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Worst-case Scenario

The Story of Herman Atkins' Years Imprisoned as an Innocent Man Might Scare the Hell Out of You. It Should.

June 25, 2000|FRED DICKEY | Fred Dickey last wrote about Jenny Craig International for the magazine

In his closing remarks to the jury, Bentley, in arguing for Atkins' guilt, tried to hammer home Hall's testimony: "So, the evidence can't be used to say this is exactly him, but it excludes a large percentage of the people, and does not exclude him, and that's corroboration."

The jury found Herman Atkins guilty.

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ACTING ON THE ADVICE OF THE OLD CON IN THE LIBRARY, Atkins contacted the Innocence Project in 1993 and asked its help with his case. For once, he got good news in the mail.

Neufeld says the project staff took on Atkins' case because there was biological evidence--the sweater--that could be tested. He explained that in most felonies, biological evidence is either not available or is not an issue. In rapes, however, it often is the heart of the case. Often that evidence isn't saved, but Atkins was lucky. The policy of the Riverside County district attorney's office is to preserve such evidence.

Getting to it was another matter. Once the Innocence Project undertook Atkins' case in December 1993, project workers began to push for DNA testing on the sweater. But the Innocence Project was still in a start-up mode and relied on law students such as Steven Brand, now a criminal defense attorney.

Because reopening a closed criminal case is not an automatic right in California, the defense customarily seeks cooperation from the prosecutor before approaching the court to have evidence released. Brand says he called Bentley on three occasions, from Sept. 12, 1996, to March 7, 1997, attempting to persuade the prosecutor to release the sweater for testing, to no avail.

In a written response to repeated interview requests for this article, Bentley said he resisted turning over the evidence to the Innocence Project because "at this time there was no established protocol or office policy on handling post-judgment discovery requests for DNA testing" and that the matter was best handled through Riverside Superior Court. Brand says Bentley had other concerns.

"Bentley said he was convinced of Atkins' guilt, and he would not agree to release the evidence. He said he didn't want to drag the victim through any more stuff," Brand says. "I told him, if Atkins is guilty, then the test will confirm that, and if he isn't, then the victim and others should know that the rapist may still be out there." Brand says every conversation with Bentley became a circular argument, with Bentley insisting on Atkins' guilt, and Brand insisting that the DNA test could provide a definitive answer. Brand, who would go on to work for two years as a prosecutor, recalls Bentley's attitude as "disillusioning."

It took Innocence Project researchers until June 1997 to file a formal motion to release the sweater. A hearing was set for July 11, 1997, and a Bentley associate from the D.A.'s office came prepared. As Deputy Dist. Atty. Anne E. Corrado wrote in her argument to prevent the sweater's release: "Rather than a quest for the truth, the defendant's motion is simply the desperate ploy of a convicted predator who has exhausted all legal remedies."

As it turns out, Corrado's vehement argument wasn't necessary. Atkins' volunteer attorney, a Los Angeles lawyer recruited by the Innocence Project, didn't show up, and Herman Atkins' nightmare continued.

*

TWO MORE YEARS PASSED BEFORE THE INNOCENCE project was able to regroup and try again to move the case forward. "I believed the defense had decided to drop the matter," Bentley wrote in his response. "To this point, nothing had transpired or changed to make me believe Mr. Atkins' conviction was anything but just and well founded."

Last year, the Innocence Project assigned Sean Basinski, who is finishing law school at Georgetown University, to revive the case. He had one conversation with Bentley, on June 9. "He wouldn't cooperate. He told me he thought Atkins was guilty and there was no need to go through this. I got nowhere with him."

Finally, on Aug. 20 last year, Santa Ana defense attorney Douglas J. Myers--who worked for free as Atkins' local counsel on the DNA appeal--went to court to argue for the release of evidence. He says that neither Bentley nor Corrado was present, and says the motion was handled by a deputy D.A. who seemed to know nothing of the matter and did not argue against it. The judge signed the order, the testing was done, and on Jan. 18 of this year, Neufeld sent Riverside County Dist. Atty. Grover Trask the report of Forensic Science Associates laboratory in Richmond, Calif. That report ruled out Atkins as the source of the semen on the sweater.

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