Longform

Beyond DNA, Difficult Tests for the Justice System

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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.

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Leslie Minora