Unlocking the evidence

No one disputes that the crime occurred.

On Dec. 17, 1981, a 17-year-old woman in the Atlantic coast town of Cocoa returned to her mobile home on a weekday afternoon. She put her packages down and turned to see a man hiding behind a door. For the next 45 minutes he never spoke a word. He had a knife, which she said he used to remove the clothes from her body. With slow, deliberate slices that broke her skin 65 times, he first cut off her tank top, then her jeans, then her panties. He raped her twice. After he left, she called her boyfriend. Then she called the police. She said her attacker was a blond man, about 6-foot-1, and weighed about 200 pounds.

Weeks later in a convenience store parking lot, the young woman pointed to a man with blond hair and said to a friend, "That looks like the man who raped me."

She was pointing at Wilton Dedge.

Brevard County Sheriff's deputies initially arrested Dedge's older brother, but released him within a few hours. The next day, Dedge, accompanied by his father, turned himself in. Dedge says he remembers that he wasn't particularly worried at the time. "I knew I was innocent, so I knew it would get cleared up. My parents are law-abiding people. I was raised to believe in the legal system. I knew it would get straightened out."

Eighteen years later, Wilton Dedge is known by the Florida Department of Corrections as inmate No. 086126. Now age 38, he has lived behind bars in a succession of prisons since being convicted of the rape when he was 20 years old and sentenced to life in jail. Throughout that time he has maintained his innocence. For the past three years, he has been making formal requests seeking permission to prove it. He believes DNA testing will do that.

There is reason for his belief.

Last year an independent panel appointed by U.S. Attorney General Janet Reno made a startling assertion: The increasing number of people convicted of violent crimes and later exonerated by DNA testing put the credibility of the justice system in doubt. "The strong presumption that verdicts are correct has been weakened," the panel concluded. It called for changes requiring prosecutors to allow inmates access to DNA testing in cases where there's a reasonable chance that those who were convicted could be cleared.

But that suggestion is not yet a requirement. And some prosecutors in Florida are resisting the change.

Robert Holmes, the chief assistant state attorney who prosecuted Dedge, has consistently refused to review Dedge's conviction. He cites a state procedural rule that prevents reopening cases if they're more than two years old. "Rule are rules," he says. "It would be a nightmare if old cases were reopened. There is a need for finality."

Yet what of the chance, however slight, that the outcome might be proven wrong? Who is living the nightmare then?

In the legal system's best-case scenario, a second look would merely validate the original conviction: that someone suspected of wrongdoing, sentenced to jail and locked up was, in fact, guilty beyond a reasonable doubt.

Of course, it's not the endorsement they fear, but rather the opposite: proof that the prosecution, and the evidence that backed it up, was sloppy, misleading and inaccurate. In other words, that it was the police and prosecutor -- not the person charged and convicted -- who was wrong. And no prosecutor is eager to volunteer themselves for that.

Jerry Blair, the incoming president of the Florida Prosecutors Association, says locking up an innocent person is his "worst nightmare." "If there seems to be a reasonable probability of innocence, I'll do the [DNA] test," says Blair, a prosecutor in Suwanee County in North Florida. "But our prosecutors are elected in their districts, and they use independent judgments." Holmes' elected boss, Brevard County State's Attorney Norman Wolfinger, has declined to intercede, allowing Holmes' refusal to stand.

However, against the backdrop of questionable convictions across the country, the courts last week finally stepped in: Circuit Judge Bruce Jocobus on June 22 ordered that DNA tests be done on three critical pieces of evidence stored in the Dedge case -- evidence that Dedge himself had to go to court to keep from being destroyed.

Why it took so long is just as important as whether the new testing at last sets Wilton Dedge free.

Since its introduction in U.S. courts in 1987, DNA testing has cleared 68 inmates -- nine of them on death row. Like Dedge's case. most of those convictions occurred before DNA testing was available.

Last month, an alarmed former Florida Supreme Court Chief Justice Gerald Kogan launched an effort to examine that situation. His National Committee to Prevent Wrongful Executions, a panel that includes former FBI director William Sessions, reflects the growing interest in using DNA to determine guilt or innocence even after a conviction. The momentum grew with the subsequent release this month of a Columbia University Law School study that found two out of three death-penalty cases reviewed over a 22-year period are being overturned on appeal.

Kogan eyes the Columbia study with approval -- and some reservations. "The study validates that the system is broken," he says. "Unfortunately, people assume from the report that we are catching all our mistakes, and we're not."

Some prosecutors resist opening old cases because an overturned verdict is an admission of a serious mistake, he says. Prosecutor Blair agrees. "What do you say to someone that's been locked up?" says Blair. "That's a terrible thing."

It happens in Florida with regularity. Florida leads the country in the number of death-penalty exonerations, with 19, according to the Washington, D.C.-based Death Penalty Information Center.

Even so, Kogan sees that fact as a positive; it proves the state is doing a better job than others in proceeding with retrials. He blames the majority of overturned capital convictions on two things: inexperienced, poorly paid public defenders and a state law that allows juries to reach a death-penalty decision by a simple majority vote. Other states require a unanimous or super-majority decision.

Blair counters that overturned verdicts are not necessarily the result of wrongdoing, but rather occur because evidence and witness' memories fade over time. "It's hard to try a case years after the fact," he says.

Doing so, however, could one day be required by law. U.S. Sen. Patrick Leahy of Vermont has introduced a bill in Congress that would penalize states by withholding funding from those that refuse to administer the tests. The bill also would allow for $100,000 per year in restitution to wrongfully convicted inmates.

Both Kogan and Blair say they would support such legislation. But it comes too late to be of any help to Wilton Dedge.

Dedge was born and grew up in Cocoa. His father recently retired from a job as a supervisor for Florida Power & Light; his mother is putting in her 31st year working in the Brevard County Property Appraiser's Office. Mary Dedge recalls a son who was happy and easy-going, though he dropped out of high school in his junior year and was living at home at the time of his arrest; he had been arrested once before on burglary charges as a juvenile, but those charges were dropped.

Speaking in a quiet Southern drawl, Wilton Dedge says he is used to being in prison, and indeed the thought of getting out makes him a little nervous. "I really can't believe it yet," he says of the court order in his favor. "I've been asking for so long."

In interviews prior to the recent ruling, he said he had grown conditioned to the daily routines, the boredom, even the outbreaks of violence, but knew that he should be free. "It's like being burned real bad," he says. "You can put ice on it and you can forget about it for a second or two. But it's going to come back just as soon as you pull the ice off. It's every day; I can't explain it to you. Every little thing reminds you of the outside and you keep asking, ‘Why?' and ‘How long?' It never stops."

His parents regularly make the four-hour round trip to Cross City Correctional Institution on visiting days. His brother, too, sometimes visits, and brings his children. But seeing family members takes a toll, and some visits last only a few minutes. "Every time I see my brother's kids, I think, 'I should have kids right now. I should have a house, settle down.' ... I love his kids so much, but sometimes it makes me sad to see them 'cause I'm thinking, 'This should be me.'"

There was no physical evidence tying Dedge to the crime. Police did, however, secure one sperm sample and two hair samples from the scene, although DNA testing on such evidence would not become widely available for five more years. Those samples have remained stored in an evidence room at the Brevard County Courthouse, from which they will be retrieved for testing after attorneys on both sides of the Dedge case agree on a lab. A private lab could do the tests quickly -- within a week or so. Using the county's lab could take as long as a year.

Credit for pushing Dedge's case forward goes to some high-powered help.

After seeing attorney Barry Scheck on the prison television, Dedge wrote to him and asked for help. Scheck is the founder of the Innocence Project, a post-conviction relief clinic at Cardozo Law School in New York City. Established in 1992, the Innocence Project fights to get DNA testing done in cases where results might prove an inmate innocent.

Scheck currently represents 32 Florida inmates, including three men on death row. After pursuing such cases across the country, Scheck says, "Florida and Louisiana are the worst states in the nation. They've been the most uncooperative in allowing DNA tests to prove people innocent."

The appeal for him of Dedge's case was strong.

The victim had told police her attacker was 6 feet tall and weighed 200 pounds. She then picked Dedge out of a lineup, even though he stands 5-feet, 6-inches tall and weighed 130 pounds at the time. The jury didn't believe him when he said he was alone at the motorcycle shop where he worked when the crime was committed, and found him guilty. After testimony from a jailhouse snitch and scent evidence from an improperly trained police dog were both ruled inadmissible, a second trial was ordered. Again, it was his word against hers; again, the jury issued a guilty verdict. He was sentenced to life in prison.

Scheck says innocent people are found guilty with startling frequency. He says eyewitnesses often make mistakes, making DNA tests the most conclusive way to prove guilt or innocence. "It's an obstruction of justice to refuse the testing," he says.

But the backlog is indeed overwhelming; nationwide 180,000 old and unexamined rape kits, like the one in the Dedge case, currently sit on police-department shelves, each one containing evidence such as fingernail scrapings, vials of blood, and swabs of sperm and saliva samples that can provide the only tangible link between the victim and the attacker.

When it made its way into criminal courts 13 years ago, law-enforcement agencies hailed DNA testing as the greatest forensic tool since fingerprinting.

And DNA evidence is changing the way people are prosecuted. Most states, including Florida, now have DNA data banks that collect and keep information on sex offenders. Several states are thinking about removing the statute of limitations on certain crimes now that conclusive DNA tests are available. In addition, state and national data banks currently contain more than 220,000 DNA-based profiles of criminals and suspects.

In Florida, state Sen. Charlie Bronson, a Republican from Indian Harbour Beach, sponsored a bill this past session to expand Florida's DNA data bank -- it currently catalogs only those who are convicted of murder and sex crimes -- to also include burglaries. The reason: Law enforcement statistics show more than 52 percent of people convicted of the first two have been previously convicted of the third. Gov. Jeb Bush has since signed the measure into law.

The American Civil Liberties Union opposed expanding the information bank. ACLU lobbyist Larry Spalding says the government is dangerously close to testing the DNA on all newborn infants. "I'm concerned about this progression and slowly giving away our right to privacy," he says. "DNA can also tell us if a person has epilepsy, or if they are going to be gay or lesbian, or if we will be likely to develop certain diseases. Are we going to trust government to maintain information without sharing it?"

Forensic scientist Lisa Forman, who served as deputy director on the U.S. Attorney General's study commission on which Scheck also served, argues that if DNA evidence can be used to convict, it should also be used to exonerate -- regardless of any time limits. "This is the most dispassionate type of evidence," she says. "The science involved is blind to the adversary system."

Currently, only New York and Illinois have laws permitting prisoners to obtain post-conviction DNA testing. (Illinois recently placed a moratorium on executions, following the exoneration of several death-row inmates there.) Some courts in other states also have ruled that time restrictions should not apply.

But Brevard prosecutor Robert Holmes says Dedge's effort to overturn his verdict isn't fair to the victim and her family. "There has to be finality in a case. You have to have closure for the victim. It's not fair to keep re-opening it. The victim has a child now who is 16 years old."

As for the new court ruling, he says: "The samples of hair and semen may be too old and too small to be tested. Even if the tests show no trace of Dedge's DNA, that doesn't necessarily mean he is innocent. A guilty man may walk free." In a defense that sounds increasingly desperate, the prosecutor adds: "This victim was sexually active. The sperm could belong to her partner. Dedge may not have left anything to test."

"How does he know?" demands Scheck. "What is he speculating about? Why don't we have scientists look at it and we'll see exactly what we have. But as Mr. Holmes [has continued] to obstruct justice, and that's exactly what this man is doing ... opposing DNA tests, he knows that bacteria is eating away at the precious DNA in those slides so that nothing can be done. That's what I think is really obstruction of justice."

He adds: "I just don't understand the recalcitrance of some of these prosecutors. You ought to welcome with open arms a test that proves him guilty or innocent. Think about it. We can take the results from the tests, put it in the data bank, and find the real rapist."

Holmes counters that Dedge should have acted sooner. DNA testing was in use for 10 years before Dedge made his first request. "He knew about DNA testing and didn't do anything," says Holmes. "He sat on his hands."

Scheck says Dedge has not exactly been sitting on his hands. As soon as DNA testing became available, Dedge fought to prevent the evidence taken from the victim from being destroyed. Since then he made two unsuccessful requests for the tests. Most recently he filed in federal court under a civil-rights statute, claiming he was entitled to evidence that might free him. Judges who turned down his requests cited Florida's two-year time limit on appeals.

Indeed, Scheck says Dedge has been extremely persistent when most inmates have few resources. "It is unreasonable to think an inmate, most of whom no longer have an attorney, is going have the means to wage a defense while he is prison," says Scheck.

Moreover, as for the need for finality in any case where DNA testing could erase all doubt of guilt or innocence, "No victim would want the wrong may put away," says former Chief Justice Kogan.

Dedge is a model prisoner. In 18 years, he's had just one disciplinary reprimand. Quiet, sullen, he says he keeps to himself in order to stay out of trouble. At his own request, he spent most of his first year in prison in solitary confinement. He was afraid of being attacked by other inmates.

The Department of Corrections moves him often. He's been in 13 institutions. He plays some sports. He's earned his GED, a year of college credits, and signs up for whatever vocational classes are available. But there's one class he refuses to take -- a sex-offender treatment program. To take it, an inmate must admit his guilt. Dedge says he won't do it, even though it was made clear to him from the start that to do so could have qualified him for an earlier parole.

"That would be a lie," he says. "They've taken everything from me. All I've got left is my dignity. Why do you think I'm going through all this? I don't want people looking at me like I'm a rapist. On the outside, I couldn't stand it."

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