Tag Archive for: exonerations

Exonerations and Complications: The Evil Side of DNA Evidence

In the days before DNA testing became available for use in criminal cases, cops, prosecutors, judges, and juries relied on other physical evidence to send bad guys to jail—fingerprints and footprints, soil, glass fragments, trace evidence, etc. Those things along with confessions and eyewitness testimony were the building blocks used to convict the guilty.

Then, when DNA arrived on the scene, well, it soon became apparent that somehow officials had made a few boo-boos along the way and had sent more than a handful of innocent men and women to jail for crimes they didn’t commit. DNA testing of old evidence, in fact, exonerated people like our friend Ray Krone who served ten years in prison, three of which were on death row, for a murder he didn’t and couldn’t have committed.

Ray as an inmate at Arizona State Prison in Yuma

Ray Krone could’ve easily been eliminated as a suspect had DNA testing been conducted at the time of the investigation. Instead, his conviction was based on bite mark evidence, a test/examination/comparison method that’s been found to be unreliable.

DNA test results were used in court cases as early as the mid 1980s. Ray was convicted in the early 90s, without the benefit of DNA testing, a simple test that would have prevented him from serving time in prison as an honest, clean-handed man.

Nowadays, to weed out the innocent, DNA testing is routinely performed in the early stages of criminal investigations. And it helps … some. The use of DNA tests in post-conviction cases and appeals sometimes leads to exonerations, such as, for example, Ray Krone’s release from prison.

Electropherogram – a chart produced by testing equipment after DNA sequencing is completed.

Unfortunately, and what most members of juries do not understand, is that during a typical criminal investigation, in only about 10-20 percent of all cases do cops find testable biological evidence. In spite of this low percentage, some juries still expect a case to hinge on DNA results. However, without something to test, of course, there’ll be no electropherograms pointing to a specific suspect.

Sometimes, even with the presence of DNA, those results are not always definitive.

Electropheragram showing tested DNA of two subjects, and a mixture of DNA collected from a victim. Results showing a mixture make it difficult to point to any one suspect.

But let’s go back to the 10-20 percent figure, the number of cases where testable biological evidence is located and collected by investigators and then subsequently tested by laboratory scientists and other experts.

At the upper end, the 20 percent range, that leaves 80 percent of all criminal cases that are solved by using other means of crime-solving, such as the aforementioned fingerprints and footprints, soil, glass fragments, trace evidence and, of course, detectives going about the business of good old-fashioned door-knocking and talking to people. The combination of the physical evidence and confessions and eyewitness testimony is what leads to the majority of criminal convictions.

Sadly and dismally disastrous, without mostly foolproof scientifically tested evidence, courts must rely on human testimony, humans whose memories often fluctuate. Police investigators who enter a crime scene with a serious and dreaded case of tunnel vision. Prosecutors who do the same once the already skewed/tunnel-vision-tainted, unreliable witness’ flawed statement evidence is presented to them,

Overworked and underpaid public defenders aren’t always up to date on current scientific practices and the laws governing them. Those same attorneys carry heavy caseloads which stretches their time to a breaking point so thin that they can’t possibly devote the amount of time needed to decently defend their appointed clients. Their budgets are minimal, meaning expensive testing and other necessities for their clients’ defenses are practically nonexistent.

Post-conviction procedures (motion for new trials, ineffective assistance of council, appeals to address the lack of scientific testing to prove innocence) are a huge uphill climb for people who’ve been incarcerated. This is especially so for the poor.

Those of meager means often have no alternative other than to wade through prison law libraries, hoping to make sense of the legal jargon that fits their situation. They sometimes employ a jailhouse lawyer to help, paying for his services by whatever means available—cleaning his cell, cooking meals, shining shoes, and even purchasing items for them from the commissary, or having family members on the outside send money to the amateur legal eagle.

The wealthy, of course, have outside resources to help with the filing of necessary paperwork. But there’s sometimes a bad egg in this bunch, such as the high-priced, fancy-smancy defense attorney I overheard telling his client who’d just received 37 months in federal prison for possessing crack cocaine worth little more than $100, that for an additional $25,000 he could arrange to have him serve less time on home confinement. That’s fair, right?

And, there’s the Innocence Project who helps the wrongly convicted.

Aside from the obvious, there’s a real problem with the aftermath that’s sure to arise after retroactively clearing prisoners of their crimes based on DNA evidence.

Yes, when all the dust settles after all the men and women who’ve been wrongfully convicted and then cleared by the use of DNA evidence are out of prison with their recoreds expunged and their names cleared, there will still be hundreds if not thousands of people still behind bars because their convictions were based on the bad memory of a witness, a cop or prosecutor with tunnel vision, being in the wrong place at the wrong time, a mistake made at the lab during evidence analysis (mislabel an item, etc., tainted evidence, such as the accidental transfer of a fingerprint or even DNA evidence).

Someday soon there will be a false sense that DNA has cleared ALL the innocent people, leaving  those behind who  surely must be guilty of their crimes because there was no scientific evidence to prove otherwise. But we know this can’t be so. Why not? Because of human error.

Yes, it is indeed possible to transfer a fingerprint, even accidentally.

Tertiary DNA Transfer

It’s possible that DNA can be accidentally transferred from one object to another. A good example could be the killer who shares an apartment with an unsuspecting friend. He returns home after murdering someone and then tosses his blood-spatter-covered shirt into the washer along with his roommate’s clothing. The machine churns and spins through its wash cycles, an action that spreads the victim’s DNA throughout the load. Police later serve a search warrant on the home, seize the clothing, and discover the victim’s DNA on the roommate’s jeans. The innocent roommate is arrested for murder.

The list of human error possibilities is extremely long and, unfortunately, there’s no magic DNA bullet to help clear the innocent folks convicted based on an accident. Their battles are practically hopeless. Laws and courts make it nearly impossible for people already serving time to have a judge revisit their cases.

Odds are, that hopelessness follows a few of the condemned all the way to the execution chamber, where it is indeed conceivable that an innocent man could be, and most likely has been, put to death.

And, well, I suppose it’s possible that given the right/wrong circumstances, anyone, even you, could find themselves behind bars for a crime they didn’t commit.

 

 

 

 

 

 

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A “Bite” Out of Crime: Junk Science

We’ve all seen the reports of innocent men and women who’ve been released from prison—exonerated—due to faulty evidence, cleared by DNA evidence, etc. But what was it about the evidence that robbed people of years of their lives by forcing them sit in a prison cell while completely innocent of the crimes they were accused of committing?

Let’s take a quick peek at the human hair. For many years, law enforcement collected hairs found at crime scenes and then delivered those hairs to their laboratories for examination and comparison (does the hair found match that of a suspect?).

If the examiner took a look under a microscope and then decided the hairs were indeed a solid match then his/her word was good enough for the courts. The suspect must be guilty because the scientist said that positively and without a single doubt the hair placed the defendant at the scene of the crime. Therefore, a jury or judge had all they needed to convict and send a bewildered person to prison.

Well, in 2015 the Justice Department revealed that FBI agents weren’t so sure that hair analysis was the most exact science in the world. In fact, they basically admitted that hair analysis, at best, is inconclusive. They no longer use it as a sole means to build a case against someone.

Santae Tribble was convicted of murder based on the analysis of a hair found at the crime scene. He spent more than 27 years in prison before DNA analysis of the hair proved his innocence. He was awarded  $13.2 million in his wrongful conviction lawsuit. A little something for his “minor” inconvenience.

Next comes bite-mark evidence. Not so long ago, within the past couple of years, the Presidents  Council of Advisors on Science and Technology (PCAST) announced that forensic bite-mark evidence is not scientifically valid, nor is it likely to ever be validated. In other words, more junk science (skin may move after death during decomposition, skin and flesh are not stable material—may not hold a precise pattern, etc.).

Then there are tool marks, tire impressions, footwear impressions, and fingerprints. Yes, there are flaws within the testing of those items as well. Even the golden goose of all evidence—DNA—is not a perfect science.

According to the National Registry of Exonerations, 2155 people have been exonerated of crimes they didn’t commit. To put that in perspective … innocent people spent 18,750 years in prison due to someone’s error—flawed evidence examination, prosecutor or law enforcement mistake, evidence contamination, flawed procedures, flaws in the law, etc. 18,750 years, gone. Lives wasted.

A great example of how a flawed bite-mark examination sent an innocent man to death row is the story of our friend Ray Krone. Ray was … well, I think I’ll sit back and post Ray’s tale as he told it to me a while back.

Ray Krone Spent 10 Years on Death Row for a Crime He Didn’t Commit

A few weeks ago, my girlfriend Cheryl read a novel by Polly Iyer about a man who had been wrongfully convicted of murder, released, and then framed for a series of murders. As with all good fiction, there were elements of fact in this story. Polly’s description of the impact of wrongful convictions struck a chord with Cheryl, and she sent Polly an email saying so. That email started an exchange that led to me posting on this blog today.

My story isn’t much of a mystery, but it has twists and turns that wouldn’t make it past a fiction editor’s red pencil. Lee thought that it might be of interest to you, so here goes. I’m not a professional writer but I hope that I’ll be able to provide some useful insights into the ripples that result from sloppy police work, ineffective defense counsel, and overzealous prosecutors.

I won’t go into details about my life prior to my arrest and wrongful conviction. It was unremarkable as most lives are, except to the people who live them. I sang in the church choir, was a Boy Scout, and played team sports throughout my school years. I was never in any trouble, never even had detention in school. I grew up in a small town, joined the Air Force, and following my Honorable Discharge remained in Phoenix, AZ, my last duty station. I got a job with the United States Postal Service as a letter carrier.

Ray before his arrest for a crime he didn’t commit

At 35, I was single and living the good life. My salary allowed me to buy my own home and have lots of big boy toys—sand rail, Corvette, swimming pool. I had a loving family back in PA, and loyal friends all over the country. Little did I know that I was about to find out just how important those people were.

I’d always enjoyed team sports, and still do. A bar in my neighborhood sponsored volleyball and dart teams, and I played on both. On December 29, 1991, the owner found his night manager, Kim Ancona, on the men’s room floor. She’d been sexually assaulted and stabbed to death. A co-worker told police detectives Kim had said someone named Ray was going to help her close up that night. I had a casual acquaintance with this woman, and knew her only as a bartender and occasional dart player. She was living with a man and as far as I was concerned, that was as good as married and made her off-limits.

Detectives found my name and phone number in her address book and came to see me. It’s important to note at this point that my name and phone number were not in my handwriting or in Kim’s. How they got there remains a mystery to this day. I was questioned by the Phoenix Police, and cooperated—until I realized they were trying to pin this murder on me.  The legal wrangling is public record—you can Google my name and read countless stories about my case.

Being the one hundredth person to be wrongfully convicted and sentenced to die, only to be found factually innocent after spending years on Death Row and in prison, put me on the radar of a society that was beginning to question the value of capital punishment. My conviction was based solely on bite mark evidence. Because I refused to show remorse for a crime I didn’t commit, I was sentenced to death. After almost three years on Death Row, I was granted a new trial. I was again convicted, and sentenced to 23 years for the kidnapping, and 25 years to life for the murder. Only a random series of events would free me.  Court-ordered DNA would finally free me and identify the real killer. I spent a total of ten years, three months and eight days in prison for something I didn’t do. I was 35 when arrested and 45 when I was exonerated.

Ray as an inmate at Arizona State Prison in Yuma

The life events that other people take for granted were stolen from me, and no amount of money, sympathy or accolades will ever give me a chance to experience them. They are gone forever. Am I bitter? I try not to be—the family and friends who stood by me have helped me adjust and appreciate what I do have. I try not to focus on what I’ve been denied in this life, but what I’ve been given. I’ve learned the hardest way possible the true meaning of “you find out who your friends are.” Despite the love and support of friends and family, I still have moments when I feel rage at what happened to me, even after more than ten years of freedom.

Billboard on I-83 in Harrisburg, Pa.

There have been millions of words written and hundreds of television shows about the impact on men and women who were sentenced to die for a crime they didn’t commit. There are well-documented studies about innocent men and women who were executed in the name of justice. There are other victims of a legal system that penalizes the poor and rewards prosecutors for conviction rates without examining the accuracy of those convictions.  Not just the families of the wrongfully convicted, who often lose what little they have in the defense of their loved ones, but the families of the original victim, the new victims created by the guilty party who remains free, their families, the jurors who are denied access to all of the evidence in a case. The list goes on and on—I misspoke when I called it a ripple—it’s a tsunami, wreaking havoc and destruction, and in many cases, is preventable.

I’m part of a nationally-known group called Witness to Innocence. We have only one membership requirement, but it’s a tough one. You must have been wrongfully convicted and sentenced to die for a crime which you did not commit. Although many of us are unable to speak publicly about what happened to us, many others find it therapeutic to do so. We have spoken in front of groups ranging from high school students to Congress to the United Nations. We share our experiences at law schools, forensics conventions and gatherings of legal professionals—anywhere that telling our stories will help provide insight, and hopefully inspiration.

The Witness to Innocence photo above is of only some of the members. Left to right: Ray Krone, Albert Burrell, Kirk Bloodsworth, Gary Drinkard, Randy Steidl, Ron Keine, Delbert Tibbs and Derek Jamison. Each of these men (and our one female member, Sabrina Porter) have stories that defy belief, as do all of the members.

I’m honored to have been invited to address the readers of this blog. For more information about Witness to Innocence, stories of exoneration or speaker’s schedules, please visit www.witnesstoinnocence.org

According to the Innocence Project, since 1989, 353 people have been exonerated of their crimes based on DNA. Twenty of those people served time on death row.

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