Working for rights of wrongly convicted
Webster's lawyer says more exonerations ahead
 November 10, 2002 | Baltimore Sun 

Working for rights of wrongly convicted
Webster's lawyer says more exonerations ahead
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By Stephanie Hanes, Sun Staff


Bernard Webster, who was released from prison last week after serving 20 years for a Baltimore County rape he did not commit, was probably not the only innocent person trapped behind the walls of Maryland's prisons, his attorneys say.

Michele Nethercott, Webster's lawyer and the head of the Maryland public defender's Innocence Project, which attempts to identify and free those wrongly convicted, said she has seen DNA test results showing other inmates' innocence.

"We expect there will be more," she said, but declined to elaborate.

The number of people freed by new DNA evidence is rising - Webster brought the number nationally to 115.

Two years ago, Illinois Gov. George H. Ryan imposed a moratorium on his state's death penalty because so
many inmates, including 13 on death row, were exonerated. He is currently holding clemency hearings for at least 140 death-row inmates. The Medill Innocence Project at Northwestern University helped free some of those inmates.

Other high-profile cases, such as last month's exoneration of Jimmy Ray Bromgard, who served almost 16 years in a Montana prison after being wrongly convicted of raping an 8-year-old girl, have stunned lawmakers and lawyers alike.

Now, states are beginning to examine the way they deal with inmates claiming innocence, and the way they
treat the exonerated.

As Webster's case shows, in Maryland, as in much of the country, there are scant resources for the wrongly
convicted.

The Maryland General Assembly passed a law last year giving some inmates the right to DNA testing, but left
gaps in terms of who qualifies, what laboratories can be used and how evidence should be maintained. Moreover, as Webster's case makes clear, the law provides no compensation - monetary or otherwise - for
someone returning to freedom after years of wrongful incarceration.

--Innocence Project

Nethercott and two other attorneys make up the staff of the public defender's recently created Innocence Project. Alone, they are involved in the arduous process of evaluating 25 cases - finding out if old DNA evidence still exists, tracking it down, scouring transcripts and court papers, determining whether the DNA, if they could test it, could prove innocence. The 2001 law did not give Nethercott's office funding for that mission and the hours required.

Nethercott has 16 other cases her office has not reviewed. Webster, now 40, went to jail in 1982 for the daytime home invasion and rape of a 47-year-old teacher in Towson. When he walked out of Baltimore
County Circuit Court last week, he had no money, no job, no home and no family.

His lawyers said he is probably not entitled to any compensation from the state for his years in prison.

--No pardon, no pay

In Maryland, people who are wrongfully convicted can ask the Board of Public Works for the "actual damages" they suffered, such as lost wages, if they have a pardon from the governor.

The twist, Nethercott said, is that in order to get a pardon, one has to be convicted. But because her client's conviction has been overturned, there is nothing for the governor to pardon. And without a pardon, there is no compensation.

Maryland is one of 15 states with any sort of compensation legislation, said Aliza Kaplan, the deputy director of the Innocence Project at the Benjamin N. Cardozo School of Law in New York.

"That doesn't say much," she said.

Of those 15 states, none has laws offering social services or housing to the wrongfully incarcerated.

--'Punished again'

"On average, our clients have spent 11 years in prison for crimes they didn't commit," she said. "They're finally exonerated, and it's almost as if they've been punished again. Many of our clients are in really, really bad shape."

She said many people who are exonerated suffer significant emotional problems and have difficulty finding jobs.

"It is important that legislation be enacted that compensates people who have been wrongfully convicted," said state Sen.-elect Lisa A. Gladden, a Baltimore Democrat. She said that Webster "is not the first person" to be exonerated, "and he's clearly not going to be the last."

State Sen. Ralph M. Hughes, who worked with the Criminal Justice Club at Coppin State College to lobby
for the state's 2001 DNA law, said he, too, wants to ensure better resources for people such as Webster.

"These people get nothing?" he said incredulously. "And we've taken their lives from them?"

Webster secured his DNA testing under the 2001 DNA law, which says that judges can order testing for people convicted of murder or rape in cases where the tests could prove innocence.

But Nethercott said Webster's case also shows gaps in the law.

--Short list of labs

For instance, the statute says an inmate's DNA testing must be paid for by the defense, but performed by one
of the accredited laboratories on a list maintained by the attorney general's office.

That list, Nethercott said, consists of only two labs, including the Maryland State Police Crime Lab, which
does not do work for defense attorneys. The other lab is one commonly used by prosecutors.

In Webster's case, Nethercott had DNA evidence tested at a different accredited laboratory. But she had to
jump through legal hoops to do that, which took months.

"I think it would be helpful to amend that part of the statute," she said. "Maybe it's petty, but it seems if you are paying for the testing you should be able to choose the lab."

There are also gaps in the statute in terms of what happens to people after DNA testing shows innocence.
Currently, the statute simply calls for a post-conviction hearing, but gives little direction from there.

In Webster's case, the state attorney's office worked with the defense toward Webster's release, and the hearing proceeded quickly and smoothly.

But a post-conviction hearing is not technically a place where a judge can determine innocence, Nethercott said. If the case is contested, she said, the statute does not outline what to do.

"It's like a black hole," she said.

The statute applies only to those people convicted of murder or serious sexual offenses. Nethercott and some
legislators want others to be able to get DNA testing.

--Accountability unclear

The statute also orders "the state" to preserve evidence that might be amenable to DNA testing. But there is no definition of what "the state" actually means, Nethercott said.

"When I talk to county law enforcement agencies who may have seized evidence, I'm hearing the argument
that, 'Hey, we're not the state,'" she said. "They are not clear at all who is supposed to be responsible for
making sure this evidence is maintained."

Storage space and costs were police concerns when the legislature discussed the law last year.

Hughes said he wants to find out from the public defender's office how the law worked in Webster's case and what should be reformed.

"Whatever they think is good, that's what I'll introduce," he said.


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