The following is from Reuters dated July 2, 2008. SMU Law Professor Fred Moss provided expertise for this story.

Lost evidence hampers reopening old cases


DALLAS (Reuters) - James Waller spent 10 years behind bars and waited another 14 years -- when his movements were restricted as a sex offender -- before DNA evidence finally cleared his name. He is one of the lucky ones, according to the Innocence Project, a New York-based organization dedicated to exonerating wrongly convicted people.

DNA testing allows crime laboratories to compare genetic evidence at a crime scene, such as semen, with the DNA of a suspect. Some 218 people have been exonerated in the United States using DNA since the technique was first used to overturn convictions in 1989.

But for many others, the evidence has either been lost or simply was not preserved, the Innocence Project says. Only 25 of America's 50 states and Washington have legislation compelling authorities to preserve evidence of old cases. Even where such laws exist, they are often inadequate, while storage procedures and facilities are poor.


The jurisdiction where Waller was convicted, Dallas County, Texas, leads the country in such cases, with 17 people cleared by DNA evidence. An 18th person was scheduled for release on July 3.

An aggressive district attorney goes a long way to explaining the number of wrongful convictions, according to Fred Moss of the Dedman School of Law at Southern Methodist University in Dallas.

"A lot of these cases occurred under the Wade administration and the culture of that office was aggressive, advancement was based on conviction rates," Moss said.

He was referring to the late Henry Wade, the Dallas District Attorney for more than 35 years, who oversaw famous cases such as the prosecution of Jack Ruby for the murder of Lee Harvey Oswald, the assassin of President John F. Kennedy.

The policy of the District Attorney's office during the 1980s, when many of these trials occurred, was to "nail scalps to the wall," Moss said.


Ironically, one of the reasons that Dallas has turned up so many wrongful convictions is that it preserves physical evidence under a policy aimed at reconvicting anyone whose conviction is overturned by an appeals court. In other states, preserved evidence is harder for lawyers to get hold of.

In Georgia, evidence in death penalty cases is kept until the convict is executed, but for serious felonies that do not carry the death sentence, such as rape, storage is only mandatory for up to 10 years after judgment. Louisiana and Virginia only require preservation in death penalty cases upon conviction.

"Dallas is the canary in the coal mine. It is indicative of a larger problem that is not unique to Dallas," said Moss.

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