Friday, March 26, 2010





BACKGROUND: PART ONE: According to the Innocence Project, "Ohio lawmakers last week (Wednesday 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)


* 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);


"GLEN, N.Y. -- The crunch of gravel under car tires rolling up the driveway sent chills across Eli Keim's skin. The frail Amish farmer, who has battled the effects of polio for most of his 58 years, limped toward the stranger," the story begins, under the heading, "Out of time: Ohio restricts convicts who try to prove innocence."

"The black man rolled down his car window and asked if he could buy some eggs,"
it continues.

""That poor man had no idea what that question did to me inside," Keim said.

Keim moved his family from northern Ohio to this rural Amish community in upstate New York about two years ago, but he can't leave behind the lingering memories of being choked and robbed by a black intruder who pretended to want eggs from his Ashland County farm.

Keim wiped wood chips from his salt-and-pepper beard and recalled the day that Arthur Swanson was arrested for the robbery. The day that he took the witness stand against the 54-year-old Mansfield man. The day that a jury convicted Swanson and a judge sentenced him to 20 years in prison.
Story continues below

Then the Amish man, surrounded by 60 peaceful acres of corn and hay fields, wondered aloud about Swanson's well-being in prison. He wasn't aware that Swanson and his family have maintained his innocence and fought for a DNA test for years.

Or that after being locked up for seven years, Swanson died in prison of an extended illness in 2006.

"I always thought it was Arthur, but I would never ever say I'm positive it was him in my house that day," Keim said.

DNA testing of a cigarette butt and a hair collected from the scene could possibly settle the question, but Ohio law prevents it.

Convicts lose their chance for a DNA test when they are released from prison, whether they leave on parole or in a hearse.

Ohio is among 15 states that require a person to be alive and in prison to qualify. Had that restriction been in place nationally, it would have prevented clearing the names of at least 22 men wrongly convicted of rape or murder.

If Ohio allowed for expanded DNA testing, the number of exonerations "would be higher, there's just no question," said Stephen Saloom, policy director of the Innocence Project of New York.

"You've got to ask: Who benefits from refusing to learn whether or not an innocent person was convicted of a serious crime? Nobody benefits -- except the real perpetrator. Everyone else loses."

Fairfield County Assistant Prosecutor Gregg Marx doesn't buy it. He opposed testing for a paroled rapist there, he said, out of confidence in and respect for the jury, the appeals court and the victim.

"We think it would be devastating to victims everywhere, not just this victim," Marx said. "What will happen if we're allowed to continually attack verdicts years later?"
Swanson: Was it him?

Sarah Keim was scrubbing the breakfast dishes when she saw the long gray car creep up the driveway. It was just after 7 a.m. the day before Thanksgiving 1998, an odd time for visitors, she thought.

Their 16-year-old son, Benny, already was outside hitching up the horses.

"Good morning, I'm looking to buy some eggs," the man said to Eli when he greeted him at the door.

When Eli returned with two dozen eggs, the man was standing inside the white two-story farm house. He grabbed Eli around the neck and demanded cash. Eli's face was purple by the time the man dragged him into the kitchen. "He had me in a death grip," Eli said. "I thought I was going to die, but I just didn't want him to hurt Sarah or Benny."

Sarah screamed at the man and tried to free her husband. She backed off when he threatened to kill Eli, and then gave him a billfold with $60.

"I want more," the man screamed. Sarah grabbed a desk drawer with loose change.

The man ordered Sarah to lie on the floor and released Eli before he sprinted out the back door. As the car pulled away, the couple raced outside to check on their son and tried to read the license plate.

"It was hard to see, but we thought we got the first three letters -- DXL, QXL, OXL -- or something like that," Eli said.

A detective discovered a fresh cigarette butt at the corner of the house, likely left by the robber. The Keims didn't see the attacker smoking but couldn't see what he was doing before entering their home. Investigators took the hair from inside the house, where Eli said no black person had ever been.

Even so, the cigarette butt and hair were never tested.

The nightmares soon followed and stayed -- and so did the guilt."We regretted that we told police, because we (Amish) believe that it's wrong to seek revenge," Eli said. "But the other side is, he could do this to someone else."

Either way, the sound of any vehicle rolling up the driveway would haunt him.

Two weeks later, an anonymous caller told the Ashland County sheriff's office that Swanson was the robber and had used his mother's car. Swanson was arrested at his mom's Mansfield home. Out front was his mom's car: a light silver Chrysler New Yorker, license plate DXL 781.
Passing the test

Nationally, DNA has exonerated at least 22 people who were already out of prison, one of them dead, T he Dispatch found. Eight others had been released but were returned for parole violations by the time of their tests.

Together, they served more than 370 years in prison, plus years on parole, for crimes they didn't commit.

Texas cleared James Curtis Giles in June with DNA tests that proved his innocence -- and identified the actual rapist -- 15 years after Giles was released on parole.

"The only sad part is my momma didn't live that long," he said. "She didn't get a chance to celebrate my exoneration. Likewise, my dad."

Virginia cleared Marvin Anderson with a DNA test after he spent 15 years in prison and five years on parole for rape. The test in 2002 revealed the real rapist and led to the testing and exoneration of two inmates in separate cases.

The sudden pileup of exonerations prompted the state to randomly test evidence from 31 other old cases, which exonerated two more men who had served a combined 31 years in prison and by then were on parole.

Now, Virginia is combing more than a half-million old files looking for other mistakes.

Anderson, who speaks about wrongful convictions around the country, knows that, despite his horrifying ordeal, he has much to be thankful for -- particularly that he wasn't convicted in a state such as Ohio that prohibits parolees from getting a test.

"I'd probably still be walking around as a convicted sex offender," he said.

"All these states need to wake up. If a person is innocent of a crime, regardless of whether he's in or out, he should be able to prove his innocence."

Authorities have tested evidence after an inmate's death in at least three death-penalty cases in three different states.

In 2000, DNA tests cleared Frank Lee Smith of raping and murdering an 8-year-old girl in Florida -- a year after Smith died of cancer while awaiting execution for 14 years on Death Row. The DNA tests also identified the real attacker.

In Virginia, DNA tests in 2006 ended years of speculation and doubt, confirming the guilt of Roger Coleman 14 years after his execution. And Georgia tried to settle questions about the guilt of Ellis Wayne Felker in 2000, four years after his execution, but tests were inconclusive.

The case of Donte Booker shows what might lie beneath the surface in Ohio.

The Cleveland man served 15 years for rape before being paroled as a registered sexual offender in 2002. A short time later, Ohio passed its law allowing inmates to request a DNA test.

Booker applied, but the prosecutor rightly noted that he didn't qualify. It didn't matter that Booker offered to pay for the test himself; he wasn't in prison, with at least a year left on his sentence, as required by law.

Coincidentally, Booker got into a fight with his girlfriend eight days later and was arrested -- a parole violation that landed him back in prison. This time, he won approval for testing sperm left behind by the rapist nearly 20 years earlier.

The results not only cleared Booker in 2005 but revealed the real rapist, an ex-convict whose DNA profile remained in a state database because of an aggravated robbery he committed while Booker sat in prison. The man pleaded guilty and was sentenced to five years for the rape for which Booker had already served 15 years.

The case shows the arbitrary and risky nature of excluding people from testing after their release from prison.

"If we're all interested in justice, what's the problem with doing that?" asked his attorney, W. Scott Ramsey of Cleveland. "It leads one to believe it's not all about justice. A person who served 20 years and is out on parole deserves to clear his name."
Swanson: Weak case?

Maebell Owens looked but couldn't find answers in the soot-covered box of prison paperwork, all that remained of her son's fight to prove he didn't rob the Amish family. The 86-year-old woman shuffled across the creaky porch of her ramshackle Mansfield home, leaning on the snow shovel handle she uses as a makeshift cane. She nearly fell when she bent down to lift the box. Her tears dripped on a torn, faded picture of her son.

"This is what my son lived with and died with in that cell," Owens said of her son, Arthur Swanson. "My boy was innocent."

Swanson's life was ordinary before a robbery conviction. He graduated from high school, where he ran track, then worked at an automotive factory in Michigan. He later returned to Ohio to work odd jobs so he could help care for his aging mother. He never married but had two sons.

In his early 20s, stemming from separate incidents, Swanson was convicted of unarmed robbery and breaking and entering. He later was convicted on drug and forgery charges and served more than two years in prison.

The prosecution's case against him was based mainly on testimony from the Amish couple and other witnesses. They described the "long gray car" that matched Owens' vehicle and the partial license plate of DXL that Eli Keim had written down when the robber fled his farm.

But even the Keims concede that lingering questions surround the case.

They described the suspect to police as 30 to 35 years old. Swanson was 54 at the time and showed no resemblance to the sketch distributed by the sheriff's department.

Sarah Keim couldn't identify Swanson in a photo lineup.

Her husband also struggled to identify the attacker from the six photos. But after taking what authorities called "considerable time," he guessed at the person in photo No. 2 - Swanson.

Detectives also showed a photo lineup to a woman who told police that a black man had stopped at her house the morning of the robbery to ask where he could buy eggs from an Amish family. That woman picked the man in photo No. 4 - not Swanson.

The Keims initially were confused about whether one or two men were involved in the robbery, and whether the letters on the license plate were accurate.

Swanson's mother says she was driving her own car to the grocery store the morning of the robbery. A rusted license plate with the letters DXL still sits on her porch.

"Arthur didn't have my car," she said. Swanson's alibi was that he was at a friend's house during the robbery.

Swanson wrote dozens of letters, pleading for help. He asked private attorneys, law schools and other advocates to persuade the justice system to test the cigarette butt and hair.

Swanson's plea for a DNA test was rejected, with prosecutors and a judge saying it wouldn't prove his innocence. They argued that even if the DNA evidence didn't match Swanson, it still wouldn't have cleared him of the robbery.

Swanson never received his DNA test. He died at age 61 on Independence Day.
Fighting for justice

Each year, more Ohio inmates die or are freed after years in prison, only to be trapped by a system unwilling to reconsider their guilt in light of DNA.

At Robert Blackburn's trial in 1993, a Fairfield County prosecutor held up an 8-year-old girl's pair of semen-stained underwear to help seal his conviction.

The latest DNA testing techniques could possibly, finally, discredit Blackburn's continuing claims of innocence or correct a horrible injustice. But prosecutors successfully fought it, and Blackburn lost his chance to keep arguing the point when he was paroled in 2005.

"The victim in this case, we wanted her to get closure on this matter," Prosecutor David Landefeld said. "I think it would be devastating for her. It just dredges up a lot of memories. She was a brave little girl to come in and testify."

Blackburn still wants the girl's underwear sent to a DNA lab. He hasn't seen his three children since his conviction, and few people, not even relatives, have looked at him the same since.

"They don't want to believe I did 15 years in prison for something I didn't do. Nobody does."

Some inmates would even prefer to remain in prison to continue their fight for a DNA test, especially those who would be classified as sex offenders.

"If it means a chance to clear my name, and get this test, I would rather stay in prison than be paroled," said Robert McClendon, an inmate at the Ross County Correctional Facility who is serving a sentence of 15 years to life for rape. McClendon, who was convicted in 1991, is now eligible for parole.

"If I do get out on parole, I will fight this rap from the street," he said. "I am no angel. I've done some bad things in life, but I'm not a rapist."
Swanson: Grant a test?

A stream of barefoot schoolchildren passed beneath the big oaks that tower over Eli Keim's farm. He grinned. In that same moment last October, his wife set a piece of homemade pie on his work bench. Their son stopped in after a day's work to say hello before he headed into the woods to bow hunt.

Keim has the serenity that any man covets. He didn't come to New York to escape the past.

But the memories of the robbery and Arthur Swanson linger. Keim once tried to visit Swanson in prison.

"I wanted to give him a chance to ask for our forgiveness, make peace with everything," Keim said. "But they wouldn't let me because I'm the victim."

Owens often visited her son in prison. She sent him the little money she had to help pay for extra medicine to ease his suffering in the last months of his life.

The elderly woman's health is failing now, and she knows her time is short. Her last wish, however, isn't to take a lavish trip or move into a nicer home.

"All I want before I die is to clear my baby's name," she said.

Ashland County Prosecutor Ramona Rogers said she will continue to follow the law when it comes to considering any future motions for DNA testing in Swanson's case.

"I will not make an exception in this case with no statutory authority to do so," said Rogers, who was not involved in prosecuting Swanson.

While she could endorse a DNA test, Rogers argues that prosecutors had a strong case against Swanson; his attorneys didn't ask for DNA testing at the time of trial; and, under the state's old law, several courts have ruled that a DNA test would not help prove Swanson's innocence.

"I understand the Amish are a forgiving culture," she said. "But I can't be governed by what the victims want."

Still, Keim and his family hope for a test.

"If he's guilty, then we will know once and for all," Keim said. "If he is innocent, then they should clear him.

"We humans," he said, "make mistakes all the time.""

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