Victims Push for DNA Bill On Hill
Crime Legislation Stalls in Panel Again
BUFFALO, Nov. 28 — In 1994, Lynn DeJac was found guilty of strangling her 13-year-old daughter during a night of drinking and bar hopping. On Wednesday, Ms. DeJac walked out of the Erie County courthouse free, and the first woman in the United States to have her conviction for killing someone overturned based on DNA evidence.
The 44-year-old Ms. DeJac — whose husband and twin sons were seated behind her in the courtroom — began weeping after Judge John L. Michalski ordered her released on her own recognizance.
After her release, Ms. DeJac left the courthouse with her husband, Chuck Peters, whom she married while in prison, and their sons, who were born during her first year in prison. She did not speak to reporters.
“The first thing she wanted to do was go to my sister’s grave, then reunite with everybody — it’s been so long,” said Ms. DeJac’s 22-year-old son, Edward Girard, an Army sergeant stationed in Fort Bragg, N.C. “She hasn’t met my wife yet; she hasn’t met her grandkids.”
Yet despite Ms. DeJac’s legal victory, she faces another legal hurdle. Frank Clark, the Erie County district attorney, said he planned to retry her on a charge of second-degree manslaughter because, since her conviction, the legal definition of murder due to depraved indifference had changed.
As a result, Mr. Clark said, even if Ms. DeJac was found guilty at a second trial, she would probably not return to prison because she had already served nearly the maximum sentence possible for the lesser charge.
Explaining why he planned to proceed with the case, Mr. Clark said: “The question of guilt or innocence still has not been determined. That’s why we have every trial.”
Earlier in the day, Judge Michael L. D’Amico, who presided over her trial and sentenced her to 25 years to life, set aside Ms. DeJac’s murder conviction. He ruled that new tests showing that bloodstains in the room where the body of her 13-year-old daughter, Crystallynn Girard, was found on the afternoon of Feb. 14, 1993, contained DNA belonging to a former boyfriend of Ms. DeJac’s, Dennis P. Donahue.
But Mr. Donahue will never be tried for Crystallynn’s murder, even though members of the Buffalo Police Department’s cold case squad suspect him of committing the crime. Mr. Donahue, a 55-year-old former bartender, who was charged in September with the 1993 murder of another Buffalo woman he had dated, cannot be charged in Crystallynn’s death because prosecutors granted him immunity in exchange for his testimony before a grand jury and at Ms. DeJac’s trial.
Ms. DeJac’s lawyer, Andrew C. LoTempio, urged the police to re-examine evidence found at the crime scene after Mr. Donahue’s arrest. Later, tests not available at the time of the trial indicated that a man’s DNA was present in skin cells found in a smear of blood on a wall, on bedding and in the vaginal cavity of Crystallynn, who was menstruating at the time.
Eric Ferraro, a spokesman for the Innocence Project, a legal clinic based at the Benjamin N. Cardozo School of Law in New York, said Ms. DeJac was the first woman to be exonerated of murdering someone among the 209 people cleared through DNA evidence since 1989.
An Illinois woman, Paula Gray, was exonerated along with four men in 2002 after DNA testing cleared them in a 1978 double murder, but she had been charged as an accomplice, rather than someone who played a direct role in the crime.
“More often than not, DNA cases involve sexual assaults, so the defendants are most often men,” Mr. Ferraro said.
At Ms. DeJac’s trial, prosecutors said she had strangled her daughter during an all-night drinking binge that took her and Mr. Donahue to a wedding, back to her home, and to several local taverns. At the trial, Mr. Donahue admitted having confronted Ms. DeJac and another man that night, and that at one point he put a knife to the man’s throat.
Although prosecutors said there was no physical evidence connecting Ms. DeJac to her daughter’s murder, they relied on the testimony of a man convicted of forging checks, who said she confessed to the killing in a bar several months later.
The circumstantial case also hinged on Ms. DeJac’s behavior on the night of her daughter’s death: she made a 911 call shortly before midnight, then did not answer the door when the police responded about 15 minutes later.
Several witnesses from the working-class neighborhood of Buffalo where Ms. DeJac lived and her mother owned a tavern described her as a troubled woman, a heavy drinker and erratic mother. They said she frequently left the girl and her 8-year-old brother alone while she stayed out all night. Crystallynn’s stepfather was convicted of sexually abusing her before she was 10 years old.
“I think about 80 percent of the jury’s verdict was based on innuendo created by neighbors who didn’t like her,” said Mr. LoTempio, a former Buffalo city court judge.
Mr. LoTempio said the new DNA tests provided more evidence implicating Mr. Donahue than prosecutors had presented in the case against Ms. DeJac.
“Throughout the night, he had the opportunity to be in the house, and throughout the night, he had the motive,” Mr. LoTempio said at a hearing last week on the motion to dismiss the verdict, suggesting that Mr. Donahue killed Crystallynn because he was angry at her mother. “He’s not only in her room, he’s in her blood.”
For now, he said he hoped that the attention did not hamper her in rebuilding her life.
“She’s got no money, she’s got no clothes, she’s never seen the house where her husband and children live,” Mr. LoTempio said. “Think about being taken away from the world for 13 years and then being dropped back in. Hopefully, she won’t slip back into that neighborhood and the things that caused the problems in the first place.”
|Lower Ct:||United States Court of Appeals for the Eleventh Circuit|
|~~~Date~~~||~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~|
|Nov 28 2007||Application (07A451) for stay of execution of sentence of death, submitted to Justice Thomas.|
|Nov 29 2007||Response to application (07A451) from respondent Richard F. Allen, Commissioner, Alabama Department of Corrections, et al. filed.|
Opposition to post-conviction DNA testing has always baffled me. Literally, what has anyone to lose? If the Defendant is guilty absolute proof will impact on the chance of relief at clemency or on “appeal;” indeed lingering doubt is often a reason FOR clemency or a grant of relief. As formerGov. Mike Huckabee recently noted,”[t]he death penalty is the only decision that I make as a governor that is totally irrevocable. Once an execution is carried out, a life has ended.”
Apparently not everyone feels the same way. Tommy Arthur is slated to be killed next Thursday in Alabama. Today the Birmngham News calls on Alabama Gov. Bob Riley to perform DNA testing to assure his guilt lest he kill the wrong guy.
Had the technology existed at the time of his trial, surely DNA tests would have been conducted on the evidence, which includes hair and semen. It’s routinely used now on the front end of criminal cases to confirm guilt or to eliminate suspects.
It boggles the mind, then, that the state of Alabama won’t order DNA tests before proceeding to execute Arthur on Dec. 6.
True, the U.S. Supreme Court this week denied Arthur’s legal bid for DNA testing. But the courts are bound by legal timelines and rules. We may not always like those constraints, but at least we can see the reasoning behind the decision.
Gov. Bob Riley is under no such rules. He can order DNA testing in this case, and there’s no good reason for him not to do it.
In Florida, on a similar note, is Thomas Overton v. State where today the state Supreme Court goes to extraordinary length to deny DNA testing of hair evidence. Counsel for Overton wants to examine whether the tape that had been used to bind the victim contains any hair evidence, presumably of the victim and perpetrator. Rather than order testing of the tape the Overton Court goes out of its way to create a scenario, however implausible, where DNA could be recovered that wasn’t the perpetrator’s or victim’s.
Like I said, opposition to post-conviction DNA testing has always baffled me, today, is no different. The Innocence Blog has more.
‘Governor Riley is out of excuses. The 45-day stay of execution gives us more than enough time to conduct and complete DNA testing that could show whether Thomas Arthur is guilty or innocent,’ Neufeld says
(MONTGOMERY, AL; September 27, 2007) – Today, Alabama Governor Bob Riley issued a 45-day stay of execution for Thomas Arthur so that the state can change its lethal injection protocol. Arthur was set to be executed this evening. The Innocence Project, which represents prisoners seeking to prove their innocence through DNA testing, has been asking Governor Riley to issue a stay of execution in Arthur’s case in order to conduct DNA testing that could prove his guilt or innocence. The Innocence Project said today that Governor Riley should immediately order DNA testing in Arthur’s case – and that DNA testing could be completed well within the 45 days granted in the stay of execution.
Arthur’s case is the second in less than two months in which Governor Riley has refused to allow for DNA testing before an execution. In July, Darrell Grayson was executed in Alabama without DNA testing that could have conclusively proven his guilt or innocence. The Innocence Project, which does not represent Arthur and does not have a position on his guilt or innocence, said DNA testing in Arthur’s case could show whether the initial story from the victim’s wife was, in fact, accurate. (She initially claimed a stranger – someone other than Arthur – broke into their home, raped her and killed her husband. Police suspected she was lying, and she was charged and convicted in the murder. She then changed her story and testified against Arthur in order to be released from prison earlier.) Her motive to lie is obvious, the Innocence Project says. Several pieces of evidence – the victim’s wife’s blood-stained clothing, a rape kit collected from her after the crime, and hairs in the victim’s wife’s car – could be subjected to DNA testing. The testing could show that her testimony against Arthur was false, and the DNA testing could identify the true perpetrator. For example, it’s possible that the testing could show that her original story was true and that she was raped, and the DNA profile from evidence in the rape could be entered in the federal DNA database and yield a hit to a man matching her initial description of the intruder at the couple’s home.
Following is a statement from Peter Neufeld, Innocence Project Co-Director, on today’s developments in the Arthur case:
“Governor Riley said last week that DNA testing was only a tactic to delay this execution. It’s not. Now that the execution is delayed for other reasons,
DNA testing should be started immediately. By the time Governor Riley made his statements last week that we were simply trying to delay this execution, weeks had passed since we first requested DNA testing – and the testing could have already been conducted.
“The 45-day stay of execution gives us more than enough time to conduct and complete DNA testing that could show whether Thomas Arthur is guilty or innocent. Governor Riley is out of excuses. There is no reason to continue denying DNA testing – and every reason to start the process for DNA testing immediately.
“As we have said before, we do not have a position on whether Thomas Arthur is guilty or innocent. Our concern is that biological evidence may exist that could be subjected to DNA testing and prove whether or not he is guilty. The victim’s wife in this case was convicted of murdering her husband and then changed her story; DNA testing could show that she changed her story only to get out of prison sooner, and that in fact someone other than Thomas Arthur committed this crime.
“In 42 states, Darrell Grayson or Thomas Arthur would have been able to get DNA testing that could resolve their cases and maintain public confidence in the criminal justice system. Governor Riley, who has refused DNA testing before executions twice in the last two months, has made it clear that he isn’t concerned with getting to the truth in these cases. Nationwide, 15 people who served time on death row have been exonerated through DNA evidence. Sometimes within days of execution, DNA proved they were innocent. If any of those 15 people had been in Alabama, they would be dead today.
“This indifference to the power of DNA to determine the truth through hard science is unconscionable. It is nothing short of a national scandal that Governor Riley is repeatedly refusing DNA testing before executions when testing could confirm guilt or innocence. With this 45-day window of time, Governor Riley has an opportunity to restore faith in the system and restore credibility to his office.”
We the undersigned are fighting for Thomas Arthur to be allowed DNA testing that could conclusively prove his innocence. We are asking that Alabama Governor Riley order DNA testing of evidence that includes blood, hair and semon was recovered and still exists, but it has never been tested!!! DNA testing of the evidence evidence can conclusively prove Thomas Arthur is innocent and was never at the crime scene, as he has proclaimed for 25 years. Yet the State of Alabama not only REFUSES to DNA test the crime scene evidence--but it is refusing to allow Arthur to have the evidence DNA tested at HIS EXPENSE!!! Is the State of Alabama refusing because they know Thomas Arthur is innocent--then it is not seeking to execute him---but to LEGALLY murder him. We are asking that Governor Riley allow Thomas Arthur a new trial so that he may present ALL of the evidence that can prove his innocence. There are two eye witnesses placing Arthur 75 miles away when crime was committed. The DNA evidence will prove if the two women found at the crime scene fired the weapon that shot the victim. It can prove Arthur did not have sex with Judy Wicker prior to the murder, it can prove blooded shirts might have another persons blood on it. The semen can be put in an FBI data base to se if another person could have committd this crime. No physical evidence links this man to the crime!!! 20 years on Death Row is a crime, but to be executed for a crime you are innocent of is something you will have on your conscience for ever Governor....Governor Riley, hear our voices , we demand the crime scene evidence be DNA tsted, and that you immediately order an investigation into this case by the Alabama Bureau of Investigation. You can go to http://www.thomasarthurfightforlife.com/ and see the circumstantial evidence and the DNA evidence from the court records. You decide which proves absolute innocence or guilt.
"It never occurred to me when we set this up that we'd have complete idiots administering the drugs." So said Jay Chapman, the Oklahoma doctor who developed the infamous three-drug cocktail used by many states to execute people - the same concoction that is now under constitutional review before the U.S. Supreme Court. As part of the secrecy surrounding the execution process, we do not really know who the people carrying out lethal injections are. But thanks to a recent lawsuit in Missouri, we know a little bit about one of these people.
He is a doctor from Missouri called Dr. Doe. He has been barred from practice in two hospitals, been the subject of numerous malpractice lawsuits and has been forbidden by a federal judge from "participat[
Dr. Doe's transgressions were not brought to light by the state, but as the result of a lawsuit filed by a condemned inmate. And we learned a lot from Dr. Doe's own testimony. The doctor admitted under oath that he has dyslexia. He testified that his dyslexia renders him unable to work with numbers, so, Dr. Doe said, "it's not unusual for me to make mistakes." He testified "that he had cut the thiopental [the drug that renders a person unconscious] dosage he gave inmates by half because a change in drug packaging forced him to 'improvise'.
Where has Dr. Doe ended up now that he no longer executes prisoners in Missouri? Astoundingly, the federal government has made him as part of its execution team. Although the U.S. Bureau of Prisons cites a policy of not publicly disclosing the names of staff members involved with lethal injections, we know that Dr. Doe will possibly replicate his abysmal performance in Missouri on the national level because he testified about his new job in the inmate's lawsuit.
If ignorance is bliss, then your government wants you ecstatically unaware of the lethal injection process. Indeed, if it were not for lawsuits filed by condemned inmates, we may have never learned how poorly the death penalty system is run. Much of this information about Dr. Doe and other lethal injection issues is available on lethalinjection.
But even with lawsuits and websites we still have to fight to get information. Even the Show Me State kept its citizens blind to the fact that a doctor, found unfit to practice in two hospitals, was overseeing the execution of inmates. Only government transparency will allow us to see the absurdity of a system that allows a doctor who cannot perform executions of prisoners in one state to participate in the executions of inmates from all over the country. We need to see it to believe it.