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                            LexisNexisª Academic

              Copyright 2001 New York Law Publishing Company
                            New York Law Journal

                           August 6, 2001 Monday

SECTION: Pg. 1

LENGTH: 947 words

HEADLINE: Brooklyn Prosecutors Find Convictions Pass DNA Test

BYLINE: By Daniel Wise

BODY:
AT THE TURN of the new year the Brooklyn District Attorney's Office embarked
upon a comprehensive search for DNA evidence that could possibly exonerate
persons still serving jail terms for serious crimes.

The search -- the only one of its kind by any District Attorney's Office in
New York City -- has yet to find a case where it would be appropriate to
send a DNA sample for testing.

In 403 (or 57 percent) of the 703 cases reviewed so far, the office
concluded that the testing of DNA evidence, even if it were available, would
offer no hope of exonerating an inmate. In another 266 cases (or 38
percent), no forensic evidence that might yield DNA evidence was discovered.
And in 21 cases where forensic evidence was tested -- all of them sex crimes
-- no genetic material was identified. The bottom line is that of the 703
cases reviewed to date, only two are still being actively examined to
determine whether genetic material can be recovered for comparison to the
convicted person's DNA.

Brooklyn District Attorney Charles J. Hynes ordered the review in early
2000, according to Barry Schreiber, chief of the homicide bureau, in the
wake of extensive publicity about the use of DNA evidence to exonerate
inmates on death row as well as some serving lengthy prison terms for murder
and rape.

Before the review, Mr. Hynes had ordered the release of an inmate who had
been sent to prison for 36 years on the basis of eyewitness testimony from a
person whose credibility was seriously undermined. A judge had also ordered
the release of a second inmate, who had spent 12 years in prison based upon
the same discredited witness's testimony.

Mr. Schreiber, however, distinguished searching files for DNA evidence from
reviewing post-trial complaints from inmates that their convictions had been
tainted. Where credible evidence of an injustice is raised in an individual
case, Mr. Schreiber said, it has been the longstanding policy of the office
to undertake its own re-evaluation of the case. That is precisely what the
office did, he said, in the cases involving the witness, Dana Garner, whose
credibility had been undermined.

In undertaking the DNA review, Mr. Scheiber said, the District Attorney
wanted to insure the office uncovered any case "where an injustice had been
done."

Added John J. Holmes, who is overseeing the review of approximately 1,200
homicide and serious assault cases (600 of which have been completed so
far), "if we can come up with a case where a defendant was wrongly
convicted, that would make the whole effort worthwhile."

'Concerns' Raised

However, Jane Green, the executive director of the Innocence Project, which
has litigated many post-conviction DNA cases across the country, saw red
flags in the fact that the Brooklyn review had yet to find a single case
worthy of DNA testing out of the more than 700 cases looked at.

In conducting its review, Brooklyn prosecutors had eliminated 333 cases
where the defendant had either confessed or acknowledged committing the act
(for instance, claiming sex was consensual in a rape case) that formed the
basis of the crime.

In another 39 cases, prosecutors reviewing the files had concluded that
proof of the defendant's guilt was so overwhelming that a search for DNA
evidence would not be worthwhile, and, in 31 more, that the facts of the
case were such that DNA testing would not be conclusive (e.g., in a case
where witnesses had identified two or more defendants).

Ms. Green, of the Innocence Project, said those categories "raised
concerns," and suggested it would be best to err on the side of caution in
deciding that cases are not worthy of DNA analysis. Sometimes, she said,
what look like overwhelming cases, with multiple witnesses and a confession,
crumble once DNA testing is completed.

However, Deputy District Attorney Rhonnie Jaus, who oversaw the review of
101 sex crimes cases, said that a "careful analysis was conducted by
experienced assistants," who excluded a case from further review only after
finding compelling evidence of a defendant's guilt.

Altogether, more than 45 assistants were enlisted to conduct the file
reviews. Mr. Homes said he was able to disqualify from further review about
25 percent of the 600 homicide and serious assault cases reviewed so far. He
said he made that decision after reviewing key documents that he had asked
paralegals to assemble on each case. Assistants to whom the other 450 cases
were forwarded spent anywhere from two to 16 hours in completing their
reviews, he said.

State Corrections List

In attempting to capture any case where there may have been a miscarriage of
justice, Mr. Holmes said, the Brooklyn office asked the state's Department
of Correctional Services (DOCS) to compile a list of all inmates currently
in prison who were convicted in Brooklyn of a homicide, serious assault or a
sex crime. The search was limited to inmates convicted before Jan. 1, 1996,
because after that date, DNA testing was quite common, and state law gave a
defendant a right to request DNA testing, he said.

The DOCS search yielded the names of about 1,300 defendants who are still
serving time after having been convicted by a jury or judge in Brooklyn.

Of the total, 101 of the inmates had been convicted of sex crimes, and 1,200
of homicides or serious assaults that could have have produced a death.

The review of all 101 sex crime cases has been completed, but only 602 of
the homicides and assaults have been reviewed to date, according to data
supplied by the office. Of those, only two remain open while awaiting
results on whether there is enough genetic material available to conduct DNA
testing.

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