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Univ. of San Diego School of Law

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Thursday, August 7, 2008

In lieu of DNA evidence, exoneration proves tougher

SAN DIEGO — It took more than four years of pure grunt work to free Timothy Atkins.

There was no DNA evidence to support Atkins' claims of innocence in a fatal Los Angeles carjacking. Instead, students at California Western School of Law pored over old police reports and searched for one critical witness whose false testimony had led to Atkins' 1987 conviction.

More than any other victory in the campaign to free the innocent, the work that secured Atkins' release symbolizes where the movement is heading, some of its key members say. Dogged investigative efforts such as this are likely to become more common, they say, as DNA is being used up in some of the oldest post-conviction cases, primarily because of uneven efforts by states to preserve it.

A shortage of DNA evidence would remove the most dramatic and clearest path to exoneration.

"This is very much an untold story," says Justin Brooks, executive director of the California Innocence Project, which engineered Atkins' release. "We're seeing very few DNA cases where testing is a possibility."

Of the project's pending investigations, 90% are non-DNA cases. Instead, other evidence, such as new witnesses, is needed to prove innocence. Nearly 10 years ago, half of its cases depended on DNA testing.

Jeff Blackburn, chief counsel for the Innocence Project of Texas, fears Texas cases dependent on DNA could "run out" within a year. Of the 700 cases his group believes have potentially credible claims, 225 would be heavily weighted on the outcome of DNA analysis — if the material exists. The rest involve issues such as witness identification problems and coerced confessions.

Some advocates' concerns over the availability of DNA have injected tension into a movement to free the wrongfully convicted.

Barry Scheck, co-director of the Innocence Project, a national group whose work relies almost exclusively on DNA testing, says enough cases exist to sustain a decade's worth of potential exonerations. His group says the DNA caseload has increased from 141 in 2004 to 278 this year.

"These cases are not slowing down," he says, adding his colleagues "are not looking hard enough." He says DNA cases will decline eventually — but not yet. [Mark Godsey]

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