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Proven Innocent by DNA, Roy Brown Is Fully Exonerated

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Case Highlights Need for NY Innocence Commission

At court hearing today, D.A. says Brown is innocent and will not face retrial;
Brown is 8th DNA exoneration in NY in just over a year, 196th nationwide since 1989

(CAYUGA COUNTY, NY; March 5, 2007) – Roy Brown, who spent 15 years in New York prisons for a murder he did not commit and ultimately solved the crime himself from his prison cell, was fully exonerated in state court today. According to the Innocence Project, which represents Brown, he becomes the 196th person nationwide – and the eighth New York man in just over a year – exonerated through DNA evidence.

DNA test results prove that Brown is innocent – and that, instead, the murder was likely committed by Barry Bench, a man who killed himself three years ago after Brown wrote to him to say he had uncovered evidence that Bench was the actual perpetrator. In January 1992, Brown was convicted of murder and sentenced to 25 years to life in prison, where he remained until his conviction was vacated several weeks ago. At today’s court hearing, Cayuga County District Attorney James Vargason – who prosecuted Brown 15 years ago – announced that Brown will not be tried for the crime again, which officially exonerates him.

“We have proven, beyond any doubt, that Roy Brown is innocent. Today, his name is officially cleared and he can move on, fully exonerated and finally free,” said Peter Neufeld, Co-Director of the Innocence Project. “We would all do a grave disservice to Roy, to the victim of this crime and to the entire community if we do not learn from this case. Every time someone is exonerated, people wonder how the miscarriage of justice happened in the first place and what we can do to prevent it from happening in the future. We need an Innocence Commission in New York State to look into these questions, and we need it urgently.”

Noting that Brown is the eighth person in New York State proven innocent through DNA in just over a year – and the fourth in a year whose case involved police or prosecutorial misconduct – the Innocence Project said New York needs an Innocence Commission to examine wrongful convictions, learn what caused them and recommend steps the state can take to prevent them in the future. Similar commissions, comprised of experts from across the criminal justice community, have been formed in North Carolina, Pennsylvania, California and other states.

“How many more wrongful convictions will it take for New York to begin addressing the systemic problems that lead to such miscarriages of justice? It’s particularly troubling that several recent cases from all corners of New York State involve police or prosecutorial misconduct,” Neufeld said. Brown’s case raises key issues that a commission could address – including reliance on unvalidated scientific analysis, the exploitation of jailhouse informants, and prosecutorial misconduct.

The centerpiece of the prosecution’s case against Brown was so-called “bite mark” analysis (in this case, comparing Brown’s teeth to several bites on the victim), which is among the least validated forensic disciplines. All the bite marks in Brown’s case were consistent and assumed to come from one perpetrator, but only one of the bite marks had sufficient detail to reliably compare it to Brown. That bite mark came from a person whose upper front six teeth were all intact, whereas Brown was missing two of those six teeth. The District Attorney handling the case before the trial, Paul Carbonaro, found a local dentist who was willing to conclude that notwithstanding this obvious disparity Brown could have left the bite mark. Carbonaro then sought to buttress his case by retaining the services of Lowell Levine, the state’s leading forensic dentists. But when Levine told Carbonaro that Roy Brown was not the biter, Carbonaro ordered him to return the evidence at once and dispense with writing a report. Fifteen years later, after DNA testing on the saliva stains left by the biter/perpetrator excluded Brown and matched Bench, the judge in the case (who retired several weeks ago) refused to release Brown, citing how much he was impressed by the local dentist’s testimony at the original trial. Two months ago, Vargason retained Levine to reexamine the bite mark evidence in the case. In a January 22, 2007, report, Levine concluded that Bench could have been the source; in a supplemental report on March 2, 2007, he formally reiterated what he told the prosecutor 15 years ago: Roy Brown is not the source of any of the bite marks.

“Roy Brown’s case is simply the latest in a string of wrongful convictions which were premised on bite-mark evidence – only to be set aside many years later by exculpatory DNA testing,” Neufeld said. “Already, this case is profoundly impacting forensics nationwide. Just last week, at a national conference of the American Academy of Forensic Science, one of the pioneers in bite-mark analysis after learning of Roy’s case called for a committee to reexamine old cases where incorrect bite-mark analysis may have led to other wrongful convictions.”

Brown was convicted of stabbing and strangling Sabina Kulakowski, who was assaulted, bitten in several places, and dragged several hundred feet from the farmhouse where she lived. Brown always maintained his innocence, and a decade after he was convicted he began using the state’s Freedom of Information Law to try to solve the crime. In 2003, Brown wrote to the Sheriff’s Department to request a copy of a “hidden” police statement that he thought a jailhouse informant had given at the time of his trial. No such statement was found, but (pursuant to the law) a clerk sent Brown a list of all other police statements in his case – a list that included 11 affidavits that Brown and his trial attorneys had never seen. Four of the newly discovered affidavits caused Brown to suspect that a man named Barry Bench, whose brother was the victim’s boyfriend for 17 years until shortly before the murder, was the actual perpetrator. With no money to hire an attorney, Brown represented himself in a motion to overturn his conviction based on the new evidence, but he lost. On December 24, 2003, he wrote a letter to Bench – confronting Bench with evidence of his guilt, and telling Bench that he was going to seek DNA testing that would prove Bench committed the crime. Five days after the letter was mailed, Bench committed suicide by lying down in the path of an oncoming Amtrak train.

“Armed only with a notebook, stamps and a copy of the state’s Freedom of Information Law, Roy Brown identified the true perpetrator from a prison cell in Elmira, New York,” said Nina Morrison, staff attorney at the Innocence Project, which is affiliated with Benjamin N. Cardozo School of Law at Yeshiva University in New York. “Roy is relieved to finally have his name cleared, and he is pleased that the District Attorney finally acknowledged that he is innocent. Roy has begun the slow, difficult process of rebuilding his life while dealing with serious health problems that only worsened while he was wrongly incarcerated.”

In 2004, the Innocence Project took Brown’s case and sought DNA testing on several pieces of evidence. DNA tests on seven saliva stains on the victim’s shirt (several of which correspond with areas where she was bitten during the murder) all excluded Brown as the perpetrator – and all pointed to a single, then-unidentified male. The Innocence Project then worked with Bench’s daughter to obtain a DNA sample that could be compared to the profile from the victim’s shirt – and testing revealed that her father, Barry Bench, was the source of the saliva on the shirt. Bench’s body was then exhumed for DNA testing, which confirmed that he was the source.

In addition to Neufeld and Morrison of the Innocence Project, Brown is represented on a pro bono basis by Katy Karlovitz and James McGraw of the McGraw Law Firm in Syracuse. Mr. McGraw represented Brown at his original trial, and, convinced of Brown’s innocence, has continued to volunteer his firm’s services to clear Brown’s name. Alicia Ekland and Ryan Singer, Cardozo School of Law clinic students, also worked on Brown’s case at the Innocence Project.

According to the Innocence Project, 196 people in 32 states – including 21 in New York – have been exonerated through DNA testing. In more than one-third of the DNA exonerations nationwide, DNA also helped identify the true perpetrator.