Project Seeks to Right Wrongful Convictions

Orange County prosecutors and public defenders have formed a novel partnership to determine whether prisoners have been wrongly convicted of crimes.

As part of the 2-year-old effort, 20 inmates, including rapists and murderers, serving lengthy prison sentences will have their cases reviewed to determine if they were wrongfully convicted in Orange County Superior Court.

The cases will be reexamined in May by a panel comprising two defense attorneys, a prosecutor and a law professor that will study the inmates’ claims of innocence. The lawyers will then decide which ones merit further investigation and possibly DNA testing.

While “innocence projects” have popped up around the country in recent years, the Orange County project is unique because it involves courtroom adversaries. It is the first in the nation in which defense attorneys and prosecutors work together to root out wrongful convictions, officials said.

Deputy Dist. Atty. Camille Hill, a member of the review board, said the 20 cases to be evaluated were chosen from 130 requests received by the Orange County district attorney’s office since the project was launched in 2000.

“The program is extremely important because we want to see justice done,” Hill said. “If we can free one innocent person, it will be worth the time and effort we’re putting into this.”

Another review board member, Assistant Public Defender Denise Gragg, is also upbeat. “The panel is set up to be as fair as possible,” she said.

But at least one legal expert is skeptical.

Jackie McMurtrie, a University of Washington School of Law professor who also heads the Innocence Project of the Northwest, finds it troubling that inmates are contacting Orange County prosecutors directly.

“My concern is that they could be revealing information that is confidential and would normally be revealed only to a defense attorney,” McMurtrie said.

Before the 20 cases were picked for review, the panel had considered only one other case, Hill said. It involved a man who served three years for a 1979 rape conviction and insisted he was innocent.

“He was living with the stigma of a rape conviction and wanted his name cleared. But the forensic evidence in his case had been destroyed. There was nothing we could do,” she said. There was no forensic evidence left that could determine his innocence or guilt with certainty.

Dist. Atty. Tony Rackauckas, Gragg, a second defense attorney and Chapman University School of Law professor Jeremy Miller make up the review panel.

“Our standard is ‘Do you feel wrongly convicted and is there scientific evidence that will exonerate you?’ We look at every review request that meets the standard,” said Hill, who heads the district attorney’s team of prosecutors that specializes in DNA cases.

The other requirement is that the inmate must have been convicted in Orange County and prosecuted by the district attorney, and it does not matter when the conviction occurred.

In 2002, local prosecutors mailed questionnaires printed in English and Spanish to each of California’s 33 prisons asking inmates convicted in Orange County if forensic evidence such as DNA or fingerprints existed that could prove their innocence. Hill said the district attorney received about 130 responses. Dozens more were rejected because they came from inmates prosecuted outside Orange County.

Because about 4,000 people are prosecuted in Orange County each year, Hill said she was surprised and reassured by the relatively small number of requests for review.

“We didn’t get the overwhelming response from prison that we thought we were going to get. But we’re not necessarily disappointed by that, because the response also suggests that the overwhelming majority of convictions were true convictions,” she said.

Gragg said prosecutors select the cases for review, but no reviewed case gets rejected without her and professor Miller’s approval.

“The first time I will get to see the 20 cases will be when we meet [in May]. I can ask for more time to review police and lab reports before making a recommendation. Some cases are obvious resolutions, but others will require more scrutiny,” Gragg said.

The idea for the program emerged almost three years ago when DeWayne McKinney was released from prison after serving nearly 20 years for a murder he did not commit. Seven months later Arthur Carmona was freed after spending more than two years in prison for armed robberies he denied committing.

About seven years ago, Kevin Green was freed after serving 17 years in prison for killing his wife. DNA testing showed that another man committed the murder. The killer was sentenced to death for raping and killing the woman.

The three men were prosecuted by the Orange County district attorney’s office, and their cases played a key role in decisions by the Orange County public defender and district attorney to launch independent innocence projects. The two were subsequently combined.

McKinney’s and Carmona’s cases did not involve DNA or other forensic evidence but hinged on witnesses. But it was DNA that freed Green, and DNA testing will play a leading role in most of the cases reviewed by the panel.

“The real message of DNA exonerations across the nation over the past 10 years is that the justice system makes more mistakes than we thought,” Gragg said. “Unfortunately, a lot of cases of wrongly convicted people don’t involve DNA, and we’re going to mostly review cases that deal with DNA.”

Miller, who like other panelists is volunteering his time, said that for once the state’s “limitless amount of money and resources” could be used to free an innocent man instead of convicting him.

“It would be great if 100 people who were convicted were factually guilty. But that’s not the case,” Miller said.

He said his hope is that if an innocent person in prison steps forward, “the forensic evidence we examine will make him a free man.”