12 Inmates’ Cases Chosen for Review Under DNA Projects

Twelve California prisoners serving lengthy sentences are pinning their hopes on two projects launched independently by prosecutors and defense teams in San Diego to reexamine old cases for wrongful convictions.

They are the first inmates picked by the San Diego County district attorney and officials at California Western School of Law in separate programs aimed at freeing innocent people sent to prison.

San Diego County, long a bastion of law-and-order politics, is suddenly getting attention from the legal community across the country as a jurisdiction where both sides will go to unusual lengths to ensure that a convicted person is really guilty.

Proving reasonable doubt is part of any defense strategy. But when San Diego County Dist. Atty. Paul Pfingst announced last year that his office would pay for DNA tests for some inmates claiming wrongful convictions, it raised eyebrows among prosecutors nationwide.

About the same time that Pfingst was announcing the San Diego DNA Project, California Western’s Institute for Criminal Defense Advocacy launched an “Innocence Project” modeled after one founded almost nine years ago by attorneys Barry C. Scheck and Peter J. Neufeld in New York.

Justin Brooks, the institute’s executive director, said the school’s team of two law professors and 12 law students are screening 700 cases statewide and have picked the first 10 to review for possible wrongful convictions. Two years ago, Brooks was lured away from a Michigan law school to run the institute, created a decade ago with a $600,000 endowment to help defense lawyers prepare their cases.

While the project is considering all claims of wrongful conviction, “We are only going forward with cases where there is strong evidence that the convicted person may be innocent,” said Brooks.

DNA analysis can virtually prove that biological evidence at a crime scene, such as bodily fluids, matches or does not match a suspect. While it has recently emerged as a quick and powerful tool for proving innocence, other cases will be investigated, including those where inmates allege coerced confessions, Brooks said.

In comparison, Pfingst’s office will not review a case unless biological evidence is still available. Deputy Dist. Atty. George “Woody” Clarke, a nationally recognized DNA expert, and Special Assistant Dist. Atty. Lisa Weinreb are reviewing the cases of 560 people convicted before 1993 in San Diego County, before the examination of DNA evidence became routine in criminal cases.

According to Clarke, defendants have to meet five requirements before their cases are reviewed. In addition to being convicted before 1993, they must be serving an indeterminate or life sentence and have continually maintained their innocence. Biological evidence also must be available and identity must have been an issue in the case.

“Mainly, we want to look at physical and biological evidence seized by police,” Clarke said. Prosecutors will look for cases where evidence raises “the probability that the inmate would’ve gotten a more favorable outcome, been convicted of a lesser crime or received a more favorable sentence if analyzed with the technology available today.”

His office has just completed reviewing 140 homicide cases, Clarke said. The team of three law students helping Weinreb and him are now reviewing sexual assault cases. So far, only two cases have been picked for DNA testing; both are rape cases, said Clarke.

U.S. Atty. Gen. Janet Reno has praised the prosecutors’ DNA Project and invited Pfingst to brief other prosecutors from across the country at a round-table discussion sponsored by the Justice Department in Washington.

Southwestern University School of Law professor Myrna Raeder said that with the advent of new technology it is not surprising that a prosecutor would offer free post-conviction DNA testing, which can cost up to $5,000 per test.

“It’s unusual in the sense that not many prosecutors have gone to these lengths to find cases of wrongful convictions. . . . Good prosecutors don’t want to convict the innocent, regardless of what your political persuasion is,” Raeder said.

Neufeld also praised the district attorney’s project, but the veteran defense attorney said he was disappointed by the small number of cases chosen thus far for reexamination.

“The requirement that a person has to maintain his innocence throughout is problematical. There are people who fall through the cracks because they are coerced to plead guilty or sign false confessions,” he said.

Irwin Schwartz, president-elect of the National Assn. of Criminal Defense Lawyers, was more critical, saying the prosecutors’ DNA project “strikes me as being political more than anything else.”

“If there was an outbreak of typhoid and there was enough serum to give everybody an inoculation,” he asked, “would you stand up and cheer a government employee who only gave it to two out of 140 people?”

Clarke believes that prosecutors have a duty to see that only the guilty are prosecuted and convicted. But Brooks said that some prosecutors have reacted angrily to the Innocence Project’s investigations.

“Locally, most have reacted very favorably. But outside the county, a surprising number have been extraordinarily rude, angry and by and large uncooperative. They say we’re only looking to open up an old case where they have gotten a conviction,” said Brooks.

Of the 10 defendants whose cases are under reexamination by the Innocence Project, one is a woman. All are serving life sentences for murder, robbery or rape, Brooks said.

One of the cases involves a Los Angeles man convicted of first-degree murder in 1977, based on his sister’s testimony. The woman now says that she and a male companion robbed and killed the victim.

The cases reopened by the district attorney’s office involve a man serving 41 years for raping two teenage girls. He denied committing one of the assaults.

In the other case, a man was sentenced to life plus 60 years for raping another male. Questions have been raised whether the semen evidence used to convict the defendant may have come from a third person or the victim, said Clarke.