Inmates' Access To DNA Evidence: Part Two

By Phillip Martin

Nov. 22, 2011

betty ann waters and kenny waters

Betty Ann Waters used DNA testing to exonerate her brother Kenny. Now she's advocating for a Mass. law that will make it easier for inmates to access similar evidence. The Innocence Project)

Massachusetts legislators are considering a bill that would allow inmates access to DNA evidence that was critical to their convictions. Though the legislation is supported by the Massachusetts Bar Association, the state crime lab and many police departments, it is not clear that it will be passed by the spring deadline. Advocates say it can help free the innocent. Opponents believe the bill might serve to assist the guilty. Read the first part of this report.

BOSTON — It was during her second year at Roger Williams Law School in Rhode Island that Betty Ann Waters first heard about DNA.
“It’s such a fabulous tool. It’s a miracle!” she said.
Waters was convinced it would prove to be the key to unlocking the cell that had been her brother’s home for 18 years. Kenny Waters had been convicted of murdering Katharina Brow, a mother of two in the town of Ayers in 1980, and sentenced to life without parole.
Years later, Betty Anne Waters became her brother’s attorney. She gained access to a blue-green window curtain from the victim’s home. Prosecutors said it was splattered with the killer’s blood. So Waters had it tested for DNA evidence.
It turned out the blood was not her brother’s.
A second key piece of evidence was missing from the original trial that Waters says could have influenced the outcome in her brother’s favor. Fingerprints were left behind at the murder scene.
“Not only were they fingerprints involved, they were bloody fingerprints that were only discovered two years ago,” says Waters. “The person that lifted them was a state police officer who lifted the prints at the scene and retired two weeks before Kenny was arrested and took them home with him. And it’s not a case isolated. There are so many cases like it.”

Hopes for DNA — and exoneration
David Siegel, the co-director of the Center for Law and Social Responsibility at New England Law School,says that DNA can make or break a case. Siegel co-drafted the original state legislation in 2003 that would have provided inmates access to critical DNA evidence.

“In a case involving violence, homicide or a sexual assault, when someone leaves biological material, whether it’s blood, saliva, skin tissue — those things have DNA that can be extracted from them and that can exclude or include a particular person to a very, very high degree of accuracy,” he said.

Tyrone Dixon
is staking the remainder of his life on it. Dixon is an inmate at MCI Norfolk. Nearly 20 years ago, he was convicted of killing a man in Taunton. He’s relying on a baseball cap left at the scene to set him free for a crime he says he did not commit.
“Because it’ll show that my DNA is not on the hat. And that was one of the key figures of evidence, back then they didn’t have DNA,” he said. “I always try to fight for my freedom. I always maintain my innocence.”

An argument: easier access, or no?

DNA testing has become the tool of choice for many justice rights organizations. Gretchen Bennett, the director of the New England Innocence Project, is pushing hard to enact stalled legislation in Massachusetts that would both mandate the preservation of DNA evidence and allow inmates’ lawyers access to that evidence. Attorney General Martha Coakley supports the bill, as does a long list of law enforcers statewide.
So why is it that Massachusetts to this day does not have a post-conviction DNA law that would allow potentially innocent people in prison to contest their convictions? Bennett offers a theory.
“I don’t understand,” she said. “No one I speak to actually says ‘I’m opposed to that.’ I think the opposition could only come from people who don’t understand what it is we are trying to do and who are still suffering some misapprehension that this is a bill that lets people out of prison.”

A victims' advocate weighs in
That’s exactly how Wendy Murphy feels. She says the entire public conversation has excluded the voices of the victims. Murphy, a former Middlesex County prosecutor, now lectures at New England Law School, where she specializes in sex crimes. She argues that the growing emphasis on DNA as a means to assist the wrongly convicted puts an added burden on victims.
“We already have a problem in not enough sex crimes are reported or handled fairly by juries. So the last thing we need is to undermine fair expectancies from jurors,” Murphy tells WGBH News. “That’s what I hate about this argument that DNA is some kind of great pill that will release the truth to all of us. It almost never does. It distorts the truth to the disadvantage of victimized women and children. “
Bennett rejects this argument.
“I’m actually very close friends with one particular woman who was a victim of a terrible, terrible sexual assault.” Bennett says the woman accidentally misidentified her attacker, “who was later proved not to be the actual assailant through DNA testing and they did in fact identify the real assailant. And she breaks down in tears when she talks about the fact that the evidence in that case was three days away from being destroyed, and she says all the time that the real assailant would have been out on the street forever, free to commit as many more crimes as he wanted.”
Bennett argues that everyone loses when the wrong person sits in prison and the actual rapist or murderer is out on the street committing more crimes. Lawyer Betty Ann Waters agrees and says she laments that access to DNA was not available in 1980 when her brother was investigated originally. “They would have tested the blood at the scene and they absolutely would not have arrested my brother,” she says.
In 2002, Waters helped pass a DNA statute in Rhode Island, where she lives. She is now campaigning on behalf of the Innocence Project for passage of the Massachusetts bill. Her brother was freed in June 2001, 18 years after being imprisoned for a crime he did not commit. He died six months later in an accidental fall. The actual murderer who stabbed Katharina Brow 30 times has never been found.

WGBH’s two-part report on post-conviction DNA access was produced in cooperation with the Schuster Institute for Investigative Journalism at Brandeis University.

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