Robert “Rider” Dewey was released from prison today after spending seventeen years of a life sentence for a murder and rape that he did not commit. Advanced DNA testing proved that the blood found on Dewey’s shirt was his own, not that of the victim. Previous DNA examination had proved that the semen found at the scene was not Dewey’s. DNA testing also lead to a warrant being issued for Douglas Thames who is currently imprisoned in Colorado for a similar rape/murder conviction.

Colorado does not have a death penalty. All people convicted of first degree murder are automatically sentenced to life in prison without parole. If the state had a death penalty Dewey may have been executed before modern advances in DNA exonerated him.

Edward Lee Elmore was convicted of raping and murdering an elderly woman in 1982 in Greenwood, South Carolina. The only physical evidence supporting the conviction was “Negroid” public hair found on her abdomen. The hairs were found by the doctor performing the autopsy. He gave them to Earl Wells, an agent for the South Carolina Law Enforcement Division (SLED) who looked at them through a microscope and placed them in an envelope marked “Item T.” “Item T” was never given to the defense and when appellate counsel requested it they were told it was lost. In 1998, “Item T” was found in Earl Wells’ filing cabinet. It had been there the entire time. Wells said he found it when he was changing offices.

A retired FBI agent examined the hair and said it was not “Negroid.” It was Caucasian. Elmore’s attorney had the hair DNA tested. It did not belong to the victim, but apparently belonged to a White male who raped and killed the victim. Elmore, of course, is African American. In 2000 the matter went back before the trial court. But the court ruled that there was insufficient evidence to order a new trial. The appellate court and the South Carolina Supreme Court upheld the decision. Finally, last year the Fourth Circuit Court of Appeals ordered a new trial.

Instead of going to trial the prosecution agreed to release Elmore after he spent 11,000 days in prison, most of the time on death row. In order to get out he had to plead guilty while denying that he committed the murder. On Friday he walked out the front door of the courthouse in Greenwood, a free man.

Was justice done–No. An innocent man spent thirty years in prison for a murder he did not commit. Twelve of those years were spent after there was no reasonable claim left that he was guilty. The original conviction was obtained in violation of Brady when the prosecutor did not turn over “Item T” to the defense. The fact that it was found in the investigator’s file box certainly indicates that the failure to turn over the evidence was intentional. ¹ The racial undertones of convicting an African American man for the rape and murder of a White woman cannot be overlooked. Particularly the truth of the matter is that a White man raped and killed the woman. Furthermore, even though there is no doubt about his innocence the prosecutor forced Elmore to plead guilty to a crime he did not commit to get out of prison. It is a disgusting example of American justice, or shall we say injustice.

The Supreme Court, yesterday, reversed the murder conviction of Juan Smith for the failure of the government to comply with Brady v. Maryland. In Brady the Supreme Court held that prosecutors have a duty to provide the defense with all evidence that is both exculpatory and material.

Several men broke into the New Orleans residence of Rebe Espadron in a home invasion robbery and killed five people. Smith was convicted on the basis of only one witness. Larry Boatner, one of the survivors, identified him from a picture spread and was the sole witness against Smith at trial. But prior to trial the prosecution failed to provide the defense with a number of Boatner’s statements, in some of which he said that he could not identify the killers. Since the statements could have been used at trial to impeach Boatner there iss no question that the statements are exculpatory. The Court also found the statements material since “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” When there is only one witness, his credibility is crucial to the prosecution and the failure to provide Brady evidence for impeachment can make a major difference.

The sad part is that New Orleans prosecutors have a long history of violating Brady. They have been called on this before but they continue to violate the law. They don’t seem to learn

One issue not raised in the Supreme Court decision is the unreliability of eyewitness testimony. Here you have only one eyewitness who’s statements are all over the book. At one point he says he did not see the faces of the murderer. At another point he says he could not recognize the murderers. And at a third point, while he is on the witness stand he states he is absolutely positive that the defendant is the murderer. As we have pointed out in the past eyewitness testimony is the number one cause of DNA post conviction exonorations. Over 75 per cent of those exonorated by the Innocence Project have been convicted on the basis of eyewitness testimony.

Herbert Watkins Skinner received another reprieve from the death penalty. He was convicted of killing his girlfriend, Twila Busby, and her two adult sons. A previous execution date was suspended when the Supreme Court ruled that he had the right to sue the State of Texas to allow DNA testing of a number of items involved in the murder. But the Texas attorney general continued to fight in the lower courts to prevent the DNA testing. Last week the trial court agreed with the district attorney, but today the Texas Court of Criminal Appeals ordered a delay in the scheduled Wednesday execution to allow a full consideration of changes in the Texas law regarding DNA testing. Since the Supreme Court decision Texas has expanded the situations under which a defendant can obtain post conviction DNA testing of evidence.

Among the items Skinner wants tested are ” vaginal swabs from Busby contained in a rape kit; clippings from her fingernails; two knives, one found on Busby’s front porch and the second found in a plastic bag in the living room; a dish towel; and blood and hairs from a jacket found next to Busby’s body.” The Texas Attorney General argues that there is so much evidence against Skinner that even if the items had been tested before the trial and the DNA tests were negative Skinner would still have been convicted. After the murder Skinner was found at a friend’s house four blocks from the murder. There was a trail of blood from the murder scene to the friend’s house. The authorities claim that Skinner’s hands were cut with the same knife used to stab Busby’s sons. DNA tests on items already tested implicate Skinner. But as the foreman of the jury stated in a letter to the Dallas Morning News, “Since the trial, I and many of my fellow jurors have grown increasingly concerned that key pieces of DNA evidence from the crime scene remain untested,” the foreman, Danny Stewart, wrote. “Either the tests confirm Skinner’s guilt or prove his innocence and prevent the state from making an irreversible mistake. There is simply no downside.”

In 1984 the California legislature approved DNA testing for those convicted of serious felonies. In 1998 the legislature expanded the number of crimes for which a conviction would result in DNA testing. In 2004 California voters approved Proposition 69, the DNA Fingerprint, Unsolved Crime and Innocence Protection Act which required the immediate testing of all people arrested on a felony.

Last week the District Court of Appeals found the Act to violate the Fourth Amendment in that it does not required individualized suspicion or probable cause approved by a judge. Individualized suspicion is needed prior to any search of the body for a criminal investigation.

But the State argued that the DNA testing was not being done for a criminal investigation. Rather the purpose of the testing was for identification purposes. The touchstone of the Fourth Amendment is reasonableness. To determine if a search is reasonable the courts use the totality of the circumstances test under which they balance the needs of government against the privacy interest of the individual.

But in balancing the needs the court found that in as far at the State’s needs for identification versus the individual’s privacy rights, the individual wins. A fingerprint analysis using the FBI’s computers in Washington D. C. can be done in ten minutes while it takes on an average 31 days to develop a DNA profile. The electoral advertising for Proposition 69 all emphasized DNA’s use as an investigative tool, not its use for identification. The state’s regulations for the taking of DNA all require that identification of the arrestee occur prior to submitting the DNA sample. In fact they require that fingerprints be submitted along with the DNA sample.

On the other hand while it is easy to take a DNA sample to do so is quite invasive. The state gains a tremendous amount of information about the individual besides the identification of the individual. It may be possible using the DNA sample to determine what illnesses the person has and perhaps even the propensity of the person to commit violent acts. None of this is necessary for identification but it invades the privacy rights of the person without a prior court finding of probable cause. As a result of the balancing test the Court found the DNA testing of individuals arrested for a felony, but for whom there has been no finding of probable cause unconstitutional.

Warren Jeffs, the head of the Fundamentalist Church of Jesus Christ of Latter-day Saints, finally ended his silence at his trial for the rape of two young girls, Friday. He claimed that the two girls, one 12 and the other 14 were his spiritual wives.

Jeffs, who fired his lawyers and is representing himself let go with a 55 minute rant when the prosecutor attempted to place into evidence a list of Jeffs’ wives. ¹ He objected to his religion being put on trial and he continued to interrupt the trial with claims that the court was violating his religion. During the defense case he put on one witness–a member of his church who he questioned for four hours about church doctrine until the judge forced Jeffs to end his examination finding that witness’ testimony was not relevant.

Well none of Jeffs’ antics helped him. Among the evidence was a picture of him passionately kissing a 12 year old, DNA evidence that he fathered a child by a 14 year old, and an audio recording of him raping the 12 year old. He was given 30 minutes for closing. Most of the time he stood mute before the court, interrupting his silence, only to say, “I’m at peace.” He was found guilty. At sentencing he faces up to 119 years. In Texas the jury decides the sentence. Immediately after he was found guilty a sentencing hearing began. The prosecution expects to put on two days of testimony. I do not know whether Jeffs plans to put on witnesses. According to the prosecutor the evidence in the sentencing phase will show that Jeffs had 78 illegal wives, including 24 underage wives, that he either performed or had been involved in 67 illegal underage marriages, that he participated in more than 500 bigamous marriages, that he had illegal sex ²with six different people and he participated in the breaking up of 300 families “by splitting up marriages or reassigning ‘wives,’ sometimes to himself.”

In District Attorney’s Office for Third Judicial Dist. v. Osborne the Supreme Court, last year, found a limited right to DNA samples. The question of how to get it was left open. Is a writ of habeas corpus with its limitations necessary or can a defendant file a civil rights suit pursuant to 42 U.S.C.1983. This week the Supreme Court in Skinner v. Switzer ruled that it can be obtained by a civil rights suit.

A writ of habeas corpus (literally: “you are to have the body” is a request to release a person from custody or confinement. But a request to test the DNA samples does not automatically result in a release from custody. It may be counterproductive in that it may help to prove guilt or it may be ambivalent. Thus since the request for DNA testing does not in and of itself result in the release of the body a Section 1983 action is appropriate.

As in the case we looked at yesterday, the decision is not one on the merits it only allows Henry Skinner to file an action. He still has to prove his case.

New DNA tests dispute the conviction of Claude Jones for the 1989 Texas murder of a liquor store owner, Allen Hilzendager, during a robbery. He was executed on December 7, 2000 in the last days of Governor George Bush’s term. His lawyers asked the governor to delay the execution to allow for the DNA testing of a strand of hair used at the trial. But the message was never delivered to Bush by his staff and Jones was executed.

Prior to the trial no DNA test was done on the strand. During the trial a forensic expert testified that the strand of hair could have belonged to Jones and that it could not have belonged to the victim. But the recently completed DNA analysis indicates not only that the strand did not come from Jones but it may have belonged to the victim.

The only other evidence against Jones was the testimony of an accomplice. The accomplice, Timothy Jordan, has since recanted his testimony. At trial Jordan, who did not enter the store but who planned the robbery and may have provided the gun testified that Jones told him that he had killed the store owner. Accomplice testimony is inherently unreliable. They tend to exaggerate the role of others and minimize their own role in order to obtain a lesser sentence.

The test does not exonerate Jones but it does cast doubt upon his conviction. Texas law takes into account the unreliability of co-defendant testimony by requiring some corroborating evidence. At Jones’ trial the strand of hair served as the only corroborating evidence. Without it there would not have been sufficient evidence to convict him. Furthermore we do not know what the jury would have done without the incorrect testimony of the forensic expert. If a DNA test would have been done they could not convicted or executed him without other corroborating evidence.

Bobby Dixon and Phillip Bivens were exonerated by DNA evidence of rape and murder after spending 31 years in prison for the 1979 murder of Eva Patterson in Hattiesburg, Mississippi. A third innocent person, Larry Ruffin died in prison. The DNA evidence identified another man who is imprisoned for the 1981 rape of another woman.

The exonerations occurred despite the fact that Bivens and Dixon confessed to the crime and plead guilty. There is evidence that they were coerced into pleading guilty by the police. They testified against Larry Ruffin who went to trial and was found guilty. At trial they changed their testimony and admitted that none of them raped and killed Patterson. According to the Innocence Project which pushed for the exoneration of the 259 DNA exonerations since 1989, 63 involved confessions and 19 involved guilty pleas.

The Supreme Court reaffirmed Jackson v. Virginia. In Jackson v. Virginia the Supreme Court held:

that a state prisoner is entitled to habeas corpus relief if a federal judge finds that “upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt.”

This week in E. K. McDaniel v.Troy Brown the Court stated that Federal Courts can only grant a writ of habeas corpus if no rational trier of the fact could have found proof of guilt beyond a reasonable doubt based upon the record at trial without excluding unreliable evidence or evidence wrongly admitted.

Troy Brown was convicted of raping a nine year old girl and sentenced to life in prison. A significant portion of the evidence at trial consisted of the testimony of an expert regarding DNA samples. The expert made two major mistakes. First she committed the “prosecutor’s fallacy.” The “prosecutor’s fallacy” “is the assumption that the random match probability is the same as the probability that the defendant was not the source of the DNA sample.” This erroneously allows the prosecutor or the expert to say that the odds that another person randomly chosen has the same DNA is the same as the odds of the accused being innocent.

Troy Brown has three brother. Two of them, like Troy live near him and the victim in Nevada. The second error made by the expert was to overestimate the chances of one of his brothers having the same DNA as found in the victim. She estimated that the odds of two brothers sharing the same DNA is 1 in 6500. The actual odds of two brothers having the same DNA is 1 in 263 and the odds of two out of four brothers having the same DNA is 1 in 66.

The Supreme Court said that the habeas could only be granted based upon the testimony at trial even if the evidence was unreliable or erroneous. But in any case even if the correct evidence had been submitted a reasonable jury could have convicted Brown. There was sufficient corroborating evidence when looked at it using only the evidence most favorable to the prosecutor which is the standard in post trial appeals where a jury has convicted the defendant.

The defendant also raised a due process claim challenging the reliability of the trial DNA evidence. But since that issue was ont raised at trial or on direct appeal the Supreme Court refused to hear it.