Category Archives: DNA

Monday’s Quick Clicks…

  • Exoneree Clarence Harrison makes music with his new album “Life Sentence.”
  • Pennsylvania Innocence Project client Han Tak Lee walks free in Pennsylvania on Friday after his arson conviction is thrown out by a federal judge
  • After long battle, California Innocence Project client Timothy Atkins declared factually innocent and to receive state compensation for his wrongful conviction
  • Steve Drizin writes about the joint effort of Northwestern U and U Michigan to exonerate Jamie Lee Peterson
  • Mississippi Innocence Project writes about the potentially false testimony in a number of cases by medical examiner Steven Hayne
  • Original detectives back bid by Michigan Innocence Clinic to get new trial for Jeff Titus
  • Wisconsin Innocence Project seeks DNA testing in 1982 murder case

Victory in Michigan for Two Innocence Network Member Organizations…

From an email by Josh Tepfer (with permission):

I’m delighted to share the news that in a 23-page decision issued today, Judge Janet Allen of the Kalkaska Circuit Court vacated the conviction of Jamie Lee Peterson and ordered a new trial. Mr. Peterson has been incarcerated for over 17 years. The post-conviction work that led to this new trial was a joint effort of students and attorneys from the Michigan Innocence Clinic at the University of Michigan Law School (attorney team led by Caitlin Plummer and Dave Moran) and the Center on Wrongful Convictions at Northwestern University School of Law (attorney team of me and Steve Drizin).  The opinion is attached.

Mr. Peterson was convicted of the October 1996 rape and murder of 69-year-old Geraldine Montgomery in her own home. The heinous nature of the crime shocked this small, sleepy town in northwest Michigan. Ms. Montgomery, who lived alone and was a pillar of the community, was found asphyxiated in the trunk of her own car with the engine running and the garage closed. The police immediately concluded that she was a victim of sexual assault given that her vaginal swab showed male semen. On her shirt, moreover, was a stain of her saliva mixed with male seminal DNA.

The crime was unsolved for four months when Jamie Lee Peterson made a detailed confession during a mostly audio recorded confession. Peterson, who has organic brain damage and mental illness, confessed to committing the crime himself. After the confession, the rudimentary DNA testing available was conducted on the vaginal swab. That testing excluded Mr. Peterson as the source of the male DNA. DNA testing on the shirt stain, however, was unable to be conducted given the state of the technology at the time. After the testing, the police re-interrogated Mr. Peterson, explaining to him that the DNA testing proved it was him but also showed that he was lying about having no accomplices. Over the next several days, Mr. Peterson confessed again, recanted, and then confessed again and again and again. In total, he confessed roughly six or seven times to police. During these confessions, he named several accomplices, but further DNA testing and police investigation cleared all of these named accomplices. The audiotapes also reveal Peterson failing to get basic, uncontroversial facts about the crime scene correct unless he was specifically told the details by the police. For example, Peterson continually got wrong the clothes the victim was wearing, or where the rape occurred. Only after being provided the correct information would Peterson include this information within his subsequent confessions.

 Ultimately, the State concluded that they believed Peterson guilty and that he was merely unwilling to name his accomplice. They prosecuted him under the great unindicted co-ejaculator theory. They argued that Peterson was likely responsible for the untestable stain on the victim’s shirt, and his unknown accomplice was responsible for the vaginal swab. Peterson was convicted in 1998.

Over the next decade and a half, all of Peterson’s appeals failed. Moreover, earlier post-conviction requests for DNA testing using updated technology that could identify the source of the male DNA in the vaginal swab were blocked by the prosecution and refused by the courts. This was perhaps the oddest fact about the case – the State theorized that there was an unknown accomplice who was responsible for the vaginal swab, but they refused to try and identify this person.

In May 2013, after retaining Mr. Peterson, attorneys from the Michigan Innocence Clinic and the Center on Wrongful Convictions met with the Michigan State Police and the current Kalkaska County prosecutor and persuaded a new regime to conduct the requested DNA testing. This DNA testing resulted in identifying the source of the male DNA in the vaginal swab. Further, technology had advanced to the point where testing could now be conducted on the shirt stain. That testing showed that the male on that shirt stain was the same person as in the vaginal swab. The DNA did not support a theory of two perpetrators. A full scale re-investigation by the Michigan State Police resulted in the arrest of this man – Jason Ryan – earlier this year. No credible evidence has been established to indicate that Ryan and Peterson had any association. Ryan has pleaded not guilty and is awaiting trial.

Despite this new evidence and the Ryan arrest, the prosecutors have still objected to any relief for Mr. Peterson. After extensive briefing and an oral argument last month, the court issued this opinion today. It is a glorious opinion with some great language on how to analyze claims prospectively and on false confessions.   

Many students contributed to this effort from two different big ten schools! It was a great collaborative clinical experience and we are delighted for Mr. Peterson. Great day! I want to send a shoot out to Mr. Peterson’s trial and appellate attorneys, Robert Carey and Al Millstein. They fought an uphill battle for many years in this small community but never gave up believing in Mr. Peterson.

Joshua A. Tepfer

Clinical Assistant Professor

Center on Wrongful Convictions of Youth

Northwestern University School of Law

25th Anniversary of First DNA Exoneration in the U.S.

Last week marked the 25th anniversary of the first DNA exoneration in the U.S.  Professor Daniel Medwed reflects:

Twenty-five years ago today, an Illinois court overturned Gary Dotson’s conviction for rape and aggravated kidnapping after DNA tests performed on the biological evidence in the original rape kit excluded him as the perpetrator. This was the first exoneration of an innocent prisoner in this country based on post-conviction DNA testing, and it was not the last. According to data compiled by the Innocence Project in New York City, post-conviction DNA evidence has since yielded 316 other exonerations in the United States.  

Relatively simple fixes can decrease the risk of error in a criminal case….Many states have yet to install these reforms.

What have we learned from these DNA exonerations? Scholars have examined these cases in search of what went wrong. Among the chief contributors to the conviction of an innocent defendant are: eyewitness misidentifications; false confessions; poor decision-making by police and prosecutors; ineffective assistance of defense counsel; and the use of dubious forensic science. Relatively simple fixes can decrease the risk of error in a criminal case. These include: altering the manner in which eyewitness identifications occur; videotaping police interrogations; and asking prosecutors to use checklists to ensure they comply with their constitutional obligations. Many states have yet to install these reforms.

Beyond DNA exonerations, there is the issue of wrongful convictions that cannot be overturned with DNA testing. Biological evidence such as blood, saliva, skin cells and semen is found in only an estimated 10 to 20 percent of criminal cases. What’s more, this evidence is occasionally lost, destroyed or degraded.

Even when biological evidence is available, prosecutors and other law enforcement officials are not always forthcoming in disclosing it to the defense. Add to this the hurdle of testing the evidence in compliance with legal requirements, and the challenge of proving a wrongful conviction using DNA technology is even greater.

For this reason, DNA testing has not and cannot solve the problem of wrongful convictions.  The same factors that led to the initial miscarriages of justice in the DNA exonerations appear in cases without any available biological evidence. Absent the authority of science, it is exceedingly difficult to overturn a wrongful conviction in these so-called non-DNA cases. Attorneys litigating them must often rely on subjective evidence of innocence. In doing so, they tend to encounter strict time limits, cumbersome burdens of proof and the pervasive skepticism of prosecutors and judges.

Absent the authority of science, it is exceedingly difficult to overturn a wrongful conviction in these so-called non-DNA cases.

The next phase of work in this field, then, is to implement lasting reforms to bolster accuracy in all criminal cases and to make it easier to present non-DNA innocence claims in post-conviction proceedings.

It may be fair to say that the Dotson exoneration a quarter century ago helped launch a revolution in criminal law: a legal, political and social campaign to rectify injustices that some have labeled a civil rights movement for this century. This revolution is far from over.

Wednesday’s Quick Clicks…

Are the FBI’s flawed hair matches wrong only when DNA proves it?

Kevin Martin’s exoneration in Washington, D.C., this week, as reported here, proved once again that FBI hair analysis is flawed and inaccurate. Martin was the fifth person to have his conviction overturned because of inaccurate hair analysis by FBI agents. That bodes well for others convicted on such evidence where, as in Martin’s case, biological evidence still exists that can be subjected to DNA testing.

But what about those cases in which there is no evidence to test? Will prosecutors still defend cases that were greatly based on FBI hair comparisons even after the FBI conceded in 2013 that microscopic hair analysis was not based on sound science?

The Massachusetts case of George Perrot is a good example of a case with great merit despite the lack of DNA. Perrot has been incarcerated for almost 29 years for a 1985 rape of elderly woman in Springfield greatly because of the testimony of an FBI agent that a single hair found on the victim’s bed matched a known sample of Perrot’s hair.

Perrot, who was only 17 at the time, has insisted on his innocence ever since his arrest. In 2001, his conviction was overturned because of numerous prosecutorial errors, but the conviction was reinstated by a higher court because of the supposed strength of the microscopic hair evidence used against him.

Never mind that the rape didn’t occur on the bed where the hair was found. Never mind that the victim repeatedly refused to identify Perrot as the rapist because, she stated, the rapist was clean-shaven and had short hair and Perrot had shaggy hair and a beard. Never mind that the series of rapes of elderly women in which Perrot was the purported perpetrator continued after his arrest. The hair “match,” the court said, was more important.

In a motion filed earlier this month, Perrot’s pro bono attorneys from the Ropes & Gray law firm, argue that the FBI’s acknowledgment that its examiners provided scientifically unsupported testimony justifies a new trial for Perrot.

Unfortunately, the attorneys could not locate the biological evidence in the case for DNA testing to bolster Perrot’s innocence claim the way Kevin Martin’s attorneys were able to. There are dozens of people like Perrot out there convicted with hair-comparison testimony who can’t use DNA testing to prove the testimony wrong.

That doesn’t make them any less innocent, but prosecutors and the courts may not see it that way. Of the 106 convictions in the 1980s and 1990s in the District of Columbia that included an FBI hair match that have thus far been reviewed, prosecutors said only Martin’s supported a “viable” claim for innocence. If it hadn’t been for DNA, Martin’s claim probably wouldn’t have viewed as viable at all.

Kevin Martin Exonerated after 26 Years in Prison; FBI Forensic Hair Analysis in Error

The Washington Post has reported that Kevin Martin’s conviction of the 1982 murder of Ursula C. Brown was vacated on Monday. Brown had been abducted, sexually assaulted, and murdered after her car was struck from behind during a rash of similar crimes that authorities had dubbed the “bump-and-rob” assaults in Washington, D.C. Martin had long contended his innocence in the killing.

Martin is the fifth person to have his conviction overturned as a result of a recognition of inaccurate FBI hair analysis. The FBI and Justice Department review of all convictions involving FBI hair matches in the 1980s and 1990s continues. Two comprehensive reports linked here provide an indication of the bumpy road to truth years and even decades after miscarriages were prompted by an unjustifiable trust in unreliable science presented by a highly credible source.

Highlights directly from the Washington Post: Continue reading

Tuesday’s Quick Clicks…