"Cunningham said that Abbitt’s release last year may have been hastened because of the issues that arose after Darryl Hunt was found to have been falsely convicted of murder. Hunt spent 19 years in prison for murder before being freed when another man was identified, based on DNA evidence, as the killer.
“Basically there was a rush to act on Abbitt so no one would get criticized for dragging feet and keeping a possibly innocent person in jail longer than necessary,” Cunningham said. “Understandable on many levels, but truth, accuracy and justice should prevail.”"
REPORTER PAUL GARBER: WINTON-SALEM JOURNAL:
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"Winston-Salem police wanted to test additional evidence before Joseph Abbitt was freed from prison on rape charges last year, but the suggestion was not heeded, Police Chief Scott Cunningham said yesterday," the Winston-Salem Journal story by reporter Paul Garber published on October 8, 2010 under the heading, "Police: Abbitt case rushed: They wanted more testing before his release, chief says."
"Instead, with the Forsyth County District Attorney’s Office and the N.C. Commission on Actual Innocence reviewing Abbitt’s request that his case be reconsidered, the only evidence that went to a private laboratory with advanced techniques was the rape kits and vaginal swabs taken from the victims," the story continues.
"Testing from one of those swabs showed that Abbitt’s DNA did not match, a finding that led a Superior Court judge to approve a motion ordering that his convictions on rape and kidnapping charges be vacated. Earlier testing of the swabs and other evidence, including bed sheets, had gone to the State Bureau of Investigation laboratory, which did not reach any conclusive results.
Police said on Wednesday that after Abbitt was released, testing of the other evidence was done by Laboratory Corporation of America in an effort to identify potential new suspects. The police said, though, the LabCorp analysis is now pointing again to Abbitt as the prime suspect. His DNA was found on a bed sheet taken from one of the victim’s bedrooms, police said.
Cunningham, in an e-mail to the Winston-Salem Journal yesterday, said the full set of evidence was not tested when Abbitt first made his innocence claim partly because of the potential expense of testing it and partly because, with Abbitt already convicted, the case was not considered active.
“When it all started we wanted additional testing to be done before Abbitt was released,” Cunningham said. “This way we could be absolutely sure he was innocent.”
District Attorney Jim O’Neill said Wednesday that he was not aware that the police department was going to release the information that LabCorp had found Abbitt’s DNA on the bed sheet. He said that his position on the case — which he would not disclose because the case remains open — has been made known to the police department.
O’Neill said that if the department believes that Abbitt committed a crime, it can arrest him.
Abbitt has not been arrested, and no warrants have been issued against him in the case.
“There are certainly significant issues existing as to the legality of such an arrest,” Cunningham said. “And I have to follow the law and will do so.”
Cunningham said that Abbitt’s release last year may have been hastened because of the issues that arose after Darryl Hunt was found to have been falsely convicted of murder. Hunt spent 19 years in prison for murder before being freed when another man was identified, based on DNA evidence, as the killer.
“Basically there was a rush to act on Abbitt so no one would get criticized for dragging feet and keeping a possibly innocent person in jail longer than necessary,” Cunningham said. “Understandable on many levels, but truth, accuracy and justice should prevail.”
Chris Mumma — Abbitt’s attorney and the executive director of the N.C. Center on Actual Innocence, which worked on Abbitt’s behalf — said yesterday that the evidence that freed Abbitt remained the strongest in the case.
“The most important evidence in the case, the evidence that was collected from the victim’s body, was tested and revealed a male profile that did not match Mr. Abbitt,” she said, also in an e-mail to the Journal.
Carol Turowski, a co-director at Innocence and Justice Clinic at Wake Forest University School of Law, agreed with Mumma.
“I would stand by the assessment of the DNA evidence that excluded him,” Turowski said, referring to Abbitt.
Turowski said she doubts that prosecutors would charge Abbitt again because he is protected by the double-jeopardy clause outlined in the Fifth Amendment. It says in part that no person “be subject for same offense to be twice put in jeopardy of life or limb.”
“The state gets one chance to prove its case,” Turowski said. “It did, and he was convicted.... He can’t be tried for the same offense twice.”
Abbitt was convicted of the rape in 1995 but was freed on Sept. 2, 2009, after the DNA testing of the swab. The district attorney’s office, then headed by Tom Keith, worked with the innocence center on the case.
Police Capt. David Clayton said the bedding had been originally tested by the SBI lab in 1994, but a conclusive profile could not be developed at that time because the technology was limited.
Even in the more-recent testing of evidence, though, the only match the SBI was able to make was with a boyfriend of the older victim, with whom there had been a consensual relationship.
The evidence that exonerated Abbitt came after the rape kits and vaginal swabs were sent to LabCorp.
That test concluded that the DNA did not match Abbitt. The sample was not compared against the DNA of the older girl’s boyfriend or anyone else, Clayton said.
Such a test might have shown whether the DNA was the boyfriend’s or could have pointed to another possible suspect.
But that wasn’t the point of the testing, Clayton said. At the time, the goal was only to show whether the DNA matched Abbitt.
After Abbitt was freed, the bedding was sent to LabCorp, and Abbitt’s DNA was found, Clayton said.
Cunningham said investigators are obligated to identify the true attacker.
“This isn’t about an agency … it is about society and justice,” he wrote in the e-mail. “Right now we all lose.”"
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TIMELINE:
"Here are some key dates and issues in the case of Joseph Abbitt, the Winston-Salem man convicted in 1995 of raping two teenage girls and exonerated in 2009. New evidence is casting doubt on the exoneration.
• MAY 2, 1991: Two sisters, ages 13 and 15, are raped in their home. They implicate a man they know as “Joseph” in the attack. Police identify Joseph Abbitt as a suspect.
• MAY 1994: Abbitt, who had left North Carolina, is arrested in Texas and returned here.
• NOVEMBER 1994: Sexual assault kits submitted to the SBI fail to yield DNA profiles because of limitations in technology at the time.
• JUNE 22, 1995: Abbitt is convicted on two counts each of first-degree rape and first-degree kidnapping, largely based on the identification by the sisters. The girls both testify that there was only one perpetrator of the crime and that neither had intercourse with anyone else in the weeks prior to the attack. Abbitt is sentenced to consecutive life terms plus 110 years in prison.
• WINTER 2005: After DNA testing exonerated Darryl Hunt in 2004 for a murder he didn’t commit — he served nearly 19 years in prison for the crime — Forsyth County District Attorney Tom Keith’s office sends letters to more than 2,100 inmates whose cases might be affected by improved DNA testing. It isn’t clear if Abbitt receives his letter, but he does eventually contact the N.C. Center on Actual Innocence, which agrees to look at his case.
• NOVEMBER 2008: A consent order authorizes the retesting of the victim and suspect rape kits from the case.
• APRIL 2009: Police also submit a comforter, sheets, a pillowcase, a washcloth and cuttings from a green shirt and blue shorts to the SBI crime lab for analysis.
• MAY 2009: The only evidence that yields information is the cutting from the green shirt, which is identified as coming from a boyfriend of the older sister.
• JULY 2009: A consent order authorizes additional study by Laboratory Corporation of America, which has the ability to perform more in-depth testing, to further examine slides extracted from the rape kits. Although a full DNA profile cannot be extracted, it is determined that the DNA did not come from Abbitt. (Police said Wednesday that the older sister has admitted to having had a sexual relationship with her boyfriend at the time, but it is not clear whether the boyfriend was the source of the DNA on the slides.)
• SEPT. 2, 2009: On a joint motion by the district attorney’s office and the innocence center, Judge A. Moses Massey of Superior Court vacates Abbitt’s convictions. As part of the motion, both sides agree that additional DNA testing of any and all remaining crime-scene materials will be done by LabCorp in hopes of identifying a new suspect. It remains unclear why, with the success of LabCorp in eliminating Abbitt as a suspect on the slides, that the other evidence was not sent for testing before the joint motion was considered. Police Chief Scott Cunningham indicated yesterday that his department had suggested such testing be done. He said cost was a factor, as was the fear that they might be keeping an innocent man in prison.
• JULY 6, 2010: LabCorp identifies DNA belonging to Abbitt on a floral sheet taken from the younger sister’s bed.
• OCT. 6, 2010: Police say they now think that Abbitt was the attacker of the girls based on the LabCorp work.'
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The story can be found at:
http://www2.journalnow.com/news/2010/oct/08/police-abbitt-case-rushed-ar-442722/
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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:
http://www.thestar.com/topic/charlessmith
For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:
http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774
Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;
