There are certain rights that most Americans consider fundamental,
even sacred - none more so than the rights to life and liberty.
But most of us accept that when people commit certain crimes the
government can take away these rights. Most Americans grant the
government the right to execute those guilty of the worst crimes.
Some 3,700 people await executions across 38 states. Behind that
support, however, is the belief that the system works and that
it is basically fair. However, over the last few years, the hard,
unbendable laws of science are challenging that conviction, shaking
that faith.
Consider the case of Earl Washington, which Peter Neufeld of
the Innocence Project at the Cardozo School of Law calls "one
of the most extraordinary cases in the country because everything
that could go wrong, did go wrong."
"His lawyer did a bad job," says Neufeld. "There
was police and prosecutorial misconduct, and there was a coerced
confession from a man who was retarded."
With partner Barry Sheck, Neufeld has used DNA analysis to help
free dozens of people convicted of crimes they didn't commit.
Among them was Earl Washington, a mildly retarded, black farm
hand from rural Virginia who was convicted of rape and murder
in 1982, and then sentenced to death. He spent 18 years in jail
and came within nine days of being executed. If not for DNA evidence,
Neufeld says Virginia would have killed an innocent man. "Every
time an innocent person comes close to dying and is saved through
DNA testing," says Neufeld, "I can assure you there
was a disaster in the criminal justice system."
Earl Washington has been out of jail for about a year and a half.
He has settled in Virginia Beach and plans to be married soon.
Washington is 42 years old. Tall, with a wide smile, he's a man
of few words, but he does recall his brush with the executioner,
when he came within nine days of being strapped into Virginia's
dark oak electric chair. Washington says he could hear the guards
preparing it for him. "You heard a humming," says Washington,
"because they tested the chair every day." Washington
says he wasn't scared, just angry at first. If you ask him how
he survived incarceration for 18 years, he quickly corrects you
by saying, "Seventeen years, nine months. Took it one day
at a time. That's the way I did it."
Washington won't say much about the case that sent him to death
row, except maybe a terse "no comment." Perhaps that's
understandable given what happened the first time he was questioned
about the murder of Rebecca Lynn Williams, a white 19-year-old
mother of three from Culpepper, Virginia. Washington's trouble
started in the spring of 1983 with a night of drinking with friends
and a fight with this brother over a girl. Washington, angry and
distraught, ran next door to the house of his neighbor to steal
a gun to confront his brother. The neighbor, an elderly woman,
tried to stop him, and Washington hit her with a chair, grabbed
the gun and ran back to his house to continue the struggle with
his brother, whom he eventually shot in the foot. Shortly after,
he was arrested and quickly confessed to assaulting his neighbor
and his brother. Then the police began to question Washington
about a series of unsolved crimes, including three rape cases.
Washington confessed to all of them. Then they asked him about
the rape and murder of Rebecca Williams. "Earl started crying
and confessed to that as well," says Neufeld. "The first
three rapes he confessed to were ridiculous [because] the victims
came in and said it wasn't Earl." So police dropped the charges.
"But on the murder case," says Neufeld, "there
was no victim alive to say that Earl didn't do it." So based
on his confession, police charged Washington with capital murder.
When Washington's case came to trial, it took a mostly white
jury 50 minutes to convict him. Ninety minutes later they sentenced
him to death. Then the Virginia Supreme Court denied his appeal
and set his execution date. Washington could have continued his
appeals, but Neufeld said he faced a daunting hurdle. "It
was the law in Virginia that if you wanted to file a habeas corpus
petition and you were poor, you had to represent yourself,"
recalls Neufeld. "Think about a retarded man, who didn't
finish elementary school, who had to read a transcript of his
trial, research the law, and then write a brief and then make
an intelligent argument before a presiding judge. It's ludicrous."
With the clock ticking toward his date with the executioner,
a fellow death-row inmate and lawyers from the NAACP filed a civil
rights suit arguing that death row inmates seeking appeals were
entitled to free legal council. Nine days before Washington was
scheduled to die, a judge stopped the execution. After that, Robert
Hall, a Virginia defense attorney, took the case. Hall believed
that police took advantage of a retarded man to coerce the confession.
"Earl was an IQ 69," says Hall, "an African American
living in a white community who learned that to get along, you
go along." So Washington did his best to provide police with
the answers they were looking for. For most of the interrogation,
says Hall, Washington parroted back the information that was fed
to him by police. But when Washington was left on his own, he
kept giving investigators the wrong answers. For example, when
police asked Washington if the victim was white or black, he said,
"black." In fact the victim was white. When they asked
him if she was tall or short, he said "kind of short."
In fact the victim was tall. Whey they asked him how many times
did he stab her, he said "once or twice." In fact, Williams
died of multiple stab wounds. "So left on his own,"
says Hall, "Earl was so far off the mark it was laughable."
Hall then examined the forensic reports. This was before modern
DNA testing, but technicians were able to compare genetic markers
from the crime scene with those from Earl Washington. Hall read
the report in disbelief. "The markers weren't Earl's,"
recalls Hall. "I went, My God. This was a rape-murder and
Washington wasn't the rapist." It was a startling discovery
- one that had been missed years earlier by Washington's original
lawyer trying his first capital case. But Hall's discovery didn't
sway the courts, and after a procession of legal defeats, Washington
was again facing death, notwithstanding the lab report. "The
presumption of innocence was overcome by the conviction,"
says Hall, "and in the words of former Virginia Attorney
General Mary Sue Terry, 'after conviction, innocence is irrelevant.'
So it's not just that you've lost your presumption of innocence,
it's that innocence doesn't matter any more."
As the years went by, Earl Washington's hopes for exoneration
shifted to the state crime lab in Richmond and to DNA analysis.
In the years since Washington's arrest, DNA testing technology
has made a dramatic leap forward, "easily the largest leap
in the criminal justice system in a hundred years," according
to Doctor Paul Ferrara, Director of the Virginia Division of Forensic
Science. The lab is home to the nation's first and largest DNA
data bank. It's a world of airtight cleanliness, precision and
security, where scientists work with tiny samples of blood, semen,
skin, even sweat from a headband, or saliva from a half-eaten
sandwich. They dissolve them in solution and then with a small,
powerful centrifuge, extract the DNA, copy it and build a perfect
DNA profile of the donor. "With today's technology,"
says Ferrara, "we can identify any individual uniquely among
the whole world population. So that's what makes it so powerful."
In 1993, 10 years after his arrest, DNA tests on a vaginal swab
taken from Rebecca Williams showed no link to Washington. His
attorneys petitioned then-Governor Douglas Wilder for clemency.
Wilder was still troubled by the confession, so on his last day
in office he offered a deal to Washington's attorneys: either
accept life in prison, or take your chances with incoming Governor
George Allen, a law-and-order Republican, who could well sign
your death warrant. Hall relayed the offer to his client. "Earl
had a question," says Hall. "If I take their offer I
live for sure but maybe here [in prison]. And if I don't take
their offer maybe I die. Is that right? Well, I'll live for sure."
So Washington's legal team accepted the offer.
By this time Washington had been in jail for close to 11 years.
He'd remain there for another seven until another round of tests
with the latest DNA technology cleared him. Virginia Governor
Jim Gilmore finally granted Washington a full pardon. That final
DNA test freed Earl Washington, but Paul Ferrara of the state
crime lab said it also revealed the DNA profile of another black
man in police custody for another crime who was free at the time
of the Culpepper murder. "Because of those results,"
says Ferrara, "the State Police took over the investigation,
and it's still an ongoing investigation." In other words,
the DNA test not only pointed to Washington's innocence, but also
to another man's guilt. Peter Neufeld says this should be the
kind of evidence that prosecutors would jump on to seek an indictment,
"but not here," he says, "Because to do so would
require a public admission that Earl Washington was completely
innocent, and that an innocent man was almost put to death."
Culpepper, Virginia is a quiet town, where the gray, stone monument
to the Confederate dead stands peacefully beside the brick and
white columned courthouse. It seems a world away from modern forensic
science and from the brutal murder of a young woman almost 20
years ago. But Culpepper's county prosecutor, Gary Close, still
maintains Washington is guilty, and that his advocates are misguided.
"In my opinion the jury made the right decision," says
Close. "I don't think the DNA evidence which they hang their
hat on is the magic bullet that [should have] exonerated Earl
Washington."
Close says the DNA is just one piece of evidence, and in his
opinion, it doesn't explain away the significance of Washington's
confession. "The fact that there is no DNA [at the crime
scene] doesn't mean [Washington] wasn't there. And it very well
may be that there was more than one person involved and one of
them left DNA and one didn't."
The trouble with that theory is that just before she died, Rebecca
Williams told police that her attacker was a lone, black man.
Gerald Zerkin, a member of Washington's defense team, says prosecutors
are downplaying the significance of the DNA evidence because it
doesn't help their case. "If DNA analysis had shown that
Washington was guilty," chides Zerkin, "Gary Close would
be jumping up and down saying, 'see - we told you. DNA is the
silver bullet.'"
This debate has moved beyond the guilt or innocence of one man,
and concerns broader questions about the fairness of capital punishment.
Advocates of Earl Washington say his case shows what's wrong with
the death penalty - and indeed the entire criminal justice system.
On the other side are people like C.B. Jones, the retired Culpepper
police chief who oversaw Washington's arrest almost 20 years ago,
and who inevitably link the case for Washington's guilt to their
support of the death penalty. These days Jones lives quietly in
the Virginia countryside not far from Culpepper. Cancer has slowed
him down, but when he talks about the Earl Washington case his
blue eyes still blaze with passion. Jones still maintains that
Washington is guilty and that "justice was not served."
Of Washington's confession, Chief Jones says his officers "didn't
lead that boy." Lost in the politics of the case, he says,
is concern for the families. "What about them," asks
Jones? "I know that mistakes get made, and hopefully we don't
execute people who aren't guilty," he continues. "But
no system's perfect."
But when a system's imperfection almost takes an innocent life,
what does that say about the system? That question prompts a robust
debate. Steve Rosenthal, Virginia's acting Attorney General who
ordered the first round of DNA tests in the Washington case, says
it would have been relatively straight forward if this case had
come to him today instead of in 1993 when modern DNA analysis
was still being developed. But Rosenthal argues that the system
did eventually permit the test that freed Washington, "so
in the end," he says, "it worked." Gerald Zerkin,
who helped defend Washington dismisses that claim as "silly,"
and says Washington is alive today because of luck. He was lucky,
says Zerkin, because there was DNA evidence to test - unlike in
the large majority of cases in which there is no DNA evidence.
"The system failed," Zerkin contends, "because
someone was convicted and sentenced to death for a crime he did
not commit." Furthermore, says Zerkin, it suggests that many
innocent people will never be exonerated because they are not
"lucky" enough have DNA evidence to test.
Earl Washington spent almost half his life in jail. When he was
sent away to death row he had the love and support of his parents.
When he walked out, they were both dead. He is reluctant to talk
about how he feels about the death penalty. He would rather focus
on his new life. "Things are going great," he says.
"I do what I want to do now. Go to bed when I want to. That's
it." But when asked if he misses anything at all, he concedes,
"yeah. My parents." And one more thing, he says. "Only
thing I really want is someone to apologize for what happened."
Washington looks away into the hazy afternoon air and adds with
a note of weariness, "looks like they won't."
The movie and the book, Jurassic Park, tell the story of a brilliant
-- if misguided -- scientist who builds a modern-day theme park
populated with real dinosaurs. In the story, scientists recover
tiny strands of dinosaur DNA from fossilized mosquitoes that have
been preserved for tens of thousands of years in amber. They isolate
the DNA, copy it and construct perfect dinosaur-DNA profiles -
and then, real dinosaurs. The idea that we can resurrect dinosaurs
may be science fiction, but the science that inspired the story
is real. A process called polymerase chain reaction - or PCR -
is allowing scientists to reach back in time and resurrect not
dinosaurs, but truth.
Truth is often unearthed, and science always revered, in the
laboratory of Dr. Edward Blake, just outside San Francisco. The
first thing you notice just outside his office is a miniature
scale that weighs two small cards: one of the cards reads, "The
opinions of forensic scientists," and it appears to be much
heavier than the other card, which reads: "The opinions of
lawyers." When prompted to comment on the display, Blake's
gravelly voice cracks into a laugh. "Most of us believe that
the opinions of lawyers aren't worth very much," he says,
"because lawyers believe that under the umbrella of advocacy
they can lie through their teeth." Blake's eyes are already
ablaze with indignation as he practically pants with passion.
"And they're not even ashamed to admit it."
Blake is a man of strong opinions. He's also one of the nation's
most respected forensic scientists, and the first to work with
PCR, the technique that inspired "Jurassic Park," and
in 1985, revolutionized DNA testing. "We're at the level
now," explains Blake, "where we have the holy grail
of genetic discrimination." Blake says this revolution in
genetic discrimination was like replacing a pair of blurry glasses
to study the stars with the Hubble telescope.
The exoneration of Earl Washington shows just how powerful modern
DNA testing is. A police investigation, a confession and a jury
sentenced Washington to die. DNA analysis set him free. Peter
Neufeld of the Innocence Project calls DNA "the gold standard
of Innocence" because it is much more reliable than all the
other kinds of traditional evidence - such as eyewitness testimony,
hair analysis, or statements from jailhouse informers. "This
is scientific evidence," says Neufeld, "that can prove
identity conclusively."
But some people worry that the reverence for science in general,
and DNA in particular, can go too far. Gary Close, the County
prosecutor in Culpeper, Virginia, where Earl Washington was tried
and convicted, worries that respect for science has been elevated
to "almost religious faith." Close does not dispute
that DNA offers investigators a powerful tool, "but criminal
cases don't rest solely on DNA," he says, "but on a
wide range of evidence." In the case of Earl Washington,
Close believes Washington's confession outweighed the DNA evidence.
Some, including the forensic scientist Edward Blake, say that
represents the stubborn refusal of public officials to admit they
made a mistake and sentenced an innocent man to death. "The
only objective evidence [in the case] is the sexual assault evidence,"
argues Blake, "and that evidence has spoken as loudly as
any evidence could speak." And in this case, Blake says,
the evidence clearly demonstrated Washington's innocence and the
state's error.
But on the broader issue of DNA analysis as a final finder of
truth, Blake is more cautious. "It helps establish a fact,"
he says, "and that's it." And fact, he argues, doesn't
always lead to the truth. Consider the trial of O.J. Simpson in
which prosecutors presented a wealth of credible DNA blood-evidence
that linked Simpson to the murder of his wife and her companion.
Simpson's defense team, which included Blake as an advisor, couldn't
challenge the DNA science, so they challenged how it was interpreted;
and accused police and prosecutors of tainting the evidence -
even planting it. Blake says the blood evidence in the Simpson
case was clearly an important component. "But when the entirety
of the case is compromised by the way the government conducts
its affairs," he says, "reasonable doubt raises its
ugly head." In other words, the case showed that in the hands
of skillful lawyers like Barry Sheck and Peter Neufeld, DNA is
just one piece of evidence among many.
Since the mid-1980s, DNA testing has led to a number of spectacular
exonerations of the falsely convicted. But as a prosecutorial
tool it has led to many more arrests and convictions. At the Virginia
State crime lab, which houses the nation's first and largest DNA
databank, Dr. Paul Ferrara says his staff averages almost two
"cold hits" a day - when they match DNA evidence from
a crime scene with the profiles stored in their computers. "It
happens daily now," Ferrara says with a good deal of pride.
During our visit, Ferrara takes us into a "codis room,"
where forensic scientist Bob Scanlon uses a computer to work on
an unsolved rape case from 1996 that hadn't been subjected to
modern DNA testing until now. Sperm from the victim produced
a DNA-profile that's now being compared to nearly 200,000 profiles
in the databank. Scanlon watches rows of numbers fill his screen.
Then, as Ferrara leans over his shoulder, Scanlon points to one
set of figures that are flashing. "That's probably a good
hit," he says. This cold hit will provide a name of a suspect,
as well as probable cause that will permit police to seek an arrest.
Ferrara says cold hits like this also often lead to quick convictions.
"When confronted with a strong case that includes DNA,"
he says, "a lot of people recognize they're better off taking
a plea than fighting it."
The state of Virginia is expanding its DNA databank to make
it even more effective. Under a new law, the state plans to take
saliva-based DNA not only from convicts, but from everyone arrested
for a violent crime. Jerry Kilgore, Virginia's Attorney General
who sponsored the new DNA law, says it will enlarge the data bank
and give law enforcement officials a chance to catch violent offenders
more quickly. "It's a public safety issue," according
to Kilgore, who says the new law will provide "a better opportunity
to determine if we have a serial killer, or if we have someone
who has committed crimes over and over again."
Law enforcement officials in Virginia are embracing the power
of DNA to reveal the truth. But they are resisting one DNA test
that could reveal a mistake and shake the public's faith in the
criminal justice system. Since 1976, a hundred people have been
freed from death row, 12 because of DNA. Opponents of the death
penalty say these numbers expose a flawed system that more than
likely has executed innocent people. In fact, that's never been
proved, but now DNA could answer the question: did the state of
Virginia kill an innocent man 10 years ago?
Grundy, Virginia is a remote, small town that sits in a deep
ravine in the heart of the Appalachian hills. On most days, the
mile-long freight trains laden with coal dug from the shafts deep
beneath the scarred countryside rumble and rattle through the
town. In March of 1981, Grundy's monotony was interrupted by the
rape and murder of 19-year-old Wanda McCoy in a small, white house
overlooking the bubbling waters of Slate Creek. McCoy was raped,
stabbed, and her throat slashed so violently that she was practically
decapitated. Police quickly focused on her brother-in-law, Roger
Keith Coleman, a white coal miner who'd been jailed once for attempted
rape. Coleman was tried, convicted and sentenced to death. For
10 years, along with a network of lawyers and supporters, Coleman
insisted he was innocent; but by the spring of 1992 - as the rains
swelled the waters of Slate Creek - Coleman's legal remedies were
exhausted and he was executed. Jim McCloskey fought for years
to save his life, and is still trying to clear his name. "I
promised Roger Coleman the night he was executed [that] I would
do all within my power to prove that he was innocent," says
McCloskey. "Those were my last words to a dying man."
McCloskey is a former management consultant, who founded Centurion
Ministries in Princeton, New Jersey, where he works to get the
falsely convicted out of jail and sometimes off of death row.
On the walls of his office, framed newspaper pages tell the stories
of the 25 men he's helped to free in the last 20 years. Also on
the wall, the cover of Time Magazine from May 19th 1992, the day
before Roger Coleman was executed. It shows a picture of Coleman
and the caption, "This man might be innocent. This man is
due to die."
Ten years on, Jim McCloskey remains convinced Coleman was innocent,
and he thinks DNA can prove it. At issue is a small, carefully
preserved vial that contains a few drops of fluid from a vaginal
swab taken from Wanda McCoy the night she was murdered. The evidence
has never been subjected to modern DNA analysis, and McCloskey
and several major newspapers have gone to court in Virginia to
win the right to test it. "I would hope that we would all
want to discover the truth of the matter. What's the argument
for this not to be done?" asks McCloskey. Officials in Virginia
have argued in court that the case is closed, and that there's
nothing to suggest that Roger Coleman was innocent. The state's
attorney general, Jerry Kilgore, points out that DNA analysis
available at the time didn't rule out Coleman as the murderer.
That's true, but neither did it prove his guilt. But Kilgore says
the evidence in the Coleman case has been "tested, retested,
and re-retested," and it is now long past time to move on.
"All the DNA evidence points to Roger Coleman as being the
culprit of this terrible crime."
Back in Grundy, a bronze statue of a coal miner, tarnished by
the weather, stands in front of the gray-stone courthouse where
Roger Coleman was convicted and sentenced. Phillip Van Dyke is
an old high school buddy of Coleman's, who believes the pressure
to solve the case that terrorized this quiet community 20 years
ago led to a rush to judgment. Van Dyke recalls the sign that
a member of the town posted right beside the courthouse where
Coleman was being tried, which read: "It's time for another
hanging in Grundy."
"How," Van Dyke wonders, "do you have a trial
inside that court house? It's obvious that people's minds were
made up."
Van Dyke was a witness for Coleman's defense who challenged a
crucial piece of the prosecution's case. Prosecutors said Wanda
McCoy was murdered at about 10:30 in the evening, but Van Dyke
says that's just when he stopped to talk to Coleman after Coleman
left work several miles from the victim's home. Van Dyke says
there was no reason for Coleman to murder his sister-in-law, but
even if he wanted to, he could not have done it in the time frame
laid out by prosecutors. A witness for the prosecution put Coleman
closer to McCoy's house just before the murder, but that still
would have left only a few minutes for Coleman to park his truck,
wade across Slate Creek, walk a hundred yards up to Wanda McCoy's
house and commit the crime. But Tom Scott, who prosecuted the
case and still lives in Grundy, says that's all the time Coleman
needed. "He certainly didn't go there to make love to this
woman," says Scott. "He went there, slit her throat,
he stabbed her twice in the chest, he raped her…and quite
frankly, I don't think that encounter took more than five or 10
minutes."
Scott built his case with circumstantial evidence. There was testimony
from a jailhouse snitch, but no witnesses. Blood and hair tests
pointed to Coleman, but they weren't conclusive. Meanwhile, Coleman
was represented by two court-appointed attorneys trying their
first capital case, who failed to present important evidence to
rebut the prosecution's case.
And then there were dramatic claims by several people in Grundy,
including a young woman named Teresa Horn, who said another man,
a neighbor of Wanda McCoy's, admitted to the murder. Horn was
reluctant to go public, but years after Coleman was convicted,
she finally came forward and made a statement to a local television
station. The next day, she died of a drug overdose, and to this
day, Jim McCloskey and others in Grundy suspect she was silenced.
McCloskey says, before she died and after much prodding, he convinced
Horn to give him a sworn affidavit. "She was a scared and
shaken women," recalls McCloskey, "because she was afraid
that if she did come forward that the real killer would kill her."
McCloskey spent years gathering evidence in support of Coleman's
innocence, which never made it into court. That's because lawyers
handling Coleman's appeal misread a deadline and filed papers
one day late. That clerical error led to a string of legal defeats
that went all the way to the U.S. Supreme Court, which finally
ended Coleman's 10-year legal battle for his life.
But McCloskey says Coleman execution didn't resolve a crucial
question: "Did the Commonwealth of Virginia execute an innocent
man or guilty man?"
The answer to McCloskey's question could reside in the vaginal
swab, a few drops of which have been stored in the lab of Dr.
Edward Blake, the highly regarded forensic scientist. After Coleman
was convicted, DNA analysis available at the time placed him in
about 2 percent of the population that could have committed the
crime. Dr. Blake says, if Virginia officials would let him test
it again with today's technology, he could answer the question
definitively. But Blake says, "every effort was made by the
Virginia Attorney General to stop that process." Virginia
officials want Blake to send the evidence back to Richmond. So
does Tom Scott, the former prosecutor, who believes Coleman's
advocates are using the evidence to push a political agenda. "If
perchance the DNA test were to be conducted," Scott says,
"and deflects attention away from Mr. Coleman, then they
would certainly use that to beat the bandwagon to attempt to have
capital punishment outlawed." That may be the one point on
which the two sides are in full agreement. Washington, D.C. attorney
Paul Enzinna, who represents Centurion Ministries and the newspapers
pushing for the test, says advocates of Mr. Coleman and the press
would "shout it from the rooftops" if the test proved
Coleman was innocent. "The state keeps telling the citizens
that we need the death penalty and that we're dong it right,"
says Enzinna. "The public has a right to know if the state
is doing it right."
Enzinna fears that to avoid potential embarrassment, Virginia
will destroy the evidence if it gets hold of it. Not true says
Attorney General Jerry Kilgore. But Kilgore argues that the doctrine
of finality requires that at some point criminal cases must be
concluded and closed for good. "We have to some day look
to finality of judgment," Kilgore contends. "We feel
certain in Virginia that Roger Coleman committed the crime and
was punished appropriately." Such statements enrage Edward
Blake, the forensic scientist, who argues, the constitution says
nothing about a "doctrine of finality. Blake says he's not
opposed to the death penalty, and believes the test could well
confirm Coleman's guilt. But he says it's important to be sure.
"The way I understand the democratic process," says
Blake, "is the public has a right to know about the actions
of the government."
The decision to test or not is now in the hands of the Virginia
Supreme Court. As he stands in front of an open refrigerator that
contains the small vial of evidence, Blake says he will not test
it without the court's permission. But he also says, he will not
send it back to Virginia, whatever the court decides. "Nobody
can force me to sent it back," Blake says defiantly. "At
issue here is the public's right to know."
(UPDATE: DNA tests conducted in January 2006 confirmed the original guilty verdict in this case. Click here for more on this story.)
If the government takes a person's freedom away, locks him up,
condemns him to death and then DNA analysis proves him innocent,
what does the government owe that person? How can society repay
stolen years? Restore a ruined reputation? Or heal a scarred soul?
DNA testing can free some of the falsely convicted, but it can't
give them back their lives.
A recent gathering at the Center on Wrongful Convictions at Northwestern
University in Chicago makes the point. The center investigates
and litigates cases of mistaken convictions, including those of
nine innocent men sentenced to death in Illinois who were freed.
One of them was Darby Tillis, who describes the horror of spending
10 years condemned to die for a murder he didn't commit. "It
was no joke," says Tillis. "I was not there to use up
taxpayer money. I was there to die!"
Tillis was convicted of the murder of a hot dog vendor on the
north side of Chicago. A witness implicated him, but it was later
revealed she was protecting her boyfriend, the real murderer.
Tillis, 60 years old, was released in 1987, but he says after
a decade in prison he still suffers from debilitating mood-swings.
"I'm very sick," he says.
In a classroom overlooking Lake Michigan, about 30 law students
gather to hear Tillis and six other men who were sentenced, most
of them to death, for crimes they didn't commit. Leading the discussion
is Rob Warden, Executive Director of the Center, who says society
typically does little or nothing to compensate people who have
been wrongly convicted. "We've really established barriers,"
he says, "to treat these victims fairly."
A case in point on this evening is Ronald Jones, who was sentenced
to death for the rape and murder of a young Chicago woman in 1985.
He was convicted on the basis of a confession that he says was
beaten out of him by Chicago police. Years later, after a DNA
test proved he was not the source of the semen recovered from
the victim, he was exonerated and released from prison. Prosecutors
abandoned the case, but Jones says the message he gets from the
justice system is that he committed the crime, even if "DNA
said I didn't do it." Jones says, "the blessing of DNA"
unlocked the prison, but it didn't give him back his life.
Fourteen states provide some sort of compensation to the wrongfully
convicted, including Illinois. But they must apply for a pardon
based on actual innocence, as opposed to a lack of evidence of
guilt. Consider the case of Kenneth Adams, who spent 18 years
in jail for rape and murder until a DNA test freed him. It took
another year to get a pardon. "I kind of resented that,"
says Jones, "because it didn't seem right that we had to
request a pardon to receive any compensation." Adams believes
that the state should at least provide those it locks up in error
with some sort of counseling when they are released. Referring
to his own case, Adams said prison took away "18 years of
life" and left him with "18 years of prison memories
of hell."
"How can you assume," he asks, "that a man does
18 years in prison, then gets out and [that] everything's alright?"
Adams is one of the so-called "Ford Heights Four," who
eventually shared in a $36 million settlement from a civil rights
suit. But such outcomes are rare. Of the six other men here, four
have received nothing at all. Larry Marshall, the legal director
of the Center on Wrongful Convictions, says as hard as it was
for Adams to put his life back together, and difficult as it still
is for him to continue to live with the nightmares and stress
disorders, Adams represents a good story. "That's a happy
ending," says Marshall.
And when it comes to DNA exonerations, Marshall says, it's important
to keep in mind the following: since 1989 more than a hundred
people have been released from prison because of DNA tests, 12
of them from death row. While this is just a fraction of the
nation's criminal cases, it suggests how false convictions and
other defects plague the entire criminal justice system, including
the vast majority of cases in which there is no DNA evidence available.
"We need to look at DNA as a lens into the problem of wrongful
convictions," he says. Marshall argues that DNA is showing
how problems such as eyewitness error, prosecutorial misconduct,
false confessions and poor legal counsel corrupt the criminal
justice system.
Meanwhile, Peter Neufeld of the Innocence Project in New York
says DNA has recast the debate about the death penalty. "With
the frequency of these DNA exonerations," Neufeld contends,
"people are saying, 'it's not about morals, politics or religion
- it's about the reliability of the system.'" Not surprisingly,
supporters of the death penalty, such as Dudley Scott with the
Texas-based group, Justice for All, have a different perspective.
Scott says DNA testing has made the death penalty and all criminal
sanctions less prone to error and "safer." Scott argues
if the states want to protect the innocent through criminal justice
reform, they should look to toughening post-conviction parole
and appeals, which he says are "very likely responsible for
the murders of 100,000 innocent people since 1973." Scott
says "reason and logic" would suggest that the states
have probably executed innocent people. But on the other hand,
he says, knowing that murderers live and harm again, many more
people would be put at risk if capital punishment were to be abolished.
The likelihood that the innocent are being executed was enough
to compel Illinois Governor George Ryan, a one-time supporter
of the death penalty, to suspend executions two years ago. Simple
arithmetic convinced him the system was broken: of 25 people put
on death row in Illinois since 1987, 12 were executed, and 13
were falsely accused and eventually freed, including Anthony Porter,
a retarded man who came within a few days of execution for a murder
he didn't commit. So Ryan halted a system he says was like flipping
a coin. "It's a system that either works or it doesn't,"
says Ryan. "And if it doesn't, then we shouldn't have it."
It was largely the work of the Center on Wrongful Convictions
that made a convert of Ryan, and led to a sweeping study of the
death penalty in Illinois. Ryan's commission proposed 85 ways
to prevent executions of the innocent, including the establishment
of a statewide DNA database. Other recommendations include requiring
police to videotape interrogations to discourage coerced confessions;
a ban on executing the mentally retarded and those convicted on
the basis of a single eyewitness or a prison informer. Ryan's
commission said that without major reform the capital punishment system
cannot be trusted. For his part, Ryan says more people need to
understand how the death penalty works, or doesn't work. "I
think a lot of people are like I was and feel the death penalty
works and works well," he says. "I didn't realize it
until I was the guy that had to throw the switch."
Perhaps the last word should come from the case of Earl Washington,
where this documentary project began. But the reality is that
in spite of stories like these, the majority of Americans still believes
in the death penalty. Washington spent 18 years jailed in Virginia
for murder until DNA exonerated him. Kenneth Stolle, a State Senator
from Virginia Beach, where Earl Washington now lives, concedes that
the investigation that led to Washington's conviction was flawed,
and his pardon justified. But he says the same can be said of
the death penalty: it's flawed, but justified. He says the question
for people to consider is, does the benefit of the death penalty
outweigh the possibility that we may be putting an innocent man
to death? "And right now," says Stolle, "the vast
majority of the public that I represent feels that the death penalty
is a necessary evil."
That may be a fitting last word because in the end it reflects
how most Americans feel. Over the last five years, the advent
of DNA testing and a procession of high profile exonerations have
weakened overall support for capital punishment. But according
to national surveys, about two thirds of Americans still support
it, even as the vast majority now understands that the system
is imperfect or, according to some, fatally flawed.
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