Dear Editors:

There is more than just a little bit of irony in your recent diatribe against the Innocence Network for its work in exonerating wrongly convicted individuals. Relying on your recent article in the Journal of the Institute for the Advancement of Criminal Justice (IACJ), you suggest that “contextual contamination” has infected the inquiry into wrongful convictions, leading innocence organizations, courts and the press to conclude erroneously that DNA testing has “exonerated” wrongly convicted people.

To make the point, you point to the Steven Avery case, among others, arguing that DNA did not exonerate him, and that in fact he might be guilty. The wild speculation about the possibility of Avery’s guilt, despite exculpatory DNA test results, itself betrays powerful “contextual contamination” that has apparently blinded you to the reality of what the evidence really shows. The fanciful hypotheses offered to support the possibility that Avery might be guilty reveal not only wild speculation, but what can only be deemed willful ignorance of the facts, and a gross insensitivity to the experience of the victim in that case, Penny Beerntsen.

To deal with the inconvenient fact that Beerntsen survived the attack and said that she saw and struggled with a single man—a man whom she had also seen for some time on the beach, standing alone, before the attack—you speculate that, maybe, when Beerntsen blacked out during the attack, Avery conjured up an accomplice who was nowhere around either before or after she blacked out who completed the sexual assault.  The real facts, if you had bothered to examine them, reveal something quite different. First, there was no semen at all in this case; this was an attempted murder and attempted sexual assault, with no ejaculation by anyone. The exculpatory DNA evidence was from a pubic hair found in Beerntsen’s pubic hair combings. Your speculation cannot even begin to explain why an invisible attacker would have joined Avery during the short time that Beerntsen was unconscious, and only leave his pubic hair on her without ejaculating.

You also complain that “DNA has never exonerated anyone,” because DNA is just one piece of evidence that must be considered in the context of the rest of the evidence at a trial.  But DNA evidence is the most conclusive evidence in these cases, and the Innocence Network never considers the DNA without considering the rest of the evidence. The first task of any member organization of the Innocence Network in evaluating a potential innocence case is to assess whether DNA tests might provide any meaningful information. The full evidentiary picture is always evaluated by the Innocence Network—and the courts—before declaring that the evidence exonerates anyone.

If you had bothered to examine the actual record in the Avery case, you would have realized that it was the entire evidentiary picture in that case that exonerated Avery, not just an abstract, free-standing DNA exclusion. The evidence in the case was built almost entirely on Beerntsen’s eyewitness identification—which you yourselves acknowledge is the leading cause of wrongful convictions. Avery was convicted even though he had 16 alibi witnesses who placed him elsewhere at the time of the crime.

Moreover, the DNA evidence did not just exclude Avery. You failed to mention, and may not have even known, that the DNA also produced a cold hit in the DNA databank to a man named Gregory Allen, who had no connection to Avery whatsoever. And to seal this exoneration, Allen fit this crime in every way. Allen matched the physical description of the attacker. Just two years earlier, Allen had been convicted of a very similar attempted assault, acting alone, on the very same beach where Beerntsen was attacked. Allen was in the community at the time of the offense, was the primary suspect in several recent sexual assaults involving a solo perpetrator, and was such a known threat to women that police were maintaining daily surveillance of him in the two weeks prior to this attack, checking on him up to 14 times a day. On the day Beerntsen was attacked, police were called away by other business and did not check on Allen. And several years later, Allen struck again, raping a woman in Green Bay, leading to his conviction and a 60-year sentence for that crime.

All of these facts explain why the prosecutor and the judge in the case agreed with the Wisconsin Innocence Project that Avery was in fact, actually innocent of that crime.

Contrary to the your assumptions, the Innocence Network is not hostile to scientific evidence, and has no agenda to undermine crime laboratories. Innocence organizations across this country routinely work collaboratively with crime laboratories and forensic scientists, relying not only on DNA, but other kinds of forensic evidence as well. Rather, the Innocence Network agrees with the National Academy of Sciences (NAS) that some forensic sciences lack sufficient validation and have been misused in some cases. And Network members agree with the NAS that forensic science evidence can and should be made better—through more research and validation—to ensure that the evidence we use in court, both to convict the guilty and exonerate the innocent, actually helps find the truth.

In your IACJ piece, you wrote that “intense desires to seek exonerations should be construed as a contextual bias that requires due caution to be exercised.” While the Innocence Network does indeed hope to exonerate people when they are innocent, it is not clear why you assume that the Innocence Network has no overriding commitment to the truth. Innocence Network members reject the vast majority of applicants for assistance, because they conclude that they have no viable claim of innocence, and they regularly advocate for reforms that will serve no objective except truth-finding.

Moreover, you must know that it is the courts, not the Innocence Network, that are the actual gatekeepers in the exoneration process, and they offer no reason to believe that courts have any “intense desires to seek exonerations.” In the end, the only conclusion that can be drawn from the your piece is that your ill-informed and factually absurd descriptions of the exonerations they discuss reflect little more than your own “intense desires” to deny the reality of exonerations—itself “a contextual bias that requires due caution to be exercised,” as you yourselves might put it.

Dear Editors:  Thank you for the Stochastics commentary by John Collins – a well done and intriguing perspective. The tricky part, is what to do in the meantime . . . the gray zone between “experience and training” and a quantitative/qualitative measure. We are in interesting times.

Thanks again.

Dear Editors:  I am not a Governor Perry backer. He has served long enough. But in this case he has not done anything wrong. As you pointed out his actions are legal. It is the bleeding heart anti death penalty group stirring the politics on this. To begin with the Forensic Science Commission itself is pure politics and is worthless. Craig Beyler probably writes reports to suit those that hire him. J.D. Chastain, retired state crime lab director. (33 yrs) 

Editorial Note: This message in response to our editorial covering the controversial execution of Todd Willingham was particularly direct and to the point:

Dear Editors: It is not correct to state that only Todd Willingham "knows" whether or not he set the fire. He is dead (that's the point), so he does not know anything.