Even as prisoners go free, law and science of DNA remain at odds

A.B. Butler Jr. knew he might well die behind bars. <br><br>And he knew he was an innocent man. <br><br>So when he walked into a Texas prison, sentenced to 99 years for rape and kidnapping, he was determined

Wednesday, October 4th 2000, 12:00 am

By: News On 6

A.B. Butler Jr. knew he might well die behind bars.

And he knew he was an innocent man.

So when he walked into a Texas prison, sentenced to 99 years for rape and kidnapping, he was determined to fight. He became his own lawyer, filing motions, writing the prosecutor and the judge, arguing his case.

Please, he would write, give me a DNA test. Even if you don't believe me, let me be tested, just to make sure.

Year after year, the rejections would come. He'd crumple up the papers and start again.

Finally, he got someone to listen. He got a lawyer. And he got his DNA test.

This year, after 16 years as an inmate, Butler walked out of prison into the arms of his family.

He was a free man.

___

A.B. Butler is among 76 prisoners _ including nine former death row inmates _ who have been exonerated nationwide because of DNA testing, according to the Innocence Project, a New York-based group that has provided legal assistance to dozens of wrongly convicted inmates.

What was once a headline grabber has become commonplace: a parade of inmates leaving prison as DNA clears their names. This year alone, the scientific testing has exonerated prisoners from California, Virginia, Massachusetts, Missouri, Kentucky, Indiana, Arizona and Texas.

``DNA isn't a tool for every case. But it is changing our legal landscape,'' says Richard Dieter, director of the Death Penalty Information Center in Washington. ``It has saved some men from prison and others from death, and now we are seeing the courts recognize the power of this tool.''

Do they recognize it, or is there still a gap between cutting-edge science and the traditions of criminal law?

Some judges have strongly resisted ordering DNA testing. Others have refused to accept the lack of a genetic match as clear-cut proof of innocence.

_In Texas, the Court of Criminal Appeals refused to grant Roy Wayne Criner a new trial, even after a DNA test showed he was not the source of semen found in the body of a young rape and murder victim.

It was always possible, the judges reasoned, that Criner had still committed the rape; he might have used a condom. Two years later, tests showed DNA found on a cigarette butt at the murder scene matched that found in the victim. Criner was freed in August after 10 years in prison and pardoned by Texas Gov. George W. Bush.

_In Illinois, Ronald Jones, a homeless panhandler, was convicted of rape and murder. When his lawyers asked for a more sophisticated DNA test than the one initially used, prosecutors objected. And the judge backed them.

``What issue could possibly be resolved by DNA testing?'' asked Cook County Circuit Judge John Morrissey. When defense lawyers asked again, he said: ``Save arguments like that for the press. They love it. I don't.''

The Illinois Supreme Court granted Jones a test. And he was cleared _ one of five men on death row in Illinois freed with help from DNA testing.

DNA, or deoxyribonucleic acid, is housed in all cells and is as individual as fingerprints. DNA is the gateway to a person's physical traits such as sex, eye color and race.

DNA was first introduced as evidence in U.S. courts in 1986, but only in recent years has it become commonly used to settle questions of identity.

Even now, prosecutors say there are legitimate reasons not to rush into testing.

``Will the test truly prove innocence or guilt?'' asks Susan Gaertner, of the National District Attorneys Association and the prosecutor in Ramsey County, Minn. ``Has the evidence been preserved so it can be reliably tested?''

``We need to ask those questions,'' she says, ``but to translate that to resistance against tests is unfair.''

Defense attorneys charge that some prosecutors drag their feet, hoping to avoid anything that might prove they locked up the wrong man.

``They embrace DNA when it includes someone, but they disavow it when it exonerates them,'' says Randy Schaffer, a Houston lawyer who has represented clients freed by DNA testing.

One major problem the Innocence Project encounters is finding the DNA itself. It says it cannot pursue 70 percent of the cases it takes because the evidence no longer exists.

Sometimes, sheer luck can free an innocent man. One Texas inmate serving a rape sentence was released after DNA exonerated him; shortly afterward, the county disposed of evidence kits in 50 other rape convictions.

Obstacles remain even when evidence exists.

Peter Neufeld, co-founder of the Innocence Project, says half of his group's cases have required a legal battle for access to DNA evidence _ lasting, on average, four years.

That evidence is crucial because in nearly 90 percent of the exonerations handled by the project, mistaken eyewitness identification has been a critical factor, he says.

Bennett Gershman, a former prosecutor who now is a law professor at Pace University School of Law in New York, has a theory on prosecutors' reluctance to reopen cases.

``They worked hard to get a guilty verdict,'' he says. ``They've got a victim who has been traumatized by the defendant's crime. I don't think a prosecutor is going to say, 'Hey, this guy might be innocent, and I'm going to go out of my way to prove it.' ''

Gershman also notes DNA does not always lead to exonerations: ``DNA proves many more defendants guilty than not guilty.''

In Texas, it failed to clear Ricky McGinn, who had won a reprieve from Bush in June. New tests pointed to McGinn in the 1983 rape and killing of his 12-year-old stepdaughter. He was executed last month.

In Virginia, Derek R. Barnabei was executed Sept. 14 after DNA tests confirmed his guilt in the rape and murder of a 17-year-old he had been dating. He professed innocence to his death.

Increasingly, state and federal lawmakers are addressing DNA.

One bill pending in Congress proposes giving more inmates access to DNA testing and establishing competency requirements for defense lawyers in capital cases.

Nine states _ Illinois, New York, Arizona, Oklahoma, Minnesota, California, Florida, Delaware and Washington _ have laws that specifically govern requests for DNA testing, according to the Innocence Project

And in June, California's San Diego County began offering free DNA testing for inmates who feel it can exonerate them. So far, it has received about 20 requests.

Even with new laws, the battle over DNA can be long and frustrating.

No one knows that better than A.B. Butler Jr.

___

A newspaper story kindled Butler's hope of gaining his freedom.

About 10 years ago Butler was in his Texas prison cell when he read about the FBI doing DNA testing. He wrote the agency seeking help. There was no answer.

By then, Butler had already been locked up seven years for the rape and kidnap of a woman in Tyler, Texas. There was no physical evidence. There was the victim's riveting testimony.

When a lawyer hired by Butler's family didn't make much headway, he began representing himself.

He studied the law, filed motions and wrote letters, appealing for a DNA test. It seemed a quixotic move: a prisoner with no money and just a high school diploma, taking on the entire criminal justice system.

When one plea was rejected, he'd start over.

``It would just make me fight harder,'' he says. ``My attitude was if you won't do it, I'll try something else. ... I had to keep a positive attitude or else I would go down.''

``My mother kept telling me, 'Put God first. Let him take care of it,''' Butler adds. ``Eventually everything fell in place.''

His break came after he read another newspaper story _ this one about Centurion Ministries, a New Jersey-based group that helps free people who are wrongly convicted.

Butler wrote Centurion, one of hundreds of letters the group receives each year from desperate prisoners.

Disturbing questions about the victim's identification and Butler's ``persistent spirit'' were so compelling that Centurion took on the case, says James McCloskey, the group's executive director.

Centurion hired Schaffer, the Houston attorney.

``The frightening thing about this case was there was nothing there to indicate his innocence other than his say-so,'' he says.

That changed after Schaffer overcame delays and obstacles to get Butler the DNA test he'd sought so long.

In January, the 45-year-old was freed.

``It felt like the weight of the world was off my shoulders,'' says Butler, who was later pardoned by Bush.

Butler now is a self-employed dump truck driver, a faithful churchgoer and a man trying to start over.

``I don't dwell on the past,'' he says. ``I've got to look toward the future. I have no animosity in my heart toward the judicial system.

``I'm thankful the truth finally came out.''

___

On the Net:

Innocence Project, Centurion Ministries and others: www.truthinjustice.org/ips.htm

Death penalty: www.deathpenaltyinfo.org; www.prodeathpenalty.com

National District Attorneys Association: www.ndaa.org

National Commission on the Future of DNA Evidence: www.ojp.usdoj.gov/nij/dna/welcome.html