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Innocence Lost: DNA Tests Expose Justice System's Flaws

When innocent prisoners are exonerated through DNA tests, we celebrate. But DNA is no magic bullet: only 94 innocent people, out of perhaps 100,000, have been freed since 1988.
 
 
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It's the morning of Thursday, October 11 and Anthony Michael Green makes a quick stop at a convenience store. Purchase in hand he pockets his change, all except for one coin, which he stares at intently as he exits. Finally, he turns to the journalist walking at his side, the coin held up for closer examination. "What kind of money is this, some kind of Canadian quarter?" he asks, the confusion on his face evident.

Laughing, the reporter assures Green that it is indeed American money. "It's a state quarter," he says, "that one's from Connecticut." Noting his companion's bewilderment, he then explains how for several years now the government has been releasing different quarters for each of the 50 states.

"I've been gone a long time," Green mutters in reply, still staring fixedly at the silvery disk, and for a moment his brow furrows and his face grows dark. But within seconds his expression abruptly shifts, a spreading grin indicating his previous good humor is restored. "This is my first quarter," he chuckles, "I'm going to save this one."

There's an obvious reason why Michael Green (he prefers to go by his middle name) has never seen a state quarter, why even mundane acts carry an emotional punch for the handsome, well spoken 35 year-old. You see, it is only the second full day of Michael's freedom. In fact, for the previous 13 years -- nearly the entire span of his adult existence -- he has been locked away and largely forgotten in a maximum security penitentiary, the result of his 1988 conviction "beyond a reasonable doubt" in an Ohio courtroom for the brutal rape of a dying, cancer-stricken woman at the famed Cleveland Clinic.

Of course, that's all changed now. Released on on bail October 9, his freedom became final nine days later when, on the basis of a legal motion by famed O.J. defense attorney and DNA expert Barry Scheck, a Cleveland judge vacated Green's conviction.

It is just the latest coup for Scheck's Innocence Project, the non-profit legal advocacy organization he co-founded nine years ago to harness fast developing DNA technology in the service of the wrongly convicted. Judges, prosecutors and much of the press will tell you that this proves the system works, that it can and will correct its mistakes. But the truth is, Green's case embodies exactly the opposite; examined closely, it reveals everything that is wrong with the criminal justice system, and exemplifies why DNA evidence, at least for the vast majority of wrongly convicted individuals, hasn't been the magic bullet the press and public think it is.

No Fault

Dr. Ed Blake of Richmond, California is the nationally renowned scientist who first introduced forensic DNA testing to the United States, and it is he who conducted the testing and produced the report for the Innocence Project that finally set Green free. "You don't convict someone beyond a reasonable doubt by accident," he says bluntly. "What happened to Anthony Green was not an error. The only way you prove an innocent man guilty is if the guy was framed."

And while there will likely never be an official assessment of why Green was wrongly convicted, the case has received enough scrutiny to make the key factors in the miscarriage of justice evident. In a nutshell, at the moment Green was chosen as a suspect by Clinic cops -- he roughly fit the victim's description of her assailant and had been recently fired by the hospital -- he was essentially as good as convicted. As with so many other Innocence Project cases, standard investigatory safeguards were violated and scientific evidence manipulated and misrepresented in order to make him appear guilty.

Along with a flawed identification from the victim, prosecutors used what seemed like solid scientific evidence to link Michael to the rape. One item from the crime scene was particularly important: a washcloth used by the assailant to wipe himself off after the rape was concluded. Based on stains on the washcloth, a Cleveland Police Department forensic lab employee named Joseph Serowick provided testimony concerning blood type that pointed to Green.

That testimony was later examined in detail by Dr. Blake. His conclusions were devastating, and led Michael's Innocence Project lawyers to describe Serowick's testimony as "scientifically irresponsible and misleading to the jury." Start with the fact that Serowick was well aware (or should have been) that, since the rapist had wiped off his genitals after the rape, the stain obviously contained both semen from the attacker and vaginal secretions from the victim. Though that was perfectly clear from the victim's account, if he had any doubts he could have confirmed it from a simple microscopic examination of the washcloth stain, which should have been standard procedure anyway, according to Blake. Nevertheless, Serowick testified that he was testing a pure semen stain, rather than a co-mingled one, and that therefore the "type B secretor" test result must have come from the rapist. He then told the jury that not only was Green a type B secretor, but also that fully 84 percent of the male population could not have produced such a result, a fact that the prosecution stressed in its summation.

However, Serowick knew, from a test of the victim's saliva, that she too had the same blood type, which essentially rendered his result meaningless. As Blake concludes, Serowick's test "excluded no one" because the substances he found could just as easily have come from the victim as from Green.

Usual Suspects

These sorts of serious errors in the prosecution's case against Green, as well as a host of others, have been found in previous wrongful convictions. Taken together, DNA exonerations make it clear that there is far too much shoddy investigation, bungled or misleading pseudo-scientific analysis, and tunnel-vision prosecution presented in American courtrooms. Dozens of stories reminiscent of Michael's are collected in Actual Innocence, written by Barry Scheck along with partner Peter Neufeld and double-Pulitzer Prize winner Jim Dwyer. They build a compelling case for the establishment of strict guidelines covering how evidence is collected and presented in criminal prosecutions.

"Now the fabric of guilt is laid bare," the authors write in reference to the mounting number of false convictions exposed by DNA. "Sometimes eyewitnesses make mistakes. Snitches tell lies. Confessions are coerced or fabricated. Racism trumps the truth. Lab tests are rigged. Defense lawyers sleep. Prosecutors lie. DNA testing is to justice what the telescope is for the stars… It is a revelation machine."

What's needed not only in the Green case, but in all post-conviction DNA exonerations, both Scheck and Blake argue, is an Innocence Commission -- an appointed panel of legal experts armed with subpoena powers in order to comprehensively investigate how and why an innocent person ended up imprisoned. The point, they say, is not only to apportion blame and ferret out the dishonest and incompetent, though that is extremely important, but also to establish comprehensive recommendations for the reform of the justice system.

"Such investigations happen everywhere else in the English-speaking world. It's only here in the U.S. that we refuse to do this," Blake says. He points to a Canadian example of such a commission, at which he testified, which looked into why an Ontario man was first acquitted and then later convicted of the murder of a nine year-old girl before being conclusively exonerated by Blake's DNA tests in 1995. It found that just about everything that could go wrong with the case did, including misidentifications, tunnel vision prosecution, fabricated police and snitch testimony and shoddy and fraudulent forensic scientific work.

The Canadian commission's detailed report (the executive summary alone runs to 40 pages), compiled after 146 days of open public hearings and perusal of more than 100,000 pages of documents, provides a blueprint for how authorities ought to handle exonerations, Blake believes. The actions of individual police officers, prosecutors, defense attorneys, forensic scientists, jailhouse snitches, and witnesses should be assessed, and recommendations should be made to correct the any investigatory, scientific or judicial errors.

Yet at a press conference held in the immediate aftermath of Green's exoneration, head prosecutor Bill Mason made it clear that he sees no need for any kind of official inquiry into what went wrong at Michael Green's initial trial. "We could do something like that," he says in answer to a reporter's question. "But you have to remember that the victim positively identified him as her attacker." In other words, Michael's conviction was an honest mistake that can be laid at the doorstep of one individual's fallible memory, he implies, and it would be a mistake to blame the system. "Our system is not without its flaws," he contends, "but every day we work to make it better."

The real explanation as to why post-exoneration inquiries don't happen is that they hold the potential to embarrass too many important people, Blake says. That's why, after all the DNA-driven reversals of the last decade, there hasn't been a single one in the U.S. Told that the lead prosecutor in the case is now a judge, Blake replies, "that's a common scenario. Now you understand why no one likes suggesting these things.

"But if we don't want to face more cases like Anthony Green's, we've got to start holding people accountable," he argues. "It shouldn't matter who it involves, whether it be judges, appellate judges, cops, prosecutors or defense attorneys, every person responsible for Anthony Green's [conviction] should have their malfeasance articulated and should be held up to public ridicule and removed from public service if necessary."

Dizzying Numbers

No one has any real idea how many innocent people are incarcerated in America's prisons, but it is clear the number is substantial, far more than most people realized prior to the widespread availability of DNA testing. And while DNA has already freed scores of people, thousands more either have yet to enjoy the benefit of testing, or remain beyond its reach.

According to nationally recognized defense attorney Terry Gilbert, the best estimates we have of the number of wrongful convictions is around five percent of the total. "To some people five percent may not seem like a lot," he says, "but when you consider how many thousands of people are convicted of crimes each year, you begin to get a sense of the size of the problem."

Based on the five percent figure, and given that roughly 2 million people are incarcerated nationally, there may be 100,000 innocents locked away across the country today. Compare that to the 94 DNA-based exonerations nationally in the last 13 years, and the discrepancy is stark.

Still, there is no question that DNA testing has had a profound impact on the criminal justice system. Scheck points to FBI pre-trial DNA results, which prove that in general, about 25 percent of those considered "prime suspects" by police turn out to be innocent. There is no question that without the benefit of genetic tests many of those unfortunates would have ended up convicted.

"It's unparalleled as a truth-finding tool," explains James Wooley, who is now a member of the National Commission on the Future of DNA Testing, a national blue ribbon panel set up three years ago by then-Attorney General Janet Reno.

It doesn't get the same level of media attention, but DNA testing has aided prosecutors at least as much as it has defense attorneys, Wooley explains: "Pretty much every prosecutor's office in America uses DNA testing, because when you have DNA results fewer cases need to be litigated because the evidence is so hard to challenge. Prosecutors nowadays win a lot of convictions with DNA, it's just that the press doesn't write about those cases as much."

But while DNA testing has already become part of the day-to-day routine in cases that produce biological material, usually murders or especially rapes, post-conviction reversals driven by DNA remain the most dramatic example of its power. The first occurred in 1988, and involved a Chicagoan by the name of Gary Dotson, who served 10 years for rape until tests by Blake won his release. Since that time no less than 93 others, Michael included, have been freed, most after spending years behind bars, and about 50 of those owe their freedom directly to the Innocence Project's efforts. Even worse, 11 of the 94 had been sentenced to death.

But for every person freed by DNA, there are dozens if not hundreds of others who never get the chance to have their convictions reversed. "We get hundreds of letters every week, and thousands every month," reveals Vanessa Potkin, staff attorney for the Project in New York. The vast majority of those requests go nowhere, some because an exclusionary DNA result would still not prove the innocence of the prisoner. Moreover, in more than three-quarters of the cases the evidence from the crime scene needed for testing has either been lost or destroyed.

The problem is that police suffer no repercussions for destroying evidence from ostensibly closed cases, says Gilbert. Michael Green was truly lucky; his stepfather and his attorneys searched fruitlessly for more than a year before they turned up the stained washcloth, which survived only because it had been buried and forgotten for nine years in a courtroom evidence locker. "It's a gift from God that the evidence survived," Mandell says.

Then there's the problem of cost. DNA testing is not cheap. At a reputable independent lab like Blake's Forensic Science Associates, the requisite tests can cost $5,000 or more. While the Innocence Project provides legal services for free, the convict or his family has to come up with the money to pay for the testing. Again, Michael was lucky, since Mandell was able to borrow the $3,000 downpayment from his retirement account.

Even if the Project chooses to take up a case -- they have about 200 active at present -- and sufficient money is available to pay for the testing, the process of getting authorization for the testing is complicated and extremely slow. "There's a lot of footwork involved," Potkin says. "You've got start making calls to see if you can search out the evidence. Then you've got to see if the D.A. is willing to consent to the testing. More times than not they do agree, but when they oppose it, their opposition is vigorous and they fight to the end."

The net result of all of these factors combined is that out of the large pool of incarcerated people who believe DNA testing would help prove their innocence, only a tiny fraction end up actually getting the tests done. And then add in all the wrongly convicted people whose cases did not involve biological evidence, and so have no DNA-based recourse. Liz Kelley, Green's co-counsel, estimates that only about 20 percent or so of felony cases generate such material.

Even when it does happen, it can take years. Potkin says she would never use the word "eager" to describe how prosecutor's offices generally react to Innocence Project requests for testing, and her assessment is borne out by Green's experience. He first contacted the Innocence Project in 1997, and while local prosecutors did not outright deny testing, they didn't jump at the chance either. When they first learned of the Project's intention to run DNA tests on the washcloth, they repeatedly delayed granting permission before finally capitulating. In the end the whole process consumed four more years of Green's life before he was finally freed.

Damage Control

While the Green case suggests that the full implications of what DNA testing has revealed about the justice system remains controversial, it has nonetheless proven itself to be so reliable and useful that pressure is mounting to extend its potential benefits to a much wider group of convicted felons than ever before.

Already, 22 states have passed post-conviction DNA testing laws designed to make it easier for those wrongfully convicted in the past to get access to the breakthrough technology that holds out their only hope of exoneration. But those laws vary widely from state to state. Some, like those on the books in New York and Illinois, are considered model statutes by the Innocence Project because of their broad scope and reasonable standards.

However, many others – at least five by Scheck's reckoning – are so restrictive that they seem to be directed more at managing a problem than at seeking out truth or righting wrongs. Such laws sharply limit those eligible by denyinig access to those who pled guilty, for instance, or by setting strict time limits on when a convict can petition for testing. And this is in spite of the fact that many innocents plead to crimes in order to avoid harsher sentences, while many others don't learn of the Project's existence until years after their conviction – Green, for example, didn't hear about Scheck's organization until eight years into his sentence.
For these reasons, the Innocence Project categorically rejects such restrictions. "We need to permit people to prove their innocence," Scheck explains, "as I think all fair-minded people would agree."

On a Mission

It's true, Michael Green says, that anger and hatred no longer burn white hot within him as they did during the initial years of his imprisonment. But that doesn't mean he's letting the system off the hook, or that he's sanguine about what was done to him. He well knows there are far too many more like him, doomed to oblivion in countless prisons, and his concern for them weighs heavily, even during this first taste of freedom.

"I feel like I'm on a mission for the brothers who are still inside," Green says, reeling off the names of a half dozen former prisonmates he believes to be innocent, but who lack access to the DNA tests that salvaged his life. "Because I know what it's like to go for years saying you're innocent and not have anyone pay attention. Believe me, if it hadn't been for Barry Scheck, the Innocence Project and the law students who did such an excellent job, I'd still be locked up, treated by the world as a convicted sex offender." And therein, perhaps, lies the real, and sad, meaning of the Michael Green story.

Sandeep Kaushik writes for the Cleveland Free Times, where a longer version of this article first appeared.