-director of the Innocence Project, said: “For anyone who believes the death penalty is being carried out appropriately in this country, and anyone who believes that prosecutors and government witnesses can always be relied on to pursue the truth, this case is a wake-up call. Three separate times, an innocent man was sentenced to die because of the actions of an unethical prosecutor and a fraudulent analyst.”
Michael Lee McCormick
Tennessee
The tale of the conviction, imprisonment, and exoneration of Michael Lee McCormick is so convoluted that it would be risible were it not so tragically pathetic. It centers, among other things, on shoddy forensics, an undercover police officer posing as a parolee, a murder that may or may not have occurred, and a litany of lies spun by the defendant that contributed to his exoneration.
The story began to unfold in the early morning hours of February 13, 1985 when the body of Jean Nichols, a twenty-three-year-old pharmacist, was found dumped in the parking lot of a shopping mall in Chattanooga, Tennessee. She had been shot twice in the head and once in the hand. Tests later showed she was highly intoxicated.
In the course of their investigation, police learned that Nichols had met a man at a restaurant the previous night, they had exchanged Valentine’s Day gifts, and parted at about 11 p.m. Nichols went on to visit some night spots on Brainerd Road, a late-night entertainment strip in Chattanooga. Her body was found at two in the morning by a man foraging for recyclable cardboard in the shopping mall dumpsters. He said her body was still warm. Her car was found nearly three hours later, parked near the Brainerd Beach Club, a popular night spot among singles.
Police fingered thirty-two-year-old McCormick as a suspect when they discovered he was a friend of Nichols’s brother, known as “Happy” Nichols, who lived with Jean in the home of their grandmother. The two men had met at a junior college where Happy was a student and McCormick was a media technician. It turned out to be an unholy alliance. The pair indulged regularly in drugs and they had stolen electronic equipment from the college. When Jean completed her pharmacy degree in 1984 and moved into her grandmother’s home with her brother, she learned of his activities with McCormick. She demanded the stolen equipment be removed from their home and that Happy end his relationship with McCormick and straighten out his life.
At this point the story begins to grow hazy; it becomes difficult to tell truth from fiction. Police learned that McCormick, who was divorced not long ago, claimed that he called his ex-wife at 9 o’clock on the morning of February 14, some seven hours after Nichols’s body had been found, and told her of the murder. He said he had been dating Nichols, that he had bought her a drink at about 9:30 the night before. He also presumably told his ex-wife that he had been questioned by police, which was verifiably untrue.
Police did in fact decide to question McCormick after a former girlfriend of his told them that he had visited her on the night of February 13. He stayed from about 9:30 until just after 11 p.m. and left in an intoxicated state. When questioned, McCormick denied that he had seen Nichols since she had returned from pharmacy school. He said that on the night in question he had met a friend at a restaurant, had some drinks, and they left, in separate vehicles, for the Brainerd Club where he stayed until 11 and then went home. He admitted calling his ex-wife but said what he told her was a fabrication intended to get her sympathy or make her jealous. At the same time, he admitted burglarizing the college and stealing electronic equipment. McCormick agreed to give samples of his hair, blood, and saliva and consented to a search of his house and car. Nothing connecting him to the crime was found, although police picked up a hair from the interior of Jean Nichols’s car that analysts said was similar to McCormick’s hair. Not long after he was questioned, McCormick left for a brief visit to Arizona. When he returned, he was arrested for the burglary at the college, to which he had confessed, served a short term in prison, and was released on parole.
Now, the tale becomes even murkier. Apparently convinced that McCormick was involved in the murder of Nichols, police crafted a decidedly unconventional means of making their case. In January 1987, an undercover police officer posing as a parolee introduced himself to McCormick at a parole office. They struck up a friendship and eventually decided to share an apartment. Over the next month, the officer, Eddie Cooper, staged a series of criminal activities, involving the transfer of stolen cars, in which he got McCormick to participate. In the course of their conversations, according to Cooper, McCormick told him about murderers he met in prison and Cooper mentioned he had once been offered $20,000 to kill someone in Knoxville.
On February 9, the lead detective in the Nichols murder case staged a fake arrest in a neighborhood bar where McCormick and Cooper were having a drink. McCormick, apparently unnerved, told Cooper about his burglary conviction and that he had been a suspect in the Nichols murder case. Cooper later alleged that McCormick told him he had turned down $1,000 to kill Nichols and that he knew the killer’s identity. Cooper went on to say that McCormick told him the motive for the murder concerned the drug inventory at her place of work and that she had been shot three times. Cooper’s incredible story continued.
On February 16, he said, he and another man exchanged a sum of cash, with McCormick looking on, implying that Cooper had hired someone else to carry out the Knoxville murder. The next day, McCormick is said to have confessed to killing Nichols while Cooper taped the conversation. Again, according to Cooper, McCormick said he killed her over an argument regarding drug money. He said he met her at the Beach Club and they left together. After killing her, he dumped her body in the parking lot, parked her car back at the Beach Club, and drove home. He said he disassembled the gun and tossed the parts in various places.
On February 18, McCormick was arrested and charged with murder. He was convicted on July 1, principally on Cooper’s testimony and the similarity of the hair sample found in Nichols’s car. Given the scant evidence presented by the prosecution, the defense had little to offer by way of rebuttal. The defense noted that McCormick was an alcoholic and was widely regarded as a chronic liar. His so-called confession to Cooper was an attempt to impress a fellow parolee and an effort to get some of the money from the Knoxville murder contract. The jury would have none of it. McCormick was convicted and sentenced to death.
His conviction was upheld on appeal, but in 1990, following a post-conviction hearing, his confession to Cooper was ordered suppressed. The defense attorney stressed that the prosecution relied on a recorded confession by a man who “they knew to be an alcoholic and a notorious liar.” Despite the suppression of the evidence that was at the heart of his conviction, McCormick remained on death row, awaiting a new trial in 2007. By then, DNA tests had been performed on the hair sample which eliminated McCormick as a suspect. Now, there was no evidence at all that pointed to him as the killer and he was acquitted on December 3, 2007. He had spent sixteen years on Tennessee’s death row.
Kennedy Brewer
Mississippi
The old legal maxim that justice deferred is justice denied has few better exemplars than Kennedy Brewer. Arrested and wrongfully convicted of the rape and murder of his girlfriend’s three-year-old daughter, Brewer served seven years on Mississippi’s death row before being exonerated. In addition, he languished in jail for another eight years awaiting trial.
In the early morning hours of May 3, 1992, Christine Jackson, the daughter of Brewer’s girlfriend, Gloria Jackson, was abducted from her home, raped, and murdered. Two days later, the child’s body was found in a creek in Noxubee County about five hundred yards from her home. On the night she was abducted, Brewer had been babysitting for Christine and her two younger siblings, both of whom were Brewer’s biological children with Gloria. Brewer became an immediate suspect because he was present at the time of the crime and police said there was no sign of forced entry. Apparently unnoticed by police was a broken window near where the child slept, which might have served as a convenient point of entry for an intruder. Brewer was arrested and charged with capital murder and sexual battery. He spent the next three years in jail awaiting trial, which began in March 1995.
The prosecution speculated that Brewer had raped and killed Christine in the Jackson home, then carried her body to the creek, a short distance away, As for forensic evidence, a semen sample that was taken from the victim’s body was said to be insufficient for DNA testing. It came down, then, to a number of marks on the girl’s body that the medical examiner, Steven Hayne, believed to be bite marks. Hayne summoned Dr. Michael West, a forensic odonotologist, to analyze the marks. West concluded that nineteen marks found on the victim’s body were “indeed and without a doubt” inflicted by Brewer’s top two teeth. Somehow, he said, the bottom teeth had left no impression. West’s certainty seemed somewhat remarkable since bite-mark analysis had never been considered scientifically conclusive. In fact, by the time the trial started, West had become the first member of the American Board of Forensic Odonotology to be suspended. Nonetheless, the court admitted his testimony. It was, after all, the only evidence the state had.
To counter West’s testimony, the defense called upon Dr. Richard Souviron, a licensed dentist and founding member of the American Board of Forensic Odonotology, who testified that the marks were not human bite marks but insect bites that were the result of the body having been left in the water for days. Souviron insisted that it was nearly impossible to leave bite marks with only the top two teeth. Despite the prosecution’s presenting virtually no credible evidence, Brewer was convicted on March 24, 1995, and sentenced to death.
In 2001, while he was on death row, advanced DNA testing was conducted on semen recovered from the girl’s body in 1992. The tests excluded Brewer as the source of the semen and indicated an unknown male profile. The following year, Brewer’s conviction was vacated, but the district attorney, who had prosecuted the case at trial, said he intended to retry the case and again seek the death penalty. Brewer was moved from death row to pre-trial detention in the county jail where he remained for five years while the prosecutor failed to move the case to trial. Finally, in the summer of 2007, the Innocence Project stepped in and, aided by Andre de Gruy of the Office of Capital Defense Counsel in Mississippi, secured Brewer’s release from jail and prepared to represent him at a new trial. At about the same time, due to conflicts of interest in the Noxubee County district attorney’s office, Ben Creekmore, the district attorney of Oxford, Mississippi, was appointed special prosecutor in the Brewer case. Creekmore decided not to seek the death penalty and agreed to allow bail to be set. Brewer was released in August 2007 while awaiting a new trial.
Meanwhile, the Innocence Project continued to investigate the case and asked the Mississippi attorney general’s office to intervene. During the investigation, further DNA testing implicated another man, fifty-one-year-old Justin Albert Johnson, whose DNA provided a match. One of the original suspects, Johnson lived with his parents, just a few houses down from the victim’s home. Although he was the only suspect with a history of committing sexual assaults against women and young girls, his possible guilt was ignored when investigators focused on Brewer as the prime suspect.
Under questioning, Johnson confessed to the murder of Christine Jackson and to a similar crime—the murder of Courtney Smith in September 1990, also in Noxubee County—and told investigators he had acted alone in each case. The two crimes were almost identical. Courtney Smith, also three years old, was raped, murdered, and left in a pond near her home. The ex-boyfriend of the child’s mother, Levon Brooks, was arrested and convicted, largely on the basis of bite-mark analysis performed by West who, once again, was brought into the case by Hayne, the medical examiner. The same sheriff’s officer investigated both crimes, and the same district attorney prosecuted both cases. On each occasion they overlooked evidence that pointed to Johnson and homed in on innocent men.
“If local law enforcement had properly investigated these crimes, they would have stayed focused on Albert Johnson from the beginning,” said Vanessa Potkin, staff attorney for the Innocence Project. “In fact, if Albert Johnson had been apprehended for the first crime, the second one would never have happened—and the three-year-old victim would be approaching her eighteenth birthday.”
On February 15, 2008, charges against Brewer were dropped and he was exonerated. On the same day, the Innocence Project, along with the Mississippi Innocence Project co-counsel, won Brooks’s release from prison; he was exonerated in March 2008 based chiefly on Johnson’s confession, as DNA testing could not be conducted in his case.
Legal assistance in the two cases was provided by the firm of Skadden, Arps, Slate, Meagher & Flom LLP and Affiliates; Andre de Gruy of the Office of Capital Defense Counsel of Mississippi; and Robert B. McDuff.
The state of Mississippi paid Brewer $500,000 in compensation. In 2009, Brewer filed a civil lawsuit against West and Hayne for $18 million. The suit was still pending in the fall of 2015.
Paul House
Tennessee
The Innocence Project, abetted by the improbable intervention of the US Supreme Court, also played a pivotal role in winning freedom for Paul House after he spent twenty-two years on death row for a murder of which he was innocent. In the summer of 1985, the bloodied body of the victim, Carolyn Muncey, was found under some brush on the bank of a creek near her home in rural Luttrell, Tennessee. She had been raped and beaten and was wearing only a nightgown and a house coat.
Shortly before the crime, House had moved into his mother’s home, not far from the scene. Being new to the community and with a criminal record, he became the police’s prime and, in fact, only suspect. The authorities wasted no time in moving forward. The state’s case was at best circumstantial. Two prosecution witnesses testified that they had seen House wiping his hands on the night of the crime near where the body had been found. A pair of jeans belonging to House was found to have blood on them, and a forensic expert said at trial that the ABO blood type matched House’s. The blood type also was said to match the semen found on Muncey’s underwear. In February 1986, House was convicted of first-degree murder and sentenced to death.
Even as House’s attorney began the process of appeal, evidence began to accumulate suggesting that House was innocent. Several potential witnesses came forward with information that implicated Muncey’s husband. A number of neighbors said that Mr. Muncey was habitually abusive. Two women claimed they heard him confess to the crime at a party one night. A third woman said she saw him hitting his wife at a neighborhood dance. A fourth said he had asked her to provide an alibi for him on the night Muncey was killed.
In addition to the eyewitness evidence, new forensic data also was introduced. Further analysis of the blood found on House’s jeans indicated that it was probably not deposited on the night of the murder. A former Tennessee State Medical Examiner said he believed the blood sample showed enzyme decay which was consistent with blood taken at the victim’s autopsy and transported in vials without preservative or refrigeration. The decay, he further testified, would not likely be found in blood that came in direct contact with House’s pants while the victim was alive. Additional data suggested that blood collected at Muncey’s autopsy had spilled on House’s jeans after they were collected as evidence. The blood vials were not sealed and were transported by two law enforcement officers to the FBI lab, about ten hours away. The blood was believed to have spoiled during the trip due to heat exposure. Also, FBI records showed that a significant amount of blood from the autopsy vials was missing when the officers arrived at the lab.
Yet more exculpatory evidence surfaced in the nineties, after House had spent more than a decade in prison. Advanced DNA testing revealed that the semen taken from Muncey’s nightgown and underwear belonged to her husband, not House. The new results contradicted the trial testimony offered by an FBI expert who had told the jury that only House’s blood group antigens could have been the source of the semen stains.
House’s appeals, asking that his conviction be overturned on the basis of the new evidence, were rejected by several courts. In 2005, the case came before the U.S, Supreme Court, which rarely hears cases such as House’s. The Innocence Project filed an amicus curiae, or friend-of-the-court, brief on his behalf. On June 12, 2006, the Court ruled that no “reasonable juror” would have convicted House had the new evidence been available at the time. His case was remanded to the district court in Tennessee for a full review.
District Court Judge Henry Mattice Jr. overturned House’s conviction and ordered the state to either release him from custody or retry him within 180 days. The state’s appeal was rejected. Bail, initially set at $500,000, was reduced to $100,000. An anonymous benefactor posted the 10 percent bond and House, by that time confined to a wheelchair with chronic multiple sclerosis, was released from the Lois M. DeBerry Special Needs Facility on July 2, 2008. All charges against him were dropped the following year.
Gussie Vann
Tennessee
The crime for which Gussie Vann was sent to death row was as repellant as a crime can be. It involved the rape and murder of his own daughter, eight-year-old Necia. Shortly before midnight on July 30, 1992, Gussie’s wife, Bernice, called 911 and reported that her daughter had apparently fallen in her bedroom with a rope around her neck and was not breathing.
When paramedics arrived at the Vanns’ mobile home near Riceville, Tennessee, they found Bernice weeping outside. Gussie, forty-two, was inside holding Necia, who was wearing only her underpants, and attempting to revive her by performing CPR. Gussie, who was nude, told the paramedics that he had gone out a bit earlier to purchase cigarettes and candy. When he returned, he said, he had undressed to take a shower when his wife found Necia and called to him. The girl, who had been medically diagnosed as a dwarf, was pronounced dead on arrival at the hospital.
When doctors examined her, they found bruises on her neck, a slight tear in the opening of her vagina, and no muscle tone in her anus, indicating, they said, multiple episodes of anal penetration. The official diagnosis was that Necia had been strangled. Questioned by police, Vann said that he, his wife, and their four children had been watching a movie and eating popcorn earlier in the evening. He suggested the girl might have choked on the popcorn. He said she had never given any indication of wanting to commit suicide. Two weeks later, based on the physical condition of the body, both Gussie and Bernice, twenty-eight, were charged with capital murder, rape, and incest.
While the cases were pending, a twelve-year-old niece of Gussie’s came forward and alleged that he had raped her twice in 1991. Gussie was charged with two counts of aggravated rape; Bernice was charged as an accomplice for helping get the girl into his bedroom. Gussie went on trial first on the rape charge and denied the allegations. He was convicted in January 1994, based primarily on his niece’s testimony. Additional support for conviction came from his wife, who entered into a plea agreement with prosecutors, offering to testify against Gussie in return for leniency in her own sentencing. Bernice, whose IQ of 62 was borderline retarded, took the stand and told the jury that her husband had forced her to watch the rape. Gussie was sentenced to fifty years in prison.
The murder charges against the Vanns were severed. Gussie went on trial first in McMinn County Circuit Court in 1994. The entire case against him was based entirely on forensic evidence, much of which was later found to be invalid. At trial, police testified that they found a strip of a bedsheet tied to a knob on a dresser drawer in a knot they believed to be too tight to have been tied by a young child. A torn strip that appeared to match the first one was found in another bedroom. A search of the mobile home produced a rope tied in a noose, a pornographic videotape, pornographic magazines, and unopened packages of condoms. A DNA analysis of the clothing Necia wore on the day she died yielded no evidence of blood, semen, or saliva that matched Vann’s.
Ronald Toolsie, a state medical examiner, testified that a depression in the girl’s neck was consistent with strangulation and the rope found in the home. He also said he found evidence of repeated sexual abuse, including anal penetration, although the girl’s hymen was intact. The most recent instance of sexual abuse was believed to have occurred around the time of her death. Toolsie also noted that nothing resembling popcorn was found in her stomach. Gussie was found guilty of felony murder and two counts of incest.
At his sentencing hearing, he denied killing or sexually abusing his daughter. He recounted for the jury the sad details of his early life as one of fifteen children of a tenant farmer. He began working on the farm at the age of ten and left school after the third grade with an IQ measured in the second grade at 69. He later worked as a truck driver and suffered serious head injuries when he was beaten during an attempted hijacking in 1989. He began taking pain medication, became addicted, and fell victim to recurrent seizures; he was hospitalized following a nervous breakdown. The jury was unmoved. Gussie was sentenced to death.
In July 1995, in an effort to resolve both cases brought against her, Bernice pled guilty to aggravated child abuse, facilitation of aggravated rape and accessory after the fact. She was sentenced to twenty-five years in prison, served the full sentence, and died after a brief period on parole.
Gussie’s conviction and sentence were upheld by the Tennessee Supreme Court in September 1998. An amended post-conviction petition was filed in May 2003 by the Tennessee Office of the Post-Conviction Defender. An evidentiary hearing was not begun until four years later. For Gussie, it proved to be well worth the wait. The Knox County medical examiner, Darinka Mileusic-Polchan, testified that based on her review of the autopsy report, Necia had died an accidental death. She said that Toolsie’s determination of death by strangulation was incorrect. She went on to say that there was no evidence of anal penetration. Toolsie and the emergency room physician who examined the girl’s body had mistaken a normal physical reaction after death—the loosening of muscle tone in the anus—for sexual abuse. Another defense expert, Dr. William McCormick, agreed with the medical examiner’s conclusions.
The defense proceeded to offer a scenario that could have accounted for Necia’s death. Evidence was offered showing that the torn bed sheet had been tied to a knob on the top drawer of the dresser so it could be used to pull open the drawer. It was therefore possible that the girl, shortened by dwarfism, might have been standing of the edge of the bottom drawer to reach something on top of the dresser when she slipped and fell. The sheet, the defense suggested, might then have entangled around her neck, asphyxiating her.
In June 2008, McMinn County Senior Judge Donald P. Harris set aside Gussie’s conviction, declaring that he had received an inadequate defense. His trial lawyers, the judge said, had failed to seek the views of medical experts who could have countered the evidence produced by the state. In effect, Judge Harris noted, Gussie’s defense attorney had conceded that Necia had been raped, an issue that was disputed and critical to Gussie’s conviction. Further medical evidence presented at the hearing noted that because Necia suffered from dwarfism, she lacked a part of the anatomy that connects the head to the spinal column, leaving her head unstable.
The judge’s findings were definitive. The “most damaging” piece of medical testimony—that the girl had been vaginally and anally raped just before death—was, he said, “nothing more than inconclusive post-mortem anatomical findings.” He went on to describe the failings of Gussie’s trial attorneys as “not only prejudicial, but disastrous” and led to Gussie’s conviction on the basis of “inaccurate, exaggerated and speculative testimony.”
Initial plans for a retrial were dropped and the prosecution dismissed the charges on September 29, 2011. Vann remains in prison, however, serving the fifty-year sentence on the 1994 rape conviction.
Commentary: DNA
The counter to false forensics is the use of DNA evidence, introduced in the sixties but refined and perfected over the next few decades. In a legal system frayed by error and uncertainty, the advent of forensic DNA testing is often referred to as a magic bullet. DNA technology can provide scientific proof, beyond all doubt, of a suspect’s guilt or innocence. It has been revolutionizing the criminal justice system in much the same way that the discovery of fingerprinting did more than a century ago. Although a fingerprint is nearly as unique as a DNA sample, fingerprints are more easily concealed. DNA is contained in blood, semen, saliva, hair follicles, and skin cells, all of which are more difficult to remove from a crime scene.
First identified as the molecule of heredity, DNA has been part of the scientific tableau for the past half century. It was used initially to resolve a few paternity and immigration cases. A British geneticist at the University of Leicester, Alec Jeffreys, who pioneered in its application, estimated that the odds against two people, other than identical twins, sharing the same DNA profile are billions to one.
It was not for several decades that advances in technology made it possible to analyze and match samples quickly and cheaply enough for DNA fingerprinting to be used in the justice system. That happened for the first time in England in 1986. It was introduced in American courts a year later by a biochemist named Edward Blake, but it did not make its way into popular use until the mid-nineties. Since then, hundreds of wrongly convicted people have been exonerated by DNA evidence, at least a dozen of them freed from death row. It is estimated that DNA fingerprinting has resulted in as many as 25 percent of suspects charged with crimes being released from custody before going to trial.
Perhaps the principal effect of DNA testing is that it has brought to light the glaring inefficiencies of a system that convicts innocent people by the hundreds and sentences a substantial number of them to death. It is no longer possible to believe with any assurance that if a person is convicted he is probably guilty, that if he is sent to his death he no doubt deserves to die. That has all changed now. The reasoning is elementary: If DNA has established with scientific certainty that dozens of innocent people have been sentenced to death, can one harbor the belief that similar mistakes were not made in cases where DNA evidence was unavailable? Now, one who supports capital punishment is obliged to live with the uneasy suspicion that innocent people are being sent to their death.
Curiously, the case that spawned the revolution in attitude toward the criminal justice system was not a capital case. The first DNA exoneration in the United States involved a rape that never took place. The conviction was the product of perjured testimony, prosecutorial misconduct, and defense strategies that backfired. The wrongly convicted man spent the better part of twelve years in prison, but the price he paid was not entirely forfeited. It opened the door to freedom for countless others who had fallen prey to the system.
Gary Dotson
Illinois
Gary Dotson was the victim of a hoax. He was convicted of raping a young woman who was never in fact assaulted in a trial that rested almost exclusively on the false testimony of a police forensic scientist. Ironically, it was old-fashioned blood typing that was used to convict him, and breakthrough DNA blood testing that finally set him free.
The web of events in which Dotson became trapped began on the night of July 9, 1977. A police patrol officer noticed a young woman standing alongside a road near a shopping mall in Homewood, Illinois, a suburb of Chicago. It was late at night and she looked disheveled and appeared to be distressed. The officer asked if she was all right. The woman identified herself as Cathleen Crowell. She was sixteen years old and worked as a cashier and cook in a fast-food chain restaurant in the mall. Then she related the following tale:
After leaving work, she was walking across the mall parking lot when a car with three young men in it pulled up alongside her. Two of the men grabbed her and threw her into the rear seat. One of the men climbed into the back seat with her, tore her clothes off, raped her, and scratched several letters onto her midsection with a broken beer bottle.
The officer took her to a hospital where a rape examination revealed what appeared to be a seminal stain on her panties. Several pubic hairs and a vaginal smear were taken as evidence. A drawing was made of the marks on her abdomen. The letters were illegible and appeared to be shaped in an unusual crosshatched pattern.
Three days later, Crowell’s parents took her to the police station where she worked with a sketch artist to develop a likeness of her assailant. She described him as a young, white male with stringy shoulder-length hair. She did not mention his having any facial hair. When police showed her a mug book she identified Gary Dotson, a twenty-two-year-old high school dropout who had had minor brushes with the law in the past. The police arrested Dotson at his nearby home in a working-class suburb where he lived with his mother and sister. Although Dotson wore a full mustache which could not have been grown in the five days since the alleged attack, Crowell nonetheless picked him out in a police lineup.
Dotson went on trial for rape in May 1979. There were two chief witnesses for the prosecution. Crowell, who appeared to be a model student at her local high school where she studied Russian and was a member of the junior varsity swimming team, identified Dotson with total conviction, saying, “There is no mistaking that face.” The other key witness was Timothy Dixon, a state police forensic scientist who had been assigned to the case. It was Dixon’s testimony regarding blood types that probably clinched the case against Dotson, adding scientific near-certainty to Crowell’s eyewitness identification. The problem was that Crowell was lying and Dixon was offering information that was at best incomplete, at worst intentionally misleading.
Dixon told the court that type-B blood antigens had been found in the stain in Crowell’s panties and that Dotson was a B-type secretor, placing him in a 10 percent minority in the white male population. Of course 10 percent of the white male population would still provide a substantial number of other suspects, but even those percentages were misleading. Type-O blood contains the same antigens as type-B, and taken together they account for two-thirds of the white male population. Furthermore, Crowell herself had B-type blood so it could have been her own secretions that produced the stain. The prosecuting attorney, Raymond Garza, also appeared intent on deceiving the jury. In his summation he stated that several pubic hairs taken from the victim matched Dotson’s, although at that time it was technically impossible to make that determination. He also described Crowell as a sixteen-year-old virgin, which she was not.
Dotson’s defense, based on eyewitness misidentification, rested entirely on the alibi provided by four of his friends who testified they were with him at the time Crowell claimed to have been raped. The prosecutor called them liars, and the jury apparently agreed. They found Dotson guilty; he was sentenced to twenty-five-to-fifty years. His appeal was denied three years later and to all appearances the case was concluded. In fact, it would follow a long and circuitous route that led finally to Dotson’s exoneration.
The first turn came in 1985 when Crowell became stricken by conscience. She had married a high school classmate, David Webb, three years earlier. They had moved to New Hampshire and joined the Pilgrim Baptist Church, and Cathleen, now known as Cathleen Crowell Webb, confessed to her pastor, the Reverend Carl Nannini. She told him that she had fabricated the story eight years earlier because she was concerned she might have become pregnant during a sexual encounter the previous day with her boyfriend, David Bierne. The rape story was intended as a cover-up in the event her fears were realized. She said she inflicted the superficial wounds on her body and tore her clothing to lend credence to her story.
Pastor Nannini retained an attorney, John McLario, who contacted the Cook County State’s Attorney’s Office. When the prosecutors appeared uninterested, he notified a Chicago television station which broke the story on March 22, 1985. Warren Lupel, a commercial attorney, agreed to represent Dotson as a favor to a client who knew Dotson’s mother. Lupel petitioned the court to set aside the conviction, and the trial judge, Richard Samuels, ordered Dotson’s release on $100,000 bond on April 4, pending a hearing the following week. Dotson, who had already spent six years in prison, had reason to be optimistic even beyond Webb’s recanting. A new report, prepared by the chief forensic serologist of the Illinois State Police, seemed to corroborate her confession. It acknowledged that Dixon’s blood-type testimony was flawed and that the semen could have come from O-type secretors, among which was David Bierne. But Dotson’s run of luck did not last long. It ended at the hearing on April 11.
Unaccustomed as he was to criminal proceedings, Warren Lupel committed a tactical error when he called a defense witness who had not testified at the previous trial. The witness was Dotson’s closest friend, Bill Julian, who was one of the four friends who provided his alibi. Earlier, the other witnesses had stated that one of the girls had been driving the car on the night in question. Now, Julian said he was the driver. When the discrepancy was noted, the other witnesses agreed that they originally had lied about the driver because Julian was driving with a suspended license. Although the explanation was plausible enough and the driver’s identity did not go to the heart of the matter, the credibility of the defense seemed to be shaken. Judge Samuels, unmoved by the new forensic evidence and Webb’s recantation, declared that the woman’s trial testimony seemed more credible than her revised story. He revoked the bond and sent Dotson back to prison, but his odyssey through the criminal justice system was far from over.
With public sentiment clearly running in Dotson’s favor, Governor James R. Thompson granted Lupel’s petition for clemency. The three-day hearing attracted media representatives from far and near, and Dotson’s and Webb’s testimony was carried live on local television stations. Dotson was, in effect, given a split decision. His clemency petition was denied by the Governor, but Thompson commuted his sentence to time served. Dotson was released on parole.
Freedom did not necessarily nourish Dotson’s life style. He had taken to drinking beer regularly and in large quantities. It was not unusual for him to have a six-pack for breakfast and to continue drinking through the day. He had not found work and had no steady means of support. He signed several book and movie contracts but never followed through on any of them. Webb, in an apparent act of penance, gave Dotson $17,500 which she had received as an advance from a publisher of religious books. It would not take Dotson long to dispose of it. One of his most devoted drinking companions was a twenty-one-year-old bartender named Camille Dardanes, who had befriended him during his hearings. Now, with a hefty stake in hand, he and Dardanes went off to Las Vegas and married. On their return to Illinois, they bought two cars and rented and furnished an apartment. Two months later they were broke. Evicted from their apartment, they moved in with Dotson’s mother. Camille found work as a waitress, but Gary remained unemployed.
In January 1987, Camille gave birth to a daughter. Gary tried to turn the corner by joining Alcoholics Anonymous, but his attempt at rehabilitation didn’t last long. The drinking resumed and the fabric of their lives began to unravel. On a Sunday evening in August, driving home from a day in the park, Gary and Camille quarreled and Gary slapped her. He then took their eight-month old daughter and bolted from the car. Camille chased after them, and flagged down a cruising police car. She told the officers that her husband was a convicted felon and had taken their baby. She said he had struck her, and she wanted to press charges. From that point on, things began to spin out of control. Gary was arrested, charged with domestic battery, and held without bond since the offense might have violated the terms of his parole.
During the proceedings that followed, Gary found a new advocate. Civia Tamarkin, a journalist who wrote for People magazine, had interviewed Gary for an article and was convinced he was innocent of the rape charge. Now, she found him a new attorney, one who was steeped in criminal law and well acquainted with the workings of the legal machinery in and around Chicago. He was Thomas M. Breen, a former assistant state’s attorney in Cook County, and he set to work immediately. Camille, despite her initial wish to press charges, decided she would not cooperate with the prosecution, and the domestic battery case against Gary was dropped. He was not yet in the clear, however.
Dotson indeed was found to be in violation of parole, and the Illinois Department of Corrections invoked a “parole hold” on him, requiring he be held in custody pending a hearing before the Illinois Prisoner Review Board. Although the hearing appeared to go well, the board repealed his parole and reinstated his original sentence. Dotson now faced an additional sixteen years of prison time.
Breen was not happy with the turn of events. He did not think Dotson’s parole should have been revoked for a domestic spat in which his wife no longer wished to press charges. Even his parole officer, Phillip Magee, seemed to agree. In his report to the review board he said: “His [Dotson’s] violation neither indicated criminal orientation, nor does he appear to otherwise represent a serious threat to public safety.” Breen was further irritated because the review board never notified him directly of its decision; he learned of it from a reporter who was covering the case. Now, desperately seeking a pivot that might turn things in Dotson’s favor, the attorney found one where one might least have expected it.
In the October 26, 1987 issue of Newsweek magazine, Breen came across an article entitled “Leaving Holmes in the Dust.” The writer, Sharon Begley, reported that DNA technology would make it possible to connect a suspect to a crime and, conversely, could exonerate a suspect who was innocent. Investigating further, Breen learned that DNA had not yet been used in a criminal case. Since Dotson’s conviction now rested almost entirely on blood evidence, Breen saw the new scientific technique as made-to-order. He filed a motion with Judge Richard J. Fitzgerald of the Criminal Division of the Cook County Circuit Court, asking that DNA testing be used in the Dotson case. The assistant state’s attorney, J. Scott Arthur, offered no objection. Governor Thompson also approved and asked Alec Jeffreys, the British geneticist and pioneer in DNA fingerprinting, to conduct the test.
With DNA technology still in its infancy, Jeffreys was initially unable to obtain a conclusive result. The sample had degraded over the years and the evidence had become stale. Governor Thompson, who seemed determined to bring the case to a conclusion, decided to take the testing a step further. Edward Blake, a biochemist and forensic scientist in California, had been pushing DNA techniques to their limits. Thompson ordered that Webb’s panties be sent to Blake along with fresh blood samples from both Dotson and David Bierne.
On August 15, 1988, Blake informed Thompson, the prosecutors, and Breen that the test had positively excluded Dotson and identified Bierne as the source of the semen. A day later, Breen asked the governor to grant Dotson unconditional clemency on the grounds of actual innocence. But Thompson was hesitant. He said he would not act on the clemency petition until he received a recommendation from the Prisoner Review Board. In the meantime, Dotson was housed involuntarily in a residential center for alcohol and substance abuse. Nine months passed without any action being taken, and Breen filed a new petition for post-conviction relief. On August 14, almost a year after results of DNA testing eliminated Dotson as a suspect, Judge Fitzgerald granted the motion. The Cook County State’s Attorney’s Office immediately announced that the charges against Dotson would be dropped.
The first case of DNA exoneration in the United States was now in the books, and the lid was pried open on a new era in the American penal system. Five years later, in 1993, DNA was used for the first time to free a man who had served time on death row.
Kirk Bloodsworth
Maryland
Kirk Bloodsworth was the first man to be cleared as a result of DNA evidence after being sentenced to death. He walked free in 1993 after spending nearly ten years in a Maryland prison. The crime of which he was convicted was a particularly gory one.
On July 25, 1984, nine-year-old Dawn Venice Hamilton went to play outside her cousins’ apartment near Golden Ring Mall in the Rosedale section of Maryland, just outside of Baltimore. When she failed to return, her aunt called the police. A few hours later, she was found dead in a nearby wooded area. She had been beaten with a rock, sexually assaulted, and strangled. A sneaker had made an impression on her neck, and a stick was inserted in her vagina. Her underwear was found hanging from a tree. A chunk of cinder block, believed to be the murder weapon, was found near her head. Two boys who had been fishing in the vicinity told police they had seen Dawn enter the woods with a man who had blond curly hair. Three other residents of the apartment complex also claimed to have seen a blond, curly-haired man in the area on the day of the crime. A composite sketch was drawn up and given to newspapers and television stations.
Kirk Bloodsworth, a twenty-three-year-old ex-Marine, worked at the Golden Ring Mall, but he was off on the day of the murder. He and his wife had been having marital problems, and he had followed her from their Cambridge, Maryland home to the Middle River area of Baltimore County in an effort to patch things up. A week later, he decided the marriage could not be saved, and he left without telling her. His wife called the police to file a missing person’s report. The name rang a bell. Not much earlier, they had received an anonymous call saying the composite sketch resembled a man named Kirk.
When Bloodsworth returned to Cambridge a few days later, he was questioned by the police. One of the boys who had been fishing said Bloodsworth looked like the man he had seen, even though his hair was red rather than blond. Bloodsworth told the police that he had left Cambridge because his marriage was troubled and he wanted the comfort of being with friends. He said he had notified his mother-in-law that he was leaving and did not understand why his wife had filed a missing persons report. He also noted that while the suspect was described as about six-feet-five, thin, and blond, he was only about six feet tall, rather burly, and had bright red hair. He said he had never seen Dawn Hamilton. Nonetheless, Bloodsworth, who had no previous record, was arrested and charged with sexual assault, rape, and first-degree murder.
There was no physical evidence linking him to the crime. The FBI, which was involved in the investigation, had the girl’s panties examined and determined there was nothing there that would either help or hurt the state’s case. The sole basis for his arrest was the identification by five eyewitnesses, none of whom had ever seen him in the presence of the girl. The trial turned on degrees of credibility. It was the word of the state’s witnesses which placed him near the crime scene against the testimony of the defendant’s friends who said they were with him at the time of the murder. The jury believed the prosecution’s witnesses. Bloodsworth was found guilty and sentenced to death.
In 1986, Bloodsworth’s attorney filed an appeal contending that the police had had other suspects, including one who more closely resembled the composite sketch, and another man who had helped search for the missing girl and had found her underpants hanging from the tree. It was information, the defense maintained, that should have been revealed during the trial. The Maryland Court of Appeals agreed. Bloodsworth’s conviction was overturned in July 1986 because the police had withheld evidence. He was tried again in April 1987 and again was convicted. This time he was sentenced to two consecutive life terms instead of death.
After having spent two and a half years isolated on death row, Bloodsworth was imprisoned with the general population. It was a mixed blessing. Though life on death row was depressing and bleak, Bloodsworth found that living among the general run of prisoners could be even tougher, since child molesters were disdained by even the toughest of convicts.
Bloodsworth continued to press his appeals with a new, court-appointed attorney, Robert E. Morin. He passed the time writing poetry and reading books by the hundreds. One of the books, The Blooding, by Joseph Wambaugh, a former Los Angeles cop, described how British police used DNA to solve murders in the Yorkshire area. He discussed the matter with Morin. Dawn’s panties had contained a semen stain smaller than a dime. Morin recalled that the FBI had already tested the panties and could gather no useful evidence from the stain. But that was more than five years ago, and DNA technology had been advancing quickly.
In April 1992, Morin sent the victim’s panties and shorts, as well as the stick that had been inserted in her vagina, to Edward Blake in California. Blake, who had intervened on Dotson’s behalf, was by now recognized as the father of forensic DNA testing in the United States. He headed the only private lab, Forensic Science Associates (FSA), which was then conducting DNA tests for criminal justice purposes. The samples were still fresh. The evidence had been locked up and preserved. The stain had been air-dried, and DNA can remain in dried samples of body fluids for years. Morin paid the ten-thousand-dollar testing fee, as Bloodsworth’s family had exhausted their life savings financing his defense. It took a year for the results to be returned. On May 17, 1993, the lab issued its report. It concluded that Bloodsworth’s blood samples did not match any of the evidence it had tested. However, the lab also requested a fresh sample of Bloodswoth’s blood for retesting to resolve questions about proper labeling on the original sample. On June 3, FSA issued a second report stating that its original findings were replicated: Bloodsworth could not be responsible for the stain on the victim’s underwear. A few weeks later, the FBI conducted its own test of the evidence and came to the same conclusion.
Three months later, on June 28, 1993, Bloodsworth walked free. After another three months, Maryland Governor William Donald Schaefer issued a full pardon. The state paid Bloodsworth $300,000 for lost income, based on the estimate that he would have earned approximately $30,000 a year from the time of his arrest to his release. Bloodsworth was the first man sentenced to death who was cleared as a result of DNA evidence.
Rolando Cruz and Alejandro Hernandez
Illinois
Not everyone was immediately convinced of the infallibility of DNA testing. The most serious doubters often were police and prosecutors, and that did not bode well for suspects in their jurisdictions. Two such suspects—Rolando Cruz and Alejandro Hernandez—spent ten years, much of it on death row, in an Illinois prison while four police officers and three former prosecutors played fast and loose with the criminal justice system. They were unimpressed that DNA evidence had excluded the pair from having been involved in the crime with which they were charged.
The crime was a heinous one. It was the kidnapping, rape, and murder of a ten-year-old girl, Jeanine Nicarico, in DuPage County, Illinois in 1983. The police questioned Hernandez, who was borderline mentally retarded and inclined toward fantasy, based on a tip from an anonymous caller. Hernandez, who was nineteen years old, told them that he and some of his friends, including Cruz, who was twenty, knew something about the crime. They apparently were enticed by a $10,000 reward that had been offered for information leading to an arrest. Police officers told Hernanderz and Cruz they would be considered heroes in the community if they helped solve the murder. Neither was able to provide any information that was not already public knowledge. However, police said that when Cruz was questioned he offered details of the crime that he told them came to him in a vision. No record was made of those statements, and Cruz later denied making them.
In January 1984, the district attorney announced that his office had insufficient evidence to bring charges against any suspect. The community, which was outraged by the brutality of the crime, was becoming impatient. Six weeks later, Cruz and Hernandez were charged with raping and murdering the young girl. The lead detective in the case, who had insisted all along that the two suspects were not the murderers, resigned in protest, saying that the state was proceeding against innocent men.
Nevertheless, Cruz and Hernandez were tried and convicted on perjured government testimony and questionable courtroom decisions. Cruz’s alleged dream visions were admitted into evidence on the basis of the testimony of sheriff’s detectives although there was no written or visual record of Cruz having made the statements. In Hernandez’s case, an officer who claimed that the defendant had incriminated himself during interrogation, admitted he had not documented those remarks until almost four years after the questioning. Other officers said they never took notes or maintained that their notes had been lost or destroyed. Cruz and Hernandez were sentenced to death.
Shortly after the trial, a repeat sex offender and convicted murderer, Brian Dugan, confessed that he alone had committed the crime. He also admitted to five other crimes—two rape-murders and three rapes. His confession included many details of the crime which only the perpetrator could know. A number of his other crimes were similar in nature to the one for which Cruz and Hernandez were sitting on death row, and several witnesses established conclusively that Dugan had committed the crimes by himself.
In 1988, the Illinois Supreme Court overturned the convictions and death sentences on the grounds that the defendants should have had separate trials. Two years later, Cruz and Hernandez were each retried, and again they were convicted. Their second trials were as tainted as their first. Dugan’s confession was never offered in evidence because it was concealed from the defense team. It would not be disclosed for more than four years. A former cellmate of Cruz’s who, in exchange for a four-month reduction in his sentence, had testified in the original trial that Cruz had admitted committing the murder, refused to testify at the second trial, stating that his story had been invented. Robert Turner, another death row inmate with Cruz, testified against him. He said Cruz had confessed to committing the murder with Hernandez and Dugan. However, two other death row inmates told the court that Turner had said he was going to set up Cruz using law books that described the crime. The prosecution told the jury that Turner had been offered nothing in return for his testimony, but nine months later one of the prosecutors spoke on his behalf at a resentencing hearing.
In 1990, a volunteer legal team headed by Lawrence C. Marshall, who was affiliated with the Center on Wrongful Convictions, agreed to represent Cruz on appeal. A divided Illinois Supreme Court granted Cruz another new trial because evidence regarding Dugan’s confession had been excluded by the trial judge. In the meantime, the role of DNA technology as used in the Bloodsworth case came to the attention of the defense, and a test was ordered. The results were conclusive: Cruz and Hernandez were excluded as possible rapists of Jeanine Nicarico. The sample matched Dugan’s DNA, but, despite all evidence of their innocence, the state insisted on pressing the case against Cruz and Hernandez. The prosecutor, in the face of what now was regarded as scientific certainty, declared, “The DNA results … do not in any way negate Cruz’s involvement in the Nicarico crime.” The state decided to proceed with a third trial.
In 1992, Assistant Attorney General Mary Brigid Kenney wrote a memorandum identifying numerous errors made in the prosecution of Cruz and urged that they be acknowledged to the court. The memo concluded: “I cannot, in good conscience, allow my name to appear on a brief asking … to affirm his conviction.” State Attorney General Roland Burris responded by removing Kenney from the case, and she responded by resigning. In her resignation letter, she wrote: “I was being asked to help execute an innocent man. Unfortunately, you [the attorney general] have seen fit to ignore the evidence in this case.”
For the new trials, the team of four defense attorneys, which included Marshall, opted for a bench trial, which made the judge, rather than a jury, the finder of fact. Marshall found that interviews with jurors from the previous trials indicated that many of them had been “caught up in the emotion that surrounds a crime of this kind.” During Cruz’s trial, a police officer admitted having lied under oath. He said he had fabricated Cruz’s initial statement about seeing the crime scene in a vision. After hearing all the prosecution’s evidence, the judge directed a verdict of not guilty. Still, prosecutors seemed intent upon retrying Hernandez, whose conviction had also been overturned, but they dropped the charges on the eve of the trial. Cruz was set free in November 1995; Hernandez a month later.
Shortly after the two were released, a special prosecutor was appointed to investigate whether police and prosecutors had violated the law in pursuing their case against Hernandez and Cruz. A grand jury later indicted four sheriff’s deputies and three former prosecutors, a group that became known as the DuPage 7, on charges of perjury and official misconduct. Although they were acquitted of the charges, DuPage County later agreed to pay $3.5 million to settle civil rights claims filed in federal court by Cruz, Hernandez, and Stephen Buckley, a third defendant who had been implicated. The district attorney who prosecuted Cruz later became attorney general of Illinois. Another prosecutor in the case became a judge. Brian Dugan remained imprisoned for a number of other rapes and murders, but he was not charged with the murder of Jeanine Nicarico.
Ray Krone
Arizona
When Ray Krone walked out of Arizona State Prison at Yuma on April 8, 2002, he became the one-hundredth innocent person convicted of capital murder to be released from custody since 1973, according to the Death Penalty Information Center. Krone was freed by DNA evidence after being convicted twice and spending ten years in prison, including three on death row. His was the twelfth DNA exoneration in the United States since 1993.
Krone was convicted of first-degree murder and kidnapping in the stabbing death of Kim Ancona, a thirty-six-year-old Phoenix cocktail waitress whose body was found in a local lounge on December 29, 1991. In an apparent frenzy to make an arrest, Phoenix police charged Krone with the crime two days later. He was assigned an attorney by the state. The evidence against him was circumstantial, and he was convicted chiefly on the basis of expert testimony that bite marks found on the victim’s breast matched Krone’s distinctive dental pattern. During his trial, the press labeled him the “snaggletooth killer.” The trial lasted about a week, and the jury returned a verdict of guilty after deliberating for two hours. The judge sentenced him to death.
Krone’s parents, Carolyn and Jim Leming, retained a private attorney, Christopher J. Plourd, and in June 1995 the Arizona Supreme Court overturned the conviction and granted Krone a new trial at which DNA evidence would be introduced. Aware that the state’s case hinged almost completely on what the prosecutor called Krone’s “unique dentition,” Krone’s lawyer used his opening remarks to contend that the bite marks were not the defendant’s and that saliva found on the victim provided a DNA pattern that excluded Krone. However, the DNA test was not entirely conclusive, and the jury again found Krone guilty.
But Maricopa County Superior Court Judge James McDougall was unconvinced. Saying he had a list of troubling questions about the case and serious doubts about the “clear identity of the killer,” he sentenced Krone to twenty-five years to life on the murder charge and an additional twenty-one years for kidnapping. Although he was moved off death row, the prospect of spending the rest of his life in prison for a crime he did not commit was of little comfort to Krone. He said he gave up hope when the jurors ignored what he thought to be overwhelming evidence and testimony in his favor. “[T]hat pretty much ruled out all the faith I had in truth and justice,” he said later. Thirty-nine years old when he was sentenced for the second time, he would be seventy-five before he became eligible for release.
Once again, DNA technology came to the rescue. Alan Simpson, a member of Krone’s defense team, had a new DNA test performed in 2002 on saliva found on the victim’s tank top. The results not only cleared Krone as a possibility, but they were found to be a perfect match for Kenneth Phillips, who was serving time in the same prison for an unrelated sex crime and who had lived about six hundred yards from the bar where Ancona was killed. In addition, a dental expert said that Phillips could not be eliminated as the person who left the bite mark on the victim’s breast. Krone was released four days after a police lab confirmed the DNA match with Phillips.
The futility of working within an inexact system that too often condemns innocent men was reflected in a statement made by Rick Romley, a Maricopa County prosecuting attorney. “What do we say to him?” Romley asked. “An injustice was done and we will try to do better. And we’re sorry.”