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.

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.

"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."

Of 78 exonerations in Texas, 34 (including Duke's) came from Dallas County, including 16 before Watkins took office in 2007, according to the Center on Wrongful Convictions, which maintains data dating to 1989. From 2007-2008, there were eight DNA-based exonerations in Dallas County; in 2009, there were three DNA-based and two non-DNA; in 2010, there were no DNA-based and one non-DNA; and in 2011, there were two DNA-based and one non-DNA (Duke, who is not yet included in the referenced database).

Nationwide, there have been more than 800 exonerations since 1989, a majority of which are non-DNA cases. Since DNA evidence was stored indefinitely in Dallas County and Watkins has been actively pursuing DNA cases, Dallas, with a sweeping majority of DNA-based cases, is out of step with the nation.

Initially, the Conviction Integrity Unit "strictly dealt with cases where there was DNA," Watkins says. As the unit evolved, it became more obvious that the problems that caused wrongful convictions were more widespread. "DNA was just the tip of the iceberg, which opened up Pandora's box," Watkins says. "Now we have that level of credibility where we can step outside of the scientific side of it."

To keep the unit functioning, Watkins says he must remain aware of the politics surrounding exonerations. He's been criticized for simply putting a name, the "Conviction Integrity Unit," on a process that should be standard for all prosecutors: seeking justice. He's been criticized as basking in the media spotlight — a reality show, Dallas DNA, took audiences through the process of deliberation, DNA testing and results. (Not always exoneration. Many of the cases Watkins' office has tested confirm guilt.)

What his critics ignore is Dallas County's reputation as a place where prosecutors aimed to convict at all costs. Changing that culture in a conservative, law-and-order minded place like Dallas is difficult. What his critics see as media whoring could just as easily be considered the sort of necessary publicity to change the political culture and — not coincidentally — keep Watkins in office. Watkins, a former criminal defense lawyer, Texas' first black district attorney and the first Democrat to win the Dallas office since 1986, took a political gamble in establishing the unit. As non-DNA cases increasingly become the unit's focus, the stakes grow higher as the cases lose the protective hedge of objective, science-based evidence. "I'm sure the day will come when there will be political fallout as the result of a decision we make to exonerate someone with no science. That's inevitable. That will happen," Watkins says. But as Duke and others can attest, it's a risk Watkins is willing to take.

"I look forward to the controversial issues, especially when I'm on the right side. ... It's just an opportunity to pursue what I believe in my heart is my role," Watkins says.

One of the most outspoken critics of Watkins and his Conviction Integrity Unit is District Attorney John Bradley, a Republican who has served for a decade in Williamson County, just north of Austin. On a January 2011 broadcast of The Diane Rehm Show on National Public Radio, Bradley said to Watkins: "You enjoy the national media; you enjoy the attention that you get. We have a lot of prosecutors who don't seek that. They seek justice by reviewing these cases carefully and making sure that a guilty, violent person is not released. ... We don't put fancy titles on it. We don't promote ourselves."

"Exonerations certainly exist, and they're important to pursue," Bradley said, but "the vast majority of those claims are false."

In November, a Texas Tribune article detailed Bradley's fight against re-examining two high-profile cases. In 2009, as chairman of the Texas Forensic Science Commission, Bradley fought against re-exploring the case of Cameron Todd Willingham, who was executed in 2004 for lighting his home on fire and killing his three children — a crime many believed he did not commit. For six years, Bradley fought against DNA testing — a battle he ultimately lost — for Michael Morton, who was wrongfully convicted of his wife's 1986 murder.

"I recognized that I could be angry, resentful and react to people, or I could look for the overall purpose and lesson and apply it to not only my own professional life but teach it. And I chose the latter path," he told the Texas Tribune, frankly admitting the lessons he'd learned.

Bradley and Watkins approach the cases from opposite directions — Bradley focuses on ensuring that the guilty stay locked up; Watkins works to ensure the innocent are freed. Neither approach is foolproof. A week after the Tribune published the article, the Observer talked with Bradley, who said he told the Tribune everything he had to say about the two cases that gave him pause. He was unwilling to say much more when discussing exonerations in general and Dallas County policies. "I'm not some sort of national spokesperson," he says. As to whether he's changed any policies within his office, he says he's dealing with cases "the same way we always have, by following the law and making sure there are opportunities to test the guilt of people."

While Bradley's not entirely opposed to non-DNA exonerations, he finds they're "much more subject to manipulation." He said as more DNA cases are resolved and there are fewer of them, organizations like the Innocence Project must take on new kinds of cases. "We have an Innocence Project, therefore there must be innocent people," he says, leading up to his point that "just as we sometimes wrongfully convict a person, sometimes we wrongfully exonerate a person."

Watkins has his own take. "John Bradley got caught with his hand in the cookie jar," he says of the two cases Bradley fought against re-examining. "They had their appellate process," Watkins says, "and [since 2001] Texas gives you the ability to request DNA testing ... and largely those requests were just conveniently denied. So for someone to say that 'Yeah, we've been doing this,' is laughable.

"It's less about the media attention; it's more about our role as prosecutors," he says.

The morning after Thanksgiving, Pinchback's Cedar Hill home was packed. The exoneree's brother cooked bacon and eggs while the rest of the extended family waited, some in pajamas, enjoying a relaxing holiday morning. A little after 9 a.m., Pinchback returned from running a few errands. After nearly 27 years in prison, he can't shake the early-rising routine. His wife, Sandra, stepped out of the bustling house to get her nails done. The next day, the couple, who met shortly before Pinchback went to prison and got married while he was still incarcerated, would exchange vows at the Marriott hotel on Stemmons Freeway.

They might have had a proper ceremony sooner if not for a confluence of events in 1984. "Follow me, or I'll shoot," a man threatened two teenage girls walking home in Oak Cliff, then walked them to a field, raped them and fled on foot. In a police photo lineup days later, the victims both identified Pinchback as their attacker. Their identification was the linchpin for a judge to sentence Pinchback to 99 years in prison for aggravated sexual assault.

But for a 2007 letter Pinchback sent to the Innocence Project of Texas that was followed up persistently by his friend Charles Chatman, who had been exonerated in 2008 after serving nearly 27 years for a similar crime, Pinchback would still be walking the halls of state prison.

"I knew why," Pinchback says, of the reasons he was wrongfully incarcerated. "It was the way I was living. ... I wasn't a saint." Before he went to prison, he led a fast life of stealing, drugs and lies that would likely land him in prison at some point. But though he wasn't an angel, he also wasn't a rapist.

He's put both pasts behind him now. "My immediate family and my exonerated brothers — that's it for me," he says.

The only DNA evidence that remained in Pinchback's case was pubic hair preserved in the rape kit that tested positive for semen that belonged to someone else. Testing DNA found on the hair is a costly procedure, and Chatman paid to have the evidence tested expediently.

Since Pinchback would likely be behind bars without Chatman's help, he plans to offer the same to others he believes are innocent. He knows of one person who stands to benefit from the same type of DNA test that freed him, so he'll pay for this man's testing.

After the holidays, Pinchback says he will also start visiting people in prison he believes are innocent. "They say we're the best bullshit detectors," Pinchback says. Having gone through the mill themselves, the exonerees are highly sensitive filters.

"We know, we veterans," Pinchback says. When he begins the visits, he'll "sit and talk — and listen," constantly on the lookout for contradictions. "Tell me again, man," he'll repeat.

While a few exonerees have already visited others in prison, Christopher Scott, who was wrongfully convicted of murder and exonerated in 2010, is starting a nonprofit called House of Renewed Hope to help organize a system of prison visits to others who may be wrongfully incarcerated. Scott is already looking into an aggravated robbery case of a man in the prison system's Coffield Unit, where he was held. Like his own case, Scott says, "It's non-DNA too, so I've got a whole lot of groundwork. ... It's hard to beat those types of cases.

"With non-DNA, how can you tell if they're telling the truth or not?" Scott says. "But those are the cases I want, because they're more challenging for me. I've been there and done that. ... With non-DNA you've got to pay close attention because you don't want to miss nothing. The littlest mistake can cost the guy the rest of his life in prison."

Discussions of cases that are part of Scott's program will take place at meetings of the Texas Exoneree Project, co-directed by Dr. Jaimie Page, an assistant professor of social work at Texas A&M University in Commerce, who runs the program along with exonerees Scott and Chatman. Moore, the former Dallas County public defender, will act as the supervising attorney, providing cases for the exonerees to explore. Several exonerees planned to attend a private-investigator training course.

"These guys have the best bullshit radars on the face of the planet," Moore says. "They can smell a rat from a mile away." They all know how to investigate a case because for years in prison, most of them worked on their own, Moore says. "It's perfect. Plus, they need a purpose and this is what most of them committed their purpose to be — to help others in the same position."

Page started the Texas Exoneree Project in 2008 as a focus group to see what exonerees needed most in terms of post-release services and financial assistance. "I could see that there was a lot of energy between them," she says. When she suggested that they all meet regularly, they agreed, and the project became a support group, a focus group and lobbying body for improved legislation to help exonerees and prevent wrongful convictions. The group took on a life of its own, and the House of Renewed hope is one of the most recent outgrowths.

Page says the mothers of exonerees will also meet since there aren't many people who can relate to their situations. One mother who's met with the others stands apart from the rest. Lucille Green's son, Benjamine Spencer, is still in prison, though his case rests on eyewitness identification that many people, including the foreman of the jury that convicted him, now consider questionable.

Pinchback plans on visiting Spencer in prison, possibly to help advocate for his release. "I believe him. ... He's on my list," Pinchback says.

"Oh, he's getting out. I don't know when, but he's getting out. I'm hoping soon," says Green, who drives a minivan with 'Free Benjamine Spencer' posters fastened to the windows.

On a moonless night in 1987, two people lurked outside the office of retail executive Jeffrey Young in a remote industrial complex. When Young walked out, he was forced back inside, robbed and beaten. The attackers drove Young's BMW through West Dallas and shoved him from the car. Young died from the beating.

In 2000, innocence advocacy nonprofit Centurion Ministries began investigating Spencer's case, and in 2004, attorney Cheryl Wattley, who is now a professor at the University of Oklahoma Law School, filed a writ claiming Spencer's innocence.

Spencer's conviction rests squarely on eyewitness testimony. Initially, three witnesses claimed Spencer exited the BMW after it pulled into the alley near their homes. All had come forward after a cash reward was announced. One of the eyewitnesses later testified that he could not identify the man leaving the car as Spencer. Another has since died. The case hinged on the testimony of Gladys Oliver, who remained unflappable.

Dr. Paul Michel, an optometrist and former California police officer who evaluates conditions of visibility and assesses the validity of eyewitness testimony, testified at Spencer's 2008 actual innocence hearing. He's as stalwart about Spencer's innocence as Oliver is about his guilt. Michel maintains that it is "absolutely impossible" that Oliver would have been able to identify Spencer from the window of her home.

"It is so absurd," he said. "You don't need to be a doctor of optometry or an ex-police officer. ... It didn't, couldn't, and would never have happened." He speculates that the eyewitnesses in Spencer's case were motivated by reward money, but said that in general, "witnesses can be very convinced that they saw something that they didn't see, and they can be convincing to the jury."

District Judge Rick Magnis agreed, and in 2008 ruled Spencer was "actually innocent." Since Watkins' office did not support Spencer's release, unlike Duke and Pinchback, he couldn't walk out of the hearing a free man. In cases in which there is no dispute between prosecution and defense, the courts assume the Texas Court of Criminal Appeals, which must rule on all actual innocence cases, will concur. Spencer waited three more years in prison until a decision was finally handed down: The Court of Criminal Appeals overturned Magnis' decision.

The appeals court decision ruled "little weight" should be given to Michel's testimony because it could not be based on the exact conditions at the time of the offense, and he would have had to make too many assumptions for his conclusions to bear more validity than the eyewitness testimony.

Magnis could not talk specifically about the case because Spencer may come before him again, but he did say that Spencer's was the only case in which he recommended a prisoner for release.

As for what's next, Wattley says there isn't a clearly defined step. To have the case reopened, Wattley would have to present new evidence and establish that it was not available at the time of the last trial. "It creates a very narrow door," she says.

DNA evidence is, of course, the gold standard for what it takes to reopen a case. "The reality is that not every case is going to have DNA, so that's the problem," Wattley says. "We always say that we want to get it right, but what do we do when we don't get it right?" Wattley says DNA evidence may have raised the bar to a level too often unattainable by cases without it.

Several years ago, Spencer's mother, who visits him once a month in the Coffield Unit, had the chance to meet Watkins at a public meeting. "He told me all the cases he worked on were DNA cases — that he wasn't working on any non-DNA cases, but I have found since Ben's been in, he has let some people out with non-DNA," Green says. "I even wrote [Watkins] a letter, handed it to him personally. He told me he was going to look into the case, and I haven't heard from him."

Kristina Hahsler, founder of nonprofit Dallas Can Do Better, has been working for years on Spencer's behalf. "Craig Watkins could have done more to help, and he chose not to for whatever reason," she says.

Though the District Attorney's Office hasn't supported Spencer's case, Watkins says he also hasn't decided not to support Spencer's claim of innocence. "We're still looking at it," he says.

Meanwhile, Green waits and prays. "If this boy don't get home soon, I'll go crazy."

Duke, Pinchback and Spencer occupy a troubling time in criminal justice history. Their arrests, and the arrests of nearly all of the Dallas County exonerees, occurred from the early 1980s to the early 1990s. In this decade-long window, DNA samples were collected because blood-type testing was available, but the samples were not tested with the technological acumen that's been developed since.

Starting in the mid-1990s, the testing of DNA evidence became standard protocol, meaning the number of incarcerated people who can be exonerated by previously untested DNA evidence is finite, with few exceptions.

"The best hope for exoneration is going to rely on non-DNA evidence. ... I can tell you that this is the future of innocence work," says Steve Drizin, the legal director of the Center on Wrongful Convictions and a law professor at Northwestern University.

"Of course, DNA has given credibility to other cases of actual innocence that otherwise wouldn't have been accorded to them," says Rob Warden, the center's executive director. The passage from DNA cases to non-DNA cases, while somewhat gradual and linear in Dallas county, is an imprecise mixture at different phases throughout the country. Warden said he gave a lecture a decade ago saying that the era of DNA-based exonerations was coming to an end, but while the balances are shifting incrementally, even now there is no shortage of DNA cases nationwide.

The Innocence Project of New York, which takes on cases around the country, still focuses primarily on DNA cases. Innocence Project co-founder Barry Scheck says since it's a national organization and DNA is the "gold standard," the Innocence Project hasn't felt the need to venture into non-DNA cases. "Eventually, I'm sure, but not in the near future," he says.

Keith Findley, president of the Innocence Network, which comprises more than 50 innocence advocacy organizations nationwide, says that increasingly more entities are taking on non-DNA cases, while few still only take DNA-based cases.

"Now we've shown that there are wrongful convictions, so now our conversation can be extended to eyewitness identification, investigative techniques, even prosecutorial misconduct, the culture of district attorney's offices ... and our failure to live up to the code of criminal procedure," seeking not only convictions, but justice, Watkins says.

Most wrongful convictions have occurred because of faulty eyewitness identification. In this year's session of the Texas Legislature, a law was passed that tightens police photograph and live lineup procedures, requiring each law enforcement agency to create a detailed written procedural policy, outlining best practices, including the selection of people in lineups and the instructions given to witnesses.

"Nobody can claim that eyewitness testimony is infallible. But what we do know for sure is that there are a lot of people sitting in prison who were convicted on erroneous eyewitness testimony, where there's no DNA," Gary Udashen says.

A law was also passed to outline requirements for the storage of biological evidence, along with another measure that requires the testing of stored rape kits and outlines a timeline by which new rape kits must be tested.

In the previous legislative session, a law was passed that said a defendant may not be convicted solely on the testimony of someone they spoke to while in jail.

"I think it will have been a watershed time for criminal justice," says Wilson of the Conviction Integrity Unit, referring to the exonerations and all that's changed because of them.

"The front door, I think, is closing — the front door meaning people being wrongfully incarcerated," says Page of the Texas Exoneree Project. "But the back door is still closed. There are still people stuck in prison."

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Leslie Minora