waudby temp

PUBLISHER'S NOTE: Brenda Waudby is the mother of Baby Jenna who was born in Peterborough, Ontario and died on January 22, 1997, at the age of 21 months. On January 21, 1997, at approximately 5 p.m., Ms. Waudby left Jenna in the care of a babysitter, J.D., who was 14 years old at the time. That night, Jenna was taken to a local hospital, where she died. Dr. Charles Smith performed the autopsy, concluded that Jenna had died of blunt abdominal trauma, and came up with a time of death that gave Ms. Waudby exclusive access to Baby Jenna at the time the fatal injuries were inflicted. Smith seized a dark, curly, male-type pubic hair from Baby Jenna's vulva-area, concealed it from the police officer who attended the autopsy, failed to submit it for testing, and had it in his possession when testifying at Ms. Waudby's preliminary hearing that he didn't know anything about it. He also failed to conduct a standard rape test which would likely have shown that Baby Jenna had been sexually assaulted. The Peterborough police force sent an undercover officer into Ms. Waudby's Narcotic's Anonymous group in an effort to get incriminating evidence against her. On September 18, 1997, the police charged Ms. Waudby with second-degree murder based on Smith's opinion. In October 1998, following a preliminary hearing, the court committed Ms. Waudby to stand trial on the charge, placing her one step closer to a sentence of life imprisonment for murdering her daughter if convicted. On June 15, 1999, the Crown withdrew the charge after receiving the unanimous opinions of several experts appointed by both the prosecution and the defence which utterly contradicted Smith's opinion and stated that Ms. Waudby could not possibly have been present when Jenna suffered her fatal injuries. (As a result of Smith's terribly flawed opinion, Ms. Waudby, who had lost her daughter through a horrific crime, found herself locked into a brutal battle with the local Children's Aid Society, to recover an older daughter from the authorities and to keep a newly born son. In July, 2001, (two years later), the police began a reinvestigation of Jenna’s death. JD confessed to the police that he had sexually assaulted the two and a half years old baby and killed her. In December 2006, J.D. was permitted to plead guilty to manslaughter and the two counts of sexual assault were dropped. He was sentenced as a youth to 22 months in custody, followed by 11 months of community supervision. Smith has yet to face any criminal charges in relation to his conduct in the Waudby case. Like Dr. Smith's many other victims, Ms. Waudby has yet to receive a single cent of compensation for the utterly hellish ordeal she experienced at the hands of Dr. Charles Smith, the police and the prosecutors.

----------------------------------------------------------------------------------

ANTHONY CARAVELLA: DAYTONA NEWS-JOURNAL EDITORIAL: CALLS FOR COMMISSION TO EXAMINE BAD CONVICTIONS; SAYS STATE LEADERS MUST TAKE LEAD;

"THE RAPID SUCCESSION OF OTHER CASES IN WHICH MEN WERE EXONERATED AFTER 20 OR MORE YEARS IN PRISON DROVE THE POINT HOME. THE LEGISLATURE PASSED LAWS EASING ACCESS TO DNA TESTING FOR PEOPLE WITH A LEGITIMATE CLAIM OF INNOCENCE, AND CREATING A COMPENSATION PLAN FOR THOSE WRONGFULLY IMPRISONED. (THAT LAW, UNFORTUNATELY, IS SIGNIFICANTLY FLAWED AND EXCLUDES MOST EXONEREES FROM COMPENSATION.) BUT STATE LEADERS HAVEN'T DONE THE MOST IMPORTANT THING. THEY HAVEN'T ASKED WHY. THEY SHOULD. OTHER STATES HAVE ESTABLISHED COMMISSIONS TO STUDY WRONGFUL CONVICTIONS, IDENTIFY COMMON FACTORS AND SEEK WAYS TO ENSURE JUSTICE IN THE FUTURE. FLORIDA -- WITH THE MOST OVERTURNED CASES IN THE NATION -- SHOULD HAVE LED THE WAY. GOING FORWARD, STATE LEADERS CAN DRAW ON THE EXPERIENCES IN OTHER STATES, AND THE WORK BY ACADEMIC GROUPS STUDYING FLORIDA'S OVERTURNED CONVICTIONS."

EDITORIAL: DAYTONA NEWS-JOURNAL

----------------------------------------------------------------------------------

BACKGROUND: "Anthony Caravella, 41, spent 26 years in prison - more than half of his life - for a rape and slaying. He was 15 and had an IQ of 67, well below normal, when he was charged with the Nov. 5, 1983, murder of Ada Cox Jankowski, 58, in Miramar, Fla. Mr. Caravella exoneration was due to the perseverance of his lawyers, the attention given to the case by the Sun Sentinel, and the willingness of prosecutors to conduct DNA tests to investigate his guilt or innocence. The attitude of the Florida prosecutors contrasts significantly with the prosecutors in the State of Texas who have fought so hard against allowing the DNA tests which could show that Hank Skinner is innocent - even though he faces execution.

----------------------------------------------------------------------------------

"On Thursday, Anthony Caravella officially became the 11th person exonerated in Florida by DNA evidence after serving 25 years for a rape/murder he did not commit," the News-Journal editorial, published earlier today under the heading, "State should consider where justice went astray," begins.

"And if not for Wilton Dedge, he might never have walked free," it continues.

"Dedge, released from prison in 2004 after serving 22 years on a rape conviction, sparked a minor revolution in Florida's criminal justice system. The questionable actions on the part of prosecutors, and the obstinance of appellate attorneys -- first in opposing DNA tests that compared Dedge's genetic code to evidence from the rape, then in fighting his release after the DNA tests proved he was innocent -- shook the faith of many.

The rapid succession of other cases in which men were exonerated after 20 or more years in prison drove the point home. The Legislature passed laws easing access to DNA testing for people with a legitimate claim of innocence, and creating a compensation plan for those wrongfully imprisoned. (That law, unfortunately, is significantly flawed and excludes most exonerees from compensation.)

But state leaders haven't done the most important thing. They haven't asked why.

They should. Other states have established commissions to study wrongful convictions, identify common factors and seek ways to ensure justice in the future. Florida -- with the most overturned cases in the nation -- should have led the way. Going forward, state leaders can draw on the experiences in other states, and the work by academic groups studying Florida's overturned convictions.

The barrier, as always, is money. Last week, state Supreme Court Chief Justice Peggy Quince wrote to Florida Senate president-designate Mike Haridopolos, R-Merritt Island. Haridopolis -- who represents the same area of Brevard County that Dedge once lived in -- has expressed support for a statewide commission that would examine wrongful convictions. Quince's letter delivered a challenge: Figure out a way to pay for it.

Haridopolis should find the money to create a commission. Quince points out that similar commissions -- formed to study racial, ethnic and gender bias in the court system -- had budgets between $300,000 and $400,000, money that helps pay for research, staff and public hearing time.

It's a lot of money in a tough budget year, and the suggestion comes late, with the two-month annual legislative session half gone. But Haridopolis and other lawmakers should make this happen. There are ways to save money and still do a good job. Drawing on experienced legislative staff is a possibility, and Florida can also borrow from findings in other states.

The most prevalent causes of wrongful convictions -- including mistaken eyewitness identity, dubious forensic evidence, false confessions and unreliable "snitch" testimony -- are well-known in the criminal justice system. The new commission's greatest challenge could be in shaping recommended changes to the law, creating safeguards against bad convictions.

As budget negotiations intensify, lawmakers are likely to consider the possibility of releasing some prisoners a few months early to save money. The prospect will rankle. But there's no better motivation to avoid the expense -- and moral burden -- of imprisoning innocent people. Examining bad convictions and reforming criminal laws could save the state from uncounted expense, and protect those who are innocent from unimaginable horror."

The editorial can be found at:

http://www.news-journalonline.com/opinion/editorials/2010/03/29/state-should-consider-where-justice-went-astray.html

Harold Levy...hlevy15@gmail.com;

TIMOTHY COLE: PERCEPTIVE KATHY CLAY-LITTLE COLUMN APPLIES TO HANK SKINNER, CAMERON TODD WILLINGHAM AND FAR TOO MANY OTHERS;

"FEW TRAGEDIES ARE GREATER THAN AN INNOCENT PERSON LOCKED UP IN PRISON. IN THE BIBLICAL STORY OF LAZARUS, JESUS ARRIVES AT LAZARUS' HOME AFTER HE HAS DIED. LAZARUS' GRIEF-STRICKEN SISTERS, WHO HAD SENT FOR JESUS, ADMONISHED HIM, “IF YOU HAD BEEN HERE, OUR BROTHER LAZARUS WOULD NOT HAVE DIED.” AS THE COLE-SESSIONS FAMILY CONTINUES TO HEAL WITH THE BALM OF LOVE THAT KEPT THEM FIGHTING FOR TIMOTHY EVEN IN DEATH, A PARALLEL CAN BE DRAWN BETWEEN COLE AND LAZARUS: IF SOMEONE IN POWER TRULY COMMITTED TO JUSTICE HAD BEEN THERE, TIMOTHY COLE NEVER WOULD HAVE DIED IN PRISON."

KATHY CLAY-LITTLE: AND SAN ANTONIO, EXPRESS NEWS;

-------------------------------------------------------------------------------

BACKGROUND: Timothy Cole, whose cause has been championed by state lawmakers and others, was found guilty in the 1985 rape of a Texas Tech student and was sentenced to 25 years in prison. His conviction was based in part on the victim's identification of him as her attacker and what a judge later called faulty police work and a questionable suspect lineup. The victim later fought to help clear Cole's name. Cole died in prison in 1999, at age 39, after an asthma attack caused him to go into cardiac arrest. Following repeated confessions by another man, Cole was cleared by DNA evidence in 2008, and a state judge exonerated him in 2009. His family pursued a pardon, but Perry had said he did not have the authority to grant one posthumously. That changed after Perry announced that he had received legal advice to the contrary.

-----------------------------------------------------------------------------

"It had been almost 10 years since Joyce Ann Brown walked out of a Texas prison after serving most of the previous decade for a crime she did not commit," Cathy Clay-Little's San Antonio, Express News column, published on March 26, under the heading, "Justice is about more than conviction rates," begins.

"Yet her tears flowed as freely as if she had been released yesterday; her pain was just as palpable, it seemed, as it was during the years she lived her tragic ordeal," the column continues.

"The man I interviewed on my radio program had been freed by DNA evidence 17 years earlier, but you couldn't tell 17 years had passed by the rivulets of tears coursing down his face. He seemed unaware of them as he talked about the need for a criminal justice system that cared as much about justice as it did conviction rates.

At least he got out alive.

Timothy Cole did not get out alive. Cole, an Army veteran who was enrolled at Texas Tech University in Lubbock, died halfway through a 25-year sentence for a rape that posthumous DNA evidence and the finally heard confession from the real rapist confirmed he did not commit. Ironically, Cole died of a chronic illness — asthma — that should have caused reasonable doubt as to whether he committed the crime of which he was accused.

Cole's asthma was so bad that it manifested itself when he was around smokers; the rape victim told detectives that the man who raped her chain-smoked.

The actual rapist was a shrewd, cunning and evil man. He was in jail the night Cole was convicted. The rapist said nothing until the statute of limitations had expired and he could not be tried, then he started confessing. No one listened until he finally made contact with Cole's mother, Ruby Sessions, and she began working to at least get her deceased son's good name back. On March 1, Gov. Rick Perry officially granted Cole a pardon.

Still, Perry continues to take actions that could allow another such tragedy to occur. Few tragedies are greater than an innocent person locked up in prison. In the biblical story of Lazarus, Jesus arrives at Lazarus' home after he has died. Lazarus' grief-stricken sisters, who had sent for Jesus, admonished him, “If you had been here, our brother Lazarus would not have died.” As the Cole-Sessions family continues to heal with the balm of love that kept them fighting for Timothy even in death, a parallel can be drawn between Cole and Lazarus: If someone in power truly committed to justice had been there, Timothy Cole never would have died in prison.

The knowledge that Texas' justice system so thoroughly failed Cole — and the rape victim, too — should spur people of conscience to commit themselves to building a justice system that not only convicts the guilty but also protects the innocent. It begins with electing governors, lawmakers, judges and district attorneys whose first commitment is to justice for the innocent."

The column can be found at:

http://www.mysanantonio.com/opinion/columnists/kathy_clay-little/Justice_is_about_more_than_conviction_rates.html

Harold Levy...hlevy15@gmail.com;

TOSHIKAZU SUGAYA: JAPANESE NEWSPAPER ASKS HOW THE FIRST DNA TEST FOUND A MATCH - AND WHY THE COURT WAS SO SLOW IN DECIDING TO CONDUCT A SECOND TEST;

"STILL, THE FULL STORY OF HOW SUGAYA CAME TO BE FALSELY CHARGED AND CONVICTED HAS NOT BEEN UNRAVELED. HOW DID POLICE PRESSURE SUGAYA TO MAKE A CONFESSION? HOW DID THE COURT DETERMINE THE ADMISSIBILITY OF AN INITIAL DNA TEST WHICH FOUND THAT SUGAYA'S DNA MATCHED THE DNA SAMPLE TAKEN FROM THE VICTIM'S CLOTHING? WHY WAS THE COURT SLOW IN APPROVING A DECISION TO CONDUCT ANOTHER DNA TEST? SEVERAL UNANSWERED QUESTIONS REMAIN."

EDITORIAL: THE MAINICHI DAILY NEWS; (Wikipedia informs us that The Mainichi Daily News is one of the major newspapers in Japan and that: "Two former Mainichi Newspapers Chief Executive Officers have gone on to become prime ministers of Japan. The Mainichi is the only Japanese newspaper company to have won a Pulitzer Prize. The Japan Newspapers Association, made up of 180 news organizations, has granted the Mainichi its Grand Prix award on 21 occasions, making the Mainichi the most frequent winner of the distinguished prize since its inception in 1957. In addition to the Mainichi Shimbun, which is printed twice a day in several local editions, Mainichi also operates an English language Web version of the defunct Mainichi Daily News, and publishes a bilingual news magazine, Mainichi Weekly."

----------------------------------------------------------------------------------

"The sight of three judges bowing their heads to Toshikazu Sugaya, a man incarcerated for more than 17 years over a murder he did not commit and was eventually acquitted of, said everything about the case," the editorial begins, under the heading "Lessons must be learned from Sugaya's false conviction, 17 1/2 years behind bars."

"Sugaya was found not guilty Friday in a long-awaited retrial. We are happy that spring has finally arrived for Sugaya, who was robbed of 17 1/2 years of freedom after he was arrested without justification over the 1990 murder of a 4-year-old girl in Ashikaga, Tochigi Prefecture," the editorial continues.

"When Sugaya's retrial began in October last year, public prosecutors argued that deliberations should be kept to a minimum and a ruling be handed down quickly. Defense lawyers, on the other hand, called for the reasons for his false conviction to be exposed in court.

Siding with lawyers, the Utsunomiya District Court questioned an expert witness who testified that DNA tests performed at the time of Sugaya's initial conviction were premature. Tapes of Sugaya's conversations with public prosecutors were also played in court, and the evidence was inspected to a certain degree.

But the court bears responsibility for the delay in acquitting Sugaya. In 1997, lawyers tested a sample of Sugaya's hair while he was behind bars and found that the DNA did not match the sample taken from the victim's clothing. But in 2000, the Supreme Court dismissed Sugaya's appeal without any reference to the DNA tests, confirming his life sentence. It was eight years later that the Utsunomiya District Court dismissed Sugaya's request for a retrial. During this time, the statute of limitations for prosecution of the murder expired. Not only was Sugaya's release delayed; the chance to arrest the real culprit was also lost.

In acquitting Sugaya, Presiding Judge Masanobu Sato apologized, saying, "As a judge, I am truly sorry." It is extremely rare for a judge to make such an apology, but the court needed to take responsibility.

Still, the full story of how Sugaya came to be falsely charged and convicted has not been unraveled. How did police pressure Sugaya to make a confession? How did the court determine the admissibility of an initial DNA test which found that Sugaya's DNA matched the DNA sample taken from the victim's clothing? Why was the court slow in approving a decision to conduct another DNA test? Several unanswered questions remain.

Internal investigations at various organizations have their limits. This month the Japan Federation of Bar Associations compiled a statement requesting that an investigative committee be set up to probe the causes of false judgments, suggesting that a third party should examine the issue. Such investigations have been performed overseas, and we want the government to take action to set up such a committee.

As of June last year, DNA tests had proved that a total of 240 people in the United States had been falsely accused of crimes -- 17 of whom were on death row. In Japan, meanwhile, it recently emerged that police obtained an arrest warrant for the wrong person due to an error by Kanagawa Prefectural Police when registering the person's DNA. While the accuracy of DNA tests has increased, it is humans who process the data, and as such, we must not overemphasize DNA results.

At the same time we want scientists and technical officers from the National Research Institute of Police Science to inspect Sugaya's case, a move opening the path toward applying cutting-edge technology.

The lessons to be learned from Sugaya's case are wide-ranging. The case sounds an alarm bell over investigations that attach to much importance to confessions. It indicates once again that suspect interviews should be recorded in their entirety. At the same time, news organizations cannot evade responsibility -- at the time of the arrest, news organizations reported on the case as if Sugaya were the criminal. There also remains criticism that we should have paid quicker attention to what Sugaya was saying. We need to put all of these lessons to use in the future."

The editorial can be found at:

http://mdn.mainichi.jp/perspectives/editorial/news/20100327p2a00m0na001000c.html?inb=rs&utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+mdn%2Fall+%28Mainichi+Daily+News+-+All+Stories%29\

Harold Levy...hlevy15@gmail.com;

DAY FIVE: MAGNIFICENT PIECE OF REPORTING BY COLUMBUS DISPATCH LED TO RECENT CRIMINAL LAW REFORM BILL. DNA PROMISING IN QUESTIONABLE CASES.

"CAULLEY'S CASE IS ONE OF 30 THAT THE DISPATCH HAS IDENTIFIED AS PRIME CANDIDATES FOR BIOLOGICAL TESTING UNDER A LAW PASSED IN 2003 AND REVISED IN 2006. AN ACCREDITED LAB, WHICH DOES WORK FOR THE STATE CRIME LAB, HAS AGREED TO CONDUCT THE TESTS FREE AS A PUBLIC SERVICE. GOV. TED STRICKLAND CALLED IT A "TERRIFIC" OPPORTUNITY TO BEGIN RESTORING CREDIBILITY TO A FLAWED SYSTEM. HE IS URGING PROSECUTORS AND JUDGES TO SUPPORT THE INITIATIVE. "I CAN SEE NO JUSTIFICATION FOR ANY INTERFERENCE IN THE TESTING IN THOSE CASES," STRICKLAND SAID. "IT'S NOT GOING TO COST THE COUNTY. I DON'T KNOW WHAT THE JUSTIFICATION FOR TRYING TO BLOCK THAT KIND OF TESTING WOULD BE.""

THE COLUMBUS DISPATCH;

----------------------------------------------------------------------------------

BACKGROUND: PART ONE: According to the Innocence Project, "Ohio lawmakers last week (March 16, 2010) passed a package of sweeping criminal justice reforms aimed at preventing injustice by addressing the leading causes of wrongful convictions. The bill, which Gov. Ted Strickland is expected to sign within days, was called by one lawmaker “one of the most important pieces of criminal justice legislation in this state in a century."Each time DNA testing helps to free an innocent person from prison, we can study how our criminal justice system failed — and address the problem so it doesn’t happen again. Ohio is now a model in targeting reforms to help free the innocent, prevent wrongful convictions and apprehend the true perpetrators of crime. The bill includes improvements to lineup procedures, a method for parolees to apply for DNA testing, incentives for police departments to record interrogations and a requirement that evidence in serious crimes be preserved. The Innocence Project worked closely with the Ohio Innocence Project for the last two years to pass these critical reforms. While these reforms are badly needed from coast to coast, the urgency for systemic change became clear in Ohio after the Columbus Dispatch published the groundbreaking series "Test of Convictions," documenting flaws in the state’s system and helping to bring about two exonerations so far. The series’ two reporters, Mike Wagner and Geoff Dutton, will receive the Innocence Network’s first-annual Journalism Award next month. (April, 2010)

BACKGROUND: PART TWO: THE FIVE PART COLUMBUS DISPATCH SERIES THAT PROMPTED DRAMATIC CRIMINAL LAW REFORM IN OHIO:

* PART ONE: Evidence is often lost or destroyed.
* PART TWO: Ohio rejects tests for parolees and the dead.
* PART THREE:Victims relive horror when inmates get testing.
* PART FOUR; Innocent man must register as sex offender.
* PART FIVE: DNA promising in questionable cases.
'
BACKGROUND PART THREE; THE COLUMBUS DISPATCH'S MODUS-OPERANDI: The Dispatch built case files on 313 inmates from 51 counties who applied for DNA tests. The newspaper reviewed every case with the Ohio Innocence Project, a University of Cincinnati-based legal clinic that represented many of the inmates. The reporters interviewed three dozen inmates and former inmates, as well as prosecutors, crime victims and others with a stake in the system.

BACKGROUND PART FOUR: THE REPORTERS; Geoff Dutton is a projects reporter who joined The Dispatch in 2002. He has reported on unsafe conditions in youth prisons, home foreclosures and predatory lending, and the consequences of sentencing juvenile criminals to adult prisons. Dutton worked previously for newspapers in Florida and Ohio. Mike Wagner has been a projects reporter at The Dispatch since 2006. He has profiled former OSU quarterback Art Schlichter, examined the lack of black coaches in high schools and detailed fan behavior at Big Ten football games. Previously, he worked as an investigative reporter for the Dayton Daily News.

----------------------------------------------------------------------------------
PUBLISHER'S NOTE: I am struck by the sheer contrast between Texas and Ohio when it comes to the criminal justice system. The State of Texas does its best to hide any information which could show that it could have convicted, or even executed an innocent man - as is so evident in the Cameron Todd Willingham and Hank Skinner cases. The State of Ohio is aggressively seeking to free the innocent and prevent wrongful convictions through legislation. This revolution in Ohio didn't just happen. It is the result of a magnificent investigation conducted by the Columbus Dispatch which began on January 27, 2008. This Blog applauds the Dispatch for pouring in the hefty resources required for such a massive undertaking, the Innocence Project and the Ohio Innocence Project, for its unique cooperation with the newspaper, and the writers, photographers and editorial staff who did such a phenomenal job. Reporters Geoff Dutton and Mike Wagner richly deserve the Innocence Network’s first-annual Journalism Award which is to be presented next month. (April, 2010);

----------------------------------------------------------------------------------

"For 12 hours, they showed him photos from the bloody crime scene, screamed in his ears, threatened him with the death penalty, told him he failed a lie-detector test and even followed him into the bathroom, until Robert Caulley finally gave them what they wanted," the story begins, under the heading, "Pursuit of justice: Private lab offers free DNA tests in 30 cases."

"Told by detectives that if he confessed he could return home to his wife and young son to sort things out, Caulley buckled," it continues.

"On that day in December 1996, he told investigators that he had beaten his parents to death with a baseball bat nearly three years earlier in their Grove City home.

Convicted on little more than what he says was a false confession, Caulley wants a DNA test. Detectives originally had said Caulley's parents were killed when they interrupted a burglary.

"I loved my parents; I didn't kill them," said Caulley, 43, an Ohio State graduate who worked as an aeronautical engineer. He has served 10 years of his life sentence. "I just want the chance to prove my innocence."

Caulley's case is one of 30 that The Dispatch has identified as prime candidates for biological testing under a law passed in 2003 and revised in 2006. An accredited lab, which does work for the state crime lab, has agreed to conduct the tests free as a public service.
Story continues below
Advertisement

Gov. Ted Strickland called it a "terrific" opportunity to begin restoring credibility to a flawed system. He is urging prosecutors and judges to support the initiative.

"I can see no justification for any interference in the testing in those cases," Strickland said. "It's not going to cost the county. I don't know what the justification for trying to block that kind of testing would be."

The Dispatch, as part of a yearlong investigation, gathered public records and built files on the 313 cases in which Ohio prisoners applied for a DNA test under an old law, which stymied nearly everyone. Advocates hope that modest changes to the law in 2006 have created new opportunities for them.

Through consultation with the Ohio Innocence Project, a legal clinic based at the University of Cincinnati, The Dispatch identified prospects for testing.

The newspaper weighed several factors, including criminal histories, the evidence used to convict inmates and whether evidence remains available for testing. In several cases, judges had ordered tests but they hadn't been done more than two years later.

Many inmates who say they're innocent couldn't be included because evidence has been lost or destroyed.

In conjunction with The Dispatch investigation, lawyers representing the 30 inmates plan to seek approval from judges in 13 counties for DNA tests beginning today. The inmates are being represented individually either by the Ohio Innocence Project or the Ohio public defender. These cases will be among the first to be filed under the new law.

Prosecutors in Lucas and Marion counties already have agreed to tests in two cases after being questioned about the cases by Dispatch reporters. Other prosecutors said they would consider the requests after they are filed in court.

DNA tests could answer troubling questions looming over the convictions -- often with absolute finality.

The newspaper asked the Ohio Innocence Project for legal assistance in reviewing case files. Dispatch Editor Benjamin J. Marrison said the initiative is a test of Ohio's flawed system more than of any one conviction.

"There's no reason to not pursue the truth," Marrison said. "What motivated us was examining the system to find out if it's flawed and, where it is flawed, having the legislature and the governor craft fixes. The findings of this investigation should alarm every Ohioan, because the lack of evidence protocol means any one of us could be wrongly convicted."

The Ohio Innocence Project, a team of law students led by two professors, said the Dispatch investigation accelerated their review of innocence claims. Typically, the group has about five active cases, which can drag on for years and sometimes extend beyond DNA issues.

"Now that we've got the new (law) in place, we need to have a whole new round of examination on these cases and, of course, need to have a more open mind," said Mark Godsey, director of the Ohio Innocence Project.

"Each of these cases represents systematic flaws that suggest our justice system is not working the way we all would like," said Jenny Carroll, academic director. "I think the publicity The Dispatch can bring to those issues will bring about more systematic reforms than I can bring about as an individual lawyer."

DNA Diagnostics Center, a private lab that does work for law-enforcement agencies and defense lawyers, has agreed to test the 30 cases free of charge.

A single DNA test costs about $1,500. Many cases likely would involve numerous tests, including advanced procedures that can cost up to $5,000 each.

"We should make this technology available to those people who may not be able to afford it," said Dr. Richard Lee, owner of DNA Diagnostics in Fairfield, near Cincinnati. "A lot of those people sitting in jail right now may be innocent. And it's all about getting to the truth. We should be able to use this to do something for society."

State officials note that guilty inmates who apply for a DNA test risk prolonging their prison stay.

"If an inmate has previously said he is innocent, and we have a DNA test verifying his guilt, the parole board does take that into consideration," Ohio Parole Board spokeswoman Andrea Carson said.

Strickland, a former prison psychologist, said problems uncovered by The Dispatch demand attention. The governor said he would support changes to reduce the chances of wrongful convictions, and make it easier to identify and correct them when they happen, including:

• Preserving and cataloguing evidence. There are 22 states that require evidence to be saved, typically until the convict is out of prison.

• Eliminating time limits to apply for a test. In Ohio, convicts must have at least one year left on their prison sentence to qualify.

• Outlawing traditional police lineups in favor of photo lineups administered by a person who doesn't know who the suspect is, to avoid any chance of steering witnesses. The most common error in wrongful convictions, DNA exonerations nationally show, has been witnesses misidentifying the attacker.

• Requiring police to record interrogations. Police in Minnesota resisted this requirement more than 13 years ago, only to later conclude that it usually works to their advantage. "It's the best tool shoved down our throats," St. Paul police commander Neil Nelson said in 2006.

• Forming an innocence commission, a diverse panel of experts to review inmate DNA applications and make recommendations to local judges, who decide the cases.

Given The Dispatch's findings, Ohio Supreme Court Chief Justice Thomas J. Moyer said he was generally supportive of a statewide evidence-preservation law, as well as forming an innocence commission.

"It's an interesting story and one that needs to be told," Moyer said. "We need to respond, obviously, with changes."

Caulley's case shows the potential value of such precautions.

Police recorded only the very end of his half-day interrogation, leaving many questions.

Caulley said he believed that his "off-the-record" confession -- which was secretly taped -- was his only chance to meet with his wife and 5-year-old son and talk with a lawyer. At one point during the questioning, when Caulley kept insisting on a lawyer, the detectives put him on the phone with one -- an assistant county prosecutor, who urged him to cooperate.

Caulley's lawyers argued to keep his confession from being used as evidence at his trial, saying that it was coerced, but the trial judge allowed it. The appeals court agreed that there was nothing improper about the interrogation, ruling that "ploys to mislead a suspect" are common and Caulley could have walked out at any time.

Eight years into Caulley's prison sentence, a different judge granted DNA testing on a hair found in his dead mother's hand. But the vial in the evidence room inexplicably turned up empty. Tests on other evidence in August were inconclusive.

Now, Caulley wants the remaining pieces of evidence tested, including another suspect's sweat shirt with a red spot, possibly blood. But he's afraid he missed his chance when the hair was lost.

"There is no hope now," he said, wiping away tears.

Walter Smith knows that feeling. He began fighting for a DNA test shortly after his conviction for raping two Columbus women, in the earliest days of forensic DNA analysis.

"They denied me nine times," he said.

Tests cleared him in 1996 -- 10 years into a 78- to 190-year prison sentence. Smith prevailed in the days before Ohio created an inmate DNA testing program.

Smith, who is now a motivational speaker, had hoped the program would give inmates a better shot at proving innocence. In fact, there were more DNA exonerations in Ohio before the 2003 law.

Clearly, he said, the law needs to allow more DNA tests.

"There's a major flaw in our system. If they don't think it's to their advantage to get a prosecution and conviction," he said, "they're not going to spend the money.""

This story can be found at:

http://www.dispatch.com/live/content/local_news/stories/2008/01/31/dna5.html

Harold Levy...hlevy15@gmail.com;

DAY FOUR: MAGNIFICENT PIECE OF REPORTING BY COLUMBUS DISPATCH LED TO RECENT CRIMINAL LAW REFORM BILL. INNOCENT MAN MUST REGISTER AS SEX OFFENDER.

"THREE YEARS AGO, WHITFIELD WAS RELEASED FROM PRISON AFTER SERVING 23 YEARS FOR TWO RAPES THAT DNA TESTS SHOWED HE DIDN'T COMMIT. HE WAS CLEARED BASED ON EVIDENCE THAT WAS SUPPOSED TO BE LONG GONE BUT WASN'T. THE TESTS ALSO IDENTIFIED THE REAL ATTACKER, A SERIAL RAPIST WHO BY THEN WAS SERVING LIFE IN PRISON. BUT UNFORTUNATELY FOR WHITFIELD, THE LAW AND POLITICS OF DNA AREN'T AS ADVANCED AND CLEAR-CUT AS THE SCIENCE. TODAY, WHITFIELD ISN'T FREE BUT ON PAROLE. HE'S A REGISTERED SEX OFFENDER FOR CRIMES THE LOCAL PROSECUTOR AND STATE CRIME LAB DIRECTOR AGREE HE DIDN'T COMMIT. BUT WHITFIELD, OF ALL PEOPLE, WITH NEARLY HALF HIS LIFE ALREADY STOLEN, KNOWS IT COULD BE WORSE. MUCH WORSE.
HAD HE BEEN CONVICTED IN OHIO, FOR EXAMPLE, HE ALMOST CERTAINLY STILL WOULD BE IN PRISON."

THE COLUMBUS DISPATCH;

----------------------------------------------------------------------------------

BACKGROUND: PART ONE: According to the Innocence Project, "Ohio lawmakers last week (March 16, 2010) passed a package of sweeping criminal justice reforms aimed at preventing injustice by addressing the leading causes of wrongful convictions. The bill, which Gov. Ted Strickland is expected to sign within days, was called by one lawmaker “one of the most important pieces of criminal justice legislation in this state in a century."Each time DNA testing helps to free an innocent person from prison, we can study how our criminal justice system failed — and address the problem so it doesn’t happen again. Ohio is now a model in targeting reforms to help free the innocent, prevent wrongful convictions and apprehend the true perpetrators of crime. The bill includes improvements to lineup procedures, a method for parolees to apply for DNA testing, incentives for police departments to record interrogations and a requirement that evidence in serious crimes be preserved. The Innocence Project worked closely with the Ohio Innocence Project for the last two years to pass these critical reforms. While these reforms are badly needed from coast to coast, the urgency for systemic change became clear in Ohio after the Columbus Dispatch published the groundbreaking series "Test of Convictions," documenting flaws in the state’s system and helping to bring about two exonerations so far. The series’ two reporters, Mike Wagner and Geoff Dutton, will receive the Innocence Network’s first-annual Journalism Award next month. (April, 2010)

BACKGROUND: PART TWO: THE FIVE PART COLUMBUS DISPATCH SERIES THAT PROMPTED DRAMATIC CRIMINAL LAW REFORM IN OHIO:

* PART ONE: Evidence is often lost or destroyed.
* PART TWO: Ohio rejects tests for parolees and the dead.
* PART THREE:Victims relive horror when inmates get testing.
* PART FOUR; Innocent man must register as sex offender.
* PART FIVE: DNA promising in questionable cases.
'
BACKGROUND PART THREE; THE COLUMBUS DISPATCH'S MODUS-OPERANDI: The Dispatch built case files on 313 inmates from 51 counties who applied for DNA tests. The newspaper reviewed every case with the Ohio Innocence Project, a University of Cincinnati-based legal clinic that represented many of the inmates. The reporters interviewed three dozen inmates and former inmates, as well as prosecutors, crime victims and others with a stake in the system.

BACKGROUND PART FOUR: THE REPORTERS; Geoff Dutton is a projects reporter who joined The Dispatch in 2002. He has reported on unsafe conditions in youth prisons, home foreclosures and predatory lending, and the consequences of sentencing juvenile criminals to adult prisons. Dutton worked previously for newspapers in Florida and Ohio. Mike Wagner has been a projects reporter at The Dispatch since 2006. He has profiled former OSU quarterback Art Schlichter, examined the lack of black coaches in high schools and detailed fan behavior at Big Ten football games. Previously, he worked as an investigative reporter for the Dayton Daily News.

----------------------------------------------------------------------------------

PUBLISHER'S NOTE: I am struck by the sheer contrast between Texas and Ohio when it comes to the criminal justice system. The State of Texas does its best to hide any information which could show that it could have convicted, or even executed an innocent man - as is so evident in the Cameron Todd Willingham and Hank Skinner cases. The State of Ohio is aggressively seeking to free the innocent and prevent wrongful convictions through legislation. This revolution in Ohio didn't just happen. It is the result of a magnificent investigation conducted by the Columbus Dispatch which began on January 27, 2008. This Blog applauds the Dispatch for pouring in the hefty resources required for such a massive undertaking, the Innocence Project and the Ohio Innocence Project, for its unique cooperation with the newspaper, and the writers, photographers and editorial staff who did such a phenomenal job. Reporters Geoff Dutton and Mike Wagner richly deserve the Innocence Network’s first-annual Journalism Award which is to be presented next month. (April, 2010);

----------------------------------------------------------------------------------

Wednesday, January 30, 2008 3:21 AM
By Geoff Dutton
THE COLUMBUS DISPATCH

"NORFOLK, Va. -- Arthur Whitfield is either one of the luckiest men alive or the unluckiest. It's never clear, least of all to Whitfield," the story begins, under the heading, "High cost of freedom: Despite innocence, he's labeled a sex offender."

"Sweat pours off his forehead, down his face, through his gray beard, falling like fat raindrops on his drenched black T-shirt," it continues.

"He pedals his bicycle through traffic, a bag of work clothes hanging from the handlebars. The hazy August heat drapes the 52-year-old like a steamy blanket. His past trails him like a black cloud.

The produce warehouse where he works is almost in sight, the 4-mile ride nearly over, when the chain pops off his cobbled-together Huffy. Again.

Fingers still greasy, he quickly fixes the chain and is on his way. This lanky, soft-spoken man isn't easily discouraged.
Story continues below
Advertisement

"Every day that I'm not incarcerated," he explains later, "is a good day."

Three years ago, Whitfield was released from prison after serving 23 years for two rapes that DNA tests showed he didn't commit. He was cleared based on evidence that was supposed to be long gone but wasn't. The tests also identified the real attacker, a serial rapist who by then was serving life in prison.

But unfortunately for Whitfield, the law and politics of DNA aren't as advanced and clear-cut as the science.

Today, Whitfield isn't free but on parole. He's a registered sex offender for crimes the local prosecutor and state crime lab director agree he didn't commit.

But Whitfield, of all people, with nearly half his life already stolen, knows it could be worse. Much worse.

Had he been convicted in Ohio, for example, he almost certainly still would be in prison.
Gambling on a guilty plea

Whitfield pleaded guilty to rape on May 6, 1982.

Not because he was beaten, tortured or tricked by police or lawyers. Not because he was mentally impaired. Whitfield was 27 years old and knew exactly what he was doing.

He had just been convicted of one rape. The victim, grabbed from a dark street at knifepoint, had picked Whitfield from a police lineup. The judge bolstered her identification by allowing another victim -- both women were raped an hour apart, in the same neighborhood, apparently by the same man -- to testify that she had picked Whitfield from a lineup, too.

The jury deliberated for more than seven hours but ultimately trusted the victims' memories, not Whitfield's friends, relatives and a neighbor who testified that he was with them at a birthday party on the night of the rapes. Whitfield was sentenced to 45 years.

Now, Whitfield faced trial for the other rape. Coincidentally, the victims were friends, and both were lined up again to testify.

It would be a virtual replay of the first trial. If convicted again by a jury, Whitfield faced a potential life sentence. Also working against him was his record: two prison stints, in 1976 and 1978, for robbery.

"I knew I didn't have a leg to stand on," he said.

"If I take the deal for 18 years," he figured, "I can make parole maybe somewhere down the line."

Determined to see his family again someday outside prison walls, he took the deal, for a combined sentence of 63 years.
Pinning his future on DNA

Hope faded as Whitfield appeared before the parole board 14 times over the years, each time only to be returned to his cell.

After years behind bars, he decided to tell the parole board what parole boards everywhere want to hear.

"I finally decided I'd go in there and admit I did it and say I'm sorry," he said. "But I didn't do it. Every time I went in there, I froze up."

Being rejected for parole, it turns out, became yet another irony-tinged stroke of luck for Whitfield. "Because I never would have gotten a chance to also clear myself," he said.

In 2001, Virginia passed a law allowing convicted felons to apply for DNA testing. The law followed a DNA exoneration of an inmate who was one of the first in the nation saved by the emerging science of identifying microscopic human cells in the blood, semen, hair and saliva left by attackers at crime scenes.

Virginia was several years ahead of Ohio, and today remains more open to testing, in law and practice. While being paroled might have prevented Whitfield from getting a DNA test in Virginia, it would have automatically disqualified him in Ohio.

Also, Ohio is one of only a few states that wrote an additional hurdle into its law for inmates who, like Whitfield, pleaded guilty.

In those cases, Ohio law says a judge can't grant a test unless the prosecutor agrees -- an all-but-insurmountable barrier. Only one of 92 of those requests has been granted, The Dispatch found in a first-ever examination of Ohio's testing program.

Whitfield faced no such legal roadblock in Virginia, although winning approval for a test in any state is a long shot.

"At the time, everything seemed impossible in terms of me getting out," Whitfield said. "I always liked to think I had a chance to get out. But it felt like I was slipping, and I needed something to hold onto."

He filled out the brief application in 2003.

Thanking 'Miss Burton'

Everybody warned Whitfield that the evidence from his case likely was gone.

Norfolk police looked and couldn't find it. Neither could the clerk of courts.

The victims' sexual assault exams were conducted years before the advent of DNA testing. According to crime-lab procedures at the time, the swabs should have been disposed of long ago.

"I didn't too much understand at first, when they said the evidence might be destroyed," he said. "Why would my evidence be thrown away?"

Nowadays, it probably wouldn't be. Virginia stopped the indiscriminate destruction of evidence when it adopted its inmate DNA testing law. So have 21 other states.

Evidence preservation still isn't required by law in Ohio, and inmate applications for DNA testing are routinely derailed because of lost or destroyed evidence, the Dispatch investigation found.

Fortunately for Whitfield, he was not in Ohio.

More important, his case was handled by Mary Jane Burton, a headstrong scientist not given to policies that involved trashing her work.

When the state pulled lab files from Whitfield's case in December 2003, the swabs, like cottony Q-tips, were taped inside. So were swatches of the victims' clothing.

By then, Burton, an Ohio native who retired to Cincinnati, had been dead five years. But Whitfield still talks about "Miss Burton" as if the forensic scientist were a beloved aunt.

"She's no longer here but, if she can hear me, I want to thank her, because I know she's in a good place now. I've never forgotten her name."
Winning his freedom

Norfolk lawyer Michael F. Fasanaro was assigned to the case.

To him, Whitfield was just another court-appointed obligation -- a twice-convicted rapist who had pleaded guilty, no less -- to juggle between paying clients.

"I just thought it was another case," Fasanaro said.

Then the fax came across his machine late one Friday afternoon.

The 23-year-old swabs still contained DNA from the women's attacker, and the genetic fingerprint didn't match Whitfield's.

"I was absolutely surprised -- stunned," Fasanaro said. "I had to read it twice, quite frankly. I had to read it out loud."

He immediately confirmed the results with the prosecutor's office, which wanted to re-test. The next day, officials swabbed the inside of Whitfield's cheek for a fresh DNA sample and ran the comparisons again.

Again, no match -- not to Whitfield, anyway.

Unable to immediately reach Whitfield, Fasanaro called his mother.

"I told her I had wonderful news for her, that her son was coming home the next day," he said. "She cried. She was overwhelmed.

"That was probably one of the most joyful things I've done."

Whitfield was released from prison, 23 years and three days after his arrest.

He caught a bus home. There were no seats available, so Whitfield gladly stood the whole 100-mile ride -- finally free.
Twisting in a technicality

But Whitfield's life of viciously cruel ironies followed him home to Norfolk.

To clear the way for his immediate release from prison, the state put him out on parole.

Nobody gave it a second thought until his lawyer filed for a writ of actual innocence, paperwork to formally certify what the prosecutor already had acknowledged and continues to tell anybody who asks: Arthur Lee Whitfield didn't do it.

By then, the prosecutor even knew who did.

The DNA matched Aaron Doxie III, whose genetic profile was part of a state computer database. Doxie, who declined to be interviewed for this story and hasn't commented publicly, already was serving life in prison for rapes he committed two years after Whitfield was sent to prison.

And another old rape had just been belatedly pinned on Doxie. In that case, yet another man, Julius Ruffin, had been wrongfully convicted and served 20 years before DNA cleared him in 2003, just as Whitfield's exoneration was playing out.

Ruffin also had been saved by DNA tests on swabs squirreled away by Mary Jane Burton.

So nobody expected the judge to reject Whitfield's request for a declaration of innocence. But the judge ruled that a close reading of Virginia law showed a person must be incarcerated to be considered for a writ of actual innocence.

The circular logic caught everybody by surprise. Whitfield appealed. The case went before the state Supreme Court, which ruled in a split decision in October 2005 that Whitfield in fact had no legal standing now that he was out of prison.

"It is tragic, because we're talking about a technicality rather than the actual facts of the innocence," Fasanaro said. "I mean, he's been found innocent through the DNA, and no technicality should stand in the way of that."
Working on a fresh start

Outside the courtroom, Whitfield fared better -- for a while.

Everything seemed to fall into place. Managers at a local credit union read about his plight in the newspaper and offered him a job. Whitfield was a high-school dropout laborer who earned his diploma in prison. He looked around, bewildered by the computers, and declined.

The manager insisted. He told Whitfield that he was prohibited from hiring convicted felons, but he was going to do it anyway and keep Whitfield on the staff as long as he could.

"That was a big turnaround for him," said his older brother, Raymond Whitfield, of Dayton. "I've never seen him so thrilled and so happy, and the people liked him."

Whitfield worked as a customer service representative, teller and loan processor. His co-workers helped set him up with an apartment and a car, and welcomed him as one of the team. He smiles as he recalls them dragging him onto the dance floor at the office Christmas party.

But after two years, somebody outside the branch office noticed a convicted felon on the payroll, Whitfield said. They bid him a warm goodbye.

"They asked me when I get my pardon to come back," he said.
Lobbying against a pardon

By then, Whitfield already had asked the governor for a pardon.

Ruffin, the Norfolk man released a year before Whitfield after serving 20 years, offered Whitfield encouragement.

But for all of their similarities -- both cases involved the same rapist, both were investigated by the same police detective, both men were cleared by DNA saved by the same lab technician -- there was a key difference.

After the DNA tests, the victim in Ruffin's case greeted him with public apologies for her part in unknowingly convicting the wrong man. She called for reforms to prevent mistakes in the future. She even testified before the legislature to help Ruffin secure $1.2 million from the state.

A previous governor pardoned him on the way out of office.

In Whitfield's case, one victim wrote a seven-page letter to the governor urging him to deny a pardon, still convinced that Whitfield was her attacker.

Both victims say their separate descriptions of the attacker were similar, and that they bore no similarity to Doxie. The women, who were forced to perform oral sex during the rapes, also both say their attacker was uncircumcised -- like Whitfield and unlike Doxie.

They question the validity of DNA tests on swabs that had been stuffed in files, unprotected, for more than 20 years by a lab worker who isn't alive to answer for them.

"DNA doesn't lie? No, it doesn't. But you can screw it up," one victim told The Dispatch, which does not identify victims of sexual crimes unless they agree to be named.

The other victim bristles at what she views as a "pity party" for Whitfield.

"There is no way I made a mistake. It's absolutely him. I've been saying that since Day One."

While both victims gave the jury strikingly similar descriptions of their attacker, the testimony contradicted some of their initial statements to police, records show.

They testified to Whitfield's distinctive hazel-colored eyes, but only one had noted his eye color immediately after the attack, describing it as brown. They also both told police the rapist was clean-shaven, but Whitfield had a beard.

In her letter to the governor, the contents of which haven't been reported until now, one victim says she now believes the other woman was raped by a different man and mistakenly identified Whitfield.

She suggests that evidence could have been intermingled in the two decades leading up to the DNA tests.

After the DNA tests, Norfolk Commonwealth Attorney John R. Doyle III, the prosecutor, said in his request for Whitfield's release from prison that he was convinced "beyond any question" that Whitfield was innocent.

"All the evidence in the case excludes him as the rapist," he said recently. "And I haven't seen anything that would persuade me this is not the case."

Pete Marone, director of the Virginia Department of Forensic Science, also backs the results.

"From a scientific standpoint, Aaron Doxie is there and Arthur Whitfield is not," Marone said. Moreover, DNA from the victims on those same swabs, while degraded and incomplete, was consistent with the women's genetic fingerprints. "There's enough (victim DNA) there you feel confident there's not a mix-up."

Living in seclusion

Whitfield is frustrated but not angry.

"I'm not mad or have any hard feelings," he said. "I believe (the victims) actually believe what they saw was me. I understand."

Push, prod, provoke, needle Whitfield all you want. He won't raise his voice or lash out.

Not when he talks about losing his credit-union job and having to move back home with his parents.

Or when he talks about the time his neighbors watched him being arrested because, as a registered sex offender, there was brief confusion about where he was living.

Whitfield's mother can't, or won't, talk about her son's ordeal anymore.

"I let God work it out," Louise Whitfield said, breaking down and retreating out the back door of her house.

Outside of work, Arthur Whitfield mostly has reverted to the lifestyle that served him well in prison -- minimizing contact with others and filling the time watching TV, particularly soap operas.

If 23 years in prison taught him anything, it's not to get his hopes up. On the other hand, he also knows as well as anyone never to give up.

Gov. Timothy M. Kaine, who declined to comment for this story, hasn't granted a pardon. But the Democrat, who took office in January 2006, hasn't denied one, either.
Finding a new home

The cramped waiting room is filled with stiff-backed chairs, a vending machine and glum-faced men wearing electronic ankle bracelets.

Whitfield walks up to the receptionist's window and asks to see his parole officer, who seems to recognize that Whitfield isn't a typical ex-con.

"Arthur's a hard case," he says, smiling, patting Whitfield on the shoulder. He encourages Whitfield to be patient. "I keep telling him, all we've got is time."

Whitfield smiles sheepishly, but it's difficult being patient when you're a 52-year-old man living with your parents.

A day earlier, Whitfield pedaled to work, struggling to keep the chain on his Huffy. Today, he is taking a day off from the produce warehouse to chase a short-term dream: finding his own place to live.

He recently lost his wallet -- Whitfield is prone to losing his wallet, keys, you name it -- and he needs new identification to secure a lease. His parole officer agrees to help.

His bosses at the produce warehouse are helping, too. The business office reviews paperwork and leases for him, and offers to advance deposit money if he finds the right place.

Earlier in the day, a friend of his mother's had shown him a house she had for rent.

As Whitfield sized up the tiny pale yellow shotgun house with teal shutters and a front porch, he spied a group of teenagers across the street. Music blared, bass thumping, from a parked car. "Is it rowdy around here?" he asked.

In the end, Whitfield looked past the neighbor kids, beyond the overgrown yard and the weed-choked flowerbed obscuring the front porch, and saw possibilities.

"I'm gonna have fun cutting the grass, trimming the hedges, fixing things up. I don't even care if it doesn't have a bed," he said.

"My life's not too good right now. But things are looking better. Any time you're not incarcerated, it's a good life."
Waiting for a pardon

Whitfield, now 53, moved into the house in August, where he lives with his girlfriend and her two daughters.

Also last summer, the Ohio Supreme Court ruled unconstitutional the portion of the law here that gives prosecutors sole authority to reject DNA applications from inmates who, like Whitfield, pleaded guilty.

Ohio has yet to enact a law requiring evidence to be preserved.

In Virginia, after the exonerations of Marvin Anderson in 2002, Ruffin in 2003 and Whitfield in 2004 -- all thanks to evidence saved by Mary Jane Burton -- the governor ordered a review of a random sampling of 31 more of her files.

Those led to the exonerations of two other men who had served a combined 31 years in prison for rape and were by then on parole.

Now, the state lab is combing all of its files -- more than a half-million, from 1973 to 1988 -- in search of other evidence that, contrary to lab practice, was stowed in files.

So far, officials have found samples that could cast new light on more than 2,000 murders, rapes and serious assaults, Marone said, most of them handled by Burton.

A first batch of 166 cases has been sent to a private lab for DNA testing, the start of a process that will probably take another year.

Meanwhile, Whitfield still awaits word from the governor on a pardon. It's been 772 days and counting."

This story can be found at:

http://www.dispatch.com/live/content/local_news/stories/2008/01/30/dna4.html

Harold Levy...hlevy15@gmail.com;

HANK SKINNER; INVESTIGATIVE REPORTER STEVE WEINBERG QUESTION'S U.S. SUPREME COURT'S ABILITY TO MAKE THE RIGHT DECISION ON DNA TESTING.

"IF I WERE HANK SKINNER, I WOULD FEEL OBVIOUSLY RELIEVED THAT THE SUPREME COURT HALTED MY EXECUTION AN HOUR BEFORE MY SCHEDULED DEATH. I WOULD ALSO RETAIN AT LEAST A SCINTILLA OF HOPE THAT A MAJORITY OF THE JUSTICES WOULD UNDERSTAND THE IMPORTANCE OF TESTING EVIDENCE. BUT I WOULD NOT HARBOR FEELINGS OF OPTIMISM."

STEVE WEINBERG; Steve Weinberg, publisher of the "In Justice" blog, describes himself as: "Investigative reporter since 1969, starting on daily newspapers, moving to magazines, then to writing books. In 1978, I decided to reject the world of regular paychecks and freelance for newspapers and magazines while continuing to write nonfiction books. Since 1976, I have been active in an international group called Investigative Reporters and Editors (www.ire.org). From 1983-1990, I ran IRE day to day, and still help edit its magazine. Partly from passion and partly for mercenary reasons, I have been teaching students part-time at the University of Missouri Journalism School since 1978. As you would deduce from my trueslant.com blog, my research, writing and teaching have increasingly focused on exposing flaws in the criminal justice system, especially when those flaws lead to the imprisonment of innocent men and women."

----------------------------------------------------------------------------------

BACKGROUND: The editor of the Texas Tribune says in a note that "Hank Skinner is set to be executed for a 1993 murder he's always maintained he didn't commit. He wants the state to test whether his DNA matches evidence found at the crime scene, but prosecutors say the time to contest his conviction has come and gone......We told the story of the murders and his conviction and sentencing in the first part of this story." Reporter Brandi Grissom, author of the Tribune series on Hank Skinner, writes: "I interviewed Henry "Hank" Watkins Skinner, 47, at the Polunsky Unit of the Texas Department of Criminal Justice — death row — on January 20, 2010. Skinner was convicted in 1995 of murdering his girlfriends and her two sons; the state has scheduled his execution for February 24. Skinner has always maintained that he's innocent and for 15 years has asked the state to release DNA evidence that he says will prove he was not the killer."

-------------------------------------------------------------------------------

"Hank Skinner, long-time resident of Death Row in a Texas prison, is waiting to learn whether the U.S. Supreme Court will rule evidence that might prove his innocence should undergo testing, or be ignored...," the post, by investigative reporter Steve Weinberg begins, under the heading, "Is the U.S. Supreme Court capable of dispensing justice after a wrongful conviction?"

"I don’t know whether Skinner is a murderer or an innocent man. But I do know that if a majority of the Supreme Court justices care about truth, they will play a role in seeing that the evidence undergoes testing," the post continues.

"The worry is that when it comes to criminal justice system malfunctions, at least five of the nine justices care less about truth than about finality.

The criminal justice systems across the United States–in state trial courts that op0erate at the county level, in state appellate courts and in federal courts–are biased in favor of finality. Put another way, after an innocent defendant has pled guilty or been convicted by a judge/jury, the presumption reigns that the case should be over, forever.

Finality is a virtue most of the time–nobody should want cases to drag on and on after the original disposition. But the worship of finality ignores the frequency of wrongful convictions in some jurisdictions around the nation.

Those who pay close attention to the U.S. Supreme Court understand that much of the time, a majority of the current justices (plus some recently retired or deceased justices) have emphasized finality beyond reason. That is worrisome enough. Add to that worry the lack of professional integrity demonstrated by some of the justices in monumental cases, with Bush v. Gore during 2001 being perhaps the most notable. Issuing a 5-4 ruling, the slim majority violated legal precedent and common sense by making George W. Bush president before meaningful recounts in a close election could occur.

The alarming lack of integrity demonstrated by that ruling is not simply my personal opinion. Justice John Paul Stevens–the senior member of the court by chronological age and length of service–wrote for publication, “Although we may never know with complete certainty the identity of this year’s presidential election, the identity of the loser is perfectly clear. It is the nation’s confidence in the judge as an impartial guardian of the rule of law.” Stevens–a Republican lawyer appointed by a Republican president–also wrote that the majority ruling could “only lend credence to the most cynical appraisal of the work of judges throughout the land.”

If I were Hank Skinner, I would feel obviously relieved that the Supreme Court halted my execution an hour before my scheduled death. I would also retain at least a scintilla of hope that a majority of the justices would understand the importance of testing evidence. But I would not harbor feelings of optimism."

The post can be found at:

http://trueslant.com/steveweinberg/2010/03/27/is-the-u-s-supreme-court-capable-of-dispensing-justice-after-a-wrongful-conviction/

Harold Levy...hlevy15@gmail.com;

HANK SKINNER CASE: FRANCE 24 EXAMINES THE MEDILL INNOCENCE PROJECT INVESTIGATION;

"REED, SKINNER’S FORMER NEIGHBOUR AND THE PROSECUTION’S STAR WITNESS, RECANTED HER TRIAL TESTIMONY DURING HER INTERVIEWS WITH THE STUDENTS. “THE MAIN WITNESS TOLD THEM THAT SHE HAD LIED ON THE WITNESS STAND… THAT [SKINNER] HAD NOT THREATENED HER [AS THE PROSECUTION CLAIMED] AND THAT HE WAS SEVERELY IMPAIRED,” EXPLAINED PROTESS IN A PHONE INTERVIEW WITH FRANCE 24. “SHE TOLD US THE DISTRICT ATTORNEY OF THE COUNTY HAD FORCED HER TO LIE BY THREATENING TO CHARGE HER AS AN ACCOMPLICE,” HE ADDED."

REPORTER LEELA JACINTO; FRANCE 24;

----------------------------------------------------------------------------------

BACKGROUND: The editor of the Texas Tribune says in a note that "Hank Skinner is set to be executed for a 1993 murder he's always maintained he didn't commit. He wants the state to test whether his DNA matches evidence found at the crime scene, but prosecutors say the time to contest his conviction has come and gone......We told the story of the murders and his conviction and sentencing in the first part of this story." Reporter Brandi Grissom, author of the Tribune series on Hank Skinner, writes: "I interviewed Henry "Hank" Watkins Skinner, 47, at the Polunsky Unit of the Texas Department of Criminal Justice — death row — on January 20, 2010. Skinner was convicted in 1995 of murdering his girlfriends and her two sons; the state has scheduled his execution for February 24. Skinner has always maintained that he's innocent and for 15 years has asked the state to release DNA evidence that he says will prove he was not the killer."

-------------------------------------------------------------------------------

The France 24 story is proceeded by the following note: "The 1995 triple-murder trial of Henry “Hank” Skinner, whose death sentence was recently stayed by the US Supreme Court, was riddled with flaws, according to defence lawyers. FRANCE 24 takes a look back at the details of the high-profile case."

"On New Year’s Eve 1993, police in the little Texan town of Pampa found the body of a badly beaten-up woman lying on her living room. One of her adult sons was stabbed in the back in his bed," the France 24 story by reporter Leela Jacinto, published earlier today begins, under the heading, "Examining the Hank Skinner case."

"Another son had died from stab wounds as he tried to crawl to the neighbour’s house," the story continues.

"Investigators found evidence that the woman, Twila Jean Busby, was raped and her head was bashed by an axe handle.

Suspicion immediately fell on Busby’s live-in boyfriend, Henry “Hank” Skinner, a former oil and construction worker who had a known history of drug and alcohol abuse and of petty crime.

Two years later, a Texas court convicted him after a prosecution witness, a neighbour named Andrea Reed, told the court that Skinner had admitted to her that he had kicked his girlfriend to death.

Skinner, who pleaded innocent at the trial, was sentenced to death by lethal injection.

A star witness recants her testimony

The Skinner case would have received little notice if it did not attract the attention of David Protess, the director of an extraordinary based journalism programme at Chicago’s Northwestern University.

Challenging death: How undergraduates take on the justice system

In 2000, students of Northwestern’s Medill Innocence Project travelled to Texas, where they met with Skinner, interviewed witnesses and combed through piles of documents. They returned to Chicago with a dossier full of case flaws.

Reed, Skinner’s former neighbour and the prosecution’s star witness, recanted her trial testimony during her interviews with the students.

“The main witness told them that she had lied on the witness stand… that [Skinner] had not threatened her [as the prosecution claimed] and that he was severely impaired,” explained Protess in a phone interview with FRANCE 24. “She told us the District Attorney of the county had forced her to lie by threatening to charge her as an accomplice,” he added.

Too inebriated to commit the crime

During the trial, the prosecution charged that Skinner was present at his girlfriend’s home when the crime occurred.

While Skinner did not deny his presence, he maintained that he was under the influence of drugs and alcohol and was physically unable to commit the crimes.

Busby was strangled so forcefully that her larynx and the hyoid bone in her throat were broken. She was then struck with an axe handle 14 times, the court documents said. There was no evidence of her being kicked to death, as Reed had testified Skinner as confessing.

In a court filing to the US Supreme Court requesting a stay on his March 24 execution, Skinner’s lawyers noted that, “while attacking Ms. Busby, the perpetrator had to contend with the presence of her 6-foot, 6-inch, 225-pound son, Elwin Caler, who blood spatter analysis showed was in the immediate vicinity of his mother as she was being beaten.”

The filing went on to add that, "the victims' injuries show that whoever murdered them must have possessed considerable strength, balance and coordination."

Toxicology tests showed that Skinner was nearly comatose from a mix of vodka and codeine the night of the murders.

Enter the uncle and untested DNA evidence

The team of eight Medill Innocence Project students who investigated the case found that the victim had complained on the night of the murder of being harassed by her uncle, who Skinner has always claimed committed the crime.

The uncle, Robert Donnell, did not come under investigation, and died in an auto accident in 1997.

Donnell had a violent history and guests at a party that Busby attended the night of her murder said they last saw Donnell making passes at his niece and stalking her.

Students from the Medill Innocence Project also discovered that DNA evidence that had been collected from the crime scene was never tested or used in Skinner's trial.

That evidence included vaginal swabs and fingernail clippings from Busby, hairs found in her hand and two knives found at the scene.

The testing of the DNA evidence was the critical issue that helped Skinner obtain a March 24 US Supreme Court execution stay order.

Skinner had been scheduled to be executed in Huntsville, Texas, by lethal injection at 6 pm local time and was having his dinner when the Supreme Court decision was made, barely an hour before the scheduled execution.

The Supreme Court must now decide if it will take up the case on the merits, otherwise a new execution date will be decided, the justices said in a brief decision."

The story can be found at:

http://www.france24.com/en/20100326-examining-hank-skinner-case-usa-justice-death-penalty-wrongful-conviction-dna-supreme-court-medill

Harold Levy...hlevy15@gmail.com;

TOSHIKAZU SUGAYA; JAPAN. CLEARED BY DNA TESTS AFTER MORE THAN 17 YEARS BEHIND BARS; BULLIED INTO MAKING FALSE CONFESSION; PARALLELS WITH CARAVALLA;

"MR. SUGAYA WAS CHARGED WITH THE 1990 MURDER OF MAMI MATSUDA IN TOCHIGI, NORTH OF TOKYO, AND WAS SENTENCED TO LIFE IN PRISON BY A DISTRICT COURT IN 1993. HE FIRST ADMITTED TO THE CRIME BEFORE RETRACTING HIS CONFESSION AND PLEADING NOT GUILTY AT HIS INITIAL TRIAL. BUT HIS LIFE SENTENCE WAS UPHELD BY A HIGHER COURT AND AFFIRMED BY THE SUPREME COURT IN 2000, BASED ON HIS INITIAL TESTIMONY AS WELL AS DNA TESTS THAT WERE LATER FOUND TO BE FLAWED. LAST OCTOBER, FRESH DNA ANALYSIS CONDUCTED AT THE REQUEST OF MR. SUGAYA’S LAWYERS CAST DOUBT ON HIS INVOLVEMENT IN THE CASE, AND THE UTSUNOMIYA COURT OPENED A RETRIAL. MR. SUGAYA WAS RELEASED IN JUNE. TAPES PLAYED AT THE RETRIAL SHOWED HOW AN INVESTIGATOR HAD CONFRONTED MR. SUGAYA WITH THE DUBIOUS DNA RESULTS, WHICH THE OFFICIAL SAID LINKED HIM TO SEMEN FOUND ON THE GIRL’S BODY. “YOU’RE A FAILURE AS A HUMAN BEING,” THE INVESTIGATOR SAID AT ONE POINT. DURING THE INITIAL INVESTIGATIONS, PROSECUTORS ALSO NEGLECTED TO TELL MR. SUGAYA THAT HE COULD CONSULT WITH DEFENSE LAWYERS AND THAT HE HAD THE RIGHT TO REMAIN SILENT, HIS LAWYERS SAID."

REPORTER HIROKO TABUCHI: THE NEW YORK TIMES;

-----------------------------------------------------------------------------------

PUBLISHER'S NOTE: PUBLISHER'S NOTE: In a previous post, following the exoneration of Anthony Caravella in Florida, I suggested that when DNA exonerates a convicted inmate a crucial question must be posed: How could an utterly innocent person be convicted of a crime he or she did not commit? my unfortunate answer was that, "All too often the answer is that police and prosecutors (and occasionally judges) have to cut corners and "stretch" the system in order to get the conviction. (Like coercing or inducing a false confession). Ironically, the Caravella exoneration in Florida, which involved a false confession, was followed within hours by the exoneration in Japan of Toshikazu Sugaya, who's case also involved a false confession. Anthony Caravella lost 26 years of his life before being freed. Toshikazu Sugaya was locked up for 17 years before being freed. The State of Florida and the nation of Japan both saw the wisdom of retesting DNA in order to prevent miscarriages of justice - and all of the suffering they can entail. Why can't the State of Texas see this - in a case where Hank Skinner faces the ultimate punishment of execution?

-------------------------------------------------------------------------------------

"TOKYO — For more than 17 years, Toshikazu Sugaya, a soft-spoken kindergarten bus driver, lived behind bars, serving a life sentence for the murder of a 4-year-old girl," the New York Times story, by reporter Hiroko Tabuchi, published earlier today begins, under the heading, "In Rare Reversal, Japan Clears Man Convicted of Murder."

"On Friday, the 63-year-old Mr. Sugaya was cleared of all charges after a judge acknowledged that he had been bullied by investigators into making a false confession — a practice that critics say is all too common in Japan’s criminal justice system," the story continues.

"It was only the sixth time since World War II that a defendant with a finalized death penalty or life sentence had been acquitted in a retrial, according to Kyodo News.

“We are truly sorry that your words of truth fell upon deaf ears,” Masanobu Sato, the presiding judge, told Mr. Sugaya at a retrial at Utsunomiya District Court, north of Tokyo, according to news reports. “I strongly hope something like this will never happen again.”

Human rights groups have long criticized the Japanese authorities for relying on confessions to take suspects to court, instead of building cases based on solid evidence. That practice, groups say, has led to abuses of due process and the conviction of innocent people like Mr. Sugaya.

Japan’s near-100 percent conviction rate in criminal cases cannot be compared directly with that of the United States, because there is no plea bargaining and prosecutors bring cases only when they are confident of winning. But critics say the high conviction rate creates a presumption of guilt in the cases that do come to court.

In 2007, a high court upheld the acquittal of a man who said he had been coerced into confessing to killing three women in the late 1980s. The court found that there was no evidence against the man other than his confession, which had been extracted from him after days of interrogations.

“There are deep-rooted problems in Japan’s criminal justice system,” said Kanae Doi, director of Human Rights Watch in Japan and a former criminal defense lawyer. “It is rampant with human rights violations.”

Mr. Sugaya’s case, which involved forced confessions and flawed DNA tests, has shown just how far the authorities will go to obtain confessions that will ensure severe sentences.

Mr. Sugaya was charged with the 1990 murder of Mami Matsuda in Tochigi, north of Tokyo, and was sentenced to life in prison by a district court in 1993. He first admitted to the crime before retracting his confession and pleading not guilty at his initial trial.

But his life sentence was upheld by a higher court and affirmed by the Supreme Court in 2000, based on his initial testimony as well as DNA tests that were later found to be flawed.

Last October, fresh DNA analysis conducted at the request of Mr. Sugaya’s lawyers cast doubt on his involvement in the case, and the Utsunomiya court opened a retrial. Mr. Sugaya was released in June.

Tapes played at the retrial showed how an investigator had confronted Mr. Sugaya with the dubious DNA results, which the official said linked him to semen found on the girl’s body. “You’re a failure as a human being,” the investigator said at one point.

During the initial investigations, prosecutors also neglected to tell Mr. Sugaya that he could consult with defense lawyers and that he had the right to remain silent, his lawyers said.

The retrial, and details of the interrogations Mr. Sugaya endured, have captured Japan’s imagination. A confrontation between the primary investigator and Mr. Sugaya in court earlier this year — where Mr. Sugaya demanded, but was not granted, an apology for his treatment — was played out on prime-time news shows and in national newspapers.

On Friday, the three judges at Mr. Sugaya’s trial bowed deeply, saying the court, too, had been at fault for not making sure that a fair investigation had been carried out. Mr. Sugaya bowed back, before leaving the court and collapsing, in tears, in the arms of supporters waiting outside.

“I feel completely different today from yesterday,” Mr. Sugaya said. “I feel refreshed by the verdict of complete innocence.”"

The story can be found at:

http://www.nytimes.com/2010/03/27/world/asia/27japan.html

Harold Levy...hlevy15@gmail.com;

DAY THREE: MAGNIFICENT PIECE OF REPORTING BY COLUMBUS DISPATCH: CRIMINAL LAW REFORM BILL. VICTIMS RELIVE HORROR WHEN INMATES GET TESTING.

"DNA TESTS OFFER HOPE TO SOME PRISONERS. BUT FOR CRIME VICTIMS, THE EXAMINATION OF BIOLOGICAL EVIDENCE CAN RIP OPEN OLD FEARS, OLD WOUNDS AND OLD DOUBTS. THEN COMES THE ANXIETY OF WAITING FOR THE ANSWERS -- TEST RESULTS THAT CAN CEMENT CLOSURE FOR SOME VICTIMS AND CREATE ETERNAL CONFLICT FOR OTHERS."

THE COLUMBUS DISPATCH;

----------------------------------------------------------------------------------

BACKGROUND: PART ONE: According to the Innocence Project, "Ohio lawmakers last week (March 16, 2010) passed a package of sweeping criminal justice reforms aimed at preventing injustice by addressing the leading causes of wrongful convictions. The bill, which Gov. Ted Strickland is expected to sign within days, was called by one lawmaker “one of the most important pieces of criminal justice legislation in this state in a century."Each time DNA testing helps to free an innocent person from prison, we can study how our criminal justice system failed — and address the problem so it doesn’t happen again. Ohio is now a model in targeting reforms to help free the innocent, prevent wrongful convictions and apprehend the true perpetrators of crime. The bill includes improvements to lineup procedures, a method for parolees to apply for DNA testing, incentives for police departments to record interrogations and a requirement that evidence in serious crimes be preserved. The Innocence Project worked closely with the Ohio Innocence Project for the last two years to pass these critical reforms. While these reforms are badly needed from coast to coast, the urgency for systemic change became clear in Ohio after the Columbus Dispatch published the groundbreaking series "Test of Convictions," documenting flaws in the state’s system and helping to bring about two exonerations so far. The series’ two reporters, Mike Wagner and Geoff Dutton, will receive the Innocence Network’s first-annual Journalism Award next month. (April, 2010)

BACKGROUND: PART TWO: THE FIVE PART COLUMBUS DISPATCH SERIES THAT PROMPTED DRAMATIC CRIMINAL LAW REFORM IN OHIO:

* PART ONE: Evidence is often lost or destroyed.
* PART TWO: Ohio rejects tests for parolees and the dead.
* PART THREE:Victims relive horror when inmates get testing.
* PART FOUR; Innocent man must register as sex offender.
* PART FIVE: DNA promising in questionable cases.
'
BACKGROUND PART THREE; THE COLUMBUS DISPATCH'S MODUS-OPERANDI: The Dispatch built case files on 313 inmates from 51 counties who applied for DNA tests. The newspaper reviewed every case with the Ohio Innocence Project, a University of Cincinnati-based legal clinic that represented many of the inmates. The reporters interviewed three dozen inmates and former inmates, as well as prosecutors, crime victims and others with a stake in the system.

BACKGROUND PART FOUR: THE REPORTERS; Geoff Dutton is a projects reporter who joined The Dispatch in 2002. He has reported on unsafe conditions in youth prisons, home foreclosures and predatory lending, and the consequences of sentencing juvenile criminals to adult prisons. Dutton worked previously for newspapers in Florida and Ohio. Mike Wagner has been a projects reporter at The Dispatch since 2006. He has profiled former OSU quarterback Art Schlichter, examined the lack of black coaches in high schools and detailed fan behavior at Big Ten football games. Previously, he worked as an investigative reporter for the Dayton Daily News.

----------------------------------------------------------------------------------

PUBLISHER'S NOTE: I am struck by the sheer contrast between Texas and Ohio when it comes to the criminal justice system. The State of Texas does its best to hide any information which could show that it could have convicted, or even executed an innocent man - as is so evident in the Cameron Todd Willingham and Hank Skinner cases. The State of Ohio is aggressively seeking to free the innocent and prevent wrongful convictions through legislation. This revolution in Ohio didn't just happen. It is the result of a magnificent investigation conducted by the Columbus Dispatch. This Blog applauds the Dispatch for pouring in the hefty resources required for such a massive undertaking, the Innocence Project and the Ohio Innocence Project, for its unique cooperation with the newspaper, and the writers, photographers and editorial staff who did such a phenomenal job. Reporters Geoff Dutton and Mike Wagner richly deserve the Innocence Network’s first-annual Journalism Award which is to be presented next month. (April, 2010);

----------------------------------------------------------------------------------
PUBLISHER'S NOTE: I am struck by the sheer contrast between Texas and Ohio when it comes to the criminal justice system. The State of Texas does its best to hide any information which could show that it could have convicted, or even executed an innocent man - as is so evident in the Cameron Todd Willingham and Hank Skinner cases. The State of Ohio is aggressively seeking to free the innocent and prevent wrongful convictions through legislation. This revolution in Ohio didn't just happen. It is the result of a magnificent investigation conducted by the Columbus Dispatch which began on January 27, 2008. This Blog applauds the Dispatch for pouring in the hefty resources required for such a massive undertaking, the Innocence Project and the Ohio Innocence Project, for its unique cooperation with the newspaper, and the writers, photographers and editorial staff who did such a phenomenal job. Reporters Geoff Dutton and Mike Wagner richly deserve the Innocence Network’s first-annual Journalism Award which is to be presented next month. (April, 2010);

----------------------------------------------------------------------------------


"Jane Tillar dunked her Lipton tea bag in hot water as her sister walked in with the morning newspaper," the story begins, under the heading, "Flashback: Inmate's DNA test sparks vivid memories of rape."

"They sat down at the kitchen table, surrounded by pictures of Jane's four children and 10 grandchildren," it continues.

"It was a sunny Labor Day weekend in suburban Cincinnati, and Jane was looking forward to her family gatherings.

Then she opened the paper and saw her rapist glaring back at her.

Jane screamed to her sister. "Oh, dear God; Joe Elliott is going to get a DNA test," she said, holding the paper in her shaking hands. "How could no one tell me about this? What if he has been innocent all these years? What if the man who raped me is still out there?"

DNA tests offer hope to some prisoners. But for crime victims, the examination of biological evidence can rip open old fears, old wounds and old doubts.

Then comes the anxiety of waiting for the answers -- test results that can cement closure for some victims and create eternal conflict for others.

Jane, 69, welcomed the chance to publicly share her story for the first time, noting that even close friends have avoided talking about it with her.

For Jane, the anxiety about the attack returned on Sept. 2, 2006. Only a few letters from the parole board during the previous 11 years had reminded her of the attack. Now, the morning headline had stripped away her peace of mind.

The Ohio Innocence Project, a nonprofit legal clinic based at the University of Cincinnati's College of Law, had taken on Elliott's case and won a legal fight with prosecutors to test biological evidence. No one from the prosecutor's office had told Jane about the pending DNA test of the swabs taken at the hospital.

Because it was a holiday weekend, Jane had no way of calling anyone for the next three days to answer her many questions.

She lived with her sisters and was active in her community. She wasn't haunted by the rape, and rarely thought of the June 1992 attack.

But for those three days, Jane's mind was filled with thoughts of the past -- the steel blade touching her head, her nightgown being lifted and the pain her husband took to his grave.
The open door

Jane opened her blurry eyes moments before the kitchen knife was resting against her temple. Her head lifted slightly off the pillow as she turned toward the alarm clock that read 3 a.m. A bottle of wine stood at the feet of the man holding the kitchen knife.

"Roll over, bitch," the intruder commanded.

Hours earlier, Jane and her husband, Donald "Whitey" Tillar, were serving chicken casserole and chocolate cake to her children and grandchildren. Now, the 53-year-old woman, wearing a pink nightgown with the word joy on the front, was being raped in her own bed. Her husband, a chronic snorer, was asleep in an adjacent room.

Jane thought she would suffocate as the man covered her face with her pillow.

"If you scream, I will kill your husband," the rapist said.

The first attack lasted a few minutes. Then the man pulled Jane down the stairs to the first floor, where he sat her on the edge of the couch and forced her to perform oral sex.

The man then dragged Jane to the dining-room floor, where he raped her again. During this attack, he noticed the scars on Jane's chest from a mastectomy. The tone of his voice softened, and he asked his victim if she had cancer.

"Don't let anyone tell you that you are not beautiful," he said.

The sound of a flushing toilet whooshed above them. The distraction gave Jane the moment she needed to escape. She ran through the hallway and up the stairs, screaming.

"Whitey, call 911! I was raped!"

Still in a sleepy fog, her husband sprinted down the stairs but the attacker was gone. Whitey glanced at the sliding-glass door, the one that he had forgotten to lock when he went to bed. He grabbed his head and yelled in agony.

"Oh, my God! This is my fault, this is my fault!"
A husband's pain

It had been 18 months since the attack. Jane heard a loud thump, followed by silence.

Her husband lay facedown on the stairs, motionless. Whitey, who already suffered from failing kidneys, was rushed to the hospital for a severe head injury.

When he was able to talk again after a few days, Whitey greeted his wife.

"Hello, Diane," he said to Jane, mistakenly using the name of an old flame.

In the aftermath of the rape, Jane's attacker remained somewhere on the streets, and she and Whitey moved from their condominium to escape the painful memories.

The couple's troubles only grew worse. Whitey's architecture business, which had been struggling before the rape, finally collapsed. Jane's agony deep- ened when her pregnant daughter called to say that her child would be stillborn.

Now, Jane's husband of 35 years was in a nursing home and calling her the name of an old girlfriend.

"That was my breaking point right there," Jane said. "The attack itself wasn't as hurtful as seeing what was happening to our lives."

Jane turned to a psychologist to cope with the chaos. She and Whitey had seen a counselor together half a dozen times after the rape, but it did little to heal her husband's guilt.

For several months after the fall, Whitey lost his memory, including any thoughts of the attack. But they returned at the nursing home as he battled the kidney disease that ravaged his body.

"He would just start crying and telling me again and again he blamed himself," Jane said. "Then he would say how much he wanted revenge on the man that did this to me. The hardest part for both of us was this man was still out there."
The conviction

About two weeks after Whitey's kidneys failed and Jane buried her husband in 1994, police waited for Elliott outside his English class at the University of Cincinnati.

Partial fingerprints taken from the wine bottle in Jane's bedroom and the sliding-glass door pointed to those of the 22-year-old college student. Elliott lived near the couple.

While he walked through campus, Elliott heard another student say that police were looking for him. He ran to his brother's apartment, but police were soon knocking at the door. He climbed down the drainpipe, ran around the back and again managed to escape.

After visiting a girlfriend in a northern Ohio college town, Elliott was finally arrested in November 1994.

Nearly two years had passed since Jane's attack. It was a day of both relief and more agony for a grieving widow.

"I wish Whitey was here for this," Jane told her sister. "He would have rested easier knowing police caught this guy."

But another year of waiting passed before Jane found herself on a witness stand, reliving the brutal attack that had stolen her peaceful life.

For nearly an hour, Jane described how she was raped and robbed.

"He had the pillow over my head. I thought I was going to suffocate," she told the jury. "I thought I was going to die right there."

The jury found Elliott guilty.

But it wasn't until a judge sentenced him to 15 to 50 years in prison that Jane received what she had craved for more than three years: "I finally had the closure I needed."
The test results

Eleven years later, Jane opened the morning paper and discovered that the man convicted of raping her had been granted a DNA test. She then put herself back on the witness stand, but this time there was no jury; only her conscience, again questioning every detail of the case.

The rapist warned Jane not to look at his face just before he climbed into her bed. Fearing she or her husband would be killed, she shifted her eyes down or held them closed. It was dark, and Jane didn't want to watch him anyway.

Jane never did see his face. Other than his skin color and general build, Jane was never able to give the police a description.

In the months she waited for Elliott's DNA test, doubts flooded Jane's thoughts. Maybe Elliott was innocent. Maybe the police made a mistake with the fingerprints on the wine bottle and door.

Authorities testified during the trial that a spot of blood on Jane's nightgown was Elliott's. But a blood test after the conviction proved it came from Whitey, who cut himself on a baby crib while running to his wife the night of the attack. Maybe there were other problems with the case.

"I felt sorry for him, for making him serve all that time in prison for something I couldn't be sure he did," Jane said. "I never saw his face."

On a cold February night in 2007, Jane's phone rang. It was the prosecutor's office.

Jane held her breath, just slightly, and waited.

The voice on the phone told her the evidence matched Elliott.

Jane exhaled.

"It was him all along," she said.

Like some other inmates, Elliott wanted to roll the scientific dice, hoping for a DNA miracle that would cover up his crime. Elliott declined to be interviewed.

It would have been easy, almost expected, for Jane to be angry at the Ohio Innocence Project and justice system for allowing Elliott the test. But the devout Catholic said she never has harbored any resentment toward anyone. She has even tried to forgive Elliott.

Despite her ordeal, she believes that prisoners should have the right to DNA tests in cases involving real doubt.

"The worst part at the end is when they called me a senior (citizen) in the newspaper," Jane said, tears rolling toward her slight grin. "It brings closure either way, and that's what it did for me.""

This story can be found at:

http://www.dispatch.com/live/content/local_news/stories/2008/01/29/dna3.html


Harold Levy...hlevy15@gmail.com;