Thursday, September 18, 2008

Westchester Guardian/Jeffrey Deskovic.

Jeff Deskovic

Wrongful Convictions Just
Keep Coming Out, Part 4

A few months ago, I began a series of articles entitled “Wrongful Convictions Just Keep Coming Out”, for the purpose of illustrating just how
wide spread the problem of wrongful convictions is, and how, indeed, the number of wrongful convictions we discover is just the ‘tip of the iceberg’. The purpose is to raise awareness about the issue and to let people know that it can happen to anyone at any time; and, further, to illustrate the urgent need for legislative reforms to prevent more innocent people from being wrongfully convicted. is article is the fourth in
the series.

Darryl Burton

Darryl Burton was wrongfully convicted of murder and served 24 years in prison in New Jersey before being cleared with the assistance of Centurion Ministries, a not-for-profit organization that works to free wrongfully convicted people. They clear people both by DNA, when it is available, and by other means, such as the discovery new evidence, or the uncovering of evidence that was withheld from defense attorneys, or identification recantations. The summary of Burton’s case is taken from e Innocence Project’s blog: “One of the alleged eyewitnesses was
a jailhouse snitch who testified in 2007 that he lied at Burton’s trial in exchange for sentence reductions. The other witness, who is now deceased, was at least a block away and could not have seen the shooter. In addition, Centurion uncovered two actual eyewitnesses from the crime scene who told police that Burton was not the shooter. Police ignored their testimony during the investigation.

Centurion’s investigation also pointed to another man, also deceased, who may have been the actual killer.” Despite these facts, Circuit Attorney
Jenifer Joyce’s assistant, Ed Postawko, who dropped the charges stated that “I’m not convinced an innocent man was convicted of the crime. I give deference to the jury that found him guilty beyond a reasonable doubt 24 years ago.” Given the above-mentioned facts, notwithstanding the prosecutor’s contrary statement, it seems obvious that he was innocent.

Robert McClendon

Robert McClendon served 17 years in prison for rape in Ohio before being proven innocent by DNA. He was wrongfully convicted based upon a
misidentification by his 10-year-old relative, who was the victim in the case. The judge referred to McClendon as a “wrongfully convicted person.” The facts of his case are taken from NBC News’ website: “Prosecutors said McClendon took a 10-year-old relative from her backyard, blindfolded her, drove her to a house and raped her. The victim reported the rape the next day and was taken to a hospital. McClendon, who denied raping the girl, was convicted in 1991 and sentenced to 15 years to life in prison. He was denied parole in 2007.

In McClendon’s case, authorities had long since lost or thrown away swabs from the victim’s medical exam -- typically the best evidence for testing rape cases -- but agreed to provide the lab with the girl’s underwear. Using new technology that was unavailable at the time of the crime, the lab found faint traces of semen that didn’t match McClendon’s DNA profile, the Innocence Project announced last month.” Upon his release a couple of weeks prior to the charges being thrown out, McClendon, also according to the NBC New’s website, said “I can’t think of anything
but being with family right now,” McClendon said just after his release. “I really can’t.” And his family could only think of being with him. One of McClendon’s sons was only 2 years old when his father was sent to prison. “For my father, to come home, it is truly a blessing and a miracle,” Kevin Banks said.

William Dillon

William Dillon spent 27 years in prison in Florida for a murder that DNA now shows he was innocent of. The facts of Dillon’s case are taken from
an article by Deanna Morey in the Orlando Weekly: “William Dillon has been imprisoned for 27 year for the vicious 1981 murder of James Dvorak [see “26 years,” Oct. 11, 2007]. Dvorak was bludgeoned, his lips were peeled off and he was left for dead in a wooded portion of Canova

Following a trial that could generously be described as a joke – a prosecution witness legally blind in one eye, a girlfriend who was sleeping with the
lead investigator in the case and changed her story multiple times, a lousy lawyer who was later disbarred, and a tracking dog and handler later determined to be frauds – Dillon was convicted of Dvorak’s murder and sentenced to life in prison. At trial, the proverbial smoking gun
was a bloodied yellow T-shirt bearing the phrase “Surf It” that prosecutors said was worn by the killer. As assistant state attorney Michael Hunt told Dillon’s jury, “Using this yellow ‘Surf It’ T-shirt we will confirm the defendant’s [presence] at the scene of the murder.” One problem: The blood on that shirt doesn’t belong to Dillon. According to a report released July 28, the Dallas DNA lab Orchid Cellmark extracted three DNA profiles from the shirt. Those profiles matched Dvorak and two others who have not been identified. (The samples are too degraded to check for
matches through the national DNA database.) They did not, however, match Dillon. At trial the prosecutors said that the blood on the T-shirt belongs to the killer. Continuing on with her article by Morey: adding the DNA exoneration to all the problems associated with his farce of a trial nearly three decades ago, and one has to wonder why he still sits in state prison.

It wouldn’t be the first time Brevard County prosecutors imprisoned a man who was later cleared by DNA evidence. In 2005, Wilton Dedge was released after serving 22 years in prison for a rape that DNA evidence proved he did not commit. Assistant state attorney Wayne Holmes handled that case as well as Dillon’s, and takes credit for freeing Dedge after DNA cleared him. Lawyers for the Innocence Project of Florida, which assisted both Dedge and Dillon, say that’s laughable. Even a er DNA evidence exonerated Dedge, they say, prosecutors fought his release.

Still, Holmes says that if the evidence convinced him of Dillon’s innocence, he would push for his release. But right now, the State Attorney’s Office isn’t admitting defeat; DNA be damned, so it isn’t entirely clear what evidentiary hurdles Dillon would have to clear to change Holmes’ mind.” Holmes points out that the defense chose only to test the shirt, not the cigarette butts, jeans and other samples that could contain Dillon’s DNA. He also suggests the shirt could have been contaminated – though at trial prosecutors argued that the killer’s DNA would be all over the shirt, since that person
probably would have been sweating profusely while beating a man to death on a boiling August day.

“There were skin cells from two other people on an item that was recovered from the dumpster,” Holmes says. “It could have been exposed to numerous other people and cross-contaminated. What [the Innocence Project] is trying to say is this proves actual innocence. The
results are far from it.” How’s that for logical gymnastics? Prosecutors were all too happy to use this bloody T-shirt at trial as proof of Dillon’s
guilt, but now say the shirt and the DNA it contains don’t really matter. Innocence Project of Florida attorney Seth Miller says his group tested the shirt because it was the most important piece of evidence, and to test all of the evidence would be both costly and time consuming; Dillon would end up staying in prison even longer as the tests dragged out. He says additional testing is unnecessary, but he has no problem with prosecutors paying for more DNA tests.

“I think it’s troubling that whenever evidence presents itself, [prosecutors] twist and use it to prop up the conviction and preserve the conviction,” Miller says. “It’s unfortunate. They can argue [contamination] all they want, but if [other] people touched the shirt, it doesn’t remove the perpetrator’s DNA.” The circumstances surrounding that shirt have always been sketchy. Even though the state asserted at trial that it
tied Dillon to the crime scene, prosecutors knew that the blood on the shirt wasn’t a blood type match for either Dillon or Dvorak. They didn’t tell Dillon’s defense lawyer until after he was convicted. Dillon’s public defender, Mike Pirolo, will ask for a new trial, and hopes to have Dillon’s conviction tossed. “I anticipate the state will say something else,” Pirolo says. “They will say [Dillon’s] DNA was not on the shirt because it didn’t rub off. But they can’t say the shirt has nothing to do with it. I don’t think the state will lay down. I think they’ll fight it.” It
took months of wrangling between prosecutors and the defense even to get this far. Prosecutors resisted DNA testing at every turn. Ultimately a judge stepped in and approved the tests. “It’s clear this shirt was worn by the murderer. This should be the end of that,” Miller says. “We think these results should exonerate [Dillon]. But these are the same characters as in Dedge’s case, so we’re not going to hold our breath. But it should happen.” Meanwhile, Bill Dillon is still in prison for a crime that, in all likelihood, he didn’t commit. And the State Attorney’s Office seems OK with that.”


I will analyze what went wrong in order to emphasize the urgent need for legislative changes in order to shore up the cracks in the system through which wrongful convictions occur. In the Burton case, incentivized witnessing, which is when someone testifies in exchange for a benefit, often
a reduced sentence, was a factor. This has been the cause of wrongful convictions in 15% of the 220 DNA-proven exonerations, and in many more of the non-DNA exonerations. Misidentification, which caused wrongful convictions in 75% of the 220 DNA-proven wrongful convictions, also again rears its head. Sloppy police work, at best, and intentional misconduct at worst, which in the world of wrongful convictions falls under the heading of governmental misconduct, was certainly a factor.

The assistant prosecutor stating that he was not convinced of Burton’s innocence, seems like yet another example of a prosecutor not wanting to admit an error. In the McClendon case, misidentification was the cause of the wrongful conviction. I would also like to use this case to prove the point that just because a witness is young and therefore seen as less likely to lie, does not mean that they cannot be mistaken. Additionally, in other cases it has been proven that sometimes such witnesses do lie, for a wide range of reasons, not the least of which is being put up to it by parents or social service workers. Therefore child witnesses need to be given the same level of scrutiny as any other witness would be.

The case illustrates the need for a standardized evidence preservation system, as the hospital either lost or threw away the swabs. I would like to
laud the judge for referring to McClendon as a “wrongfully convicted person”. Often such acknowledgements either on the part of the judge or prosecutor are necessary for the formerly wrongfully convicted person to seek financial compensation. The theme of wrongfully convicted prisoners being denied parole also shows up in this case. Lastly, the human costs of wrongful conviction - the disruption in family life - is illustrated. I cannot imagine the impact of as on losing a father for all of his adolescence and nearly all of his teens. That loss can never be made up to either of them. Their loss should shock many parents of children.

Imagine, for a moment, being forcibly separated from your child based upon false allegations, and not returning until nearly two decades. In the Dillon case, as I sit and reflect about all of the things that occurred in his trial, if indeed that farce could even be considered a trial, I am speechless.
Given all of the above, anybody that believes that trials are always fair should be disabused of that notion. I believe that this case is a good argument for when cases that are reviewed, either by courts or anyone else, they should be reviewed without any deference to the jury verdict, instead being heavily scutinized.

Using that approach, it is more likely that errors would be caught. This case also is an example of judges simply rubber-stamp-denying appeals. How else could one explain all of Dillon’s appeals failing despite this horrible record? The idea of giving credence to an eyewitness who is legally blind, would be laughable if it didn’t have such serious implications for Dillon. As I see it, given that eyewitness misidentification is such a huge factor in wrongful convictions, even when the witness does not have such impairments, it should not be allowed when one has an ailment which
affects vision. The lead investigator sleeping with the girlfriend was highly improper, and, because it provided the investigator with a potential
motive to want to send Dillon to prison, the entire case becomes questionable. Thus was “governmental misconduct” a factor in this case. Bad
lawyering, which the poor typically receive from public defenders, was a contributing factor as well.

We also see the theme of prosecutors not wanting to admit when they have made a mistake, twisting evidence any way they can to support their theory, also occurring here. Prosecutor Holmes’ trying to take credit in the Wilton Dedge case, in which Dedge served 22 years, was merely a bald-faced lie.

The documentary “After Innocence” which shows the struggles of seven men to reintegrate into society after spending long years in prison for
crimes they were later proven innocent of, shows the court proceedings in the Dedge case, and it is right there on tape, for all of the world to see; Holmes fighting mightily to keep Dedge in prison at all costs, even when DNA test results of hairs showed it didn’t match him. Prior to that even happening, the state fought for three years on procedural grounds in order to prevent Dedge from even getting the testing.

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