Percolating in the back of my head was some chagrin directed toward the prosecutors in the Clarence Elkins case (aka #92), the subject of Friday night’s Dateline. Elkins, in a case with some parallels to Miguel Roman, was convicted of raping his niece and raping and murdering his mother-in-law based on one single dubious eyewitness: his niece, who told cops that the killer looked like her uncle. Clarence, meanwhile had an alibi: he had been drinking heavily at a bar and then came home to his wife, who was awake. They went for a walk.
The police, however, got their blinders on because of the statement of the niece, despite the fact that rudimentary DNA testing excluded Elkins. Elkins’ wife, convinced of his innocence, began investigating on her own:
In 2002, Elkins’ niece recanted her testimony about Elkins being the perpetrator. That same year, Elkins made a request for DNA testing, which was denied on the grounds that the results would not prove Elkins’ innocence.
Despite this ruling, Elkins managed to provide his own funding for Y-STR testing on evidence from the crime. Y-STR is a relatively new form of testing that isolates certain characteristics of the male chromosome suitable for comparison. In 2004, Elkins’ lawyers at the Ohio Innocence Project cooperated with the prosecutor’s office to send evidence to Orchid Cellmark, a nationally recognized forensic lab.
The results of this testing excluded Elkins as the possible perpetrator of the rape and murder. A male profile was found on male skin cells from both the grandmother’s vaginal swab and the young girl’s underwear. Elkins moved for a new trial. On July 14, 2005 the court denied Elkins’ motion.
The State, meanwhile, was not convinced. They claimed that because the DNA was from skin cells, it wasn’t conclusive that Elkins was excluded as the real perpetrator. Eventually, after some considerable risk to his own life in prison, Elkins and his wife were able to get the DNA of the man they believed committed the crime. But even that wasn’t enough for prosecutors. They wanted more.
Just today, the Hartford Courant has a front page story about two men, similarly claiming innocence:
The DNA found on the electrical cord used to bind the hands of a shop owner slain 15 years ago doesn’t belong to either of the two men convicted of killing him.
Fingerprints found on the door handle of the store’s safe are not theirs, and the state’s main witness now admits in a taped interview that she lied when she testified at their trial.
But Ronald Taylor and George Gould are still sitting in a Connecticut prison — serving 80 years for the July 4 murder of Eugenio Vega DeLeon in 1993.
The similarities between Taylor and Gould’s case and Elkin’s case are eerie: In both, there is a recanting eyewitness. In both, there are alibis. In both, there is a wife convinced of innocence fighting to prove it. In both, there is DNA evidence that excludes the defendants and for now, in the former, the prosecutors have refused to test the DNA of the man the defense believes is responsible. Finally, like in Elkins, the prosecutor in New Haven isn’t convinced:
“Having reviewed the file presented by Gerry O’Donnell, it wasn’t like in the Roman case, where there was clear-cut evidence,” Dearington said. “In this case it’s not clear that the inappropriate person or persons were convicted.”
Dearington said that although O’Donnell’s report raised questions about the original case, he wasn’t about to order the release of two convicted murderers based mostly on “pure conjecture and speculation.”
The prosecutor is more willing to leave it to a court to decide, with a hearing on the petition for The Great Writ scheduled for June. Will the similarities between Elkins’ case and Taylor and Gould’s case continue? It remains to be seen.
All of this makes one wonder: why are prosecutors so fiercely protective of their wins? Certainly, there is much to be said about the finality of convictions (and indeed courts around the country have written enough about it to replenish the rainforests) and the need for closure, but none of these cases present ordinary circumstances.
Both prosecutors, in Elkins and Taylor and Gould have shown or are showing caution in proceeding. The prosecutor in Elkins took a long time convincing herself that Elkins was indeed innocent – seeking voluminous DNA testing, and she took an even longer time to charge the man who actually commited the crime. The prosecutor in Taylor and Gould is taking the ultimate cautious approach: a hands off one. Leave it to the judge and let him take the rap.
If only they’d been this cautious or skeptical of evidence the first time around. Which brings me to my last story, via David Tarrell. Prosecutors in Omaha have announced that they will no longer be accepting plea bargains from adult defendants. In any case. At all. [In other news, Omaha's criminal justice system shot itself in the head.]
It is not necessarily a hard-nosed approach, he said. In fact, in some cases defendants may face lesser charges if he doesn’t think he can prove a more serious charge at trial. He said the new philosophy will require him and his two full-time deputies to carefully consider the charges they file against people.
“This prevents overcharging,” Ritnour said. “You will see at certain times that law enforcement or prosecutors will throw whatever they can at somebody, hoping something will stick while other charges get thrown out in a plea bargain. We’re going to see what we should charge people with and stick with it.”
I, for one, am not buying it. This will be a short-lived experiment, during which a whole bunch of defendants will get screwed. This stance places a lot of faith in prosecutors’ ability to see their case for what it is and not for what it might be. It also raises some questions: what charges is he talking about? I don’t know how it works in NE, but here, the charges can be changed at any time via a substitute information. So if the cops charge Assault 1st at the arrest and the prosecutor, either at arraignment or at some point further down the line, say after an extensive defense investigation, is of the opinion that Assault 1st is no longer viable or is risky, will offer a plea to Assault 3rd. That doesn’t mean that the prosecutor thinks it’s unprovable, just that it’s unlikely. Is that what Ritnour is saying? Because if it is, then I don’t know the difference between what he’s saying and plea bargaining. Or is he saying that they won’t file charges until they’re absolutely sure of what they can prove, regardless of what any further investigation turns up? Because that’s a hollow policy.
He’s also implying that there will be no guilty pleas whatsoever. That’s a ridiculous assertion, even if there is no right to plead guilty. The volume would be crushing. What of the defendant, who agrees that he commited Assault in the Third Degree and the prosecutor is of the same mind. Why waste everyone’s time and money and go to trial? Would a plea not suffice in that situation?
Anyway, let us assume that he means he won’t charge someone with crimes he doesn’t think he can prove. How sure does he have to be? The two innocence stories above are examples of shoddy investigation. I’m sure prosecutors in both cases thought (and still think) that they could prove their cases. It raises an interesting question: do the two innocence cases serve to bolster Ritnour’s new policy or do they inform us that no matter what, defending a win seems to be of prime importance.
See more from the Viscount of the blawgosphere.
As always on this blog, there are no answers. Only (stupid) questions.
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