Editorial for Tuesday — September 09, 2003

• Finding the innocent


Finding the innocent

The release of Lonnie Erby after 17 years of wrongful imprisonment teaches two important lessons: Prosecutors should support DNA testing in close cases, and Missouri should compensate people locked up for crimes they did not commit.

Circuit Attorney Jennifer Joyce, whose opposition to testing Mr. Erby delayed his exoneration, says she has learned from the case. “I have a sticker on my desk from James Russell Lowell,” she said. “‘Only the foolish and the dead never change their minds.'”

Mr. Erby asked for testing within a few years of the three 1986 rape convictions that sent him to prison for 115 years. Ms. Joyce didn’t think his cases met the state legal standard that calls for testing when there is a “reasonable probability” of exonerating a prisoner. There was biological evidence in two of Mr. Erby’s convictions, but not the third. Ms. Joyce argued that Mr. Erby’s conviction for that rape would remain even if he were cleared of the other two. So why waste the $1,500 to $2,500 in lab costs required for each test? And, more importantly, why retraumatize the victims?

On the surface, Ms. Joyce’s reasoning made sense. But it worked an injustice on Mr. Erby. When Barry Sheck’s Innocence Project finally won a court ruling ordering the test, the DNA showed that another man had been responsible for the two rapes where there was material to test. Ms. Joyce then realized what she probably should have recognized from the beginning: The third conviction, without biological evidence, was undermined because the three assaults were thought to be the work of a single serial rapist.

“What this case has shown me,” she said, “is that there is a possibility that even if there are multiple rape convictions, it is possible that DNA testing could change the complexion of the cases.”

More wrongful convictions are likely to be discovered. Ms. Joyce and the Innocence Project are supporting the testing of George Allen, who has long protested his conviction for the brutal 1982 murder of Mary Bell, a court reporter. In addition, Ms. Joyce has law students reviewing 1,400 St. Louis city rape, murder and assault convictions before 1994, when DNA testing became common.

Meanwhile, Ms. Joyce thinks the Erby case gives her a good chance of getting the Legislature to pass a bill to compensate people exonerated by DNA testing, as Illinois and 19 other states do. Under the bill, which is supported by House Speaker Catherine Hanaway, R-Warson Woods, the state would pay those exonerated 120 percent of the federal poverty level for each year they spent in prison, and provide training, education or therapy.

There are two problems with the bill: It doesn’t provide enough money, and it wouldn’t apply retroactively. Iowa pays up to $25,000 per year and Alabama about $50,000, compared to the $11,230 that Ms. Joyce’s bill would provide. Ms. Joyce says she would support a higher level of compensation if the Legislature agreed. But she says the state constitution doesn’t permit a right to be extended retroactively; the Legislature should see if there is a way around that.

In the meantime, a private group, Life After Exoneration, (http://www.exonerated.org) helps those like Mr. Erby and Mr. Johnson. Both men deserve more than their freedom. They deserve a fair shot at a new life.

St. Louis Post-Dispatch.

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