Forensics & Investigations

Inmates' Access To DNA Evidence: Part Two

By Phillip Martin   |   Tuesday, November 22, 2011
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Nov. 22, 2011

betty ann waters and kenny waters

Betty Ann Waters used DNA testing to exonerate her brother Kenny. Now she's advocating for a Mass. law that will make it easier for inmates to access similar evidence. The Innocence Project)


Massachusetts legislators are considering a bill that would allow inmates access to DNA evidence that was critical to their convictions. Though the legislation is supported by the Massachusetts Bar Association, the state crime lab and many police departments, it is not clear that it will be passed by the spring deadline. Advocates say it can help free the innocent. Opponents believe the bill might serve to assist the guilty. Read the first part of this report.



BOSTON — It was during her second year at Roger Williams Law School in Rhode Island that Betty Ann Waters first heard about DNA.
 
“It’s such a fabulous tool. It’s a miracle!” she said.
 
Waters was convinced it would prove to be the key to unlocking the cell that had been her brother’s home for 18 years. Kenny Waters had been convicted of murdering Katharina Brow, a mother of two in the town of Ayers in 1980, and sentenced to life without parole.
 
Years later, Betty Anne Waters became her brother’s attorney. She gained access to a blue-green window curtain from the victim’s home. Prosecutors said it was splattered with the killer’s blood. So Waters had it tested for DNA evidence.
 
It turned out the blood was not her brother’s.
 
A second key piece of evidence was missing from the original trial that Waters says could have influenced the outcome in her brother’s favor. Fingerprints were left behind at the murder scene.
 
“Not only were they fingerprints involved, they were bloody fingerprints that were only discovered two years ago,” says Waters. “The person that lifted them was a state police officer who lifted the prints at the scene and retired two weeks before Kenny was arrested and took them home with him. And it’s not a case isolated. There are so many cases like it.”

Hopes for DNA — and exoneration
 
David Siegel, the co-director of the Center for Law and Social Responsibility at New England Law School,says that DNA can make or break a case. Siegel co-drafted the original state legislation in 2003 that would have provided inmates access to critical DNA evidence.

“In a case involving violence, homicide or a sexual assault, when someone leaves biological material, whether it’s blood, saliva, skin tissue — those things have DNA that can be extracted from them and that can exclude or include a particular person to a very, very high degree of accuracy,” he said.

Tyrone Dixon
is staking the remainder of his life on it. Dixon is an inmate at MCI Norfolk. Nearly 20 years ago, he was convicted of killing a man in Taunton. He’s relying on a baseball cap left at the scene to set him free for a crime he says he did not commit.
 
“Because it’ll show that my DNA is not on the hat. And that was one of the key figures of evidence, back then they didn’t have DNA,” he said. “I always try to fight for my freedom. I always maintain my innocence.”

An argument: easier access, or no?

DNA testing has become the tool of choice for many justice rights organizations. Gretchen Bennett, the director of the New England Innocence Project, is pushing hard to enact stalled legislation in Massachusetts that would both mandate the preservation of DNA evidence and allow inmates’ lawyers access to that evidence. Attorney General Martha Coakley supports the bill, as does a long list of law enforcers statewide.
 
So why is it that Massachusetts to this day does not have a post-conviction DNA law that would allow potentially innocent people in prison to contest their convictions? Bennett offers a theory.
 
“I don’t understand,” she said. “No one I speak to actually says ‘I’m opposed to that.’ I think the opposition could only come from people who don’t understand what it is we are trying to do and who are still suffering some misapprehension that this is a bill that lets people out of prison.”

A victims' advocate weighs in
 
That’s exactly how Wendy Murphy feels. She says the entire public conversation has excluded the voices of the victims. Murphy, a former Middlesex County prosecutor, now lectures at New England Law School, where she specializes in sex crimes. She argues that the growing emphasis on DNA as a means to assist the wrongly convicted puts an added burden on victims.
 
“We already have a problem in not enough sex crimes are reported or handled fairly by juries. So the last thing we need is to undermine fair expectancies from jurors,” Murphy tells WGBH News. “That’s what I hate about this argument that DNA is some kind of great pill that will release the truth to all of us. It almost never does. It distorts the truth to the disadvantage of victimized women and children. “
 
Bennett rejects this argument.
 
“I’m actually very close friends with one particular woman who was a victim of a terrible, terrible sexual assault.” Bennett says the woman accidentally misidentified her attacker, “who was later proved not to be the actual assailant through DNA testing and they did in fact identify the real assailant. And she breaks down in tears when she talks about the fact that the evidence in that case was three days away from being destroyed, and she says all the time that the real assailant would have been out on the street forever, free to commit as many more crimes as he wanted.”
 
Bennett argues that everyone loses when the wrong person sits in prison and the actual rapist or murderer is out on the street committing more crimes. Lawyer Betty Ann Waters agrees and says she laments that access to DNA was not available in 1980 when her brother was investigated originally. “They would have tested the blood at the scene and they absolutely would not have arrested my brother,” she says.
 
In 2002, Waters helped pass a DNA statute in Rhode Island, where she lives. She is now campaigning on behalf of the Innocence Project for passage of the Massachusetts bill. Her brother was freed in June 2001, 18 years after being imprisoned for a crime he did not commit. He died six months later in an accidental fall. The actual murderer who stabbed Katharina Brow 30 times has never been found.


WGBH’s two-part report on post-conviction DNA access was produced in cooperation with the Schuster Institute for Investigative Journalism at Brandeis University.

Inmates' Access To DNA Evidence: Part One

By Phillip Martin   |   Monday, November 21, 2011
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Nov. 21, 2011


In Massachusetts over the past two decades, eight people have been released from prison after serving time for crimes they did not commit. DNA tests proved their innocenceBut access to DNA evidence after a conviction is a more difficult process for inmates in Mass. than for inmates in 48 other states. A report in the Boston Globe Magazine by the Schuster Center for Investigative Journalism at Brandeis University examined why. Now WGBH News questions whether DNA evidence could help another man serving life in Massachusetts.

BOSTON — On September 29, 1992, Tyrone Dixon of Albany, N.Y., was visiting his family in Taunton, Mass., when an off-duty cop heard a loud noise and sprinted over to the scene of a car accident not far from the DeWert housing project, where Dixon spent time. According to the police report, Jeffrey Poissant, the driver of a red Chevy Beretta wrapped around a pole, was slumped over the wheel with two bullets in his chest. He later died.
 
Police found bags of marijuana in the car, three different types of head hair and a baseball cap. Police also found witnesses who said that Tyrone Dixon was the shooter. But other witnesses said that Dixon was not in the car or in the area of the shooting that night.
 
“At first, I’m like ‘Well, once I go to the police station and iron this out, I’ll be out,’” said Dixon, sitting in the visitor room of MCI-Norfolk. “Speaking to my lawyer back then, he was like, ‘Don’t worry. When everything comes out you’ll beat this,’ because it wasn’t me, first of all. And I just knew how the trial was going… and there was no way they could convict me with all the evidence and all the witnesses and everything that transpired.”

Dixon was 18 when he was convicted. He is 38 today and serving life.

“The eyewitnesses who placed him at the scene of the crime, many of them have changed their stories and have recanted… and so that’s why he’s trying to seek the DNA evidence,” said Michael Blanding of the Schuster Center for Investigative Journalism at Brandeis University. Blanding co-authored the Nov. 20 Boston Globe story on DNA along with Lindsay Markel, the center’s assistant director.
 
How to access the evidence?

Blanding pointed out that Massachusetts actually has very liberal laws for inmates to request new trials. “But,” he said, “in order to do that they have to present some kind of new evidence that shows that justice wasn’t done in the original trial.”

And thus the conundrum: Without access to DNA evidence, it’s hard to demonstrate possible miscarriages of justice. Yet today, Massachusetts remains one of two states that do not grant inmates access to DNA evidence after they have been convicted. Oklahoma is the other. Blanding called it a catch-22.
 
According to Dixon’s current attorney, Claudia Bolgen, the local district attorney’s office lost some hairs that were on the baseball hat in the car. “But the hat itself does exist,” said Blanding. “And with the technology that exists at present they can actually take DNA… off a sweatband of a hat and get a reliable sample that way.”
 
Since the establishment, in 1989, of DNA as a tool to ascertain guilt or innocence, 280 inmates around the country — including 17 on death row — have been exonerated.
 
A story of exoneration

One story of innocence proven using DNA was so compelling that Hollywood turned it into a 2010 movie called “Conviction.” It concerned a Massachusetts man named Kenneth Waters, who was convicted of a vicious 1980 homicide in the town of Ayer, Mass. The movie focused on his unlikely path to freedom with help from his sister, a high school dropout–turned-lawyer named Betty Ann Waters.
 
In the movie, the sister was played by actress Hillary Swank. In a 16th-floor conference room with a panoramic view of downtown Boston, the real Betty Ann Waters recalled the legal nightmare that began with the murder of a young woman in 1980.
 
“My brother was questioned at that time because he had a criminal background. And they let him go. He was cleared. They knew where he was at the time of the murder,” she said. “Two and a half years later while the case had gone cold, my brother gets a knock on the door and he was arrested for the murder.”
 
Circumstantial evidence determined Kenneth Waters’ guilt, according to the trial transcripts. His sister explained why the prosecution believed they had connected the dots.
 
“There was blood at the scene, type O-positive, and my brother Kenny was type O-positive and back then they didn’t have DNA testing,” she said. “So without having fingerprints or anything else, and just type O-positive and the statement of an ex-girlfriend saying he said he did it, my brother was convicted.”
 
Then she discovered what she called the miracle of science. “I heard the word ‘DNA’ being thrown around while I was in law school and I learned all about the Innocence Project and other people like my brother.”
 
That list of people like her brother includes some inmates in Massachusetts prisons. According to the New England Innocence Project and the Schuster Center for Investigative Reporting, some may be in sitting in prison for crimes they did not commit — claims that could be proven or disproven by DNA.

Read the second part of the story.



Phillip Martin’s report on DNA post-conviction was produced in cooperation with the Schuster Institute for Investigative Journalism at Brandeis University. Florence Graves, the center’s director, explained why they are focusing on cases of potential wrongful convictions in the Commonwealth:
 
“We are really looking for the truth. We are not working on any case where the evidence seems to indicate that the person is in fact guilty. And [if] at any point in that process we turn up information that suggests that, we will not continue working on that case. The vast majority of cases, we are told, have no DNA to test. So we are really only seeing through these DNA exonerations a very tiny percentage of potential cases of wrongful conviction.”

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About the Author
Phillip Martin Phillip Martin
Phillip W. D. Martin is the senior investigative reporter for WGBH Radio News and executive producer for Lifted Veils Productions. In the past, he was a supervising senior editor for NPR, an NPR race relations correspondent and one of the senior producers responsible for creating The World radio program in 1995. He was a Nieman Fellow at Harvard in 1998. Learn more at liftedveils.org.

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