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The Innoncense Project

Kenny Waters with the help of his dedicated sister

 Betty Ann Waters
freed from a wrongful convection after wrongly spending 17 years in Jail
 because of a corrupt police officer who just wanted a conviction at all costs just to help her career



note_police_officer_Nancy_Taylor_the Waters_case

Newspaper_clip_Kenny_Waters_arrest1

Kenny Waters
	Incident Date: 5/21/80 Jurisdiction: MA Charge: Murder, Robbery Conviction: Murder, Robbery Sentence: Life	Year of Conviction: 1983 Exoneration Date: 6/19/01 Sentence Served: 18 Years Real perpetrator found? Not Yet Contributing Causes: Informants/Snitches Compensation? Yes

About Kenny Waters

Kenny Waters served 18 years in prison for murder he didn’t commit before DNA testing proved his innocence. His sister, Betty Anne Waters, put herself through college and law school in order to help with her brother’s case. She worked with the Innocence Project to bring about his exoneration in 2001.

Sadly, Waters passed away six months after his release. He was 47 years old and had spent more than a third of his life in prison for a crime he didn’t commit.

Kenny Waters’ case is the subject of the film “Conviction,” in which Sam Rockwell plays Waters.

Read more on Waters’ wrongful conviction and his exoneration.

Watch the trailer and find showtimes in your area.

View key documents from the case, inlcuding Waters’ mugshot, a photo of the murder weapon and more.

See a slideshow of Waters family photos.

About Betty Anne Waters

Betty Anne Waters was 29 years old when her brother Kenny Waters was convicted of a murder in Ayer, Massachusetts. He swore he was innocent and Betty Anne vowed to do everything she could to help overturn his wrongful conviction.

For two decades, she fought for justice in Kenny’s case, putting herself through college and law school in her pursuit. Finally, in 2000 Betty Anne and the Innocence Project obtained access to DNA testing on evidence from the crime scene in Kenny’s case. The results proved his innocence and led to Kenny’s release in March of 2001.

Today, Betty Anne lives in Bristol, Rhode Island, and works as the general manager of a pub. She works to help the Innocence Project spread the word about wrongful conviction by speaking out about her story and the cause of wrongful conviction.

Read Betty Anne’s first letter to the Innocence Project seeking assistance with Kenny’s case.

See a slideshow of Waters family photos.

Read more about Kenny’s case and the true story behind “Conviction.”

Kenny Waters served 18 years in prison for murder he didn’t commit before DNA testing proved his innocence. His sister, Betty Anne Waters, put herself through college and law school in order to help with her brother’s case. She worked with the Innocence Project to bring about his exoneration in 2001.

Sadly, Waters passed away six months after his release. He was 47 years old and had spent more than a third of his life in prison for a crime he didn’t commit.

Waters’ case is the focus of the film “Conviction,” which was released in October 2010.

• Visit our “Conviction” page for videos, resources and the story behind the film.

• View a slideshow of Waters family photos and pictures from the day Kenny was freed

• View original documents and images from the case

• Watch a 3-minute video on the story behind “Conviction,” featuring Betty Anne Waters, Kenny Waters and Innocence Project Co-Director Barry Scheck

More on Kenny Waters’ wrongful conviction and exoneration:

The Crime
On the morning of May 21, 1980, Katherina Reitz Brow was stabbed to death in her Ayer, Massachusetts, home. Her body was found at 10:45 a.m. — she had been stabbed more than 30 times and her linen closet had been ransacked. There were bloodstains throughout the house and the kitchen faucet was running. Her purse, some jewelry and an envelope where she kept cash were all missing.

The Investigation
Investigating officers responded to the victim’s house shortly after her daughter-in-law discovered her body. Crime scene investigators recovered hairs, blood and fingerprints in the house, including two fingerprints in blood — one on a toaster in the kitchen and the other on the running faucet — that were considered potentially tied to the perpetrator. The apparent murder weapon, a bloody paring knife, was collected from a wastebasket in the house.

Kenny Waters became a suspect because he lived next to the victim, with his girlfriend, Brenda Marsh. He worked at the Park Street Diner in Ayer, where Brow was a frequent customer. It was apparently known to diner employees that Brow kept a large amount of cash in her home.

Waters was questioned by police on the day after the crime and provided an strong alibi that he had worked until 8:30 a.m. on the day Brow was killed and a coworker had driven him home. He changed clothes and had been in the Ayer courthouse for a 9 a.m. appearance with his attorney. He said he left the courthouse after 11 a.m. and returned to the diner, where he stayed until 12:30 p.m. Officers examined his clothes and body and did not see any apparent blood stains or cuts. He was fingerprinted and questioned further but not charged. Four months later, officers asked Waters to submit to a voice stress test, which he did voluntarily and passed.

The case remained open for more than two years. In October 1982, a man named Robert Osborne, who was living with Marsh, Waters’ ex-girlfriend, approached the Ayer Police Department and allegedly offered to provide information on the murder in exchange for money.

Osborne said Marsh had told him that Waters confessed to her that he had killed a woman. It is unknown whether Osborne was ever compensated for the information he provided. Officers then interrogated Marsh and allegedly threatened to charge her as an accessory to murder and take away her children if she didn’t corroborate Osborne’s claim. She initially refused, saying Osborne’s statements were untrue. Eventually, however, she agreed to corroborate the details provided by Osborne. She told police that Waters had returned home on the morning of the murder with a long, deep scratch on his face. Based on these statements, Waters was charged with murder.

The Trial
Waters’ trial began in Ayer in May 1983. Although police had collected and analyzed fingerprint evidence in the case and had used fingerprints from the toaster and faucet to exclude Waters and several other suspects during the investigation, these records were apparently not provided by police to prosecutors. Therefore, the prosecution and defense proceeded with the trial under the false assumption that no fingerprints of value had been collected at the scene of crime.

The state’s case relied heavily on the statements of three witnesses. Marsh testified that she had seen the defendant with a scratch on his face and that he had admitted to her that he had killed Brow. Roseanna Perry, another former girlfriend of Waters’, also initially told police that she had no information about the crime but after more than three hours of interrogation and threats of arrest, told them Waters had told her something about stabbing a woman and stealing her money and jewelry. She testified to this statement. A friend of Brow’s who worked with Waters at the Park Street Diner said Waters had sold her a ring that had belonged to the victim. She said she paid $5 for the ring and gave it to police. Workers from the packing company where Waters had previously worked stated that a knife similar to the one found at the crime scene had gone missing. The knife was manufactured by the company where the victim’s husband worked, however.

A forensic analyst also testified for the state about test results on blood from the crime scene. Blood types O and B were found in the apartment. The victim was type B and Waters and the victim’s husband were both type O. The analyst told the jury that 48% of the population has Type O blood. The analyst also testified that three hairs collected from the crime scene — including one in the victim’s hand and one on the murder weapon — did not match the victim or Waters.

Waters raised an alibi defense, saying that he was at work at the Park Street Diner until 8:30 a.m. and then at court until 10:45 a.m. His time card from that week, however, had gone missing and wasn’t presented as evidence. Although it has been revealed that police indepently confirmed Waters’ work schedule during the investigation, this evidence wasn’t presented during trial.

Waters was convicted on May 11, 1983, and sentenced to life in prison.

Appeals and DNA Testing
Waters appealed his conviction several times between 1983 and 1999. Although Roseanna Perry recanted her trial testimony that Waters had admitted guilt, his appeals for a new trial and for federal habeas corpus relief were denied. Several times during this period, Waters and his representatives requested complete documents in the case from the Ayer police department, but were given the same incomplete documents used at trial. Critical evidence of Waters’ innocence, including the fingerprints and the timecards, was withheld.

After Waters’ conviction, his sister, Betty Anne Waters, sought to prove his innocence. She put herself through college and law school, all with the goal of exonerating her brother. In 1999, she located the Type O blood evidence collected from the scene of the crime and obtained a court order to preserve the evidence for possible DNA testing. In 2000, she began working with the Innocence Project on the case. Together Betty Anne Waters and the Innocence Project reached an agreement with the Middlesex County District Attorney’s office to allow a private lab to conduct DNA testing on the evidence. The results excluded Waters and the victim’s husband, proving that Waters was not the perpetrator.

Reinvestigation and Exoneration
In March 2001, the Massachusetts State Police Crime Lab verified the DNA results, and Waters’ conviction was vacated two days later. After nearly 18 years in prison for a crime he didn’t commit, Waters was freed while prosecutors considered whether to retry him.

The Middlesex County District Attorney’s Office opened a new investigation of the case to determine whether to retry Waters. The reinvestigation was led by a state police officer, who found the police reports to be incomplete, and contacted Ayer police officers who had been involved in the original investigation. At this point, for the first time, the police turned over complete records from the case — including a police report confirming Waters’ work schedule and extensive documentation on the fingerprint evidence that had been collected before trial.

On June 19, 2001, the District Attorney’s office dropped all charges against Waters and his exoneration became official. Sadly, after only six months of freedom, Waters died in a tragic accident on September 19, 2001. He was 47 years old.

Since his death, representatives of his estate have settled a civil lawsuit with the town of Ayer, and the case was the subject of a 2010 feature film, “Conviction.”


Ralph Armstrong served more than 28 years in Wisconsin prisons for murder before a judge overturned his conviction in 2009 based on evidence that a prosecutor had deliberately withheld evidence of his innocence more than a decade earlier.

The Crime
On the afternoon of June 24, 1980, Charise Kamps, a 19-year-old student at the University of Wisconsin was found strangled to death in her Madison, Wisconsin, apartment. She was naked and face-down in her bed with a bathrobe belt draped across her back.

The Investigation
Investigators collected clothing and other evidence from the victim's apartment, including fingerprints and hairs.

The victim had drunk alcohol and used drugs with Ralph Armstrong, his brother Steve Armstrong and others on the night she died. Ralph Armstrong told police that he had used cocaine with Kamps that night and that the two had been in her apartment alone for a short time around 9:15 p.m. before joining friends elsewhere. Police learned that Armstrong owed Kamps's boyfriend $400, and witnesses said they saw him hand her cash on the night of the crime.

The Identification
A neighbor of Kamps' told police he was sitting on his porch that night and saw a lean, muscular man with long, dark hair drive up to the area in a black and white vehicle around 12:30 a.m. and park out of sight. The witness said the man ran into and out of Kamps' building three times before finally disappearing to the area where his car may have been parked.

Before an identification procedure was conducted, police arranged for the witness to be hypnotized. A detective and the hypnotist viewed photographs of Armstrong and his car during the videotaped hypnosis session, but the detective testified that the witness did not see the photos. The witness later disagreed, saying he did see Armstrong's photo in the hypnosis room. The witness allegedly described the perpetrator as having a long nose and bushy eyebrows, and said the perpetrator was 5 feet 3 inches to 5 feet 5 inches tall. He changed the height estimate to six feet at the prodding of the hypnotist. Armstrong, who had long, dark hair at the time, is six-feet, two-inches tall.

Ten days after the crime, police conducted a "pseudo re-enactment" lineup near the crime scene with Armstrong and four other participants who were police officers wearing wigs. At the advice of his attorney at the time, Armstrong passively resisted what his attorney felt was a rigged lineup, so he went limp during the lineup and had to be carried by two officers. The witness identified Armstrong as the perpetrator, but also pointed out to police that the other participants were clearly wearing wigs. He would later confirm that he said at the time the lineup was "fixed."

The Trial and Physical Evidence
Armstrong was arrested and charged with raping and killing Kamps. He was tried before a jury in 1981. The state's case rested on forensic evidence, eyewitness identification testimony and an alleged motive involving the money Armstrong owed Kamps' boyfriend.

A forensic analyst testified that several head hairs collected from the bathrobe belt draped across the victim's body and the bathroom sink were "consistent" or "similar" to Armstrong's hair. She also identified several pubic and head hairs that she said came from neither Kamps nor Armstrong. In closing arguments, however, the prosecutor exaggerated the importance of her findings, saying "two of the defendant's hairs were on this robe."

Similarly, a forensic analyst found a positive reading for the presence of chemicals in human blood on several of Armstrong's fingers and toes, but she wasn't able to determine any characteristics of the blood. The prosecutor exaggerated this finding as well in his closing argument, saying "that was Charise Kamps' blood."

Armstrong's fingerprints were also found on a bong in Kamps' apartment, but the defense argued that Armstrong had moved the bong when he was in the apartment earlier on the night of the murder.

The forensic analyst testified that semen was detected on the bathrobe, and that it came from a Type-A secretor (a person whose blood type is found from bodily fluids like semen). Armstrong is a Type-A secretor.

The eyewitness who been hypnotized identified Armstrong in court as the man he saw run in and out of the victim's apartment building for ten minutes around 12:30 a.m. on the night of the crime.

Prosecutors also sought to show that Armstrong's claimed whereabouts on the night of the murder were unrealistic. They said he could not have been at the victim's house at 9:30 p.m. because the route he said he drove allegedly could not have allowed for a stop at the victim's apartment. Instead, they argued that he came to her apartment after midnight, saying that was when he left the fingerprints and murdered the victim.

The state argued that Armstrong had allegedly paid the victim $400 in cash toward a loan her boyfriend had given Armstrong on the night in question. The cash was not discovered in the apartment the next day, and Armstrong deposited $315 into his bank account the next day.

Armstrong's defense attorneys challenged the prosecution's case on many fronts — from the timeline of the night to the eyewitness identification and the forensic evidence. Defense attorneys called an expert in hypnosis and questioned the validity of the eyewitness identification, presented evidence that the hair and blood evidence were being used improperly and offered a timeline of the night's events according to Armstrong. The defense argued that Armstrong had received $315 from his brother on the day after the crime.

Despite these efforts, Armstrong was convicted and sentenced to life in prison plus 16 years.

Post-Conviction Appeals
Armstrong filed several unsuccessful appeals in the years after his conviction. In 1991, he sought a new trial based on DNA test results showing that he could not have been the source of the semen on the bathrobe belt. His appeals were denied, however, with a state appeals court calling the semen evidence "an insignificant piece of circumstantial evidence linking Armstrong to Kamps and to her apartment."

The Innocence Project became involved in Armstrong's case in 1993, working with Wisconsin attorneys Jerome Buting and Keith Belzer. More advanced DNA testing was conducted in 2001, excluding Armstrong and the victim's boyfriend as the source of the head hairs on the bathrobe belt, and finding that the semen stain used against Armstrong at trial was connected to the victim's boyfriend. Based on these results, the Wisconsin Supreme Court overturned his conviction in 2005, granting him a new trial.

While a new trial was pending, a woman testified at a hearing that she had called Dane County Assistant District Attorney John Norsetter in 1995 to report that Armstrong's brother, Steve, confessed that he, not Ralph, was guilty of the crime, and that he feared Ralph would be exonerated by DNA and come after him if he found out Steve was the real guilty party. The woman said she described Steve's gruesomely detailed confession to Norsetter, who did not report this evidence to defense attorneys and did not pursue the lead. Steve Armstrong had disappeared shortly after the crime and never again contacted his brother Ralph. Steve died in 2005.

In 2006, more forensic testing was done on the crime scene evidence — including mitochondrial (mtDNA) tests, an advanced technique that can develop DNA profiles from degraded samples and hair follicles. Mitochondrial DNA (mtDNA) tests of hairs from the crime scene excluded Ralph Armstrong. Because mtDNA is inherited from one's mother, Ralph and Steve Armstrong would be expected to have the same mtDNA profile.

Six forcibly removed pubic hairs, found on the bedspread on which the victim's body lay, were tested for mitochondrial DNA. Those tests proved they did not come from Ralph Armstrong , the victim or her boyfriend. Another semen stain was found, this time on the bathrobe belt found draped across the victim's body. Further DNA tests of the semen stain from the robe belt excluded Ralph Armstrong again, as well as the victim's boyfriend. Despite those exculpatory results, the state announced it would retry Armstrong for the crimes. Then, despite a court order requiring prosecutors to notify defense attorneys any time evidence in the case was moved or analyzed, Norsetter secretly ordered additional DNA tests. These illegal tests used up the biological evidence, preventing any further testing. Moreover, the Y-STR DNA testing Norsetter ordered in 2006 focuses on the Y chromosome and would not have distinguished genetic material between males with the same father.

The defense did not learn about the woman's 1995 call to Norsetter until 2007. At that point, the defense argued that Norsetter's decision to order Y-DNA tests may have indicated that he was trying to get a conviction against Ralph even if his brother's indistinguishable Y-DNA was found. At a subsequent court hearing Norsetter admitted under oath that he did get a call in 1995 from a woman claiming to have heard a confession in a big case, and that it could have been about Ralph Armstrong, but his memory was vague. He admitted he never told the defense or any court because, in his opinion, the information wasn't credible enough to do so.

Based on the destruction of evidence and the prosecutor's suppression of potentially exculpatory evidence for more than a decade, there was proof that Armstrong's due process rights had been irreparably compromised. A state circuit court judge dismissed the case against Armstrong in July 2009, saying it was clear that the prosecutor in the case had acted "in bad faith." Prosecutors announced in August 2009 they wouldn't appeal the dismissal, and Armstrong was officially cleared. As of October 2009, Armstrong was incarcerated in New Mexico on a parole violation.

Levon Brooks
	Incident Date: 9/15/90 Jurisdiction: MS Charge:Capital Murder, Sexual Battery Conviction:Capital Murder, Sexual Battery r Sentence: Life	Conviction Date: 1/20/92 Exoneration Date:03/13/2008 Sentence Served:16 Years Real perpetrator found?Yes Contributing Causes: Government Misconduct, Unvalidated or Improper Forensic Science Compensation? Not Yet

Levon Brooks served 16 years in Mississippi prisons for a 1990 rape and murder of a three-year-old girl he didn't commit. In 2008, DNA testing cleared another man, Kennedy Brewer, who had been sentenced to death for a nearly identical murder that happened in the same town less than two years after the crime for which Brooks was convicted. The DNA results implicated the perpetrator of that crime, and he confessed to committing both murders, clearing Brooks.

The exonerations of the two men, both Innocence Project clients, revealed troubling problems with autopsies and forensic oversight in Mississippi, and the underlined the shortcomings of bite mark comparison evidence.

The Crime
Late at night on September 15, 1990, three-year-old Courtney Smith was abducted from her Brooksville, Mississippi, home. The girl shared a bedroom with her two sisters, ages six and one. Her 26-year-old uncle was asleep in the next room when she disappeared.
Her body was found two days later in a pond 80 yards from her house. She had been sexually assaulted and murdered.
The Investigation
Levon Brooks became a suspect because he was an ex-boyfriend of Smith's mother.

Another man, Justin Albert Johnson, was also briefly a suspect in the case. His ex-wife and son lived next to the Smith residence and he had been inside the Smith house on the day of the abduction.

Dr. Steven Hayne, a Mississippi pathologist, performed an autopsy on the victim shortly after her body was found. He determined that she had been sexually assaulted. He also found possible bite marks on her wrist and referred the case to Dr. Michael West, a forensic dentist in Mississippi who had worked with Hayne on other cases in the past.

West determined that the marks on the victim's body were indeed from human bites, and he took dental impression samples from 12 possible suspects -- including Justin Albert Johnson but not including Levon Brooks.

Ten days after the victim was killed, police interviews the victim's six-year-old sister. The girl's sister said she had seen the perpetrator abduct the victim and identified the perpetrator as Levon Brooks, her mother's ex- boyfriend. Based on the girl's identification, Brooks was arrested.

On the same day, September 25, West took a sample of Brooks' teeth at the local jail. West testified at Brooks' trial that he compared Brooks' sample to the marks on the victim's body and found that two of Brooks' teeth "matched" the marks on the victim's body. He said Brooks made the marks with his two top front teeth. Brooks was charged with capital murder.

The Trial
Brooks was tried before a jury in Noxubee County, Mississippi, in January 1992. The victim's sister testified that she saw Brooks abduct her sister, although her testimony had several contradictions. In addition to the child's unreliable testimony, the state's case rested on the bite mark evidence presented by Dr. West, who testified that "it could be no one but Levon Brooks that bit this girl's arm."

Brooks' defense attorneys presented an alibi defense, that he was working a club on the night of the murder and did not have an opportunity to commit the crime. The defense also challenged West's credentials and findings. After deliberating for about nine hours, the jury convicted Brooks of capital murder. He was sentenced to life in prison.

Post-Conviction Appeals and Exoneration
Just four months after Brooks was convicted, another young girl was abducted, raped and killed in Brooksville. The facts were startlingly similar, a three-year-old girl taken from her home at night and found in a creek. But the similarities between the cases did not end there. Police focused on Kennedy Brewer, the boyfriend of the victim's mother. Dr. Steven Hayne conducted the autopsy and said he found bite marks on the victim's body. West was called to analyze the bite marks. He confirmed that the marks were from a human bite, and determined that they came from Brewer. Based on this evidence, Brewer was convicted in 1995 and sentenced to death.

The Innocence Project became involved in Brewer's case in 2001, consulting with Brewer's attorneys on DNA testing issues. DNA test results showed that semen from the victim's body excluded Brewer as the perpetrator of the crime and his conviction was overturned. He remained behind bars for six more years, however, awaiting a new trial. Another round of testing matched the profile of Justin Albert Johnson, who had been a suspect during the initial investigations of both Brewer's and Brooks' cases. Johnson was interviewed by law enforcement officials and he admitted to committing both murders, but adamantly denied biting either victim. Following his confession, Brewer and Brooks were both freed on February 15, 2008. Brooks was officially cleared on March 13.

Forensic Fallout
In the wake of the exonerations of Brewer and Brooks, the Innocence Project and several other organizations and individuals began to call for investigations into the work of Hayne and West. For years, Hayne claimed to conduct 1,200 to 1,800 autopsies a year across the state of Mississippi (six times the professional standard), earning him more than a million dollars a year.

Hayne had served as Mississippi's chief medical examiner in the late 1980s and early 1990s, but couldn't fill the position permanently because the state required the official to be properly board-certified, which he is not. The position has been vacant for more than 15 years, however, and Hayne was essentially filling the role on a de facto basis. In August of 2008, just months after the Brewer and Brooks exonerations, the state announced that it was severing all ties with Hayne.

Investigations into several other cases involved Hayne and West are ongoing

Barry Gibbs
	Incident Date: 11/04/86 Jurisdiction: NY Charge: Second-degree murder Conviction:Second-degree murder Sentence: 25 Years to Life	Conviction Date: 03/25/88 Exoneration Date:9/29/05 Sentence Served:17.5 Years Real perpetrator found?No Contributing Causes: Government Misconduct, Eyewitness Misidentification, Informant / Snitch Compensation? Yes

Barry Gibbs was convicted in New York City of committing a murder he didn't commit based on misconduct by a NYPD detective later convicted of arranging and committing several murders and cover-ups on behalf of an organized crime family. Gibbs served 17 years in prison before new evidence led to his release.

The Crime
On the afternoon of November 4, 1986, the body of an African-American woman was found lying under a blanket near a busy Brooklyn highway. She had been strangled to death.

The Investigation and Identification
The lead New York Police Department detective assigned to the case was Louis Eppolito.

A witness told Eppolito that he had been jogging on the day of the crime and had seen a white man and a black woman sitting in a gray car parked by the highway. The man said he then watched the white man walk to the passenger side of the car and pull out a body, lay it on the ground and place a blanket over it. The jogger said the perpetrator noticed him after just three seconds and ran back to the driver side.

Eppolito apparently learned that Barry Gibbs knew the victim. Gibbs voluntarily participated in a line-up and consented to a police search of his apartment. During the search, police found a pair of red jeans that matched eyewitness testimony of what the perpetrator was wearing during the crime; however, the jeans did not fit Gibbs. Police also discovered that Gibbs owned a gray car similar to the perpetrator's car but Gibbs' car was inoperable, had two flat tires, and had not been driven for a substantial amount of time.

During the police lineup, the witness who observed the perpetrator dispose of the victim's body identified Gibbs as the perpetrator despite physical differences in stature and weight. Additionally, a park police officer told responding officers he had seen the perpetrator but was never asked to identify the suspect in a police line-up.

An autopsy was performed on the victim's body. Testing conducted on hair samples found on the victim revealed Caucasian characteristics.

The Trial
The prosecution's case was based on both eyewitness testimony and snitch testimony.

The jogger testified about seeing a white man dump the body. Another state witness was a jailhouse informant who had a very close relationship with a criminal investigator in the Department of Corrections and an extensive arrest record. The informant, who had testified for the state in several other cases, testified that he spoke to Gibbs while he was in jail awaiting trial and Gibbs admitted to killing the victim. A defense witness, who was also incarcerated with Gibbs pre-trial, offered contrary testimony that in conversations with Gibbs over a 4-month period, Gibbs always maintained his innocence. Based on the eyewitness and snitch testimony, Gibbs was convicted and sentenced to 20 years to life in prison.

Post-Conviction Appeals and Exoneration
Nine years after his conviction, Gibbs contacted the Innocence Project for assistance in obtaining DNA testing to prove his innocence. In response to an Innocence Project motion, a Brooklyn judge ordered the State to search for the evidence — including the caucasion hairs and rope used to strangle the victim, DNA testing on any found items. Despite repeated searches for physical or biological evidence in the case, none could be found. Some of the evidence in the case had been reported as destroyed, other items were never found. Read more about New York City's problems with evidence storage and retention here.

Gibbs' police investigation file was also missing at the time. In 2004, after exhausting all possible searches for evidence, the Innocence Project began the process of referring the case to another project. The next year, police began investigating Eppolito, who had retired from the NYPD, for alleged ties to organized crime. In a search of Eppolito's house in Las Vegas, officers found Gibbs' police file. The Innocence Project once again began working on his case, and requested the US Attorney's office investigate Gibbs' claim of innocence. That re-investigation led to further evidence of Gibbs' innocence.

Eppolito and another former NYPD detective have since been convicted of eight murders and several other charges based on evidence that they plotted and carried out murders on behalf of the Mafia.

In 2005, the eyewitness who had testified at Gibbs' trial that he had seen the perpetrator while jogging in the area recanted his testimony. He said Eppolito had threatened his family if he didn't identify Gibbs in the lineup and again in court.

Based on the witness's recantation, Gibbs was freed from prison in 2005 and cleared. He had served more than 17 years in prison for a murder he did not commit.

Paul House
	Incident Date: 7/13/1985 Jurisdiction: TN Charge: First-degree murder Conviction:First-degree murder Sentence: Death	Year of Conviction: 1986 Exoneration Date:05/12/099 Sentence Served: 22 Years Real perpetrator found?No Contributing Causes: Unreliable/Limited Science, Forensic Science Misconduct, Bad Lawyering Compensation? Not Yet

Paul House served 22 years on Tennessee's death row before evidence of his innocence — and the intervention of the U.S. Supreme Court — cleared him of murder and led to his release.

The Crime
In the summer of 1985, Carolyn Muncey was found dead near her home in rural Luttrell, Tennessee. Dressed in a nightgown and house coat, her bloodied body was found under some brush on the bank of a creek. She had been raped and beaten.

The Arrest
A few months before Muncey's murder, Paul House had moved into his mother's nearby home. Almost immediately after the incident, police suspected that House, an outsider with a criminal record, was responsible for Muncey's death.

The Conviction
At trial, two witnesses for the state testified that they had seen House wiping his hands on the night of the crime near where Muncey had been found. A pair of jeans collected from House had blood on them, and a forensic expert testified at trial that the blood matched Muncey's ABO blood type. A forensic expert also testified that that House's blood type matched the semen found on Muncey's underwear.

In February 1986, the jury convicted House of first-degree murder, sentencing him to death.

Post-Conviction
While House's attorneys were appealing his conviction, several witnesses came forward with evidence that the victim's abusive husband had killed her. Two women claimed that Mr. Muncey had confessed to the crime at a party one night. A third woman saw him hitting his wife at a dance. A fourth said he had asked her to provide an alibi for him on the night his wife was killed.

Further analysis of the blood on House's jeans cast doubt on whether the blood was actually deposited during the course of the crime. This included testimony from a former Tennessee State Medical Examiner, who stated that in his view, the the blood on the jeans showed enzyme decay — which, he testified, was consistent with blood taken at Mrs. Muncey's autopsy and transported in vials without preservative or refrigeration. The decay would not be expected to be found in blood that came in direct contact with House's pants while the victim was alive.

Additional evidence supported the theory that blood collected at Muncey's autopsy had spilled on House's jeans after they were collected as evidence, whether accidentally or deliberately. The blood vials were not sealed, and were driven 10 hours to the FBI lab by two law enforcement officers. The blood spoiled during the trip due to heat exposure, and FBI records showed that a significant amount of blood from the autopsy vials was missing when the officers arrived at the lab.

More exculpatory evidence came in the late 1990s, after House had spent over a decade in prison. Advanced DNA testing revealed that the semen from Muncey's underwear and nightgown belonged to her husband, not House — contrary to the testimony of an FBI expert at trial, who had incorrectly told the jury that only House's blood group antigens could have been the source of the semen stains.

Release and Exoneration
House's appeals, which called for his conviction to be overturned in light of the array of new evidence, was rejected by several courts before his case was heard by the U.S. Supreme Court in 2005. The Innocence Project filed a friend-of-the-court brief on his behalf in the Supreme Court. On June 12, 2006, the court ruled that any "reasonable juror" would probably not have convicted House had they been aware of the new evidence in his favor, and sent his case back to the district court in Tennessee for a full review.

In Tennessee, U.S. District Court Judge Henry Mattice Jr. overturned House's conviction and ordered the state to either release House or to retry him within 180 days. The state appealed the decision, but lost. Bail was set at $500,000 — then reduced to $100,000. An anonymous donor paid the 10% bond, and House, who suffers from chronic multiple sclerosis and is confined to a wheelchair, was released from the Lois M. DeBerry Special Needs Facility on July 2, 2008. He had served 22 years on death row.

Prosecutors requested permission to conduct further DNA testing in the case while House was on bail. The results, from testing conducted on a hair found at the crime scene, material from under the victim's fingernails and other items, pointed to at least one other unknown suspect. Additional investigation conducted by House's new trial team (Assistant Public Defender Dale Potter of Tennessee and Linda Kenney Baden of New York, who agreed to assist House pro bono) cast further doubt on the state's evidence against House. In light of the DNA test results and other evidence, Prosecutors dropped all charges against House on May 12, 2009.

Walter Swift
	Incident Date: 09/02/1984 Jurisdiction: MI Charge: 1st degree criminal sexual conduct, robbery Conviction:1st degree criminal sexual conduct, robbery Sentence: 20-40 Years	Conviction Date: 11/10/82 Exoneration Date: 5/21/08 Sentence Served: 25.5 Years Real perpetrator found?No Contributing Causes: Eyewitness Misidentification, Unvalidated or Improper Forensic Science, Government Misconduct, Bad Lawyering Compensation? Not Yet

Walter Swift served 26 years in Michigan prisons for rape before evidence of his innocence led to his exoneration and release in 2008. He was wrongfully convicted based in part on a highly questionable eyewitness identification and incomplete forensic testimony.

The Crime
On September 2, 1982, a woman was playing with her seven-month-old son in her Detroit home when an intruder grabbed her from behind. He dragged her to her upstairs bedroom, where he removed her clothing and raped her. He allowed her to cover herself with a robe before leading her downstairs to locate her purse. He took $60 from her purse, as well as her wedding band and another $100 in cash from the house. The perpetrator raped the victim again on a rug on the first floor. He then told the victim to close her eyes and fled.

The Investigation
When police arrived at the victim's house, they collected the robe she was wearing and the sheet from her bed. She was taken to a local hospital, where a rape kit was collected. The victim described the perpetrator as a clean-shaven African-American man between 15 and 18 years old, about 5'10'' tall, with an unusual hairstyle with very small braids.

Eight days after the crime, the investigating officer, Janice Paavola, showed the victim several hundred photos of black men between 15 and 25 years old. The victim selected seven photos based on various characteristics in common with the perpetrator. At this time, Paavola decided that the person in the next photo the victim chose would be included in a live lineup. Walter Swift's photo happened to be the eighth she chose, saying his eyes were similar to those of the perpetrator. Paavola wrote in a 2003 affidavit that the victim did not say Swift was the perpetrator and didn't place any emphasis on his photo compared to the other seven photos. The officer "was confident that she would not identify Mr. Swift as the perpetrator in the lineup."

Officers learned that Swift did not have braids, had a mustache and had a black eye at the time of the crime. Despite these inconsistencies, the lineup was conducted a few days later. Swift and four other men participated; they ranged in age from 20 to 34 and ranged widely in height and build. The officer told the victim that the man whose photo she chose would be included. The victim tentatively selected Swift, saying "I believe it is number 2." In her 2003 affidavit, the officer said she did not consider this a positive identification and scheduled a polygraph test for Swift to further investigate his possible role in the crime.

Paavola scheduled the polygraph examination, but would soon learn that it had been cancelled by a sergeant and a warrant had been issued for Swift's arrest. The sergeant told Paavola that "Mr. Swift may not have done this crime but [the sergeant] was sure that he did some crime before and had gotten away with it." Based almost exclusively on the victim's questionable identification, Swift was charged with sexual assault and robbery.

The Trial and Forensic Evidence
Swift was tried before a jury in Detroit two months later. He was represented by a court-appointed attorney.

The state's case focused on the victim's identification of Swift and presented an incomplete account of how the victim identified him. Most critically, during trial, the jury was led to believe that the victim was shown hundreds of photographs at the police station of men who fit her description of the perpetrator, that she selected only Walter Swift's photo out of that photo array, and that she later confirmed the selection in a live lineup. As a result of suppression by state witnesses, and defense counsel's failure to investigate, the jury never learned that the victim selected the photographs of seven other men as well and only identified Swift as the perpetrator after a highly tainted lineup.

Strong biological evidence of Swift's innocence that existed before trial was also never presented to the jury. Prior to trial, defense counsel was provided with a report showing that Swift was a secretor (an individual whose blood group is evident from bodily fluids like semen and saliva) and that testing on semen stains from the robe and the sheet indicated that the semen stains may have been deposited by a non-secretor. Prosecutors called one of the two forensic analysts who conducted tests in the case. The analyst testified that semen was detected on the victim's robe and sheet, but that he did know whether the person who deposited the semen was a secretor. He said that the other analyst on the case had knowledge of this result. The defense did not cross-examine the analyst presented at trial, and waived the testimony of the other analyst entirely.

Swift's attorney, however, was not solely responsible for the failure to provide the jury with complete information about the forensic analysis. A second version of the lab report, which included additional lab results, was withheld by the police and never released to the prosecution or defense. The updated report provided further evidence that the source of the semen was likely a non-secretor and therefore unlikely to have been Walter Swift.

Swift's defense consisted mainly of an alibi. His girlfriend at the time testified that he was with her when the crime occurred. Swift's defense attorney, Lawrence R. Greene, failed to reveal serious flaws in the identification procedure, declined to cross-examine the forensic analyst who testified and did not call the other analyst as a witness. The attorney has been suspended from practicing law several times in the last decade based on misconduct and inadequate representation in other cases and his license was eventually revoked in Michigan.

After a two-day trial, Swift was convicted. Before his sentencing, Officer Paavola visited the judge to explain that she thought he had been wrongfully convicted. Later the same week, Paavola was transferred from the Sex Crimes Unit to patrol duty. Swift was sentenced to 20 to 40 years in prison.

Post-Conviction Appeals and Exoneration
The Innocence Project accepted Swift's case in 1998 and began requesting searches for the biological evidence in the case. Although all evidence in the case had been lost or destroyed, the investigation began to uncover solid evidence of Swift's innocence. In addition to staff attorneys and clinic students at the Benjamin N. Cardozo School of Law, a student from Ireland named Niamh Gunn was assigned to work on the case in 2003, and she would play a significant role in Swift's exoneration.

Gunn won a competition at her college in Ireland to work at the Innocence Project in the summer of 2003; she extended her stay as she became more involved in Swift's case and continued to work on his case for five years after returning to Ireland. In part because of her efforts, the police officer and lab analyst who worked on the case before Swift's trial supported his quest for exoneration.

The cooperation that brought about Swift's exoneration was unprecedented. The prosecutor who originally convicted him and Janice Paavola, the former police officer who testified at his trial, filed affidavits in support of vacating his conviction. The Innocence Project presented all of the evidence it had developed in the case to Wayne County Prosecuting Attorney Kym Worthy, whose office investigated the case thoroughly. Worthy's office joined the Innocence Project on May 21, 2008, in asking a Michigan judge to vacate Swift's conviction and dismiss the indictment. He was freed that afternoon after 26 years in prison for a crime he didn't commit.

http://www.innocenceproject.org/Content/Innocence_Project_MidAtlantic_Innocence_Project_and_Hogan_Lovells_US_
LLP_Ask_Virginia_Appeals_Court_to_Exonerate_a_Richmond_
Man_Who_Has_Served_Nearly_27_Years_for_Rapes_He_Didnt_Commit.php

Innocence Project, Mid-Atlantic Innocence Project and Hogan Lovells US LLP Ask Virginia Appeals Court to Exonerate a Richmond Man Who Has Served Nearly 27 Years for Rapes He Didn’t Commit

Attorney General and Richmond and Henrico Commonwealth Attorneys Support His Claim of Innocence

FOR IMMEDIATE RELEASE: February 3, 2011

The Innocence Project, the Mid-Atlantic Innocence Project and Hogan Lovells US LLP is filing legal papers before the Virginia Court of Appeals today asking the court to exonerate a Richmond man who has been incarcerated nearly 27 years for three rapes that DNA and other evidence now show were committed by the notorious “Black Ninja” rapist.  After an extensive investigation that included DNA testing, an exhaustive review of the evidence and polygraph tests, Richmond Commonwealth’s Attorney Michael Herring and Henrico Commonwealth’s Attorney Wade Kizer are both calling for Mr. Haynesworth’s exoneration and return to freedom.  Virginia Attorney General Ken Cuccinelli has also announced that he is supporting the writ seeking a declaration of innocence.

“This a tragic miscarriage of justice that occurred because law enforcement let the pressure of making an arrest in high profile crimes get in the way of finding the real perpetrator,” said Shawn Armbrust, director of the Mid-Atlantic Innocence Project.  “What’s particularly upsetting in this case is that after our client was arrested and behind bars, rapes matching the same MO continued, yet it didn’t occur to anyone that our client could have been innocent even though he insisted on his innocence throughout four trials.” 
 
Peter Neufeld, Co-Director of the Innocence Project, which is affiliated with Cardozo School of Law, added, “Forty years of social science research—much of it available when these crimes occurred—has concluded that identifications are often unreliable, especially in cross racial crimes.  We hope this case will spur the legislature to demand that all departments across the state enact formal policies that are designed to prevent misidentification. ”

Between January 3 and February 1, 1984, five white women were the victims of rapes or attempted rapes by a young black male in the East End of Richmond, a small area overlapping both the City of Richmond and Henrico County.  On February 5, 1984, Thomas Haynesworth, an 18-year-old Richmond resident with no prior record, was arrested after one of the victims identified him.  The other four victims later picked his photo out of a photo array. Haynesworth was eventually convicted for crimes that occurred on January 3, 30 and February 1, 1984 and sentenced to 36 years in prison.  He was acquitted of the crime that occurred on January 21, and the charges were dropped in a January 27 incident. 

Rapes in the same general area continued throughout 1984 after Haynesworth was arrested, with more than 10 young white women being attacked by a young black male who began to refer to himself to his victims as the “Black Ninja.”  On December 19, police arrested Leon Davis, who was charged with about a dozen rapes that took place during the last nine months of 1984. Davis was eventually convicted of at least three of those crimes and sentenced to multiple life terms. 

After five men were exonerated through DNA testing of biological evidence in the case files of the Department of Forensic Science, Gov. Mark Warner ordered a review of all the cases between 1973 and 1988 where there was evidence suitable for DNA testing.  As a result of this review, it was discovered that the semen recovered from the victim of Haynesworth’s January 3 rape conviction matched Davis, not Haynesworth. 

At this point, the Innocence Project, the Mid-Atlantic Innocence Project and Hogan Lovells US LLP reached out to the Richmond and Henrico Commonwealth’s Attorneys to review Haynesworth’s other convictions.  While there was no physical evidence for his two remaining convictions, DNA testing proved that Davis was the perpetrator in the case for which Haynesworth was acquitted.

After additional review, the Richmond and Henrico Commonwealth’s Attorneys now agree that Haynesworth is also innocent of the other two crimes.  Haynesworth and Davis are similar in appearance – DNA evidence now proves that the victims in two of Haynesworth’s cases misidentified him as Davis.  However, Haynesworth is not quite 5’7” in height, while Davis is 5’10”.  The victims in the two cases without physical evidence described their attacker as 5’9” or 5’10”.  (Interestingly, after he was convicted, Haynesworth ran into Davis in the Richmond County Jail, and Davis asked him to appear at his trial in hopes of confusing the victim of his identity.  Haynesworth refused.)  Haynesworth also passed polygraph tests about both of the cases that were administered in the presence of the respective Commonwealth’s Attorneys.  Additionally, the MO (modus operandi) in all of the cases is strikingly similar, including:

• Davis committed his crimes either in the early morning or early evening.

• Davis would generally approach his victims casually on the street and then force them to a secluded area. 

• All of Davis’ victims were white females between 15 and 30.  (According to U.S. Department of Justice data only 12% of forcible rapes are committed by perpetrators who rape women of other races.  http://bjs.ojp.usdoj.gov/content/pub/ascii/SOO.TXT /)

• Davis robbed each of his victims, usually before sexually assaulting them.

• Davis typically engaged in the same sex acts with his victims.

• Davis was unusually talkative during his attacks.

• All of Davis’ attacks occurred in close proximity. The crimes that we now know he committed in the beginning of 1984 occurred within a five block radius of his then address on National Street in the East End of Richmond.  Most of his later attacks occurred further west in the Fan District and the Museum District, consistent with the fact that he married and moved to Parham Road in Henrico.  His wife worked at 2900 Kensington Avenue in Richmond, which is in the Fan District.  

• Davis was armed during his attacks, usually with a knife. The attacker in the Henrico case used a gun but told his victim that he usually used a knife, and 36 hours later the attacker in the Richmond case matching the same description used a gun.

In the papers that will be filed today, Haynesworth asks the court to grant him a Nonbiological Writ of Actual Innocence.  Even though his petition is supported by the Attorney General and both Commonwealth’s Attorneys now believe he is innocent, Haynesworth will likely remain incarcerated while the court decides the case.  There are no mandatory deadlines for the court to reach a decision.  

Misidentification is the cause of 75% of the wrongful convictions that have been overturned because of DNA testing.  In 2005, the Virginia legislature passed a law requiring that each law enforcement agency in the state adopt written eyewitness identification policies, but the Virginia State Crime Commission found that, as of November 2010, at least 25% of the 134 departments across the state still did not have written identification policies and many of the departments with policies use procedures that fall short of best practices. While the Virginia State Crime Commission has vowed to continue seeking improvements, this case demonstrates why the legislature should act now to implement uniform, best practices across the state. Identification procedures that eliminate suggestion by requiring that the identification procedure be administered by an officer not assigned to the case, telling the witness that the perpetrator may not be in the lineup or photo array and asking the witness their level of confidence in the identification have proven effective in reducing wrongful convictions.  Additional information about misidentification is available at www. http://www.innocenceproject.org/fix/Eyewitness-Identification.php.

 “After five years of delay, it’s clear we need the legislature to step up and demand action.  Mistaken identifications don’t just hurt the people who are wrongly identified.  They hurt all of us because the real perpetrator goes uncaught,” said Olga Akselrod, a staff attorney with the Innocence Project.  

Haynesworth would be the fourth person to be exonerated from the state’s review of 210 cases that occurred between 1973 and 1988 where there was sufficient evidence to conduct DNA testing.  (There is also an exoneration pending for a Newport News man before the Virginia Supreme Court.)  Funding for the review is being paid for largely through money from the federal government. 

Download a copy of the writ filed today.
 
Review a timeline of the case. 

The legal team includes Hogan Lovells US LLP partner Ellen Kennedy and associates Thomas Widor and Aaron George.

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CONTACTS:  Paul Cates,pcates@innocenceproject.org
Alana Salzberg, asalzberg@innocenceproject.org

(Photo: Jay Paul)

About “Conviction” The Movie

“Conviction,” an inspiring new film about a woman’s two-decade fight to overturn her brother’s wrongful conviction, opened in select theaters October 15, 2010 and will expand to screens around the world through the month of October.

Learn more about the true story behind the movie here.

The film, directed by Tony Goldwyn and written by Pamela Gray, was eight years in the making. Watch an interview with Goldwyn below, see media coverage of the film, read reviews or visit imdb and Fox Searchlight for more on the making of the film.