Many of those questions are now being raised in an open-records lawsuit against Colorado Attorney General Cynthia Coffman and Denver District Attorney Mitch Morrissey — a complaint that contends that their offices are stonewalling access to records concerning the post-conviction reviews. The suit was filed yesterday by Boulder attorney Elizabeth Wang on behalf of the Exoneration Project, a Chicago-based nonprofit dedicated to exposing wrongful prosecutions.
"We are very concerned about some of the criteria used by the JRP in denying access to testing for individuals claiming their innocence," Wang says. "Over and over, we have seen post-conviction DNA testing tell a story quite different from the one long believed to be true."
Starting in 2010, the Justice Review Project was an unusual collaboration by the state and the Denver DA's office to review cases related to thousands of Colorado prisoners serving time for violent crimes to see if DNA testing could possibly prove their innocence. But over a four-year period, the team of reviewers recommended DNA testing in only one instance — the case of Robert Dewey, who spent sixteen years in prison for a sexual assault and murder that he didn't commit. As the lawsuit's complaint notes, though, DNA exoneration of Dewey occurred only because Dewey's defense attorney "brought the case to the JRP's attention and informed them that new DNA testing showed that blood found on Mr. Dewey's shirt did not belong to the victim."
Dewey subsequently received close to $1.2 million from the state, the first wrongfully convicted defendant to be compensated under new legislation. Wang's suit contends that the JRP used several questionable criteria for not recommending DNA tests in other cases; for example, inmates were "disqualified" from further review if they "admitted involvement" at some point in the case. But prisoners up for release often say things that they hope will get them an earlier parole, and 30 percent of DNA exonerees nationwide have at some point made false confessions.
"I don't think it's fair to look at what people said at their parole hearings decades later," Wang says. "You may realize that you're never going to get out of prison unless you show remorse, even if you're innocent."
In other cases, Wang adds, the prosecutors relied on dubious evidence or since-discredited expert testimony, such as an expert's matching of "tool marks" that would now be considered junk science, to decide that DNA testing was unwarranted. Instead, the JRP portrayed its findings of a single exoneration as "a validation that the Colorado criminal justice system is robust and serving the ends of justice."
But is it? Wang's efforts to get records related to how the team made its decisions have been thwarted by denials of access from both Coffman's and Morrissey's offices. But she points out that JRP's own stated objective to the grant-funders was to review 5,125 cases with the aim of finding 1 percent — fifty cases — in which post-conviction DNA testing was warranted.
"They expected that in 1 percent of the cases they would recommend testing," Wang says. "Even by their own reckoning, it's well below that. One is not fifty. They were finding any reason they could to deny testing."
Representatives of Coffman and Morrissey declined to comment on the litigation. "This will make it difficult to discuss the Justice Review Project in general and answer specific questions, as any comments now could be seen as commenting on a pending legal matter," says Lynn Kimbrough, communications director for Morrissey's office.