June 7, 2013 is a day Jerry Lee Jenkins will always remember. It was the day he joined over three hundred other men and women who were exonerated with the use of post-conviction DNA testing. Mr. Jenkins had been fighting to prove his innocence since he was wrongfully convicted in 1987 for the brutal rape of a young woman in Waldorf, Maryland. On the evening of February 6, 1986 the woman, a real estate agent, was at a model home when a man came in, concealed his face with a stocking and pulled a knife on her. The man covered the woman’s face and proceeded to rape her. The woman was able to get a partial glance at his face. The woman would later admit at a photo lineup with Mr. Jenkins and to the jury that Mr. Jenkins looked like the man who attacked her but she was not sure it was him. An expert from the FBI testified at trial that Mr. Jenkins was within four percent of the population that could have contributed to the biological material left at the crime, which is still a large pool of possible offenders. Mr. Jenkins was convicted regardless.
Before Mr. Jenkins was convicted, a detective noticed that the 1986 rape was very similar to another rape committed over a year prior, in 1984, and only a few miles from the 1986 rape. That rape involved a similar victim, location, and offender characteristics. The police even contacted the FBI to conduct a profile of a potential serial rapist. Mr. Jenkins, only twenty-five at the time, had recently been arrested on an unrelated crime when the police decided to interview him. Mr. Jenkins was tested against the evidence from the 1984 rape and he was excluded as the suspect. However, the police continued to try to build a case against Mr. Jenkins for the 1986 rape. They showed the victim an outdated picture of Mr. Jenkins in a photo line-up. She said Mr. Jenkins and her attacker looked similar but admitted she could not be certain they were the same.
Eyewitness misidentification has been found in seventy-five percent of wrongful conviction cases and is the leading contributor of wrongful convictions. There has been a considerable amount of research conducted to determine why such misidentification occurs so frequently and methods to prevent it. People often think their memory is better than it actually is, especially in stressful situations. The woman in the 1986 rape admitted that she was not sure that Mr. Jenkins was her attacker; however, the jury was likely influenced by her testifying that they looked similar.
Eyewitness misidentifications can also be caused by suggestive techniques during a line-up. This may include the suspect wearing a different colored shirt than the rest of the people in a line-up or a police officer telling the witness to take another look at the suspect. A successful method to diminish the risk of eyewitness misidentifications is to administer a “double-blind” line-up in which neither the person conducting the line-up nor the witness knows the suspect. Researchers suggest that the line-up should be administered with photographs presented to the witness in sequential order, having the witness look at each photo, determine if it is the offender and move on to the next photo. Defense attorneys should fight for this kind of photo line-up or ensure that traditional line-ups are not overly suggestive. Prosecutors and police ought to be just as concerned with the high percentage of eyewitness misidentifications that seem to occur in wrongful conviction cases.
After Mr. Jenkins was convicted, he sought to have DNA testing done but because DNA profiling was in its early stages, the test was inconclusive. Mr. Jenkins was sentenced to life in prison. He continued to file unsuccessful appeals as the process of DNA profiling advanced. In 2000 when it seemed more likely that Mr. Jenkins could get another trial after the Maryland Court of Appeals ruled that evidence of another perpetrator could be permitted at trial, the prosecution offered to vacate Mr. Jenkins’ conviction if he took an Alford plea, a guilty plea that acknowledges the prosecution has sufficient evidence to convict him on the 1986 rape but allows him to maintain his innocence. In return, the prosecution would recommend a shorter sentence with the possibility of release in 2010 on probation. He accepted.
In 2004 the DNA from the 1984 rape was run through CODIS, the FBI’s DNA database. The DNA belonged to Norman Derr, who was serving a life sentence in Virginia for a 1988 rape that was very similar to the Maryland rapes. Mr. Derr was suspected of multiple rapes in Virginia. In 2007 the Mid Atlantic Innocence Project joined Mr. Jenkins’ fight, accepting him as a non-DNA case since it was believed that there was no more evidence from the 1986 rape that could be tested.
In 2010 Mr. Jenkins was released, but he was not finished with his fight to clear his name. A year later, the big break came when a box of evidence from the 1986 rape was found and DNA testing was conducted. Not only was Mr. Jenkins excluded by the DNA in the 1986 rape but the DNA evidence matched Mr. Derr’s DNA. On June 7, 2013 Mr. Jenkins finally won his motion for a new trial, filed previously in February and supported by the State, the case was dismissed.
Mr. Jenkins’ story is one of many in which post-conviction DNA testing was used to right a terrible wrong. As of May 24, 2013, all 50 states have laws for access to post-conviction DNA testing. These laws are extremely important in overturning wrongful convictions, enabling the true perpetrators to be incarcerated and ensuring that the innocent are freed.
Unfortunately, there are cases of wrongful convictions that do not contain any DNA evidence that can be tested. Those battles for the truth can be much more difficult. It is essential that the public and especially members of the criminal justice system are aware of wrongful convictions and their characteristics, as well as the measures that can be taken to implement change to correct and prevent them, such as DNA Access laws or non-suggestive photo line-ups. The adage that it is better to let 1,000 guilty men go free than convict an innocent man may one day be unnecessary. Relatively simple measures can be taken to prevent those guilty men from going free and that innocent person from being wrongfully convicted in the first place.
Blog Editor, Criminal Law Brief