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When those letters do get opened, students and staff screen the cases using the Innocence Project's criteria: When the inmate was tried, was identity the key issue? (If he admitted he pulled the trigger but claimed it was self-defense, there's not a lot a DNA test can do to help.) Was biological evidence taken at some point? In rape cases semen is generally recovered, and in murder cases there is often hair or skin evidence. But some samples come from less obvious sources: in the World Trade Center bombing case, DNA was recovered from saliva on the back of a postage stamp. And does this evidence still exist? The project has to reject about 70% of the cases that come to it because evidence was lost or destroyed or is otherwise unavailable. Finally, is there a viable theory of innocence? If prosecutors had fingerprints placing the defendant at the crime scene, for example, is there an innocent explanation?
After taking a case, the first hurdle the Innocence Project faces is getting access to biological evidence. New York and Illinois have laws mandating post-conviction DNA testing. But everywhere else, it's up to the prosecutor--the same office that is being accused of sending an innocent person to jail. If the prosecutors cannot be persuaded or cajoled into turning over the evidence, the Innocence Project will go to court to demand it.
About 60% of the samples the Innocence Project sends out for testing come back in their clients' favor. At that point, many prosecutors quickly concede and free the inmate. Earlier this year, the Innocence Project produced DNA showing that Calvin Johnson Jr. was innocent of a Clayton County, Ga., rape he had been convicted of in 1983. In June, the same district attorney who originally sent Johnson away persuaded a judge to free him.
But prosecutors don't always give up that easily. The Buffalo D.A.'s office refused to release Vincent Jenkins even after DNA tests showed that semen recovered from the victim came from two men, neither of them Jenkins. Prosecutors insisted that the victim could have been raped by several men, including Jenkins, but that he didn't ejaculate. The prosecutors later abandoned that unlikely scenario and did not oppose his release.
In addition to taking individual cases, Scheck and Neufeld are lobbying for more systemic change. They want other states to adopt laws like New York's, creating a right to post-conviction DNA testing and requiring the state to pay if the inmate can't afford the $3,000 to $5,000 cost. They also want laws requiring prosecutors to keep DNA evidence at least as long as a defendant remains in jail. Now prosecutors are generally free to throw away biological evidence when they want.
Scheck and Neufeld also want more laws allowing the wrongly imprisoned to sue for damages. Only half a dozen states currently have such statutes, and some have low caps--like California's $10,000 maximum. If Dennis Fritz had slipped and fallen in a government building, he could have sued for millions. After being incarcerated for 12 years for a crime he didn't commit, he can't sue for anything.