Legal Commentary

Freeing the Innocent the Old Fashioned Way

By TChris

As TalkLeft has pointed out repeatedly, exonerations of the innocent by new DNA testing represent only the tip of the wrongful conviction iceberg. Most prosecutions do not depend on DNA evidence. In cases where it's absent, it is extraordinarily difficult to free the innocent after a mistaken conviction. An article in USA Today reminds us that even when DNA testing might prove helpful, states don't always preserve the evidence from which DNA might be obtained.

Timothy Atkins' innocence was proved the old fashioned way: through a "dogged investigation" conducted by lawyers and law students. He was 14 years into a 32 year sentence.

[T]he files contained a tantalizing 1999 letter, allegedly written by a key witness against Atkins, Denise Powell. In the letter to Atkins' grandmother, Powell said she had lied to police, without specifics. In her interrogation and in court, she had said Atkins confessed to being an accomplice in the 1985 murder.

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On its own, the letter could not be offered as new evidence because of its lack of detail, Atkins' lawyers say. Powell had vanished. "Everybody knew that if we couldn't find Denise, there was no case," says Wendy Koen, one of the main investigators.

Koen, a second year law student at Cal Western, spent months tracking down Powell before learning that she had been arrested on drug charges.

When Koen interviewed Powell one month later at a drug treatment facility, Powell said she had fabricated the story about Atkins' confession because she wanted the long police interrogation to end. "The information just poured out of her," Koen says of the videotaped interview.

Powell confirmed her account in a September 2006 court hearing before the same judge who presided at Atkins' original trial. The judge ultimately threw out his conviction, and Atkins was set free Feb. 9, 2007.

"When you think about how things came together," Koen says, "it's a miracle."

Actually, it's a miracle when a judge believes a recantation. Judges typically think (somewhat irrationally) that the first story must be the true one and deny motions for a new trial on that basis. Unless there is good reason to think that the recantation is unreliable (evidence of bribery, for instance), the course of action most consistent with a faith in juries is to order the new trial and to let a jury decide whether the original story or the recantion is true.

For Koen, who finished law school and works as a lawyer for the California Innocence Project, Atkins' case is an inspiration.

And Wendy Koen should be an inspiration to everyone who cares about freeing the innocent.

Full post as published by TalkLeft on August 06, 2008 (boomark / email).