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"Failing the DNA Test," Michael Blanding and Lindsay Markel, November 20, 2011, The Boston Globe Magazine

WBUR's Radio Boston hosts talk with Schuster Senior Fellow Michael Blanding about DNA testing for prisoners in Massachusetts

WGBH's Phillip Martin discusses the proposed Mass. DNA access law: Part 1 | Part 2

How do wrongful convictions occur?

Journalists' guide: How you can localize the Troy Davis story in your state

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Sam Silverman

At his home in Lexington, Sam Silverman displays his 2002 Justice Thurgood Marshall award from CPCS for his work on Angel Hernandez’ case. "The award is for someone who has done something exceptional in the cause of even-handed justice," Brownlow Speer told reporters. Speer, the chief appellate lawyer for the Committee for Public Counsel Services, had nominated Silverman.

Exonerated by DNA:
  Massachusetts wrongful
  convictions overturned 



Angel Hernandez

On August 15, 2001, Angel Hernandez was freed after nearly 14 years in a Massachusetts prison for a crime that DNA testing proved he did not commit. Photograph by Mark M. Murray of the Springfield Union News.

Angel Hernandez

Angel Hernandez started asking for DNA tests in 1990, three years after his initial arrest for a Chicopee sexual assault. It was not until December 2000—ten years later—that a judge finally ordered the test that proved his innocence. Part of the reason it took so long? Hernandez was told that the evidence was no longer available back in 1990, just two years after his conviction. 

On December 9, 1987, a nursing student was attacked in her car. The victim, who was white, told police that a Hispanic man held a knife to her back and forced her to perform fellatio on him. A short time later (within 45 minutes of the attack according to police documents, Hernandez's lawyer believes the window of time was much smaller and because of that, Hernandez couldn’t have been in both places) Chicopee police picked up Hernandez, who met the general description of the assailant, and asked if he would go to the crime scene for an identification. He consented.

The young woman told police that she wasn’t sure that Hernandez, the only man the police showed her as a possible suspect, was her attacker, and asked to hear him speak. According to Hernandez's lawyer Sam Silverman, after she heard his Spanish accent, she identified him as the man who assaulted her. 

While eyewitness identifications have been found to be imperfect, experts say cross-racial identifications are especially fraught with error. Seventy-five percent of the 280 men and women exonerated through DNA tests were identified by mistaken witnesses—and cross racial identifications were involved in nearly half of those eyewitness misidentifications.1 

But based on the testimony of the victim, and the fact that Hernandez was included in the suspect pool through early blood typing (the lab technician testified that 11% of all Latino men were included in the pool, too) he was convicted of aggravated rape and assorted other charges in 1988 and sentenced to 12-18 years in prison. 

Soon after, Hernandez asked his appeals lawyer to request DNA testing. In a letter to the prosecutor, Hernandez’s attorney wrote on June 13, 1990: 

“In the Commonwealth’s casd [sic] against Mr. Hernandez, two crucial bits of evidence were: 1) a hair sample from the victim [redacted] whereon her assailant had deposited semen; and 2) the victim’s coat, which had semen stains on the left shoulder. These items [were tested and it was] found that whoever had deposited them was a type O secretor, PGM subtuype 1+ [sic]. This matches Mr. Hernandez’s blood type. Nonetheless, he staunchly continues to deny that he was the assailant. He believes that, if this evidence has been preserved, the new DNA testing technology can prove his innocence.”

Hernandez was ultimately right—DNA tests would exonerate him, but he’d have to wait another decade in prison to prove it. That’s because Diane Dillon, the Hampden County prosecutor handling the case, responded that the court clerks didn’t have the evidence, and neither did the police. She wrote: “I think it’s safe to conclude that it is no longer available at this late date.” Even before his automatic appeals were done, Hernandez was told his evidence was gone. Hernandez later filed a motion for testing on his own, without a lawyer, in 1991. It was denied.  

Eventually, Hernandez contacted the Committee for Public Counsel Services (CPCS), which handles indigent defense in Massachusetts. That’s how attorney Sam Silverman got involved. He was sitting on the CPCS post-conviction screening panel, and after reviewing the case, he thought that Hernandez deserved “another shot.” For Silverman, much of the police work and police statements didn’t add up.  

Silverman especially questioned the disputed amount of time between the attack and when police approached Hernandez. CPCS assigned Silverman to the case in 1996, and on June 1, 1998, he filed yet another motion to inspect the evidence from the trial—the same evidence the prosecutor said didn’t exist in 1990. But Silverman knew the evidence was still available. In fact, he had seen it in the Hampden Superior Court evidence room. Eight months later, on February 2, 1999, a judge denied the motion. Silverman appealed, and finally on December 6, 2000, more than a decade after Hernandez was told that the evidence was “no longer available”, an appeals court ordered the test.  

Hernandez was fortunate to locate the evidence from his case, but according to experts, in many cases testing can’t be done because the evidence can’t be found or was already destroyed.2 In fact, in a review of their cases from 2004 to 2008, the Innocence Project in New York found that its attorneys had to close nearly a quarter of their cases because evidence was unavailable.

After three months of back and forth with prosecutor Dillon about the way to do the testing Silverman says William Bennett, then-Hampden County District Attorney called him in March 2001. Bennett said he was taking over the case and wanted to expedite the tests. The samples were sent to the lab, and on August 15, 2001, the results came back: Angel Hernandez was innocent. Silverman says he raced to Hampden Superior Court House to file the paperwork to get Hernandez released from prison. Hernandez, by then 36, had served nearly 13 years for the attack.  

The court allowed Hernandez’s Rule 30 motion for new trial, which had been pending since the early nineties. District Attorney Bennett apologized to Hernandez in an official statement, and filed a motion saying his office would not prosecute. 

Sam Silverman and Angel Hernandez
A laughing Atty. Sam Silverman walks with Angel Hernandez on August 15, 2001, the day of Hernandez's exoneration. After nearly 14 years in Massachusetts prisons for a crime he did not commit, DNA tests proved Hernandez was innocent. 

The Springfield Union News ran a story, “DNA frees convict: Man served 13 years for rape” reporting that Hernandez had been up for parole a few years earlier, but the parole board wouldn’t approve his release, because Hernandez, saying he was innocent, refused to admit guilt and express personal remorse for the crime.

“Oh, what a feeling of satisfaction!” Silverman said, of walking down the courthouse steps with his client. Today, his computer screensaver includes the photo taken of that very moment. 



From the interview files:

In an October 19 interview, William Bennett, the Hampden District Attorney who worked with Sam Silverman to expedite testing for Hernandez, addressed the proposed Massachusetts DNA access bill. Here are edited excerpts from the interview:

“I think the legislation would be good. It would be a statement of policy. It would be consistent with the practice of most judges already. But I think it would be a good statement of public policy for the Commonwealth.

Q: Why is that important?

“Well, you mentioned yourself, we’re only one of two states that don’t have it. And I think to make it the policy of the Commonwealth that it will be available to defendants in appropriate circumstances—post-conviction testing only enhances public confidence and trust in the reliability of the system. So, yes, I think that should be the policy.”

—Lindsay Markel, November 20, 2011

NOTES

[1] Brandon Garrett, "Convicting the Innocent," 2011, p. 73.
[2] Garrett, "Convicting the Innocent," p. 226. 

News articles about Angel Hernandez's case

“Six Suing State for Years Spent Wrongly in Prison,” Janette Neuwahl, February 18, 2005, The Boston Globe.

“A study in contrasts; 'Last Chance DNA' examines testing that frees some—but not all—inmates,” Pamela Sacks, May 14 2002, Telegram and Gazette. 

“DNA evidence potent Demand high; so are costs,” Christ Echegaray, August 26, 2001, Telegram and Gazette.

“Freed man celebrates release,” Marla Goldberg, August 17, 2001, The Union News. 

“DNA Frees Convict: Man served 13 years for rape,” Marla Goldberg, August 16, 2001, The Union News. 

Last page update: November 17, 2011


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