For obvious reasons, defense lawyers and prosecuting attorneys don't collaborate very often. The former want to prove their clients' innocence while the latter's primary interest is in convicting criminals. The spirit of cooperation, however, is at the heart of a new $1.4 million federal grant recently secured by members of the New Orleans criminal justice system. Funds will pay for an overdue inventory of materials from the city's evidence facilities, as well as DNA testing on evidence from closed homicide and rape cases in which defendants have been convicted and are serving time in prison.
"The majority of this effort is going to be with the goal of exonerating people, who the evidence will show have been wrongly convicted," says Orleans Parish District Attorney Leon Cannizzaro. When new materials are discovered for a particular investigation, defense lawyers and assistant district attorneys will screen the case to determine if DNA testing would prove innocence. DNA testing, which involves taking biological materials — such as hair, blood, saliva or skin — from a crime scene and analyzing it to determine its unique DNA markers, is considered the gold standard for proving a suspect's guilt or innocence.
The National Institute of Justice, an agency within the U.S. Department of Justice, is funding the 18-month program, dubbed "The Orleans Parish Post-Conviction DNA Testing Project," and will start this coming January. Grant monies will flow through the Louisiana attorney general's office, which hopes the project will become a pilot program for other jurisdictions in the state. Only states were eligible to apply for the grant, so while the AG's office is the financial conduit, the ideas behind the program, as well as writing the grant itself, are the work of a local organization, ASPIRES (Accountability, Strategic Planning and Integration of Evidence Systems).
ASPIRES was formed in March 2007 by representatives from the city's criminal justice system, including the police department, the DA's office, criminal court, Clerk of Criminal Court's office and defense counsel, as well as the Innocence Project New Orleans, an organization concerned with freeing people who have been wrongfully imprisoned, and New Orleans Police and Justice Foundation. Although some of the group's members often oppose one another in court, there is a common goal, says Emily Maw, director of the Innocence Project.
"We've come together for a specific purpose, which is, our evidence facilities need to be better," Maw says. "They need to work better, have better policies in place and better equipment, and that's not really antithetical to anyone's interests."
Clerk of Criminal Court Arthur Morrell is in charge of storing evidence for Orleans Parish criminal cases that have gone to trial or are in trial. As far as he knows, there has never been a complete inventory of the criminal court's evidence storage areas. There is a considerable backlog of evidence ("We have evidence that has been there for 70, 80 years," Morrell says) and his office has started purging items that no longer need to be stored: cases that are more than five years old, have gone through the appeals process and do not involve a murder or rape. He says with police assistance, they are about to dispose of 30,000 damaged and unidentifiable guns from evidence storage, but he adds that his efforts have been limited and the grant will make a difference.
"Because right now we can't spare anyone," Morrell says. "By hiring people to do this, they can concentrate just on this, and we can move it out quicker."
Disposing of old materials isn't the only issue the clerk's office faces. Cannizzaro says there have been ongoing holdups with transferring materials from the New Orleans Police Department's evidence and property room to the clerk of court, and that has made prosecution difficult. He says he has met with Morrell to resolve the problem and is confident that the procedure will improve. Even with this hindrance, the clerk of court facilities are much improved from what Morrell inherited from his predecessor, Kimberly Williamson Butler, in May 2006.
As it did with so many things in New Orleans, the 2005 levee failures and resulting flood transformed an obstacle into a crisis. Both the clerk of court's and the NOPD's facilities sat underwater for days, and it has never been ascertained exactly how much evidence was lost. Some materials were temporarily housed elsewhere and other items, such as paper documents, were freeze-dried and scanned into a computer database for later use. When it became clear the task of reorganizing the office and the damaged evidence facilities was too much for Butler, the state Supreme Court appointed Judge Edwin Lombard, a former clerk of criminal court, to supervise evidence remediation. Morrell says by the time he replaced Butler — who spent three days in jail for contempt of court for refusing to appear before the criminal court to relinquish some of her duties — the office was in disarray.
"It was a mess," Morrell says. "When the former clerk left, we had intended to have a meeting with her with my transition team. That never took place."
Morrell's first order of business was to prepare for the reopening of the criminal courthouse, which took place only a month later, in June 2006. It was impossible to deal with damaged evidence or older materials because, as he says, "When the judges wanted to start up again, we needed to have the evidence for those cases ready."
Further complicating matters, the NOPD was storing some evidence, but it wasn't doing a very good job safeguarding it. In July 2009, the State Legislative Auditor Steve Theriot issued a report, blasting the NOPD for not effectively keeping track of materials in its evidence and property room and losing more than $200,000 from the facility.
If successful, this new project should prevent, or at least create a paper trail, for any losses or theft of evidence. It provides the clerk of court with three contract employees whose task will be going through the facilities room by room, cataloging evidence, and entering it into new integrated software, which will allow access by the courts, police and defense and prosecuting attorneys. A similar process, although not as vast in scope, will take place at the NOPD facility. New Orleans Police and Justice Foundation is serving as the grant facilitator, and will hire a project director to oversee the operation.
Although one of the main goals is to inventory all of the appropriate evidence in city storage, close attention will be paid to biological evidence from any rape or homicide cases. As these materials are found, the project director will consult the DA's office and Innocence Project to find out the status of the affected cases. If a case is closed and the conviction is final, it will be added to a list for the DA's office and Innocence Project to review.
"Obviously, we hope that in the process, we'll find evidence in cases where, for example, people have written to the Innocence Project asking for help, or cases where they've written to other places asking for help, and have wanted DNA testing in their case," Maw says.
She adds that the vast majority of criminal cases do not involve DNA evidence, but a high proportion of rape and murder investigations do. If the DA's office (which will have three attorneys assigned to the project) and the Innocence Project staff decide DNA testing is warranted, the material will be sent to a crime lab. According to Maw, as of May 2009, there were 1,571 people from Orleans Parish residing in Louisiana prisons that have been convicted of rape or homicide. Since DNA technology was introduced in the 1980s, the Innocence Project reports that nationally 245 people have been exonerated because of DNA testing.
With NOPD making more arrests and with more cases being accepted for prosecution, Cannizzaro says his office will need more evidence from the clerk's office, and that this project should help facilitate those requirements. He doesn't rule out the possibility that project staff could find new evidence that aids in prosecuting suspects, but he doubts that will happen. He doesn't recall an Orleans DA ever working with the Innocence Project on such a proposal, and though this kind of work may differ from the public's perception of a criminal prosecutor, Cannizzaro insists it's part of his job.
"The prosecutor is charged with the responsibility of doing justice, and that is our main goal and people have to keep that in mind," Cannizzaro says. "It is not our goal to go out and try to convict everybody."