The Case for Innocence

Written, Produced and Directed by
Ofra Bikel

NARRATOR: Last season FRONTLINE cast a national spotlight on convicted men who claimed they were innocent.

BARRY SCHECK: So many of these cases are literally wars.

NARRATOR: Today, two have been freed and a third has been pardoned. Sometimes television does what it’s supposed to. Tonight on FRONTLINE, THE CASE FOR INNOCENCE

On the evening of September 27, 1986, in Montgomery County, Texas, in a wooded area, a body was found. It was the body of a young girl who had been sexually assaulted and murdered between 5:00 and 7:00 that afternoon. Her name was Deanna Ogg. She was 16. Within a few weeks, a suspect was arrested. His name was Roy Criner.

Jim Cooper, now a lawyer, then a private investigator, investigated the case for Criner's defense.

JIM COOPER: Having been a private investigator specializing in criminal cases - predominately homicide cases - for almost 10 years, I investigated more than 200 murder cases. And out of all those years and all of those cases, there's only one person that I can say beyond any doubt in my mind that he's innocent, and that's Roy Criner.

NARRATOR: Roy Criner, a logger, was 20 and a year out of high school when he was arrested.

JIM COOPER: As a defense investigator working a homicide case, my primary focus is to go out and find the holes in the case. That's what was most frustrating in this case, because there was no case to punch any holes in. There was no physical evidence to try to prove that it was not credible. There was no witness testimony to try to prove that it was not credible. The only case they had was this statement that Roy had made to his friends.

NARRATOR: David Walker, the prosecutor, agrees.

DAVID WALKER: If he had never spoken of the crime to anyone, there might never have been a prosecution. There was very, very little forensic evidence.

OFRA BIKEL: So what was your case based on?

DAVID WALKER: Primarily the testimony of three young men who Mr. Criner spoke to, if you will, or bragged to about the events surrounding the death of Ms. Ogg.

OFRA BIKEL: That's it?

DAVID WALKER: That was primarily the evidence, yes.

OFRA BIKEL: You- and this is overwhelming evidence?

DAVID WALKER: Well, it was certainly enough to satisfy the jury at the time.

NARRATOR: The three friends were Michael Ringo, Terry Dale Hooker and Jeffrey Pitts. According to the three, Roy Criner told them that he had picked up a hitchhiker and had sex with her. But from then on, the stories varied.

One said that Roy reported the girl he picked up was a blonde. The other said it was too dark to see inside the truck. Two said that he had told them it had happened on the Friday, the night before Deanna Ogg was murdered. One said that he said it was on Saturday night, after the murder.

One said that Roy was talking about oral sex. The other thought he mentioned rape. They said that he'd told them the girl he picked up was drunk and was 20. The victim, Deanna Ogg, was not drunk, and she was 16.

The prosecutor assumed that the girl in question was Deanna Ogg and wasn't particularly concerned about the inconsistencies of the stories.

DAVID WALKER: If all of those stories were absolutely consistent in their revelation of alleged facts, then I think that would be suspicious. And that would probably raise the allegation that somehow those stories were contrived.

NARRATOR: By the time we met Roy Criner 14 years later, he had been in jail for 10 years and there was little left of the young 20-year-old

ROY CRINER: How do I feel about them friends? How do I feel about them friends. I grew up with them. All of them have children now, and I hope none of this ever happens to them because they know that I didn't do it.

NARRATOR: Jeffrey Pitts, one of the three witnesses who testified at the trial, was Roy's friend and employer.

JEFFREY PITTS: He just said he had picked up a girl that night and carried her down the road, and they- they had sex. You know, that was pretty common, you know, with young guys. You know, we just talking.

NARRATOR: But during the four years of the ongoing investigation, Pitts, like the other witnesses, was called and re-called by the police, and his story changed and damaged Criner.

JEFFREY PITTS: One of the officers that was making me write the statement down kept trying to add words to my mouth. He would say, "Didn't Mr. Criner tell you he murdered the girl?" I said "No." I says, "I'm not going to write that down," I said, "because he did not tell me that." They took my statement several times. Well, it's kind of hard to keep remembering everything.

NARRATOR: At the trial, Pitts also testified that he was away from the logging site for about three hours on the afternoon of the murder. According to the prosecution theory, this gave Criner a window of opportunity to drive out, rape and kill the victim and return to the site. Yet Jeff Pitts was the one person who could have testified that Roy Criner could not have committed the crime.

JEFFREY PITTS: There's no possible way Roy could have left the job that day. If he would have left, I would have run into him. The guard would have seen him. We would have met, due to the fact there's one way in, one way out. And it would take anywhere from an hour, hour and a half, to get out to a road.

NARRATOR: According to Pitts, Roy did an enormous amount of work while he was gone.

JEFFREY PITTS: When I returned, there was roughly around two loads of wood decked up. I've been doing this my whole life, and I couldn't have had that much done. Roy would not have had time to cross the street to rape somebody in that time period. He just- there's no possible way.

OFRA BIKEL: Why didn't you tell that to the police?

JEFFREY PITTS: I did. I told it to the police. They just- they did not write it down. I went to document, and they said, "No, that's not what we want."

OFRA BIKEL: They said that?

JEFFREY PITTS: Right, and they said that was not nothing that they was asking about.

OFRA BIKEL: Why didn't you testify at the trial as a defense witness, telling them all that?

JEFFREY PITTS: I was never asked. None of Roy's attorneys asked me. When you set on a trial, you answer what they ask you. And that's what I did.

NARRATOR: He was never called to testify for the defense. In fact, Roy Criner's lawyers felt that the state's evidence was so flimsy that they didn't need to call any defense witnesses. One of the attorneys was Robert Morrow.

ROBERT MORROW: Our strategy was, after looking at all the evidence that the evidence was insufficient, as a matter of law. They had no physical evidence at all to prove any connection between Mr. Criner and the offense. They started out with a capital murder charge that then, by the time they reached trial, they had gone back to a aggravated sexual assault. So we felt like the state's testimony only was going to be witnesses who were unreliable, and they were going to repeat some alleged oral statements that Mr. Criner was said to have made.

In looking at all the evidence, we felt going in, and then after having heard it, that it was insufficient as a matter of law.

NARRATOR: The jury did not agree. On May 1, 1990, Roy Criner was convicted and sentenced to 99 years in prison for aggravated sexual assault.

JACKIE CRINER: I don't think words can ever tell you how I felt inside. They did permit Roy- they did- they did permit Roy to hug me before they let him out. [weeps] Words can't express, or can't put- say how I felt when they convicted him.

RICHARD CRINER: We've been robbed. I've been robbed of my brother. And it's just, you know- he's, like, put my whole family in jail. I mean, it feels like the whole family's in jail.

JACKIE CRINER: You know, I mean, here you give birth, and you raise them up. You think they're going to go on out to the world and be a happy man. And then they're took from you for 99 years. And in my heart and in my soul I knew he did not do the crime.

NARRATOR: Appeals lawyer Ray Bass felt that he had a good chance to have the verdict reversed.

RAY BASS, Appellate Lawyer: Well, the law is suspicious of alleged admissions made by someone. I mean, the easiest thing in the world to do is to say, "He admitted to me he did- he committed this crime." And so anyone who is your enemy, anyone who has an axe to grind against you could cause you great difficulty simply by saying that you said something. And so the law demands that you cannot convict someone on their alleged out-of-court admissions.

NARRATOR: Based on insufficient evidence, Roy Criner's verdict was reversed in the Beaumont Court of Appeals in September, 1991.

JACKIE CRINER: He got out on appeal. That was a blessing, happy. The world was back together. And then our world crumbled again.

NARRATOR: One year later, in December, 1992, the Texas Court of Criminal Appeals unanimously reversed the appellate court's decision and held that the evidence was indeed sufficient. Judge Charles Baird explains.

Judge CHARLES BAIRD: The evidence was primarily the victim's body, the location of where she had been sexually assaulted and murdered, three statements by Mr. Criner, which we would call extra-judicial statements. They were statements that were made outside of court, but they were not formal statements like confessions. And there was also some- some type of scientific evidence in the form of a comparison with Mr. Criner's blood type and the semen taken from the victim's vagina and rectum.

NARRATOR: In essence, the Court of Criminal Appeals reinstated the jury's original verdict. The foreman of that jury was Joel Albrecht.

JOEL ALBRECHT, Jury Foreman: I'm trying to say that the comments that he made to his friends from the back of the pick-up truck that night was an important thing. I'm trying to say that there was some comments relating to a screwdriver seemed very important. There was some testimony relating to blood that- that seemed very important.

NARRATOR: The tests that existed in the mid-'80s were ABO tests, which could only type groups of blood without being very discriminating.

BOB BURTMAN, Journalist: The evidence that the state presented was that it could have been Roy by virtue of the blood test. Now, the odds were 50-50. It could have been him, or it could have been 50 million other people. But it could have been him.

NARRATOR: Bob Burtman, a journalist at The Houston Press, wrote an article about the case called "Hard Time."

BOB BURTMAN: In fact, I believe Walker said at trial, "Is there any scientific evidence to prove that this was Roy? Yes, there is, and the blood test is it," because he was trying to explain why they had 27 other pieces of forensic evidence, and none of it matched to Roy. So he said, "Yeah, the blood matches. That could be Roy."

NARRATOR: And so Roy Criner went back to prison to serve the rest of his 99-year sentence.

Then, in 1997, veteran appeals lawyer Mike Charlton heard about the case and agreed to help. Aware of the advances made in DNA testing over the previous decade, he decided to approach the family.

MICHAEL CHARLTON, Appellate Lawyer: We told the Criner family, "Look, there is a DNA test." You know, "We can- we can go do this test, and if it shows that he's innocent, then you've got very strong evidence that he ought to get a new trial. And if it shows that he's guilty, well, then nothing that we can do for you will ever get him out of the penitentiary."

JACKIE CRINER: When our attorney went up there and looked at Roy and says, "Roy, we're going to run a DA- a DNA on you," he said, "I'm going to tell you what." He says, "or I can go through paperwork." He says, "I'm telling you, Roy, you will nail your coffin if- if you're not sure."

MICHAEL CHARLTON: We told Roy that "If you do this DNA and it comes back and it's your DNA in that semen, you'll be in the prison the rest of your life. You'll never get out. Nothing- no lawyer can save you if- if that's your DNA." And he looked us right in the eye and said, you know, "Do it. I'm not worried about it. It's not mine. Just do it."

OFRA BIKEL: Weren't you worried about the test?

ROY CRINER: No, ma'am. Not as much as my lawyer was.

OFRA BIKEL: Why? You felt your lawyer was worried?

NARRATOR: The defense was allowed to send the DNA evidence to be tested at an internationally reputable lab, Cellmark. The report came back negative. The findings were that it was not Roy Criner's DNA. Refusing to accept the results, the district attorney's office insisted on re-testing the evidence in the state's lab. The D.A. is Michael McDougal.

OFRA BIKEL: Why did the state test the DNA?

MICHAEL McDOUGAL, District Attorney: To make sure that the tests were done properly.

OFRA BIKEL: And they were done properly?

MICHAEL McDOUGAL: Yeah. As far as I know.

NEWS ANCHOR: And good evening, everyone. Roy Criner was sentenced to-

NARRATOR: The results of the state's test made headlines.

NEWS REPORTER: He could soon be a free man.

NEWS REPORTER: That DNA test shows that the semen found in the victim is not Criner's.

NEWS REPORTER: The judge said if jurors had known all this, they might have acquitted Criner.

NEWS ANCHOR: A judge in Montgomery County today ruled the new evidence means Criner deserves a new trial.

NARRATOR: But the family was soon to discover that the process was not so simple.

BRENDA VERRON, Aunt: I thought Roy'd be home in two weeks. And then when Roy didn't come home in two weeks, I told Jackie, "Well, he'll be home for Christmas." Christmas rolled around. I couldn't understand why didn't they release Roy? And it's like our hands are tied. What are we- what do we do next?

RICHARD CRINER: I feel like I just can't do nothing. You know, who do I go talk to? Do I go up there and sit at the state capitol, wait for Mr. Bush? Do I sit down in Montgomery County, picket the parking lot? I mean, where do I go? What do I do? It's just- it's a nightmare.

NARRATOR: It was a nightmare that would last much longer than they had imagined. What they didn't know was that the district attorney had dismissed the results of both tests- the defense's, as well as his own.

OFRA BIKEL: Why, then, did you send the DNA to your own lab?

MICHAEL McDOUGAL: To make sure that what the defense was telling us was in fact true, that it wasn't his. We didn't know that except that they were saying they- "We had it tested. It's not his."

OFRA BIKEL: Okay, so now you know it's not his. So now what?

MICHAEL McDOUGAL: Well, I don't know that it's not his just because they tell me it's not his. So I've got to test it and see if it's not his.

OFRA BIKEL: So now your lab told you it's not his.

MICHAEL McDOUGAL: Right.

OFRA BIKEL: So now what?

MICHAEL McDOUGAL: So now it's not his.

OFRA BIKEL: So what are you going to do about it?

MICHAEL McDOUGAL: Nothing. It's not his.

OFRA BIKEL: But he's still in prison.

MICHAEL McDOUGAL: He's still in prison.

OFRA BIKEL: And he will stay there?

MICHAEL McDOUGAL: And he will stay there.

NARRATOR: For a long time, the family could not believe that the tests would simply be ignored.

JACKIE CRINER: Now we have two DNAs that really tells the real true story and the real facts. And nobody can get around that.

NARRATOR: The district attorney did not see it that way. Why?

OFRA BIKEL: It seems to me that by doing your own test, you are admitting that the test is important, or why would you spend the money to do another test if- if it doesn't make any difference?

MICHAEL McDOUGAL, District Attorney: Well, just because- to make sure that the defense was correct in their assertion that- that the- that he was not the donor.

OFRA BIKEL: And he wasn't.

MICHAEL McDOUGAL: And he wasn't.

OFRA BIKEL: And yet it doesn't make any difference.

MICHAEL McDOUGAL: No, it doesn't make any difference. I'm not going to argue with you! I've told you, and I've explained to you what it is. It means that the sperm found in her was not his. It doesn't mean he didn't rape her, doesn't mean he didn't kill her. So whether we spend money or not- we spend money on all kinds of things.

NARRATOR: The district attorney's office filed documents opposing a new trial. The court of criminal appeals decided six to three in its favor. This time, Judge Charles Baird, joined by two other judges, strongly dissented.

Judge CHARLES BAIRD: A majority of the judges on the Court of Criminal Appeals, in an opinion written by Judge Sharon Keller, said that this new DNA evidence that exonerated Criner, at least as far as not depositing the semen, was not compelling enough because perhaps Criner wore a condom, or perhaps Criner did not ejaculate when he sexually assaulted the victim. That was their rationale.

OFRA BIKEL: Does that make sense to you?

Judge CHARLES BAIRD: It does not make sense to me at all. And it did not make sense to the state when they prosecuted Mr. Criner because they never advanced either one of those theories at the trial.

NARRATOR: Sharon Keller, who wrote the majority opinion, is considered one of the most influential judges on the Texas Court of Criminal Appeals.

Judge SHARON KELLER: The evidence didn't show that he did not have sex with this woman. It can't. Just like the absence of fingerprints right here doesn't show that I didn't touch that chair. It can't show that he didn't do it.

Judge CHARLES BAIRD: What this case says to me more than anything else is that perhaps the method of judicial review is not as credible and reliable as we would like. If you have scientific evidence that is agreed to by both the state and the defense, you would think that it would be reliable and relied upon by appellate judges in this state. But in Mr. Criner's case it was not.

OFRA BIKEL: Shouldn't the DNA test be considered important?

Judge SHARON KELLER: It could be important. If it had come back positive it would have been important because it would have meant that he- it would have been more evidence that he did what he said he did.

OFRA BIKEL: But- but the other way?

Judge SHARON KELLER: It- it just doesn't mean that he didn't have sex with her.

NARRATOR: According to Judge Keller, there could be other scenarios where Criner could have raped Deanna, while the semen found inside her would belong to someone else.

OFRA BIKEL: How could that be?

Judge SHARON KELLER: Well, you're not forgetting there are- you're not taking into account the fact that she was a promiscuous girl.

OFRA BIKEL: Do we know that?

Judge SHARON KELLER: Yes. I mean, the state- actually, there's evidence in the record that the state could have put on testimony, and then there's specific kinds of testimony that she was promiscuous, yes.

OFRA BIKEL: Why would they even want to?

Judge SHARON KELLER: Well, they didn't want to at the first trial because there was no reason to. But if- if they were to- if they had to establish why she would have someone else's semen inside her, then I'm sure they would want to put on that evidence.

BOB BURTMAN: They're turning Deanna Ogg, the victim, into a slut to explain away the DNA evidence. That's unconscionable.

NARRATOR: While investigating the case for his article, "Hard Time," Bob Burtman learned that the police documented the last two days of Deanna Ogg's life and found no evidence of sex.

BOB BURTMAN: It really bothers me that now they're coming back and saying, "Well, if Deanna Ogg had been pure and virginal, then the DNA evidence would have more meaning." I find it incredible that they are now demonizing Deanna Ogg to try and explain away the fact that Roy Criner's DNA doesn't match what was found on the victim.

NARRATOR: This is not news to defense attorney Peter Neufeld who, together with Barry Scheck, has dealt with dozens of these cases.

PETER NEUFELD, Civil Rights Lawyer: In almost all of our cases, the prosecutor's theory of the case was that one person alone seized the woman, raped her, and then left her. Once we get the DNA exclusion, a whole range of new prosecution theories emerge.

There is the theory of the unindicted co-ejaculator. This is a person who obviously comes out of nowhere, and while our client is holding the woman down, this other person actually rapes the victim.

Then there is the theory that, "Ah-ha! This person wore a condom and, in fact, she had consensual sex with someone else shortly before." This theory is put forward even in the face of documentation where the victim told the doctors "I have not had any intercourse with anybody in the last 72 hours."

Then there is the theory of a victim who's lying, because if all else fails, they've got to say their own victim is lying and she doesn't want to admit that she had some kind of illicit sex because she's married, because she has a boyfriend, because she's engaged, whatever. Even though the victim swears she didn't, even though there's no evidence that she did, they still throw this out there.

And it's not- it's not believable, but that doesn't stop them from trying.

NARRATOR: With all these arguments swirling around him, Roy Criner clings to one simple thought: He is innocent. The DNA tests proved it. [www.pbs.org: Learn more about this case]

ROY CRINER: Now I have proof. Now they know that I didn't do it. They can come up with more, and they can say whatever they want to say, but they know I didn't do that.

NARRATOR: In fact, no one, including Judge Keller, denies that there is a possibility that Roy Criner may be innocent.

OFRA BIKEL: But you would agree, actually, that maybe he may be innocent?

Judge SHARON KELLER: I don't really know, if you're talking about from the point of view of actual innocence.

OFRA BIKEL: Yeah.

Judge SHARON KELLER: Oh. I suppose that that is a possibility. But he certainly hasn't established it.

MICHAEL CHARLTON, Appellate Lawyer: You know, innocence is supposed to be what this system is all about. You know, what most people think is if you're innocent and you prove you're innocent, you ought to get a new trial. Everyone in this country believes that. The only people that don't believe that are people that work in the criminal justice system. This is the only place- the criminal justice system, is the only place where innocence is irrelevant.

NARRATOR: Judge Baird explains the logic.

Judge CHARLES BAIRD: Typically, the burden of proof is on the state to prove beyond a reasonable doubt that the individual charged with the crime in fact committed the crime.

It's different after the case has been tried and the appeal has been finished. When an individual brings a writ of habeas corpus and says, "I'm innocent," we put the burden on him to prove his innocence, and it takes compelling evidence.

What Mr. Criner brought in this case was, I think, was the compelling evidence of DNA that said he did not deposit the semen that was found in the victim. But the burden was on Mr. Criner, and I think he met that burden of showing that there was newly discovered evidence, which if believed by a jury, would establish his innocence.

NARRATOR: But using the same legal guidelines, Judge Keller reasons that the DNA is not compelling evidence of Criner's innocence.

Judge SHARON KELLER: It's his burden to establish that he is innocent. And what- apparently, what you think he's established is that he might be innocent. That's not sufficient. He has to establish unquestionably that he is innocent and he hasn't done it.

OFRA BIKEL: But how do you do that? How can you prove you're innocent?

Judge SHARON KELLER: I don't know. I don't know.

RAY BASS, Appellate Lawyer: I guess maybe we should have a seance, and we should contact Deanna Ogg, and maybe she can tell us who the killer was. Short of that, if DNA won't do it, I guess nothing will.

PASTOR: Lord, thank you for this day you've given us, and thank you for-

JACKIE CRINER: If two DNAs and they still won't let him out, you know, I have nobody but the big man upstairs. I will never quit fighting for him, and I will never quit praying.

PASTOR: - that you're with us, Lord, and it's your will that you will release him, Lord-

NARRATOR: Roy Criner needs all the prayers he can get. The national trend has been to restrict drastically the number of appeals after conviction, so his chances for a new trial are getting slimmer, while the reality of spending the rest of his life in prison looms large.

RAY BASS: You know, the question I ask, what harm- what harm would there be in giving him another trial? What great principle is at stake? And I don't understand how anyone could- could believe that we somehow increase confidence in the system by protecting this jury verdict.

Judge CHARLES BAIRD: That was exactly my point. Why not give him another trial? If the state thinks they have another theory of prosecution that they can prove beyond a reasonable doubt, well, then let them do that. If Mr. Criner would like to have another trial and this time bring in this compelling DNA evidence, then let him do that. That's certainly what the trial judge wanted in this case, and that's what I sought to have happen. But I did not- I did not carry the day with that.

OFRA BIKEL: What's the harm in giving a person like Roy Criner another trial?

MICHAEL McDOUGAL, District Attorney: Individually there's no harm. Collectively there's great harm. I mean, it- case law and- and the legal system is based on precedent. And somebody says, "Well, you gave Roy Criner a new trial. I want a new trial. I've got this over here." And somebody else is going to go, "Well, I've got this over here. I want a new trial. You gave Roy Criner one, give me one."

I can't afford to put the taxpayers of this county in that position of giving everybody a retrial that may come up with some kind of something that may- may indicate they may not be guilty when a jury has already said, "Yes, you're guilty," when an appeals court has already said, "Yes, you're guilty."

RAY BASS: The jury that made that decision had before them scientific evidence that said, well, it could have been Roy Criner. We now know that it could not have been Roy Criner who was responsible for the semen. And I don't know how anybody can say that would not have had some effect on the jury's verdict.

Judge SHARON KELLER: I think the nature of this DNA evidence being a negative, as opposed to a positive kind of evidence, would not have made a difference in the jury's verdict.

JOEL ALBRECHT, Jury Foreman: I don't understand how the court could say what we would do. It would be impossible.

OFRA BIKEL: Could you think back at what you feel you might have done?

JOEL ALBRECHT: I personally think if the DNA came forth stating that it was negative, that the verdict would not have been guilty.

OFRA BIKEL: That simple.

JOEL ALBRECHT: That simple.

NARRATOR: Even the prosecutor agrees that the presence of the DNA evidence at trial could have changed the outcome.

DAVID WALKER: Since DNA evidence can be rather compelling, I don't think there's any question that the presence of that evidence at the time of trial would have presented a substantial hurdle for me to overcome.

NARRATOR: Yet he, too, vehemently opposes another trial. Bennett Gershman, former prosecutor and now professor of law at Pace University, explains.

BENNETT GERSHMAN: Think about it this way. After having invested so many months and possibly years in prosecuting a person, after going to the- working with the police and working with the witnesses and the family, and engendering the confidence in all these people, standing up and saying to a jury, "This man is a horrible killer. This person is subhuman. Find him guilty. Do the right thing," for the prosecutor to then years later come into a courtroom and say,"Judge, we made a mistake. The man I called an animal is really innocent," the prosecutor- for the prosecutor to go back to his witnesses and to go back to the family and say, "I'm really sorry, but the man that we've all believed was this horrible, subhuman beast is really innocent"-

The prosecutor does not want to do that. He'll let somebody else do that, maybe the judge, maybe the media, but not that prosecutor because it undermines our system. Our system has to create this aura of- of close to perfection, of certainty that we don't convict innocent people.

NARRATOR: Whatever the different opinions are, in the end, only those of Judge Keller and the majority of her colleagues count. And what they ask for is irrefutable, unquestionable proof of innocence.

Judge SHARON KELLER: That's the standard we use, and he didn't prove it. At best, he made some people think that he might be innocent. But he didn't prove that he was.

Judge CHARLES BAIRD: The bottom line is today, if you can't get relief when you have DNA evidence that shows that you're innocent of the offense for which you've been convicted, if you can't get relief under those circumstances, then you're just not going to get relief from the appellate courts.

NARRATOR: So without relief from the appellate court or a pardon from the governor, Roy Criner may remain in prison for the rest of his natural life.

Only a few years ago, there had been one more route he could have taken, the federal route. But now this route, too, has been blocked. It is ironic that as DNA revolutionized the criminal justice system, demonstrating that there are more innocent people in prison than one had assumed, a conservative Supreme Court has drastically restricted Habeas Corpus, the means by which unjustly convicted people can get a new trial. Mainly aimed to limit the delays in death penalty cases, the restrictions on Habeas affected the whole system.

Jim Liebman is a professor of constitutional law at Columbia University.

Prof. JIM LIEBMAN, Columbia Law School: The death penalty is a very highly politicized issue in this country. You know, people's political careers stand or fall on how tough they are on the death penalty. And there's a real fear that, if we open up the system and start looking at every nook and cranny for problems, that we're going to have to be releasing more people not only from prison but from death row. And politically, that's a very difficult, unpopular thing to do.

So the death penalty is distorting our view of the people who are not under sentence of death, but are in prison for 10 years, 15 years, for life. I think if the death penalty were not distorting the system, we would feel a lot more comfortable. A lot of prosecutors and attorneys general and others would feel a lot more comfortable about looking at these cases. But they're afraid that they're going to turn out- they're going to- they're to loosen- let people go from death row, and that's a lot more controversial.

NARRATOR: In 1996, a year after the bombing in Oklahoma, Congress passed the Anti-Terrorism and Effective Death Penalty Act which, among other severe restrictions, further limited the accessibility to federal appeals by imposing time limits on them: one year for all cases, six months in some capital cases. After that, it would be virtually impossible to reopen a case, now matter how strong the claim of innocence is.

PETER NEUFELD, Civil Rights Lawyer: There are men in Washington who have articulated the position that all due process affords you is a fair trial, and if that means that an innocent person has to spend the rest of his life in prison, or even worse, lose that life, then so be it. That's all you're entitled to under the Constitution.

NARRATOR: The arguments over the death penalty and the case for innocence played out most dramatically in Virginia in the case of the Commonwealth versus O'Dell. The crime was brutal and gory. The victim, Helen Schartner, a Virginia Beach waitress, was raped and murdered on February 5th, 1985. The convicted man was Joseph Roger O'Dell, a career criminal who denied committing the crime for which he had been sentenced to death.

JOSEPH ROGER O'DELL: It is beyond my comprehension how anyone could sentence someone to die on the flimsy evidence that they had, and almost no connection between me and the victim.

NARRATOR: From the beginning, it was a highly publicized case.

ANNOUNCER: [CNN "Burden of Proof"] Joseph Roger O'Dell is a condemned man. O'Dell's been on Virginia's death row since his 1985 conviction, the rape and brutal murder of Helen Schartner.

NARRATOR: The evidence against O'Dell was based on blood tests, but the results were disputed.

PROTESTERS: Stop the executions! Stop the executions!

NARRATOR: The pleas did not help.

PROTESTERS: Stop the executions! Stop the executions!

REPORTER: The execution of Joseph Roger O'Dell has been carried out in a manner of-

NARRATOR: Yet even after his death, the controversy continued.

GRETA VAN SUSTEREN, CNN: ["Burden of Proof"] That was Joseph O'Dell. He was executed last Wednesday despite his claim of innocence and despite his lawyer's claim that state-of-the-art DNA testing could prove it.

MSNBC NEWS ANCHOR: Our News Chat question of the day is, would new DNA testing have saved the life of Joseph O'Dell?

REPORTER: People closest to O'Dell believed him to be innocent, even as he lay on the executioner's table at-

NARRATOR: It was the dramatic event that could prove the death penalty opponents' main argument, that the state is capable of executing an innocent man.

Prof. JIM LIEBMAN: In some ways, that's the perfect case to find out what happened. We're not going to release somebody from prison and all of that, but if somebody really did get executed, that's when we'd really want to know it, find out what happened and do something about it. That's why I think the O'Dell case in Virginia is such a perfect experiment to find out whether this kind of problem really happens.

NARRATOR: The evidence in question consisted of several swabs of vaginal fluid taken from the victim. The government was planning to destroy it. The defense fought back.

PAUL ENZINNA, Defense Attorney: The tests that we're asking for are tests that have never before been done and never before could have been done. You have a situation where technology got much better after Joe O'Dell was executed. Joe O'Dell's dead. He's been executed. We can't change that fact. That happened. Now I think we are entitled to know if the state was right in what the- in putting him to death.

ROBERT HUMPHRIES, Commonwealth Attorney: As far as we're concerned, the case is closed. Joseph O'Dell got what he deserved. He got what the law required. Every court in the land has looked at the case. It's over. And- and if- if people can't bring that to closure, that isn't my problem, it's their problem.

NARRATOR: It is certainly a problem for Sheila Knox, who is Joseph O'Dell's sister.

SHEILA KNOX: It will help me deal with my grief. It will bring some kind of closure. It's like I'm in limbo. He's gone. He's paid the price. He can't come back. But for my closure, I want to know.

ROBERT HUMPHRIES: If we were to try and use those very same samples today, with the availability of DNA testing, we would be laughed out of court because they're contaminated. They're- they've not been sealed. The seals have been broken. There is no consistent chain of custody on the evidence. We couldn't tell you what those things are except that they're sitting upstairs in the clerk's office right now.

NARRATOR: Dr. Paul Ferrara is a renowned DNA expert and the director of the Virginia state laboratory.

Dr. PAUL FERRARA: Well, scientifically, the tests on a sample for which there is no chain of custody still may give you very useful probative information. It's just that you won't be able to use that information in a court of law.

OFRA BIKEL: But say, if you were my brother, I would know.

Dr. PAUL FERRARA: But you would know. I mean, yes. That's right. We can- we can look at old evidence and ascertain possible contributors of genetic material and give you that information.

ROBERT HUMPHRIES, Commonwealth Attorney: The problem is the samples that he is starting from are samples that came from who knows where.

OFRA BIKEL: He knows that.

ROBERT HUMPHRIES: Well, then that's one thing we agree on. He knows it, and I know it. And I'm saying that- that the samples are completely worthless.

OFRA BIKEL: But say the sample is very badly contaminated.

Dr. PAUL FERRARA: If it got contaminated, then all of a sudden we would start seeing contributions beyond those of just- that could just be coming from your brother. And then we would say, "Okay, well, your brother's involved, and there's somebody else involved."

OFRA BIKEL: I see. So basically, you would be able to satisfy my need to know.

Dr. PAUL FERRARA: Yes. Today's technology is unparalleled in terms of its sensitivity and its specificity.

SHEILA KNOX: I feel like I need it. I need an answer. I need an answer.

ROBERT HUMPHRIES: I'd feel just as strongly, frankly, and maybe even more strongly, for the family of Helen Schartner, who has had to deal for 11 years now with this issue, and I think has finally, with his execution, brought this case to closure. And I'm looking to get this file closed finally, too. And so that's- that's where I'm coming from on all this.

PAUL ENZINNA, Defense Attorney: What I want now is, I want that evidence tested because it is wrong for the state to burn evidence for the sole reason of preventing people from getting information. The state doesn't want the evidence tested. The reason they don't want the evidence to be tested, obviously, is they don't want egg on their face from proof that Joe O'Dell is innocent.

If the test come back- comes back, and it turns out that it- that it is conclusive, that Joe O'Dell was, in fact, the rapist and the murderer in this case, the state's not any better off than it is right now. They've already got that. Joe O'Dell's been found guilty, convicted, sentenced to death and executed. But if the evidence is tested and it comes back that Joe O'Dell was innocent, then the state has a major problem.

OFRA BIKEL: Joseph O'Dell is dead, and everybody knows that you can't bring him back to life. But the defense and the family want one last test. Why not give it to them?

ROBERT HUMPHRIES, Commonwealth Attorney: Well, let me ask you this. Is there any doubt in your mind that if this sample was analyzed by Dr. Ferrara or anyone else and it turned out that it was inconclusive, it was not Joseph O'Dell's blood type or DNA or Helen Schartner's DNA, that there wouldn't be a press conference held announcing to the world that the Commonwealth of Virginia had executed a completely innocent man? There's no doubt in my mind of that.

PAUL ENZINNA: He's right. We will shout it from the rooftops, and it should be shouted from the rooftops. Our government is an open government. It gives the people information so they can make intelligent decisions, and that's what we're fighting for here.

Prof. JIM LIEBMAN, Columbia Law School: I think that probably the court will not allow the test to be done, and the DNA will be destroyed and we'll never know.

NARRATOR: (updated line)

In March 2000, Virginia burned the last DNA evidence in Joseph O’Dell’s case without testing it.

Prof. BARRY SCHECK, Cardozo School of Law: This is total system failure. We're not talking about, you know, some procedural due-process matter, some matter of unfairness in the way the trial was conducted. We're talking about people who are actually innocent. And that has to command our respect and attention and concern unlike any other kind of case.

MICHAEL CHARLTON, Appellate Lawyer: The system is broken. If the system can't function fairly, if the system can't correct its own mistakes and admit that it makes mistakes and give people an opportunity to protect them, then the system is broken.

Prof. BARRY SCHECK: I think every person in this country recognizes there's an issue of basic decency, and that if somebody is innocent, it's a nightmare, it's horrible, that they should be in jail. That's just wrong, and everybody understands that that's the whole point of the system.

You know, the average person on the street says, "Well, you're guilty or innocent," right? They don't think about, you know, proof beyond a reasonable doubt or anything like that. They think you're guilty or you're innocent. If you're guilty, you should be punished. If you're innocent, you shouldn't be there. Unfortunately, people who can actually show they're innocent and they shouldn't be there can't even get to court now to prove it.

NARRATOR: Take the case of Clyde Charles in Thibodeaux, Louisiana. Clyde Charles has been in Angola Prison, Louisiana, for nearly 19 years for a rape he claims he did not commit. Fortunately for him, the evidence box - a rape kit - had been preserved and could be tested. The problem is that he has never been allowed to have it tested.

ROCHELL ABRAMS, Sister: The only thing we want is our brother home. The only thing he wants is to come home.

CLYDE CHARLES: They sentenced me a natural life sentence for to die. They thought I was going to just stop fighting. They thought I was going to lose all hope- self-pity. But I didn't do that. I kept seeking. I kept asking. I kept writing. I am not guilty of the charge that they convict me of.

NARRATOR: The crime for which he was convicted happened in Thibodeaux, Louisiana, late one night in March, 1981. After working late, Clyde and his brother had a few drinks before walking to their respective homes. Clyde's brother took one route, Clyde another.

Some time after they separated, Clyde, alone and still miles from home, tried to hitch a ride with a police car. Instead of a ride, the officer handcuffed him, threw him in the back of the car and sped toward the hospital, where a woman had been brought in after being raped a few hours earlier. With Clyde standing there, hands cuffed, they wheeled out the sobbing victim and asked her if he looked like her rapist.

CLYDE CHARLES: What in the world they expect her to say? You know, what in the world they going to expect this woman to say? Her mom is there, her dad is there, and I'm the only black out there.

OFRA BIKEL: So she said you did it?

CLYDE CHARLES: Yeah.

NARRATOR: Accused of raping a white woman and tried in front of an all-white jury, Clyde was convicted. He was sentenced to life without parole.

CLYDE CHARLES: One lawyer told me that the court passed the buck on me. I say, "Passed the buck? What you mean, passing the buck?" You know, they playing at some- they just didn't want to hear. There was something like a hot potato. That's the best way she could say it to me. And before all of them could get their hands burnt, they just passed it on down.

NARRATOR: The family never stopped fighting for him.

LOIS HILL, Sister: We've been going to the court since 1981 with one appeal, one brief, one case filed after another, and we've been turned down for practically everything he's ever filed. Just "Writ denied," and they didn't have to give a reason why.

NARRATOR: Lawyers left, despairing of being able to help. Other lawyers took their place and also left, apologetic and frustrated.

ROCHELL ABRAMS, Sister: Every time we think we get some kind of opening here, something else comes along and just shuts it, you know? Disappointment just after disappointment.

NARRATOR: Margaret Sollars stuck with them longer than any other defense attorney.

MARGARET SOLLARS: If it weren't for Lois and the persistence of that family and my inability to say, "No, I can't do any more"- it would have been so easy just to close the book and say, "Well, it's done. I've done everything." But I couldn't tell her no.

NARRATOR: Margaret Sollars's route to becoming a defense lawyer was not a usual one. Republican and upper-middle-class, she taught school.

MARGARET SOLLARS: When I finished college, the choices for women were to be a school teacher or a nurse or a secretary, so law school was out of the question. And I taught school for 20 years and then went to law school. And my second year in- in law school, my daughter was raped. And it changed everyone's life in this house.

Sarah eventually died of anorexia. And when she was raped, we went down to a hospital about 60 miles away because we wanted to make sure that the rape kit would be preserved and everything would be done on the up-and-up. And while we were down there - this was from, like, midnight till 5:00 or 6:00 in the morning - calls were made. And because the boy that raped her was very well connected, nothing was done.

And so I decided that I had to go into criminal law in order to try to make the system work. And people wonder, "Well, why not go work for the state?" But I saw the state not being fair with people.

NARRATOR: Ms. Sollars felt that the state was not fair to Clyde Charles, and she wanted to help. By the time she came to the case, Clyde's request for a DNA test had been denied. She decided to appeal.

MARGARET SOLLARS: We wrote the appeal to the supreme court, asking the supreme court to order that he be allowed to be tested. And the supreme court just simply wrote "Denied," and that was the end of his case as far as state appeals.

OFRA BIKEL: Based on what?

MARGARET SOLLARS: No explanation, nothing. "Denied."

PETER NEUFELD, Civil Rights Lawyer: We have found a number of cases where the defendants themselves for 9, 10, 15 years have been demanding DNA testing, only to be rejected by trial courts and appellate courts in the state and in the federal system, as well. They simply say, "The doctrine of finality controls. What's over is over. We don't- we don't want to"- you know, "We don't want to open the lid on that box. God knows what we might find." I mean, it's- it's that kind of, like, bury-your-head-in-the-sand attitude to justice and fairness. [www.pbs.org: Read a new government study on DNA]

NARRATOR: In Angola Prison, Clyde was getting desperate.

CLYDE CHARLES: They didn't want to try it. I don't know why they didn't want to try it. I asked the lawyers that I had, what reason for a court in this system, a modern-day system, going to- don't want to give me modern technology, extend that to me? He just hunk his shoulders up. I said "Ain't that something?" I can't- I can't answer that. My shoulders still hump. Every time I asked them, and they said no, I said "Why?" I can't believe this! What reason for- and- and they just tearing my family up. Poor Lori. She going crazy about this.

LOIS HILL, Sister : I am tired. I am sick and worn because there's no need. If a person is acknowledging to you that "If you would give me an opportunity to show you that I'm innocent- will you just allow me to do that?" and they're not.

ROCHELL ABRAMS: At first, I did think it was because it was a black-white thing, but now I just don't know what it is. All of that's over with. The trial is over with. You have convicted him. You've put him there, and he's still saying and we still saying he did not do it. Now we can prove it. Give him the DNA.

MARGARET SOLLARS: It's almost malpractice. When the family is willing to pay for the test, it's not going to cost the state any money at all, the kit had been preserved, there was no reason in this world why he couldn't have been tested.

CLYDE CHARLES: This the only way I'm going to be able to get out. Whatever I put on that paper, whatever I put in they courtroom, they could deny. But not that test result. They cannot deny that because that's solid, concrete evidence.

LOIS HILL: [reading] "Dear Dr. Quigley: I am writing this letter in behalf of my brother, Clyde Elton Charles in"-

NARRATOR: His sister, Lois, wrote dozens of letters trying to get the DNA test done.

LOIS HILL: [reading] "I have been trying, I have been writing to get help over the years and have not been successful. The state of Louisiana is refusing to allow the rape kit to be analyzed."

NARRATOR: Many such letters find their way to the Innocence Project at Cardozo Law School in New York City.

READER: "I am writing you because I am an innocent man wrongly convicted for a crime for which I did not commit."

NARRATOR: Most of them will not get help because the evidence has been lost or destroyed.

READER: "I know of only one person would pick up my case and read it, they would know that I'm not guilty- "

NARRATOR: The project's mandate is to help wrongly convicted prisoners by using new DNA tests which didn't exist at the time of their trial. [www.pbs.org: Study other cases]

READER: "I pray to God that you will find it in your heart to look at my case, and help me."

NARRATOR: Of the nearly 70 prisoners who have been exonerated based on DNA evidence, more than half were the result of battles fought here by the students and their professors, Barry Scheck and Peter Neufeld. Clyde Charles's file was one of the hundreds stacked at the Innocence Project. We asked Barry Scheck to look it over.

Prof. BARRY SCHECK, Cardozo School of Law: Oh, it's so upsetting! When you look at the transcript of this case and the efforts that this man made to get access to the evidence, it's extremely upsetting.

NARRATOR: He agreed to deal with the case personally, bringing to bear the weight of his prestige. A new motion was filed in federal court, and a telephone conference was arranged with the judge. Finally, after all these years of waiting, Louisiana officials gave in and agreed to a DNA test.

Prof. BARRY SCHECK: [on the phone] And as soon as those results are in, they'll be reported immediately. Everybody will know what's going on-

When they know that national attention can be focused on a case, and that we will be coming in with the best scientists and we will be making the right motions and we will fight them tooth and nail every step of the way, and people will pay attention to that fight, then I think we get more cooperation than a lawyer that, you know, has lesser recognition.

NARRATOR: Overnight, the family's hopes for Clyde's release soared sky-high.

FAMILY MEMBER: Oh yeah, we waited, looking for you! How long, Clyde? Not long for Clyde. How long?

FAMILY MEMBER: Not long! Not long.

FAMILY MEMBER: Not long, Clyde. Not long. Hold on.

NARRATOR: Clyde Charles was finally going to have his test. But first the state insisted that he give up his right to sue them for having previously withheld the evidence from him. He had little choice.

CLYDE CHARLES: It's the only way I'm going to be able to get out. And it's going to be a glorious time when I do get free because I know- I know I didn't do this here.

NARRATOR: We didn't want to tell him what his lawyer told us.

Prof. BARRY SCHECK: Even if we get DNA tests that show it's not him, experience teaches it doesn't work so easily, and there could be a fight. I hope there isn't, but there could be a fight.

NARRATOR: It would take many weeks before the family would find out what the future holds for Clyde Charles.

Barry Scheck and Peter Neufeld are currently representing over 200 prisoners with more than one thousand cases pending. But with all the public acclaim, there is remarkably little legal self-examination.

PETER NEUFELD: You know, there've now been about 65 DNA exonerations post-conviction. In not one case has a prosecutor or a police department reopened the investigation to look for the real criminal. They haven't even bothered to do it. It's sort of like they- they shot their wad on the- on the initial case, and therefore that's it. They can't do anymore investigation. They can't do anymore policing.

Prof. BARRY SCHECK: If there was a airplane that fell from the sky or a car that blew up or a hospital that had a terrible malpractice and a patient died, there is a huge post-mortem. Everybody gets together. They analyze the institutions. They see where the mistakes were made. Reports are issued. There is a reevaluation. In the criminal justice system, we don't do that. We just cut an order, and we're lucky if some press report comes out about it.

Prof. JIM LIEBMAN, Columbia Law School: I think that part of the reason that we let this happen is that the criminal justice system is treated as if it's different from any other government process, private company process, anything like that. We always say we want accountability, we want to find our mistakes and make things work better, but when it comes to the criminal justice system, for some reason they're off the hook. Somebody's convicted, we assume they're a bad person. And I think prosecutors and attorneys general and judges are not used to being- having to be accountable in the way that most other people are in other walks of life or in other areas of government.

NARRATOR: One person who's held publicly accountable is the governor. When the law is too harsh, when injustice is done, he is the one who has been given the power to exercise discretion and mercy by granting clemency or pardon.

L. DOUGLAS WILDER, Former Governor of Virginia: It's an awesome power. It's not to be handled frivolously. It's not to be handled to satisfy some whim or some momentary pique or some instance of popularity. It has to be with, in my judgment, an opportunity for fairness and equity.

NARRATOR: But Governor Wilder's idea of fairness was tested in a case that began in Culpeper, Virginia. On June 4, 1981, a crime occurred. A young white woman, Rebecca Lynn Williams, mother of two, was raped and murdered. Before she died, the victim told the police that she was assaulted by one black man. The crime went unsolved.

Nearly a year later, Earl Washington, a 22-year-old farmhand, was arrested for breaking into an apartment of an elderly lady, Mrs. Helen Weeks. When she woke up and surprised him, he hit her with a chair and fled. Earl was charged with breaking and entering and attempted rape.

Bob Hall is one of Earl's lawyers.

BOB HALL: The authorities accused Earl of having attempted to have sexual relations with Mrs. Weeks, an elderly woman. And the only problem was that at the preliminary hearing on that charge, when the prosecutor asked Mrs. Weeks if Earl had attempted to have sex with her, she said no.

NARRATOR: But with the specter of rape raised, the police questioned Earl, who has an I.Q. of 69, equal to that of a child, about many other unsolved sexual assault cases in their files. He confessed to all of them. Nearly all of the charges were dismissed when witnesses' statements indicated that he wasn't the perpetrator. Only one stuck.

Earl's trial for the rape and murder of Rebecca Lynn Williams took three days. Based on his confession alone, he was convicted and sentenced to death. John Scott, Jr., now a judge, was Earl Washington's defense attorney.

Judge JOHN SCOTT, Jr.: The alleged confession consists of a statement prepared by a state trooper, with Mr. Washington responding to each statement "Yes, sir." There are, if my memory again is correct, probably about 20 statements by the state trooper, with Mr. Washington responding at the conclusion of each, "Yes, sir."

BOB HALL: When asked the question, "Earl, did you kill the woman in Culpeper," Earl ultimately is reported to have said yes. "Earl, did you stab the woman in Culpeper?" Earl ultimately said yes. But if you ask Earl to volunteer facts about this incident, Earl didn't have a clue. "Earl, was she black or was she white?" "She was black." "Well that's wrong, Earl. She was white." "Oh, she was white."

NARRATOR: In 1993, the BBC interviewed Earl Washington.

INTERVIEWER: Why did you tell them she was black?

EARL WASHINGTON: I didn't- I didn't see a picture of her in the newspaper when she got killed or nothing. I just figured she was black.

INTERVIEWER: You figured she was black?

EARL WASHINGTON: Yes, sir.

INTERVIEWER: Without knowing what her color was?

EARL WASHINGTON: Yes, sir.

BOB HALL: They put Earl in the car. "Earl, can you take us to the place where you did this?" They drove Earl around Culpeper. Earl took them to a number of places that had no connection to the crime. To try to evoke a memory, I guess, they drove him past the Village Square Apartments where the rape-murder took place. Earl remained silent. They drove on. He took them to another apartment project. They finally brought him back to the Village Square, and said, "Come on, Earl. Isn't this the place?" "Yes, sir."

INTERVIEWER: Do you normally tell people things you think they want to hear?

EARL WASHINGTON: Sometimes. Yes, sir.

INTERVIEWER: Do you? Why do you do that?

EARL WASHINGTON: I don't know.

NARRATOR: One of the two African-Americans on the otherwise white jury realized his predicament.

DEBRA HOLMES, Juror: The guy, to me, he didn't look like he was really guilty because he was slow. To me, he was- I get emotional every time I think about it.

OFRA BIKEL: Still?

DEBRA HOLMES: Uh-huh. Even still, because it was wrong. It wasn't right. And I ask God, please forgive me, you know, for making that decision, when- when my heart tell me what's right. And every time I think about it, it still- it bothers me.

NARRATOR: Sentenced to die in the electric chair, Earl was days from being executed when a few good lawyers agreed to help him in his appeals. But by 1993, they had come to the end of the road. The only door left was the governor of Virginia, who could grant clemency or pardon.

BOB HALL: We were before the governor on a clemency petition. The governor wanted the results of the DNA on this case before he made any decision in the case.

NARRATOR: The governor, L. Douglas Wilder, was a Democrat and the first African-American elected to the job, which he held from 1990 to 1994.

L. DOUGLAS WILDER: We were ahead of any numbers of states in our forensic departments, recognizing the need for DNA and making certain that we moved forward in that technology. I'm glad we did.

NARRATOR: The technology had changed dramatically between 1982 and 1993. Non-conclusive tests could now be re-tested. At the time, the blood tests could not exclude Washington. Semen stains found on the blanket were disputed. The victim's vaginal swab, a crucial piece of evidence, it could now be DNA-tested for the first time. The results were startling. According to the test, there was one DNA marker that could not have come the victim, her husband or Earl Washington. One more individual had to be involved.

The lawyers got a call. "There may be a complete pardon. Your man didn't do it." Then a hitch.

Steve Rosenthal was the attorney general at the time.

STEVE ROSENTHAL: The tests clearly showed that there was one trait that could not be attributed to Earl Washington, but that didn't mean that it fully exonerated Earl Washington of the crime. It could have been that Earl Washington, in conjunction with somebody else who contributed that trait to the DNA test.

OFRA BIKEL: Two people.

STEVE ROSENTHAL: Two people could have been there.

Judge JOHN SCOTT, Jr.: At no time- at no time was there ever any indication that a second person was involved in the perpetration of this offense, according to the theories of the commonwealth, the prosecutor.

PETER NEUFELD: Regrettably, we see that all the time. Prosecutors all of a sudden start floating a new theory. There was no testimony to support it. There was no factual evidence to support it. But nevertheless, they start with some new theory about how you could explain this man's guilt, even though there's no evidence to support it. And it- it's quite shocking.

NARRATOR: By December of 1993, nothing was heard about the fate of Earl Washington. Governor Wilder's term was drawing to an end, and Earl's execution date was looming. There were rumors that the "two perpetrators" theory was gaining ground, and that the governor ordered one more test, that of the blue blanket. It was to be kept secret, with no word to the lawyers.

BOB HALL: I've known Dr. Ferrara, the director of the lab. I said, "Paul, you were- you did some additional testing of the blue blanket. What- what was tested?" "I can't talk to you about that." "Well, we've always had a good, open relationship, and you're a scientist and I'm a lawyer. What were the findings?" "Without the governor's permission, I can't talk to you about this."

I said, "Did it hurt us?" I don't remember Dr. Ferrara's exact words, but the message was that nothing changed. The implication, the inference was that the testing did not bring anything new to light. I asked the governor's aide, "Can you let us have the results of the additional testing of the blue blanket?" "The governor is not inclined to give that to you."

NEWS ANCHOR: There's Governor Wilder, Governor-Elect George Allen. The last official act before leaving office-

BOB HALL: The day that was his last official day, we got a call that, "Here's the proposal, and you have two hours to accept it. The governor will grant Earl Washington clemency, commute the sentence to life imprisonment with an opportunity for parole. He will not be pardoned. You have two hours to accept it. If you don't accept it, the governor will take no action."

NARRATOR: While the ceremony was winding down, Bob Hall pleaded for a little more time. His request was denied.

BOB HALL: "Mr. Hall, you don't understand. You have two hours to accept. If you don't accept, nothing will happen."

NARRATOR: So not knowing if his client was cleared or further implicated by the tests, Bob Hall had little choice.

BOB HALL: Complex became simple. To live for sure, or to die maybe. And he opted to live for sure.

NARRATOR: It was not the victory the lawyers hoped for. They wanted pardon, and they got clemency. Why? The answer, they felt, was in the analysis of the blue blanket, which they were not allowed to see.

BOB HALL: The key issue at the absolute 11th hour was clemency which means, "Earl, you did it, but you should die for it," versus pardon- "You didn't do it, and you ought to go free." Why didn't we get the pardon? "If the blue blanket testing had anything to do with that decision, let us know what it showed." We've exchanged all of the forensic evidence. No answer. No answer to this day.

OFRA BIKEL: You don't know.

BOB HALL: I don't know.

NARRATOR: When FRONTLINE asked Dr. Ferrara for the test results of the blanket, to our surprise, he handed them to us. To anyone who followed the case closely, the results of the test were explosive. Earl Washington was definitively excluded.

Dr. PAUL FERRARA: The results of our testing on the blanket are much more definitive in being able to eliminate Earl Washington as a possible contributor.

NARRATOR: But there was more. The test pointed to an unknown individual as the possible rapist, a fact that was never investigated or made public. The results were withheld from the defense lawyers.

BOB HALL: I don't know.

OFRA BIKEL: Do you want to know?

BOB HALL: I'd like to know.

OFRA BIKEL: We found out.

BOB HALL: Well, I hope you'll share it with me.

OFRA BIKEL: The blanket excluded him. Earl Washington was excluded. Here.

BOB HALL: The power of the press. [reading] "The sperm fraction of stain D of the blue blanket is an individual possessing a 1.1/1.2 genotype. Based on that opinion, both Earl Washington, Jr., and James Pendleton are eliminated as possible contributors."

Now you understand the quandary. Why clemency?

OFRA BIKEL: Now you understand the quandary.

BOB HALL: No, I don't understand the quandary. The basis that took us from that phone call from the attorney general's office- "Got good news for you. Your man didn't do it," then additional testing, and our man didn't do it-

NARRATOR: We asked former attorney general Rosenthal what he knew about that test.

STEVE ROSENTHAL: I would say that I would be surprised if you tell me that there was a test that totally exonerated Earl Washington and that that information has not made it to the governor's office. I would be shocked.

OFRA BIKEL: Here. Take a look at that.

STEVE ROSENTHAL: This is the first time I've seen this document. Now, should the governor's office have known? Well, obviously. That's something you need to take up with the governor. I- I- this is the first time I've seen this document.

L. DOUGLAS WILDER: [radio call-in program] We can handle all of that, and I look forward to hearing from you.

CALLER: Great. I appreciate your time, Governor.

L. DOUGLAS WILDER: Stay on the line. Thanks for calling. Okay, let's go to Tom in Mechanicsville. Tom, we're on.

CALLER: Hello, Governor. How you doing?

L. DOUGLAS WILDER: I'm fine, sir.

CALLER: First, I want to ask you, who do you think will win tomorrow?

NARRATOR: Former governor Wilder is now a professor and host of a radio talk show. When we met him, we did not have to show him the last test. He knew all about it.

L. DOUGLAS WILDER: They sent the results of that DNA test, and you're saying that no one knew the results?

OFRA BIKEL: No one.

L. DOUGLAS WILDER: I didn't know that.

OFRA BIKEL: No one.

L. DOUGLAS WILDER: Well, I didn't know. I knew it.

OFRA BIKEL: You knew it, but you're the only one.

L. DOUGLAS WILDER: Well, I- I think- I think you're wrong on that.

NARRATOR: He couldn't imagine, he said, why the lawyers did not know about it.

L. DOUGLAS WILDER: I don't have any idea what it is they didn't know. And you'll have to talk to those people.

OFRA BIKEL: I did talk to them. And what they told me was that you had ordered a test, the third test, to which they have never gotten the results.

L. DOUGLAS WILDER: I don't know when the tests were taken, in terms of one, two, three. I'm going by what was presented to me as to what the test revealed. I wasn't looking to see this was taken at 2:00 o'clock, this was taken at 3:00 o'clock, this was taken on the 5th, this was taken on the 6th. I was looking at the composite. The complete record of the case was before me, and that's what I looked at.

OFRA BIKEL: So as far- as far-

L. DOUGLAS WILDER: Now, why anyone didn't know about aspects of it, I have no idea.

OFRA BIKEL: Do you think he really knew that you didn't have the results?

BOB HALL: Absolutely.

OFRA BIKEL: What do you think it was about, then?

BOB HALL: I couldn't get beyond this deeply seated feeling that the reason Earl didn't get pardoned, conditional or otherwise, had a political component to it, that when the governor left the office of governor, that he had other ambitions, that he wanted to run for the United States Senate, and that he was afraid that Earl Washington, if pardoned, would be out on the street and commit some crime and would become- Earl Washington would become Willie Horton to Governor Wilder's Senate campaign.

I thought that at the time. Seeing this report, I have nothing to do but confirm that my suspicions were true.

NARRATOR: Ultimately, the governor did not make a run for the Senate. But was it on his mind when he was thinking of his political future? He wouldn't reply to our question. But it is a political truism that freeing prisoners does not get votes.

Prof. JIM LIEBMAN, Columbia Law School: They don't want to do it. Of course, it's very, very controversial. People have had their political careers destroyed by giving clemency in these cases.

OFRA BIKEL: So they pass the buck one to the other.

Prof. JIM LIEBMAN: They pass the buck, except nobody's there to receive the buck anymore. The buck's just stuck in between.

OFRA BIKEL: What I feel is that maybe unwittingly you put him in no-man's-land.

L. DOUGLAS WILDER: I think you might look back and even think that maybe wittingly I saved his life.

OFRA BIKEL: Yes. Yes, you did- but-

L. DOUGLAS WILDER: Right. Well, don't you think that would be more positive?

NARRATOR: This was a question that Earl Washington, who lives his life behind bars, could probably not understand or answer. As for his lawyer:

BOB HALL: I'm outraged. It's only because I'm a controlled person that my sense of outrage is sitting in some part of me that I'm not going to let you see. But I am outraged.

OFRA BIKEL: Come on.

BOB HALL: No, no.

OFRA BIKEL: You are outraged.

BOB HALL: Right. The truth didn't set Earl Washington free. Why?

Prof. BARRY SCHECK, Cardozo School of Law: I think most people would think that the Constitution would never permit an innocent person to stay in jail. But unfortunately, that's a right that's going to be hard-won and hard-fought in the courts right now.

Prof. JIM LIEBMAN, Columbia Law School: Innocence is not enough. There's no right to say, "I'm innocent. I can't show anything else that went wrong at my trial. I can only show that I'm innocent." That is not a basis for getting out of prison in this country.

PETER NEUFELD, Civil Rights Lawyer: For a long time, we always talked about, you know, that the system has some problems, but it's far and away the greatest system known to man or woman. What we're seeing now, with all these DNA exonerations and the difficulty people are having in putting forward claims of innocence, is that our system has far many more failings than we ever imagined.

NARRATOR: In Angola prison, Clyde Charles had been waiting for the results of his tests.

CLYDE CHARLES: The test will speak for itself. And it going to be a glorious time when I do get free.

NARRATOR: Clyde Charles's DNA tests came back just before Christmas, 1999. He was exonerated. He had been in prison for 19 years. This was Clyde's first morning of freedom.

CLYDE CHARLES: It's a dream come true. I couldn't even comprehend it was going to be this glorious. Couldn't comprehend it. Beautiful day. Beautiful day. But I want to know why. I want to know why they did this to me for so long. And it's always going to be there. I don't think they could even start to explain to me why.

BAILIFF: All rise….

NARRATOR: In Texas on August 15^th, after new DNA tests on a cigarette butt from the crime scene, and tremendous public pressure, Roy Criner was pardoned.

JUDGE: I was informed yesterday by the Board of Pardons and Paroles that it voted unanimously to recommend to Gov. Bush that Mr. Criner be fully pardoned. Therefore it is the order of this court that Roy Wayne Criner. It is the order that you are to be immediately released by the Montgomery County Sherriff as a free man…..

NARRATOR: Criner had been in prison for nearly ten years.

(voice over celebration scene)

MOTHER: It’s so nice, you know Each morning as I’m waking up I’m finding is this really real? It’s gonna take us a little while, but we can sure handle it.

ROY: I was going down the road in a car there was nobody on the freeways and it just felt so good with the wind blowing on me and everything and I said you know man I’m free, and tears started coming down my eyes and I said I guess I’d better slow down.

MOTHER: IT takes a lot of people to pressure the system to do the right thing. I prayed a whole lot and I think god sent me all these special angels to help Roy come home. And if it wasn’t for the news media, FRONTLINE, my son still wouldn’t be home today.

ROY: This was a miracle for me to be out of prison today.. It wasn’t the system, you got that right! If it was up to them, I’d still be in there.

Program update:

NARRATOR: In Virginia on October 2^nd, Earl Washington was finally pardoned, after new tests found no trace of his DNA on evidence from the crime scene. But Washington is still in prison, held on a prior conviction—for which he was eligible for parole 8 years ago.

His attorney Bob Hall called this an outrage.

BOB HALL: The Governor had a chance to do the right thing, and release him, uh, he didn’t.

NARRATOR: After 17 years, Washington remains in prison pending a parole hearing.

A FRONTLINE coproduction with
Ofra Bikel Productions, Corp.

Copyright 2000
WGBH EDUCATIONAL FOUNDATION
ALL RIGHTS RESERVED