Sent: Saturday, August 25, 2001 2:12 PM
Subject: "Not Ethically Blind" (Editorial, Washington Postl)

Charles Fain was released from Idaho's death row this week as a result of DNA tests. He spent 18 years on Idaho's death row.

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August 25, 2001
Washington Post
Editorial

'Not Ethically Blind'

Charles Fain was released from an Idaho prison this week after being on death row since his 1983 conviction for the kidnapping and murder of a 9-year-old girl.

Mr. Fain has long maintained his innocence, a claim that was finally and substantially validated by new DNA tests of physical evidence.

Mr. Fain's case shows once again, as if more proof were needed, that the death penalty is a dangerous flirtation with disaster. Trials sometimes produce mistakes. And while death penalty advocates complain about the slow pace of capital appeals, in this case it seems that only delay kept an innocent man from being killed.

Mr. Fain's case is notable for another reason: the responsible and serious approach of Idaho's attorney general, Alan Lance.

As in other states, the Idaho attorney general's job includes defending convictions. In Virginia, the attorney general's office has too often translated this duty into a reflexive opposition to requests by inmates for DNA testing.

The Virginia attorney general's office sees the question of innocence as irrelevant to post-conviction review of state trials -- what are called habeas corpus proceedings.

Habeas, the office insists, tests only whether a trial was fair, not whether it got the right answer. Wrongful convictions under Virginia law are to be corrected by clemency from the governor, not by court action.

This bull-headed formalism has led the commonwealth to protect convictions that long since ceased to deserve respect.

Mr. Lance is a conservative Republican, whose Web site describes him as a "staunch defender of Idaho's sovereignty" who has been honored "for his leadership as an advocate for crime victims."

Yet unlike his Virginia colleagues, who treat federal court review of convictions as some kind of assault on state sovereignty, he did not oppose DNA testing in Mr. Fain's case -- and even requested key tests himself after an initial round proved favorable to Mr. Fain.

When these tests came back favorable to the accused, he joined with Mr. Fain's lawyers last month in asking a federal court to throw out the conviction and give the state 60 days to decide whether to retry Mr. Fain. Local prosecutors this week decided not to pursue a retrial.

In explaining his actions, Mr. Lance took pains to explain that in his view the tests did not prove Mr. Fain's innocence but merely raised "the critical question": Would the jury have reached the same verdict had it known of the DNA test results?

The new facts of the case, not some constitutional deficiency at the original trial, caused Mr. Lance to act as he did.

"It is the attorney general's duty to defend the decisions of Idaho juries and trial courts when challenged in the appellate courts," Mr. Lance said. "However, that duty is not ethically blind.

As prosecutors we also have a duty to seek the truth and justice. "We have a duty to do what is right."

Here's hoping they're listening in Richmond.

(source: Editorial, Washington Post)

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August 25, 2001

IDAHO:

Associated Press

Freed Death Row Inmate Not Bitter

A man who spent more than 17 years on death row said Friday that he doesn't hold a grudge against the judicial system that wrongly put him there.

"I gave that up a long time ago. That is the one thing I know I can do - forgive," Charles Fain said 1 day after a judge freed him because of DNA evidence that exonerated him of sexually assaulting and drowning a 9-year-old girl in 1982.

"I just haven't got any anger toward them. God just took it all away," Fain in a 45-minute interview he requested with The Associated Press.

Wearing a new short-sleeved golf shirt, Fain spoke at his attorney's office on the 9th floor of a downtown building. For the 1st time in nearly 2 decades, he could take in a view of the Boise Valley.

The former sanitation worker had been on death row since Feb. 17, 1984 following his conviction in the kidnapping, sexual assault and drowning of 9-year-old Daralyn Johnson of Nampa.

Fain, now 52, maintained his innocence throughout the legal odyssey.

U.S. District Judge B. Lynn Winmill set aside Fain's conviction on July 6, based on new tests of DNA evidence that proved conclusively that pubic hairs found in Daralyn's socks and underwear were not his. He was freed this week after prosecutors declined to try him again.

Daralyn's family released a statement supporting the decision.

Fain's voice trembled Thursday as he described what it's like getting accustomed to being a free man.

"I found myself wanting to walk 5 steps, and then go back 5 steps again," he said, recalling the dimensions of his cell. "I've been doing that for so long."

Fain added: "Everything was a certain way. Now it's completely different. I'm suddenly able to make decisions for myself. But I'll get back into the swing of things."

Fain, who said he became a religious man 5 days after his 1983 arrest, joined others on death row in fighting for the privilege of holding religious services. They achieved it in 1989.

Fain had a television, a radio, books and his Bible in his cell. He ate every meal there.

One of the ways Fain marked time was to keep track of the Sunday night desserts. The 1st Sunday of the month, inmates got chocolate pie. The next week it was strawberry, then lemon and, finally, gingerbread.

Fain said he had moments when he thought he would never get out. But he never gave up.

"Overall, I believed I was going to get out because I was innocent," he said. "When this DNA stuff started coming on the news, something just told me it was going to be a part of this case."

Fain said he may return to prison as a spiritual counselor.

"I'd like to do church services, things like that," he said. "Just sort of be a volunteer there."

(source: Associated Press)

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Charles Fain released from Death Row
DNA evidence voids conviction for Nampa killing
http://www.idahostatesman.com/news/daily/20010824/LocalNews/152388.shtml

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August 24, 2001

New York Times

Death Row Inmate Is Freed After DNA Test Clears Him
 

Charles Fain has been on death row for almost 18 years for the rape and murder of a 9-year-old girl who was snatched off the street in Nampa, a small town west of here.

But this afternoon, Mr. Fain, 11 days shy of his 53rd birthday, walked out of the maximum security prison here into the blazing sun, a free man.

Two hours earlier, a state judge ordered the charges against him dismissed on the basis of DNA tests
indicating that hairs found on the girl's body, which had been used to convict Mr. Fain, were not his.

"Sometimes it looked pretty dark," Mr. Fain said, but he said he had been confident he would be exonerated. "I'm 100 % innocent. The day the crime happened, I was sound asleep at my dad's" house - 360 miles away in Redmond, Ore.

Mr. Fain had difficulty today using the seat belts in the car that drove him away from prison - they were not mandatory when he went to prison - held on tightly when he rode in an elevator to his lawyer's 9th- floor office and was uneasy walking on thick carpet. "I'm used to walking 5 steps forward, 5 steps back, then 3 steps to the side," he said, describing life in his cell.

Mr. Fain was convicted of the Feb. 24, 1982, kidnapping, rape and murder of the girl, Daralyn Johnson, after a forensics expert from the Federal Bureau of Investigation said microscopic examination - the standard test at the time - showed 3 hairs found on the victim's body were probably Mr. Fain's.

"Justice requires the action we have taken today," David L. Young, the Canyon County prosecutor, said today at a news conference in Caldwell, where the case had been tried. "It also requires that we do everything we can to solve this case."

Mr. Young added, "The killer has not yet been apprehended."

Today the Johnson family seemed to accept Mr. Fain's release.

"We would like to say we are in complete support of the judicial system and all those involved in the
reinvestigation of this case," the family said in a statement. "We are confident that we will have closure and that all those involved will be brought to justice."

At least 96 people have been exonerated and freed from death rows in 22 states since the death penalty was reinstated in 1973, according to the Death Penalty Information Center, a nonprofit group in Washington that opposes capital punishment.

Six death-row inmates were exonerated in the 1st 1/2 of this year, Senator Patrick J. Leahy, Democrat of
Vermont, said in June. Mr. Leahy, chairman of the Senate Judiciary Committee, has sponsored a bill to improve the quality of defense counsel and ensure the availability of DNA testing in capital cases.

The Johnson murder shook the residents of Nampa. The girl had been abducted as she walked to Lincoln
Elementary School, then raped; her body was thrown in a ditch near the Snake River. It was not found for several days.

After 7 months, the police were stymied. Then they picked up Mr. Fain. A Vietnam veteran who had served with the 101st Airborne, Mr. Fain had difficulty holding a job after his honorable discharge, bouncing between Idaho and Oregon. At the time of his questioning, he was living in Nampa, a block from Daralyn's house.

His address, and his light-brown hair - similar to that found on Daralyn's body - were the reasons he was
called in for questioning, his appellate lawyers said in 1 filing.

Mr. Fain was among scores of men asked to give hair samples. An F.B.I. expert concluded that his were
similar to those found on Daralyn.

A month later, the police interrogated Mr. Fain for more than 2 hours, then asked him to take a polygraph test; he agreed.

A state examiner of the test concluded that Mr. Fain was telling the truth when he denied involvement in the rape and murder. At the trial, though, prosecutors objected to introducing the polygraph results as evidence and the judge agreed.

Some of the most damning evidence against Mr. Fain was the testimony of 2 jailhouse informers. The men gave lurid details of what they said Mr. Fain had told them about what he had done to Daralyn.

It is not clear why the 2 men gave what now appears to be false testimony. One of Mr. Fain's appellate lawyers, Spencer McIntyre, said it showed how jailhouse informers manipulate the system, knowing that if they cooperate, the authorities will go easier on them - even without an explicit promise or deal.

One person who always contended Mr. Fain was innocent was Christine Harding, a librarian at the Redmond Public Library. She testified at his trial that in February 1982 he was a regular at the library, though she could not say unequivocally that he was there on Feb. 24.

"Awesome!" an elated Mrs. Harding exclaimed today when told the news in a telephone interview from
Garden City, S.D., where she now lives. "Praise God. I just think it's pathetic so many years of Charles's life have been taken away from him that can't be given back."

But Richard Harris, the original prosecutor, said the DNA test had not shaken his view, citing the testimony of the 2 informers.

"It doesn't really change my opinion that much that Fain's guilty," Mr. Harris said. "The case was a
circumstantial-evidence case. There was a myriad of circumstances that pointed in his direction."

The trial judge, James Doolittle, also said he had no doubt that Mr. Fain was guilty. "If I had had the
slightest doubt, I certainly would not have imposed the death penalty,"said Judge Doolittle, who is retired.

D. Fredrick Hoopes, an Idaho lawyer who has worked on the case for more than a decade, said such reactions reinforced the problems with the death penalty. "We just can't kill people who we are sure are guilty," Mr. Hoopes said.

Mr. Fain's parents died while he was in prison; he did not know where he would live or what he would do now. "One day at a time," he said at his lawyer's office. Asked what he would have for dinner, he said, "whatever they put on the tray." Then, realizing he was not going to be fed by authorities tonight, he said, "I'll have to start making decisions for myself."

(source: New York Times)

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