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DNA Proof May Not Go to Jury

An innocent man who spent 12 years in prison is suing, and Riverside County doesn't want the trial to include evidence that cleared his name.

July 10, 2006|Henry Weinstein | Times Staff Writer

An unusual wrinkle has developed in the case of a man who was exonerated by DNA testing after serving 12 years in prison for a rape and robbery he did not commit.

Although the Riverside County district attorney declared Herman Atkins innocent six years ago, the county wants to prevent the jury hearing his wrongful conviction lawsuit from learning about the evidence that cleared him.

Atkins, now 40, was accused of raping a woman during a 1986 robbery in a Lake Elsinore shoe store. DNA tests not available during Atkins' 1988 trial were later requested by the defense, and they eliminated him as a source of semen on the victim's sweater. The FBI lab confirmed the results. The rapist was never caught.

As soon as Riverside County Dist. Atty. Grover Trask II learned in early 2000 of the DNA findings, he filed court papers saying Atkins should be freed immediately. DNA tests had eliminated Atkins "as a possible source of [the] semen ... and thus, [he] was not her assailant," Trask's motion said.

"The case underscores how profoundly advances in science and technology have affected criminal justice," he said.

Atkins filed suit, claiming that a Riverside detective had fabricated evidence and misrepresented proof in court.

Facing a July 18 trial date in Los Angeles federal court, private lawyers representing Riverside County have argued that innocence does not matter. The sole issue is whether Atkins' rights were violated, they say. They are also challenging the reliability of the DNA tests.

If the county were able to cast doubt on Atkins' innocence, that could have a significant impact on the trial.

In a court declaration filed recently, Riverside's attorney, Christopher D. Lockwood, wrote, referring to the DNA sample, "I am aware of multiple reasons to question the chain of custody. I have never seen any evidence to show that the DNA testing was done properly or that DNA evidence is always 100% conclusive."

Atkins' attorneys sharply disagree with the county's position.

"The prejudice to Atkins would be immeasurable if the jury did not hear conclusive evidence that he is innocent," Atkins' attorneys Peter Neufeld, Deborah Cornwall and Cameron Stewart said in court papers.

A hearing on the issue is set for Tuesday before U.S. District Judge Percy Anderson.

Both Lockwood and Atkins' lawyers declined to comment beyond what was in their court papers.

Earlier in the civil case, Riverside sheriff's Det. Danny C. Miller, a key investigator in the rape case, said in a signed pleading that Atkins' innocence had been established by the DNA tests. But Lockwood has told the court that Miller is unwilling to file an admission that Atkins had been cleared, although he has offered no evidence to refute the FBI tests, according to papers filed by Atkins' attorneys.

While keeping out the DNA results, the county's lawyers also want to introduce evidence that the rape victim and two witnesses identified Atkins during his trial.

Atkins' attorneys counter that it would be absurd to allow Riverside's lawyers to introduce eyewitness testimony that has been refuted by DNA tests, particularly if the defense is not allowed to present the DNA results.

"In light of the uncontested DNA results, this ID testimony can no longer be considered reliable, or even probative, evidence of Atkins' guilt," they wrote in a recent motion. "Human memory is fallible. DNA testing, when replicated by two laboratories and where there is no evidence of contamination, is not. Miller's mere innuendo cannot change this irrefutable fact."

Their brief emphasizes that 78% of the first 130 DNA exonerations in the U.S. involved mistaken eyewitness identifications.

Edward T. Blake, director of Forensic Science Associates in Richmond, Calif., and a nationally known expert, did the initial DNA testing in this case. He became apoplectic when asked about Lockwood's questioning of the DNA evidence.

"The fully documented and illustrated scientific reports in the Atkins case are a matter of public record and certainly available to Mr. Lockwood," Blake said. "There never has been any issue in the Atkins case with regard to evidence 'chain of custody' issues, nor has there ever been any issue with regard to the scientific rigor of the analysis that exonerated Mr. Atkins."

Lockwood's statement is "an insult to everyone in the criminal justice system" who participated in Atkins' release, including defense lawyers, Blake's lab, the FBI lab, Trask and the judge who freed Atkins, Blake said in a telephone interview.

"Do you think that just because a guy in prison and a defense lawyer say he's innocent that everyone falls over backward and says 'OK. We will open the prison doors.' You must be kidding," Blake said.

He said that when a convicted inmate is seeking release from prison, he has to meet a very high standard. "If Herman Atkins had not met that burden of proof, he would not be a free man today," Blake said.

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