Posted: February 23, 2007 12:00 AM
The Innocence Project recently concluded a preliminary review of its closed cases from the last 10 years. Initial findings show that 32% of all closed cases were closed due to reports that evidence had been lost or destroyed. (In New York City, the problem is even more widespread; 50% of closed cases were the result of claims that evidence was lost or destroyed.) When the Innocence Project closes a case, efforts to prove a prisoner’s innocence through DNA testing end – because no evidence can be located for DNA testing, despite repeated searches that usually last several years. The cases below are just a few examples of instances where evidence was uncovered despite long-running claims that it was lost or destroyed, and the evidence was eventually subjected to DNA testing that proved innocence.
Calvin Johnson of Georgia: Evidence is saved from a courthouse dumpster.
In March of 1983, Calvin Johnson was detained by police regarding two rapes. The attacks took place two nights apart and both victims were white women who said their attacker was an African American man. Johnson became a suspect because local police believed the two rapes had a similar modus operandi that was consistent with a 1981 rape Johnson had been charged with (though this charge was dead-docketed by the prosecutor after Johnson pled guilty to a robbery). Johnson was identified by both victims in separate identification procedures. He was convicted of one of the rapes and in 1983 he was sentenced to life and two terms of 15 years running concurrently. He was acquitted of the other rape several months later, though evidence of his first conviction was presented at the second trial.
After several failed appeals, Johnson contacted the Innocence Project in 1994 and a search began for evidence which could be subjected to DNA testing. At the time of his conviction, the practice in Clayton County, Georgia, was that the court stenographer would keep all evidence entered as an exhibit at trial. While Johnson was still in prison, the court stenographer from his case retired. Before leaving, the stenographer was told to throw away all of the old evidence that he had been storing in his closet. A District Attorney noticed the boxes of evidence in a parking lot dumpster outside the courthouse, and decided they should be preserved. Johnson’s evidence was among the boxes pulled from the trash. The Innocence Project was able to locate the DA and the boxes of evidence he saved from the courthouse dumpster. In 1998, a vaginal swab and cervical slides from the rape kit were subjected to DNA testing, and the results concluded that Johnson was not the source of the sperm found in the rape kit. In 1999, Calvin Johnson was exonerated after spending 16 years in prison.
Dennis Maher of Massachusetts: Evidence disappears after trials for three rapes, only to be located years later and prove his innocence.
In Dennis Maher’s case, evidence that was thought to be lost forever was eventually found after an exhaustive search in Middlesex County, Massachusetts.
In the fall of 1983, two women were attacked in the same area of Lowell, Massachusetts. The first victim was raped and the second victim managed to escape her attacker, who was attempting to rape her. Police questioned Maher because the clothing he was wearing at the time matched the second victim’s description. He was charged with both attacks and an unsolved rape in Ayer, Massachusetts from the previous summer. No biological evidence tied Maher to any of the cases and the prosecution relied mainly on the photo line-up identifications made by the victims. He was sentenced to life in prison.
Maher first contacted the Innocence Project in 1993, and attorneys began searching for evidence in the cases. After more than seven years of searching, a law student located two boxes of evidence in the basement of the Middlesex County Courthouse in 2001. DNA testing on this evidence excluded Maher as the contributor of sperm in the Lowell cases in 2002. After these tests, prosecutors were able to locate a slide from the rape kit of the Ayer attack. DNA testing also excluded Maher as the contributor of the sperm in that case. In April 2003, Dennis Maher was fully exonerated after serving 19 years of his sentence.
Kevin Byrd of Texas: Evidence is “mistakenly” taken off of a list of items to be destroyed, in compliance with county policy, and eventually exonerates him.
In order to save space, it was the policy in Harris County, Texas, to throw away evidence from cases in which appellate courts have upheld the convictions of lower courts. In compliance with that policy, some of the evidence from Kevin Byrd’s case was, in fact, destroyed.
Byrd was convicted of raping a pregnant woman at knifepoint in 1985 while the victim’s infant daughter slept next to her. He received a life sentence. The victim initially claimed that her assailant was a white man. Byrd is black. However, the victim encountered Byrd by chance in a supermarket four months after the rape and identified him as the man who had attacked her. Despite the inconsistency, Byrd was tried, convicted and sentenced to life in prison. Following his conviction, the trial judge wrote a letter to the local chief of police, criticizing the investigation that led to his arrest and conviction.
In 1994, evidence from Byrd’s case was one of many that were slated to be destroyed.Before destruction, the clerk submitted a list of cases to the District Attorney's office, so they could cross out cases where they wanted evidence preserved. Perhaps by sheer chance, they drew a line through Byrd's case and the evidence was saved. To this day, the prosecutors are unsure why they chose to retain the semen sample, and note that it would have been perfectly acceptable, per their guidelines, to have thrown out this crucial piece of evidence in 1994.
In July 1997, DNA tests on the semen sample proved that Byrd was not the source of the semen connected to the rape. The District Attorney, a local sheriff and the judge who had presided over Byrd’s initial trial petitioned the governor of Texas for his release. George W. Bush, then the governor, released Byrd that month and issued him a pardon later that year.
Marvin Anderson of Virginia: A lab analyst violates policy to save evidence, which proves his innocence (and also exonerates several other men) years later.
The DNA evidence connected to Marvin Anderson’s case was slated for destruction in order to save space. In 1982, Anderson was convicted of robbery, abduction, forcible sodomy, and two counts of rape in Virginia. He was sentenced to 210 years.
In 1982, a young white woman was accosted by a black man and raped. Anderson came under police suspicion because the crime’s perpetrator allegedly told the victim that he “had a white girl,” and Anderson was the only black man the investigating officer knew who lived with a white woman at the time. A color picture of Anderson, who had no prior criminal record, was added to a black and white photo lineup from which the victim identified him as her attacker. She also identified Anderson in a lineup in which he was the only person whose picture she had already seen. From the early stages of the investigation, suspicion among local community members centered on another black man named John Otis Lincoln. Lincoln confessed in 1988, but the original trial judge refused to vacate the charges against Anderson, citing his personal belief that Lincoln was lying in his confession.
Anderson contacted the Innocence Project in 1994. For several years, the police, prosecutor, and the court maintained that the rape kit had been destroyed. A special search in 2001 by Dr. Paul Ferrara, Director of the Virginia Division of Forensic Science, revealed that Mary Jane Burton, the state lab analyst who had performed the conventional serology tests in Anderson’s case in 1982 had broken lab protocol. Instead of returning the slides containing semen samples to the rape kit, she had scotch-taped them into her laboratory notebook. This mistake in procedure saved vital evidence in Anderson’s case from being destroyed. Results from DNA testing on the samples in Burton’s notebook excluded Anderson, and he was exonerated in 2001. Anderson spent 15 years in prison and four years on parole for a crime that he had no involvement in and was only able to prove his innocence thanks to Burton’s decision to violate state policies and save the evidence.
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