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Scheck and prosecutors disagree on the real meaning of the 254 exonerations. Burns says that "even one wrongful conviction is too many" but adds that it represents a very low error rate, considering the "millions of cases" that are prosecuted. Scheck says those DNA exonerations show how fallible the other tools of evidence used in those cases eyewitnesses, snitches, even confessions can be and therefore suggest the possibility of many more mistakes throughout the legal system. "Less than 10% of criminal cases have any biological evidence," he says. "So what about the other 90%? This is an iceberg. These cases are the tip."
What may matter more is the battle for public opinion and, more to the point, juror opinion. Scheck is clearly winning. Exonerations are "incredibly rare, but they're incredibly high-profile," says McCulloch, who claims prosecutors have been too passive about publicly countering Scheck's claims of an epidemic of prosecutorial misconduct. "He's great at marketing," says McCulloch. "We've let him hijack the debate."
Not all defense attorneys are pleased with the rise of the innocence agenda either. The University of Houston's Dow says life has gotten harder for the guilty, who are a majority of his clients. "The focus on innocence has not been helpful," he says. "Now people just want to know if the client's innocent. And if he's not, then nothing is too bad for him."
Defending His Father
Duane Jones is not entirely comfort able advocating for a man who others think is guilty of murder, even if that man is his father. Duane, 49, spent most of his life as a victim. When he was 6, he says, he saw his mother's boyfriend hold her head under the water of an east Texas lake until she drowned. He was the only witness, he says, and no one believed him; her death was ruled an accident. When he was a young man, he nearly died after he was robbed and shot in the back of the head with a shotgun.
So when he found out that his father, whom he hadn't known as a child, was on death row, it sparked a minor identity crisis. "You think, Could I ever be a person like that?" says Jones. "You go over your own personality, all the times you got angry."
Satisfied that the "apple rolled far from the tree," he decided to visit. In all, he went to death row a half-dozen times. He would bring his father money for the commissary, and his father would give him ink portraits of Plains Indians and buffalo he had drawn. Jones asked his father directly if he had killed Hilzendager, and his father told him no. "He was quite adamant," says Jones. "I believe him."
Mitochondrial DNA is exclusionary evidence, which means that if the hair is tested and Jones is not excluded, then he was the shooter. The same goes for Dixon. But if they are both excluded, then the hair belonged to someone who wasn't involved in the crime at all. That wouldn't mean Jones didn't do it, but it would still be troubling to know that the only piece of physical evidence that sent a man to his death was actually completely unrelated to the crime.
Joe Hilzendager Jr., whose brother was murdered that night in Point Blank, vacillated about whether the hair should be tested. When I sat down with him in his house on Hilzendager Way near Point Blank, it was the first he had heard of the fight over the hair. His first reaction was to welcome the testing: there was no harm, he said, because "there's no doubt they executed the right person." But later in our conversation, he restated his position. "Even if Dixon did kill him, they were both in on the murder," he said. "I don't want to kill the wrong guy, but they were both bad. Both had killed people." By the end, he reversed himself entirely to say that the hair should be destroyed without testing it: "You can't bring [Jones] back."
A potentially wrongful conviction is a doubt that not even death can erase. It's a heavy burden for Duane Jones and Joe Hilzendager Jr. alike. They both deserve the best chance at knowing the truth of what happened that night. As Scheck puts it, each wrongful conviction in the U.S. should be treated the same way the National Transportation Safety Board treats a plane crash. Each instance represents a "total system failure." Each merits a full, unbiased and urgent inquiry.
It's a laudable goal. The truth of what happened in Point Blank that night in 1989 is bound to wound someone, no matter what the outcome: Bill Burnett's pride, Joe Hilzendager Jr.'s sense of closure, Duane Jones' faith in his father. It would be far worse, however, to remain stubbornly incurious, even 20 years on, about a crime and a conviction that led two men to their death.