Beyond DNA, Difficult Tests for the Justice System

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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.

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Leslie Minora