Airdate: January 11, 2000
The Case for Innocence
Written, Produced and Directed
PETER JENNINGS, ABC News: Two men convicted of murder
were released from prison today, including one who had been on death row. It
was DNA that set them free.
CONNIE CHUNG, ABC News: A judge ordered Bloodsworth
released after DNA tests showed someone else raped and murdered the young girl
BRIAN WILLIAMS, NBC News: Tonight there's word another
wrong has been righted by science.
NEWS REPORTER: Tonight he owns his freedom after DNA
NARRATOR: In the last few years we have seen and heard
news of inmates being set free after years of imprisonment when new breakthrough
DNA tests proved them innocent.
FREED INMATE: Freedom!
NARRATOR: It was exciting news.
NEWS REPORTER: Attorney Barry Scheck arranged for the
DNA test which-
NARRATOR: Yet these victories are extremely
Prof. BARRY SCHECK, Cardozo School of Law: So many of
these cases are literally wars.
PETER NEUFELD, Civil Rights Lawyer: Even after we have
access to the evidence, even after we get a DNA exclusion, very often we
encounter unseemly obstacles in the criminal justice system.
Prof. BARRY SCHECK: Prosecutors will come into court
and say "Don't let them test that DNA evidence that could prove him innocent
because it's too late."
NARRATOR: DNA has given us a unique opportunity to
examine cases of innocent people who were wrongfully convicted. The problem is
that not everyone wants to look at them.
CLYDE CHARLES: Every time I ask them and they say no,
I say "Why?" I can't believe this!
JACKIE CRINER: I thought that DNA was our God-sent
miracle, you know, and now they're still not letting my son out? You know, what
is it going to take?
NARRATOR: No one knows how many innocent people sit in
U.S. prisons today. But what DNA is showing us is that even those with the best
of evidence will not necessarily get out.
Prof. JIM LIEBMAN, Columbia Law School: Innocence is
not enough. There's no right to say "I'm innocent. I can't show anything else
that went wrong at my trial, I can only show that I'm innocent." That is not a
basis for getting out of prison in this country.
NARRATOR: Tonight on FRONTLINE, The Case for
On the evening of September 27, 1986, in Montgomery County,
Texas, in a wooded area, a body was found. It was the body of a young girl who
had been sexually assaulted and murdered between 5:00 and 7:00 that afternoon.
Her name was Deanna Ogg. She was 16. Within a few weeks, a suspect was
arrested. His name was Roy Criner.
Jim Cooper, now a lawyer, then a private investigator,
investigated the case for Criner's defense.
JIM COOPER: Having been a private investigator
specializing in criminal cases - predominately homicide cases - for almost 10
years, I investigated more than 200 murder cases. And out of all those years
and all of those cases, there's only one person that I can say beyond any doubt
in my mind that he's innocent, and that's Roy Criner.
NARRATOR: Roy Criner, a logger, was 20 and a year out
of high school when he was arrested.
JIM COOPER: As a defense investigator working a
homicide case, my primary focus is to go out and find the holes in the case.
That's what was most frustrating in this case, because there was no case to
punch any holes in. There was no physical evidence to try to prove that it was
not credible. There was no witness testimony to try to prove that it was not
credible. The only case they had was this statement that Roy had made to his
NARRATOR: David Walker, the prosecutor,
DAVID WALKER: If he had never spoken of the crime to
anyone, there might never have been a prosecution. There was very, very little
OFRA BIKEL: So what was your case based on?
DAVID WALKER: Primarily the testimony of three young
men who Mr. Criner spoke to, if you will, or bragged to about the events
surrounding the death of Ms. Ogg.
OFRA BIKEL: That's it?
DAVID WALKER: That was primarily the evidence,
OFRA BIKEL: You- and this is overwhelming
DAVID WALKER: Well, it was certainly enough to satisfy
the jury at the time.
NARRATOR: The three friends were Michael Ringo, Terry
Dale Hooker and Jeffrey Pitts. According to the three, Roy Criner told them
that he had picked up a hitchhiker and had sex with her. But from then on, the
One said that Roy reported the girl he picked up was a blonde.
The other said it was too dark to see inside the truck. Two said that he had
told them it had happened on the Friday, the night before Deanna Ogg was
murdered. One said that he said it was on Saturday night, after the
One said that Roy was talking about oral sex. The other
thought he mentioned rape. They said that he'd told them the girl he picked up
was drunk and was 20. The victim, Deanna Ogg, was not drunk, and she was
The prosecutor assumed that the girl in question was Deanna
Ogg and wasn't particularly concerned about the inconsistencies of the
DAVID WALKER: If all of those stories were absolutely
consistent in their revelation of alleged facts, then I think that would be
suspicious. And that would probably raise the allegation that somehow those
stories were contrived.
NARRATOR: By the time we met Roy Criner 14 years
later, he had been in jail for 10 years and there was little left of the young
ROY CRINER: How do I feel about them friends? How do
I feel about them friends. I grew up with them. All of them have children now,
and I hope none of this ever happens to them because they know that I didn't do
NARRATOR: Jeffrey Pitts, one of the three witnesses
who testified at the trial, was Roy's friend and employer.
JEFFREY PITTS: He just said he had picked up a girl
that night and carried her down the road, and they- they had sex. You know,
that was pretty common, you know, with young guys. You know, we just
NARRATOR: But during the four years of the ongoing
investigation, Pitts, like the other witnesses, was called and re-called by the
police, and his story changed and damaged Criner.
JEFFREY PITTS: One of the officers that was making me
write the statement down kept trying to add words to my mouth. He would say,
"Didn't Mr. Criner tell you he murdered the girl?" I said "No." I says, "I'm
not going to write that down," I said, "because he did not tell me that." They
took my statement several times. Well, it's kind of hard to keep remembering
NARRATOR: At the trial, Pitts also testified that he
was away from the logging site for about three hours on the afternoon of the
murder. According to the prosecution theory, this gave Criner a window of
opportunity to drive out, rape and kill the victim and return to the site. Yet
Jeff Pitts was the one person who could have testified that Roy Criner could not
have committed the crime.
JEFFREY PITTS: There's no possible way Roy could have
left the job that day. If he would have left, I would have run into him. The
guard would have seen him. We would have met, due to the fact there's one way
in, one way out. And it would take anywhere from an hour, hour and a half, to
get out to a road.
NARRATOR: According to Pitts, Roy did an enormous
amount of work while he was gone.
JEFFREY PITTS: When I returned, there was roughly
around two loads of wood decked up. I've been doing this my whole life, and I
couldn't have had that much done. Roy would not have had time to cross the
street to rape somebody in that time period. He just- there's no possible
OFRA BIKEL: Why didn't you tell that to the
JEFFREY PITTS: I did. I told it to the police. They
just- they did not write it down. I went to document, and they said, "No,
that's not what we want."
OFRA BIKEL: They said that?
JEFFREY PITTS: Right, and they said that was not
nothing that they was asking about.
OFRA BIKEL: Why didn't you testify at the trial as a
defense witness, telling them all that?
JEFFREY PITTS: I was never asked. None of Roy's
attorneys asked me. When you set on a trial, you answer what they ask you. And
that's what I did.
NARRATOR: He was never called to testify for the
defense. In fact, Roy Criner's lawyers felt that the state's evidence was so
flimsy that they didn't need to call any defense witnesses. One of the
attorneys was Robert Morrow.
ROBERT MORROW: Our strategy was, after looking at all
the evidence that the evidence was insufficient, as a matter of law. They had
no physical evidence at all to prove any connection between Mr. Criner and the
offense. They started out with a capital murder charge that then, by the time
they reached trial, they had gone back to a aggravated sexual assault. So we
felt like the state's testimony only was going to be witnesses who were
unreliable, and they were going to repeat some alleged oral statements that Mr.
Criner was said to have made.
In looking at all the evidence, we felt going in, and then
after having heard it, that it was insufficient as a matter of law.
NARRATOR: The jury did not agree. On May 1, 1990, Roy
Criner was convicted and sentenced to 99 years in prison for aggravated sexual
JACKIE CRINER: I don't think words can ever tell you
how I felt inside. They did permit Roy- they did- they did permit Roy to hug me
before they let him out. [weeps] Words can't express, or can't put- say
how I felt when they convicted him.
RICHARD CRINER: We've been robbed. I've been robbed
of my brother. And it's just, you know- he's, like, put my whole family in
jail. I mean, it feels like the whole family's in jail.
JACKIE CRINER: You know, I mean, here you give birth,
and you raise them up. You think they're going to go on out to the world and be
a happy man. And then they're took from you for 99 years. And in my heart and
in my soul I knew he did not do the crime.
NARRATOR: Appeals lawyer Ray Bass felt that he had a
good chance to have the verdict reversed.
RAY BASS, Appellate Lawyer: Well, the law is
suspicious of alleged admissions made by someone. I mean, the easiest thing in
the world to do is to say, "He admitted to me he did- he committed this crime."
And so anyone who is your enemy, anyone who has an axe to grind against you
could cause you great difficulty simply by saying that you said something. And
so the law demands that you cannot convict someone on their alleged out-of-court
NARRATOR: Based on insufficient evidence, Roy Criner's
verdict was reversed in the Beaumont Court of Appeals in September,
JACKIE CRINER: He got out on appeal. That was a
blessing, happy. The world was back together. And then our world crumbled
NARRATOR: One year later, in December, 1992, the Texas
Court of Criminal Appeals unanimously reversed the appellate court's decision
and held that the evidence was indeed sufficient. Judge Charles Baird
Judge CHARLES BAIRD: The evidence was primarily the
victim's body, the location of where she had been sexually assaulted and
murdered, three statements by Mr. Criner, which we would call extra-judicial
statements. They were statements that were made outside of court, but they were
not formal statements like confessions. And there was also some- some type of
scientific evidence in the form of a comparison with Mr. Criner's blood type and
the semen taken from the victim's vagina and rectum.
NARRATOR: In essence, the Court of Criminal Appeals
reinstated the jury's original verdict. The foreman of that jury was Joel
JOEL ALBRECHT, Jury Foreman: I'm trying to say that
the comments that he made to his friends from the back of the pick-up truck that
night was an important thing. I'm trying to say that there was some comments
relating to a screwdriver seemed very important. There was some testimony
relating to blood that- that seemed very important.
NARRATOR: The tests that existed in the mid-'80s were
ABO tests, which could only type groups of blood without being very
BOB BURTMAN, Journalist: The evidence that the state
presented was that it could have been Roy by virtue of the blood test. Now, the
odds were 50-50. It could have been him, or it could have been 50 million other
people. But it could have been him.
NARRATOR: Bob Burtman, a journalist at The Houston
Press, wrote an article about the case called "Hard Time."
BOB BURTMAN: In fact, I believe Walker said at trial,
"Is there any scientific evidence to prove that this was Roy? Yes, there is,
and the blood test is it," because he was trying to explain why they had 27
other pieces of forensic evidence, and none of it matched to Roy. So he said,
"Yeah, the blood matches. That could be Roy."
NARRATOR: And so Roy Criner went back to prison to
serve the rest of his 99-year sentence.
Then, in 1997, veteran appeals lawyer Mike Charlton heard
about the case and agreed to help. Aware of the advances made in DNA testing
over the previous decade, he decided to approach the family.
MICHAEL CHARLTON, Appellate Lawyer: We told the Criner
family, "Look, there is a DNA test." You know, "We can- we can go do this test,
and if it shows that he's innocent, then you've got very strong evidence that he
ought to get a new trial. And if it shows that he's guilty, well, then nothing
that we can do for you will ever get him out of the penitentiary."
JACKIE CRINER: When our attorney went up there and
looked at Roy and says, "Roy, we're going to run a DA- a DNA on you," he said,
"I'm going to tell you what." He says, "or I can go through paperwork." He
says, "I'm telling you, Roy, you will nail your coffin if- if you're not
MICHAEL CHARLTON: We told Roy that "If you do this DNA
and it comes back and it's your DNA in that semen, you'll be in the prison the
rest of your life. You'll never get out. Nothing- no lawyer can save you if-
if that's your DNA." And he looked us right in the eye and said, you know, "Do
it. I'm not worried about it. It's not mine. Just do it."
OFRA BIKEL: Weren't you worried about the
ROY CRINER: No, ma'am. Not as much as my lawyer
OFRA BIKEL: Why? You felt your lawyer was
NARRATOR: The defense was allowed to send the DNA
evidence to be tested at an internationally reputable lab, Cellmark. The report
came back negative. The findings were that it was not Roy Criner's DNA.
Refusing to accept the results, the district attorney's office insisted on
re-testing the evidence in the state's lab. The D.A. is Michael
OFRA BIKEL: Why did the state test the DNA?
MICHAEL McDOUGAL, District Attorney: To make sure that
the tests were done properly.
OFRA BIKEL: And they were done properly?
MICHAEL McDOUGAL: Yeah. As far as I know.
NEWS ANCHOR: And good evening, everyone. Roy Criner
was sentenced to-
NARRATOR: The results of the state's test made
NEWS REPORTER: He could soon be a free man.
NEWS REPORTER: That DNA test shows that the semen
found in the victim is not Criner's.
NEWS REPORTER: The judge said if jurors had known all
this, they might have acquitted Criner.
NEWS ANCHOR: A judge in Montgomery County today ruled
the new evidence means Criner deserves a new trial.
NARRATOR: But the family was soon to discover that the
process was not so simple.
BRENDA VERRON, Aunt: I thought Roy'd be home in two
weeks. And then when Roy didn't come home in two weeks, I told Jackie, "Well,
he'll be home for Christmas." Christmas rolled around. I couldn't understand
why didn't they release Roy? And it's like our hands are tied. What are we-
what do we do next?
RICHARD CRINER: I feel like I just can't do nothing.
You know, who do I go talk to? Do I go up there and sit at the state capitol,
wait for Mr. Bush? Do I sit down in Montgomery County, picket the parking lot?
I mean, where do I go? What do I do? It's just- it's a nightmare.
NARRATOR: It was a nightmare that would last much
longer than they had imagined. What they didn't know was that the district
attorney had dismissed the results of both tests- the defense's, as well as his
OFRA BIKEL: Why, then, did you send the DNA to your
MICHAEL McDOUGAL: To make sure that what the defense
was telling us was in fact true, that it wasn't his. We didn't know that except
that they were saying they- "We had it tested. It's not his."
OFRA BIKEL: Okay, so now you know it's not his. So
MICHAEL McDOUGAL: Well, I don't know that it's not his
just because they tell me it's not his. So I've got to test it and see if it's
OFRA BIKEL: So now your lab told you it's not
MICHAEL McDOUGAL: Right.
OFRA BIKEL: So now what?
MICHAEL McDOUGAL: So now it's not his.
OFRA BIKEL: So what are you going to do about
MICHAEL McDOUGAL: Nothing. It's not his.
OFRA BIKEL: But he's still in prison.
MICHAEL McDOUGAL: He's still in prison.
OFRA BIKEL: And he will stay there?
MICHAEL McDOUGAL: And he will stay there.
NARRATOR: For a long time, the family could not
believe that the tests would simply be ignored.
JACKIE CRINER: Now we have two DNAs that really tells
the real true story and the real facts. And nobody can get around
NARRATOR: The district attorney did not see it that
OFRA BIKEL: It seems to me that by doing your own
test, you are admitting that the test is important, or why would you spend the
money to do another test if- if it doesn't make any difference?
MICHAEL McDOUGAL, District Attorney: Well, just
because- to make sure that the defense was correct in their assertion that- that
the- that he was not the donor.
OFRA BIKEL: And he wasn't.
MICHAEL McDOUGAL: And he wasn't.
OFRA BIKEL: And yet it doesn't make any
MICHAEL McDOUGAL: No, it doesn't make any difference.
I'm not going to argue with you! I've told you, and I've explained to you what
it is. It means that the sperm found in her was not his. It doesn't mean he
didn't rape her, doesn't mean he didn't kill her. So whether we spend money or
not- we spend money on all kinds of things.
NARRATOR: The district attorney's office filed
documents opposing a new trial. The court of criminal appeals decided six to
three in its favor. This time, Judge Charles Baird, joined by two other judges,
Judge CHARLES BAIRD: A majority of the judges on the
Court of Criminal Appeals, in an opinion written by Judge Sharon Keller, said
that this new DNA evidence that exonerated Criner, at least as far as not
depositing the semen, was not compelling enough because perhaps Criner wore a
condom, or perhaps Criner did not ejaculate when he sexually assaulted the
victim. That was their rationale.
OFRA BIKEL: Does that make sense to you?
Judge CHARLES BAIRD: It does not make sense to me at
all. And it did not make sense to the state when they prosecuted Mr. Criner
because they never advanced either one of those theories at the trial.
NARRATOR: Sharon Keller, who wrote the majority
opinion, is considered one of the most influential judges on the Texas Court of
Judge SHARON KELLER: The evidence didn't show that he
did not have sex with this woman. It can't. Just like the absence of
fingerprints right here doesn't show that I didn't touch that chair. It can't
show that he didn't do it.
Judge CHARLES BAIRD: What this case says to me more
than anything else is that perhaps the method of judicial review is not as
credible and reliable as we would like. If you have scientific evidence that is
agreed to by both the state and the defense, you would think that it would be
reliable and relied upon by appellate judges in this state. But in Mr. Criner's
case it was not.
OFRA BIKEL: Shouldn't the DNA test be considered
Judge SHARON KELLER: It could be important. If it had
come back positive it would have been important because it would have meant that
he- it would have been more evidence that he did what he said he did.
OFRA BIKEL: But- but the other way?
Judge SHARON KELLER: It- it just doesn't mean that he
didn't have sex with her.
NARRATOR: According to Judge Keller, there could be
other scenarios where Criner could have raped Deanna, while the semen found
inside her would belong to someone else.
OFRA BIKEL: How could that be?
Judge SHARON KELLER: Well, you're not forgetting there
are- you're not taking into account the fact that she was a promiscuous
OFRA BIKEL: Do we know that?
Judge SHARON KELLER: Yes. I mean, the state-
actually, there's evidence in the record that the state could have put on
testimony, and then there's specific kinds of testimony that she was
OFRA BIKEL: Why would they even want to?
Judge SHARON KELLER: Well, they didn't want to at the
first trial because there was no reason to. But if- if they were to- if they
had to establish why she would have someone else's semen inside her, then I'm
sure they would want to put on that evidence.
BOB BURTMAN: They're turning Deanna Ogg, the victim,
into a slut to explain away the DNA evidence. That's unconscionable.
NARRATOR: While investigating the case for his
article, "Hard Time," Bob Burtman learned that the police documented the last
two days of Deanna Ogg's life and found no evidence of sex.
BOB BURTMAN: It really bothers me that now they're
coming back and saying, "Well, if Deanna Ogg had been pure and virginal, then
the DNA evidence would have more meaning." I find it incredible that they are
now demonizing Deanna Ogg to try and explain away the fact that Roy Criner's DNA
doesn't match what was found on the victim.
NARRATOR: This is not news to defense attorney Peter
Neufeld who, together with Barry Scheck, has dealt with dozens of these
PETER NEUFELD, Civil Rights Lawyer: In almost all of
our cases, the prosecutor's theory of the case was that one person alone seized
the woman, raped her, and then left her. Once we get the DNA exclusion, a whole
range of new prosecution theories emerge.
There is the theory of the unindicted co-ejaculator. This is
a person who obviously comes out of nowhere, and while our client is holding the
woman down, this other person actually rapes the victim.
Then there is the theory that, "Ah-ha! This person wore a
condom and, in fact, she had consensual sex with someone else shortly before."
This theory is put forward even in the face of documentation where the victim
told the doctors "I have not had any intercourse with anybody in the last 72
Then there is the theory of a victim who's lying, because if
all else fails, they've got to say their own victim is lying and she doesn't
want to admit that she had some kind of illicit sex because she's married,
because she has a boyfriend, because she's engaged, whatever. Even though the
victim swears she didn't, even though there's no evidence that she did, they
still throw this out there.
And it's not- it's not believable, but that doesn't stop them
NARRATOR: With all these arguments swirling around
him, Roy Criner clings to one simple thought: He is innocent. The DNA tests
proved it. [www.pbs.org: Learn more about this case]
ROY CRINER: Now I have proof. Now they know that I
didn't do it. They can come up with more, and they can say whatever they want
to say, but they know I didn't do that.
NARRATOR: In fact, no one, including Judge Keller,
denies that there is a possibility that Roy Criner may be innocent.
OFRA BIKEL: But you would agree, actually, that maybe
he may be innocent?
Judge SHARON KELLER: I don't really know, if you're
talking about from the point of view of actual innocence.
OFRA BIKEL: Yeah.
Judge SHARON KELLER: Oh. I suppose that that is a
possibility. But he certainly hasn't established it.
MICHAEL CHARLTON, Appellate Lawyer: You know,
innocence is supposed to be what this system is all about. You know, what most
people think is if you're innocent and you prove you're innocent, you ought to
get a new trial. Everyone in this country believes that. The only people that
don't believe that are people that work in the criminal justice system. This is
the only place- the criminal justice system, is the only place where innocence
NARRATOR: Judge Baird explains the logic.
Judge CHARLES BAIRD: Typically, the burden of proof is
on the state to prove beyond a reasonable doubt that the individual charged with
the crime in fact committed the crime.
It's different after the case has been tried and the appeal
has been finished. When an individual brings a writ of habeas corpus and says,
"I'm innocent," we put the burden on him to prove his innocence, and it takes
What Mr. Criner brought in this case was, I think, was the
compelling evidence of DNA that said he did not deposit the semen that was found
in the victim. But the burden was on Mr. Criner, and I think he met that burden
of showing that there was newly discovered evidence, which if believed by a
jury, would establish his innocence.
NARRATOR: But using the same legal guidelines, Judge
Keller reasons that the DNA is not compelling evidence of Criner's
Judge SHARON KELLER: It's his burden to establish that
he is innocent. And what- apparently, what you think he's established is that
he might be innocent. That's not sufficient. He has to establish
unquestionably that he is innocent and he hasn't done it.
OFRA BIKEL: But how do you do that? How can you prove
Judge SHARON KELLER: I don't know. I don't
RAY BASS, Appellate Lawyer: I guess maybe we should
have a seance, and we should contact Deanna Ogg, and maybe she can tell us who
the killer was. Short of that, if DNA won't do it, I guess nothing
PASTOR: Lord, thank you for this day you've given us,
and thank you for-
JACKIE CRINER: If two DNAs and they still won't let
him out, you know, I have nobody but the big man upstairs. I will never quit
fighting for him, and I will never quit praying.
PASTOR: - that you're with us, Lord, and it's your
will that you will release him, Lord-
NARRATOR: Roy Criner needs all the prayers he can get.
The national trend has been to restrict drastically the number of appeals after
conviction, so his chances for a new trial are getting slimmer, while the
reality of spending the rest of his life in prison looms large.
RAY BASS: You know, the question I ask, what harm-
what harm would there be in giving him another trial? What great principle is
at stake? And I don't understand how anyone could- could believe that we
somehow increase confidence in the system by protecting this jury
Judge CHARLES BAIRD: That was exactly my point. Why
not give him another trial? If the state thinks they have another theory of
prosecution that they can prove beyond a reasonable doubt, well, then let them
do that. If Mr. Criner would like to have another trial and this time bring in
this compelling DNA evidence, then let him do that. That's certainly what the
trial judge wanted in this case, and that's what I sought to have happen. But I
did not- I did not carry the day with that.
OFRA BIKEL: What's the harm in giving a person like
Roy Criner another trial?
MICHAEL McDOUGAL, District Attorney: Individually
there's no harm. Collectively there's great harm. I mean, it- case law and-
and the legal system is based on precedent. And somebody says, "Well, you gave
Roy Criner a new trial. I want a new trial. I've got this over here." And
somebody else is going to go, "Well, I've got this over here. I want a new
trial. You gave Roy Criner one, give me one."
I can't afford to put the taxpayers of this county in that
position of giving everybody a retrial that may come up with some kind of
something that may- may indicate they may not be guilty when a jury has already
said, "Yes, you're guilty," when an appeals court has already said, "Yes, you're
RAY BASS: The jury that made that decision had before
them scientific evidence that said, well, it could have been Roy Criner. We now
know that it could not have been Roy Criner who was responsible for the semen.
And I don't know how anybody can say that would not have had some effect on the
Judge SHARON KELLER: I think the nature of this DNA
evidence being a negative, as opposed to a positive kind of evidence, would not
have made a difference in the jury's verdict.
JOEL ALBRECHT, Jury Foreman: I don't understand how
the court could say what we would do. It would be impossible.
OFRA BIKEL: Could you think back at what you feel you
might have done?
JOEL ALBRECHT: I personally think if the DNA came
forth stating that it was negative, that the verdict would not have been
OFRA BIKEL: That simple.
JOEL ALBRECHT: That simple.
NARRATOR: Even the prosecutor agrees that the presence
of the DNA evidence at trial could have changed the outcome.
DAVID WALKER: Since DNA evidence can be rather
compelling, I don't think there's any question that the presence of that
evidence at the time of trial would have presented a substantial hurdle for me
NARRATOR: Yet he, too, vehemently opposes another
trial. Bennett Gershman, former prosecutor and now professor of law at Pace
BENNETT GERSHMAN: Think about it this way. After
having invested so many months and possibly years in prosecuting a person, after
going to the- working with the police and working with the witnesses and the
family, and engendering the confidence in all these people, standing up and
saying to a jury, "This man is a horrible killer. This person is subhuman.
Find him guilty. Do the right thing," for the prosecutor to then years later
come into a courtroom and say,"Judge, we made a mistake. The man I called an
animal is really innocent," the prosecutor- for the prosecutor to go back to his
witnesses and to go back to the family and say, "I'm really sorry, but the man
that we've all believed was this horrible, subhuman beast is really
The prosecutor does not want to do that. He'll let somebody
else do that, maybe the judge, maybe the media, but not that prosecutor because
it undermines our system. Our system has to create this aura of- of close to
perfection, of certainty that we don't convict innocent people.
NARRATOR: Whatever the different opinions are, in the
end, only those of Judge Keller and the majority of her colleagues count. And
what they ask for is irrefutable, unquestionable proof of innocence.
Judge SHARON KELLER: That's the standard we use, and
he didn't prove it. At best, he made some people think that he might be
innocent. But he didn't prove that he was.
Judge CHARLES BAIRD: The bottom line is today, if you
can't get relief when you have DNA evidence that shows that you're innocent of
the offense for which you've been convicted, if you can't get relief under those
circumstances, then you're just not going to get relief from the appellate
NARRATOR: So without relief from the appellate court
or a pardon from the governor, Roy Criner may remain in prison for the rest of
his natural life.
Only a few years ago, there had been one more route he could
have taken, the federal route. But now this route, too, has been blocked. It
is ironic that as DNA revolutionized the criminal justice system, demonstrating
that there are more innocent people in prison than one had assumed, a
conservative Supreme Court has drastically restricted Habeas Corpus, the means
by which unjustly convicted people can get a new trial. Mainly aimed to limit
the delays in death penalty cases, the restrictions on Habeas affected the whole
Jim Liebman is a professor of constitutional law at Columbia
Prof. JIM LIEBMAN, Columbia Law School: The death
penalty is a very highly politicized issue in this country. You know, people's
political careers stand or fall on how tough they are on the death penalty. And
there's a real fear that, if we open up the system and start looking at every
nook and cranny for problems, that we're going to have to be releasing more
people not only from prison but from death row. And politically, that's a very
difficult, unpopular thing to do.
So the death penalty is distorting our view of the people who
are not under sentence of death, but are in prison for 10 years, 15 years, for
life. I think if the death penalty were not distorting the system, we would
feel a lot more comfortable. A lot of prosecutors and attorneys general and
others would feel a lot more comfortable about looking at these cases. But
they're afraid that they're going to turn out- they're going to- they're to
loosen- let people go from death row, and that's a lot more
NARRATOR: In 1996, a year after the bombing in
Oklahoma, Congress passed the Anti-Terrorism and Effective Death Penalty Act
which, among other severe restrictions, further limited the accessibility to
federal appeals by imposing time limits on them: one year for all cases, six
months in some capital cases. After that, it would be virtually impossible to
reopen a case, now matter how strong the claim of innocence is.
PETER NEUFELD, Civil Rights Lawyer: There are men in
Washington who have articulated the position that all due process affords you is
a fair trial, and if that means that an innocent person has to spend the rest of
his life in prison, or even worse, lose that life, then so be it. That's all
you're entitled to under the Constitution.
NARRATOR: The arguments over the death penalty and the
case for innocence played out most dramatically in Virginia in the case of the
Commonwealth versus O'Dell. The crime was brutal and gory. The victim, Helen
Schartner, a Virginia Beach waitress, was raped and murdered on February 5th,
1985. The convicted man was Joseph Roger O'Dell, a career criminal who denied
committing the crime for which he had been sentenced to death.
JOSEPH ROGER O'DELL: It is beyond my comprehension how
anyone could sentence someone to die on the flimsy evidence that they had, and
almost no connection between me and the victim.
NARRATOR: From the beginning, it was a highly
ANNOUNCER: [CNN "Burden of Proof"] Joseph
Roger O'Dell is a condemned man. O'Dell's been on Virginia's death row since
his 1985 conviction, the rape and brutal murder of Helen Schartner.
NARRATOR: The evidence against O'Dell was based on
blood tests, but the results were disputed.
PROTESTERS: Stop the executions! Stop the
NARRATOR: The pleas did not help.
PROTESTERS: Stop the executions! Stop the
REPORTER: The execution of Joseph Roger O'Dell has
been carried out in a manner of-
NARRATOR: Yet even after his death, the controversy
GRETA VAN SUSTEREN, CNN: ["Burden of Proof"]
That was Joseph O'Dell. He was executed last Wednesday despite his claim of
innocence and despite his lawyer's claim that state-of-the-art DNA testing could
MSNBC NEWS ANCHOR: Our News Chat question of the day
is, would new DNA testing have saved the life of Joseph O'Dell?
REPORTER: People closest to O'Dell believed him to be
innocent, even as he lay on the executioner's table at-
NARRATOR: It was the dramatic event that could prove
the death penalty opponents' main argument, that the state is capable of
executing an innocent man.
Prof. JIM LIEBMAN: In some ways, that's the perfect
case to find out what happened. We're not going to release somebody from prison
and all of that, but if somebody really did get executed, that's when we'd
really want to know it, find out what happened and do something about it.
That's why I think the O'Dell case in Virginia is such a perfect experiment to
find out whether this kind of problem really happens.
NARRATOR: The evidence in question consisted of
several swabs of vaginal fluid taken from the victim. The government was
planning to destroy it. The defense fought back.
PAUL ENZINNA, Defense Attorney: The tests that we're
asking for are tests that have never before been done and never before could
have been done. You have a situation where technology got much better after Joe
O'Dell was executed. Joe O'Dell's dead. He's been executed. We can't change
that fact. That happened. Now I think we are entitled to know if the state was
right in what the- in putting him to death.
ROBERT HUMPHRIES, Commonwealth Attorney: As far as
we're concerned, the case is closed. Joseph O'Dell got what he deserved. He
got what the law required. Every court in the land has looked at the case.
It's over. And- and if- if people can't bring that to closure, that isn't my
problem, it's their problem.
NARRATOR: It is certainly a problem for Sheila Knox,
who is Joseph O'Dell's sister.
SHEILA KNOX: It will help me deal with my grief. It
will bring some kind of closure. It's like I'm in limbo. He's gone. He's paid
the price. He can't come back. But for my closure, I want to know.
ROBERT HUMPHRIES: If we were to try and use those very
same samples today, with the availability of DNA testing, we would be laughed
out of court because they're contaminated. They're- they've not been sealed.
The seals have been broken. There is no consistent chain of custody on the
evidence. We couldn't tell you what those things are except that they're
sitting upstairs in the clerk's office right now.
NARRATOR: Dr. Paul Ferrara is a renowned DNA expert
and the director of the Virginia state laboratory.
Dr. PAUL FERRARA: Well, scientifically, the tests on a
sample for which there is no chain of custody still may give you very useful
probative information. It's just that you won't be able to use that information
in a court of law.
OFRA BIKEL: But say, if you were my brother, I would
Dr. PAUL FERRARA: But you would know. I mean, yes.
That's right. We can- we can look at old evidence and ascertain possible
contributors of genetic material and give you that information.
ROBERT HUMPHRIES, Commonwealth Attorney: The problem
is the samples that he is starting from are samples that came from who knows
OFRA BIKEL: He knows that.
ROBERT HUMPHRIES: Well, then that's one thing we agree
on. He knows it, and I know it. And I'm saying that- that the samples are
OFRA BIKEL: But say the sample is very badly
Dr. PAUL FERRARA: If it got contaminated, then all of
a sudden we would start seeing contributions beyond those of just- that could
just be coming from your brother. And then we would say, "Okay, well, your
brother's involved, and there's somebody else involved."
OFRA BIKEL: I see. So basically, you would be able to
satisfy my need to know.
Dr. PAUL FERRARA: Yes. Today's technology is
unparalleled in terms of its sensitivity and its specificity.
SHEILA KNOX: I feel like I need it. I need an answer.
I need an answer.
ROBERT HUMPHRIES: I'd feel just as strongly, frankly,
and maybe even more strongly, for the family of Helen Schartner, who has had to
deal for 11 years now with this issue, and I think has finally, with his
execution, brought this case to closure. And I'm looking to get this file
closed finally, too. And so that's- that's where I'm coming from on all
PAUL ENZINNA, Defense Attorney: What I want now is, I
want that evidence tested because it is wrong for the state to burn evidence for
the sole reason of preventing people from getting information. The state
doesn't want the evidence tested. The reason they don't want the evidence to be
tested, obviously, is they don't want egg on their face from proof that Joe
O'Dell is innocent.
If the test come back- comes back, and it turns out that it-
that it is conclusive, that Joe O'Dell was, in fact, the rapist and the murderer
in this case, the state's not any better off than it is right now. They've
already got that. Joe O'Dell's been found guilty, convicted, sentenced to death
and executed. But if the evidence is tested and it comes back that Joe O'Dell
was innocent, then the state has a major problem.
OFRA BIKEL: Joseph O'Dell is dead, and everybody knows
that you can't bring him back to life. But the defense and the family want one
last test. Why not give it to them?
ROBERT HUMPHRIES, Commonwealth Attorney: Well, let me
ask you this. Is there any doubt in your mind that if this sample was analyzed
by Dr. Ferrara or anyone else and it turned out that it was inconclusive, it was
not Joseph O'Dell's blood type or DNA or Helen Schartner's DNA, that there
wouldn't be a press conference held announcing to the world that the
Commonwealth of Virginia had executed a completely innocent man? There's no
doubt in my mind of that.
PAUL ENZINNA: He's right. We will shout it from the
rooftops, and it should be shouted from the rooftops. Our government is an open
government. It gives the people information so they can make intelligent
decisions, and that's what we're fighting for here.
Prof. JIM LIEBMAN, Columbia Law School: I think that
probably the court will not allow the test to be done, and the DNA will be
destroyed and we'll never know.
NARRATOR: As of January, 2000, the Virginia supreme
court had still not handed down its final decision.
Prof. BARRY SCHECK, Cardozo School of Law: This is
total system failure. We're not talking about, you know, some procedural
due-process matter, some matter of unfairness in the way the trial was
conducted. We're talking about people who are actually innocent. And that has
to command our respect and attention and concern unlike any other kind of
MICHAEL CHARLTON, Appellate Lawyer: The system is
broken. If the system can't function fairly, if the system can't correct its
own mistakes and admit that it makes mistakes and give people an opportunity to
protect them, then the system is broken.
Prof. BARRY SCHECK: I think every person in this
country recognizes there's an issue of basic decency, and that if somebody is
innocent, it's a nightmare, it's horrible, that they should be in jail. That's
just wrong, and everybody understands that that's the whole point of the
You know, the average person on the street says, "Well, you're
guilty or innocent," right? They don't think about, you know, proof beyond a
reasonable doubt or anything like that. They think you're guilty or you're
innocent. If you're guilty, you should be punished. If you're innocent, you
shouldn't be there. Unfortunately, people who can actually show they're
innocent and they shouldn't be there can't even get to court now to prove
NARRATOR: Take the case of Clyde Charles in
Thibodeaux, Louisiana. Clyde Charles has been in Angola Prison, Louisiana, for
nearly 19 years for a rape he claims he did not commit. Fortunately for him,
the evidence box - a rape kit - had been preserved and could be tested. The
problem is that he has never been allowed to have it tested.
ROCHELL ABRAMS, Sister: The only thing we want is our
brother home. The only thing he wants is to come home.
CLYDE CHARLES: They sentenced me a natural life
sentence for to die. They thought I was going to just stop fighting. They
thought I was going to lose all hope- self-pity. But I didn't do that. I kept
seeking. I kept asking. I kept writing. I am not guilty of the charge that
they convict me of.
NARRATOR: The crime for which he was convicted
happened in Thibodeaux, Louisiana, late one night in March, 1981. After working
late, Clyde and his brother had a few drinks before walking to their respective
homes. Clyde's brother took one route, Clyde another.
Some time after they separated, Clyde, alone and still miles
from home, tried to hitch a ride with a police car. Instead of a ride, the
officer handcuffed him, threw him in the back of the car and sped toward the
hospital, where a woman had been brought in after being raped a few hours
earlier. With Clyde standing there, hands cuffed, they wheeled out the sobbing
victim and asked her if he looked like her rapist.
CLYDE CHARLES: What in the world they expect her to
say? You know, what in the world they going to expect this woman to say? Her
mom is there, her dad is there, and I'm the only black out there.
OFRA BIKEL: So she said you did it?
CLYDE CHARLES: Yeah.
NARRATOR: Accused of raping a white woman and tried in
front of an all-white jury, Clyde was convicted. He was sentenced to life
CLYDE CHARLES: One lawyer told me that the court
passed the buck on me. I say, "Passed the buck? What you mean, passing the
buck?" You know, they playing at some- they just didn't want to hear. There
was something like a hot potato. That's the best way she could say it to me.
And before all of them could get their hands burnt, they just passed it on
NARRATOR: The family never stopped fighting for
LOIS HILL, Sister: We've been going to the court since
1981 with one appeal, one brief, one case filed after another, and we've been
turned down for practically everything he's ever filed. Just "Writ denied," and
they didn't have to give a reason why.
NARRATOR: Lawyers left, despairing of being able to
help. Other lawyers took their place and also left, apologetic and
ROCHELL ABRAMS, Sister: Every time we think we get
some kind of opening here, something else comes along and just shuts it, you
know? Disappointment just after disappointment.
NARRATOR: Margaret Sollars stuck with them longer than
any other defense attorney.
MARGARET SOLLARS: If it weren't for Lois and the
persistence of that family and my inability to say, "No, I can't do any more"-
it would have been so easy just to close the book and say, "Well, it's done.
I've done everything." But I couldn't tell her no.
NARRATOR: Margaret Sollars's route to becoming a
defense lawyer was not a usual one. Republican and upper-middle-class, she
MARGARET SOLLARS: When I finished college, the choices
for women were to be a school teacher or a nurse or a secretary, so law school
was out of the question. And I taught school for 20 years and then went to law
school. And my second year in- in law school, my daughter was raped. And it
changed everyone's life in this house.
Sarah eventually died of anorexia. And when she was raped, we
went down to a hospital about 60 miles away because we wanted to make sure that
the rape kit would be preserved and everything would be done on the up-and-up.
And while we were down there - this was from, like, midnight till 5:00 or 6:00
in the morning - calls were made. And because the boy that raped her was very
well connected, nothing was done.
And so I decided that I had to go into criminal law in order
to try to make the system work. And people wonder, "Well, why not go work for
the state?" But I saw the state not being fair with people.
NARRATOR: Ms. Sollars felt that the state was not fair
to Clyde Charles, and she wanted to help. By the time she came to the case,
Clyde's request for a DNA test had been denied. She decided to
MARGARET SOLLARS: We wrote the appeal to the supreme
court, asking the supreme court to order that he be allowed to be tested. And
the supreme court just simply wrote "Denied," and that was the end of his case
as far as state appeals.
OFRA BIKEL: Based on what?
MARGARET SOLLARS: No explanation, nothing.
PETER NEUFELD, Civil Rights Lawyer: We have found a
number of cases where the defendants themselves for 9, 10, 15 years have been
demanding DNA testing, only to be rejected by trial courts and appellate courts
in the state and in the federal system, as well. They simply say, "The doctrine
of finality controls. What's over is over. We don't- we don't want to"- you
know, "We don't want to open the lid on that box. God knows what we might
find." I mean, it's- it's that kind of, like, bury-your-head-in-the-sand
attitude to justice and fairness. [www.pbs.org: Read a new government study
NARRATOR: In Angola Prison, Clyde was getting
CLYDE CHARLES: They didn't want to try it. I don't
know why they didn't want to try it. I asked the lawyers that I had, what
reason for a court in this system, a modern-day system, going to- don't want to
give me modern technology, extend that to me? He just hunk his shoulders up. I
said "Ain't that something?" I can't- I can't answer that. My shoulders still
hump. Every time I asked them, and they said no, I said "Why?" I can't believe
this! What reason for- and- and they just tearing my family up. Poor Lori.
She going crazy about this.
LOIS HILL, Sister : I am tired. I am sick and worn
because there's no need. If a person is acknowledging to you that "If you would
give me an opportunity to show you that I'm innocent- will you just allow me to
do that?" and they're not.
ROCHELL ABRAMS: At first, I did think it was because
it was a black-white thing, but now I just don't know what it is. All of that's
over with. The trial is over with. You have convicted him. You've put him
there, and he's still saying and we still saying he did not do it. Now we can
prove it. Give him the DNA.
MARGARET SOLLARS: It's almost malpractice. When the
family is willing to pay for the test, it's not going to cost the state any
money at all, the kit had been preserved, there was no reason in this world why
he couldn't have been tested.
CLYDE CHARLES: This the only way I'm going to be able
to get out. Whatever I put on that paper, whatever I put in they courtroom,
they could deny. But not that test result. They cannot deny that because
that's solid, concrete evidence.
LOIS HILL: [reading] "Dear Dr. Quigley: I am
writing this letter in behalf of my brother, Clyde Elton Charles in"-
NARRATOR: His sister, Lois, wrote dozens of letters
trying to get the DNA test done.
LOIS HILL: [reading] "I have been trying, I
have been writing to get help over the years and have not been successful. The
state of Louisiana is refusing to allow the rape kit to be analyzed."
NARRATOR: Many such letters find their way to the
Innocence Project at Cardozo Law School in New York City.
READER: "I am writing you because I am an innocent man
wrongly convicted for a crime for which I did not commit."
NARRATOR: Most of them will not get help because the
evidence has been lost or destroyed.
READER: "I know of only one person would pick up my
case and read it, they would know that I'm not guilty- "
NARRATOR: The project's mandate is to help wrongly
convicted prisoners by using new DNA tests which didn't exist at the time of
their trial. [www.pbs.org: Study other cases]
READER: "I pray to God that you will find it in your
heart to look at my case, and help me."
NARRATOR: Of the nearly 70 prisoners who have been
exonerated based on DNA evidence, more than half were the result of battles
fought here by the students and their professors, Barry Scheck and Peter
Neufeld. Clyde Charles's file was one of the hundreds stacked at the Innocence
Project. We asked Barry Scheck to look it over.
Prof. BARRY SCHECK, Cardozo School of Law: Oh, it's so
upsetting! When you look at the transcript of this case and the efforts that
this man made to get access to the evidence, it's extremely upsetting.
NARRATOR: He agreed to deal with the case personally,
bringing to bear the weight of his prestige. A new motion was filed in federal
court, and a telephone conference was arranged with the judge. Finally, after
all these years of waiting, Louisiana officials gave in and agreed to a DNA
Prof. BARRY SCHECK: [on the phone] And as soon
as those results are in, they'll be reported immediately. Everybody will know
what's going on-
When they know that national attention can be focused on a
case, and that we will be coming in with the best scientists and we will be
making the right motions and we will fight them tooth and nail every step of the
way, and people will pay attention to that fight, then I think we get more
cooperation than a lawyer that, you know, has lesser recognition.
NARRATOR: Overnight, the family's hopes for Clyde's
release soared sky-high.
FAMILY MEMBER: Oh yeah, we waited, looking for you!
How long, Clyde? Not long for Clyde. How long?
FAMILY MEMBER: Not long! Not long.
FAMILY MEMBER: Not long, Clyde. Not long. Hold
NARRATOR: Clyde Charles was finally going to have his
test. But first the state insisted that he give up his right to sue them for
having previously withheld the evidence from him. He had little
CLYDE CHARLES: It's the only way I'm going to be able
to get out. And it's going to be a glorious time when I do get free because I
know- I know I didn't do this here.
NARRATOR: We didn't want to tell him what his lawyer
Prof. BARRY SCHECK: Even if we get DNA tests that show
it's not him, experience teaches it doesn't work so easily, and there could be a
fight. I hope there isn't, but there could be a fight.
NARRATOR: It would take many weeks before the family
would find out what the future holds for Clyde Charles.
Barry Scheck and Peter Neufeld are currently representing over
200 prisoners with more than one thousand cases pending. But with all the
public acclaim, there is remarkably little legal self-examination.
PETER NEUFELD: You know, there've now been about 65
DNA exonerations post-conviction. In not one case has a prosecutor or a police
department reopened the investigation to look for the real criminal. They
haven't even bothered to do it. It's sort of like they- they shot their wad on
the- on the initial case, and therefore that's it. They can't do anymore
investigation. They can't do anymore policing.
Prof. BARRY SCHECK: If there was a airplane that fell
from the sky or a car that blew up or a hospital that had a terrible malpractice
and a patient died, there is a huge post-mortem. Everybody gets together. They
analyze the institutions. They see where the mistakes were made. Reports are
issued. There is a reevaluation. In the criminal justice system, we don't do
that. We just cut an order, and we're lucky if some press report comes out
Prof. JIM LIEBMAN, Columbia Law School: I think that
part of the reason that we let this happen is that the criminal justice system
is treated as if it's different from any other government process, private
company process, anything like that. We always say we want accountability, we
want to find our mistakes and make things work better, but when it comes to the
criminal justice system, for some reason they're off the hook. Somebody's
convicted, we assume they're a bad person. And I think prosecutors and
attorneys general and judges are not used to being- having to be accountable in
the way that most other people are in other walks of life or in other areas of
NARRATOR: One person who's held publicly accountable
is the governor. When the law is too harsh, when injustice is done, he is the
one who has been given the power to exercise discretion and mercy by granting
clemency or pardon.
L. DOUGLAS WILDER, Former Governor of Virginia: It's
an awesome power. It's not to be handled frivolously. It's not to be handled
to satisfy some whim or some momentary pique or some instance of popularity. It
has to be with, in my judgment, an opportunity for fairness and
NARRATOR: But Governor Wilder's idea of fairness was
tested in a case that began in Culpeper, Virginia. On June 4, 1981, a crime
occurred. A young white woman, Rebecca Lynn Williams, mother of two, was raped
and murdered. Before she died, the victim told the police that she was
assaulted by one black man. The crime went unsolved.
Nearly a year later, Earl Washington, a 22-year-old farmhand,
was arrested for breaking into an apartment of an elderly lady, Mrs. Helen
Weeks. When she woke up and surprised him, he hit her with a chair and fled.
Earl was charged with breaking and entering and attempted rape.
Bob Hall is one of Earl's lawyers.
BOB HALL: The authorities accused Earl of having
attempted to have sexual relations with Mrs. Weeks, an elderly woman. And the
only problem was that at the preliminary hearing on that charge, when the
prosecutor asked Mrs. Weeks if Earl had attempted to have sex with her, she said
NARRATOR: But with the specter of rape raised, the
police questioned Earl, who has an I.Q. of 69, equal to that of a child, about
many other unsolved sexual assault cases in their files. He confessed to all of
them. Nearly all of the charges were dismissed when witnesses' statements
indicated that he wasn't the perpetrator. Only one stuck.
Earl's trial for the rape and murder of Rebecca Lynn Williams
took three days. Based on his confession alone, he was convicted and sentenced
to death. John Scott, Jr., now a judge, was Earl Washington's defense
Judge JOHN SCOTT, Jr.: The alleged confession consists
of a statement prepared by a state trooper, with Mr. Washington responding to
each statement "Yes, sir." There are, if my memory again is correct, probably
about 20 statements by the state trooper, with Mr. Washington responding at the
conclusion of each, "Yes, sir."
BOB HALL: When asked the question, "Earl, did you kill
the woman in Culpeper," Earl ultimately is reported to have said yes. "Earl,
did you stab the woman in Culpeper?" Earl ultimately said yes. But if you ask
Earl to volunteer facts about this incident, Earl didn't have a clue. "Earl,
was she black or was she white?" "She was black." "Well that's wrong, Earl.
She was white." "Oh, she was white."
NARRATOR: In 1993, the BBC interviewed Earl
INTERVIEWER: Why did you tell them she was
EARL WASHINGTON: I didn't- I didn't see a picture of
her in the newspaper when she got killed or nothing. I just figured she was
INTERVIEWER: You figured she was black?
EARL WASHINGTON: Yes, sir.
INTERVIEWER: Without knowing what her color
EARL WASHINGTON: Yes, sir.
BOB HALL: They put Earl in the car. "Earl, can you
take us to the place where you did this?" They drove Earl around Culpeper.
Earl took them to a number of places that had no connection to the crime. To
try to evoke a memory, I guess, they drove him past the Village Square
Apartments where the rape-murder took place. Earl remained silent. They drove
on. He took them to another apartment project. They finally brought him back
to the Village Square, and said, "Come on, Earl. Isn't this the place?" "Yes,
INTERVIEWER: Do you normally tell people things you
think they want to hear?
EARL WASHINGTON: Sometimes. Yes, sir.
INTERVIEWER: Do you? Why do you do that?
EARL WASHINGTON: I don't know.
NARRATOR: One of the two African-Americans on the
otherwise white jury realized his predicament.
DEBRA HOLMES, Juror: The guy, to me, he didn't look
like he was really guilty because he was slow. To me, he was- I get emotional
every time I think about it.
OFRA BIKEL: Still?
DEBRA HOLMES: Uh-huh. Even still, because it was
wrong. It wasn't right. And I ask God, please forgive me, you know, for making
that decision, when- when my heart tell me what's right. And every time I think
about it, it still- it bothers me.
NARRATOR: Sentenced to die in the electric chair, Earl
was days from being executed when a few good lawyers agreed to help him in his
appeals. But by 1993, they had come to the end of the road. The only door left
was the governor of Virginia, who could grant clemency or pardon.
BOB HALL: We were before the governor on a clemency
petition. The governor wanted the results of the DNA on this case before he
made any decision in the case.
NARRATOR: The governor, L. Douglas Wilder, was a
Democrat and the first African-American elected to the job, which he held from
1990 to 1994.
L. DOUGLAS WILDER: We were ahead of any numbers of
states in our forensic departments, recognizing the need for DNA and making
certain that we moved forward in that technology. I'm glad we did.
NARRATOR: The technology had changed dramatically
between 1982 and 1993. Non-conclusive tests could now be re-tested. At the
time, the blood tests could not exclude Washington. Semen stains found on the
blanket were disputed. The victim's vaginal swab, a crucial piece of evidence,
it could now be DNA-tested for the first time. The results were startling.
According to the test, there was one DNA marker that could not have come the
victim, her husband or Earl Washington. One more individual had to be
The lawyers got a call. "There may be a complete pardon.
Your man didn't do it." Then a hitch.
Steve Rosenthal was the attorney general at the
STEVE ROSENTHAL: The tests clearly showed that there
was one trait that could not be attributed to Earl Washington, but that didn't
mean that it fully exonerated Earl Washington of the crime. It could have been
that Earl Washington, in conjunction with somebody else who contributed that
trait to the DNA test.
OFRA BIKEL: Two people.
STEVE ROSENTHAL: Two people could have been
Judge JOHN SCOTT, Jr.: At no time- at no time was
there ever any indication that a second person was involved in the perpetration
of this offense, according to the theories of the commonwealth, the
PETER NEUFELD: Regrettably, we see that all the time.
Prosecutors all of a sudden start floating a new theory. There was no testimony
to support it. There was no factual evidence to support it. But nevertheless,
they start with some new theory about how you could explain this man's guilt,
even though there's no evidence to support it. And it- it's quite
NARRATOR: By December of 1993, nothing was heard about
the fate of Earl Washington. Governor Wilder's term was drawing to an end, and
Earl's execution date was looming. There were rumors that the "two
perpetrators" theory was gaining ground, and that the governor ordered one more
test, that of the blue blanket. It was to be kept secret, with no word to the
BOB HALL: I've known Dr. Ferrara, the director of the
lab. I said, "Paul, you were- you did some additional testing of the blue
blanket. What- what was tested?" "I can't talk to you about that." "Well,
we've always had a good, open relationship, and you're a scientist and I'm a
lawyer. What were the findings?" "Without the governor's permission, I can't
talk to you about this."
I said, "Did it hurt us?" I don't remember Dr. Ferrara's
exact words, but the message was that nothing changed. The implication, the
inference was that the testing did not bring anything new to light. I asked the
governor's aide, "Can you let us have the results of the additional testing of
the blue blanket?" "The governor is not inclined to give that to
NEWS ANCHOR: There's Governor Wilder, Governor-Elect
George Allen. The last official act before leaving office-
BOB HALL: The day that was his last official day, we
got a call that, "Here's the proposal, and you have two hours to accept it. The
governor will grant Earl Washington clemency, commute the sentence to life
imprisonment with an opportunity for parole. He will not be pardoned. You have
two hours to accept it. If you don't accept it, the governor will take no
NARRATOR: While the ceremony was winding down, Bob
Hall pleaded for a little more time. His request was denied.
BOB HALL: "Mr. Hall, you don't understand. You have
two hours to accept. If you don't accept, nothing will happen."
NARRATOR: So not knowing if his client was cleared or
further implicated by the tests, Bob Hall had little choice.
BOB HALL: Complex became simple. To live for sure, or
to die maybe. And he opted to live for sure.
NARRATOR: It was not the victory the lawyers hoped
for. They wanted pardon, and they got clemency. Why? The answer, they felt,
was in the analysis of the blue blanket, which they were not allowed to
BOB HALL: The key issue at the absolute 11th hour was
clemency which means, "Earl, you did it, but you should die for it," versus
pardon- "You didn't do it, and you ought to go free." Why didn't we get the
pardon? "If the blue blanket testing had anything to do with that decision, let
us know what it showed." We've exchanged all of the forensic evidence. No
answer. No answer to this day.
OFRA BIKEL: You don't know.
BOB HALL: I don't know.
NARRATOR: When FRONTLINE asked Dr. Ferrara for the
test results of the blanket, to our surprise, he handed them to us. To anyone
who followed the case closely, the results of the test were explosive. Earl
Washington was definitively excluded.
Dr. PAUL FERRARA: The results of our testing on the
blanket are much more definitive in being able to eliminate Earl Washington as a
NARRATOR: But there was more. The test pointed to an
unknown individual as the possible rapist, a fact that was never investigated or
made public. The results were withheld from the defense lawyers.
BOB HALL: I don't know.
OFRA BIKEL: Do you want to know?
BOB HALL: I'd like to know.
OFRA BIKEL: We found out.
BOB HALL: Well, I hope you'll share it with
OFRA BIKEL: The blanket excluded him. Earl Washington
was excluded. Here.
BOB HALL: The power of the press. [reading]
"The sperm fraction of stain D of the blue blanket is an individual possessing a
1.1/1.2 genotype. Based on that opinion, both Earl Washington, Jr., and James
Pendleton are eliminated as possible contributors."
Now you understand the quandary. Why clemency?
OFRA BIKEL: Now you understand the quandary.
BOB HALL: No, I don't understand the quandary. The
basis that took us from that phone call from the attorney general's office- "Got
good news for you. Your man didn't do it," then additional testing, and our man
didn't do it-
NARRATOR: We asked former attorney general Rosenthal
what he knew about that test.
STEVE ROSENTHAL: I would say that I would be surprised
if you tell me that there was a test that totally exonerated Earl Washington and
that that information has not made it to the governor's office. I would be
OFRA BIKEL: Here. Take a look at that.
STEVE ROSENTHAL: This is the first time I've seen this
document. Now, should the governor's office have known? Well, obviously.
That's something you need to take up with the governor. I- I- this is the first
time I've seen this document.
L. DOUGLAS WILDER: [radio call-in program] We
can handle all of that, and I look forward to hearing from you.
CALLER: Great. I appreciate your time,
L. DOUGLAS WILDER: Stay on the line. Thanks for
calling. Okay, let's go to Tom in Mechanicsville. Tom, we're on.
CALLER: Hello, Governor. How you doing?
L. DOUGLAS WILDER: I'm fine, sir.
CALLER: First, I want to ask you, who do you think
will win tomorrow?
NARRATOR: Former governor Wilder is now a professor
and host of a radio talk show. When we met him, we did not have to show him the
last test. He knew all about it.
L. DOUGLAS WILDER: They sent the results of that DNA
test, and you're saying that no one knew the results?
OFRA BIKEL: No one.
L. DOUGLAS WILDER: I didn't know that.
OFRA BIKEL: No one.
L. DOUGLAS WILDER: Well, I didn't know. I knew
OFRA BIKEL: You knew it, but you're the only
L. DOUGLAS WILDER: Well, I- I think- I think you're
wrong on that.
NARRATOR: He couldn't imagine, he said, why the
lawyers did not know about it.
L. DOUGLAS WILDER: I don't have any idea what it is
they didn't know. And you'll have to talk to those people.
OFRA BIKEL: I did talk to them. And what they told me
was that you had ordered a test, the third test, to which they have never gotten
L. DOUGLAS WILDER: I don't know when the tests were
taken, in terms of one, two, three. I'm going by what was presented to me as to
what the test revealed. I wasn't looking to see this was taken at 2:00 o'clock,
this was taken at 3:00 o'clock, this was taken on the 5th, this was taken on the
6th. I was looking at the composite. The complete record of the case was
before me, and that's what I looked at.
OFRA BIKEL: So as far- as far-
L. DOUGLAS WILDER: Now, why anyone didn't know about
aspects of it, I have no idea.
OFRA BIKEL: Do you think he really knew that you
didn't have the results?
BOB HALL: Absolutely.
OFRA BIKEL: What do you think it was about,
BOB HALL: I couldn't get beyond this deeply seated
feeling that the reason Earl didn't get pardoned, conditional or otherwise, had
a political component to it, that when the governor left the office of governor,
that he had other ambitions, that he wanted to run for the United States Senate,
and that he was afraid that Earl Washington, if pardoned, would be out on the
street and commit some crime and would become- Earl Washington would become
Willie Horton to Governor Wilder's Senate campaign.
I thought that at the time. Seeing this report, I have
nothing to do but confirm that my suspicions were true.
NARRATOR: Ultimately, the governor did not make a run
for the Senate. But was it on his mind when he was thinking of his political
future? He wouldn't reply to our question. But it is a political truism that
freeing prisoners does not get votes.
Prof. JIM LIEBMAN, Columbia Law School: They don't
want to do it. Of course, it's very, very controversial. People have had their
political careers destroyed by giving clemency in these cases.
OFRA BIKEL: So they pass the buck one to the
Prof. JIM LIEBMAN: They pass the buck, except nobody's
there to receive the buck anymore. The buck's just stuck in between.
OFRA BIKEL: What I feel is that maybe unwittingly you
put him in no-man's-land.
L. DOUGLAS WILDER: I think you might look back and
even think that maybe wittingly I saved his life.
OFRA BIKEL: Yes. Yes, you did- but-
L. DOUGLAS WILDER: Right. Well, don't you think that
would be more positive?
NARRATOR: This was a question that Earl Washington,
who lives his life behind bars, could probably not understand or answer. As for
BOB HALL: I'm outraged. It's only because I'm a
controlled person that my sense of outrage is sitting in some part of me that
I'm not going to let you see. But I am outraged.
OFRA BIKEL: Come on.
BOB HALL: No, no.
OFRA BIKEL: You are outraged.
BOB HALL: Right. The truth didn't set Earl Washington
Prof. BARRY SCHECK, Cardozo School of Law: I think
most people would think that the Constitution would never permit an innocent
person to stay in jail. But unfortunately, that's a right that's going to be
hard-won and hard-fought in the courts right now.
Prof. JIM LIEBMAN, Columbia Law School: Innocence is
not enough. There's no right to say, "I'm innocent. I can't show anything else
that went wrong at my trial. I can only show that I'm innocent." That is not a
basis for getting out of prison in this country.
PETER NEUFELD, Civil Rights Lawyer: For a long time,
we always talked about, you know, that the system has some problems, but it's
far and away the greatest system known to man or woman. What we're seeing now,
with all these DNA exonerations and the difficulty people are having in putting
forward claims of innocence, is that our system has far many more failings than
we ever imagined.
NARRATOR: In Angola prison, Clyde Charles had been
waiting for the results of his tests.
CLYDE CHARLES: The test will speak for itself. And it
going to be a glorious time when I do get free.
NARRATOR: Clyde Charles's DNA tests came back just
before Christmas, 1999. He was exonerated. He had been in prison for 19 years.
This was Clyde's first morning of freedom.
CLYDE CHARLES: It's a dream come true. I couldn't
even comprehend it was going to be this glorious. Couldn't comprehend it.
Beautiful day. Beautiful day. But I want to know why. I want to know why they
did this to me for so long. And it's always going to be there. I don't think
they could even start to explain to me why.
A FRONTLINE coproduction with
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THE CASE FOR INNOCENCE
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