PRESERVATION OF EVIDENCE IS VITAL

But is often not done

Dallas County's emergence as a national leader in DNA exonerations of wrongfully convicted men raises fresh questions about the quality of justice the court system has dispensed over the past three decades. Whether 12 innocent lives were shattered because of honest human error or overreaching by prosecutors remains to be determined. Craig Watkins, the county's new district attorney, said last week that he would investigate.

But, ironically, the high number of exonerations would not have occurred had Dallas County not had a policy of preserving - sometimes for more than 20 years - the biological evidence required for genetic testing. Dallas has had more DNA exonerations than any other county in the U.S. - 12 since 2001, according to the Innocence Project, a New York-based nonprofit legal clinic dedicated to freeing those wrongfully convicted. The county accounts for half of Texas' 24 DNA exonerations, the group said. By comparison, Illinois has had 26 DNA exonerations and New York state 21.

The latest example of new DNA tests overturning old cases came last week for 50-year-old James Waller, who was convicted of raping a 12-year-old boy in 1982 - a crime he said he never committed. State District Judge John Creuzot apologized at Waller's hearing and said he anticipated one more DNA exoneration in his court.

Barry Scheck, the New York attorney who co-founded the Innocence Project, said Dallas County's rate of wrongful convictions was "very, very high," but he could not explain the reasons for it. "It could be something as simple as we find the evidence more here," Scheck said after the hearing. "I suspect other cities could have numbers that high if we could find other evidence," he added. The lack of evidence available for testing around the country is routinely cited by advocates as one of the biggest obstacles to winning exonerations. More than half the time, evidence has been lost or destroyed.

But with the district attorney's backing, Dallas County's forensic lab long ago established a policy to maintain evidence indefinitely. The policy existed for at least a dozen years before state law lengthened the time biological evidence had to be retained. Dr. Tim Sliter, chief of physical evidence at the county-run Southwest Institute of Forensic Sciences, estimated his lab has at least seven freezers full of rape kits and other biological evidence, each containing 10,000 samples dating to the early 1980s. The lab has a policy of never consuming a sample in a DNA test, and it never destroys evidence. "It's basically just good practice," Sliter said.

John Rolater, who until recently handled post-conviction DNA applications for the district attorney's appellate section, said the approach to evidence was "keep everything forever" in case it might be needed for a retrial. "It was more of a law enforcement motive, but it turns out to benefit everybody," said Rolater, now an assistant district attorney in Collin County.

Ten of the 12 Dallas County convictions invalidated by DNA occurred in or before 1989, when the first exoneration in the country took place in Chicago. No state or local law enforcement agency is required to keep statistics on how often evidence has been available for DNA testing by those convicted. Records of the Texas Department of Public Safety, which conducts the bulk of post-conviction DNA tests around the state, show that Dallas County cases accounted for 26 of the 112 tests processed since 1999 - twice the number of more populous Harris County. The DPS statistics do not explain the differences in numbers between counties.

Including work by private labs, 32 Dallas County cases have undergone post-conviction DNA testing, the district attorney's office said. Twelve produced exonerations, nine affirmed the defendant's guilt, and six are pending. Tests in five cases were inconclusive. The cases where testing was ordered represent about 7 percent of the 464 applications submitted to Dallas County felony court judges since passage of a 2001 law that allowed for post-conviction genetic analysis.

To be granted a test, the law requires a convicted person to prove that identification was an element in his or her case, that evidence for DNA testing still exists and that the evidence, if known at the time, would have prevented the conviction. Defense attorneys have complained that the law places too heavy a burden of proof on those convicted and that prosecutors routinely object to testing requests, which can effectively delay action, sometimes for years.

David Dow, director of the Innocence Network at the University of Houston Law Center, estimated thousands of felons have applied for genetic tests but said less than 100 of those applications have been granted by the courts. "It's not that a lot have been denied," Dow said. "A lot of these cases sit there, and there's nobody there to move them." Dow characterized the 12 DNA exonerations in Dallas as a "staggering" number. But he would not predict a larger number of wrongful convictions in Dallas County than any other jurisdiction. It's just that in Dallas "the evidence exists, and the judges are ordering testing," he said.

The dozen Dallas County convictions overturned by DNA over the past six years involve sexual assault or murder cases prosecuted between 1981 and 2000. A common thread in each is an eyewitness identification corroborated by little or shaky forensic evidence and no DNA test. According to Scheck, eyewitness identifications are a crucial factor in about 75 percent of all wrongful convictions overturned by post-conviction DNA evidence. Nine of the cases were prosecuted during the last four years of Henry Wade's legendary tenure as district attorney, which ended in 1986. His office had a national reputation for hardball tactics, high conviction rates and stiff punishment pleas. Critics often alleged that Wade's prosecutors prized conviction rates over their oaths to uphold justice - a charge the DA's office routinely denied.

The first in a series of nationally publicized, non-DNA exonerations - the case of convicted robber Lenell Geter - came to light during Wade's final year in office. That case was soon followed by those of Randall Dale Adams, a convicted cop killer, and Joyce Ann Brown, a convicted robber. All were prosecuted under Wade and involved witness testimony that was later discredited.

Randy Schaffer, a Houston defense attorney who represented both Adams and Waller, contended a win-at-all-costs attitude of prosecutors is coming back to haunt Dallas County. "The pool of applicants (for DNA testing) is that much larger because there were so many dirty prosecutions," Schaffer said.

Wade's successors, John Vance and Bill Hill, worked as prosecutors in his office and openly admired the folksy, cigar-chewing icon known as "The Chief." Both continued many of Wade's policies but vowed not to tolerate outlaw prosecutors. Two DNA exonerations occurred on Vance's term; one was on Hill's. Toby Shook was an assistant under all three men. He conceded that some prosecutors could be close-minded and that many believed in eyewitness identifications. But the Dallas office was not that different from most other prosecution offices, he said. "I never knew of anybody that would willingly try to prosecute innocent people," said Shook, who left for private practice after losing the district attorney's race.

Watkins, who became the county's first black district attorney when he was sworn in Jan. 1, has never worked in the office. He campaigned on a pledge to restore credibility to the prosecutor's office. Watkins was present in court last week when Waller was exonerated, as well as on Jan. 2 for the DNA exoneration of Andrew Gossett. He apologized to both men, an act that veteran observers of wrongful conviction cases called unprecedented.

He, too, wonders how many more wrongful convictions may surface. "When you look at the facts of all the folks exonerated, you have to question whether past administrations had the best interests of the citizens in mind," he said. "I would hope that they did, but it may have been that they were overzealous." Watkins said he plans to have the 12 exonerations reviewed to see if any patterns emerge. If they do, he may order a broader review of cases where DNA evidence could have made a difference in the outcome. Jeff Blackburn, another of Waller's attorneys and a director of the Texas Innocence Project, said he is encouraged by Mr. Watkins' apparent willingness to give serious consideration to requests for post-conviction DNA tests. "I think if you are wrongly convicted, Dallas is a good place to be," he said.

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More on the Waller case:

A man who served more than 10 years on a rape conviction received an apology today from a judge. James Waller is the 12th Dallas County man in 5 years to be proven innocent through DNA testing. "On behalf of any and every public official in office at that time, I want to apologize to you," Judge John Creuzot spoke those words to 50-year-old Waller. Waller spent half of his life paying the price of a horrible crime he didn't commit.

"We are here to enter into the record, and make known to the world, the results of state of the art DNA testing, which proves that he is actually innocent," Waller's attorney, Nina Morrison, said. Attorneys with the Innocence Project presented the Dallas County judge with DNA testing that exonerates Waller as the rapist of a 12-year-old boy in 1982. "I just want to thank God that the Innocence Project took the time out to hear my case," Waller said.

Waller served nearly 11 years of a 30 year sentence, followed by another 13 years of strict probation as a registered sex offender. His life scarred by the false accusation, Waller told the courtroom he was not angry. "I just wish and pray that the kid would know who did the crime and know he made a mistake," Waller said.

"He made this identification by the eyes and by voice," attorney Barry Scheck said. "It was a very weak case to begin with." Scheck's Innocence Project offered the expensive DNA testing that cleared Waller. That's the 12th Dallas County man they've exonerated in just five years. With his family around him, Waller accepted a hug from the judge before beginning a new life at 50. For a man who lost so much time, his dreams are simple. "Find me a nice place to live and hopefully get married again," Waller said. "It's a new year and I'm a whole new person."

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