Texas AG: New tests don’t clear death row inmate – HANK SKINNER

November 14, 2012

New DNA testing in the case of a Texas Panhandle man on death row for a New Year’s Eve triple-slaying doesn’t support an alternate theory of the crime, the state attorney general’s office said Wednesday.

Hank Skinner once came within an hour of execution for the 1993 killings of girlfriend Twila Busby and her two grown sons in Pampa, about 50 miles northeast of Amarillo. Now 50, Skinner’s execution has been stayed by the Texas Court of Criminal Appeals. Both his attorney and prosecutors agreed in June to new DNA testing of evidence.

The attorney general’s office filed a court advisory Wednesday that says new testing “does not support Skinner’s claim that an alternative suspect is the real killer.”

Skinner has argued he wasn’t the killer because he was passed out on a couch from a mix of vodka and codeine. The AG’s advisory says traces of Skinner’s DNA were located in blood in the bedroom where one of Busby’s sons, Randy Busby, was found stabbed to death. Prosecutors said his DNA also was matched to blood stains throughout the house.

Skinner attorney Rob Owen objected to Wednesday’s advisory, calling its findings premature. In a statement, Owen said it was “troubling” that the AG’s office submitted a report while testing was still ongoing. The AG’s office says both sides are discussing whether to conduct more tests.

“We will remain unable to draw any strong conclusions about whether the DNA testing has resolved the stubborn questions about Hank Skinner’s guilt or innocence until additional DNA testing has been completed, and the data underlying that DNA testing has been made available to our experts for a detailed review,” Owen said in the statement.

While Skinner’s DNA was found on the handle of a bloody knife on Twila Busby’s front porch, Owen said the handle also had genetic material from two other people: Busby’s other slain son, Elwin Caler, and a third person other than Skinner or the victims. Owen said an unknown person’s DNA also was found on the carpet of the sons’ bedroom.

Skinner has acknowledged he argued with Busby on the night she was killed and that he was inside the house where the victim’s bodies were found. He was found about three hours after the bodies were discovered, hiding in a closet at the home of a woman he knew. Blood from at least two of the victims was found on him.

The attorney general’s office had argued against DNA testing, which Skinner’s trial attorneys did not request, but changed course. The state agreed to allow testing of a list of 40 items, though not a windbreaker jacket Skinner’s advocates consider crucial to establishing an alternate suspect’s guilt.

Justice is debatable in Texas death penalty case – Larry Swearingen

November 12,2012 
http://www.dw.de

Larry Swearingen faces imminent execution in Texas for a crime that forensic scientists say he could not have committed. His time is running out.

In his 12 years on death row, Larry Swearingen’s execution date has been set three times. Three times he has known when he will be strapped to a stretcher and put down with drugs: sodium thiobarbital to anesthetize him, pancurium bromide to paralyze his muscles and potassium chloride to stop his heart.

In January 2009, he had written his goodbyes and was on his way to the chamber when the stay of execution came through. “The way I had to look at it was ‘I’m just gonna lay down and go to sleep,’” he said. “I wasn’t gonna grovel. I wasn’t gonna sit there and cry. I can’t be remorseful for a crime I didn’t commit.”

Swearingen lives at the Allan B. Polunsky unit, an hour or so north of Houston, together with around 300 men and women awaiting execution for capital crimes committed in Texas. He is kept in solitary confinement 24 hours a day, in a cell not quite four meters long (13 feet) and a little over two meters wide, with a slit above head height, more a vent than a window.

Swearingen is strikingly calm, his voice rarely rising, even as he complains about the injustice of being locked up for a murder that forensic science shows he cannot have committed. “It’s not easy being here,” he says. “There are men who are hanging themselves, men who are cutting themselves, men sitting in their own feces, men slowly losing their minds. If people think it’s easy they are sadly mistaken.”

supporters of the death penalty argue that the USA’s appeals system is so thorough that no innocent person has ever been executed.

In recent years, that faith has been shaken by a number of high-profile cases. Todd Willingham was executed in Texas for setting the house fire that killed his two young daughters, despite several of the country’s most prominent arson investigators testifying that the blaze almost certainly started by accident. Troy Davis went to the chamber in Georgia for shooting a policeman, despite a lack of DNA evidence and seven out of the nine prosecution witnesses later changing their stories.

Swearingen’s case is different, in that forensic science provides him with an alibi: He cannot have raped and murdered his supposed victim, because he was already in prison when she was killed.

Open-and-shut case?

Melissa Trotter disappeared on December 8, 1998. Swearingen was one of the last people to see her alive, at Montgomery College. Three days later police picked him up on outstanding arrest warrants for minor offences, put him in jail and began to build a case against him.

Trotter’s body was discovered on January 2, 1999, in the Sam Houston National Forest, by hunters looking for a lost gun. At first glance, they thought it was a mannequin, dumped in the woods. She was wearing jeans, but her torso was naked. She had been strangled with one leg of a pair of tights. A search team, with cadaver dogs, had passed within 20 meters of the spot a fortnight earlier and found nothing.

At the autopsy, with the district attorney and two of his sheriffs in the room, Harris County’s chief medical examiner, Dr. Joye Carter, estimated that she had been dead for around 25 days, which meant she had been killed the day she went missing.

When Carter repeated this at the trial, the defense team let it pass unchallenged. Jurors heard that Swearingen had a history of violence towards women, that he had repeatedly lied to police, that hairs forcibly removed from Trotter’s head were recovered from his truck and that the other leg of the pair of tights used to kill her was found in his house.

They were not told that the tights appeared during a fourth police visit to the property, after three prior searches had turned up nothing. The DNA under Trotter’s fingernails, belonging to somebody other than Swearingen, was dismissed as a contaminant – perhaps a drop of blood from a cut in a forensic technician’s hand.

The jury took less than two hours to find Swearingen guilty.

Science vs. the courts

Dr. Stephen Pustilnik, chief medical examiner for nearby Galveston County, says the autopsy results aren’t credible. Although there were signs of decomposition around Trotter’s head, her corpse was in remarkably good condition.

“For many days, where she was found, it was 72 degrees Fahrenheit [22 degrees Celsius],” he said. “If you’re at that temperature for three days, you’re green, bloated and stinky. Her internal organs look beautiful.”

At the morgue, her heart, liver, lungs and spleen were remarkably intact.

Pustilnik said the body could not have been dead for 25 days. Several other forensic scientists called by the defense team have come to the same conclusion. It means that Swearingen could not have killed Trotter, because he was already in jail when she died.

Final hearing

I returned to Montgomery County for Swearingen’s final evidentiary hearing. The case has been going back and forth between Judge Fred Edwards and the Texas Court of Criminal Appeals (TCCA) for years: Each time, Edwards has upheld Swearingen’s conviction and each time the appeals court has granted the defense one more hearing. This was categorically his last.

Swearingen sat with his defense team, feet shackled together, wearing a striped Montgomery County Jail jumpsuit. In the pews on the right, behind the district attorney’s table, Sandy and Charlie Trotter were surrounded by supporters holding pictures of Melissa. They are convinced Swearingen is guilty and need him to be gone, so they can grieve in peace. Sandy handed me a photograph of her daughter, but was too upset to talk.

The benches on the left were empty, apart from a couple of local newspaper reporters and a frail-looking woman taking notes. Pam Martinez, Swearingen’s mother, attended every day of the hearing, even though she had recently had heart surgery for the second time.

“My cardiologist tells me that I need to cut the stress out,” she said. “I would like to cut the stress, but I support my son. He’s my child and I want to protect him.”

‘Innocence doesn’t matter’

This time, too, Judge Edward upheld the conviction. Now the case goes back to the TCCA. If the panel again upholds Swearingen’s conviction, he will have run out of options. His “actual innocence” petition to the Supreme Court has been denied. Any further appeals will be summarily rejected. A new execution date will be set and, barring an unprecedented last-minute pardon, he will be taken to the execution chamber at Huntsville and put down.Swearingen knows his chances are slim. “Under federal law in the United States being innocent does not matter,” he said. “If being innocent makes no difference, this country is no better than Iran or Syria, these third-world countries that kill their own citizens. How can being innocent not matter?”

The TCCA’s ruling is expected in the coming months.

Supreme Court Weighing Genetic Privacy

November 8, 2012 
http://www.wired.com

Supreme Court justices are to meet privately Friday to weigh whether it will hear a major genetic privacy case testing whether authorities may take DNA samples from anybody arrested for a serious crime.

The case has wide-ranging implications, as at least 21 states and the federal government have regulations requiring suspects to give a DNA sample upon arrest. In all the states with such laws, DNA saliva samples are catalogued in state and federal crime-fighting databases.

The issue confronts the government’s interest in solving crime, balanced against the constitutional rights of those arrested to be free from government intrusion.

The case before the justices concerns a decision in April of Maryland’s top court, which said it was a breach of the Fourth Amendment right against unreasonable search and seizure to take DNA samples from suspects who have not been convicted.

The Maryland Court of Appeals, that state’s highest court, said that arrestees have a “weighty and reasonable expectation of privacy against warrantless, suspicionless searches” and that expectation is not outweighed by the state’s “purported interest in assuring proper identification” of a suspect.

Maryland prosecutors argued that the mouth swab was no more intrusive than fingerprinting, (.pdf) but the state’s high court said that it “could not turn a blind eye” to what it called a “vast genetic treasure map” (.pdf) that exists in the DNA samples retained by the state.

The court was noting that DNA sampling is much different from compulsory fingerprinting. A fingerprint, for example, reveals nothing more than a person’s identity. But much more can be learned from a DNA sample, which codes a person’s family ties, some health risks and, according to some, can predict apropensity for violence.

In the justices’ Friday conference, they are likely to agree to review the Maryland case, and announce their decision days later. That’s because Chief Justice John Roberts has stayed the Maryland decision pending whether the justices review the case. In the process, he said there was a “fair prospect” (.pdf) the Supreme Court would reverse the decision. If the justices decline the case, the Maryland decision becomes law.

The National District Attorneys Association is urging the Supreme Court to overturn the Maryland decision, saying DNA sampling “serves an important public and governmental interest.” (.pdf)

The group points to the Maryland case at hand, concerning defendant Alonzo King. After being arrested in 2009 on assault charges, a DNA sample he provided linked him to an unsolved 2003 rape conviction. He was later convicted of the sex crime, but the Maryland Court of Appeals reversed, saying his Fourth Amendment rights were breached.

The issue before the justices does not contest the long-held practice of taking DNA samples from convicts. The courts have already upheld DNA sampling of convicted felons, based on the theory that those who are convicted of crimes have fewer privacy rights.

Still, the U.S. Supreme Court has held that when conducting intrusions of the body during an investigation, the police need so-called “exigent circumstances” or a warrant. For example, the fact that alcohol evaporates in the body is an exigent circumstance that provides authorities with the right to draw blood from a suspected drunk driver without a warrant.

Maryland’s law, requiring DNA samples for those arrested for burglary and crimes of violence, is not nearly as harsh as California’s. The Golden State’s statute is among the nation’s strictest, requiring samples for any felony arrest.

A three-judge federal appeals panel has upheld California’s law, although the court is reviewing the issue again with 11 judges.

DNA testing in the United States was first used to convict a suspected Florida rapist in 1987, and has been a routine tool to solve old or so-called cold cases. It has also exonerated convicts and those on death row.

 

OHIO – Court to weigh DNA testing for man given death penalty in 1990 Portage County slaying – TYRONE NOLING

october 15, 2012 
http://www.ohio.com/

COLUMBUS: The Ohio Supreme Court plans to hear arguments in the case of a condemned inmate whose attorneys argue DNA testing could help exonerate him.

At issue is the case of death row prisoner Tyrone Noling, convicted in 1996 of fatally shooting an elderly Portage County couple at their home.

The Supreme Court on Monday scheduled a Jan. 8 hearing for arguments from both sides.

Noling has been on death row at the Ohio State Penitentiary since his conviction in the slayings of Bearnhardt and Cora Hartig at their Atwater Township home.

The Hartigs, both 81, were shot multiple times in the chest April 5, 1990, as they sat at their kitchen table, according to the police investigation.

Lawyers for the Ohio Innocence Project want to test a cigarette butt found at the scene against DNA profiles of offenders in a national database, including a convicted killer who was executed.

The state says previous tests have excluded Noling as the smoker of the butt and says new testing would prove nothing.

A lower court judge has twice denied the request.

Louisiana death-row inmate Damon Thibodeaux exonerated with DNA evidence

 

september 28, 2012 
http://www.washingtonpost.com

NEW ORLEANS — A Louisiana death-row inmate convicted of the rape and murder of his 14-year-old step-cousin in 1996 on Friday became the 300th person exonerated on the basis of DNA evidence in the United States — and the 18th death-row inmate saved from execution by DNA.

Damon Thibodeaux, now 38, confessed to the brutal attack on his cousin after a nine-hour interrogation in 1996 by detectives from the Jefferson Parish Sheriff’s Office. He recanted a few hours later and has maintained since that his confession was coerced. Despite his recantation, Thibodeaux was indicted four days after his arrest. In 1997, a jury found him guilty of murder and rape, largely on the basis of his confession. He was sentenced to death.

Thibodeaux walked out of the death-row unit of Louisiana’s Angola prison farm on a rainy Friday afternoon, free for the first time after 15 years, during which he was kept in solitary confinement 23 hours per day.

In an interview minutes after he left the prison, Thibodeaux said he struggled to control his emotions during the years he waited for exoneration.

“For the first couple of years, it takes a lot of getting used to. Sometimes, it seemed like it wasn’t going to happen. You think, they’re going to kill you and just accept it,” he said. “But as things started to accumulate, you start, you know, gaining hope.”

He said the detectives who questioned him in 1996 took advantage of his exhaustion and fed him details of the crime to include in his confession.

“They look for vulnerable points where they can manipulate you, and if you’re sleep-deprived or panicked, or you’re on something or drunk, it makes it that much easier to accomplish what they want to accomplish,” Thibodeaux said. “At that point, I was tired. I was hungry. All I wanted to do was sleep, and I was willing to tell them anything they wanted me to tell them if it would get me out of that interrogation room.”

Thibodeaux said that he hoped his case could help lead police agencies to be more careful not to induce false confessions.

The detectives involved in Thibodeaux’s interrogation could not be reached Friday. Earlier, a spokesman for the Jefferson Parish Sheriff’s Office declined to comment on the agency’s handling of the case and said the investigators would not be made available.

Thibodeaux’s exoneration came after an unusual five-year joint reinvestigation of the case by the office of Jefferson Parish District Attorney Paul Connick, which brought the charges, and a team of defense lawyers and investigators, including the New York-based Innocence Project.

During the reexamination of the case, during which Thibodeaux put his formal appeals on hold, investigators concluded that his confession was riddled with glaring errors, such as the manner and time of death and the identification of the murder weapon, and did not match the crime scene and other evidence. Most remarkable, the investigation found that the sexual assault to which Thibodeaux also confessed — making him eligible under Louisiana law for the death penalty — never occurred.

“The 300th exoneration is an extraordinary event, and it couldn’t be more fitting that it’s an innocent man on death row who gave a false confession,” said Barry Scheck, a founder of the Innocence Project and one of the lawyers who worked on the case. “People have a very hard time with the concept that an innocent person could confess to a crime that they didn’t commit. But it happens a lot. It’s the ultimate risk that an innocent man could be executed.”

New DNA testing conducted during the inquiry on the clothing worn by Thibodeaux on the night of the murder and virtually every other piece of evidence collected by police established no links to the crime — so the absence of DNA became a powerful element of evidence itself. A DNA profile was also obtained from a tiny sample of blood on a piece of the wire used to strangle the victim. It did not match Thibodeaux.

The reinvestigation totaled more than $500,000, a cost shared by the defense and prosecution, according to lawyers involved in the case.

The dismissal of Thibodeaux’s case comes amid a flurry of such exonerations across the country and at a time when doubts about the reliability of American courts in determining guilt and innocence appear to be growing.

Early this week, John Edward Smith was released from a Los Angeles jail nearly two decades after being wrongly imprisoned for a 1993 gang-related drive-by shooting. Prosecutors in Chicago moved to dismiss murder charges against Alprentiss Nash in August, 17 years after he was convicted of a murder that new DNA analysis indicates he did not commit. In Texas last month, David Lee Wiggins was released after DNA testing cleared him of a rape conviction for which he had served 24 years.

In July, a D.C. judge declared Kirk L. Odom innocent of a 1981 rape and robbery for which he had served more than 22 years in prison. The same week, the Justice Department and FBI announced they would reexamine thousands of cases after The Washington Post reported widespread problems in its forensic examination of hair fibers over several decades. That came on the heels of a conclusion by the U.S. attorney’s office in Manhattan that five people convicted in the 1995 murder of a taxi driver and imprisoned since are innocent.

 

Va. DNA data support innocence of 33 convicted of sex crimes, study concludes

June 18, 2012 Source : 
http://www2.timesdispatch.com

RICHMOND, Va. –

Data from Virginia’s post-conviction DNA project support the innocence of 33 persons convicted of sexual assaults from 1973 to 1987 concludes an Urban Institute study.

Findings released today indicate more people remain to be cleared by the Virginia project, a groundbreaking effort aimed at identifying persons wrongfully convicted in the 15 years before DNA testing was widely available.

The institute estimates a wrongful conviction rate in sexual assault cases of between 8 to 15 percent, comparable with the results in sample testing that exonerated two people and prompted then-Gov. Mark R. Warner to order the full Virginia project in 2005.

Jon Gould, director, of the Washington Institute for Public and International Affairs Research at American University, said “This is the most methodologically sound study that’s been done and the rate is much higher than has been shown in other studies.”

An acknowledged weakness in the institute’s report is that the contract for the study expired before researchers could get to courthouses to review the old trial files to better determine the context and significance of the DNA results.

The institute said available information on the cases was limited to data in the old state forensic files, which mainly included basic facts about the crime and the results of the original forensic tests and the results of more recent DNA analysis.

Rockne Harmon, a former California district attorney and DNA expert, said that is a problem. He said the institute should have at least done a representative sampling of the old court files.

Among other things, rape victims are frequently asked if they had consensual sex within 72 hours of an assault. “Without this (kind of) information little can be said about the materiality of finding a matching or non-matching DNA profile,” said Harmon.

However, John Roman, the lead researcher in the project, said that even if all the court records were reviewed he would not expect many of the 33 cases to drop out.

Weaknesses or not, Steven D. Benjamin, a member of the Virginia Board of Forensic Science and president elect of the National Association of Criminal Defense Lawyers, said the study should set off alarm bells.

“Each defendant in the cases that support innocence should be interviewed immediately, and the case investigated thoroughly,” he said. “If any one of these 33 is innocent, each day . . . is an injustice,” said Benjamin.

The Urban Institute cannot reveal any of the identities, though many of those cases may be made public after July 1 due to recent state legislation ordering the department to release test results in cases where the convicted person’s DNA was not found.

Nearly 800 cases involving 1,100 convicted persons have been tested in the Virginia project since 2005 but only three more people have been exonerated in addition to the two cleared in sample testing seven years ago.

The Urban Institute says the Virginia data – DNA results in a random sample of suspects convicted of rape, murder and other serious crimes — is better suited for such studies on wrongful conviction rates than data in earlier studies.

“This ‘test-them-all’ approach to post-conviction DNA testing has never been replicated by any other state,” says the report.

The Virginia Department of Forensic Science said last month that testing failed to identify, or excluded, the DNA of 78 convicted defendants more than a dozen of them now dead and others not yet located.

Absence of DNA in the 78 cases can be consistent with innocence but may prove nothing. Much depends on context. Failure to find a suspect’s DNA in a cigarette butt at the scene of a rape may be irrelevant — but failure their DNA in semen can be telling.

Though unable to review old courthouse files, the institute said the Virginia data, “likely provide the best opportunity to date to understand the rate of wrongful conviction.”

“Whether the true rate of potential wrongful conviction is 8 percent or 15 percent . . . is not as important as the finding that these results require a strong and coordinated policy response,” concludes the institute report.

Brandon Garrett, a University of Virginia School of Law professor, also thinks the study needs a strong response from policy makers. “I think this report isn’t the final report, it’s just the beginning,” he said.

“There’s still a lot of (work) to do and a lot of questions that need to be answered,” said Garrett.

The Virginia Department of Forensic Science does not determine the legal significance of test results and forwarded them to local authorities where the crimes took place.

But aside from the five exonerations and several other cases, little is known of the other exclusion cases.

Critics of the Virginia effort such as Benjamin and Peter Neufeld, a cofounder of the Innocence Project, want to allow defense lawyers access to project results along with police and prosecutors.

They also urge that cases of possible wrongful convictions be pursued even where the convicted person is dead to clear their name, to make sure the guilty person is off the street and to learn what led to the wrongful conviction to help prevent future ones.

The Virginia Department of Forensic Science and the Board of Forensic Science, which considers the DNA test results criminal records, have long resisted efforts to reveal them to anyone other than law enforcement.

The convicted people were not going to be told about the testing until 2008 when the General Assembly used a budget amendment and directed they be notified.

This year the General Assembly, concerned that potential exonerations were not being adequately investigated, directed the department, effective July 1, to release the test results in cases where testing failed to find the convicted person’s DNA.

The legislators’ concern stemmed from the case of Bennett S. Barbour, of Charles City County, who was wrongly convicted of a 1978 rape in Williamsburg and was one of the people excluded by testing who could not be initially found by mail.

Testing in June 2010 cleared him and implicated a convicted rapist who will be tried for the crime in August. Barbour did not learn about the DNA testing until 18 months later when a volunteer lawyer tracked him down via telephone.

Garrett, of the University of Virginia School of Law, who urges more work be done, said, “Time will tell how many more of these cases, like Barbour’s, will result in full exonerations. Hopefully that process is moving more smoothly now.”

Methodology

Here is how the study was conducted:

The Justice Policy Center of the Urban Institute studied the test results in 634 of the Virginia cases involving 715 convicted people from 94 Virginia localities under the terms of a $4.5 million federal grant that paid for most, but not all, of the state testing.

Of the 634 cases, 422 were for sexual assault. In 227 of those cases, testing results were sufficient to either implicate or fail to find the convicted person’s DNA. And the institute believes that the testing in 33 of the exclusion cases supports innocence.

Comparing the 33 with all 422 sexual assault convictions yields an 8 percent wrongful conviction rate while comparing it to just the 227 cases where testing either implicated the convicted person or failed to find his or her DNA yields a 15 percent rate.

In 2005 the initial state sample testing of 31 cases resulted in 16 cases where the convicted person’s DNA was either identified or excluded and exonerated two men of rapes.

Comparing the two exonerations to the 31 cases yields a wrongful conviction rate of 6 to 7 percent while comparing the exonerations to the 16 cases with determinative results yields a rate of 12 to 13 percent.

According to the Urban Institute, the Justice Policy Center conducts nonpartisan research and evaluation designed to improve justice and public safety policies and practices at the national, state and local level.

 

Prosecutors often challenge DNA evidence that could clear the convicted

June 13, 2012 Source : 
http://www.chicagotribune.com

When Terrill Swift was released from prison after serving 15 years for rape and murder, he sought DNA testing because he wanted to prove his innocence. Cook County prosecutors opposed his efforts but relented last year after the Tribune made inquiries about Swift’s request.

After the DNA from semen in the victim’s body was matched to a convicted murderer and rapist, Swift went to court to get his conviction thrown out. But prosecutors opposed that effort, saying the DNA was meaningless, especially when considered against Swift’s confession.

A judge turned aside prosecutors’ arguments, saying the DNA was powerful evidence, and earlier this year the judge vacated Swift’s conviction.

And last month, when Swift went to court to obtain a certificate of innocence to expunge the record of his arrest and conviction and clear the way for him to seek compensation from the state, prosecutors opposed that request, too, saying Swift’s disputed confession outweighed the DNA.

Nearly a quarter-century into the DNA era, what has been called the gold standard of forensic evidence has fulfilled its promise to help police and prosecutors win convictions. Rare is the case in which DNA evidence, particularly in a rape or a murder, does not send a defendant to prison.

DNA’s potential to free the innocent has been more elusive. That has been especially true in Cook and Lake counties, where prosecutors have opposed requests for DNA testing and then downplayed the results when they excluded their leading suspects or inmates trying to win their freedom.

“When we started doing this work 20 years ago, we received opposition on requests and motions to do post-conviction DNA testing in more than three-quarters of the cases,” said Peter Neufeld, a co-founder of the New York-based Innocence Project. “Today … the overwhelming majority of prosecutors do not oppose motions for DNA testing.”

What’s more, Neufeld said, prosecutors rarely challenge DNA results that appear to indicate a suspect’s innocence. Prosecutors in Cook and Lake counties are part of a tiny group that consistently do that, he said.

“That kind of consistent rejection of logic and common sense,” Neufeld said, “is fairly unequaled around the country.”

Prosecutors counter that DNA is not the “end all” of evidence, as Cook County State’s Attorney Anita Alvarez once said, and say they are bound to consider all evidence in a case, not just the DNA. In the cases where DNA has failed to persuade prosecutors, the opposition frequently has been supported by a suspect’s confession. For decades a building block of murder cases, confessions remain remarkably potent in spite of what DNA has revealed about their frailties.

“Generally speaking, the significance of DNA evidence varies from case to case,” said Sally Daly, a spokeswoman for Alvarez. “In some cases, it may be critically important to a criminal investigation or a prosecution. In others, it can be relatively unimportant. It is the state’s attorney’s opinion and the general policy of this office that DNA evidence cannot be viewed in a vacuum, but rather examined in light of all of the other facts and evidence known at the time.

“DNA evidence certainly establishes a link between the donor of the DNA and a location or a piece of evidence, but it does not always establish the identity of the criminal,” Daly added. “The significance of DNA evidence is dependent upon all other facts available in the totality of the investigation.”

A series of cases in Lake County illustrate that standoff.

On May 15, Lake County prosecutors issued news releases announcing new murder charges in two cases — the bludgeoning of Fred Reckling, 71, in Waukegan in 1994 and the stabbings of Laura Hobbs, 8, and Krystal Tobias, 9, in Zion in 2005.

Both announcements credited “newly developed leads and forensic findings … actively pursued by law enforcement.” The releases did not mention that the new sets of charges resulted from DNA tests that prosecutors had dismissed as either unnecessary or meaningless.

In the Reckling case, prosecutors fought for years to block post-conviction testing sought by James Edwards, who had confessed and was sentenced to life in prison.

Edwards, often working as his own lawyer, claimed his innocence could be proved by testing blood found at the scene from a then-unidentified man. Prosecutors argued at trial that the blood in Reckling’s appliance store and car did not clear Edwards because it could have come from a store employee. They aimed to block post-conviction testing by noting that jurors were presented with that theory, and they still found Edwards guilty.

“Testing of this showing us who specifically (the blood came from) is not going to exculpate the defendant,” said then-Assistant State’s Attorney Michael Mermel, according to a court transcript. “The defendant is wasting the time of the criminal justice system because he has nothing else to do but write these motions.”

After Edwards had spent 14 years in prison, the Illinois Supreme Court ordered the DNA tests. Last month, prosecutors said forensic evidence had guided investigators toward Hezekiah Whitfield, 42, of Chicago, who is now charged with murder.

Prosecutors agreed to a new trial for Edwards and then immediately dropped the charges, though he remains jailed on separate convictions for armed robbery and murder.

“The Supreme Court says prosecutors have a duty to seek justice, not convictions,” said Edwards’ lawyer, Paul De Luca. “Doesn’t it seem like they didn’t abide by the rules?”

In the killing of the two girls in Zion in May 2005, lawyers for the original suspect — Jerry Hobbs, one victim’s father — clashed with prosecutors over the timeline and procedures for both sides to assess the physical evidence. Immediately after the murders, authorities sent evidence to the Northeastern Illinois Regional Crime Laboratory, where analysis with a microscope found no semen evidence that would have indicated a sexual assault, according to the lab’s report.

After Hobbs had spent more than two years in jail awaiting trial, the defense team’s scientists reported the opposite — that semen from another man had been found in Laura Hobbs and on her clothes. Hobbs’ lawyers argued this proved that his confession — given after some 24 hours of intermittent interrogation — was false. Prosecutors disagreed, arguing that the girls had been playing in the woods and the girl could have touched some semen and then wiped herself.

“The defense is … misleading the court,” Mermel said in December 2008. “What they have is one errant sperm which is impossible to deposit by the offender or an offender. It’s trace evidence.”

After that hearing, Hobbs sat in jail for more than a year before the DNA was matched to Jorge Torrez, a onetime friend of Tobias’ brother, according to court records. While Hobbs was jailed, prosecutors say, Torrez murdered a 20-year-old woman in 2009 and raped another in 2010, both in Virginia. Torrez is now serving five life sentences for a series of attacks on women, including the rape, and he faces trial in the Virginia murder case.

Hobbs was freed in August 2010, but nearly two years passed before the Lake County prosecutor’s office tacitly acknowledged his confession was false by announcing that Torrez had been charged with the girls’ murders. Mermel retired this year amid controversy over remarks he made to the media about the meaning of DNA. Lake County prosecutors could not be reached for comment. Mermel declined to comment.

Hobbs’ attorney, Kathleen Zellner, said she would like to see legislation making confessions inadmissible in court unless they can be corroborated by physical evidence. Prosecutors, she said, repeatedly have proved reluctant to admit the faults of their favorite evidentiary tools.

“(DNA) takes away the power that a prosecutor would have to develop a case around an eyewitness or a confession … and I guess there’s resistance to that,” she said.

Zellner has another client fighting his case in which DNA calls into question the conviction. Though there is no confession, prosecutors say the DNA does not persuade them of his innocence. So far they have declined to vacate the man’s conviction, although they say they are “actively investigating” the case.

Alprentiss Nash was convicted in the 1995 murder of a man named Leon Stroud during a home invasion and robbery and sentenced to 80 years in prison. Nash, according to prosecutors, put on a black ski mask before committing the crime, and the mask was found near the crime scene.

Cook County prosecutors under then-State’s Attorney Dick Devine opposed Nash’s request for testing, but the Illinois Appellate Court later ordered it. When the testing was done on skin cells found on the mask, the genetic profile was matched to an inmate who recently was paroled from prison after serving time for a drug conviction. Zellner requested additional testing, to which Alvarez’s office agreed.

In an interview at Menard Correctional Center, where he is being held, Nash, 37, said he hoped the DNA results would lead to his release.

“I’m tired of doing time,” he said of his 17 years in custody.

But Alvarez’s prosecutors argue that the DNA evidence does not clear Nash, which has frustrated him and Zellner.

“They’ve got an exclusion. They’ve got the profile of the real killer,” Zellner said. “And they’re horsing around with it.”

TEXAS – Agreement on DNA testing in Skinner case, but “key” evidence missing

June 13, source : 
http://www.chron.com

Hank Skinner

DNA testing of evidence in the Henry Skinner triple murder case hit yet another snag this week as prosecutors admitted that a blood-stained windbreaker – termed “perhaps the key piece of evidence” by the killer’s lawyer – cannot be found.

In a motion laying out terms of a joint agreement to begin testing filed late Tuesday, the state and Skinner attorney Rob Owen identify 40 items to be submitted for testing. Among them are clippings from a victim’s fingernails, vaginal swabs, and knives found at the scene of the 1993 New Year’s Eve Pampa murder.

Skinner, 50, was convicted of fatally bludgeoning his girlfriend, Twila Busby, and stabbing to death her two adult sons. He consistently has maintained his innocence, saying that consumption of codeine and alcohol had rendered him incapable of killing the victims.

Prosecutors in Tuesday’s filing concede that the windbreaker, collected from the scene by the Pampa Police Department, has not been found.

“According to the state, every other single piece of evidence in this case has been preserved,” Owen said in an email. “It is difficult to understand how the state has managed to maintain custody of items as small as fingernail clippings while apparently losing something as large as a man’s windbreaker jacket. To date, the state has offered no explanation for its failure to safeguard evidence in this case.”

A spokesman for the Texas Attorney General’s Office declined immediate comment.

Owen said the jacket, which appears to be stained with perspiration and blood, may have been worn by the assailant. Owen said that, since the trial, a witness has identified the jacket as one worn by Busby’s uncle.

That man, now dead, reportedly was seen stalking Busby at a party shortly before her murder.

Skinner has had at least two execution dates set. Last November, the Texas Court of Criminal Appeals issued a stay to ascertain how revised laws regarding such testing may apply to his case.

Skinner has endeavored for more than a decade to obtain DNA testing of seemingly important evidence gathered at the crime scene.

Once a Gray County district court approves the proposed joint order, agencies or entities possessing items to be tested will have five days to send them to the Texas Department of Public Safety laboratory in Austin.

TEXAS – State Backs DNA Testing for Hank Skinner

June 1, 2012 Source :
http://www.texastribune.org

Reversing its decade-long objection to testing that death row inmate Hank Skinner says could prove his innocence, the Texas Attorney General’s office today filed an advisory with the Texas Court of Criminal Appeals seeking to test DNA in the case. 

“Upon further consideration, the State believes that the interest of justice would best be served by DNA testing the evidence requested by Skinner and by testing additional items identified by the state,” lawyers for the state wrote in the advisory.

Skinner, now 50, was convicted in 1995 of the strangulation and beating death of his girlfriend Twila Busby and the stabbing deaths of her two adult sons on New Year’s Eve 1993 in Pampa. Skinner maintains he is innocent and was unconscious on the couch at the time of the killings, intoxicated from a mixture of vodka and codeine.

Rob Owen, co-director of the University of Texas at Austin’s Capital Punishment Clinic, said he was pleased the state “finally appears willing to work with us to make that testing a reality.”

The details of the testing, he said, will still need to be arranged to ensure the evidence is properly handled and identified.

“Texans expect accuracy in this death penalty case, and the procedures to be employed must ensure their confidence in the outcome,” he said in an emailed statement. “We look forward to cooperating with the State to achieve this DNA testing as promptly as possible.”

State lawyers have opposed testing in the case, arguing that it could not prove Skinner’s innocence and that it would create an incentive for other guilty inmates to delay justice by seeking DNA testing. Today, though, the state reversed its course and has prepared a joint order to allow the tests.

Since 2000, Skinner has asked the courts to allow testing on crime scene evidence that was not analyzed at his original trial, including a rape kit, biological material from Busby’s fingernails, sweat and hair from a man’s jacket, a bloody towel and knives. Owen told the Texas Court of Criminal Appeals last month that if DNA testing on all the evidence points to an individual who is not Skinner, it could create reasonable doubt about his client’s guilt. 

The advisory comes a month after that hearing before the Texas Court of Criminal Appeals, in which the judges on the nine-member panel grilled attorneys for the state about their continued resistance to the testing even after a spate of DNA exonerations in Texas. In Texas, at least 45 inmates have been exonerated based on DNA evidence.

“You really ought to be absolutely sure before you strap a person down and kill him,” Judge Michael Keasler said at the May hearing.

State Sen. Rodney Ellis, D-Houston, praised the Texas Attorney General’s move on Friday. Legislators last year approved a bill that Ellis wrote amending the state’s post-conviction DNA testing law to allow for such analysis in cases like Skinner’s. Under the measure, inmates can obtain testing even in instances where they had the chance to test the DNA at trial but did not do so and in cases where the DNA was tested previously but new technology allows for more advanced testing.

In Skinner’s case the state had long argued that he should not be allowed to test the DNA evidence because he had the opportunity to do so at his trial but chose not to. He sought testing again after the DNA measure was approved last year.

“Now we will have certainty in the Skinner case because we will have analyzed all the evidence,” Ellis said in a statement. “There should be no lingering questions in capital cases.”

TEXAS – 5th Circuit sends death case back to local judge – Anthony Bartee

May 31, 2012 Source : 
http://www.mysanantonio.com

Update

The 5th U.S. Circuit Court of Appeals has asked a lower court judge to rule on whether the testing of DNA evidence ordered by the Bexar County district attorney’s office in death row inmate Anthony Bartee‘s case now makes moot Bartee’s claim that the office violated his civil rights.

Bartee, on death row since 1998 for the robbery and shooting death of David Cook, 37, won a stay of execution May 2 just hours before he was set to die by lethal injection.

Chief U.S. District Court Judge Fred Biery granted the stay after Bartee’s lawyer, David Dow, filed a federal civil rights lawsuit against the district attorney’s office, saying they violated Bartee’s rights by not releasing evidence for testing.

The county appealed Biery’s ruling for a stay to the 5th Circuit. However, the county also submitted for testing the evidence Dow sought to have released.

Because of that, the 5th Circuit ruled on Tuesday to send the case back to Biery for the purpose of answering whether the testing makes Bartee’s claim irrelevant.

No information was available on when Biery might rule on the case.

Rico Valdez, with the Bexar County district attorney’s office, said they plan to finish the testing.

No new execution date has been set for Bartee.

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