Test Of Convictions/A Dispatch Investigation

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www.dispatch.com/live/content/special_reports/stories/2008/dna/index.html

Sunday: Evidence is often lost or destroyed.
Monday: Ohio rejects tests for parolees and the dead.
Tuesday: Victims relive horror when inmates get testing.
Wednesday: Innocent man must register as sex offender.
Thursday: DNA promising in questionable cases

I've copied and pasted the articles below.

[thinkinkmesa]

Lost hope
When DNA evidence goes missing, so does the chance for an exoneration
Sunday, January 27, 2008 3:38 AM
By Geoff Dutton and Mike Wagner

THE COLUMBUS DISPATCH



Today's DNA stories
A man on Ohio's Death Row held faint hope that a DNA test might keep him from his grave. But no one could find the evidence in the Cleveland man's murder case.

Another man was changing a flat tire when a 5-year-old girl pointed to him as the man who had raped her 11 weeks earlier. The Toledo man was convicted on little more than her word. A DNA test could end all doubts, but swabs from the girl's medical exam are lost in an evidence room the manager describes as a disaster.

A judge ordered a DNA test for a Cleveland man, but the evidence remains untested more than two years later. When his father died, the prisoner stood alone over the casket, in shackles and unable to prove his innocence.

These cases reflect the empty promises and missed opportunities typical of Ohio's inmate DNA testing program.

A yearlong Dispatch investigation revealed a system in which prosecutors ignore court orders for testing, judges reject inmates without following the law, and evidence is routinely lost or destroyed before it can be tested.

The flaws have ruinous consequences for inmates, victims and society at large.

Presented with The Dispatch's findings, Gov. Ted Strickland immediately called for a compete overhaul that would speed up the review process, open up testing to more inmates and establish statewide standards for preserving evidence.

"It's not honoring the victim to take the chance that an innocent person is paying the price for victimizing them, because the flip side of the coin is that means the guilty party has escaped justice," Strickland said.

"It's just a matter of trying to do everything we can to be as careful and as accurate as we possibly can be."

The Dispatch reviewed the 313 cases of inmates who requested DNA testing and found:

• Evidence had been lost or destroyed nearly two-thirds of the time when prosecutors agreed to search for it. Ohio does not require evidence to be catalogued and saved, as 22 states do.

• Even when evidence was available, the applications for testing typically went nowhere. Judges didn't bother rejecting the requests in 53 cases; they simply ignored them.

• Ohio law requires judges to cite a reason when they reject a DNA test. Nearly a third of the time, they didn't. Many rulings were one-sentence denials.

• Even in cases in which a judge granted testing, the inmate's odds of actually receiving a test still were no better than a coin toss. The Dispatch discovered 13 cases in which testing hadn't been done more than a year after a judge approved it -- in some cases, more than two years.

• Tests have been done in only 14 cases since a 2003 law allowed inmates to apply. Two resulted in exonerations. Seven confirmed guilt. The others were inconclusive.

Across the United States, the number of convicts cleared by DNA surpassed 200 last year. While the innocent were in prison, the actual rapists and murderers remained free.

The exonerations have inspired new laws in other states that preserve key evidence and allow more inmates access to DNA testing.

Ohio lawmakers, fearing a flood of frivolous applications from prisoners, tightly restricted eligibility for testing when they created the state program in 2003. But only 313 of more than 50,000 prisoners have applied for DNA tests -- which can just as powerfully prove guilt as innocence. A test result confirming their guilt can poison their chances with the parole board, potentially extending their stay in prison.

No one oversees the process closely enough in Ohio to gauge the extent of the problems -- which are consistent across small rural counties and large cities, and for low-profile convictions as well as headline-grabbing murders that sent men to Death Row.

"When we take someone's life or we take their freedom, we want to be certain that we've done everything we can," Ohio Supreme Court Chief Justice Thomas J. Moyer said. "The information you've given me is troubling, because I see two or three places where the process does not seem to be working the way it should be."

The Ohio Judicial Conference, which represents judges, acknowledges problems with tracking court filings by inmates, and says judges would be open to finding a solution.

Change can't come fast enough for those whose lives hinge on those tests.

"Sooner or later, this is going to happen to you or someone you know," said Ray Smith, 47, a Lorain man serving a life sentence for murder. "Being accused of a crime you didn't do can happen to anyone. The justice system is broken, and there are guys like me who are paying with their lives for it."

Seeds of change
Twenty years ago, DNA testing revolutionized crime-fighting. Suddenly, a speck of blood, semen, hair or skin from a crime scene could be matched to a suspect with scientific certainty, using a person's unique genetic "fingerprint" embedded in the core of every microscopic human cell.

Although DNA tests are far more sensitive and sophisticated than even a few years ago, prosecutors in Ohio routinely object to inmates getting them.

Many contend that DNA is not significant enough in most cases to override the other evidence. Granting more testing, they say, would muddy the water and unfairly traumatize victims.

"There needs to be some compelling reason in the facts of the case," said Matthew Meyer, an assistant prosecutor in Cuyahoga County, which handled more than three times as many requests as any other. "It should be more than a fishing expedition."

The Dispatch investigation prompted action for change even before it was completed. The newspaper filed more than 150 public-records requests across 51 of Ohio's 88 counties and interviewed three dozen inmates and former inmates, as well as prosecutors, judges and victims.

Prosecutors in two counties have reconsidered and consented to DNA tests for inmates who had been rejected.

In four cases rejected several years ago because evidence supposedly had been destroyed, evidence was recently discovered in storage rooms after prodding by the newspaper and the Ohio Innocence Project.

And Cuyahoga County prosecutors vowed to follow through on stalled testing orders and promised to renew a search for evidence missing in a Death Row case.

Ohio Attorney General Marc Dann and every prosecutor interviewed for this series said they were open to a state law requiring that evidence be saved and catalogued.

"I think a statute makes sense," Dann said. "DNA is not a silver bullet for solving crimes … but when there's a possibility that somebody has been wrongfully convicted, I think we owe it to the administration of justice to do that testing."

Prosecutors said their motive in evaluating any criminal case is to deliver justice, not simply a conviction.

"I don't want one single solitary person who is innocent sitting in prison," said Franklin County Prosecutor Ron O'Brien. "The prosecutors rejected these cases because they were not eligible under the law that was in place at that time."

Others say prosecutors make it nearly impossible for the law to work in favor of the inmates.

"The prosecutors have this tremendous leverage. I think they just feel they don't owe anything to anybody," said David H. Bod**er, the Ohio public defender who retired this month after 13 years in the office. "I think they can bend and twist the laws to their satisfaction."

Inmate advocates say the testing system has more value to society than just identifying the innocent.

"If you've got a guy who has been in prison for years screaming innocence and a DNA test is able to absolutely confirm guilt, that shuts him up," said Mark Godsey, director of the Ohio Innocence Project, a nonprofit legal clinic based at the University of Cincinnati's College of Law.

"Part of the cost of finding innocent people is doing testing on cases where all it's going to do is confirm guilt."

Lost or destroyed evidence
Nearly all of the evidence in Ceasar Vines' case had been destroyed less than a year after his 1988 rape conviction, but he thought he had one last chance to clear his name.

Vines, 56, of Cleveland, eagerly awaited the results of a court-ordered DNA test on girl thingyl swabs from the victim.

But with no money for an attorney to monitor his case, Vines was unaware that after a judge granted his DNA test, prosecutors determined that those swabs, too, had been destroyed.

When told by a reporter there was nothing left to test, Vines sprang from his seat in the sterile prison room. His eyes bulged wildly and he gripped the table with his fingers. He bellowed in agony.

"I have hoped and prayed, but now my hope is gone," yelled Vines, who is 20 years into his 51- to 85-year sentence at the Mansfield Correctional Institution. "It's all gone. I can't believe they have done this to me."

Even if the legal system were more open to tests, hope still would not exist for many inmates.

In DNA cases across the state, lost or destroyed evidence ended any chance for the convicts to use scientific advances that often were unavailable during their trials.

The potentially life-changing evidence is typically passed through a maze of hospitals, law-enforcement agencies, crime labs, coroner's offices and court-controlled property rooms.

In some cases, the evidence is systematically destroyed by law-enforcement agencies, each with its own retention rules. In others, evidence disappears without explanation. Sometimes, it's stored improperly, degrades and is rendered useless.

Prosecutors argue that much of the evidence was lost or destroyed during a time when DNA testing wasn't available or advanced enough to be useful.

"For the past 20 years, agencies haven't kept every bit of evidence," said Lisa Reitz Williamson, supervisor of the Cuyahoga County prosecutor's appellate division. "In 1970, we didn't know there was going to be such sophisticated testing."

Still, even prosecutors say the state needs a uniform evidence-retention law.

"It's a mess and frustrating when you can't keep track of evidence," said Lucas County Prosecutor Julia Bates. "We have 88 counties with sheriff departments, police departments and dozens of other entities, and everyone does evidence retention differently."

Two Toledo cases show the fallout of lost or destroyed evidence.

David Purnell, 43, of Toledo, was convicted in 1992 of kidnapping and raping a 5-year-old girl. Purnell was mainly convicted by the girl's testimony. While riding in a car with her grandfather 11 weeks after the rape, the girl saw Purnell on the street changing a tire and identified him as her attacker.

Despite testimony that Purnell was in Detroit the morning of the rape, he was convicted and sentenced to life in prison. The hospital took swabs of DNA from the girl but destroyed them within five days. Other evidence in the case cannot be found.

"How could they do that to the evidence?" Purnell asked. "This is why so many of us don't have faith in the justice system."

Carlton Manning, 39, of Toledo, was convicted in 1992 of raping a woman and fondling her 7-year-old daughter. The victim identified Manning in a lineup, but he said he had never seen the woman.

Manning, who was sentenced to 28 to 65 years, wanted a DNA test at the time of the trial but it was too expensive. About a decade later, Manning applied for a DNA test but was rejected because a police detective said he destroyed the evidence shortly after Manning's conviction.

During the Dispatch investigation, a box of evidence containing the victim's underwear was found in December.

Like some other prosecutors, Bates is not responsible for storing or tracking the evidence after a conviction; that duty lies with the court system. Bates, however, told T he Dispatch that her office will send the evidence to a lab for testing and search for any remaining evidence in Purnell's case.

Some inmates are filled with hope shortly after their requests are granted, only to have it ripped away later when evidence goes missing.

Ray Towler, 50, of Cleveland, was convicted in 1981 of raping a young girl and assaulting a young boy in a park. He was granted a DNA test in 2004.

Prosecutors arranged to send a hair, but technicians at a private lab said the envelope arrived empty. A month later, they sent fingernail scrapings. Again, an empty envelope.

Nobody's ever explained what happened to the evidence.

"The big question is whether someone threw it away on purpose, or was it gone before I even asked for testing?" Towler said. "When that happened, my life sentence got even longer."

Mistakes or misdeeds?
DNA cases in Ohio go awry for all sorts of reasons, many of which boil down to simple indifference. They are cases stalled or doomed by official inaction more than any suspected misdeed, records show.

Then there are cases such as Michael Hamilton's.

Hamilton, 57, of Springfield, requested a DNA test 14 years after he was convicted of raping a teenage girl in Clark County. But the rape kit -- typically oral, girl thingyl and anal swabs taken at a hospital -- was gone.

The prosecutor said a detective had returned clothing and a watch, along with the rape kit, to the 13-year-old victim after the trial.

"That would be strange," acknowledged Assistant County Prosecutor Daniel Driscoll in a recent interview. He agreed to look into it but never provided an explanation, despite at least four attempts to reach him again for details. The Dispatch couldn't locate the victim.

"The state does not have a duty to preserve evidence indefinitely after a conviction has become final," the judge noted in denying a DNA test for Hamilton.

But the ruling didn't address that the evidence, according to the prosecutor, was preserved for only 25 days after Hamilton's trial.

Most DNA cases clouded by allegations of misconduct never attracted attention and quietly faded away.

An exception was the case of Anthony Michael Green, 42, of Cleveland, who was freed from prison in 2001 after serving 13 years for a rape that DNA tests showed he didn't commit. As part of a $1.6 million settlement, Green demanded an audit of the Cleveland crime-lab analyst whose testimony helped convict him.

The review found that analyst Joseph Serowik "intentionally fabricated evidence." He was fired.

Auditors also determined last year that Serowik misled the jury in a murder case that led to lengthy sentences for Thomas Siller and Walter Zimmer, both of whom now want a new trial. The review of Serowik's 17 years of work at the lab continues. Serowik could not be reached for comment.

Inmate Phillip Gammalo, 50, of Cleveland, was convicted in 2000 of rape and murder. Four years later, a prosecutor reported that only a bottle and a jar -- debris, apparently, from the crime scene -- remained in the evidence room.

But the state public defender's office, with one phone call to the same evidence room, turned up five more pieces of evidence, including clothing and a blanket.

The discovery, his lawyer said, "cast serious doubt" on the prosecutor's statements that "no biological materials exist" for DNA testing.

A judge granted a DNA test.

"I was so happy," Gammalo said. "'Now I'm gonna prove my innocence!' "

That was in April 2006. No one has done the DNA test yet.

The forgotten inmates
With shackles around his arms and legs, Cedric Crawford stood alone over his father's open casket. The convicted rapist had been granted a DNA test eight months earlier and desperately wanted to give his ailing father the result he believes would prove his innocence.

But that test wasn't performed before his dad's death and now, 32 months after a judge granted his wish, he is still waiting.

"It's hard when you know you're innocent, and you're away from your family, and you're waiting so long for testing," he said, as his voice broke and tears welled in his eyes. "It's been rough."

The odds and the law are against any Ohio inmate being granted a DNA test. But for Crawford and a dozen other inmates, there are no guarantees of a test even after a judge says they can have one.

Some are just lost in the massive justice system, some are stonewalled by prosecutors who still oppose the test, and others are simply forgotten.

Crawford, 47, of Cleveland, was convicted in 1991 of raping a 9-year-old girl. He received a life sentence.

Prosecutors opposed his request for a DNA test in October 2004, saying no biological material was found on swabs taken during the girl's medical exam. But a judge ordered the evidence sent to a lab in June 2005. Crawford's attorneys believe advanced testing could detect sperm or skin cells not found in 1991, a relative Stone Age of genetic testing.

"The prosecutor's not responding at all," Crawford said.

Cuyahoga County Assistant Prosecutor T. Allan Regas was ordered to send the evidence, along with evidence in two other rape cases that have languished, untested.

"He's following through with that to make sure that it happens," said Williamson of Cuyahoga County, noting that delays can occur for any number of reasons. "If there are any problems, we will deal with them."

Crawford, however, is ahead of some inmates who are ignored altogether. Some have filed an application for a DNA test without ever receiving a response. The law doesn't require prosecutors to respond, but if they do file one, it must be done within 45 days.

Judges can lose track of DNA applications, or any court filings by prisoners, for a variety of reasons, said Mark Schweikert, executive director of the Ohio Judicial Conference, an advocacy and oversight organization for judges.

The inmates often don't have lawyers. The paperwork is filed under the original case numbers, which can be decades old and long since labeled as closed. And the outcome of post-conviction DNA cases isn't among the information judges report to the state Supreme Court.

"It's in our interest for all this stuff to work properly," said Schweikert, a retired Hamilton County judge. "If there's a breakdown in the system, we want to know about that and help to be part of the solution."

Moyer, the chief justice, said the Supreme Court would consider requiring judges to report the outcome of DNA cases. "That's a piece that we can control. It's a matter of over 700 judges in the system, and we have to be certain that every one of them understands their responsibility."

James Ball asked for a DNA test in March 2004. Ball, 57, of Akron, was convicted of rape.

"I never got a response from anyone," Ball said. "I guess no one ever saw it, or they did and didn't care, or they just threw it away."

After nearly four years, prosecutors filed a response last month, telling Ball his request had no merit. Prosecutors acknowledged that they responded to Ball only after inquiries by T he Dispatch, and a judge still hasn't ruled.

"I don't know how or why this case was missed," said Mary Ann Kovach, chief counsel for the Summit County prosecutor's office.

No one is more aware of the importance of fixing Ohio's DNA testing program than Melinda Elkins. She fought for years to free her then-husband, Clarence Elkins, 45, of Stark County, who was convicted of killing her mother and raping her niece.

"The only way to prove Clarence's innocence was to test the evidence, and people shouldn't have to fight the system as hard as I did to do that," said Melinda Elkins, who now works for the Ohio Innocence Project.

A DNA test cleared Clarence Elkins, who was released from prison in 2005 after serving six years. The man whose DNA was found at the crime scene is scheduled to go on trial for rape and murder in August.

"The idea of ignoring evidence or throwing it away should outrage both the victims and the public," Melinda Elkins said. "I believe it's time to begin using the justice system as a way to find the truth."

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Out of time
Ohio restricts convicts who try to prove innocence
Monday, January 28, 2008 3:09 AM
By Mike Wagner and Geoff Dutton

THE COLUMBUS DISPATCH

GLEN, N.Y. -- The crunch of gravel under car tires rolling up the driveway sent chills across Eli Keim's skin. The frail Amish farmer, who has battled the effects of polio for most of his 58 years, limped toward the stranger.

The black man rolled down his car window and asked if he could buy some eggs.

"That poor man had no idea what that question did to me inside," Keim said.

Keim moved his family from northern Ohio to this rural Amish community in upstate New York about two years ago, but he can't leave behind the lingering memories of being choked and robbed by a black intruder who pretended to want eggs from his Ashland County farm.

Keim wiped wood chips from his salt-and-pepper beard and recalled the day that Arthur Swanson was arrested for the robbery. The day that he took the witness stand against the 54-year-old Mansfield man. The day that a jury convicted Swanson and a judge sentenced him to 20 years in prison.

Then the Amish man, surrounded by 60 peaceful acres of corn and hay fields, wondered aloud about Swanson's well-being in prison. He wasn't aware that Swanson and his family have maintained his innocence and fought for a DNA test for years.

Or that after being locked up for seven years, Swanson died in prison of an extended illness in 2006.

"I always thought it was Arthur, but I would never ever say I'm positive it was him in my house that day," Keim said.

DNA testing of a cigarette butt and a hair collected from the scene could possibly settle the question, but Ohio law prevents it.

Convicts lose their chance for a DNA test when they are released from prison, whether they leave on parole or in a hearse.

Ohio is among 15 states that require a person to be alive and in prison to qualify. Had that restriction been in place nationally, it would have prevented clearing the names of at least 22 men wrongly convicted of rape or murder.

If Ohio allowed for expanded DNA testing, the number of exonerations "would be higher, there's just no question," said Stephen Saloom, policy director of the Innocence Project of New York.

"You've got to ask: Who benefits from refusing to learn whether or not an innocent person was convicted of a serious crime? Nobody benefits -- except the real perpetrator. Everyone else loses."

Fairfield County Assistant Prosecutor Gregg Marx doesn't buy it. He opposed testing for a paroled rapist there, he said, out of confidence in and respect for the jury, the appeals court and the victim.

"We think it would be devastating to victims everywhere, not just this victim," Marx said. "What will happen if we're allowed to continually attack verdicts years later?"

Swanson: Was it him?
Sarah Keim was scrubbing the breakfast dishes when she saw the long gray car creep up the driveway. It was just after 7 a.m. the day before Thanksgiving 1998, an odd time for visitors, she thought.

Their 16-year-old son, Benny, already was outside hitching up the horses.

"Good morning, I'm looking to buy some eggs," the man said to Eli when he greeted him at the door.

When Eli returned with two dozen eggs, the man was standing inside the white two-story farm house. He grabbed Eli around the neck and demanded cash. Eli's face was purple by the time the man dragged him into the kitchen. "He had me in a death grip," Eli said. "I thought I was going to die, but I just didn't want him to hurt Sarah or Benny."

Sarah screamed at the man and tried to free her husband. She backed off when he threatened to kill Eli, and then gave him a billfold with $60.

"I want more," the man screamed. Sarah grabbed a desk drawer with loose change.

The man ordered Sarah to lie on the floor and released Eli before he sprinted out the back door. As the car pulled away, the couple raced outside to check on their son and tried to read the license plate.

"It was hard to see, but we thought we got the first three letters -- DXL, QXL, OXL -- or something like that," Eli said.

A detective discovered a fresh cigarette butt at the corner of the house, likely left by the robber. The Keims didn't see the attacker smoking but couldn't see what he was doing before entering their home. Investigators took the hair from inside the house, where Eli said no black person had ever been.

Even so, the cigarette butt and hair were never tested.

The nightmares soon followed and stayed -- and so did the guilt."We regretted that we told police, because we (Amish) believe that it's wrong to seek revenge," Eli said. "But the other side is, he could do this to someone else."

Either way, the sound of any vehicle rolling up the driveway would haunt him.

Two weeks later, an anonymous caller told the Ashland County sheriff's office that Swanson was the robber and had used his mother's car. Swanson was arrested at his mom's Mansfield home. Out front was his mom's car: a light silver Chrysler New Yorker, license plate DXL 781.

Passing the test
Nationally, DNA has exonerated at least 22 people who were already out of prison, one of them dead, T he Dispatch found. Eight others had been released but were returned for parole violations by the time of their tests.

Together, they served more than 370 years in prison, plus years on parole, for crimes they didn't commit.

Texas cleared James Curtis Giles in June with DNA tests that proved his innocence -- and identified the actual rapist -- 15 years after Giles was released on parole.

"The only sad part is my momma didn't live that long," he said. "She didn't get a chance to celebrate my exoneration. Likewise, my dad."

Virginia cleared Marvin Anderson with a DNA test after he spent 15 years in prison and five years on parole for rape. The test in 2002 revealed the real rapist and led to the testing and exoneration of two inmates in separate cases.

The sudden pileup of exonerations prompted the state to randomly test evidence from 31 other old cases, which exonerated two more men who had served a combined 31 years in prison and by then were on parole.

Now, Virginia is combing more than a half-million old files looking for other mistakes.

Anderson, who speaks about wrongful convictions around the country, knows that, despite his horrifying ordeal, he has much to be thankful for -- particularly that he wasn't convicted in a state such as Ohio that prohibits parolees from getting a test.

"I'd probably still be walking around as a convicted sex offender," he said.

"All these states need to wake up. If a person is innocent of a crime, regardless of whether he's in or out, he should be able to prove his innocence."

Authorities have tested evidence after an inmate's death in at least three death-penalty cases in three different states.

In 2000, DNA tests cleared Frank Lee Smith of raping and murdering an 8-year-old girl in Florida -- a year after Smith died of cancer while awaiting execution for 14 years on Death Row. The DNA tests also identified the real attacker.

In Virginia, DNA tests in 2006 ended years of speculation and doubt, confirming the guilt of Roger Coleman 14 years after his execution. And Georgia tried to settle questions about the guilt of Ellis Wayne Felker in 2000, four years after his execution, but tests were inconclusive.

The case of Donte Booker shows what might lie beneath the surface in Ohio.

The Cleveland man served 15 years for rape before being paroled as a registered sexual offender in 2002. A short time later, Ohio passed its law allowing inmates to request a DNA test.

Booker applied, but the prosecutor rightly noted that he didn't qualify. It didn't matter that Booker offered to pay for the test himself; he wasn't in prison, with at least a year left on his sentence, as required by law.

Coincidentally, Booker got into a fight with his girlfriend eight days later and was arrested -- a parole violation that landed him back in prison. This time, he won approval for testing sperm left behind by the rapist nearly 20 years earlier.

The results not only cleared Booker in 2005 but revealed the real rapist, an ex-convict whose DNA profile remained in a state database because of an aggravated robbery he committed while Booker sat in prison. The man pleaded guilty and was sentenced to five years for the rape for which Booker had already served 15 years.

The case shows the arbitrary and risky nature of excluding people from testing after their release from prison.

"If we're all interested in justice, what's the problem with doing that?" asked his attorney, W. Scott Ramsey of Cleveland. "It leads one to believe it's not all about justice. A person who served 20 years and is out on parole deserves to clear his name."

Swanson: Weak case?
Maebell Owens looked but couldn't find answers in the soot-covered box of prison paperwork, all that remained of her son's fight to prove he didn't rob the Amish family. The 86-year-old woman shuffled across the creaky porch of her ramshackle Mansfield home, leaning on the snow shovel handle she uses as a makeshift cane. She nearly fell when she bent down to lift the box. Her tears dripped on a torn, faded picture of her son.

"This is what my son lived with and died with in that cell," Owens said of her son, Arthur Swanson. "My boy was innocent."

Swanson's life was ordinary before a robbery conviction. He graduated from high school, where he ran track, then worked at an automotive factory in Michigan. He later returned to Ohio to work odd jobs so he could help care for his aging mother. He never married but had two sons.

In his early 20s, stemming from separate incidents, Swanson was convicted of unarmed robbery and breaking and entering. He later was convicted on drug and forgery charges and served more than two years in prison.

The prosecution's case against him was based mainly on testimony from the Amish couple and other witnesses. They described the "long gray car" that matched Owens' vehicle and the partial license plate of DXL that Eli Keim had written down when the robber fled his farm.

But even the Keims concede that lingering questions surround the case.

They described the suspect to police as 30 to 35 years old. Swanson was 54 at the time and showed no resemblance to the sketch distributed by the sheriff's department.

Sarah Keim couldn't identify Swanson in a photo lineup.

Her husband also struggled to identify the attacker from the six photos. But after taking what authorities called "considerable time," he guessed at the person in photo No. 2 - Swanson.

Detectives also showed a photo lineup to a woman who told police that a black man had stopped at her house the morning of the robbery to ask where he could buy eggs from an Amish family. That woman picked the man in photo No. 4 - not Swanson.

The Keims initially were confused about whether one or two men were involved in the robbery, and whether the letters on the license plate were accurate.

Swanson's mother says she was driving her own car to the grocery store the morning of the robbery. A rusted license plate with the letters DXL still sits on her porch.

"Arthur didn't have my car," she said. Swanson's alibi was that he was at a friend's house during the robbery.

Swanson wrote dozens of letters, pleading for help. He asked private attorneys, law schools and other advocates to persuade the justice system to test the cigarette butt and hair.

Swanson's plea for a DNA test was rejected, with prosecutors and a judge saying it wouldn't prove his innocence. They argued that even if the DNA evidence didn't match Swanson, it still wouldn't have cleared him of the robbery.

Swanson never received his DNA test. He died at age 61 on Independence Day.

Fighting for justice
Each year, more Ohio inmates die or are freed after years in prison, only to be trapped by a system unwilling to reconsider their guilt in light of DNA.

At Robert Blackburn's trial in 1993, a Fairfield County prosecutor held up an 8-year-old girl's pair of semen-stained underwear to help seal his conviction.

The latest DNA testing techniques could possibly, finally, discredit Blackburn's continuing claims of innocence or correct a horrible injustice. But prosecutors successfully fought it, and Blackburn lost his chance to keep arguing the point when he was paroled in 2005.

"The victim in this case, we wanted her to get closure on this matter," Prosecutor David Landefeld said. "I think it would be devastating for her. It just dredges up a lot of memories. She was a brave little girl to come in and testify."

Blackburn still wants the girl's underwear sent to a DNA lab. He hasn't seen his three children since his conviction, and few people, not even relatives, have looked at him the same since.

"They don't want to believe I did 15 years in prison for something I didn't do. Nobody does."

Some inmates would even prefer to remain in prison to continue their fight for a DNA test, especially those who would be classified as sex offenders.

"If it means a chance to clear my name, and get this test, I would rather stay in prison than be paroled," said Robert McClendon, an inmate at the Ross County Correctional Facility who is serving a sentence of 15 years to life for rape. McClendon, who was convicted in 1991, is now eligible for parole.

"If I do get out on parole, I will fight this rap from the street," he said. "I am no angel. I've done some bad things in life, but I'm not a rapist."

Swanson: Grant a test?
A stream of barefoot schoolchildren passed beneath the big oaks that tower over Eli Keim's farm. He grinned. In that same moment last October, his wife set a piece of homemade pie on his work bench. Their son stopped in after a day's work to say hello before he headed into the woods to bow hunt.

Keim has the serenity that any man covets. He didn't come to New York to escape the past.

But the memories of the robbery and Arthur Swanson linger. Keim once tried to visit Swanson in prison.

"I wanted to give him a chance to ask for our forgiveness, make peace with everything," Keim said. "But they wouldn't let me because I'm the victim."

Owens often visited her son in prison. She sent him the little money she had to help pay for extra medicine to ease his suffering in the last months of his life.

The elderly woman's health is failing now, and she knows her time is short. Her last wish, however, isn't to take a lavish trip or move into a nicer home.

"All I want before I die is to clear my baby's name," she said.

Ashland County Prosecutor Ramona Rogers said she will continue to follow the law when it comes to considering any future motions for DNA testing in Swanson's case.

"I will not make an exception in this case with no statutory authority to do so," said Rogers, who was not involved in prosecuting Swanson.

While she could endorse a DNA test, Rogers argues that prosecutors had a strong case against Swanson; his attorneys didn't ask for DNA testing at the time of trial; and, under the state's old law, several courts have ruled that a DNA test would not help prove Swanson's innocence.

"I understand the Amish are a forgiving culture," she said. "But I can't be governed by what the victims want."

Still, Keim and his family hope for a test.

"If he's guilty, then we will know once and for all," Keim said. "If he is innocent, then they should clear him.

"We humans," he said, "make mistakes all the time."

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[thinkinkmesa]

Flashback
Inmate's DNA test sparks vivid memories of rape
Tuesday, January 29, 2008 3:06 AM
By Mike Wagner

THE COLUMBUS DISPATCH

DNA holds promise in questionable cases.
Jane Tillar dunked her Lipton tea bag in hot water as her sister walked in with the morning newspaper. They sat down at the kitchen table, surrounded by pictures of Jane's four children and 10 grandchildren.

It was a sunny Labor Day weekend in suburban Cincinnati, and Jane was looking forward to her family gatherings.

Then she opened the paper and saw her rapist glaring back at her.

Jane screamed to her sister. "Oh, dear God; Joe Elliott is going to get a DNA test," she said, holding the paper in her shaking hands. "How could no one tell me about this? What if he has been innocent all these years? What if the man who raped me is still out there?"

DNA tests offer hope to some prisoners. But for crime victims, the examination of biological evidence can rip open old fears, old wounds and old doubts.

Then comes the anxiety of waiting for the answers -- test results that can cement closure for some victims and create eternal conflict for others.

Jane, 69, welcomed the chance to publicly share her story for the first time, noting that even close friends have avoided talking about it with her.

For Jane, the anxiety about the attack returned on Sept. 2, 2006. Only a few letters from the parole board during the previous 11 years had reminded her of the attack. Now, the morning headline had stripped away her peace of mind.

The Ohio Innocence Project, a nonprofit legal clinic based at the University of Cincinnati's College of Law, had taken on Elliott's case and won a legal fight with prosecutors to test biological evidence. No one from the prosecutor's office had told Jane about the pending DNA test of the swabs taken at the hospital.

Because it was a holiday weekend, Jane had no way of calling anyone for the next three days to answer her many questions.

She lived with her sisters and was active in her community. She wasn't haunted by the rape, and rarely thought of the June 1992 attack.

But for those three days, Jane's mind was filled with thoughts of the past -- the steel blade touching her head, her nightgown being lifted and the pain her husband took to his grave.

The open door
Jane opened her blurry eyes moments before the kitchen knife was resting against her temple. Her head lifted slightly off the pillow as she turned toward the alarm clock that read 3 a.m. A bottle of wine stood at the feet of the man holding the kitchen knife.

"Roll over, pregnant dog," the intruder commanded.

Hours earlier, Jane and her husband, Donald "Whitey" Tillar, were serving chicken casserole and chocolate cake to her children and grandchildren. Now, the 53-year-old woman, wearing a pink nightgown with the word joy on the front, was being raped in her own bed. Her husband, a chronic snorer, was asleep in an adjacent room.

Jane thought she would suffocate as the man covered her face with her pillow.

"If you scream, I will kill your husband," the rapist said.

The first attack lasted a few minutes. Then the man pulled Jane down the stairs to the first floor, where he sat her on the edge of the couch and forced her to perform oral sex.

The man then dragged Jane to the dining-room floor, where he raped her again. During this attack, he noticed the scars on Jane's chest from a mastectomy. The tone of his voice softened, and he asked his victim if she had cancer.

"Don't let anyone tell you that you are not beautiful," he said.

The sound of a flushing toilet whooshed above them. The distraction gave Jane the moment she needed to escape. She ran through the hallway and up the stairs, screaming.

"Whitey, call 911! I was raped!"

Still in a sleepy fog, her husband sprinted down the stairs but the attacker was gone. Whitey glanced at the sliding-glass door, the one that he had forgotten to lock when he went to bed. He grabbed his head and yelled in agony.

"Oh, my God! This is my fault, this is my fault!"

A husband's pain
It had been 18 months since the attack. Jane heard a loud thump, followed by silence.

Her husband lay facedown on the stairs, motionless. Whitey, who already suffered from failing kidneys, was rushed to the hospital for a severe head injury.

When he was able to talk again after a few days, Whitey greeted his wife.

"Hello, Diane," he said to Jane, mistakenly using the name of an old flame.

In the aftermath of the rape, Jane's attacker remained somewhere on the streets, and she and Whitey moved from their condominium to escape the painful memories.

The couple's troubles only grew worse. Whitey's architecture business, which had been struggling before the rape, finally collapsed. Jane's agony deep- ened when her pregnant daughter called to say that her child would be stillborn.

Now, Jane's husband of 35 years was in a nursing home and calling her the name of an old girlfriend.

"That was my breaking point right there," Jane said. "The attack itself wasn't as hurtful as seeing what was happening to our lives."

Jane turned to a psychologist to cope with the chaos. She and Whitey had seen a counselor together half a dozen times after the rape, but it did little to heal her husband's guilt.

For several months after the fall, Whitey lost his memory, including any thoughts of the attack. But they returned at the nursing home as he battled the kidney disease that ravaged his body.

"He would just start crying and telling me again and again he blamed himself," Jane said. "Then he would say how much he wanted revenge on the man that did this to me. The hardest part for both of us was this man was still out there."

The conviction
About two weeks after Whitey's kidneys failed and Jane buried her husband in 1994, police waited for Elliott outside his English class at the University of Cincinnati.

Partial fingerprints taken from the wine bottle in Jane's bedroom and the sliding-glass door pointed to those of the 22-year-old college student. Elliott lived near the couple.

While he walked through campus, Elliott heard another student say that police were looking for him. He ran to his brother's apartment, but police were soon knocking at the door. He climbed down the drainpipe, ran around the back and again managed to escape.

After visiting a girlfriend in a northern Ohio college town, Elliott was finally arrested in November 1994.

Nearly two years had passed since Jane's attack. It was a day of both relief and more agony for a grieving widow.

"I wish Whitey was here for this," Jane told her sister. "He would have rested easier knowing police caught this guy."

But another year of waiting passed before Jane found herself on a witness stand, reliving the brutal attack that had stolen her peaceful life.

For nearly an hour, Jane described how she was raped and robbed.

"He had the pillow over my head. I thought I was going to suffocate," she told the jury. "I thought I was going to die right there."

The jury found Elliott guilty.

But it wasn't until a judge sentenced him to 15 to 50 years in prison that Jane received what she had craved for more than three years: "I finally had the closure I needed."

The test results
Eleven years later, Jane opened the morning paper and discovered that the man convicted of raping her had been granted a DNA test. She then put herself back on the witness stand, but this time there was no jury; only her conscience, again questioning every detail of the case.

The rapist warned Jane not to look at his face just before he climbed into her bed. Fearing she or her husband would be killed, she shifted her eyes down or held them closed. It was dark, and Jane didn't want to watch him anyway.

Jane never did see his face. Other than his skin color and general build, Jane was never able to give the police a description.

In the months she waited for Elliott's DNA test, doubts flooded Jane's thoughts. Maybe Elliott was innocent. Maybe the police made a mistake with the fingerprints on the wine bottle and door.

Authorities testified during the trial that a spot of blood on Jane's nightgown was Elliott's. But a blood test after the conviction proved it came from Whitey, who cut himself on a baby crib while running to his wife the night of the attack. Maybe there were other problems with the case.

"I felt sorry for him, for making him serve all that time in prison for something I couldn't be sure he did," Jane said. "I never saw his face."

On a cold February night in 2007, Jane's phone rang. It was the prosecutor's office.

Jane held her breath, just slightly, and waited.

The voice on the phone told her the evidence matched Elliott.

Jane exhaled.

"It was him all along," she said.

Like some other inmates, Elliott wanted to roll the scientific dice, hoping for a DNA miracle that would cover up his crime. Elliott declined to be interviewed.

It would have been easy, almost expected, for Jane to be angry at the Ohio Innocence Project and justice system for allowing Elliott the test. But the devout Catholic said she never has harbored any resentment toward anyone. She has even tried to forgive Elliott.

Despite her ordeal, she believes that prisoners should have the right to DNA tests in cases involving real doubt.

"The worst part at the end is when they called me a senior (citizen) in the newspaper," Jane said, tears rolling toward her slight grin. "It brings closure either way, and that's what it did for me."

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[thinkinkmesa]

High cost of freedom
Despite innocence, he's labeled a sex offender
Wednesday, January 30, 2008 3:21 AM
By Geoff Dutton

THE COLUMBUS DISPATCH

NORFOLK, Va. -- Arthur Whitfield is either one of the luckiest men alive or the unluckiest. It's never clear, least of all to Whitfield.

Sweat pours off his forehead, down his face, through his gray beard, falling like fat raindrops on his drenched black T-shirt.

He pedals his bicycle through traffic, a bag of work clothes hanging from the handlebars. The hazy August heat drapes the 52-year-old like a steamy blanket. His past trails him like a black cloud.

The produce warehouse where he works is almost in sight, the 4-mile ride nearly over, when the chain pops off his cobbled-together Huffy. Again.

Fingers still greasy, he quickly fixes the chain and is on his way. This lanky, soft-spoken man isn't easily discouraged.

"Every day that I'm not incarcerated," he explains later, "is a good day."

Three years ago, Whitfield was released from prison after serving 23 years for two rapes that DNA tests showed he didn't commit. He was cleared based on evidence that was supposed to be long gone but wasn't. The tests also identified the real attacker, a serial rapist who by then was serving life in prison.

But unfortunately for Whitfield, the law and politics of DNA aren't as advanced and clear-cut as the science.

Today, Whitfield isn't free but on parole. He's a registered sex offender for crimes the local prosecutor and state crime lab director agree he didn't commit.

But Whitfield, of all people, with nearly half his life already stolen, knows it could be worse. Much worse.

Had he been convicted in Ohio, for example, he almost certainly still would be in prison.

Gambling on a guilty plea
Whitfield pleaded guilty to rape on May 6, 1982.

Not because he was beaten, tortured or tricked by police or lawyers. Not because he was mentally impaired. Whitfield was 27 years old and knew exactly what he was doing.

He had just been convicted of one rape. The victim, grabbed from a dark street at knifepoint, had picked Whitfield from a police lineup. The judge bolstered her identification by allowing another victim -- both women were raped an hour apart, in the same neighborhood, apparently by the same man -- to testify that she had picked Whitfield from a lineup, too.

The jury deliberated for more than seven hours but ultimately trusted the victims' memories, not Whitfield's friends, relatives and a neighbor who testified that he was with them at a birthday party on the night of the rapes. Whitfield was sentenced to 45 years.

Now, Whitfield faced trial for the other rape. Coincidentally, the victims were friends, and both were lined up again to testify.

It would be a virtual replay of the first trial. If convicted again by a jury, Whitfield faced a potential life sentence. Also working against him was his record: two prison stints, in 1976 and 1978, for robbery.

"I knew I didn't have a leg to stand on," he said.

"If I take the deal for 18 years," he figured, "I can make parole maybe somewhere down the line."

Determined to see his family again someday outside prison walls, he took the deal, for a combined sentence of 63 years.

Pinning his future on DNA
Hope faded as Whitfield appeared before the parole board 14 times over the years, each time only to be returned to his cell.

After years behind bars, he decided to tell the parole board what parole boards everywhere want to hear.

"I finally decided I'd go in there and admit I did it and say I'm sorry," he said. "But I didn't do it. Every time I went in there, I froze up."

Being rejected for parole, it turns out, became yet another irony-tinged stroke of luck for Whitfield. "Because I never would have gotten a chance to also clear myself," he said.

In 2001, Virginia passed a law allowing convicted felons to apply for DNA testing. The law followed a DNA exoneration of an inmate who was one of the first in the nation saved by the emerging science of identifying microscopic human cells in the blood, semen, hair and saliva left by attackers at crime scenes.

Virginia was several years ahead of Ohio, and today remains more open to testing, in law and practice. While being paroled might have prevented Whitfield from getting a DNA test in Virginia, it would have automatically disqualified him in Ohio.

Also, Ohio is one of only a few states that wrote an additional hurdle into its law for inmates who, like Whitfield, pleaded guilty.

In those cases, Ohio law says a judge can't grant a test unless the prosecutor agrees -- an all-but-insurmountable barrier. Only one of 92 of those requests has been granted, The Dispatch found in a first-ever examination of Ohio's testing program.

Whitfield faced no such legal roadblock in Virginia, although winning approval for a test in any state is a long shot.

"At the time, everything seemed impossible in terms of me getting out," Whitfield said. "I always liked to think I had a chance to get out. But it felt like I was slipping, and I needed something to hold onto."

He filled out the brief application in 2003.

Thanking 'Miss Burton'
Everybody warned Whitfield that the evidence from his case likely was gone.

Norfolk police looked and couldn't find it. Neither could the clerk of courts.

The victims' sexual assault exams were conducted years before the advent of DNA testing. According to crime-lab procedures at the time, the swabs should have been disposed of long ago.

"I didn't too much understand at first, when they said the evidence might be destroyed," he said. "Why would my evidence be thrown away?"

Nowadays, it probably wouldn't be. Virginia stopped the indiscriminate destruction of evidence when it adopted its inmate DNA testing law. So have 21 other states.

Evidence preservation still isn't required by law in Ohio, and inmate applications for DNA testing are routinely derailed because of lost or destroyed evidence, the Dispatch investigation found.

Fortunately for Whitfield, he was not in Ohio.

More important, his case was handled by Mary Jane Burton, a headstrong scientist not given to policies that involved trashing her work.

When the state pulled lab files from Whitfield's case in December 2003, the swabs, like cottony Q-tips, were taped inside. So were swatches of the victims' clothing.

By then, Burton, an Ohio native who retired to Cincinnati, had been dead five years. But Whitfield still talks about "Miss Burton" as if the forensic scientist were a beloved aunt.

"She's no longer here but, if she can hear me, I want to thank her, because I know she's in a good place now. I've never forgotten her name."

Winning his freedom
Norfolk lawyer Michael F. Fasanaro was assigned to the case.

To him, Whitfield was just another court-appointed obligation -- a twice-convicted rapist who had pleaded guilty, no less -- to juggle between paying clients.

"I just thought it was another case," Fasanaro said.

Then the fax came across his machine late one Friday afternoon.

The 23-year-old swabs still contained DNA from the women's attacker, and the genetic fingerprint didn't match Whitfield's.

"I was absolutely surprised -- stunned," Fasanaro said. "I had to read it twice, quite frankly. I had to read it out loud."

He immediately confirmed the results with the prosecutor's office, which wanted to re-test. The next day, officials swabbed the inside of Whitfield's cheek for a fresh DNA sample and ran the comparisons again.

Again, no match -- not to Whitfield, anyway.

Unable to immediately reach Whitfield, Fasanaro called his mother.

"I told her I had wonderful news for her, that her son was coming home the next day," he said. "She cried. She was overwhelmed.

"That was probably one of the most joyful things I've done."

Whitfield was released from prison, 23 years and three days after his arrest.

He caught a bus home. There were no seats available, so Whitfield gladly stood the whole 100-mile ride -- finally free.

Twisting in a technicality
But Whitfield's life of viciously cruel ironies followed him home to Norfolk.

To clear the way for his immediate release from prison, the state put him out on parole.

Nobody gave it a second thought until his lawyer filed for a writ of actual innocence, paperwork to formally certify what the prosecutor already had acknowledged and continues to tell anybody who asks: Arthur Lee Whitfield didn't do it.

By then, the prosecutor even knew who did.

The DNA matched Aaron Doxie III, whose genetic profile was part of a state computer database. Doxie, who declined to be interviewed for this story and hasn't commented publicly, already was serving life in prison for rapes he committed two years after Whitfield was sent to prison.

And another old rape had just been belatedly pinned on Doxie. In that case, yet another man, Julius Ruffin, had been wrongfully convicted and served 20 years before DNA cleared him in 2003, just as Whitfield's exoneration was playing out.

Ruffin also had been saved by DNA tests on swabs squirreled away by Mary Jane Burton.

So nobody expected the judge to reject Whitfield's request for a declaration of innocence. But the judge ruled that a close reading of Virginia law showed a person must be incarcerated to be considered for a writ of actual innocence.

The circular logic caught everybody by surprise. Whitfield appealed. The case went before the state Supreme Court, which ruled in a split decision in October 2005 that Whitfield in fact had no legal standing now that he was out of prison.

"It is tragic, because we're talking about a technicality rather than the actual facts of the innocence," Fasanaro said. "I mean, he's been found innocent through the DNA, and no technicality should stand in the way of that."

Working on a fresh start
Outside the courtroom, Whitfield fared better -- for a while.

Everything seemed to fall into place. Managers at a local credit union read about his plight in the newspaper and offered him a job. Whitfield was a high-school dropout laborer who earned his diploma in prison. He looked around, bewildered by the computers, and declined.

The manager insisted. He told Whitfield that he was prohibited from hiring convicted felons, but he was going to do it anyway and keep Whitfield on the staff as long as he could.

"That was a big turnaround for him," said his older brother, Raymond Whitfield, of Dayton. "I've never seen him so thrilled and so happy, and the people liked him."

Whitfield worked as a customer service representative, teller and loan processor. His co-workers helped set him up with an apartment and a car, and welcomed him as one of the team. He smiles as he recalls them dragging him onto the dance floor at the office Christmas party.

But after two years, somebody outside the branch office noticed a convicted felon on the payroll, Whitfield said. They bid him a warm goodbye.

"They asked me when I get my pardon to come back," he said.

Lobbying against a pardon
By then, Whitfield already had asked the governor for a pardon.

Ruffin, the Norfolk man released a year before Whitfield after serving 20 years, offered Whitfield encouragement.

But for all of their similarities -- both cases involved the same rapist, both were investigated by the same police detective, both men were cleared by DNA saved by the same lab technician -- there was a key difference.

After the DNA tests, the victim in Ruffin's case greeted him with public apologies for her part in unknowingly convicting the wrong man. She called for reforms to prevent mistakes in the future. She even testified before the legislature to help Ruffin secure $1.2 million from the state.

A previous governor pardoned him on the way out of office.

In Whitfield's case, one victim wrote a seven-page letter to the governor urging him to deny a pardon, still convinced that Whitfield was her attacker.

Both victims say their separate descriptions of the attacker were similar, and that they bore no similarity to Doxie. The women, who were forced to perform oral sex during the rapes, also both say their attacker was uncircumcised -- like Whitfield and unlike Doxie.

They question the validity of DNA tests on swabs that had been stuffed in files, unprotected, for more than 20 years by a lab worker who isn't alive to answer for them.

"DNA doesn't lie? No, it doesn't. But you can screw it up," one victim told The Dispatch, which does not identify victims of sexual crimes unless they agree to be named.

The other victim bristles at what she views as a "pity party" for Whitfield.

"There is no way I made a mistake. It's absolutely him. I've been saying that since Day One."

While both victims gave the jury strikingly similar descriptions of their attacker, the testimony contradicted some of their initial statements to police, records show.

They testified to Whitfield's distinctive hazel-colored eyes, but only one had noted his eye color immediately after the attack, describing it as brown. They also both told police the rapist was clean-shaven, but Whitfield had a beard.

In her letter to the governor, the contents of which haven't been reported until now, one victim says she now believes the other woman was raped by a different man and mistakenly identified Whitfield.

She suggests that evidence could have been intermingled in the two decades leading up to the DNA tests.

After the DNA tests, Norfolk Commonwealth Attorney John R. Doyle III, the prosecutor, said in his request for Whitfield's release from prison that he was convinced "beyond any question" that Whitfield was innocent.

"All the evidence in the case excludes him as the rapist," he said recently. "And I haven't seen anything that would persuade me this is not the case."

Pete Marone, director of the Virginia Department of Forensic Science, also backs the results.

"From a scientific standpoint, Aaron Doxie is there and Arthur Whitfield is not," Marone said. Moreover, DNA from the victims on those same swabs, while degraded and incomplete, was consistent with the women's genetic fingerprints. "There's enough (victim DNA) there you feel confident there's not a mix-up."

Living in seclusion
Whitfield is frustrated but not angry.

"I'm not mad or have any hard feelings," he said. "I believe (the victims) actually believe what they saw was me. I understand."

Push, prod, provoke, needle Whitfield all you want. He won't raise his voice or lash out.

Not when he talks about losing his credit-union job and having to move back home with his parents.

Or when he talks about the time his neighbors watched him being arrested because, as a registered sex offender, there was brief confusion about where he was living.

Whitfield's mother can't, or won't, talk about her son's ordeal anymore.

"I let God work it out," Louise Whitfield said, breaking down and retreating out the back door of her house.

Outside of work, Arthur Whitfield mostly has reverted to the lifestyle that served him well in prison -- minimizing contact with others and filling the time watching TV, particularly soap operas.

If 23 years in prison taught him anything, it's not to get his hopes up. On the other hand, he also knows as well as anyone never to give up.

Gov. Timothy M. Kaine, who declined to comment for this story, hasn't granted a pardon. But the Democrat, who took office in January 2006, hasn't denied one, either.

Finding a new home
The cramped waiting room is filled with stiff-backed chairs, a vending machine and glum-faced men wearing electronic ankle bracelets.

Whitfield walks up to the receptionist's window and asks to see his parole officer, who seems to recognize that Whitfield isn't a typical ex-con.

"Arthur's a hard case," he says, smiling, patting Whitfield on the shoulder. He encourages Whitfield to be patient. "I keep telling him, all we've got is time."

Whitfield smiles sheepishly, but it's difficult being patient when you're a 52-year-old man living with your parents.

A day earlier, Whitfield pedaled to work, struggling to keep the chain on his Huffy. Today, he is taking a day off from the produce warehouse to chase a short-term dream: finding his own place to live.

He recently lost his wallet -- Whitfield is prone to losing his wallet, keys, you name it -- and he needs new identification to secure a lease. His parole officer agrees to help.

His bosses at the produce warehouse are helping, too. The business office reviews paperwork and leases for him, and offers to advance deposit money if he finds the right place.

Earlier in the day, a friend of his mother's had shown him a house she had for rent.

As Whitfield sized up the tiny pale yellow shotgun house with teal shutters and a front porch, he spied a group of teenagers across the street. Music blared, bass thumping, from a parked car. "Is it rowdy around here?" he asked.

In the end, Whitfield looked past the neighbor kids, beyond the overgrown yard and the weed-choked flowerbed obscuring the front porch, and saw possibilities.

"I'm gonna have fun cutting the grass, trimming the hedges, fixing things up. I don't even care if it doesn't have a bed," he said.

"My life's not too good right now. But things are looking better. Any time you're not incarcerated, it's a good life."

Waiting for a pardon
Whitfield, now 53, moved into the house in August, where he lives with his girlfriend and her two daughters.

Also last summer, the Ohio Supreme Court ruled unconstitutional the portion of the law here that gives prosecutors sole authority to reject DNA applications from inmates who, like Whitfield, pleaded guilty.

Ohio has yet to enact a law requiring evidence to be preserved.

In Virginia, after the exonerations of Marvin Anderson in 2002, Ruffin in 2003 and Whitfield in 2004 -- all thanks to evidence saved by Mary Jane Burton -- the governor ordered a review of a random sampling of 31 more of her files.

Those led to the exonerations of two other men who had served a combined 31 years in prison for rape and were by then on parole.

Now, the state lab is combing all of its files -- more than a half-million, from 1973 to 1988 -- in search of other evidence that, contrary to lab practice, was stowed in files.

So far, officials have found samples that could cast new light on more than 2,000 murders, rapes and serious assaults, Marone said, most of them handled by Burton.

A first batch of 166 cases has been sent to a private lab for DNA testing, the start of a process that will probably take another year.

Meanwhile, Whitfield still awaits word from the governor on a pardon. It's been 772 days and counting.

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[thinkinkmesa]

Pursuit of justice
Private lab offers free DNA tests in 30 cases
Thursday, January 31, 2008 3:31 AM
By Mike Wagner and Geoff Dutton

THE COLUMBUS DISPATCH

For 12 hours, they showed him photos from the bloody crime scene, screamed in his ears, threatened him with the death penalty, told him he failed a lie-detector test and even followed him into the bathroom, until Robert Caulley finally gave them what they wanted.

Told by detectives that if he confessed he could return home to his wife and young son to sort things out, Caulley buckled. On that day in December 1996, he told investigators that he had beaten his parents to death with a baseball bat nearly three years earlier in their Grove City home.

Convicted on little more than what he says was a false confession, Caulley wants a DNA test. Detectives originally had said Caulley's parents were killed when they interrupted a burglary.

"I loved my parents; I didn't kill them," said Caulley, 43, an Ohio State graduate who worked as an aeronautical engineer. He has served 10 years of his life sentence. "I just want the chance to prove my innocence."

Caulley's case is one of 30 that The Dispatch has identified as prime candidates for biological testing under a law passed in 2003 and revised in 2006. An accredited lab, which does work for the state crime lab, has agreed to conduct the tests free as a public service.

Gov. Ted Strickland called it a "terrific" opportunity to begin restoring credibility to a flawed system. He is urging prosecutors and judges to support the initiative.

"I can see no justification for any interference in the testing in those cases," Strickland said. "It's not going to cost the county. I don't know what the justification for trying to block that kind of testing would be."

The Dispatch, as part of a yearlong investigation, gathered public records and built files on the 313 cases in which Ohio prisoners applied for a DNA test under an old law, which stymied nearly everyone. Advocates hope that modest changes to the law in 2006 have created new opportunities for them.

Through consultation with the Ohio Innocence Project, a legal clinic based at the University of Cincinnati, The Dispatch identified prospects for testing.

The newspaper weighed several factors, including criminal histories, the evidence used to convict inmates and whether evidence remains available for testing. In several cases, judges had ordered tests but they hadn't been done more than two years later.

Many inmates who say they're innocent couldn't be included because evidence has been lost or destroyed.

In conjunction with The Dispatch investigation, lawyers representing the 30 inmates plan to seek approval from judges in 13 counties for DNA tests beginning today. The inmates are being represented individually either by the Ohio Innocence Project or the Ohio public defender. These cases will be among the first to be filed under the new law.

Prosecutors in Lucas and Marion counties already have agreed to tests in two cases after being questioned about the cases by Dispatch reporters. Other prosecutors said they would consider the requests after they are filed in court.

DNA tests could answer troubling questions looming over the convictions -- often with absolute finality.

The newspaper asked the Ohio Innocence Project for legal assistance in reviewing case files. Dispatch Editor Benjamin J. Marrison said the initiative is a test of Ohio's flawed system more than of any one conviction.

"There's no reason to not pursue the truth," Marrison said. "What motivated us was examining the system to find out if it's flawed and, where it is flawed, having the legislature and the governor craft fixes. The findings of this investigation should alarm every Ohioan, because the lack of evidence protocol means any one of us could be wrongly convicted."

The Ohio Innocence Project, a team of law students led by two professors, said the Dispatch investigation accelerated their review of innocence claims. Typically, the group has about five active cases, which can drag on for years and sometimes extend beyond DNA issues.

"Now that we've got the new (law) in place, we need to have a whole new round of examination on these cases and, of course, need to have a more open mind," said Mark Godsey, director of the Ohio Innocence Project.

"Each of these cases represents systematic flaws that suggest our justice system is not working the way we all would like," said Jenny Carroll, academic director. "I think the publicity The Dispatch can bring to those issues will bring about more systematic reforms than I can bring about as an individual lawyer."

DNA Diagnostics Center, a private lab that does work for law-enforcement agencies and defense lawyers, has agreed to test the 30 cases free of charge.

A single DNA test costs about $1,500. Many cases likely would involve numerous tests, including advanced procedures that can cost up to $5,000 each.

"We should make this technology available to those people who may not be able to afford it," said Dr. Richard Lee, owner of DNA Diagnostics in Fairfield, near Cincinnati. "A lot of those people sitting in jail right now may be innocent. And it's all about getting to the truth. We should be able to use this to do something for society."

State officials note that guilty inmates who apply for a DNA test risk prolonging their prison stay.

"If an inmate has previously said he is innocent, and we have a DNA test verifying his guilt, the parole board does take that into consideration," Ohio Parole Board spokeswoman Andrea Carson said.

Strickland, a former prison psychologist, said problems uncovered by The Dispatch demand attention. The governor said he would support changes to reduce the chances of wrongful convictions, and make it easier to identify and correct them when they happen, including:

• Preserving and cataloguing evidence. There are 22 states that require evidence to be saved, typically until the convict is out of prison.

• Eliminating time limits to apply for a test. In Ohio, convicts must have at least one year left on their prison sentence to qualify.

• Outlawing traditional police lineups in favor of photo lineups administered by a person who doesn't know who the suspect is, to avoid any chance of steering witnesses. The most common error in wrongful convictions, DNA exonerations nationally show, has been witnesses misidentifying the attacker.

• Requiring police to record interrogations. Police in Minnesota resisted this requirement more than 13 years ago, only to later conclude that it usually works to their advantage. "It's the best tool shoved down our throats," St. Paul police commander Neil Nelson said in 2006.

• Forming an innocence commission, a diverse panel of experts to review inmate DNA applications and make recommendations to local judges, who decide the cases.

Given The Dispatch's findings, Ohio Supreme Court Chief Justice Thomas J. Moyer said he was generally supportive of a statewide evidence-preservation law, as well as forming an innocence commission.

"It's an interesting story and one that needs to be told," Moyer said. "We need to respond, obviously, with changes."

Caulley's case shows the potential value of such precautions.

Police recorded only the very end of his half-day interrogation, leaving many questions.

Caulley said he believed that his "off-the-record" confession -- which was secretly taped -- was his only chance to meet with his wife and 5-year-old son and talk with a lawyer. At one point during the questioning, when Caulley kept insisting on a lawyer, the detectives put him on the phone with one -- an assistant county prosecutor, who urged him to cooperate.

Caulley's lawyers argued to keep his confession from being used as evidence at his trial, saying that it was coerced, but the trial judge allowed it. The appeals court agreed that there was nothing improper about the interrogation, ruling that "ploys to mislead a suspect" are common and Caulley could have walked out at any time.

Eight years into Caulley's prison sentence, a different judge granted DNA testing on a hair found in his dead mother's hand. But the vial in the evidence room inexplicably turned up empty. Tests on other evidence in August were inconclusive.

Now, Caulley wants the remaining pieces of evidence tested, including another suspect's sweat shirt with a red spot, possibly blood. But he's afraid he missed his chance when the hair was lost.

"There is no hope now," he said, wiping away tears.

Walter Smith knows that feeling. He began fighting for a DNA test shortly after his conviction for raping two Columbus women, in the earliest days of forensic DNA analysis.

"They denied me nine times," he said.

Tests cleared him in 1996 -- 10 years into a 78- to 190-year prison sentence. Smith prevailed in the days before Ohio created an inmate DNA testing program.

Smith, who is now a motivational speaker, had hoped the program would give inmates a better shot at proving innocence. In fact, there were more DNA exonerations in Ohio before the 2003 law.

Clearly, he said, the law needs to allow more DNA tests.

"There's a major flaw in our system. If they don't think it's to their advantage to get a prosecution and conviction," he said, "they're not going to spend the money."

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