with Beth-Ann Kozlovich
HONOLULU—Imagine going to jail for 20 years for a crime you did not commit. Imagine that the evidence that sent you there was so sketchy, that your first two trials ended in hung juries and only in the third, were you convicted.
For you, that might be just a nightmare. For one Maui man convicted of rape, it was a reality. But after 20 years served in “mainland” jails, Alvin Jardine III, now 41, is out on bail pending a fourth trail, because of the efforts of the Hawaii Innocence Project and the current sensitivity of DNA testing.
Taught as an upper division course at the University of Hawaii law school, and affiliated with the national Innocence Project, the Hawaii chapter heavily relies on the fifteen students every semester who meet for the two-hour-per-week class during the school year.
The cases they discuss are actual cases and everyone works pro bono. Professor Virginia Hench, who heads the Hawaii Innocence Project, says the Jardine case was one of the first applications for help the group received and that the organization is frequently contacted by family members or those who have lost contact with their family or friends serving time out-of-state. An applicant must fill out a multipage screening form the Project uses to determine merit and the applicant must meet several criteria.
“The person must be claiming that they are actually innocent,” says Hench. “For our purposes, that means they are not the person who did the crime. Either they did not do the crime or there was no crime. They must be factually innocent and currently incarcerated.”
In the case of Alvin Jardine III, never once in 20 years did he waver from his statement that he was innocent, according to Brook Hart, one of Mr. Jardine’s legal team. Even when offered two opportunities to have his sentence substantially commuted by entering a sex offender program, Mr. Jardine declined because admitting to the crime is first required.
Hench says she initially heard about the Jardine case through one of her former students who had filled motion on Jardine’s behalf to preserve evidence. It was a matter of luck that the piece of evidence used to show Jardine’s disconnection from the crime was a tablecloth the rapist had sat on two decades ago, leaving sweat and blood behind. The bodily fluids containing the DNA were found to be inconclusive and could not be positively linked to Mr. Jardin. The inconclusive evidence was in large part why the first two juries could not reach a decision.
By the third trial, in which the jury also had trouble reaching agreement, Hart says the judge instructed them to go back and try again. To a non-legal ear, three times the charm to get a conviction may sound excessive but Hart says it’s “more common than we’d like to accept. The government usually gets at least two bites at the apple when the case ends in a hung jury. The defendant is more often than not retried, but whether it happens three times? Yes, that frequently happens. Four times is unusual.”
Without evidence changing from trial one to trial three, other factors must be at work. According to Hart, “one thing we know about these events is that after witnesses have said what they have to say the first time and then another time and then a third time, it gets to be a learned event and witnesses can be more compelling.” They mostly do it in good faith, and in the earnest belief that law enforcement has the right person who committed the crime.
But sometimes, and more often than we usually know, the eyewitness is wrong.
“When a person is in the context of being in a victim of a crime, their focus is on several different things,” says Hart. If the perpetrator has a weapon, the focus usually goes to the weapon rather than the features of the perpetrator. There are statistics that if there is a cross racial identification, as in the Jardine case, we’re even less likely to remember who it was that perpetrated the crime.”
From the perspective of the national Innocence Project, “the leading cause of wrongful conviction based on the 266 DNA exonerations nationwide is eyewitness misidentification,” says Hench. “It’s counterintuitive, but an eyewitness can be absolutely certain and be absolutely wrong.”
Although most of us would like to believe otherwise, Hench says memory is tricky and that researchers have found our memories are not cameras. They are more like soft clay that takes an impression, but that impression can be distorted if not handled properly.
Hart says our impressionable memory also means we shouldn’t have law enforcement officers able to unwittingly give non-verbal clues about the information they are presenting to a victim. That’s why several states, including Massachusetts, North Carolina, Wisconsin, and, especially, New Jersey have revamped identification procedures—making sure the officer showing the picture lineup does not know which picture is of the accused.
Given the state of DNA testing 20 years ago, the evidence that carried the day was the victim’s voice, not the crime lab’s report. Though Hench says the spin put on the inconclusive DNA that was presented to the jury included the statement “that Mr. Jardine could not be ruled out.” Had the DNA report reflected current technology and standards, geneticist and UH School of Medicine professor David Haymer says that statement could never have been made.
“This case was clearly not Mr. Jardine’s fluid,” Haymer says. “Mr. Jardine was excluded as a contributor. That was as clear as it could be. There were no statements about likelihood, probability, or matching. None of that applies. It was not his biological material. It was categorical.”
To contextualize the advances in technology, Haymer says that only in the last two to three years has the current level of DNA testing been achieved.
“Twenty years ago, the testing methodology was very crude,” Haymer explains. “There were virtually no quality controls on materials used. Anyone could purchase them and, literally in their garage, they could set up a DNA testing lab. There were no standards for interpreting the results. Now, the people who do the mechanics of the testing are very rigorously certified and constantly have to be retested to be re-certified. The technology is a different as it could be.”
That’s good news for Mr. Jardine. For the rest of us, Haymer, Hench, and Hart agree that there needs to be public understanding that sometimes the wrong person is convicted and that it happens more than we’d like.
“It really depends on what kind of a justice department we want to have,” Hart says. “If we catch somebody who has committed several crimes and we think they have committed this particular crime, some may think, so what’s the harm in convicting them of this crime even if they didn’t do it because they’re a bad person anyway? That’s probably the first step to the tyranny our founding fathers hoped we would avoid.”
“We would convict people who did the crime on competent evidence on which a unanimous jury could agree,” Hart continues. “And we would not convict others. Not because others didn’t commit other crimes, but because we wanted our justice system to make sure that there was a minimum number of innocent people convicted. DNA can help us determine who was wrongly convicted and who properly convicted.”
Hench puts it succinctly: “No one [in the Innocence Project] who has been exonerated has been shown to have committed the crime for which they were exonerated. We should want the system to get it right.”
We should also come to grips with the fact that, if still alive, the real rapist in the Jardine case is still out there.