By Christopher anderson
WASHINGTON – Bernard Webster walked free this month after spending 20 years in prison for a rape he did not commit, the first man to benefit from a new law allowing post-conviction reviews of DNA evidence in murders and rapes.
News of his release sparked a flurry of calls to the state Public Defenders Office from friends and families of convicts who wanted their own DNA testing.
But public defenders and prosecutors alike say that cases like Webster’s will be rare, because of the lack of available evidence and the complexity of reopening such cases.
Cynthia Boersma, an attorney with the State Public Defenders office, noted that the 2001 law applies only to murderers and rapists, and that even in those cases, it will do no good if there is no evidence left to test.
“Many, many cases don’t have DNA evidence,” Boersma said.
Ann Brobst of the Baltimore County State’s Attorney’s office agreed that there is a general misconception about the availability of DNA evidence among the public, which gets its understanding of police forensic science from TV dramas like “CSI.” Every jury wants to see DNA evidence, even in small cases, Brobst said.
“Their expectations in terms of scientific DNA evidence are much higher,” she said. “Jurors are TV-educated. They don’t seem to realize that DNA is limited. They think that `CSI’ is on the scene at every crime scene.”
In many of the cases where DNA evidence does exist, Brobst said, it may have already been tested, since the state has tested for DNA evidence as a matter of policy since 1987.
That policy makes it more likely that whatever exonerating evidence is out there will be at least 15 years old. And finding evidence after 15 years or more is not easy, Brobst and others said, because evidence is not stored in one, central location.
While evidence from rape cases is typically held at the hospital where the victim was examined, Brobst said, evidence in murder cases is held at the medical examiner’s office. Other physical evidence, like clothing, furniture, weapons and cars, are kept in police property rooms.
“It’s just taken an incredible amount of time to get all of the relevant parties to actually release the evidence,” in the Webster case, said his attorney, Michelle Nethercott. She heads the public defender’s Innocence Project, an office established after passage of the 2001 DNA law.
The review of DNA evidence in Webster’s case was more than two years in the making, attorneys said, in part because it was difficult to locate and test the evidence and because it was the first case to be adjudicated under the 2001 statute.
Boersma said finding DNA evidence that exonerated Webster took a combination of detective work and luck.
Police had already destroyed the evidence they had, but Webster’s lawyers found documents referring to a Greater Baltimore Medical Center pathology department report.
The paper trail eventually led to a GBMC lab where there were still three slides with forensic evidence taken from the victim shortly after she was raped. Those slides eventually produced the evidence that cleared Webster of the crime.
Determining the correct procedural process under the new law was also difficult, Webster’s lawyers found. Defense lawyers, prosecutors, the police, hospital officials and the judge all had to “figure it out as they went along,” Boersma said.
Boersma also said that the DNA review statute contains several ambiguities that will continue to delay post-conviction reviews and appeals if they are not addressed by lawmakers.
“There are a handful of issues raised by the statute,” Boersma said. “One is that the statute provides for testing by a lab on a list maintained by the state’s attorney general. Currently there are only two labs on the list.”
Webster’s lawyers argued in court that they should be able to use any government-certified lab in the country, because the DNA tests that needed to be conducted were so complex.
“They wanted a lab whose results they had the most confidence in,” Boersma said.
The law also requires the state to preserve evidence in its possession, but does not specifically say county and city police agencies must do the same.
In spite of these difficulties, Nethercott and Boersma said they continue to get calls from inmates seeking help.
The Department of Public Safety and Correction Services said Maryland has 6,249 convicted murderers and rapists behind bars. So far, the office has received 41 requests for post-conviction DNA reviews, and the final results in two or three of those cases will be announced soon, Boersma said.
But with just three lawyers on working on the Innocence Project, the office is facing a growing backlog of cases.
“We just don’t have enough staff to handle all of the cases at one time,” Boersma said.
