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SIMON: A publicity stunt from the Larimer D.A.

By Dan Simon, Special to the Rocky

Published November 28, 2008 at 12:05 a.m.

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Observers of the criminal justice system around the country have been closely anticipating the results of an inquiry conducted by the district attorney of Larimer County, Larry Abrahamson. Abrahamson initiated the Old Case Review following the discovery of DNA evidence that cleared Tim Masters earlier this year of the heinous sexual assault and murder of Peggy Hettrick of Fort Collins.

The case brought against Masters was a monumental embarrassment. Masters was convicted by a jury and sentenced to life in prison on the basis of a mangled police investigation, coupled with misconduct by the two prosecutors Terry Gilmore and Jolene Blair (who were thereafter promoted to judgeships).

Masters spent nine years in prison for the crime that he did not commit. The sole ray of hope came from Abrahamson. Unlike most district attorneys in his situation, Abrahamson responded with a decision to proactively review other relevant cases in his jurisdiction. That seemed to be a most commendable course of action.

The results of that review were recently made public. Abrahamson concluded: "I am satisfied that there are no defendants convicted in the Eighth Judicial District serving time in the Colorado State Penitentiary who would benefit from current advances in DNA technology."

The bulk of the four-page document dryly reports the steps taken to winnow the mass of 3,242 cases to 309 defendants, and then to the final group of 36 cases: defendants convicted by juries in cases that revolved around the identity of the perpetrator.

There is, however, good reason to question Abrahamson's decision to ignore the large number of defendants who were dismissed from the analysis because they had pleaded guilty to the charges. As Abrahamson knows all too well, a defendant's decision to plead guilty is determined by numerous factors other than factual guilt. Paramount among them is the severity of punishment threatened by district attorneys. Indeed, at least 14 people throughout the United States who have been convicted through guilty pleas have subsequently been exonerated by DNA testing. Had the right to test one's DNA evidence been available also to inmates who pleaded guilty (a right barred by most states), the number of those exonerated would undoubtedly be larger.

Most troubling is the treatment of the final 36 inmates. The report informs us that no fewer than 30 of these convictions were based on eyewitness identification. Three cases were based on DNA testing, two on non-DNA forensic evidence, and one on the testimony of a co-defendant. After pinpointing these cases, Abrahamson abruptly terminates the review.

That is a bewildering move. All but three of these final 36 rest on types of evidence that are known to be particularly fragile. As confirmed by multiple authorities (including the Innocence Project database, and an analysis by professor Brandon Garrett published this year in the Columbia Law Review), mistaken identification by eyewitnesses is the most frequent cause of wrongful convictions, accounting for more than three-quarters of the DNA exonerations.

Likewise, non-DNA forensic evidence that is used routinely to prosecute cases has been shown to be far less precise than most people believe. Such evidence was presented in no fewer than 55 percent of the DNA exonerations. In these cases, the forensic evidence turned out to be faulty, corrupted or otherwise nondiagnostic.

Finally, Abrahamson does not need to be told about the dubious credibility of suspects testifying against their erstwhile partners in crime, especially with the threat of punishment hovering over their heads.

Abrahamson will likely defend the report by saying it was not intended to evaluate the evidence or second-guess the judgment of the juries. That defensive position, however, should preclude him from trumpeting that there are no convicted inmates who could benefit from DNA testing.

Unless Abrahamson is ignorant of how mistakes can happen in the criminal justice system, one must conclude that this review was a mere publicity stunt. If Abrahamson is genuinely interested in reassuring his constituents that the state is not holding innocent people, all he need do is subject the evidence in these cases to a simple and relatively inexpensive DNA test.

Dan Simon is a professor of law and psychology at the University of Southern California.

Comments

  • November 28, 2008

    5:14 a.m.

    Suggest removal

    roger44 writes:

    Larimer county has the same kind of attitude boulder has, they think they know it all. proven fact eye witnesses aren't always right, and the tests should be done.

  • November 29, 2008

    11:26 a.m.

    Suggest removal

    JohnLloydScharf writes:

    THIS IS SCARY! This prosecutor thinks only 36 cases of 3,246 revolves around the identity of the perpetrator. EVERY CASE INVOLVES THE IDENTITY OF THE PERPETRATOR!