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CASE STORY
Post-Conviction DNA Testing
Betty Fitterman, Staff Researcher


This spring, Florida, Massachusetts, Ohio and several other states will review their statutory standards covering post-conviction testing—particularly DNA testing—to test biological evidence using modern scientific technology or biological evidence not available at the time of a defendant’s original trial or conviction. Several motivations factor into the states’ increased interest in post-conviction testing, from funding to ideology. This article briefly revisits a few compelling cases and reports on recent events possibly associated with these motivations.

Jerry Frank Townsend confessed. Arrested in 1979 for the rape and murder of a pregnant Miami woman, Townsend accompanied police to the murder scene and confessed in gruesome detail. Then police led him to the south Florida crime scenes of five unsolved rape-murders occurring between 1973 and 1979 and videoed Townsend as he confessed to all of the additional crimes.

Townsend, with the mental capacity of an eight year old, pled guilty in 1982 to a total of four Miami rape-murders and two Broward County slayings, none of which he committed. He was sentenced to serve seven concurrent life sentences. Townsend confessed largely to please authority figures, a practice commonly adopted by persons with his mental and emotional limitations.

Ironically, the mother of thirteen year old victim Sonja Marion suspected that Townsend had not murdered her daughter. In 1998, Ms. Marion convinced Fort Lauderdale police to test a semen sample preserved on her daughter’s shorts using new forensic technology not available at the time of Townsend’s confessions. The test results implicated another man, Eddie Lee Mosley, who was eventually convicted of Sonja’s murder as well as the rape and murder of numerous other victims including all the murders to which Townsend confessed.

Townsend was exonerated and released from prison in 2001 after serving twenty-two years in prison. He would likely still be in prison without the intervention of Sonja Marion’s mother. This is due to the fact that Florida’s current post-conviction relief statute enacted in 2001, requires prisoners to have “been tried and found guilty,” and bars petitioners like Townsend who were convicted after a confession or a plea deal.

Meanwhile, Frank Lee Smith awaited execution on Florida’s death row. Arrested for the 1985 brutal rape and murder of eight year old Shandra Whitehead, Smith confessed after police convinced him that three eye-witnesses had unequivocally identified him as the murderer, although erroneous eye-witness identifications are the leading cause of wrongful convictions. Smith did not plead guilty, but his confession presented at trial convinced the jury of his guilt and defeated his insanity defense.

By the late 1990’s, Smith began to repeatedly petition the courts for newly developed DNA testing on the biological material still available from the trial. Although Smith was convicted at a contested trial, the court denied Smith’s petitions because his post-conviction appeals through existing laws were time-barred.

At the same time that the new DNA evidence in the Townsend case implicated Eddie Lee Mosley as the perpetrator of rapes and murders throughout Broward County, an eye-witness at Smith’s trial recanted and declared that Mosley looked more like Shandra’s murderer than Smith. Broward County prosecutors suspended their opposition to Smith’s requests for DNA testing.

Once again, DNA results pointed to Mosley. Smith could have walked out of prison on December 15, 2000, the same day he was exonerated for the murder of Shandra Whitehead—except that Smith died eleven months before the DNA evidence proved his innocence, after serving fourteen years on death row. Arduous opposition to post-conviction testing has another dark side: while an innocent prisoner remains incarcerated, the true perpetrator can remain on the street. Eddie Lee Mosley was ultimately credited with at least sixty rapes and twelve south Florida homicides—including several that he committed during the time that Townsend and Smith waited for the state to grant their testing pleas.

Since the mid-1990s, improvements and accuracy in testing have advanced DNA evidence as the scientific standard used to prove guilt or innocence in investigations and trials. Every state has passed legislation requiring DNA collection from criminals, at some level, which in turn has solved thousands of cold cases across the country. Yet authorization for post-conviction testing of untested biological evidence remains difficult for the majority of petitioners to obtain.

Most statutes contain time limits or other restrictions limiting authorization in the thirty-nine states which offer post-conviction DNA testing. Over half the statutes limit petitions to certain types of convictions. Kentucky and Nevada limit applications to death row inmates only. Some time limits, often called “sunset” provisions, can expire before the retained DNA evidence can be located or tested, although many states have repeatedly extended these deadlines. Many petitions are delayed while appellate courts debate statutory language like “actual innocence” in cases where a favorable outcome would not conclusively prove the petitioner’s innocence.

This issue is pending in Pennsylvania and Tennessee. In Pennsylvania John Dolenc has petitioned to test thirty-nine blood spatters using DNA technology not available in 1975 when he was convicted of his wife’s brutal murder. Dolenc’s petition has been denied despite the fact that retesting the samples using modern DNA testing could not only exclude Dolenc as the blood source, but potentially identify another suspect. Pennsylvania’s statutes require that anticipated results must prove “actual innocence” and consequently prosecutors argue that merely eliminating Dolenc as the source of the blood will not conclusively prove that he is innocent. Ironically, Dolenc’s attorneys claim that during the trial, prosecutors supported their case using blood-type evidence indicating that Dolenc, his wife, or an unknown party could have been the blood source.

In another case, the United States Supreme Court heard oral arguments in January from attorneys representing Paul House, convicted of the 1986 rape and murder of his Tennessee neighbor. The Court’s task is not to determine House’s ultimate guilt or innocence. Rather, it is to define what constitutes a "truly persuasive showing of actual innocence" before a federal court may order a re-trial based upon new scientific technology unavailable at the time of an inmate’s conviction. A likely catalyst advancing House is the Justice for All Act (JFAA) enacted by Congress in 2004. This act includes less restrictive procedures for granting postconviction DNA testing to all federal prisoners and is hailed by advocates as a model statute for states to follow. Many states continue to resist enacting or amending statutes to expand postconviction testing using new or substantially improved science. It appears that House is intended to put those states on notice that their days of unnecessary opposition are numbered.

Statistics supporting the tenacity of advocates are impressive, especially if one believes that one wrongful conviction is one too many. Since 1989, when The Innocence Project began advocating for DNA testing of critical evidence to potentially exonerate inmates, 175 defendants have been deemed not guilty of the crime for which they have spent years incarcerated.

Of course, even 175 wrongful convictions is not an indictment of a justice system that “gets it right” tens of thousands of times every day. Additionally, many truly guilty inmates never recant their innocence. Consider the case of Roger Keith Coleman, a Virginia coal miner who vehemently maintained his innocence after his conviction for the 1986 brutal rape and murder of his 19-year-old sister-in-law. Only moments before his execution in 1992, Coleman chillingly proclaimed, “An innocent man is going to be murdered tonight.” In the days before Coleman’s electrocution, an international outpouring of support for clemency included a compelling cover on Time Magazine and an appeal from Pope John Paul II. DNA testing as late as 1990 had indicated an approximate—and arguably uneasy—1 in 500 chances that someone other than Coleman committed the crimes. Virginia’s outgoing governor authorized tests using newer DNA technology on swab samples to quell persistent claims that Virginia had executed an innocent man. The new probability yielded 1 chance in 19-million.

Since Pennsylvania enacted a post-conviction testing statute in 2002, the state has authorized only two out of fifteen testing petitions filed in Allegheny County (population 2.5 million). Tests have already exonerated a man released from prison after serving 19 years for the rape he didn’t commit in the first case and results from the second case are still pending.

In the pending case, Drew Whitley was convicted for the 1988 cold-blooded murder of 22 year-old Noreen Malloy during a robbery attempt. DNA testing was unavailable to identify forty-one hairs found in a stocking mask recovered from the MacDonald’s parking lot crime scene at the time of his trial. After the technology became available, Whitley petitioned the state for six additional years before obtaining the tests. Lost, destroyed or misplaced evidence becomes more likely as statutory obstacles and adversarial debates delay petitions. By the time the state granted Whitley’s petition, only two hairs could be located after a flood damaged police headquarters where the evidence was stored. Tests using the limited sample were inconclusive. In 2002, however, additional hair samples were discovered and another test scheduled. As of late 2005, the results are still pending.

As noted above, Pennsylvania is one of several states that does not authorize new testing unless a petitioner can show that a favorable test result will prove the petitioner’s “actual innocence.” Opponents of eliminating such restrictions and expanding access to post-conviction testing often cite two primary justifications for their opposition: 1) the fear of burdensome costs to process a “flood of frivolous claims” and 2) the importance of “finality,” especially for victims and their families.

Fears that post-conviction testing would open a “floodgate of frivolous claims” and overburden the criminal justice system have proven unfounded. In fact, one recent national survey reports a lack of prisoner requests even in states with the most lenient standards for post-conviction testing.

A Texas appellate judge in 1990 defended the court’s opinion denying an inmate’s petition for advanced DNA testing developed after his conviction for rape and murder by proclaiming, “[w]e can’t give new trials to everyone who establishes after conviction, that they might be innocent. We would have no finality in the criminal justice system, and finality is important” because continuously reopened adjudications “hold little respect.” The inmate ultimately received new testing and a pardon after the results conclusively proved his innocence—ten years after his initial appeal. Texas, now has one of the least restrictive post-conviction testing statutes; this year further steps to provide judges with increased discretion in granting DNA testing were recommended by a criminal justice panel appointed by the governor.

Similar renewed interest in post-conviction testing is quite probably attributable to federal action. The Innocence Protection Act (IPA), enacted in 2004 as part of the larger JFAA, offers incentives for state’s willing to pass or improve statutes to conform to provisions for post-conviction DNA testing specified in the Act. The law provides funding for 1) testing a nationwide backlog of more than 300,000 rape kits, 2) grants to prosecutor and defender offices, and 3) access to post-conviction testing for prisoners. Additionally, the law provides state grants to improve the quality of death penalty trials and assist families of victims.

Florida has the dubious distinction of exonerating twenty-three death row inmates - more than any other state. Perhaps that distinction as well as the incentives available through IPA will play a role when Florida’s legislature votes this session on identical Senate and House bills (S186 and H0061). If the bills are passed, Florida will amend its existing 2001 Post-sentencing Testing/DNA Evidence statute, expanding access to post-conviction testing to all felons, including those convicted after a plea arrangement, and eliminating time limits for petitions. The Florida Department of Law Enforcement estimates that approximately four percent of Florida’s prison population, or 2,419 inmates, are currently eligible for post-sentencing testing under the state’s existing statute. Enacting the proposed amendment would increase the number to approximately 3,483 potential analysis requests, or 696 cases per year spread over a five year period. Testing costs performed in-house are estimated at $452,000 per year for five years after a one-time purchase of equipment for $273,000, or slightly more than $700 per inmate to evaluate a claim of innocence.

By comparison, last year Florida authorized $2 million to compensate a wrongfully convicted man who served twenty-two years in prison at the time of his 2004 release. Wilton Dedge, convicted of raping a 17-year-old woman in 1981, first requested DNA testing in 1988 at his own expense. This was possibly the state’s first case petitioning for post-sentencing DNA testing. At the time of the request, Florida, like many states currently, did not have a post-conviction DNA testing statute and Dedge’s petition was considered time barred under the state’s general post-conviction relief procedures. After multiple appeals, testing was granted nearly ten years later. However, determinative testing was not completed until 2001, after newer DNA technology was required to test the badly degraded samples. The final result conclusively proved that Dedge was not the rapist. A former Florida lawmaker recently reflected on the testing delay, commenting, ''I have asked the question several times: why not simply allow the test?''

There are so many seemingly needless obstacles and so much contentious debate engaged in establishing the certainty of justice served or justice subverted. To add insult to injury, the cost involved is a nominal $700. Peter Neufeld, co-founder of The Innocence Project in a 2000 interview asked: “If the issue is innocence, why quibble?” Could the debate be dispatched by asking this one simple question?

References:

Innocence Project Policy Page, The Innocence Project Case Profiles, Innocence Project (last visited March 23, 2006).

Causes and Remedies of Wrongful Convictions, The Innocence Project Case Profiles, Innocence Project (last visited March 23, 2006).

Comparison of State Post Conviction DNA Laws, National Conference of State Legislatures, Comparison of State Post Conviction DNA Laws (last visited Mar. 23, 2006).

Seth Axelrad and Juliana Russo, Survey of Post-Conviction DNA Testing Statutes, American Society of Law, Medicine & Ethics, Survey of Post-Conviction Testing Statutes (last visited Mar. 23, 2006).

Candace Rondeaux, DNA Tests Outpace Justice, St. Petersburg Times, Jan. 23, 2006, at 1A (DNA tests outpace justice ).

Bill Moushey, Convicts Find DNA a Tough Sell, Pittsburgh Post-Gazette, Dec. 18, 2005, at A1 (http://www.post-gazette.com/pg/05352/624262.stm”>DNA Evidence: Convicts find DNA tests to be tough sell to judges ).

Bill Moushey, Man Seeks DNA Test to Clear Him in Killing: How Conclusive Must Tests be to be Ordered?, Pittsburgh Post-Gazette, Dec. 19, 2005, at A1 (DNA Evidence: Man seeks DNA test to clear him in killing ).

Texas Governor's Advisory Council Recommends Changes to Criminal Justice System, Government Technology, Feb. 7, 2006 (Texas Governor's Advisory Council Recommends Changes to Criminal Justice System ).

Craig Timberg, DNA Spurs Change in Va.; Crime Panel Debates Evidence, New Trials, Washington Post, Dec. 2, 2000, at B1 (quoting Peter Neufeld, co-founder of The Innocence Project).

Frontline: Requiem for Frank Lee Smith (PBS television broadcast Apr. 11, 2002) (available for viewing online at PBS)

Jerry Frank Townsend, The Innocence Project: Case Profiles, Innocence Project (last visited Mar. 20, 2006).

Frank Lee Smith,, The Innocence Project: Case Profiles, The Innocence Project (last visited Mar. 20, 2006).

Postsentence DNA Testing, S. 186, 2006 Leg. (Fla. 2006) (Senate 0186: Relating to Postsentence DNA Testing).