New DNA Methods Could Throw More Convictions Into Doubt

Ted Bradford got out of bed that life-changing morning in 1995 and did one of two things. He went to work. Or he raped a stranger and went to work.

According to his confession at the time, it was the latter. The then-22-year-old Yakima lumber-mill worker admitted breaking into a home and raping a woman who'd been feeding her month-old baby. Convicted by a jury, he served nine years in prison and was released in 2005. Guilty, case closed.

No, Bradford says today. He went directly to work. The confession was coerced, and he served time for a crime he didn't commit. After listening to his story, the state Court of Appeals recently decided his conviction may have been in error. Innocent, case reopened.

Arrested six months after the rape on an unrelated charge of indecent exposure, Bradford claims police interrogators told him at the time (falsely) that they had his DNA from the rape scene. Today they do have DNA from the scene. But it's not Bradford's.

A new genetic profile using advanced technology shows it was another, unknown male whose telltale deoxyribonucleic acid was found on electrical tape stuck to a mask that the rapist used to cover the eyes of his 25-year-old victim. The appeals court agreed that had the testing technique—which can construct a genetic profile from much smaller DNA samples than previous methods—been available when Bradford was tried in 1996 and the results presented to a jury, the outcome could have changed.

The ruling marked the first time a criminal conviction in Washington was overturned solely on DNA identifiers. It was enabled by a state law passed in 2000 that allows newly developed forensic methods to be retroactively applied to felony convictions.

But unlike some of the more celebrated cases of DNA exoneration, in which inmates have marched out of prison, their names cleared, the Bradford case is not over. Yakima County prosecutors have asked the state Supreme Court to review the appeals court ruling, and if the high court declines, they say they'll just put Bradford on trial again. DNA miracle or not, Yakima County deputy prosecutor Kevin Eilmes is certain Bradford is a rapist. "We believe that there is admissible evidence which would overcome any doubt the new resultsmight raise," he says.

The Bradford reversal is the first in what Washington convicts hope, and prosecutors fear, may be a new wave of DNA-based appeals that can cloud a case, without clearly deciding it, years after the jury reached its verdict. Attorney General Rob McKenna, whose office handles DNA appeals as they rise up the system, recently argued in the state Supreme Court against liberally allowing DNA tests for felons. Like Yakima prosecutors, the state prefers a narrow interpretation of the seven-year-old testing law, revised in 2005, which allows convicted felons still under sentence to petition for DNA testing—conducted by the state patrol at taxpayer expense.

To get a test, the inmate has to demonstrate that today's more accurate examinations can provide significant new information that puts the conviction in doubt. In legalese, tests should be "material to the identity of the perpetrator" and able to show the "likelihood" that innocence is "more probable than not." But that language still leaves plenty of room for dispute, with prosecutors in some cases resisting the introduction of new evidence.

According to the state Office of Public Defense, 63 convicted felons have asked for DNA tests since the law was passed. How many requests are granted, and the outcomes of the tests, are not tracked, OPD says. About a third, on average, are thought to fail because evidence was lost or not testable.

Washington was the third state to pass the testing law. Today, all but eight states give inmates opportunities to examine DNA evidence not available at the time of conviction, according to an appeals support group, Truth in Justice. Since 1989, post-conviction relief, when based on new DNA findings, has led to the courts releasing 210 U.S. inmates—15 had served time on death row—who'd been wrongly convicted, according to the Innocence Project of New York, which has championed the use of DNA to free inmates.

All these were outright exonerations, without retrials. Eleven of the wrongly convicted had confessed, and in more than a third of the cases, DNA matching led to the capture of the actual perpetrators. The average exonoree was 26, served 12 years, and was black. The 210th man, John Jerome White—exonerated last month of a 1980 rape and robbery—was the seventh Georgia man to be released via DNA evidence. In all seven cases, appellants had to overcome eyewitness misidentifications.

Innocence Project leader and attorney Barry Scheck told reporters that DNA testing has shown, "whether it's the death penalty or not, there are flaws with eyewitness testimony, false confessions, and crime labs."

But it takes long, difficult appeals to make justice happen in deserving cases, attorneys say, and thousands of reviews are being sought across the U.S. They currently include, besides Bradford's case, perhaps a dozen at various legal stages in Washington. In two of the most recent cases, being handled in part by the Northwest unit of the Innocence Project, inmates aren't asking to be released, just to have the tests done—a struggle in itself.