DNA Tests Prove Broward Man Innocent

Right here in Broward County.

No easy road to freedom. 26 years in jail. 41 now. He was 15 and a kid when he was locked up. Says the confession was coerced. Complains the police beat him. And a quarter century later he is proven right. Justice failed him. The courts, the cops, the prosecutors, his lawyers. Until Diane Cuddihy, eight years ago, said, 'Let's look at this again.' How do you return a life lost?

One more mistake to compound so many others our courts have made all across this country for so many years. You know, the numbers are becoming so great, the Innocence Projects should be federally funded under a stimulus package by the Federal Government. Instead, people are debating cuts in crime labs. Insane. Cutting? We should be adding.

This past week, DNA results were released in the case of Anthony Caravella, a mentally retarded man, who was convicted at the young age of 15, of raping and murdering Ada Jankowski in Miramar, Broward County, Florida. How many other innocents was in he in jail with? How many are still there never to be freed?

Thank the courageous Diane Cuddihy of the Broward Public Defender's office.

Thank the Innocence Project of Florida.

Diane Cuddihy says the DNA results mean "Anthony is innocent, it exonerates him."

The test, performed by a private lab in Richmond, Calif., eliminated Caravella as a potential source for the sperm found inside the Miramar victim’s body 26 years ago.

The test yielded the DNA profile of an unidentified male that could be checked against genetic databases to see if there’s a match with anyone on file.

The State convicted Caravella of stabbing the victim to death and raping her in the meantime, depositing his semen inside of her during the crime.

Their own lab, in 1983, identified sperm on a swab of material taken from the victim’s vagina. Now, 25 years later, Forensic Science Associates, one of the best private labs in the nation, found some sperm cells on a slide made from the same swab, extracted the DNA from those sperm cells and determined, conclusively, that the sperm could not have come from Anthony Caravella.
It means the defendant is not the perp. It is as simple as that, no matter how much the State may try to confuse the issue.

From a scientific standpoint, what is interesting is that when the local crime lab had a crack at this evidence, they got no DNA result. In fact, the Broward County Sheriff’s Office Crime Lab, didn’t even detect semen, despite the fact that lab analysts did see sperm on the tested vaginal swab in 1983.

Everyone in the local law enforcement community is baffled, but should any of us really be surprised at this point, asks the Innocence Project on its web site:

"Government-run crime labs just are not as good as independent private labs at getting DNA results in these challenging old cases. Maybe it is because the scientist is not as experienced. Or they did not painstakingly search on the slide for microscopically visible sperm cells. Or maybe they just don’t view the importance of the case in the same way as a private lab would. Who knows."

The Innocence Projects knows though that time and time again, private labs succeed where government-run crime labs have failed.

"What we do know," the Project has said, "is that when the prosecutor Carolyn McCann says that they need to review the methods of the private lab because the result doesn’t comport with what her lab found, while certainly necessary, she is really only trying to intimate that something is amiss in an attempt to delegitimize the perfectly legit results. The only thing that is amiss, is that we now know a guy has spent 25 years in prison for a crime he didn’t commit and no one, except his attorney, is trying to rip down the prison walls to free him."

Another important point about this case will be the focus of ongoing conversations about this case, is Mr. Caravella’s mental retardation (IQ of 67) and how that, combined with coercive and suggestive interrogation methods by law enforcement, led to what DNA results show was a false confession. False confessions contributed to a wrongful conviction in about 25% of the DNA exoneration cases nationwide.

One of those cases, that of Jerry Frank Townsend, makes this case more troubling because both are Broward cases, both involve law enforcement suggestively interrogating a mentally retarded person until they confess and using that false confession to close cases, and both cases may even involve at least one of the same law enforcement officers.

When Caravella is exonerated, he will be the 243rd DNA exoneree nationwide, the 11th in Florida, and the 4th in Broward County alone. 243 wrongful convictions so far. And more to come. How could we have been so wrong so often in so many places?

JAABLOG has covered this at this link http://jaablog.jaablaw.com/2007/09/04/pardon-our-appearance.aspx

So has the Herald- http://www.miamiherald.com/news/columnists/fred-grimm/story/1220123.html

and the Sentinel http://www.sun-sentinel.com/news/local/breakingnews/sfl-dna-caravella-b090309,0,258915.story

Speaking of the Innocence Project

Joshua Kezer, free today

On the heels of yesterday's piece about the Innocence Project of Florida challenging an execution in Florida, comes this story:

From today's Associated Press:

"After 17 years behind bars for a murder that a judge says he did not commit, a Missouri inmate, Joshua Kezer, left, walked out of a prison a free man. “This is the kind of stuff you dream about,” said Mr. Kezer, 34, who has been imprisoned since 1992 for the slaying of a 19-year-old nursing student in southeast Missouri. The judge, Richard Callahan of Cole County Circuit Court, ruled Tuesday that Mr. Kezer had been wrongly convicted in the death of the student, Angela M. Lawless. Prosecutors will not seek a new trial. The judge criticized the conduct of a prosecutor, who he said withheld several pieces of evidence."

If you are a juror today, if you assume that everything presented everyday by every prosecutor is without flaw or error, than read these stories...

http://thepostonreport.blogspot.com/2008/01/post-dispatch-story-about-joshua-kezer.html

http://www.talkleft.com/story/2008/12/5/205856/093

See also the release of the report on forensic flaws in the NY Times today:

http://www.nytimes.com/2009/02/19/us/19forensics.html?_r=1&th=&adxnnl=1&emc=th&adxnnlx=1235051303-V4eG518cRcw1DviVeQz/qw

Innocence Project Challenges Florida Execution

Today the Innocence Project of Florida (IPF) reiterated its intent to test the remaining DNA evidence in the case of Wayne Tompkins. Mr. Tompkins was executed on Wednesday, February 11th, in Raiford, Florida after being found guilty of murdering Lisa DeCarr in 1983.

IPF believes that further testing in the case could reveal that the body did not belong to the alleged victim, meaning Mr. Tompkins had been convicted of a murder that did not take place.“We have a remarkable case with Mr. Tompkins,” said Seth Miller, Executive Director of the Innocence Project of Florida. “The State supported this match between the body and the victim with a partial dental record, which was pretty unconvincing. But on top of that, several people have signed affidavits saying that they’ve seen her alive since the murder. If that’s the case, then Florida just killed an innocent man.”

If it were found that Mr. Tompkins was innocent of the 1983 murder, it would be the first case in American history of an executed man being scientifically proven innocent posthumously. In 2000, though, Frank Lee Smith was exonerated by DNA testing 11 months after he died of cancer on Florida’s Death Row.

“These agencies need to know we’re serious about going forward with testing, and we want to make sure they are preserving all of the evidence pursuant to Florida law,” said Miller. “If the State Attorney is convinced that Mr. Tompkins was guilty, they should support testing to put the doubts to rest."

Short blog on this issue. As a society, we do not want killers to go free. Nor do we want innocent people to be killed. It is that simple. But what have we learned, sadly? The faces of exoneration are many. We have discovered through the Innocence Projects nationally that too often we have criminally prosecuted the wrong person and incarcerated an innocent man. We have thus set justice back. It may not be what we intended, but in our rush to feverishly prosecute, we have instead wrongly persecuted. Injustice has been the only victor. We are all losers as a result, not just the man wrongly sentenced.

See also

http://browardlawblog.blogspot.com/2009/02/was-executed-convict-innocent.html

Justice Comes Too Late

Long time defense attorney David Smith shared this piece off AOL last nite, which should be required reading for any prospective juror on a criminal prosecution.

Calling it "the saddest case" he'd ever seen, a judge exonerated late inmate Timothy Cole, pictured here to the right, who was convicted of rape in 1985. DNA evidence helped clear Cole -- and pointed to Jerry Wayne Johnson instead. This was the first case in Texas history where DNA cleared someone who had died in prison, said the Innocence Project, handling the matter.

But why the man died in prison opens up a whole new story. He refused to ever admit to the crime or take a plea. He stood his ground and maintained his innocence.

Cole was convicted of raping a Texas Tech University student in Lubbock in 1985 and was sentenced to 25 years in prison. He died in 1999 at age 39 from asthma complications.
DNA tests in 2008 cleared him posthumously. Johnson testified in court Friday that he was the rapist in Cole's case and asked the victim and Cole's family to forgive him.

"I'm responsible for all this. I'm truly sorry for my pathetic behavior and selfishness. I hope and pray you will forgive me," Johnson said.

Cole had refused to plead guilty before trial in exchange for probation, and while in prison, he refused to admit to the crime when it could have earned him release on parole.
Cole's family now wants Gov. Rick Perry to issue a formal pardon.

As David Smith noted, "No we do not want guilty persons going free. Nor do we want innocent people being found guilty." Jurors should be reminded that mistakes are made, mistakes are indeed made. Ask the Cole family. Read the compelling three part story from Lubbock online below.

http://www.lubbockonline.com/stories/062908/loc_297196667.shtml

see also this story from the NPR

http://www.npr.org/templates/story/story.php?storyId=100249923

Science Report Exposes Fatal Flaws in Forensics

Here is an article for the criminal justice community. This piece is entirely the work of a talented Houston, Texas, lawyer by the name of Paul Kennedy, who has a blog of his own, entitled 'The Defense Rests.' Not to mention he coaches youth soccer. Again, surfing the Internet and seeking out information for this blog, I come across a wealth of legal bloggers whose insights are worth sharing. I am happy to present them here on the Broward Law Blog. Here is Paul's piece based on the Times article. N.K.

According to the New York Times, a report to be issued this month by the National Academy of Sciences will be a "sweeping critique" of many forensic methods, such as fingerprint analysis, firearms identification, bite mark and blood spatter analysis, used in crime labs across the country.

According to a draft copy of the report, these analyses often are conducted by poorly trained lab workers who then testify to exaggerated accuracy of their methods. The report will call on Congress to establish a federal agency to ensure the independence of forensic analysis, most of which is conducted in labs under the control or authority of law enforcement agencies.

I'm sure that every defense attorney in the country is waiting for this report to come out. There are going to be challenges to fingerprints and firearms evidence and the general lack of empirical grounding. It's going to be big.

The F.B.I. had to shutter its bullet identification program after the pseudo-science behind the analysis was discredited. The F.B.I. was forced to notify hundreds of citizens who may have been convicted wrongfully as a result of the "evidence."

The Innocence Project turned over the results of a study performed on the trial transcripts of 137 convictions that were later overturned. In 60% of those cases, false or misleading statements were made regarding blood, hair, bite mark, shoe print, fiber and fingerprint analysis.

According to Stanford University scientist Donald Kennedy, who helped choose the authors of the report, the National Institute of Justice, the research arm of the Department of "Justice," refused to finance the study -- because they knew what it would conclude. Congress later voted to provide $1.5 million to fund the project.

"My hope is that this report will provide an objective and unbiased perspective of the critical needs of our crime labs." -- Sen. Richard Shelby (R. Alabama)Here are a few examples of the sad state of forensic scientific analysis:
The H.P.D. Crime Lab was shuttered due to a series of scandals. An independent auditor authored a report in 2007 severely criticizing the practices and procedures followed by the lab.

Dee Wallace, a contractor with the Texas D.P.S., who testified in support of the state's breath test program falsified documents regarding maintenance work she never performed on the machines under her control.

The Galveston County District Attorney's Office recently had to mail out notices to over 2,000 citizens whose DWI convictions may have been tainted by Ms. Wallace's criminal acts.

Concludes Kennedy on this blog:
"As long as forensic analysis is conducted at "crime labs" operated by law enforcement agencies, there will be pressure on analysts to make their findings and conclusions fit the "facts" as determined by the police. Until these labs are divorced from law enforcement, their findings and conclusions will be under suspicion."

Just as attorney Joel Beck here in Fort Lauderdale uncovered some questionable practices with Ice Cold Air in their certification of the speed of police cars, so too have a wealth of prominent law firms locally exposed faulty Intoxilyzers or defects in different equipment used as methodologies to prosecute and convict defendants. We all must be alert for these all the time. Good job here by Mr. Kennedy.