MILWAUKEE (AP) – A review of 2,100 Milwaukee County homicide convictions from the past two decades did not find a single case in which DNA testing would be warranted to ensure that an innocent person wasn’t sent to prison, the Milwaukee County District Attorney’s office said Friday.
The review began last June after three people charged or convicted in homicides were exonerated when DNA testing linked the victims in their cases to a serial killer. The findings of the review shocked attorneys for the Wisconsin Innocence Project and for one of the exonerated men.
“While we were encouraged by and commended by the DA’s office for undertaking this initiative and for their stated commitment to identifying individuals wrongly convicted, we were really surprised and disappointed by the conclusion that no cases warrant DNA testing,” the project’s co-director Keith Findley said.
District Attorney John Chisholm said those who conducted the review – a senior assistant district attorney, three interns, a paralegal and multiple victim advocates – whittled it down by first looking at cases in which convicts maintained their innocence and where there was evidence that could be genetically tested.
“We’ve invested an enormous amount of time and energy into following this protocol and we are just confident to the best of our ability that there are no … cases that would prompt us to seek additional DNA testing,” Chisholm said.
On the second round, Assistant District Attorney Steven Licata examined the complete files of 486 cases, from which 60 were forwarded for additional review by Assistant District Attorney Norman Gahn, a DNA expert, and other members of the committee.
The review was “predicated on the legal presumption in the validity of the past conviction, not a search for doubt,” he said. Special attention was given to cases where someone maintained innocence or sought help with the court or another entity like the Innocence Project, according to the review’s findings.Click here to subscribe to Wisconsin Law Journal today
Attorney Jon Loevy, whose client William Avery is one of the three exonerated men, said the district attorney’s office’s decision not to review DNA evidence in a single case is “impossible to understand.” Avery served five years in prison for the strangling death of Maryetta Griffin before being released last year.
“Why is the prosecutor’s office so afraid of DNA testing? What harm is done by testing evidence that could yield a definitive scientific truth about guilt or innocence? In my opinion, they are afraid of that truth,” he said.
The discovery that three men had been charged, and two of them convicted, in killings later linked to serial killer Walter Ellis through DNA testing was embarrassing for Milwaukee County prosecutors and unnerving for the community, and it prompted the review of whether genetic testing might be warranted in other homicide cases since 1992.
Ellis pleaded no contest to killing seven women over a 21-year period and was sentenced in February to life in prison. Three other slayings have been linked to him through DNA, including Griffin’s.
Chaunte Ott spent 13 years in prison for the 1995 slaying of the 16-year-old runaway Jessica Payne before DNA testing linked her death to Ellis. Like Avery, Ott is suing the Milwaukee police department in federal court. He says officers coerced two people to give false testimony and failed to intervene when post-conviction DNA testing showed he was innocent.
Another man was charged but acquitted in a third slaying, that of Carron Kilpatrick in 1994, that was later linked to Ellis.
Chisholm said three cases are still active but he couldn’t say whether Ellis would be charged with those.
Findley said the project suggested 12 cases to prosecutors early on but never gave them a full accounting of people convicted of homicides in Milwaukee County who had reached out to them.
The office was responsive and open to answering questions for the first few months, but the project has “been in the dark” since January, Findley said.
Findley said at least seven cases met the legal criteria for post-conviction DNA testing, including that the person has maintained innocence, physical evidence exists that had not been tested previously or favorable testing results would have likely caused the person not to be prosecuted or convicted if the results been known.
Chisholm said they reviewed all the cases they requested in a later round of reviews but that none had met their criteria for DNA testing. He said that doesn’t mean the project can’t do additional testing if they believe it is merited.
Chisholm suggested the Innocence Project could pursue further cases through the normal post-conviction process. Findley said he plans to do that for at least seven cases to seek DNA testing.
“It is consistent with what we have seen nationwide and that is it’s very difficult to ask people who have invested in obtaining convictions to recognize the potential exculpatory value of additional evidence,” Findley said.