Beyond DNA, Difficult Tests for the Justice System

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

After his 1992 arrest, Duke pleaded no contest to the charge of aggravated sexual assault so he could receive probation instead of jail time. (In the no contest plea, he did not admit guilt, but was found guilty by the court.) "I took that because I felt it was the only way out," he says. Instead, it was his way in.

As part of his probation, Duke underwent sex offender treatment, regularly meeting with a psychiatrist, but always refusing to admit guilt. In an Orwellian twist, prosecutors brought Duke back to court in 1997 and claimed he did not complete the treatment program. In effect, Duke violated the terms of his probation by not admitting to a crime he didn't commit. Duke took a Tuesday off work as a customer-service assistant at Eckerd to appear in court. He never returned to that job. The judge revoked his probation and saddled him with a 20-year prison sentence.

"And then I was in shock, 'cause it's unbelievable. All the sudden, you're not going back to work. It's kind of like boy, hmm, I didn't believe they did that to me, but they did," Duke says.

Brothers Robert and Gary Udashen take on the cases of prisoners they believe are unjustly behind bars.
Mark Graham
Brothers Robert and Gary Udashen take on the cases of prisoners they believe are unjustly behind bars.
District Attorney Craig Watkins and Russell Wilson, head of Watkins' Conviction Integrity Unit, are challenging the criminal justice culture.
Mark Graham
District Attorney Craig Watkins and Russell Wilson, head of Watkins' Conviction Integrity Unit, are challenging the criminal justice culture.

"It seems almost as if the purpose of the District Attorney's Office was to obtain convictions to keep people in prison," Duke's father, George, a retired accountant, chimes in. "I was about to admit that I would never see Dale again as long as I'm alive. I'm 87 years old. ... How long am I gonna hang around?"

In 1998, Duke's stepdaughter insisted that she lied when she told her aunt that he touched her inappropriately. Dallas criminal defense attorney Robert Udashen took Duke's case and filed a writ of habeas corpus claiming his innocence based on her changing her story. Though the director of the Dallas Children's Advocacy Center testified that the recantation was credible and no medical evidence of sexual abuse existed, both the Texas Court of Criminal Appeals and the U.S. Supreme Court upheld his conviction: Duke remained behind bars.

A decade later, Watkins took office and instituted an open file policy, making it easier for defense attorneys to obtain evidence from prosecutors. Udashen requested a review of Duke's case, and last March he caught a huge break. Prosecution files revealed that the girl's maternal grandmother, who died in 2006, had given a statement saying she believed the child was lying and that her aunt coerced her accusation. The statement, made before Duke's trial and previously unknown to Duke's defense attorneys, corroborated the recantation.

"That's really the only thing that changed," Udashen says, but it was enough for a new hearing in front of Judge Hawk, who declared Duke "actually innocent," meaning that with the new evidence, no reasonable jury would have found Duke guilty.

On November 4, as Duke made his way out of the courtroom flanked by his family, church members and a mass of reporters and photographers, Johnny Pinchback, the last Dallas County man to be exonerated before Duke, worked through the swarm and introduced himself. Duke had no idea who Pinchback was and was shocked when he handed Duke $200 to help him get back on his feet. "Nobody does that," Duke said. Pinchback joined Duke and his family at lunch and explained that he was freed from his own hell in May. At Pinchback's hearing, exonerees lined the perimeter of the courtroom and each gave him a handshake with money, but only Pinchback attended Duke's release. A reporter had told him about it the previous day, but since Moore, their usual source of information, left her post in the public defender's office, the exonerees' lines of communication were broken.

Just as a narrow set of circumstances landed Duke in prison, a whisper of evidence freed him. "If I had the exculpatory evidence back in 1998, Mr. Duke wouldn't have spent all these additional years in prison," Udashen says, "but I didn't have it, didn't know about it until this year." Prosecutors were required to turn over exculpatory evidence, Udashen says, but that didn't always happen. A conviction was a conviction; statements remained tucked inside files gathering dust.

"It's harder when you're just talking about testimony. ... DNA's easy. You have the scientific evidence to prove it," Udashen says. He and his brother Gary, president of the Innocence Project of Texas, are both partners in Dallas criminal defense firm Sorrels, Udashen & Anton.

"The DNA exonerations have sensitized everybody to the fact that there are a lot of innocent people in prison," says Gary Udashen. The brothers' firm has represented 11 exonerees. They buck the Dallas County trend in that most of their cases have not been rooted in DNA evidence, and they were successful with several exonerations even before Watkins took office.

"But I think the fact that you have all of these DNA exonerations, it makes the judges and prosecutors more sensitive to the fact that there are innocent people in prison and more willing to consider, in a particular case, that this defendant may be innocent even if you don't have DNA," Gary says. "Ten years ago if you asked people that, they would say, 'No, there's no innocent people in prison,' but everybody knows that now."

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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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Vengtoo

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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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