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Why Would Prosecutors Refuse DNA Testing?

In this Oregon capital case, it could ensure that the state doesn’t execute the wrong man.

DNA Lab at University of Michigan

Why Would Prosecutors Refuse DNA Testing?

In this Oregon capital case, it could ensure that the state doesn’t execute the wrong man.


On March 20, 1998, Harriet Thompson was found dead in her Salem, Oregon, apartment. The scene was gruesome, “a scene from a slaughterhouse” the District Attorney would say — blood stains on the floor, bloody shoe-prints, bloody towels, a bloody bathroom and a broken, bloody knife. The police formulated a theory that the crime was a murder-robbery.

A week later, the police arrested Jesse Lee Johnson because he had some of Thompson’s jewelry, allegedly giving earrings to his girlfriend and selling a ring. Johnson admitted he had been in Thompson’s apartment — he knew her — but denied being involved in her death. At trial, prosecutors presented some forensic evidence — a cigarette butt, footprints and fingerprints — to argue that Johnson had been in the house that day and had killed Thompson. Prosecutors offered to let Johnson plea to manslaughter, which he turned down. He was then convicted of capital murder and sentenced to death.

Johnson has maintained his innocence for twenty years. Now, his counsel, Steven Wax of the Oregon Innocence Project, is asking for DNA testing of 38 samples from the crime scene. Many of them were never tested; others were tested using an older DNA test that has fallen out of use because it is not as accurate as current methods. The Marion County District Attorney’s office is opposing any requests to test more evidence, arguing in their brief that “this is not a DNA case.”

Even though DNA testing has helped exonerate over 340 people, there are still prosecutors who oppose disturbing standing convictions, favoring finality over justice.

For example, St. Louis County Prosecutor Bob McCullough defended the capital conviction of Marcellus Williams even though post-conviction DNA testing pointed to a different person. McCullough’s office and the Missouri Attorney General’s office continued to argue that other evidence, mostly consisting of jailhouse snitch testimony, pointed to Williams’s guilt. Ultimately, the Missouri governor stayed the execution pending an investigation.

In another recent Philadelphia case, Anthony Wright faced execution for a rape and murder that he did not commit. Wright — who was only 20 at the time of his arrest — says he gave a confession after being threatened by the police. Post-conviction DNA testing, which the original prosecutor Lynne Abraham resisted, pointed to another suspect. Despite the fact that a judge ordered a retrial based on the DNA results, then-District Attorney Seth Williams prosecuted Wright again and lost.

And, even though DNA testing is the gold standard for convictions and exonerations, there are differences in how DNA evidence has historically been processed as well as how that evidence can be used and interpreted. In the early stages of DNA exonerations, the evidence was relatively simple — DNA from a rape kit, for example, definitively excluded the exoneree from the crime.

In Johnson’s case, the DNA evidence requires more interpretation because, as Johnson admits, he was in the apartment. Therefore, it would make sense that his DNA would be found on objects also in the crime scene. For example, some evidence was tested for DNA, but the results were not conclusive. Some DNA samples — like those from the bloody bathroom and the likely murder weapon — excluded Johnson, but law enforcement never matched the DNA to anyone else. Some DNA samples were mixed and difficult to process. Some DNA matched other people. And some DNA samples did match the defendant, but they could also have been present because Johnson had been in the apartment before. (The state used other evidence — like footprint matching — at trial, but the results were not only potentially tainted by law enforcement but have also been deemed unreliable by the scientific community.)

This is likely to be the next generation of DNA exonerations — cases where the DNA can point to other suspects or cast appreciable doubt on a conviction.

Last Friday, Johnson’s counsel argued in favor of additional DNA testing while the DA’s office defended their position that the current Oregon law does not apply to Johnson’s case because, they argued, there was not enough to show that the results would fully prove Johnson’s innocence. Steve Wax, Johnson’s legal counsel, argued that the Oregon statute only required a “reasonable possibility” that the evidence points to innocence. It would be impossible to prove otherwise until the testing is complete, as Wax explains. Via email he told me after the hearing, “Seven exclusions of Mr. Johnson’s DNA from items at the murder scene raise significant questions about the conviction that we are hopeful further testing could answer.”


Thanks to Josie Duffy Rice.

Plans for new Los Angeles jail frustrate criminal justice reform advocates

Plans for new Los Angeles jail frustrate criminal justice reform advocates


A planned jail expansion in Los Angeles has generated intense opposition and protest from civil rights and criminal justice reform organizations.

Last month, 100 protestors challenged the city Board of Supervisors to redirect funds earmarked for new locked facilities toward community services and other “alternatives to incarceration.”

The Los Angeles Board of Supervisors first approved the plan to allocate $2 billion to build a 3,885-bed jail to replace the 5,276-bed Men’s Central Jail, located downtown, in 2015. The plan also calls for the construction of a 1,600-bed women’s facility to replace the current women’s lockup in Lynwood.

Critics maintain that there are far better ways to spend what they believe will ultimately be a $3.5 billion investment by the city in these proposed replacements.

“We can find $3.5 billion to build more jails, but we can’t find money for schools. We can find money for Olympics, but we can’t find money for parks,” said Greg Akili of Black Lives Matter, one of the groups leading the charge against the proposed expansion. “If you’ve got $3.5 billion, invest it in the people.”

Jayda Rasberry of the Los Angeles based grassroots group Dignity and Power Now agrees: “These beds represent trauma, torture, embarrassment, isolation, shame and death.”

Los Angeles Sheriff Jim McDonnell and District Attorney Jackie Lacey both support the proposed new facilities, arguing that they will lead to improved treatment of mentally ill inmates. Lacey told the Los Angeles County Board of Supervisors that the replacement jail “will allow us to treat them more humanely, provide more resources for them.” Current estimates put the mentally ill population at approximately 20% of the 17,000 people incarcerated in Los Angeles.

Critics of the new facilities do not disagree that the Men’s Central Jail is old, decrepit, overcrowded, and long overdue for closing. But they question spending public money on another locked facility. Natalie Pifer, an assistant professor of criminology at the University of Rhode Island, told In Justice Today that city officials should consider a “better way to care for the mentally ill,” one that is “done outside of the carceral setting.”

Moreover, Patrisse Cullors, a Los Angeles native and a founder of Black Lives Matter, argues that the city should impose a moratorium on all new jail construction until it has a better grasp on the impact of recent state-level criminal justice reforms. These include proposals to overhaul the bail system, re-classify some offenses from felonies to misdemeanors, and early release measures — all of which will likely decrease the city’s overall incarcerated population.

“What we should be doing,” Cullors maintains, “is getting a clear understanding of who’s in our jails and investing in their health and well-being instead.”

Keramet Reiter, an assistant professor of criminology at the University of California, told In Justice Today that, in one respect, she believes the proposed jail represents an improvement because it houses fewer inmates than the old one.

“Any reduction of bed space is good,” she said.

But Reiter conceded that moving forward to build the jail would, in effect, bring to an abrupt halt the larger public discussion about city investment priorities.

“It will be a long time before we have this debate again,” Reiter said.

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Cy Vance’s Double Standard

Wikimedia Commons, user Saffie 55

Cy Vance’s Double Standard


If you’re facing criminal charges in Manhattan, it appears you might be able to get out of that jam with the right campaign donations. And if you don’t have that kind of cash? Expect to face jail time and fines, even for the lowest-level offenses.

This is the transactional possibility suggested by a series of high-profile prosecutions Manhattan district attorney, Cy Vance, Jr., has dropped in recent years. While powerful people in entertainment, real estate, and politics avoided prosecution, Vance’s office pursued thousands of charges for prostitution, loitering, and turnstile jumping, among other “quality of life” offenses. Not coincidentally, the people most likely to face those kinds of charges — low-income people, people of color, trans people, and immigrants, to name just some — are not likely to have well-connected attorneys and deep pockets.

This double-standard is at play in the thwarted investigation into Harvey Weinstein. The powerful Hollywood producer has now been accused of sexual harassment and sexual assault by multiple women in the entertainment industry, with more allegations still coming forward. One of those women, Ambra Battilana Gutierrez, reported Weinstein to the NYPD in March 2015, and even volunteered to help them try to catch Weinstein on the record. You can hear that tape for yourself: not only does Weinstein admit to groping Battilana, he states he was “used to that.” And he continues to attempt to intimidate her, all while being recorded with NYPD listening in.

Even with the tape, Battilana’s account, and the NYPD’s own account, District Attorney Vance declined to prosecute.

In the same year Vance dropped the Weinstein case because — as his office now claims — the NYPD didn’t have enough evidence of criminal intent, the NYPD made arrests for 326 prostitution-related offenses in Manhattan, which also ended up in Vance’s office. A few of these were for “loitering for the purposes of prostitution,” a charge usually used against women of color (cis and trans) on the street. A few more arrests were for “unauthorized practice of a profession,” typically a charge women in massage parlors face. Most charges were for prostitution.

Some of these prostitution charges are likely the result of sting operations where police pose as customers, deceiving their targets into agreeing to or actually having sexual contact with them. Some officers, like Officer Michael Golden, have repeatedly had sex with the women they arrested. This conduct is not permitted, but Vance’s office declined to prosecute Golden for multiple sexual encounters with women in prostitution investigations.

In a typical prostitution case, it is the officer’s word prosecutors rely on. They continue to use preprinted forms that prompt the arresting officer to document the attire the accused was wearing, or if the neighborhood they were in was an area known for prostitution — by which they mean, an area where police repeatedly arrest people for prostitution. For example, in Manhattan, sex is probably being sold at the Tribeca Grand Hotel, which is where the NYPD caught Weinstein on tape in his own attempt at quid pro quowith an actress. But that’s not policed the same way as Hell’s Kitchen is, the fifth most-policed neighborhood for loitering-for-prostitution of all five boroughs.

What New Yorkers charged with quality of life offenses lack is what Weinstein had when facing potentially far more serious charges: the power to get out of it. Most New Yorkers aren’t the son of former police commissioners, like Greg Kelly, who was accused of sexual assault in 2012, and who Vance chose not to prosecute. In that case, as in the allegations against Weinstein that Ambra Battilana Gutierrez brought to the NYPD in 2015, it was the woman who told police she was assaulted who ended up smeared in the press.

There’s another apparent factor in who Vance chooses to prosecute: campaign contributions. Not long after Vance dropped the Weinstein investigation, he received a $10,000 donation from Weinstein’s lawyer. Vance’s communications director says the lawyer, David Boies, wasn’t representing Weinstein in the 2015 criminal case. However, Boies was a major Vance donor. Between Boies, his son, and his partners, Vance received $182,000 in donations, according to the International Business Times.

All this has prompted reporters and political observers to ask questions about what looks like Vance’s pay-for-play, which appears even stranger given that Vance is currently running unopposed for his third term as Manhattan District Attorney. Democrat Vance has also taken donations from Marc Kasowitz, an attorney for the Trump organization. In 2012, Vance’s staff say they had a strong felony fraud case against Donald Trump, Jr. and Ivanka Trump. But after a visit from Kasowitz, Vance overruled his staff, and the investigation was dropped. Vance says he has returned these funds. But overall, Kasowitz contributed $50,000 to Vance.

On balance, these might seem like small political donations. But the women accused of selling sex in Midtown hotels and on Hell’s Kitchen streets are probably not in the habit of, nor have the ability to make, such contributions. In and out of the revolving door of prosecution they, along with thousands of other New Yorkers, remain.


The views and opinions expressed in this article are mine and do not necessarily reflect the views of the Fair Punishment Project.

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