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Part I: Fatal Flaws - Earl Washington's Story

Part II: Science of Truth and Roger Coleman

Part III: Law and Politics of Death.

Fatal Flaws: The Case of Earl Washington

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."

DNA and the Science of Truth

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."

The Roger Coleman Case: Did Virginia Execute an Innocent Man? DNA Might Have the Answer but the State Doesn't Want to Hear It.

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.)

DNA and the Politics of the Death Penalty Debate

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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