Bill Clutter Presenter World Investigator s Conference Dallas

Bill Clutter , Presenter World Investigator’s Conference Dallas, Texas March 13, 2010 INVESTIGATING ACTUAL INNOCENCE

Downstate Illinois Innocence Project University of Illinois at Springfield Our focus is on investigations Affiliated with the Innocence Network http: //www. innocencenetwork. org/members. html

Kirk Bloodsworth First death penalty DNA exoneration case in the country Former Marine convicted in 1985 Murder/rape 9 year-old girl 1993 released from prison Barry Scheck and Peter Neufeld bombarded with requests from inmates all over the US

Innocence Project Founded 1992 at Cardozo Law School As of March 9, 2010 251 DNA exonerations in US http: //www. innocenceproject. org

THE ELEMENTS OF A WRONGFUL CONVICTION CASE MISTAKEN EYE-WITNESS IDENTIFICATION FALSE CONFESSION TUNNEL VISION JUNK SCIENCE JAILHOUSE SNITCH TESTIMONY POLICE AND PROSECUTORIAL MISCONDUCT LACK OF INDIGENT FUNDING SUBSTANDARD REPRESENTATION

Rolando Cruz/Alex Hernandez

The Nicarico case Illinois’ first death penalty DNA exoneration. The beginning of the Innocence Project movement in Illinois.

Nov. 11 2009 Dugan convicted

Post-conviction forensic testing statues Illinois was the first state in the nation in 1997 to adopt a post-conviction forensic testing statute 725 ILCS 5/116 -3 “Motion for fingerprint or forensic testing not available at trial regarding actual innocence”

Proving Actual Innocence Identification of actual perpetrator DNA Fingerprint (AFIS) Ballistics (IBIS) Confession of actual perpetrator Eye-witness identification

The Innocence Protection Act of 2004: Bloodsworth Grants Post-conviction DNA Testing Assistance Program Gives indigent prisoners access to DNA testing to prove a claim of actual innocence States may use the money to pay private investigators for case review and to locate evidence Applications are due April 22, 2010 http: //www. ojp. usdoj. gov/nij/journals/262/postconviction. htm http: //www. ncjrs. gov/pdffiles 1/nij/sl 000922. pdf

First Touch DNA Exoneration

US Supreme Court Has yet to recognize a claim of actual innocence as a legally permitted constitutional claim Herrera v. Collins, 506 U. S. 390, 113 S. Ct. 853, 122 L. Ed. 2 d 203 (1993) “. . . the execution of a legally and factually innocent person would be a constitutionally intolerable event. ” “After all, the central purpose of any system of criminal justice is to convict the guilty and free the innocent. ”

Justice Scalia “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable. ” Dissent in Writ of Habeas Corpus Re: Troy Anthony Davis decision Aug. 17, 2009

States have a different interpretation People v. Washington, 171 Ill. 2 d 475, 488 -489, 665 N. E. 2 d 1330 (1996) A defendant can raise a stand alone postconviction claim of actual innocence under State Constitution No statute of limitation for asserting actual innocence claim

Traditional Post-conviction claims Attacks validity of conviction Must raise a violation of a constitutional right 5 th Amendment right to counsel Ineffective assistance of counsel Failure to investigate Due Process— 4 th and 14 th Amendments Brady violations 2 nd Prong of Test: New evidence would have changed the outcome of the jury verdict

Randy Steidl/Herb Whitlock

Post-Conviction Investigation No DNA Real killer never identified Actual innocence claim not asserted

Forensics—Lamp Evidence

"As presented at trial, the lamp was a significant detail used to bolster Rienbolt's credibility. . . to offset her doubtful credibility and the inherently unbelievable nature of her story” “Had defense counsel presented expert testimony. . . it would have gone a long way toward convincing the jury that Rienbolt's trial testimony was not actually an eyewitness account of the murders. . . would have resulted in a different outcome at trial. “ US District Judge Michael P. Mc. Cuskey June 17, 2003

17 years later—free 5/17/04

9/6/07 Whitlock conviction vacated “The State violated Brady by failing to disclose (1) the fact that Herrington originally identified Jim and Ed as the perpetrators of the crime. . . and that the police provided alcohol to Herrington. ” 4 th Dist. Appellate Court Rule 23 Opinion

21 years later—free 1/9/08

THE IMPACT OF DEATH PENALTY EXONERATIONS IN ILLINOIS Each branch of government examined what went wrong: Legislature—Task Force on Prosecutorial Misconduct Governor—Commission on the Death Penalty IL Supreme Court—Rule 416 Reforms were put in place to prevent the conviction of the innocent

Money for Investigators Capital Litigation Crimes Act: 725 ILCS 124/1 effective date Jan. 1, 2000

INNOCENCE PROJECT CASES Julie Rea-Harper The Slover case

Julie Rea Harper: Oct. 13, 1997

Julie-Rea Harper Indicted Oct 12, 2000 for the murder of her 10 -year old son Joel. Three year delay Prosecutors announce to media intent to seek death penalty.

June 2000: I Get a Call From Julie’s Attorney Real killer may be Tommy Lynn Sells A serial killer who targeted children Del Rio murder of Kaylene Harris-13 Killed before in Southern Illinois

ABUSE OF PROSECUTORIAL DISCRETION Julie files pro se motion for appointment of two capital qualified attorneys. Prosecutors file intent not to seek death penalty

Denied essential resources to investigate her claim of innocence ABA Guidelines require the appointment of “an investigator who has received specialized training” in criminal defense investigations. “Counsel lacks the special expertise required to accomplish the high quality investigation to which a capital defendant is entitled. . . ”

PROSECUTORIAL MISCONDUCT: Use of emotionally charged evidence Julie talked about having an abortion when she found out she was pregnant with Joel. Julie brewed raspberry tea to induce labor so birth would occur on 13 th of July.

A modern day witch trial “Now what about the obsession with the number 13? Well I will tell you what about it. . . She was born on December 13 th, 1968. Her husband, Len, was born July the 13 th. She insisted—from the evidence, she insisted that they be married on the. . . 13 th of the month. . . she drank a concoction on the 12 th of July so she could have Joel on the 13 th. Is that a coincidence? . . . Is it a coincidence that Joel died on October 13 th when he was ten years and three months old to the day? ” Ed Parkinson Special Prosecutor

ABC 20/20 Airs Julie’s story “To believe her, you would have to believe that this assailant came into her home in the middle of the night. . . for the sole purpose of killing a 10 year-old boy. And yet he also forgot to bring a murder weapon along and used her kitchen knife to do it with. . . total nonsense. ” Ed Parkinson Special Prosecutor May 31, 2002

True Crime Writer Diane Fanning Writes Sells “The other night, I was watching a story on TV about a woman who was in jail for killing her son. She claims someone broke into her house and killed him. . . And here’s my very favorite on the stupid scale [the prosecutor said] A person does not come into someone’s house without a weapon and then pull a knife out of the kitchen drawer in the house and use it. After hearing that garbage, I believe it is very possible that woman is telling the truth. Tommy, I think if I never heard of you, I still would have thought these guys were idiots. ” June 9, 2002

6/14/2002 Sells Writes Back “Diane. . . About that woman claims someone brak (sic) in to her house? Was that like maby (sic) 2 days befor (sic) my Springfield MO murder? Maby (sic) on a 13 th. ”

UIS INNOCENCE PROJECT CORROBORATES CONFESSION Witness at diner places Sells in Lawrenceville Greyhound Bus ticket agent Affidavit of Texas Ranger John Allen

Julie’s description matched Sells

Suspect Sketch

Winnemucca, Nevada

Audio interview of Sells provides details that only the killer would know. During the struggle Sells said she had hold of his leg and he “dragged her” on the carpet. Julie told police “I grabbed at his legs” and wouldn’t let go. Police reports and hospital records indicate she had rug burns on her knees, consistent with what she told police.

Do Prosecutors seek justice? They call Sells a “serial confessor. ”

7/26/06 Not guilty!

THE SLOVER CASE Indicted Jan. 27, 2000. First case eligible for CLTF Most complex criminal case of my career Over 17, 000 pages of discovery Funded as a capital case > 1 yr

ON FEB. 2, 2001 PROSECUTORS FILED INTENT NOT TO SEEK DEATH “If you take away the death penalty, they can’t tap into that slush fund. . . Macon County State’s Attorney Scott Rueter did not deny the allegations, and said the Capital Litigation Trust Fund was one of the issues discussed in the decision making process. But Rueter also said, “ It’s not a main reason for what we’re doing. Any aspect that may affect the litigation of the case is a factor, and I can’t deny that we looked at that issue. …I don’t believe it was a main emphasis. ” (Source: Decatur Herald & Review: (“Hearns unhappy with decision to drop death penalty, ” Feb. 6, 2001)

Denied essential resources to investigate claim of innocence Court denied motion for county to fund investigators. “Without the services of investigators Mr. Slover cannot present an adequate defense or receive a fair trial. ”

Innocence Project investigates Blue fiber evidence “Short blue wool fibers have been located in the vehicle that Karyn Slover was driving, in at least one gray plastic bag which contained body parts of Karyn Slover, and on the duct tape used to seal the gray plastic bag. The source of these short blue wool fibers has not been located. ” (M/Sgt. Colin Mc. Clain, Investigative Summary Sept. 27 thru Dec. 31, 1996, at p. 2, Control # 2208)

Alternate suspects “Doreen told me. . . there was a long- haired white male who appeared to be a truck driver standing inside the rest area wearing a blue flannel shirt. ” (Oct. 2, 1986 interview of Doreen Requarth report of R. Chaney Control # 132 at A).

Evidence from Kankakee Co.

Tinted Windows? Defense witness Vickie Gagnon Her school bus was passed by a black Pontiac Bonneville lic. # “CADS 7” Unable to see the driver because the vehicle had tinted windows

The State challenged Gagnon’s testimony: Q: You see any tinting on any of these windows? A: No.

David Swann: Q: Did it have tinted windows? A: No sir, it did not. Q: A: [witness shown photo of car] And that shows the absence of any tinted windows? That is correct.

Perjured testimony?

Bill Clutter Director of Investigations Downstate Illinois Innocence Project University of Illinois at Springfield Email: billclutter@email. com www. clutterinvestigations. com