Posted: January 29, 2007 12:00 AM
Motions to vacate convictions filed in two Cleveland cases today; 2001 exoneration led to an audit, which uncovered convictions based on fraudulent testimony
(CLEVELAND, OH; January 26, 2007) - New DNA tests show that two men's convictions for a 1997 murder were based on fraudulent testimony from a City of Cleveland forensic analyst - whose false testimony also wrongfully convicted another man who was exonerated in 2001 and led to an audit of cases covering a 16-year period that revealed serious problems in at least a half-dozen convictions - the Innocence Project said today. In legal papers filed today, the Innocence Project and the Ohio Innocence Project asked state courts to vacate the convictions of Thomas Siller and Walter Zimmer.
"DNA proves that these men were convicted based on false evidence. A forensic analyst working for the prosecution, who has since been fired because of proof that he engaged in fraud and misconduct leading to at least one other wrongful conviction, committed perjury in this case that directly led to these men being convicted. These convictions must be vacated because we now know, through DNA, that both the forensic analyst and the state's star witness were lying - and their testimony is what convicted both men," said Barry Scheck, Co-Director of the Innocence Project. Siller is represented by the Innocence Project (which is affiliated with Cardozo School of Law at Yeshiva University) and Cleveland attorney Terry Gilbert; Zimmer is represented by the Ohio Innocence Project.
The case stems from a June 1997 beating of an elderly woman in Cleveland. Jason Smith was charged with the crime based on fingerprint evidence, but the following year he pled guilty to lesser offenses and received a three-year sentence in exchange for testifying that Siller and Zimmer beat the woman. Siller and Zimmer were found guilty of attempted murder in 1998, and after the woman (who was in a coma) died, they were tried and convicted of murder in 2001.
At roughly the same time the Zimmer and Siller cases were proceeding, an unrelated case exposed serious problems with the analysis and testimony of Joseph Serowik, a forensic analyst for the city. Anthony Michael Green had been convicted of rape and robbery in Cleveland in 1988, and he was exonerated in 2001 when DNA proved his innocence. His subsequent civil lawsuit against the City of Cleveland revealed that Serowik falsified forensic tests and lied when testifying for prosecution in Green's case. The civil lawsuit also showed similar misconduct in Serowik's work on other cases in Cleveland. As part of a settlement agreement with Green, the city began an audit of 16 years of cases to determine whether misconduct led to other wrongful convictions. Serowik was subsequently fired. The audit raised questions about the Siller and Zimmer cases, leading to DNA testing that now shows Serowik provided false testimony against both men. In particular, Serowik said there was only one small bloodstain from the victim on Smith's pants - bolstering the prosecution theory that Siller and Zimmer, not Smith, committed the crime - when, in fact, there were eight such stains, proving that Smith's entire account of the crime was false.
"There are only two possible explanations for what happened in this case: Either Serowik never conducted the tests that he said he did, or he conducted the tests and lied about the results. Whichever it is, Joseph Serowik committed perjury on behalf of the state about the fundamental questions that led to Siller and Zimmer's convictions," said Colin Starger, Staff Attorney at the Innocence Project. Since false testimony from a state agent - particularly as it pertains to the primary basis for a conviction - the new evidence far surpasses the legal threshold for vacating both men's convictions, the Innocence Project and the Ohio Innocence Project said in motions filed today in both cases.
In its motion to vacate Siller's conviction, the Innocence Project notes that Serowik's false testimony in the Green case "reflected a willingness by Serowik to make up data when he thought it would advance the prosecution's case" and that Green's civil lawsuit against the City of Cleveland "show Serowick's misreporting of data was not a one-time mistake or accident."
In and of itself, the presence of eight blood stains on Smith's pants raised "grave questions" about the case, since Serowik had testified that there was no additional blood on the pants, the Innocence Project says in the motion filed today. Subsequent DNA results showing that all of the blood is from the victim "plainly confirm" that Serowik provided false testimony in the case - and implicate Smith himself, whose plea deal with prosecutors not only spared him the possibility of execution, but sent him to prison for just three years.
"Blood on Smith's pants was not a minor detail in this case - it is central evidence, about the central question of who committed this crime. It's clear from trial transcripts that this is the evidence the jury focused on most, with jurors actually asking Serowik what testing he performed. After the jury asked questions, Serowik was sent back to conduct additional analysis, which he obviously either didn't conduct or lied about," Starger said.
According to the Innocence Project, 194 people in 32 states - including six in Ohio - have been exonerated through DNA testing. In more than one-third of the DNA exonerations nationwide, DNA also helped identify the true perpetrator.
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