New DNA Methods Could Throw More Convictions Into Doubt

But not if the prosecutors can help it.

Ted Bradford got out of bed that life-changing morning in 1995 and did one of two things. He went to work. Or he raped a stranger and went to work. According to his confession at the time, it was the latter. The then-22-year-old Yakima lumber-mill worker admitted breaking into a home and raping a woman who'd been feeding her month-old baby. Convicted by a jury, he served nine years in prison and was released in 2005. Guilty, case closed. No, Bradford says today. He went directly to work. The confession was coerced, and he served time for a crime he didn't commit. After listening to his story, the state Court of Appeals recently decided his conviction may have been in error. Innocent, case reopened. Arrested six months after the rape on an unrelated charge of indecent exposure, Bradford claims police interrogators told him at the time (falsely) that they had his DNA from the rape scene. Today they do have DNA from the scene. But it's not Bradford's. A new genetic profile using advanced technology shows it was another, unknown male whose telltale deoxyribonucleic acid was found on electrical tape stuck to a mask that the rapist used to cover the eyes of his 25-year-old victim. The appeals court agreed that had the testing technique—which can construct a genetic profile from much smaller DNA samples than previous methods—been available when Bradford was tried in 1996 and the results presented to a jury, the outcome could have changed. The ruling marked the first time a criminal conviction in Washington was overturned solely on DNA identifiers. It was enabled by a state law passed in 2000 that allows newly developed forensic methods to be retroactively applied to felony convictions. But unlike some of the more celebrated cases of DNA exoneration, in which inmates have marched out of prison, their names cleared, the Bradford case is not over. Yakima County prosecutors have asked the state Supreme Court to review the appeals court ruling, and if the high court declines, they say they'll just put Bradford on trial again. DNA miracle or not, Yakima County deputy prosecutor Kevin Eilmes is certain Bradford is a rapist. "We believe that there is admissible evidence which would overcome any doubt the new resultsmight raise," he says. The Bradford reversal is the first in what Washington convicts hope, and prosecutors fear, may be a new wave of DNA-based appeals that can cloud a case, without clearly deciding it, years after the jury reached its verdict. Attorney General Rob McKenna, whose office handles DNA appeals as they rise up the system, recently argued in the state Supreme Court against liberally allowing DNA tests for felons. Like Yakima prosecutors, the state prefers a narrow interpretation of the seven-year-old testing law, revised in 2005, which allows convicted felons still under sentence to petition for DNA testing—conducted by the state patrol at taxpayer expense. To get a test, the inmate has to demonstrate that today's more accurate examinations can provide significant new information that puts the conviction in doubt. In legalese, tests should be "material to the identity of the perpetrator" and able to show the "likelihood" that innocence is "more probable than not." But that language still leaves plenty of room for dispute, with prosecutors in some cases resisting the introduction of new evidence. According to the state Office of Public Defense, 63 convicted felons have asked for DNA tests since the law was passed. How many requests are granted, and the outcomes of the tests, are not tracked, OPD says. About a third, on average, are thought to fail because evidence was lost or not testable. Washington was the third state to pass the testing law. Today, all but eight states give inmates opportunities to examine DNA evidence not available at the time of conviction, according to an appeals support group, Truth in Justice. Since 1989, post-conviction relief, when based on new DNA findings, has led to the courts releasing 210 U.S. inmates—15 had served time on death row—who'd been wrongly convicted, according to the Innocence Project of New York, which has championed the use of DNA to free inmates. All these were outright exonerations, without retrials. Eleven of the wrongly convicted had confessed, and in more than a third of the cases, DNA matching led to the capture of the actual perpetrators. The average exonoree was 26, served 12 years, and was black. The 210th man, John Jerome White—exonerated last month of a 1980 rape and robbery—was the seventh Georgia man to be released via DNA evidence. In all seven cases, appellants had to overcome eyewitness misidentifications. Innocence Project leader and attorney Barry Scheck told reporters that DNA testing has shown, "whether it's the death penalty or not, there are flaws with eyewitness testimony, false confessions, and crime labs." But it takes long, difficult appeals to make justice happen in deserving cases, attorneys say, and thousands of reviews are being sought across the U.S. They currently include, besides Bradford's case, perhaps a dozen at various legal stages in Washington. In two of the most recent cases, being handled in part by the Northwest unit of the Innocence Project, inmates aren't asking to be released, just to have the tests done—a struggle in itself. In September, a Clark County judge reopened the 1997 murder conviction of Sergey Spitsyn, who was 17 when convicted of the 1996 strangulation death of Tamara Gritchenko, 14. Her body was found in Burnt Bridge Creek near her Vancouver home, and Spitsyn confessed to killing her. Deputy prosecutor Bob Shannon says Spitsyn changed his story, even claiming he'd been kidnapped and forced to have sex with the victim. His office feels Spitsyn was rightly convicted. Jackie McMurtrie, head of the Innocence Project Northwest at the University of Washington law school, whose small class of students helped spearhead the Bradford appeal, is aiding Spitsyn, too. She says the Russian immigrant does not clearly understand English and was told by police he faced the death penalty when he confessed (in fact, it wasn't a capital case). He pleaded not guilty and, while he admitted to having consensual sex with the girl, said he did not kill her. Having done almost 10 years of his 14-year sentence, Spitsyn is seeking to test any DNA found under the girl's preserved fingernail tips, which could indicate a struggle with another person. "All we're asking," says McMurtrie, "is that the test be allowed so we can determine his innocence or his guilt." Clark County Judge John Wulle granted the motion to test, agreeing that there were lingering questions, and saying, "Nothing is settled until it's settled right." Prosecutors are planning to appeal, arguing, much like in the Bradford case, the other evidence is persuasive enough. With DNA post-conviction relief in Washington still in its infancy, the courts remain uncertain as to how broadly it should be offered. Appeals attorneys think Bradford's success should pave the way for more tests—especially when there are questions about confessions and eyewitnesses. Prosecutors don't want DNA to turn into a convicts' free-for-all. An impending state Supreme Court decision has both parties watching closely. According to interviews and court documents, the Yakima rape in which Bradford is implicated unfolded thusly: A young mother was in the living room of her Barge Street home on the morning of Sept. 29, 1995, feeding her infant. Around 9:30 a.m. (when Bradford would normally be at work), she heard an unfamiliar noise and turned to find a man coming at her wearing a white nylon stocking as a mask. He also wore gloves. She was thrown to the floor with the infant in her arms, then allowed to put the screaming child in a crib. Just under 5 feet tall, the woman figured her attacker to be a foot taller than her. (Bradford is just over 5-foot-7.) He took her to the basement and put a Lone Ranger mask over her face. The eyeholes had been covered with previously applied electrical tape. He handcuffed her behind her back, pushed her down, and penetrated her. The woman didn't believe the rapist ejaculated; he left no semen for DNA tracing. The man took her back upstairs and stole $2 from her purse. Leaving the mask on her face, he used a coat hanger to wire her to the crib. "Spunky kid, huh?" the man said of the crying baby, and left. No suspect was immediately found. Six months later, in March 1996, Ted Bradford was arrested after his vehicle was linked to a man who'd been exposing himself to people in the same area of the September rape. Police say that, under questioning, Bradford admitted to the exposures, and faced a court appearance. Subsequently, two detectives became interested in him for the unsolved rape. Learning that he was being held on lewd conduct charges, they brought him in for questioning on April Fool's Day 1996. Bradford waived his rights and agreed to talk. He initially told police he'd been at work at the time of the rape, then changed his story when police said—apparently untruthfully—they'd learned he missed work that day. He said he spent the day with his wife, who later drove him to a doctor's office for a scheduled vasectomy. Bradford readily agreed to take a polygraph that day (results were not revealed, nor entered into evidence at the trial). Afterward, the interrogation continued. Since Bradford hadn't asked for an attorney, detectives said, they did not inform him that one was waiting in the hall to see him, hired by his wife. The attorney, who was there originally to see Bradford regarding the lewd-conduct charge and then learned of the more serious investigation, claims he was told by police that Bradford didn't want to see him. The detectives continued grilling Bradford, pushing him for a confession. "I [told him I] was not going to leave the room," one detective said later, "and that he needed to tell me the truth." Another detective said he felt Bradford was "in denial," and told the suspect at least six times, "I am not going to allow you to deny this anymore." Around 4:30 p.m., more than eight hours after the interrogation (most of which was unrecorded) started, Bradford confessed. The rape "just happened," he said. He gave a taped statement that began: "I probably did it." However, he pleaded not guilty, and at trial said he confessed just to end the grueling interrogation. His attorney pointed out discrepancies in the scenario and confession, including the victim's physical description of an assailant at least four inches taller than Bradford. Though she said her baby screamed throughout the ordeal, Bradford told police that no children were in the home that day. He also said he departed right after the rape, with no mention of taking money or wiring the victim to the crib. He substantiated his work alibi with pay records showing he was there (though exact hours were in question). His then-wife said she picked him up at work and took him to the doctor; several co-workers also testified that they remembered him working that day because they joked about the vasectomy he was to undergo. Bradford said he changed his work story during the interrogation because "I did not think that detectives would lie to me and say that I was not at work if I was." Two of the victim's neighbors, who took early morning walks, testified they observed a white Toyota similar to Bradford's vehicle driving around the neighborhood in the second or third week of September 1995. One, who said the driver took a long look at the victim's residence, later picked Bradford out of a police photomontage. In September 1996, Bradford was convicted by a jury of first-degree rape and first-degree burglary and sentenced to 10 years and two months in prison. A few months later, the victim won a $600,000 civil judgment from Bradford for the emotional scars caused her. The damages remain uncollected. "It was tough for the victim to go through the trial process twice," the woman's attorney told reporters back then. "But she wanted to put Ted Bradford through the civil trial as a kind of payback." Bradford appealed the criminal conviction, claiming his confession was involuntary and that police failed to inform him of the presence of the attorney. The Court of Appeals in Spokane upheld the conviction, 2-1, in 1999. The dissenting judge called it a "manipulation of criminal procedures in pursuit of a confession." Bradford was released in 2005, still professing his innocence. He had believers. In prison, he wrote the Innocence Project about his case. Since 2002, the UW clinic has supplied free legal help for indigent felons who claim to be innocent—receiving about 50 requests monthly from which a few cases are culled for further review. Bradford became one of the first cases, and the second- and third-year law students (10 are picked each year to participate in the clinic) pored over trial transcripts and police reports, interviewing Bradford and witnesses. They discovered contradictions in the confession and weaknesses in eyewitness claims, becoming convinced Bradford was not just wrongly convicted but innocent, and the real rapist still on the loose. Altogether, over four years, eight students worked on the case at various times, led by now-law-grads Matt Ficcaglia and Theresa Connor. They successfully petitioned for DNA testing in an appeal overseen by associate professor McMurtrie, a onetime public defender. Seattle attorney Felix Luna also represented Bradford pro bono. A state forensic expert, testing the mask, turned up a stranger's skin-cell DNA on the sticky side of the black electrical tape covering the eyeholes. (No match was found in a state data bank of convicts' genetic profiles.) The victim's DNA was also on the tape. But Bradford's DNA was not present—not on the mask, not on the victim's clothing, including her panties, nor on the coat hanger used to restrain her. To clear his name, Bradford filed a personal restraint petition with the appeals court, claiming he was a victim of a miscarriage of justice. The appeals court ordered the original trial court to hold a fact-finding hearing. Yakima's prosecutors argued that the confession and eyewitness were enough to convict. But the trial court concluded that a jury would give weight to the fact that "the person who prepared the mask more likely than not is the person who committed the crime, or that Mr. Bradford, if present, would have left DNA on some surface of the mask." It is at least evidence that probably "would cast some great and substantial doubt that Mr. Bradford was at the scene of the crime." Upon reviewing those findings, the appeals court reversed Bradford's conviction. The tests suggest an unidentified male fashioned the mask, said the court panel, and "the victim's testimony that the assailant kept pushing the mask back over her eyes supports the inference that Mr. Bradford was not the perpetrator; otherwise, his DNA would be present." After the initial, fact-finding hearing, the husky, goateed Bradford told reporters, "It just shows what I've been trying to tell everybody since I got locked up. I just want to clear my name and get on to live a normal life." A father of two, now divorced and working for a Yakima container company, Bradford declined to comment to Seattle Weekly on the possibility of a new trial and a rerun of the past. "He's trying to keep a low profile," explains Yakima public defender Jeff Swan. "He still lives around here, has a good job, and is just trying to get on with his life." As a registered sex offender, he must regularly check in with authorities, Swan says. DNA profiling has become the new frontier of forensic science since its discovery in the 1980s. Over the past decade, genetic investigation of blood, semen, skin, saliva, and hair to identify perpetrators and victims has produced reliable evidence to convict the guilty, free the innocent, and identify the long dead. Originally, relatively large amounts of DNA were needed for successful testing. But microscopic specimens so small as to be almost nonexistent can now be examined to link the past with the present. That was dramatically demonstrated here in the Green River murder cases. It was Gary Ridgway's DNA—collected in 1987 when he first became a suspect, and re-examined using new procedures in 2001—that linked him to some of the victims he'd killed decades earlier. It was powerful evidence. Ridgway struck a deal to save himself from death row, confessing to the serial killing of at least 48 women and leading authorities to some of their graves. He went to prison for life. Next to a confession, DNA is now perhaps the most persuasive evidence in a criminal trial. It's the miracle crime solver that TV dramas are built around, cold cases thrive on, and real-life juries accept as gospel. While eyewitnesses can be unreliable, confessions contrived, and physical evidence circumstantial, genome guilt is considered dead-solid perfect. In reality, it's no gold standard. The Journal of Forensic Sciences reports that experts who once thought DNA false positives were impossible have repeatedly been proved wrong, even though the test's flawless repute "has been mentioned frequently, without skepticism, in appellate court opinions." The Washington State Patrol Crime Lab, for one, has admitted to several dozen DNA screwups, including contaminating DNA samples with the DNA of its own testers. DNA profiling is a celebrated anti-crime tool, nonetheless. Shortly after passing the post-conviction testing law, the state Legislature approved another measure to collect mandatory DNA samples—oral swabs—from all state prisoners and form a kind of criminal-gene data bank. The law was challenged by prisoners as unconstitutional but was upheld earlier this year by the high court, which found DNA extraction "analogous to the routine collection of fingerprints, photographs, and other vital statistics from convicted felons...." The crime lab reports it receives 2,000 offender DNA samples monthly, constantly adding to its database of 80,000-plus samples (although many have yet to be analyzed and entered into the database for comparison purposes). Still, the payoff is considerable: From 2001 through 2006, the lab says it scored 430 "hits" matching incarcerated offenders with other, unsolved crimes, from property and financial offenses to robbery, rape, and murder. Just last month, state inmate Clarence E. Williams, 63, pleaded no contest to the murder of Seattle high-school student Sara Beth Lundquist in 1978. Preserved DNA from that cold case was matched with the sample Williams—who has been imprisoned almost three decades for fatally stabbing another young Seattle woman—gave a few years ago. Yet, as Ted Bradford has discovered, the cheering—at least on the enforcement side—fades when the DNA meter belatedly frees a convicted man, leaving no one else to point the finger at. In Bradford's landmark case, police and prosecutors narrowly interpret the results to merely mean someone else touched, or made, the rapist's mask, and when other evidence is considered, Bradford still could have been at the scene. That's the reason that Bradford, who has had altogether five court verdicts—three of them defeats, including the $600,000 civil damage claim won by the victim—will likely this year be returning to court a sixth time. While the appeals ruling indicates a jury might well have reached a different conclusion had it been aware of the evidence, prosecutors suggest they still would have brought charges against Bradford even if the DNA findings had been available in 1996. "The newly discovered DNA evidence may well tell us who prepared the mask," Eilmes says. "But it doesn't tell us who the rapist is. We simply don't know when or why the tape was applied to the mask." Yet, in Olympia last year, a child-rape suspect was cleared of charges when DNA found on his victim was determined not to be his. In the Bradford case, the DNA results are similar, but because they became available only after he was convicted, Bradford appears destined for a legal Groundhog Day. And there's the rub, say Bradford and his attorneys. They strongly believe that, along with questions about his confession and an eyewitness, the DNA test—if it could have been performed in 1996—would have exonerated him. Why, they ask, isn't the test getting the same respect today? Prosecutors—prior to trial, anyway—routinelyuse DNA findings to determine a suspect's innocence and decline to file charges, says Tom McBride, executive secretary of the Washington Association of Prosecuting Attorneys. "Those actsjust don't have a high profile with the media unless it hits the papers for some other reason." (McBride didn't have state numbers, but a National Institute of Justice study found that around 25 percent of suspects were exonerated when pretrial DNA tests were done.) "I don't think the issue is whether we are more or less anxious to use DNA," adds Yakima prosecutor Eilmes.In the Bradford case, "we agreed many years ago to the retesting of the evidence.I personallyspent many hours looking for some trial exhibits, including the mask."(The trial exhibits, which at first couldn't be found for the appeal, were ultimately unearthed in an old evidence room.) "We agreedthat DNA technology had improved so dramatically that there was a legal basis for retesting," says Eilmes, who sees Bradford as a threat to the community and wants him to continue to register as a sex offender. "You might understand, then, that I take issuewith the view thatour motives are somehow suspectsimplybecause we won'tdismiss the case in the face ofjust any new evidence.Wejust respectfullydon't agreethat the new evidence would have changed the outcome of the trial." While Eilmes says he readily agreed to the new tests, convicts in other cases have faced much more resistance. In a third case being led by the UW's McMurtrie and her team of post-conviction sleuths, inmate Alexander Nam Riofta is seeking a DNA test to prove his innocence (or confirm his guilt) in a 2000 first-degree assault case linked to the 1998 massacre at a Vietnamese karaoke bar in Tacoma, the Trang Dai, which left five dead and six wounded. Riofta, then a teenager, was friends with some of the accused killers, and was found to have shot at—but missed—the brother of a witness who'd agreed to testify. McMurtrie is pushing to have DNA testing done on a white hat that witnesses say flew off the head of the shooter as he fled the scene. She suspects someone else's DNA could turn up, casting doubt that Riofta was the gunman. A lower court denied a motion to test the hat. Now the case is before the state Supreme Court, where a ruling, expected soon, could significantly expand, or limit, felons' access to post-conviction DNA tests. At a high court hearing on Riofta in October, justices were asked to answer a narrow question—can a convicted felon request DNA testing of evidence (in this case, the hat) that was presented but not tested during a trial? Current law indicates it had to be tested back then or not at all. McMurtrie made a more expansive argument, maintaining that the intent of the law is to allow testing whenever there's a reasonable chance it can change the outcome. Several justices seemed worried about a wholesale opening of the DNA floodgates. Make it easy and "everybody will want to do this," said Justice Barbara Madsen. "Shouldn't we have a higher standard, something really significant, to tell us we're probably going to get the result that could change the outcome?" she asked, wondering how to define the law's intent and set more specific requirements for testing. For example, if someone came forward with the name of the real shooter, that would justify testing, she said. "We're not asking that his conviction be overturned," McMurtrie stressed to the justices. (There are, however, arguable doubts about eyewitness testimony and a photomontage used to ID Riofta that could become appeals issues should the DNA outcome be favorable.) If the inmate and others like him could be allowed to test, McMurtrie suggested, justice would prosper and the state could benefit directly: The hat could lead to a DNA match with a felon in the crime lab data bank. Additionally, the test could affirm Riofta's guilt in a way a jury trial couldn't. Michelle Luna-Green, representing the state, suggested Riofta was just another guilty man trying to get out of prison. He was fishing for evidence without a legal basis, she said. The law was intended for those "very real" situations when a person could be innocent. Justice Richard Sanders described a long-shot scenario, but one in which a prisoner nonetheless might be exonerated. It wouldn't cost the state much to do the test. "Would you just say no?" he asked Luna-Green. That's in fact what prosecutors did in the Riofta case, she said. Authorities felt "the DNA would not prove, on a more-probable-than-not basis, actual innocence." Even if it was not his DNA on that hat, Riofta still could have been at the scene, she said—an argument similar to that being made in the Bradford case. All right, said Sanders, but what if, in the testing process, another felon's DNA is matched to the cap? "The state's not going to accept hypothetical situations from convicted aggravated murderers" such as Riofta, Luna-Green responded. Officials nationwide take a similar position. A 2005 investigation by the Pittsburgh Post-Gazette found U.S. prosecutors regularly oppose DNA tests unless the lab profilings conclusively prove "actual innocence." Prosecutors thus become judges under those circumstances, making unilateral decisions on whether or not DNA will be tested, and have a vested interest in not being reversed. McBride, of the Washington prosecutors' association, thinks his members should have more latitude than the defense to assess the worthiness of DNA tests. "It does the criminal justice professionals as well asjurors a disservice to imply that they cannot judge the meaning and implications from DNA, either its presence or absence," he says. But as the Bradford reversal suggests, meanings and implications may best be explored through a robust adversarial debate. It's a decade later, and prosecutors have yet to substantiate that they have their man.

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