Longform

Beyond DNA, Difficult Tests for the Justice System

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.

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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Leslie Minora