Exonerations in America are at a record high, but not because of DNA | McClatchy Washington Bureau

The rate of criminal exonerations in America is at a record high.

But experts say that, in many instances, these cases are getting harder and harder to litigate because so many of them now stem from cases that lack concrete DNA evidence.

According to the nation’s largest database on wrongful convictions, while DNA evidence accounted for nearly 40 percent of all exonerations a decade ago, much has changed. In 2015, DNA evidence played a role in less than one-fifth of cases where sentences were overturned.

As a result, the focus of many defense attorneys and advocacy groups has shifted in recent years from DNA analysis to debunking decades-old investigative tactics, such as bite mark analysis and forced confessions.

Professor Richard Leo at the University of San Francisco School of Law said this decline in the prevalence of DNA-based exonerations comes as no surprise.

“Now, if there is biological evidence to be tested, it’s used in the pretrial stage,” he said.

The focus on overturning old-school forensics is part of what Justin Brooks, director of the California Innocence Project, calls the “second wave” in the fight to overturn wrongful convictions.

“First was the slam-dunk DNA cases; those opened the door to all this other stuff,” Brooks said. “Courts are now open to the conversation and are more willing to grant cases. That just wasn’t true 20 years ago.”

Brooks said that while this massive shift toward non-DNA exonerations has provided his advocacy group and others like it new opportunities to prove clients’ innocence, a lack of “slam-dunk” DNA evidence makes overcoming the burden of proof a very difficult task.

“The biggest challenge is … you can show that the evidence is faulty, but it doesn’t necessarily knock the case out completely,” he said. “We don’t know definitively that the person is innocent.”

Indeed, according to a 2009 report released by the National Academy of Sciences, researchers have found that DNA is the only type of evidence that can consistently and confidently connect specific individuals to crimes or prove innocence. More generally, they found that laboratory-based methods like DNA and fingerprint analysis are more reliable than on-scene techniques such as fire analysis.

Despite this, Brooks said his organization and other innocence projects across the country take rigorous steps to prove that their clients involved in non-DNA cases are truly not guilty.

Of the 1,500 convictions the California Innocence Project is asked to consider each year, Brooks said he and his colleagues take on only about 50, and are successful in overturning just one or two.

“We only take the cases where we’re 100 percent sure that they’re innocent and we’re 100 percent sure that we can prove it,” he said.

Leo said that while some of the non-DNA exonerees could be guilty, he largely agrees with Brooks’ assessment that the justice system is not opening the door to a huge influx of genuine criminals being released from prison.

According to Leo, the far greater issue at hand is that the convictions that have been overturned in the past few decades are only the beginning.

“People who are exonerated are the tip of a much larger iceberg,” he said.

Large jurisdictions often have a single forensics lab, which are not always accredited. And there’s the “CSI effect,” in which jurors sometimes expect more certainty from forensics than can be achieved and place more confidence in the testimony of experts than they should.

Due to problems like these, a couple of forensic scientists acting in bad faith can put thousands of people in prison.

Walter Rowe, a professor of forensic sciences at George Washington University, called the late Fred Zain, a forensic technician who provided evidence against hundreds of people in West Virginia and then Bexar County, Texas, the “worst perjuror in the history of Anglo-Saxon jurisprudence,” before correcting himself and saying Annie Dookhan, a Massachusetts chemist who falsified evidence in tens of thousands of cases, overtook him.

Zain died in 2002; Dookhan was released from prison this spring after serving time on charges related to tampering with evidence.

DNA analysis can also point to the wrong person, if the sample is contaminated by the analysts or if third-party DNA is present for innocent reasons, said Rowe.

DNA remains the gold standard of forensic techniques. However, here are a just a few of the most flawed tactics and types of evidence that have contributed to the latest spike in exonerations as science has proved these techniques far from reliable.

Bite Marks

The evidence: Until about two decades ago, bite mark evidence was regularly used in courtrooms across the country and thought to be near infallible.

The problem: Forensic scientists have since discovered bite marks to be far less reliable in linking specific individuals to crimes. Brooks said this is because bite marks can be mistaken for other injuries, they deform over time, and their analysis is extremely subjective to the person who examines them. It is still used today, but its reliability is much more disputed.

“There’s a real problem here,” said Rowe. “Someone really needs to direct the research to test it.”

A case: Brooks noted the conviction of William Richards of San Bernardino, Calif., exonerated in June with help from Brooks and the innocence project. Richards, now 66, was handed a sentence of 25 years to life in 1997 in his wife’s slaying, after a so-called bite mark expert testified that the teeth marks found on the woman’s body could have come from 1-2 percent of the American public, Richards included. The expert has since completely reversed his position and now says that Richards could not possibly have left the bite mark.

Fire Analysis

The evidence: Until fairly recently, Brooks said fire investigators based their beliefs on whether or not a fire was started intentionally on intuition and personal experience rather than scientific evidence.

The problem: Often times, these “fire experts,” which Brooks said in many cases were simply glorified firefighters, erroneously believed that signs like the occurrence of multiple points of ignition directly pointed to arson.

“They are probably the most poorly trained of all the people who investigate criminal activity,” said Rowe. “Most of what they do is basically folklore or guesswork, especially point-of-origin investigation.” This means people might have spent decades in prison in cases that involved no crime at all because a natural fire was mistaken for arson.

Richard Meier, director of the National Association of Fire Investigators and a fire investigator in Sarasota, Florida, said there were no standards or certifications at all until the 1980s, and even today many fire investigators do not follow those standards. As an example, he said, “fire patterns” that some believe indicate the use of accelerants often mean nothing at all or might even be evidence against arson.

A case: Brooks said this tactic was used to convict JoAnn Parks of killing her three children by setting her Los Angeles home ablaze over 25 years ago. An arson review panel took a second look at Parks’ case in 2011 and found that the fire in her home likely “jumped” from its original spot of ignition to her children’s bedroom and none of the evidence used to convict her would hold up in court today. The California Innocence Project is currently working to free her.

Forced Confessions

The evidence: It wasn’t long ago that a confession was considered the absolute gold standard for criminal prosecutions. Few judges or jurors could possibly fathom why a person would confess to a crime he or she didn’t commit.

The problem: A record number of exonerations recorded by the National Registry of exonerations last year resulted from false confessions. In 2015, 13 out of 22 victims of false convictions in homicide cases were both under 18 and mentally handicapped to some degree. But it was a case that occurred over 40 years ago that set a major precedent for overturning these kinds of convictions.

A case: In the fall of 1973, 18-year-old Peter Reilly was accused of brutally murdering his mother in their rural Connecticut home. After an intense police interrogation that lasted about 10 hours, he was led to confess to the crime. “I was so exhausted, I basically started saying the things they wanted me to say,” Reilly said in a recent interview with McClatchy. Official misconduct also played a large role in Reilly’s conviction. The teen spent four and a half months in jail before it was revealed that the lead prosecutor and detectives who had worked to convict him had concealed vital evidence that proved his innocence.

Related issues: Data from the National Registry of exonerations show that more than half of all the exonerations it recorded in 2015 involved perjury, official misconduct or a combination of the two. Mistaken eyewitness identification was one of the leading factors behind the increasing rate of exonerations until about five years ago, when its use flatlined in much the same way as DNA’s did.

Megan Henney and Eleanor Mueller contributed to this article.