The value of finality

One of the systemic problems contributing to the problem of wrongful incarceration – besides wrongful convictions in the first place – is a fierce reluctance by the system and its constituents to overturn previous convictions. This is what we casually refer to as the value of finality. Courts are afraid of getting 'bogged down' with every claim of innocence or procedural error, so much so that they create daunting procedural hurdles to having an appeal heard. Add to that the resistance from prosecutors and DAs who are afraid of losing face when it is revealed that they had convicted the wrong person. A picture of the difficulty facing innocent imprisoned now beings to take shape.

Two articles came out just now, in the New York Times and USA Today that are related to this attitude that stands in the way of justice post-conviction. The New York Times' A1 story discusses prosecutors' reluctance to grant DNA testing:

A recent analysis of 225 DNA exonerations by Brandon L. Garrett, a professor at the University of Virginia School of Law, found that prosecutors opposed DNA testing in almost one out of five cases. In many of the others, they initially opposed testing but ultimately agreed to it. In 98 of those 225 cases, the DNA test identified the real culprit.

I find this particularly insulting:

In Illinois, prosecutors have opposed a DNA test for Johnnie Lee Savory, convicted of committing a double murder when he was 14, on the grounds that a jury was convinced of his guilt without DNA and that the 175 convicts already exonerated by DNA were “statistically insignificant.” (emphasis mine)

Says the New York Times, "Defense lawyers also say the arguments ignore the proven power of DNA to refute almost every other type of evidence." I'm not sure what the "almost" refers to, unless it is, say, an autographed and notarized picture of the defendant committing the crime.

Also today, USA Today ran a story on A3 about Troy Davis. Davis has been on death row for 18 years, though the case against him has since collapsed. Simply put, the State is unwilling to grant Davis a new trial just because he has already been convicted once.

Davis' attorneys and advocates for the wrongfully convicted say his case, set for another U.S. Supreme Court appeal this week, represents one of possibly dozens in which courts are reluctant to consider evidence discovered after conviction that might exonerate inmates on death row.

Davis' stay of execution ran out on Saturday. You can visit Amnesty International's page on Davis here.

Houston man, victim of prosecutorial misconduct, could be freed on bond

An article in the Houston Chronicle a few days ago told the story of Gary Alvin Richard, who was convicted of a rape and robbery in 1987. Richard has spent 22 years behind bars for what is now clearly a crime he did not commit. New blood-typing tests and recently-unearthed (withheld evidence, in this case) prosecutorial misconduct solidify that conclusion.

Both sides are asking a judge to overturn his conviction.

A jury convicted Gary Alvin Richard in a 1987 attack on a nursing student in a trial based largely on blood-typing evidence from the Houston Police Department crime lab. But, prosecutors and the defense attorney agree, new tests completed Friday show that an [Houston Police Department] analyst misled jurors at Richard’s trial and failed to report evidence that may have helped him.

Based on the new tests, both sides will ask a judge next week to release Richard on bond while they sort out what happened in his case...

Richard’s case abounds with issues common to wrongful convictions. Among them:

The victim identified him some seven months after the attack. HPD crime lab analysts came to conflicting conclusions about the evidence, but reported only the results favorable to the case. Physical evidence collected in what is known as a “rape kit” has been destroyed, a victim of poor evidence preservation practices, leaving nothing for DNA testing now.

Richard's case is of many that have come to light since the Houston Police Department initiated a review of past cases in October of 2007. That review was spurred "days after DNA evidence cleared Ronald Taylor of sexual assault in a case where HPD analysts performed faulty tests on body-fluid evidence." Kudos to Houston for reviewing its past cases with some genuinely desire for justice, but this episode also serves as a reminder of the importance of getting things right the first time.

Visit IPF's Website by clicking here; sign up to volunteer by clicking here; contribute to our work by clicking here.

Destroyed evidence in Manatee County, Florida raises eyebrows

Let's play a game called Count the Outrages.

Derrick Williams is serving a life sentence for a rape he says he didn't commit. The Innocence Project of Florida has taken an interest in his case and was in the process of investigating further about the possibility of testing a crucial hair when they were notified that the evidence has been destroyed. In fact, it was destroyed several years ago along with the evidence for as many as 4,000 other cases.

The reason? One of the evidence vaults for the Manatee County Sheriff's Office suffered a flood that led to an infestation of mold. Several thousand cases' worth of evidence was destroyed in 2003 – without the knowledge of the public defender's office or the lawyers for those inmates whose cases were affected. Now that the Sheriff's Office is moving the remaining evidence to a new storage facility, they are taking the opportunity to destroy as much surviving evidence "as legally possible."

Sheriff's Office spokesman Dave Bristow blew off any concerns about the impact this might have on those cases at issue. He said, "These were cases that had already gone through the system, or ones where the chances of solving them were slim and none."

I count three outrages.

First, why is evidence in Manatee County being stored in a place where it is even possible to be flooded? It's not often that the Gulf of Mexico lurches inland several hundred feet. If this were the result of a hurricane, it might be understandable, but it apparently wasn't. Store vital biological evidence inland. Store it in a cool, dry place. Store it in a waterproof chamber. Store it off the ground level. Or face justified accusations of negligence.

Second, it took the Sheriff's Office six years to come clean about the destruction of this evidence. That, in itself, is reason to believe that if the Innocence Project of Florida had never made an inquiry into Williams' case, we would never know what happened to his – or the other – evidence. When did they plan to tell the lawyers for these inmates, or the inmates themselves? Since they let it lapse for six years, it doesn't seem like the loss of evidence in 4,000 cases was a big deal for them.

Third, it's crassly irresponsible to ignore the post-conviction possibility of exoneration for these affected cases. Frankly, it's unacceptable to write them off as if the book has been closed on them and then destroy evidence that you are, by law, required to preserve. We know in at least one of the cases that Manatee County might have had an exoneration on its hands. And on top of that, it appears it was flat out not true that these were all case-closed: "Some of the destroyed evidence was also from unsolved cases, including homicides. Sarasota Police recently made an arrest in a murder from 30 years ago based on DNA and fingerprints from evidence collected at the crime scene."

See these articles for more:

• Destroyed evidence surprises Manatee lawyers in the Sarasota Herald-Tribune
  
• Flood damage to evidence being assessed in the Bradenton Herald

Update from Seth Miller: I count a fourth outrage. It appears that they are destroying more evidence as they move to a new storage facility. In 2006, the Florida Legislature amended the post-conviction DNA testing law to require evidence-holding agencies to preserve physical evidence that may contain DNA for the length of the sentence or for at least sixty days after an execution in a death penalty case. Are they destroying evidence that could still have biological evidence on it despite the mold? Are they destroying evidence that they deem not to matter anymore that wasn't damaged by the flood? These key questions need be answered.

Take, for example, the case of the court and police evidence rooms for Orleans Parish, which were completely flooded and left to mold in the summer heat of New Orleans after Hurricane Katrina. New Orleans is under sea level to begin with and practically the only thing that was kept under ground were the evidence rooms at the court and the police department. The rising waters affected both old and new evidence.

There are major problems with the way the local authorities handled the evidence as the New Orleans police removed evidence from that room, let it dry out in a dry place, and then simply put it back in the once moldy room. But the court, at least, removed the evidence, did not destroy any of it, and now stores the evidence in a climate-controlled facility well above ground. Additionally, defense, prosecutor, law enforcement, and court officials have come together to think about better ways to preserve evidence so it can maintain its integrity for future use and be easier to locate. As messed up as New Orleans is today, over three years since Katrina, the Manatee Sheriffs could learn a thing or two about how handle natural disasters and avoid destruction of evidence in the future.

Visit IPF's Website by clicking here; sign up to volunteer by clicking here; contribute to our work by clicking here.