Free At Last

Free At Last

by Shirley Henderson, September 10, 2012

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Free At Last

DNA, social media, recanted testimony: all have played a role in exonerating about 2,000 Black men since 1989, many of whom are reclaiming their lives after being wrongly imprisoned. As they struggle to regain their footing in society, there is one thing that has proven to be just as valuable as obtaining freedom: redemption.

"I’ma cut you so you can’t ID me, bitch!”

Alan Newton heard himself saying the words, but his mind was unable to connect with the threat or with being told to step forward during a police lineup with five other men, individuals with physical characters similar to those of the suspect but are not actual suspects, known as fillers. Later, he was informed that a woman who had been raped and mutilated had identified him as her attacker.  The Kafkaesque ordeal began in 1984 and sent Newton journeying through the annals of the American judicial system. It unfolded with a knock on the door of his family’s home in Queens, N.Y.

“There were four police,” recalls Newton, speaking in a calm tone. “I knew it was serious. I was like, ‘What’s really going on?’ They told me I could go with them in cuffs or without cuffs. I went and didn’t come home until 22 years later.”  Before the NYPD-led confrontation at his parents’ home, before he repeated the scripted sentence and before his accuser had pointed him out, he had been a 22-year-old customer service rep with a good head for numbers, aspirations of becoming a bank manager, a love of the Knicks and plans to marry his fiancée. It all seemed lost to him when he was sentenced to 13 to 40 years in prison for rape and assault.

Although that should have been the end of a familiar story—

Black man incarcerated and the key thrown away—Newton maintained his innocence and began researching his case and filing paperwork through the courts for 10 years. His brother Tony helped fuel the cause by systematically making phone calls to The Innocence Project, a national nonprofit organization based in  the Benjamin Cardozo School of Law at Yeshiva University in New York City, that helps exonerate convicted prisoners, primarily via DNA evidence.  The organization receives hundreds of letters each month from inmates, according to Vanessa Potkin, a senior staff attorney.

“As soon as I read the transcript, I knew something was wrong,” says Potkin. “His innocence claim was so strong. One problem was the inability to locate evidence from an old case. I was really pessimistic because the rape kit was missing. I didn’t want him to get his hopes up … because the NYPD couldn’t find the evidence. But we couldn’t, in good faith, close out his case without trying.”
In 1989, the dawn of DNA ushered into courtrooms definitive proof that was equivalent to the finger of God reaching from the heavens and pointing out the guilty party. Indeed, DNA may be a godsend, especially when you look at how incarceration rates disproportionately impact men of color.

According to The Innocence Project, more than 75 percent of convictions with which it is involved are overturned due to DNA evidence. Other reasons for wrongful convictions include perjury or false accusations (51 percent), mistaken eyewitness identification (43 percent) and official misconduct (42 percent), based on a report by the National Registry of Exonerations, which has listed about 900 cases since 1989. One in three Black men will likely be sent to prison, usually while in his 20s. According to the Department of Education, African-American students are arrested far more than their White classmates. African-American youth have higher rates of juvenile incarceration, according to the Sentencing Project, which reports that 58 percent of them are sent to adult prisons.
In Newton’s case, the rape victim’s jeans were recovered and tested but yielded no DNA; however, no one was more surprised than Potkin when in 2005 she got a call stating the rape kit had been located in a central storage warehouse in Queens, where it had been misfiled in a mountain of biological evidence.

“It was quite amazing,” she recalls. “It was utter shock. I called Al and told him, ‘We found the rape kit.’ He immediately said, ‘I’m coming home.’”

Newton was released from prison based on DNA evidence from the recovered rape kit in 2006.  He was awarded $18.5 million by a federal jury, which he still has not received and continues to fight for on the grounds that the police acted in bad faith. States vary in the way they store evidence. In New York City, the Innocence Project found a “no evidence, no records” rate in 59 percent of the cases; by comparison, in Dallas and Houston—the largest cities in Texas, the state listed as third among the top 10 for most exonerations—no record of disposition could be found in just 14 percent of the cases.

“Initially, they never tested [the rape kit],” says Newton, 51, who currently works as a research associate for the City University of New York Black Male Initiative and makes $25,000 a year. “They knew I was innocent, and they didn’t want to turn it over.”

After gaining his freedom, Newton, who now lives in Brooklyn, got his bachelor’s degree in 2008. A newlywed with a 7-month-old son, Eli, he sees the filing error as a blessing.
“Thank God [the kit] was misfiled. There is no law to say that police have to keep evidence on file for a certain period of time, and sometimes authorities will trash old evidence. If [it had] been thrown out, I wouldn’t be free.”

Erroneous eyewitness testimony is the leading cause of wrongful convictions, according to experts. Elizabeth F. Loftus, Ph.D., a cognitive psychologist and expert on the human memory and professor at University of California, Irvine, agrees that while misidentification is common, it becomes more problematic when it crosses racial lines. “It’s a little bit worse when people [of a different race] try to ID Black people,” says Loftus, who wrote Witness for the Defense and has testified in hundreds of cases, including that of  serial murderer Ted Bundy. She was also consulted in the O.J. Simpson and the Rodney King cases.

“The memory is malleable,” she says. “It doesn’t work like a video recorder. It gets distorted and contaminated, like any other evidence you gather from the scene of a crime.”
One of the most memorable cases of eyewitness misidentification is that of Ronald Cotton. His story began, like Newton’s, in 1984 and at his mother’s house where police had shown up looking for him. Cotton, 22, borrowed his neighbor’s car and turned himself in.

He was questioned in the rape of Jennifer Thompson, a White college student who was attacked inside her apartment in Burlington, N.C. She gave police a description of the man she believed to be her attacker. Another woman who had been raped on the same night as Thompson gave a vaguer description of an African-American male in his 20s and carrying a knife. Thompson picked suspect No. 5—Cotton—in a police lineup; the other rape victim identified one of the lineup fillers; years later, the second victim accused Cotton of being her rapist as well.

Sometime thereafter, an inmate named Bobby Poole bragged about having committed both crimes. Poole and Cotton did bear a resemblance to both each other and to the composite sketch police had made from Thompson’s description. Poole didn’t confess to both rapes until DNA testing of the evidence recovered from the second victim proved he was the perpetrator.
Cotton, 50, now a free man, currently lives in Mevane, N.C. He spent 10 years in prison. On a scorching day with the sun hitting his face, he talks about how he survived the nightmare of being behind bars, all the while knowing he was innocent.

“Prison was miserable,” he says in a mellow Southern drawl. “I had to keep myself strong. I had to deal with life the best I could. I went to school and filed court motions. I started writing to legal organizations. Still, I had to keep strong.”

After his release, he was compensated $110,000 by the state. He was extended two job offers. Ironically, he began working at the same lab company that performed the DNA test in his case, which is where he also met his wife, Robbin. They have a daughter, Raven, 14.

He also agreed to meet with Thompson, the woman who helped put him behind bars.

 “I was able to face her without wanting to hurt her,” says Cotton who is getting around well after recovering from a stroke last year. “We were both victims.”

Thompson, who is married with 22-year-old triplets, agrees. Several things about Cotton impressed her when she met him: “His immediate forgiveness, his compassion and his grace. I expected anger, judgment, condemnation.”

The two collaborated on a book titled Picking Cotton and have become advocates for changing eyewitness laws and better police investigation practices, such as having states institute double-blind lineups, in which neither the presiding police nor the eyewitness knows who the suspect is.

“Ron and I made a huge difference in eyewitness identification reform,” she says. “We have been able to put a human face on what happens in a failed and flawed system and what that looks like through the eyes of the victims.”

Another reason for wrongful convictions is false testimony, which is what stopped Brian Banks, a 16-year old star middle linebacker for Long Beach Polytechnic High School in California in his tracks. In 2002, he was accused of raping a childhood friend on school grounds. Instead of being able to pursue his dream of playing football, his attorney talked him into accepting a plea bargain, she said because he would get 41 years to life, and no one would believe a “big Black teenager.” He was tried as an adult and given six years.  He served a total of five years and two months.
After his release from prison, his accuser contacted him on Facebook suggesting they “let bygones be bygones”; she later admitted that she lied about his raping her. The California Innocence

Project stepped in, and Banks was exonerated this summer after his release from prison.
The experience has taught him a few things.

“I learned that mistakes are made,” says Banks, who spent an additional five years on parole wearing a GPS ankle monitor. “I don’t know if the right type of investigation was done. It takes a real human being to admit to making a mistake. I also learned that it’s never too late to right a wrong, no matter what the experience. It’s not the experience; it’s how you deal with the experience. I learned so much about myself, [including] how to have patience. I didn’t waste time in prison. I read, studied and grew as a person.”

His case received so much media attention that the Seattle Seahawks have agreed to hold a tryout for Banks, now 28; the Washington Redskins, Miami Dolphins and Kansas City Chiefs are also interested. Before he was exonerated, Banks couldn’t find a job; now he  trains every day to be in the NFL and works with three different trainers.

“I’ve always kept my faith in God,” he says. “I think it was all for a bigger purpose. The experience is beyond just me; it affects so many people.”

Though their criminal records are expunged, there is one thing exonerees can never get back: time lost behind bars. In many instances, assimilating back into society isn’t easy, especially for individuals who were in prison for 10 or more years and are re-entering an unfamiliar society without relevant job skills or even knowing how to operate a smart phone.

“These people are not criminals,” says Rob Warden, executive director of the Center on Wrongful Convictions at the Northwestern University School of Law in Chicago. “They have almost no serious criminal backgrounds. In the case of Andre Davis, he has a 32-year gap in his résumé.” Warden says that in only one of the numerous cases he’s seen did the exoneree end up breaking the law after being released from prison.  

Davis stood trial in 1981 for the rape and murder of 3-year-old Brianna Stickle, who disappeared from the front yard of her home in Rantoul, Ill., about 110 miles from Chicago. Davis, 19 at the time, was arrested, questioned and later convicted of the crime. He is the longest-serving DNA exoneree in Illinois, having spent 31 years, 10 months and 29 days in prison. He was released from Tamms Correctional Center, a maximum security prison, which, according to its Web site, houses “the most disruptive, violent and problematic offenders.”

Newton feels that he has at least part of the solution for Davis and other exonorees who are re-entering society. It involves developing a nonprofit, Advocates for Transformation and Exoneree Rights (AFTER), to help them readjust to the lives they left behind years ago.

“I would help vanguard the pitfalls and the things that they will face. Who better to be the voice and start up the organization and get it running?” asks Newton. “I would advocate for more reforms. Twenty years is too long for an innocent person to be behind bars. And what about the guys whose evidence can’t be located? That’s what keeps me passionate. That’s what gets my blood boiling.”   
 

 
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