Edward Green insisted that investigators had the wrong guy.
After one woman was raped and another assaulted in Southeast D.C. in 1987, the Congress Heights resident had been picked up by police near the scenes of the incidents and later identified as the perpetrator by both victims. When the cases went to trial more than a year later, the prosecutor’s story hinged on in-court identifications made by the women. “Someone can change their clothes, change their hairstyle, but you can’t change your face,” the prosecutor said at closing. The jury found Green guilty of rape. As a court marshal led him away, Green said, “I didn’t do it,” according to a Washington Post report.
That’s something of a tired line in Superior Court. But eight months after conviction, Green obtained the evidence to prove it. A post-trial DNA analysis of one victim’s clothing—a novel investigative technique at the time—showed that Green didn’t commit the crime. One of the first of many men across the country to be cleared by DNA evidence, Green finished his time on an unrelated drug charge and left the D.C. Jail a free man.
Sixteen years later, he remains the lone D.C. convict to be exonerated after trial by DNA evidence.
The rate of exonerations-by-DNA has increased steadily since the time of Green’s conviction. Between 14 and 23 wrongfully convicted people have been vindicated by DNA each year since 2000, according to the New York–based Innocence Project. The grand total since 1989 now reaches 176—and that’s only reported cases. After a spate of high-profile exonerations, even right-wingers of the hang-’em-high persuasion have trouble opposing post-conviction DNA testing. The Commonwealth of Virginia—hardly a bastion of progressive criminal-justice thought—has exonerated four men in the past three years and ordered expansive testing on a trove of old physical evidence.
But on this side of the Potomac, the District finds itself at the tail end of the movement, though not for a lack of legislation. The D.C. Innocence Protection Act of 2001, a precursor to a similar federal act, gives many convicts the right to have DNA testing done on physical evidence if such tests weren’t available at the time of their trials. Yet four years after the law went into effect, Shawn Armbrust, head of the Mid-Atlantic Innocence Project, has a hard time thinking of a single felon who’s managed to have post-conviction DNA tests submitted to D.C. Superior Court.
“It’s a huge problem,” says Armbrust, whose legal group tries to ferret out likely cases for exoneration in D.C., Maryland, and Virginia. It’s had one DNA exoneration in Virginia. Armbrust says her group hears from a significantly smaller proportion of D.C. inmates compared with other jurisdictions, and she doesn’t believe that’s necessarily because the District’s justice system is less likely to put the wrong person in prison. Rather, she says, “D.C. people don’t know where to turn.”
Armbrust and the Public Defender Service (PDS) say they haven’t made any headway with D.C.’s self-proclaimed innocents largely because they don’t know where to find them. The District doesn’t have a prison of its own; since 2001, the city has been handing its convicts over to the federal Bureau of Prisons (BOP), which places D.C. inmates in facilities around the country, some of them thousands of miles from the District.
As of this March, D.C.’s roughly 7,000 prisoners were scattered in more than 100 different federal facilities in 30 different states. Some facilities hold only a single D.C. inmate. This peculiar penal status makes for a poor prison grapevine and even poorer legal networking among District cons. There are inmates who likely haven’t heard of the D.C. Innocence Protection Act, let alone groups such as Armbrust’s that are willing to look at their cases.
To remedy this information gap, the city’s public defenders decided in 2004 to get proactive about DNA testing. Their plan: to find the locations of all prisoners convicted of particular sex offenses in D.C. before roughly 1996—about the time when DNA testing had become routine in the city’s criminal cases—and inform them of their rights. The majority of convictions overturned by DNA testing stem from sex crimes; not only do these cases often involve physical evidence containing DNA, but they also rely heavily on eyewitness identification—which, in cases like Edward Green’s, can prove to be wrong. Once lawyers contacted these inmates, the plan went, they would wait to see what proclamations of innocence came back, then pursue the cases that appeared to have merit.
A year-and-a-half later, public defenders still haven’t managed to obtain the names of those offenders. “We asked the United States Attorney’s Office for a list of…cases that dated back to 1980,” writes Timothy O’Toole, chief of the PDS’s special litigation division, in an e-mail. “[They] provided us with a list of cases from their database; unfortunately, their database only went back to 1996.” In other words, the cases the U.S. Attorney’s Office could supply were largely irrelevant. (Channing Phillips, spokesperson for the office, says they didn’t start computerizing their cases until 1996.)
In December 2004, the public-defender service filed a Freedom of Information Act request with the prison bureau seeking a list of D.C. sex offenders and their respective inmate numbers. In a follow-up letter, O’Toole wrote that such a list would help D.C. comply with the federal Innocence Protection Act, passed by Congress the same year. The prison bureau refused to give up the inmate names, citing the privacy rights of the offenders—despite the fact that it keeps a free, online database containing inmate locations that can be searched by name. (And also despite the fact that a sex offender has little in the way of privacy rights after his release, when his photo and address are placed in online registries.) The public-defender service appealed the denial, which was recently upheld by the U.S. Department of Justice.
Traci Billingsley, a prison-bureau spokesperson, says the agency does not release lists of inmates as a matter of policy. “Under privacy [law], we don’t think that we can,” she says.
The public defenders have filed a lawsuit against the BOP and the Department of Justice to have inmate names released. If a judge sides with the feds, the only way to locate pre-1996 sex offenders may be to comb through thousands of case files in the courthouse and then plug the appropriate names into the online prison database—a logistically daunting operation.
“Honestly, I am completely befuddled by it,” says Deborah Golden, staff attorney with the D.C. Prisoners’ Legal Services Project. “Congress passed a law that says every state has to do this….When you’re talking about people who didn’t have DNA testing done, those are older cases. These are not people who are still writing their attorneys on appeal. They’ve been sitting there for years, and they’re resigned to sitting in jail for something they didn’t do. That happens.”
Recent cases in Virginia suggest that Golden’s right. When officials there learned that a forensic scientist had saved pieces of evidence from 15 years’ worth of old cases, then-Gov. Mark Warner ordered that evidence from 31 random cases be tested and examined. The analyses exonerated two men—6.5 percent of the sample—who had each served more than a decade in prison and been released.
Yet even when prisoners have all the right credentials for post-conviction DNA testing—including the enthusiasm to file their own motions with the court—the wait can be years. Charles Hood, 43, has served roughly 15 years on a 20-years-to-life sentence for first-degree murder. In 1991, he was found guilty of robbing and killing an elderly woman in her Petworth home.
The crime was particularly gruesome, and the government put forth a compelling but largely circumstantial case against Hood. The victim, who suffered from Alzheimer’s disease, had been shouting from her porch—her routine evening show, according to neighbors—that she was being robbed. Witnesses saw Hood run past her and enter her front door. She followed Hood inside, witnesses heard a struggle, and minutes later the woman was found with a severed finger, beaten nearly to death. (She died 11 days later.) Police recovered a kitchen knife at the scene. For 15 years, Hood has maintained that he was merely trying to thwart the victim’s robber and that someone else was inside the house and assaulted her.
In prison, Hood had already filed a number of unsuccessful motions on his own behalf when, in the late ’90s, he started writing the court about DNA evidence. In a 1998 motion for a new trial, he complained that he was “denied by the trial court the full opportunity to have all the D.N.A. testing from the medical examiner’s office.” A year later he wrote again that “no D.N.A. report was given in trial,” which was true. There was plenty of physical evidence in the case—a knife, a wrench, Hood’s clothing, blood samples from both Hood and the victim—but DNA tests were never performed.
In 2003, the court nibbled. A judge decided Hood’s request fell under the Innocence Protection Act—despite the fact that Hood wasn’t aware of the act when he filed—and asked the government for a response. The U.S. Attorney’s Office argued that Hood hadn’t yet met the requirements for DNA testing, though the police department still held much of the trial evidence, including the victim’s blood samples, a box of clothing, and the kitchen knife. The government’s opposition set off another year of filings. “This appears to be precisely the sort of case that the City Council and Congress had in mind,” Hood’s new lawyer, public defender Lisa Guffey, wrote in a response.
This February, four years after the council’s legislation and about eight years after his initial requests, Superior Court Judge Lynn Leibovitz authorized an independent lab in Canada to test evidence from Hood’s trial. Hood signed an official statement saying he’s innocent of the crimes he was convicted of.
The first round of tests showed that “no indication of blood” was found on Hood’s sweater or pants, contradicting an assertion made by the prosecutor at trial. Yet the tests also showed that traces of blood were on Hood’s shoes. Assuming the ongoing follow-up tests determine exactly whose blood that is or isn’t, Hood may be able to prove that he’s no killer—or that he’s both a killer and a perjurer. Either way, everyone will know the truth.CP