Westchester Guardian/Jeffrey Deskovic.

Jeff Deskovic

When DNA Isn’t Enough,
Part 1

DNA has been referred to as the gold standard by experts and attorneys, because of its ability to conclusively prove innocence or guilt, provided that the correct protocols are followed, no contamination takes place, and the chain of custody remains intact. There are many substances which
can be tested including, but not limited to hair, saliva, semen, and blood. There are also a variety of different types of DNA Testing, including comparing crime scene DNA to the DNA database to see if there is a match with another person convicted of another crime.

There have been a number of instances in which DNA has not only proven the innocence of the accused, but also identified the actual perpetrator.
To date, DNA has cleared 220 people who have been wrongfully convicted across the country. At the same time, there have also been many people whose guilt has been proven by DNA.

Headlines in both newspapers and television news reports referring to DNA’s presence in criminal cases has become commonplace, so much so that the average person has heard of DNA and know what it refers to. Despite being well known, and its universally acknowledged penchant for
bringing out the truth, and despite all of the individuals that have been cleared as a result of testing for it, nevertheless there have been some anomolies where DNA hasn’t been enough to secure a defendant’s freedom, even though it should have been.

Damien Echols, James Baldwin, and Jessie Misskelley were convicted of murder, in a case that is known as The West Memphis Three. Baldwin and
Misskelley were sentenced to life in prison, Echols was sentenced to death. The facts of this case are taken from an article in The Economist published April 17, 2008: In 1993, three eight-year-olds disappeared in West Memphis, a poor town in Arkansas. They were found in a ditch the
next day. Their bodies were bound with shoelaces and covered with wounds; one had been partially castrated. Anxious to solve this horrific crime, the police soon focused on three local teenagers.

Damien Echols, Jessie Misskelley and Jason Baldwin were oddities in this conservative town. Mr Echols wore black clothing, listened to Metallica and carried a cat’s skull to school—perhaps, locals thought, as part of some satanic ritual. Mr Misskelley, who is slightly mentally retarded, actually confessed to the murder.

His confession, though, was full of factual errors. He said that he and his friends had committed the murders in the morning, but the boys were in
school all day. And, no physical evidence linked the three teenagers to the crime. They were just a bit weird. It was a weak case, but the boys were convicted.

Some of the inaccuracies of the confession, taken from the West Memphis Three EvBoard included: Jessie said that the boys skipped school May
5, 1993; in fact the boys were in school all day and so was Jessie Baldwin. The confession said that Jason castrated Chrisopher Byers with a single swing of a knife, whereas the Medical Examiner says that the penis of Byers was methodically skinned by someone with extensive knowledge of anatomy and the process would have taken some time to complete even under laboratory conditions.

An article entitled False Confessions Adults by Bruce Robinson which appeared in the magazine Justice Denied, elaborated on the confession of
Misskelley: The confession of Jessie Misskelley, Jr., convicted of participating in the sexmurders of three boys in West Memphis, Arkansas, in 1993, may well be false. He was 17 years old at the time of the confession, and has an IQ of 72 (vs. a normal value of 100). After the trial had ended, an independent investigator studied the autopsy photographs. He found images of bite marks on the face of one of the murder victims. Their pattern did not match Misskelley’s teeth or those of the other two teenagers who were also convicted of the murders. One of the latter is
on death row. Although a polygraph test indicated his innocence, Misskelley was interrogated for over 5 hours. He retracted his confession afterwards, claiming that he had caved in under police pressure.

He pleaded not guilty at trial. An expert testified at the trial that Jessie was a prime candidate for a false confession because of his young age and low IQ. As e Economist’s article stated: Over the past 15 years there have been mounting calls to free the West Memphis three, or at least give them a fair trial. ere have been dozens of benefit concerts for their legal-defence fund, and HBO has aired two documentaries about them.

Now advances in forensic testing are helping their cause. DNA tests show that a hair from the crime scene could not have belonged to any of the three—but may belong to one of the victims’ stepfathers An article from WMCTV Action News by Janice Broach stated: New DNA testing by the defense shows that none of the genetic material recovered from the murder scene links Echols, Baldwin, or Misskelley to the scene. Instead, defense attorneys say, the tests found DNA from Terry Hobbs, the stepfather of one of the murdered boys. Thursday, Hobbs told Action News 5 he didn’t do it. “I’d have to laugh at that and say there’s something wrong with someone who would think that,” he said.

Hobbs claimed a private investigator from the defense team told him one of his hairs was discovered in a knot in one of the shoe laces used to tie up the three eight-year-olds. “If Michael Moore or Christopher Byers had a piece of my hair on shoes strings, these little boys came to my home and played with our little boy pretty regularly,” Hobbs said. e DNA results also revealed, according to court documents, that most of the DNA at the crime scene came from the victims, but some of it cannot be connected to the victims or the defendants.

The judge denied their motion for a new trial based upon the DNA, stating: The DNA testing results exclude the Petitioner as a source of most of the biological material tested todate, particularly from 1) a foreign allele from a penile swab of one victim 2) a hair recovered from a shoelace used to bind another victim, and 3) a hair recovered from a tree stump at the crime scene. The step father of one victim and a friend of his are, respectively not excluded as sources of the latter two items. The Petitioner also is excluded as the source of biological material from a pants cutting of one victim.

The court finds that the Petitioners DNA-Testing results are inconclusive because they do not raise a reasonable probability that he did not commit the offenses; that is, they are inconclusive as to his claim of actual innocence.

Later on, the Court said: The Court agrees with the State that the mere exclusion of the Petitioner as the source of some biological material
from the crime scene (including the four particular items on which he relies) neither establishes that he was not there nor that he was not a killer. Further, it says “Even apart from his own luke warm characterization of his results, it is evident from the balance of hispleadings that he is not actually relying on his results alone to overcome the threshold to obtain a hearing, much less relief. Instead his motion depends upon consideration
of voluminous exhibits purporting to undermine the evidence of guilt from his trial. His reliance on those materials reflects a fundamental misunderstanding of the claim the can make and his burden to obtain relief under the statute.

The statute permits evaluation of claims of actually innocence supported by scientific testing, it does not permit reweighing of the trial evidence. The adequacy of that evidence to demonstrate his guilt is fixed, particularly in a case like this in which its sufficiency was challenged and resolved on direct appeal. Turning to another example, the facts of Dennis Dechaine’s case are taken from Wikipedia: Dennis Dechaine was convicted of
the abduction, sexual torture, and murder of Sarah Cherry, a 12-year-old girl. The crime happened on July 7, 1988 in Sagadahoc, Maine. Dechaine was convicted and is serving a life sentence without the possibility of parole.

Dechaine’s pickup truck was found parked 450 feet from Cherry’s body. Rope from the truck apparently had been used to bind the girl. Dechaine’s
penknife was missing from his key ring. Dechaine’s bandana had gagged the victim. In addition, two documents bearing Dechaine’s name had been discovered in the driveway of the house where Cherry was baby-sitting before she was killed. During the search for Sarah Cherry, a state prosecutor contacted Dechaine’s then trial lawyer, now deceased, after he had interviewed Dechaine, to ask two questions: whether Sarah Cherry was dead and whether the search was concentrated in the right place. According to the prosecutor, Attorney George Carlton gave affirmative answers to both questions and the answers proved accurate.

Prior to the trial, Dechaine petitioned a court two months before his trial to obtain DNA testing, at his own expense, to prove his innocence. The
judge denied his request, even though DNA testing was available at that time. Dennis Dechaine has summarized his own case as follows: “An unidentified man/men took four items from an unattended truck and used those items to kill Sarah Cherry and shift responsibility to the owner of the truck, Dennis Dechaine.” The Innocence Project now represents Dechaine, but even with the DNA Test Results, they have been unable to
get a new trial for Dechain. As an article in The Times Record states: A group called Trial and Error raised money to have the test done. Post-conviction DNA tests revealed another male’s DNA under the victim’s fingernails, yet the state of Maine refuses to permit any further tests. Further testing ruled out male family members, police officers or medical examiner office personnel who may have inadvertently contaminated
the evidence. Mr. Wright, the prosecutor, has previously stated that the DNA test results are irrelevant.

Analysis/Commentary

Firstly, the confession in the West Memphis Three case contains factual errors that do not square with the evidence; and that is the first red flag. The second is that the person who confessed had an IQ of 72. Special care in questioning suspects who are either retarded or have psychological impairments is needed, and special care is needed in reviewing it, not simply in terms of whether it was voluntary, but whether it is false.

Although the Appellate Courts would disagree with me on this point, I believe that as a matter of common sense anybody who has an IQ of 72
cannot make a knowing, willing, and voluntary waiver of their rights, which the law requires. How can they understand the implications of waiving their rights enough to intelligently do so?

Hence I find that the confession was not voluntary, and therefore morally it should not be considered. In terms of its truthfulness, which is germane to whether the co-defendants are factually guilty or innocent, the fact that the confession is inconsistent with known facts makes it very suspect; too suspect, I believe, to be relied upon to establish guilt beyond a reasonable doubt.

In terms of the Judge’s decision, I believe that the decision was outrageous, because he was dismissing four different items which exclude the defendants. Furthermore, he stated that exclusion is not proof of innocence. If the DNA had matched the defendants, both the Court and the Prosecution would consider it conclusive proof of their guilt.

The Judge’s refusal to consider the additional evidence of innocence, represents a court looking for a way, any way, to uphold a conviction. In so doing, they place procedure above innocence, which is morally unacceptable. The fact that there is even a procedure like that is inconsistent with justice. I believe that all defendants should be entitled to raise innocence in any stage of their case and should be entitled to have it fairly considered. Further, such proof can be in any form. There is no need to be overly technical. It either proves innocence or at least raises a
reasonable doubt, or it doesn’t.

Considering that the DNA in the form of a hair matches the stepfather, who was an alternative suspect, I cannot agree with the judge that it is not signifi-cant. In fact I feel it is very significant. In the Dechaine case, I think that the way Dechaine himself summarized his case, though somewhat implausible, is not impossible.

Yet despite that fact, there is no question that Dechaine did not receive a fair trial, because the judge denied him the opportunity to get DNA Testing and then present the results to a jury. Had they allowed him to do so, he would have been acquitted. The error was compounded by the Appellate Judge’s upholding his conviction when, many years later, the DNA did not match him. Furthermore, the fact that DNA from an unidentified male was found under her fingernails. Am I missing something, or is it just common sense that DNA under a victim’s fingernails probably came from the perpetrator?

As previously covered, there are those prosecutors who refuse to acknowledge a mistake; who refuse to acknowledge a wrongful conviction,
and who, instead, operate under a win at-all-costs theory, in which truth and justice go out the window. Conducting themselves in this manner is inconsistent with the civil rights of the accused, and constitutes prosecutorial misconduct. The need for legislation to provide incarcerative and financial penalties to those who so engage is urgent.

The fact that there are judges who allow these out-of-control prosecutors to do what they do, ruling in their favor, only compounds matters, and speaks loudly to the need for more judges with integrity. How do prosecutors and judges, who behave this way, sleep at night? How did we get so far from the truth-seeking function in our courts? How did we get past what is supposed to be, but often is not, the basic bedrock of the criminal justice system; that the innocent be acquitted and the guilty be punished?

When will we return to a more sane system in which technicalities are irrelevant and it is really all about guilt and innocence, and getting it right? When will we finally have it so that the majority of the men and women who are prosecutors and judges have gotten the idea that it is not okay to break rules in order to ‘get the bad guy’, but also by operating that way, innocent people are more likely to be wrongfully convicted.