Wednesday, January 2, 2008

NEWS REPORT: DNA Testing on Hair Could Have Proved Innocence But Trial Attorney Refused Testing Due to . . . Cost?

Esdras Cardona was recently convicted of sexual battery for the April 2006 rape of a pastry chef at the exclusive Everglades Club in Palm Beach, Florida. The evidence central to the prosecution's case was the witness ID of Cardona, the perpetrator's t-shirt found at the scene which was the same brand and type of shirt found in Cardona's bedroom, and a toothbrush found at the scene that did not belong to the victim and contained DNA which was miraculously consistent with that of Cardona. The case is chronocoled in this Palm Beach Post story.

One would expect prosecutors, eager to obtain a conviction, to want to skip over additional scientific testing that could yield probative evidence of guilt or innocence. The prosecutors went to trial thinking (and were correct) that they had enough evidence to score a conviction of Mr. Cardona without testing the two hairs with roots collected from the perpetrator's t-shirt:

Former Assistant State Attorney Ron Herman handled the case in the months before Cardona's trial. Herman said he was confident in the evidence he had: a rape victim's strong eyewitness ID of Cardona and his toothbrush found at the scene. "I thought it was solid to support a conviction," Herman said. Hairs from the bed and T-shirt - they were a gamble. If none belonged to Cardona, it would not point-blank exonerate him, Herman says. And it may have mucked up the prosecution's case against him. Besides, Herman knew Cardona's defense team had asked to have the hairs tested at a private DNA lab - an effort he did not oppose.

So if the prosecutor doesn't DNA test the hairs and his rationalization is that a result excluding Cardona as the contributor of those hairs would seriously muck up the prosecution's case, possibly raising enough reasonable doubt to support an acquittal, any defense attorney, paid in excess of $25,000 to represent Cardona, would surely obtain the testing? Right?:
In the months after Cardona's arrest in April 2006, the attorneys began their work, deposing witnesses, Amezaga's flying to Maine to take the victim's statement. In January 2007, Amezaga asked Circuit Judge William Berger to allow the defense to test the hairs at a private lab in Broward County, which the judge did. Amezaga said then Cardona's family would pay for the testing. Then their money ran out.

When a person who has paid a private lawyer runs out of money, he can have the state cover some basic costs by being declared "indigent for due process." Taxpayers then pay for the critical elements every defense deserves, including forensic testing and experts. The money is paid by the Justice Administrative Commission, an agency in Tallahassee that monitors requests.

. . .

In February, Amezaga received an invoice from the private Broward lab for the DNA testing. It cost a small fortune - $575 per hair, $350 per hour to review a case and $2,800 per day for expert testimony. Way in excess of what the JAC was willing to pay. In late April, Cardona's attorney returned to court and told [the judge] . . . that testing cost much more than the caps on costs allowed. . . . The commission, though, follows court orders from judges. And at that two-minute hearing in late April, Berger gave Cardona a critical ruling: "I find extraordinary circumstances and a need to have this particular lab engaged," the judge said. "Therefore the cap ... this will exceed it if necessary."

It seems that Mr. Cardona is in a great position to get his testing. What's more, is that these hairs have roots which makes DNA testing easier and implies that the hairs were forcefully removed (i.e. through a struggle), rather than deposited on the white t-shirt through casual contact or transference. So Mr. Zealous Defense Attorney took the judge's order for extraordinary costs to the JAC, right?

Well not so much:
Yet no test on the hairs in Cardona's case was ever done. Amezaga said it was not a strategic decision not to test the hairs; it was a financial one. He was unable to square the $6,000 cost of tests with what the state was willing to pay, he said.

But why was that? Berger had ruled Amezaga could exceed caps and spend more to get the hairs tested. The attorney looks taken aback when asked about this and refuses to say why. "You can draw your own conclusions about that," Amezaga said.

Just before Cardona's trial began in June, he met with Amezaga. That's when Cardona learned the hair evidence in his case had not been tested. Amezaga said the best legal advice he could give was for Cardona to fire him and get the public defender's office to represent him. That office, presumably, would be able to pay for the testing. Then the tens of thousands of dollars Cardona and his family had paid the attorney might all be for naught.

So Cardona went to trial [without the DNA testing and was convicted].

No one can truly know whether the toothbrush was planted at the crime scene or whether Esdras Cardona is innocent. But there is little question whether he deserved a better, more zealous, defense. His case is now in the hands of the West Palm Beach public defender and it is likely he gets his testing on appeal or in post-conviction.

As for Mr. Amezaga, he will likely be the subject of a non-frivolous claim of ineffective assistance of counsel, where he won't be able to sidestep the question of why he didn't get the DNA testing, when he had a judge's order allowing for the full expense of that testing to be paid by the State.

1 comment:

Danny Vice said...

In the United States, restitution for those incarcerated is certainly not guaranteed. In fact, in many states, there are more government resources for those released on parole than there are for those who have been wrongly incarcerated and later exonerated and released.

Currently, an overwhelming number of people who have been exonerated of a crime are not compensated for the toll the incarceration took on their lives socially and economically.

Thus far, only 22 states in the US have laws in place to provide some level of compensation for those who were wrongly convicted. This means a majority of those who went back to court and proved their innocence are then required to sue for this compensation.

This process utilizes significant resources that a recently released inmate typically does not have. For those who do have the knowledge or financial ability to bring a case, the enormous cost of the additional legal wrangling involved may soak up much of the payout.

Many victims of this outrageous process are handed the more daunting challenge of simply restoring their name, let alone consideration of a lawsuit that may or may not result in restitution for the time that has been lost.

What's more, the payout often times received is meager in comparison to what is usually lost. Marty Tankleff for example was sentenced to a New York state prison after being wrongly convicted of killing his parents. Although his case was recently overturned, Marty just recently visited his parent's graves for the first time since their deaths.

Ronnie Taylor, a Houston man who was recently exonerated of a crime he didn't commit was engaged to be married before his arrest in 1993. DNA testing proved his innocence 14 years later - allowing him to finally marry his bride Jeanette Brown. (source)

The Innocence Protect, one organization established in 1992 utilizes DNA testing as a means to force new hearings for those who are wrongly accused. It's website lists hundreds of cases of wrongly convicted individuals who's cases were overturned after a conviction.

While the Weekly Vice does not subscribe to every point of view of the Project's mission statement, one has to wonder where our culture would be without such advocates. Many wrongfully accused individuals have languished in prison for decades before their faulty convictions were tossed out.

Here are a few more examples of justice gone horribly wrong:

Dennis Brown from Louisiana was convicted of a 1984 rape and spent 19 years in prison before DNA testing confirmed that he could not have been the rapist.

Marvin Anderson became the ninety-ninth person in the US to be exonerated of a crime due to post-conviction DNA testing. Even when another individual confessed to the crime Lamont was accused of, the Judge upheld the conviction until DNA evidence finally confirmed Lamont's innocence. He wasn't exonerated until 1992, nearly 20 years after his arrest.

Orlando Boquete's wrongful conviction of attempted sexual battery was vacated a staggering 24 years after his arrest back in 1982.

Robert Clark, wrongly convicted of rape, kidnapping and armed robbery in 1982, languished in prison primarily by mistaken eyewitness. Mistaken identity seems to be a common theme with the cases that later get overturned by post-conviction DNA evidence. Clark was finally vindicated 24 years later.

Luis Diaz was wrongly convicted in 1980 as the 'Bird Road Rapist', where 25 women were attacked, many of them sexually assaulted. Diaz was convicted for 8 of them. His case was overturned 25 years later in 2005.


These are only a handful of the cases you can view HERE, however they are a sampling of the many instances where our legal system goes horribly wrong to such degree that compensation for one's life cannot be calculated as a mere loss of wages as most restitution awarding states provide.

The Weekly Vice supports tough sentencing guidelines for all sexual assault cases, particularly those of minor children.

We also believe however, that states should be equally aggressive with some level of state subsidy, restitution or other adjudged compensation that is deemed appropriate for each individual case. A dismal 22 states is not a goodwill showing for a nation who prides itself on a Justice For All philosophy.

Thanks For Accepting Comment-----

Danny Vice
The Weekly Vice