Wednesday, February 25, 2009

Suspect charged in sex-assault case that led to wrongful conviction

February 24, 2009

By Staff from KHOU.COM- Houston, TX

The case that led to the wrongful conviction of Ricardo Rachell has finally been solved, according to prosecutors.

Andrew Wayne Hawthorne was charged Monday with the October 2002 sexual assault of an eight year-old boy.

Ricardo Rachell spent six years in prison for the crime after a jury convicted him in 2003. The District Attorney's Office agreed late last year to his release, after tests showed his DNA did not match that of the assailant.

Testing confirmed that Hawthorne's DNA profile is consistent with the man who assaulted the boy.

Hawthorne is charged with the first-degree felony of aggravated sexual assault of a child.

He faces up to life in prison if convicted.

Hawthorne is already serving a 60-year sentence for three similar attacks on young boys.

District Attorney Pat Lykos commended the hard work of the prosecutors, investigators, and police officers who aided in the investigation that lead to the release of Rachell and charge against Hawthorne.

She said a complete report is being prepared with respect to the Rachell conviction.

Monday, February 23, 2009

Former Innocence Institute Student Aids in an Exoneration in Missouri

Joshua Kezer is exonerated of the 1992 murder of Angela Mischelle Lawless

Bridget DiCosmo-SE Missourian-Cape Girardeau, Missouri

Last March, when asked how he'd react if ever cleared of the murder conviction that's kept him in prison for nearly 15 years, Joshua C. Kezer said he didn't know what his emotions would be like.

"I'd like to think I'd take a moment to stop and praise God — when you get a miracle, shouldn't you take a minute to stop and thank the one who gave it to you?" he said.

For Kezer, that miracle came Tuesday, when Cole County Judge Richard G. Callahan declared him innocent of the 1992 murder of Angela Mischelle Lawless, exonerating him of the crime he's denied since his arrest in 1993 at the age of 18.

"It's proof that God loves me, it's ... it's just off the chain," Kezer said during a phone interview Tuesday night.

Kezer, still emotional after hearing about the decision hours earlier from his attorneys, struggled to express himself.

"Wow," he kept saying. "Wow."

Kezer remained in the Jefferson City Correctional Center on Tuesday night, but will walk out of prison sometime within the next 10 days barring a decision by Scott County Prosecuting Attorney Paul Boyd to retry him on the second-degree murder and armed criminal action charges.

Boyd did not return a call seeking comment Tuesday as to whether he will make the decision himself or recuse himself, deferring to the Missouri State Attorney General's Office to make the call.

The attorney general's office has been handling the case since a motion alleging Kezer's wrongful conviction was filed last April.

Callahan's ruling came after a 60-day deliberation on evidence presented over three days of testimony in December, during which Kezer's attorney's argued he was innocent of the crime and key evidence that could have exculpated him was illegally kept from his original defense team.

"The Attorney General's Office has reviewed the decision by Judge Callahan, and the matter now rests in the hands of local prosecutors for assessment of the decision and underlying facts to determine what course of action — if any — should follow," said Travis Ford, spokesman for the attorney general's office.

In his opinion, Callahan cited more than 25 pages of key elements of the case that either show Kezer's innocence of the crime or involve suppressed evidence that could have changed a jury's verdict.

Among them were a police report showing an eyewitness identified someone other than Kezer as the man he saw near the crime scene the night Lawless was killed and a statement from the jailhouse informant who implicated Kezer saying he'd made up the story because he wanted a deal on his own charges.

Callahan criticized original prosecutor Kenny Hulshof, then an assistant with the attorney general's office, for mischaracterizing stains on Kezer's leather jacket as blood when he gave his closing argument.

A lab report Hulshof had access to at the time of trial showed the stains were not blood, and later testing revealed they were vegetable juice.

No other physical evidence linked Kezer to the crime.

Hulshof said he maintains Kezer was the right man for the crime.

"Today's opinion goes to great lengths to cast doubt on the credibility of the state's witnesses," Hulshof said in a prepared statement.

"But twelve jurors looked these witnesses in the eye, dispassionately listened to their testimony, and found them to be credible."

Hulshof remained confident in the jury's verdict, he said.

In his opinion, Callahan pointed out that the jury trial was meant to limit the power of prosecutors and judges to incarcerate someone.

"A jury trial is not a shield for prosecutors to avoid difficult charging decisions, and deference to a jury verdict is not a substitute for meaningful judicial review," Callahan wrote.

"In the final analysis, our system of trial by jury is there to protect citizens from its own government, not to protect government from its own mistakes."

The one "bright spot" in the case, Callahan said, was the decision of current Scott County sheriff to reopen the murder investigation in 2006.

Walter has said he did it because he felt there had been more people involved in the murder, but during the course of the investigation, found the case against Kezer began to crumble.

"I feel if the boy wasn't involved he doesn't need to be there — I would think everybody would want that," Walter said.

Walter said he spoke with Lawless' family after learning of the decision, and they indicated they "want the right person in prison for this."

Unsolved homicide

In the meantime, Walter is still left with an unsolved homicide case, he said, though he said he is happy with the decision for Kezer's sake.

"I can't feel good just yet. I want to solve this murder," he said.

Charles Weiss and Steve Snodgrass, two of Kezer's attorneys from the Bryan Cave Law Firm, said they found Callahan's opinion to be strong. Weiss said the judge is a former prosecutor.

"We were elated, all this hard work, and Josh will hopefully get justice," Weiss said.

Weiss said he would be surprised if the state opted to retry Kezer.

"There's no credible evidence left," Weiss said.

Kezer's attorneys said they were unable to reach their client Tuesday morning when they attempted to call him at Jefferson City Correctional Center.

As luck would have it, Weiss and Snodgrass were meeting with Darryl Burton, who was released from Jefferson City Correctional Center last August after Callahan granted a similar motion to the one in Kezer's case.

Burton, who had been at a conference Tuesday, along with Kezer's attorneys, to discuss starting a Missouri innocence project, used contacts gleaned from 24 years in prison to help get a message to Kezer to contact his lawyers.

When his attorneys told him the news, he shouted out loud, Kezer said.

"We got everything we wanted," he said.

He said the prison officials offered him protective custody until his release, but he refused, choosing to spend the remainder of his prison time with friends.

Kezer, who turned 34 Monday, has been incarcerated since his arrest in 1993.

"Is this a birthday present or what?" said his mother, Joan Kezer.

Joan Kezer said she most looks forward to doing ordinary things with her son, trips to Wal-Mart, going out to eat, and "just having him home."

Tuesday, February 10, 2009

UK program helps free innocent prisoners

February 10, 2009

By Kelly Berger KENTUCKY KERNEL Lexington, KY

UK law students working on the Kentucky Innocence Project may gain real-world legal experience, but working to prove prisoners’ claims of innocence is the most rewarding part, said the project’s director.

“The most rewarding part is to be there when an innocent person walks out of prison and to see the smiles and tears on the faces of our clients and his family, and the students who have worked so hard to help him,” KIP Project Coordinator Gordon Rahn said. “When that happens, you know you have done something right.”

UK is one of four law schools in Kentucky that offers its students the opportunity to participate in the KIP externship, which helps prove actual claims of innocence by Kentucky prisoners. The program was founded in 2001 and is administrated by the Kentucky Department of Public Advocacy.

Through April 2008, due to the efforts of KIP and the prisoner’s claims of innocence, six men and women have been released from prison. KIP does not limit cases to those where DNA evidence exists.

To enroll in the year-long, four-credit-hour course, students must be a second- or third-year law student.

At UK, the program has given students the chance to help those wrongfully convicted and gain valuable professional skills.

Third-year law student James Kay said he has received a hands-on way to work with clients. It also provides a valuable service, he said.

“Our justice system isn’t perfect, sometimes people fall through the cracks, but it’s good to look back on things because the system doesn’t always work,” Kay said.

Through the program, students are able to learn from the flaws of the legal system and gain a better understanding than they would from a classroom curriculum.

“KIP has taught me a lot more than any law book ever has,” third-year law student Melissa Randall said.

But it isn’t only rewards and success. Rahn has experienced many difficulties with KIP and said the hardest part “is to believe someone is innocent but not be able to find the new evidence required to prove his or her innocence.”

“It is difficult to walk away from that case,” Rahn said.

That challenge is the force that drives the students to work hard on investigations.

“We want to make sure we have looked at everything possible before making that visit to a prison to tell a client that we believe him but we can’t help him,” Rahn said.

Monday, February 9, 2009

High court to hear Alaska man's DNA appeal

February 9, 2009

By Lisa Demer ANCHORAGE DAILY NEWS Anchorage, AK

Even the defense says it was a brutal crime.

On a cold night in March 1993, a Spenard prostitute got into a red Nissan with two men and agreed to oral sex at a spot nearby. Instead, she was taken to Earthquake Park, where she was raped, beaten, shot, buried in the snow and left for dead.

An Anchorage jury convicted two Fort Richardson soldiers of rape, kidnapping and assault.

All these years later, one of the men, William Osborne, continues to fight for a sophisticated DNA test his lawyers say could prove him innocent.

That type of DNA test can prove identity beyond doubt, but wasn't available during his trial in 1993. His push to retest the contents of a blue condom -- found at the scene and used against him before a jury more than 15 years ago -- now is before the U.S. Supreme Court. Arguments are set for March 2.

The issue is fundamental: Do prisoners have a constitutional right to re-examine evidence after they are convicted?


The state's answer: "No."

The state agrees that testing the condom could prove Osborne didn't do it. But the state also says there's so much evidence of his guilt that a new DNA test would probably just reaffirm that.

"If there was other doubtful evidence that supported his ... possible innocence, creating some sort of probability that he might be innocent, things might be different," said Ken Rosenstein, the state's lead lawyer on the case. "But it's merely a wish and a prayer at this point."

And that's not reason enough to call a jury verdict into question, Rosenstein said.

Osborne's lawyers are incredulous at the state's position. If it's probably going to cement his guilt, and the defense is willing to pay for the $1,000 test, why not just do it? The test can provide a final answer, perhaps put the lie to Osborne's all-or-nothing trial defense: He wasn't even there that night, his lawyer told jurors. The victim's testimony was a case of mistaken identity.

The battle over Osborne's test has been taken up by The Innocence Project, a New York-based group that goes to court to free wrongfully convicted people through DNA evidence, and also pushes for laws allowing such testing and other reforms.

"We're not talking about vacating a conviction or a retrial or anything like that. We're just talking about a test. What's the big deal? Why can't you give them the test?" said Peter Neufeld, co-director of the Innocence Project.

DNA is different than any other type of evidence -- eye witnesses and recantations and even fingerprints, he said. "DNA is this truth machine."

Alaska legislators are watching the case to see if they need to craft a DNA testing law here, especially against the backdrop of a legislative push in Juneau for a death penalty. Other states, prosecutors, victims and criminal defense lawyers are watching too. One of 10 groups that have filed briefs with the U.S. Supreme Court supporting one side or the other is a collection of prosecutors. They're for the test.

As for Osborne himself, he was paroled in 2007 after serving 14 years on the rape case. Six months later, he was arrested on new charges stemming from a home invasion robbery. In January, he agreed to a plea deal that calls for another 16 years in prison.

He's 36 years old and has been incarcerated most of his adult life. He never expected his request for a DNA test to end up before the U.S. Supreme Court. He doesn't expect that it will make much difference for him.

"I just hope it helps somebody, somewhere down the line, somehow," he said in a jailhouse interview.


As far as Osborne's lawyers can tell, Alaska is the only state that has never allowed a convicted defendant to test a DNA sample.

Alaska is one of just six states that have no law specifically permitting inmates access to post-conviction DNA testing. In the other five, either prosecutors consented to testing or courts ordered it, without a law, Neufeld said. No one wants an innocent person imprisoned, he said.

"Most prosecutors want to do justice and they want to get to the truth," he said. Even if they believe deep down that a defendant is guilty, many also reason, "Fine, I'll give them the test. What's the downside? It's just a test -- it's not letting them out of prison."

The state says it's not that simple.

"That might be true but then everybody who is convicted is going to want to have the testing and convictions will never be final. There will never be justice. There will be request after request," Rosenstein said.

Osborne has been trying to get the more sophisticated DNA test since 1997. He's gone to state court, federal court, sometimes both at the same time. In April 2008, a three-judge panel of the 9th U.S. Circuit Court of Appeals ruled in his favor. It said he has the right to the DNA test. No matter the result -- guilty or innocent -- "the truth-seeking function of the criminal justice system is furthered in either case," the court said.

The state is appealing that ruling, which is how the case got to the U.S. Supreme Court.

Despite its 12-year fight to block the test for Osborne, the state would be willing to do a DNA test if prosecutors believed it could truly prove a convicted person innocent, said Richard Svobodny, Alaska's deputy attorney general over the criminal division.

Not many Alaska prisoners have asked, Svobodny said. He knows of just two: Osborne and Gregory Marino, whose request was made last year.

Marino, a crack addict, was convicted in 1994 of stabbing a woman to death and leaving her 7-year-old cousin for dead with a slashed throat. His DNA was not found at the bloody crime scene, but he admitted being there an hour before the attack, and the little girl, who knew him, identified him, Svobodny said.

Marino's request for more sophisticated testing "is sitting on my desk," Svobodny said.

Alaska has no guidelines for post-conviction DNA testing. A small group now is working on developing some, in part because of the Osborne case, Svobodny said.


Around the country, 232 people have been exonerated through post-conviction DNA testing. Some had confessed. Some even pleaded guilty. But when DNA testing showed they couldn't have done the crime, they were set free, after spending an average of 12 years in prison, according to the Innocence Project.

Consider the Mississippi case of Kennedy Brewer. He spent seven years on death row after being convicted of killing his girlfriend's 3-year-old daughter back in 1992. He stayed in jail even after a DNA test in 2001 proved he didn't commit the crime; prosecutors wanted to retry him anyhow, according to the Innocence Project. Its investigation led to the real killer, who confessed to the crime and whose DNA matched the semen found on the little girl, according to the project. In 2008, charges against Brewer were dropped and he was exonerated.

And it cuts both ways. Nearly half the post-conviction DNA tests requested by prisoners end up reaffirming guilt -- 42 percent of those handled by the Innocence Project.

The old DNA test done by the prosecution for Osborne's trial found that the fluid in the condom could have come from him. It also could have come from 15 percent to 16 percent of all African Americans, according to his lawyers.

The state argued for years that even if the semen in the condom was not Osborne's, that would prove nothing. Maybe the police picked up the wrong condom at Earthquake Park.

State lawyers finally conceded, in a recent filing to the Supreme Court, that a new DNA test could exonerate Osborne, but stressed that it wouldn't necessarily do so.

The test would absolutely clear him only if it found that cells on the outside of the condom belonged to the victim, and semen on the inside was not Osborne's, the state said.


Osborne's guilt or innocence is not really the focus of the DNA test case. The real question is whether Alaska prisoners in general have a constitutional right to re-test evidence using science not available when they were convicted.

State lawyers started out years ago denying the test would prove anything. Other evidence against Osborne was overwhelming, prosecutors said. He was seen with his co-defendant both before and after the rape, and some witnesses said he had blood on his clothing. The victim identified him, and Osborne's co-defendant implicated him.

Plus, years after his conviction, Osborne admitted the crime to the Alaska Parole Board, a confession one of his lawyers later said was a lie. Defendants often confess falsely to win release from a parole board or to negotiate a lighter sentence, his lawyers say.

Osborne pushed for a more discriminating DNA test before his trial. But his lawyer at the time was concerned the test -- which required a large and non-degraded sample -- might undercut the claim that he wasn't there.

"Who can argue that this crime wasn't awful?" said Bob Bundy, a former U.S. attorney who is working on Osborne's case. It would be an injustice to the victim if the person who did it got away with it, he said.

And unjust to Osborne if he's the wrong man, and never gets to prove it.


A key state senator says he's watching the Osborne case closely for guidance on a DNA testing law for Alaska.

"I'm waiting for the Supreme Court to rule," said Sen. Hollis French, a former prosecutor, now chairman of the Senate Judiciary Committee.

Both French, an Anchorage Democrat, and his House counterpart, Rep. Jay Ramras, a Fairbanks Republican, say DNA testing is likely to come up during debate on whether Alaska should institute a death penalty.

"I will go out of my way to make it a point that is one of the issues that we discuss," said Ramras, who isn't shy about whether he supports the death penalty. "Hell yeah!" he says.

French is generally opposed to a death penalty but said if one were instituted, Alaska would need to allow post-conviction DNA testing. "When the stakes are that high, it just increases the need for accuracy and double-checking, if you will," he said.

Ramras said he couldn't see adding new DNA testing at a time of pinched state revenues but also said that "nobody wants to see incarcerated people who didn't commit the crime stay in jail."

No legislation is likely until next year, and whatever lawmakers come up with won't open the door to everyone trying to get out of prison, French said.

"I still have a prosecutor inside of me," the senator said. "If I pick this up, I'm going to pass one that is tightly written."


In a recent interview at Cook Inlet Pretrial Facility, Osborne was careful with his words. He never proclaimed his innocence. He said his lawyers don't want him to get into the details of the case.

Osborne comes across as calm and articulate. He seems resigned to whatever happens. His head is shaved and he has a graying beard. Last year while in prison, he married a woman he knew from long ago. She has young twins and they all visit him in jail.

Asked why he wants the test, he said: "It's going to resolve this case for once and for all as to whether or not I'll be able to prove my innocence or my guilt."

What would the test show? Osborne leaned back to think about it. "Can't really answer that question," he finally said.

Osborne was born and raised in South Carolina, graduated high school there. He said he was accepted into The Citadel but it was too expensive, so he joined the Army.

He was just 20 when he was arrested, had his 21st birthday in jail a few days later.

In the years since he's been gone, his mother, grandmother, aunt and three first cousins all died. A daughter he fathered as a teenager now is a teen herself.

In June 2007, after serving 14 years of a 21-year sentence for rape, kidnapping and assault, he was paroled. Six months later, he was accused of being part of a group of masked men who stormed a home looking for drugs and money, who duct-taped and pistol-whipped hostages.

On Jan. 30, he agreed to a plea bargain that requires him to serve 10 years for the robbery and another six years still hanging over him on the old case.

"Even if I was to be found innocent, I can't get back the time I've already done. It's time lost," he said. "So on a certain level, I don't even care about the case anymore because it's just gotten to the point where it's basically something from my past."

But he recognizes the issue is bigger than he is. He wants to win, he said, "so that the next person doesn't have to go through this for the next 12 years."

Thursday, February 5, 2009

Prosecutors, Crime Victims, People Exonerated with DNA Testing and Others Urge U.S. Supreme Court to Recognize Constitutional Right to Post-Conviction DNA Testing

Amicus briefs filed in Innocence Project case set for oral argument March 2 at U.S. Supreme Court

(WASHINGTON, DC; February 5, 2009) – Prosecutors and victims of crime joined people exonerated with DNA testing and leading legal rights organizations this week urging the U.S. Supreme Court to recognize that the federal Constitution allows prisoners access to DNA testing that could prove their innocence.

Five amicus briefs were filed on behalf of William Osborne, an Innocence Project client, who has been seeking DNA testing for eight years to prove his innocence. Osborne was convicted of rape, attempted murder and related charges in 1993 in Alaska. Alaska is one of just six states without a law permitting prisoners to apply for post-conviction DNA testing. Prosecutors in Alaska have refused to permit Osborne to conduct DNA testing at his own expense, even though they concede that favorable DNA results would “conclusively prove Osborne’s innocence.” In 2008, the U.S. Court of Appeals for the Ninth Circuit ruled that it is unconstitutional to deny him access to DNA testing, and the state appealed that ruling to the U.S. Supreme Court, which will hear oral arguments in the case on March 2.

One amicus brief is from current and former prosecutors with nearly a century of prosecutorial experience at the local, state and federal levels, each of whom have substantial experience with DNA testing in criminal cases. Another is from victims and victims’ family members who have been profoundly impacted by post-conviction DNA testing. A third brief was filed by several of the 232 people nationwide who have been exonerated with post-conviction DNA testing, and another was filed by people who were granted clemency because of DNA testing. An amicus brief was also filed by leading civil liberties and legal rights organizations. Each of the briefs is summarized below, with links to the full text.

“These briefs reflect the growing consensus that everyone – prosecutors, defendants, crime victims, the government and society – has an interest in making sure people have access to DNA testing that can prove innocence,” said Peter Neufeld, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law. Neufeld will argue the case at the Supreme Court next month. “In the vast majority of cases, prisoners are granted DNA testing under state law or because prosecutors consent to testing without a court order. Alaska is the exception. It is the only state in the nation with no known case of a prisoner receiving DNA testing, either through court order or a prosecutor’s consent. This case involves a very important constitutional protection – one that is the only option for William Osborne.”

For background on the case (including the Innocence Project’s brief filed on behalf of Osborne last week), go to:

Below are summaries of the amicus briefs filed in the case.

Current and Former Prosecutors

This brief was filed by current and former prosecutors with nearly a century of prosecutorial experience at the local, state and federal levels. They have handled rape and murder cases where DNA testing was relevant, and they have also prosecuted people where evidence indicated guilt but guilt was not certain. Some of them prosecuted people who were later exonerated through DNA testing, and some granted requests for post-conviction DNA testing that exonerated innocent people.

The brief notes that the pursuit for justice is a fundamental crux of our criminal justice system, and modern DNA analysis can, in many cases, fulfill the search for truth. The brief says that, as a result, the majority of prosecutors are willing to review cases where DNA testing could change a verdict – but that relying solely on the unfettered discretion of prosecutors can sanction injustice. The prosecutors argue that a limited federal right to post-conviction DNA testing would pose a minimal burden on state laws and procedures and would not affect state laws that are already in place. The brief also says state and federal resources would not be overwhelmed by a limited federal right to post-conviction DNA testing. (Donald B. Ayer at the law firm of Jones Day is counsel of record on the brief.)

Following are current and former prosecutors who signed the brief:

Janet Reno, former Attorney General of the United States; Thomas M. Breen, former Assistant State’s Attorney in Cook County, Illinois; Kenneth L. Gillis, who served in high-level supervisory positions in the Cook County, Illinois, State’s Attorney’s office for 12 years; Peggy A. Lautenschlager, former Attorney General for the State of Wisconsin; Carl J. Marlinga, who was the elected prosecuting attorney of Macomb County, Michigan (in suburban Detroit); Scott D. McNamara, who was elected to serve as District Attorney of Oneida County, New York, after having been appointed to that position earlier that year; Jim Petro, former Attorney General of Ohio; Craig Watkins, District Attorney for Dallas County, Texas; and Andrea L. Zopp, former assistant United States Attorney for the Northern District of Illinois then Chief of the Narcotics Bureau of the Cook County State’s Attorney’s Office and First Assistant State’s Attorney of Cook County.

Crime Victims and Victim’s Families

These victims and victims’ family members have been profoundly impacted by post-conviction DNA testing. They include victims whose misidentification of an innocent person resulted in a wrongful conviction later overturned with DNA testing and a woman who was raped by a man who remained at large while an innocent person was in prison for his previous crimes. They also include people who thought their loved ones’ murderers had been convicted – only to learn years later, through post-conviction DNA testing, that innocent people had been wrongfully convicted and justice had not been done.

This brief outlines the ways post-conviction DNA analysis serves and supports victims’ rights and notes that other crime victims and their families are likely to be affected by the resolution of this case. “Amici have all suffered in some way at the hands of criminals, but they have also experienced the power of post-conviction DNA testing to rebalance the scales of justice,” the brief says. While the federal government and all 50 states have passed legislation recognizing the rights of crime victims, the brief notes that innocent defendants should not be punished for crimes they did not commit – something the government and the victims of crime have in common. At the core is the power DNA testing has to determine innocence or guilt and to provide victims, defendants and society with finality. (Kenneth W. Starr at law firm of Kirkland & Ellis is counsel of record on the brief.)

Following are some of the victims and victims’ family members who signed the brief:

Melinda Elkins, who endured her husband’s false conviction for the rape and murder of her mother and the rape of her niece; Tracy Kenellopoulos, who was raped by a man with a history of sexual assaults, who remained at large because an innocent man was wrongfully convicted of his crimes; Jeanette Popp, who watched two innocent men go to prison for her daughter’s rape and murder; and Jennifer Thompson-Cannino, who twice testified against an innocent man she was convinced had raped her; she was victimized by the crime against her, and then by her own guilt when she learned she had misidentified the assailant.

People Exonerated with Post-Conviction DNA Testing

This brief was filed by several of the 232 people nationwide who have been exonerated with post-conviction DNA testing. The brief says they are “uniquely positioned” to help the Supreme Court understand the significance of its decision in this case. The brief – signed by people who falsely confessed to crimes, were misidentified by victims/witnesses or were implicated by unvalidated or improper forensic science, only to later be proven innocent through DNA testing – argues that even when guilt appears overwhelming, access to DNA testing can prove innocence. The brief also says the Supreme Court should recognize that people have a constitutional right not to be incarcerated or executed if they are actually innocent – an issue that the court has never resolved. (Paul A. Engelmayer at the law firm of Wilmer Cutler Pickering Hale and Dorr is counsel of record on the brief.)

Following are people exonerated through DNA testing who signed the brief:

Kirk Bloodsworth, the first person in the country exonerated from death row with DNA testing, after serving nearly nine years on a wrongful conviction for rape and murder in Maryland; Kennedy Brewer, who was exonerated in 2008 after 15 years of incarceration – and a full seven years after DNA testing proved his innocence in the rape and murder of his girlfriend’s three-year-old daughter in Mississippi; Roy Brown, who was sentenced to 25 years to life for murder in New York and served 15 years before he was exonerated through DNA testing in January 2007; Jeffrey Deskovic, who was 16 years old when he falsely confessed to murdering a high school classmate in Westchester County, New York, and served 17 years in prison before a District Attorney consented to advanced DNA testing and he was finally exonerated; Dennis Fritz, who served 11 years in prison in Oklahoma for a rape and murder that DNA eventually proved he didn’t commit; Bruce Godschalk, who secured DNA testing through a federal lawsuit after the District Attorney and state courts denied his request; he was exonerated in two rape cases after serving 15 years in prison; Kevin Green, who was convicted of second-degree murder and attempted murder after the severe beating of his wife resulted in the stillbirth of their unborn child in California. After 17 years in prison, Green was exonerated when state investigators running semen samples from unsolved cases against a new state DNA database matched several crimes to a convicted rapist, who then confessed to the attack on Green’s wife. Ray Krone, who was wrongfully convicted of murder in part because of testimony that his teeth matched bite marks on the victim. He served 10 years in Arizona prison – three of them on death row – before DNA testing proved his innocence; Christopher Ochoa, who falsely confessed to a Texas murder in order to avoid the death penalty and was finally exonerated after 12 years in prison; and Anthony Robinson, who was wrongfully convicted of sexual assault and whose pleas for DNA testing were denied for years before a District Attorney consented and the results proved his innocence.

Civil Liberties and Legal Rights Organizations

Three leading organizations in civil liberties and legal rights filed a brief underscoring the legal principles at stake in this case. The brief argues that under the Constitution’s protection of individual liberty, a state cannot continue to detain someone who conclusively proves through a DNA test that he is innocent of the crime that is the basis for his incarceration. When a person conclusively establishes his innocence through a DNA test, there is no possible legitimate state interest in continuing to detain him, the brief says. The continued imprisonment violates Due Process under any potentially applicable standard. The organizations argue that Due Process also guarantees access to the DNA evidence necessary to establish an actual innocence claim. The same fairness and truth-seeking principles that require pre-trial disclosure of exculpatory evidence also require the government to honor a specific post-trial request for DNA evidence that has the potential to establish actual innocence. (Walter Dellinger and Irving L. Gornstein at the law firm of O’Melveny & Myers are counsel of record on the brief.)

Following are organizations that signed the brief:

The American Civil Liberties Union (ACLU), a nationwide, nonprofit, non-partisan organization with more than 500,000 members dedicated to the principles of liberty and equality embodied in the Constitution; The Rutherford Institute, an international civil liberties and human rights organization headquartered in Charlottesville, Virginia that specializes in providing legal representation without charge to individuals whose civil liberties are threatened or violated; and The National Association of Criminal Defense Lawyers (NACDL), a non-profit organization that is the only professional bar association that represents public and private criminal defense lawyers at the national level.

People Who Received Clemency through Post-Conviction DNA Testing

This brief was filed by people who were exonerated when they were granted clemency based on DNA testing post-conviction. The brief notes that if they had been convicted in Alaska, “they could still be in prison today” and discusses the constitutional rights at stake when the innocent seek clemency. Prisoners who can demonstrate their innocence beyond dispute have a uniquely legitimate expectation that they actually will receive clemency. Not only have numerous individuals throughout history received pardons on innocence grounds, many have received clemency on the basis of DNA evidence. Amici are among these individuals. Their brief argues that denying a prisoner access to biological material that could decisively demonstrate his innocence deprives him of his liberty interest in obtaining clemency without due process of law.

The brief outlines the clemency process and the significance of DNA testing in many clemency proceedings. It argues that Alaska’s refusal to grant DNA testing in this case “flouts any possible sense of fair play” and is “perverse.” (Jeffrey L. Fisher at Stanford Law School’s Supreme Court Litigation Clinic is counsel of record on the brief; the law firms of Akin, Gump, Strauss, Hauer & Feld and Howe & Russell also worked on the brief.)

Following are the individuals who have received clemency through DNA testing who signed the brief:

Kenneth Adams, who was exonerated 18 years after being wrongfully convicted in Illinois for rape and murder; Marvin Anderson, who was exonerated 19 years after being wrongfully convicted and imprisoned in Virginia for robbery, forcible sodomy, abduction and two counts of rape; A.B. Butler, who was exonerated after almost 17 years in a Texas prison for aggravated kidnapping and rape; Kevin Byrd, who was exonerated 12 years after being wrongfully convicted and imprisoned in Texas for rape; Michael Evans, who was exonerated 26 years after being convicted in Illinois for a rape and murder he did not commit; Paula Gray, who was pardoned for innocence after serving nine years in prison in Illinois; Dana Holland, who was exonerated after serving 10 years of a 118-year sentence for two separate wrongful convictions for rape, armed robbery and attempted murder; Edward Honaker, who was exonerated after being wrongfully convicted in Virginia of seven counts of sexual assault and rape; Steven Linscott, who was exonerated after serving three years in prison and out on bond for seven years for a wrongful murder conviction in Illinois; Ben Salazar, who was exonerated five years after being wrongfully convicted of aggravated sexual assault of a pregnant woman; and Earl Washington, who was exonerated 16 years after being wrongfully convicted and sentenced to death in Virginia.