Beyond DNA, Difficult Tests for the Justice System

Freeing the wrongfully convicted through science was the easy part. Now what?

Beyond DNA, Difficult Tests for the Justice System
Mark Graham

The scene this mid-November night felt more like a clip from Leave It To Beaver than Law and Order. Dale Duke sat with his elderly parents eating dinner in their quiet Dallas home. A crystal vase of red roses decorated the dining room table; soft classical music played in the background. The family dressed neatly and spoke comfortably. The routine felt deeply rooted, but on this particular rainy night the conversation centered on the last 14 years Duke had spent in Texas prisons, the legal missteps that landed him there and how he might have never shared dinner with his parents again. The family had been reunited 11 days earlier after District Judge Susan Hawk declared Duke innocent of sexually assaulting his 7-year-old stepdaughter in 1992.

Since Dallas County District Attorney Craig Watkins took office in 2007, incidents of wrongfully convicted men being released from Texas prisons have become almost commonplace. Dramatic scenes of innocent men finally walking free from county courtrooms are like nectar to reporters, who churn out stories praising Watkins' creation of his office's Conviction Integrity Unit, established in 2007 to review potential wrongful convictions. While most of these stories mention DNA testing and the fact that, unlike most counties, Dallas stored DNA evidence indefinitely, Duke's case was different. Out of 17 exonerations in Dallas since 2007, his was one of only four cases without biological evidence, according to data from the Center on Wrongful Convictions at Northwestern University School of Law.

When Watkins became the county's top prosecutor, he faced a backlog of about 500 cases involving DNA evidence that had previously been denied testing and that would, in many cases, prove guilt or innocence. In the first couple years of the Conviction Integrity Unit's existence, DNA-based exonerations rolled out every few months. Most were old sexual assault cases in which semen from a rape kit was still available for modern-day tests. "The classic 'DNA case' is a stranger-on-stranger sexual assault. Nothing connects the defendant to the crime except for eyewitness ID obtained through questionable procedures, and the sexual assault kit is preserved years later," says Mike Ware, who led the Conviction Integrity Unit from its inception until this summer.

Dale Duke, one of the dozens of wrongfully convicted men freed from prison in Dallas County.
Mark Graham
Dale Duke, one of the dozens of wrongfully convicted men freed from prison in Dallas County.
Johnny Pinchback, one of the dozens of wrongfully convicted men freed from prison in Dallas County.
Mark Graham
Johnny Pinchback, one of the dozens of wrongfully convicted men freed from prison in Dallas County.

After Ware resigned to return to private practice in Fort Worth, Russell Wilson, another long-time criminal defense attorney, took his place. Watkins' first assistant, Terri Moore, also resigned this summer, and Michelle Moore, the public defender who worked with Watkins' office on exonerations, left in October to help open a public defender's office in Burnet County. Duke's case was the first exoneration under the unit's new leadership.

With all of the changes, Michelle Moore worries that the unit's gears are sticking and cases that could be moving forward more quickly are stalled. "I think I see the tendency now to be overly cautious and it's to the detriment of the innocent man," she says.

"I get that sometimes it's not as clear-cut as a simple DNA test, because that's a gold standard, but there are cases ... where there should be some things happening," she says, though she wouldn't mention any specifically, fearing they would take even longer. "[Russell Wilson] is a very well respected attorney; he's the nicest man on the planet. I just want to see more action," Moore says.

Granted, she concedes the system would naturally slow down as the DNA cases thin out and the question of guilt or innocence becomes thornier and more subjective. "I'll be honest with you: We took the easiest cases first, the ones we could prove definitely by DNA testing," Moore says, but she's still concerned that the Conviction Integrity Unit is simply not visiting prisoners, administering polygraphs and calling victims as expediently as it once did.

In the meantime, the sheer number of DNA exonerations — and the efforts to uncover how the courts failed so miserably — have revealed troubling gaps in the criminal justice system: Eyewitnesses are more fallible than jurors might think; forensic evidence isn't always reliable or interpreted correctly; the way police run lineups can lead to wrongful convictions. The trouble is, those problems may just as easily plague cases in which no DNA exists. Modern science has shown the justice system the tip of the iceberg, but how many innocent men and women are suffering in prison and likely to stay there because they have no evidence to test? Where do law enforcement and innocence advocates, faced with sorting out the guilty and innocent, go from here?

"There's been a strong shift," Wilson says. DNA-based cases are still filtering through his office, but for the most part, he says, "the newer cases are non-DNA. ... It's a lot more fact-intensive."


Duke, 61, says he's been sleeping in and "goofing off" since being released from prison and moving in with his parents — a far cry from his long days in a gray jumpsuit, waking up at 4 a.m. and stacking trays in a prison chow hall. Despite his years on the inside, Duke talks with a childlike lightness, always more faithful than resentful. His only regret is marrying a woman, now his ex-wife, whom he met on a bus and wed four months later in 1987, when she was 22 and he was 36. The marriage was troubled. The accusation he assaulted his wife's daughter came after the couple separated.

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20 comments
Toni Bugg
Toni Bugg

Even if someone that was Wrongly Convicted is finally Exonerated & ends up being compensated financially, where does that compensation justify all the time that was stolen from an innocent person? Texas pays out $80,000 per year of incarceration, when it should be 1 million at the least.

Grace Means
Grace Means

There was no DNA in the case of my son, (1981) he, a friend and a white girl was in the Black area smoking marijuna. The cops stopped him and told her to say that they raped her (twice each) or she would go to jail for drugs. Of course, she said that they raped her; they did take her to Parkland where the doctor (white doctor) from the hospital came to trial and said that the person had no secretion, no scratches, no foreign hairs, and no sign of sex...still one white juror hung the jury. The DA promised the other boy (who had no record and visiting here from Detroit) to roll over on my son and he could go back to Detroit on probation, where my son had misdemeanors. After 7 months being held downtown with no release he decided to say that they had; with the help of his lawyer, he plea bargained. I have tried so hard to get help from the Innocent Project and without DNA, they closed the case. I need help and after all these years we are still fighting this case...He was 18 then and now he is 52...Nothing is ever done to the Eye Witness or the Police that made the original charges on any of the Proven Innocent.

Bruse Wane
Bruse Wane

I am currently working with a highly respected Private Investigator on a NON-DNA related Exoneration Case similar to some of the findings in the article. A very compelling case that need some immediate attention. Could someone point me in the right direction? my email is antong_lucky@yahoo.com Thanks in advance!

Guest
Guest

Hard to believe that a guy like Bradley, who helped a murderer stay free for six years by opposing DNA testing in the Morton case, would talk about non-DNA cases being open to manipulation.

Given that he had evidence in his files for over twenty years (Bradley joined the Williamson Co DA's office in 1990, at which time he began opposing Morton's release. He had access to exculpatory evidence that was never turned over by his then-boss, but he made no attempt to correct the record until over 20 years later when he couldn't hide anymore) that should have been turned over at Morton's trial and he expressly worked to protect a man who murdered at least two people from having to face justice, he's very clearly a master manipulator himself.

I don't know why John Bradley worked so hard to make sure Mark Alan Norwood stayed free. You'd think a DA would rather put a murderer in prison, but I guess that's not how Bradley rolls.

Texasdave60
Texasdave60

congrats on the cover, Leslie....I am scared to death to tell my story of how Im being screwed by the TDCJ Parole folks, yet I'd like to talk with you about it since you have the guts to explore. Thanks. email for phone number.

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ralphost
ralphost

You wanted you got a police state. All those cleared with dna show the percentage of wrong convictions. both with and without dna. Locked up for brownie points by the cops and the DA.

Show me one DA who will admit he has ever been wrong. Then think how many times you have had to change your mind on your job.

It a bad driver damn it was the hard drive failing. Except someone gos to jail life forever ruined.Even when fixed not one day can be returned. The hardest thing in life to do should be to put a man in jail.

Not the easiest like it is now.

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TDKS FBT
TDKS FBT

Don't they usually get tons of money once freed?

hdmi
hdmi

There will be more and more cases like this throughout the country. I hope DNA finally frees those that are innocent. I feel for these men because they have to rebuild their lives again at no fault of their own.

Justice before glory
Justice before glory

Toby Shook was one of those 'win at all costs' prosecutors. His only interest was getting featured on another episode of American Justice. His cases should be examined closely for examples of prosecutorial misconduct.

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james
james

prosecutors are required to turn over ...evidence but they don't always....those prosecutors are guilty of crimes and they should do the time they caused to be done.if you were my prosecutor and i was wrongly convicted and did 20 years being brutalised and raped...do you think i might think you owed me...everything....

Grace Means
Grace Means

Bruce exactly what are you trying to do? I also need help with a NON-DNA case of Exoneration...Michelle Moore admitted clearing the easier cases with DNA...those that were just set up and left out there with a terrible record and no options of freedom.

Sheila Berry
Sheila Berry

No, they don't get tons of money. Only 27 states have compensation for the wrongly convicted; most of them have caps on how much a person can get and place numerous roadblocks in the process. Most exonerees cannot sue because the prosecutors who put them in prison are immune from civil lawsuits.

MM
MM

What price do you place on not being able to watch your children grow up, never spending another day with your mother, or facing the fear of being shanked or raped every day in prison when you are an innocent man?

 
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