Wednesday, July 12, 2000

Convict thinks DNA test will set him free

By Dan Horn
The Cincinnati Enquirer

        Every few years, someone claims science will finally end the strange saga of Joseph Elliott.

(Glenn Hartong photo)
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        Police thought it was over in 1994 when a new computer database linked his fingerprints to a rape in Cincinnati.

        Prosecutors thought they sealed the case a year later when a lab test connected his blood type to the crime.

        And now, after five years in prison, Mr. Elliott thinks the results of a new DNA test will set him free.

        No matter what happens next, the Cincinnati man's case is a testament to how technology is changing the way police, lawyers and courts do business.

        It also is a reminder that even the most advanced technology can't take the mystery out of the criminal justice system.

        “Everyone wants to believe the science is infalli ble,” said William Gallagher, one of Mr. Elliott's attorneys. “But it usually can't answer all the questions.”

        There are exceptions, of course. A convicted rapist from Louisville was freed this month with the same kind of DNA testing that has exonerated prisoners from Florida to Illinois to Louisiana.

        In Ohio, the new science has inspired State Sen. Mark Mallory to begin drafting legislation that would improve inmate access to DNA tests.

        “We've got to have a system that allows this technology to be used,” said Mr. Mallory, D-Cincinnati.

        But as Mr. Elliott's case has shown, guilt or innocence is rarely decided in a laboratory.

        Fingerprints are compelling evidence, but only if police know when they were left behind. DNA tests are incredibly accurate, but they mean little if samples are mishandled or lost.

        “There are dangers in relying too much on this kind of evidence,” said Richard Lempert, a University of Michigan lawyer who has written extensively about DNA. “There's still going to be ambiguity.”

The Elliott case
        Mr. Elliott, who is serving a 15- to 50-year sentence, is a case in point.

        The investigation began on June 28, 1992, after someone broke into the victim's Cincinnati home, raped her in the living room and fled when her startled husband rushed downstairs.

        The victim was unable to identify her attacker because her face had been covered with a pillow. There were no other witnesses.

        Right away, detectives turned to forensic science for help. And right away, its limitations were obvious.

        They found a half-dozen unidentified fingerprints — not unusual in most homes — but could not match any to possible suspects. They found bloodstains on the victim's nightshirt but weren't sure who left them.

        Perhaps the most important evidence — semen recovered from the victim — was never tested because the sample was lost at the hospital.

        “Part of the problem,” said Derek Gustafson, Mr. Elliott's trial attorney, “is that so many strange things happened in this case.”

        For two years, as they struggled to solve the crime, police could not have agreed more.

        They finally got a break when a new computer database went online in 1994. The Automated Fingerprint Information System con tained thousands of prints from people with criminal records.

        Mr. Elliott, with a prior arrest for misdemeanor assault, was in the database. Police matched him to prints found on a door frame and on a wine bottle found at the crime scene.

        But Mr. Gustafson said even this technology was not foolproof.

        He said two other people were deemed better matches to the computer's prints, but those suspects were later ruled out by a fingerprint examiner.

        “Joe was not the No. 1 suspect” identified by the computer, Mr. Gustafson said. “Then the examiner looks at them and says, "It's Joe.'”

        Prosecutor Mike Allen said fingerprint examiners are reliable, highly trained experts who routinely review the data produced by the computer database.

        He said the fingerprints alone are strong enough to support Mr. Elliott's conviction.

        “It is overwhelming evidence,” Mr. Allen said. “Fingerprints don't lie.”

        For his part, Mr. Elliott said he could have touched the bottle in the victim's home while working as a bag boy at Kroger where she bought it. He could have left his prints on the victim's door frame when he looked at the house when it was for sale months earlier, he said.

        Mr. Allen calls those explanations “nonsensical.”

Limits of science
        Prosecutors got another boost from science when the coroner's lab tested the bloodstains.

        Although DNA ruled out Mr. Elliott as the source of two stains, a third stain on the nightshirt appeared to contain a mix of blood. It included type AB blood — the same as Mr. Elliott's.

        Prosecutors noted at the trial that only 4 percent of the population has type AB blood.

        But again, the science had limits. The stain was too small for DNA tests at the time to determine if the blood really belonged to Mr. Elliott.

        “It deprived him of some evidence,” Mr. Gustafson said.

        After his conviction, DNA technology improved, and Mr. Elliott sought a new test on the third stain. Prosecutors fought the move and lost.

        “If they're so sure he's guilty, what were they afraid of?” Mr. Gallagher said.

        Mr. Allen, who was not prosecutor at the time, said the prosecution's case is solid with or without the blood evidence.

        Based on the new DNA test, they may have to do without. A report from Genelex labs in Seattle concluded last month that the blood from the third stain matched the blood on the other stains, meaning Mr. Elliott was not the source.

        Most likely, the lab concluded, the primary source was the victim.

        Mr. Elliott, now 28, could not be reached for comment. He has asked his lawyers to seek a new trial, but has not yet filed a formal request. “This is my life I'm fighting to regain,” he wrote them in a recent letter.

        Mr. Allen said the new test doesn't mean Mr. Elliott deserves another trial.

        He said the other evidence remains solid, including what prosecutors consider a weak alibi: Mr. Elliott worked that night at a T-shirt shop in Cincinnati but was alone the entire time.

        “If there's legitimate evidence for a new trial, there should be a new trial,” Mr. Allen said. “But you don't have that in this case.”

        Mr. Gallagher conceded the DNA test does not exonerate his client. But he said prosecutors used the blood evidence against him five years ago, and now that evidence is in dispute.

        “We know it's not him who deposited that fluid,” Mr. Gallagher said. “The prosecution is going to have to explain that.”

        Some say the issues raised by Mr. Elliott's case will become more common as technology continues to advance, changing the legal landscape along the way.

        “As new technologies are introduced, you're always going to see this kind of thing,” said Coroner Carl Parrott, whose lab now does DNA testing. “This kind of technology will have a profound effect.”

        In Mr. Elliott's case, though, the science may never be able to satisfy everyone.

        “Technology can't answer the $64,000 question,” Mr. Gustafson said. “Is he the one who did it?”



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