DNA SHOWS ANOTHER TEXAS DEATH ROW PRISONER INNOCENT

by Adrianne Appel

(IPS) -- After more than a decade of DNA tests, appeals and waiting on death row, Texas prisoner Michael Blair is likely to be exonerated soon, further undermining public confidence in the infallibility of the U.S. death penalty system.

Recent extensive DNA tests on microscopic hair samples established no link between Blair and a child who was murdered in 1993, according to state prosecutors.

It is expected that the Texas Court of Criminal Appeals will grant Blair a new trial and that state prosecutors will then dismiss charges against him because they believe there is no evidence to convict him.

"There is no good faith argument to support the current conviction in light of the facts and the law," John Roach, chief prosecutor for Collin County, said in an open letter to the press and public on May 23.

"All the DNA pointed toward his innocence," Philip Wischkaemper, Blair's attorney, told IPS.

Blair -- convicted largely on the basis of microscopic examination of hair samples -- was nearly executed in 1999.

"This case starkly shows that the system makes mistakes and that those mistakes can have chilling consequences. Even more troubling is the reality that the kind of evidence that led to Michael Blair's wrongful conviction is used in countless cases nationwide every day," said Barry Scheck, co-director of the Innocence Project, which assisted in the Blair case.

The Innocence Project is a national organization dedicated to exonerating people using rapidly advancing DNA techniques. The first DNA exoneration in the U.S. was less than 20 years ago.

A key factor in convicting Blair of murder was bias against him because of his criminal history as a child sex offender, Wischkaemper said.

Seven-year-old Ashley Estell was found strangled in 1993 after being abducted from a busy playground in Plano, Texas.

"There were no sightings of her with him (Blair), no linkage with him," Wischkaemper said. Blair admitted abusing children -- when exonerated he will remain in prison for life for child sex offences -- but denied he had ever murdered.

The crime was so emotionally charged that the trial had to be moved 300 miles away. At the time, everyone wanted "to kill Michael Blair," Wischkaemper said. The legislature reacted by passing special laws, the so-called "Ashley's Laws," aimed at better tracking convicted child sex offenders and imposing stiffer sentences.

If Blair is officially exonerated, he will join 129 other people who since 1973 have been found innocent while awaiting execution on death row in the U.S.

"These are not simply cases in which the defendant's sentence was reduced and he was later released. Nor are these cases where a subjective judgment was made that the defendants were probably innocent, even though they were found guilty," Richard Dieter, executive director of the Death Penalty Information Center (DPIC), said recently.

Rather, the justice system had reviewed the death sentences and concluded that the people could not have been convicted of even the slightest offence related to the crimes, he added.

Juries and judges in the U.S., apparently reflecting a growing public unease, are handing down significantly fewer death sentences today compared to a decade ago.

"The pace of exonerations has sharply increased in recent years and this has raised doubts about the reliability of the whole system," the DPIC said, commenting on this trend.

"I would say innocence is the most important issue in moving mainstream Americans away from the death penalty," Judi Caruso, director of Voices United for Justice, an abolition group, told IPS.

"They still believe that it's a moral punishment that someone should be put to death. But they're re-evaluating the system and considering that it is broken -- and broken beyond repair," Caruso added.

The Innocence Project, begun in 1992, focuses exclusively on exonerations through DNA testing. It has helped free 16 people from death row.

Other state-based innocence projects and individual attorneys have been behind most other exonerations in the U.S., many of which have not involved DNA evidence. Their work was crucial as only between five and 10 percent of criminal cases have evidence available that can be DNA-tested, according to the Innocence Project.

The evidence may often be too old -- some people on death row were convicted of their crimes 20 or more years ago -- missing or inadequate.

In 2001, the Center on Wrongful Convictions at Northwestern Law School analysed the cases of 86 of those exonerated and released from death row and found there were many common reasons. These included false testimony, mistaken identity and police and prosecutorial misconduct.

Poor legal representation and false testimony is what kept "Bo" Levon Jones, a black man wrongly convicted of murder, on death row in North Carolina for 15 years, until May this year.

"Jones received two (court)-appointed attorneys that spent virtually no time or effort investigating the offence or his background," said federal Judge Terrence Boyle, when he ordered a re-trial in 2006.

Jones was freed after the key witness recanted her incriminating testimony and the district attorney subsequently dropped all charges against him.

"This case highlights the serious and rampant flaws inherent in the death penalty," said American Civil Liberties Union (ACLU) lawyer Cassandra Stubbs, who represented Jones. If the system was incapable of protecting the innocent, it "shouldn't gamble with life and death," she said.

Thirty-six U.S. states still have a death penalty and there are currently more than 3,255 people on death row. Hundreds claim to be innocent but only a handful receive the extensive legal assistance necessary to investigate their innocence.

The Washington-based Justice Project has noted that for every nine executions in the U.S., one person is exonerated, suggesting that a significant number of people on U.S. death row may be innocent.

There is evidence that recently innocent people have been executed, according to Dieter of DPIC.

Investigations by the National Association for the Advancement of Colored People (NAACP), the Houston Chronicle and the Chicago Tribune have identified four innocent people who were executed within the past few years, Dieter said.