"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
- Post-conviction DNA testing in Massachusetts: "Failing the Test"
- Waiting for DNA: More about Massachusetts prisoners claiming innocence who are featured in the article
- Exonerated by DNA: Massachusetts wrongful convictions overturned
- Stephan Cowans<
- Background: A primer on the Massachusetts DNA access bill
- Underlying issue: No law requiring preservation of crime scene evidence
- Digging deeper: What do exonerations teach us about the criminal justice system?
- Non-DNA cases: What happens if there is no DNA to test?
How do wrongful convictions occur?
- Eyewitness misidentification
- Faulty forensics, or bad science
- False confessions
- Informants and "snitches"
- Bad lawyering or representation in court
- Misconduct by prosecutors or law enforcement
Exonerated by DNA:
Stephan Cowans with his cousin the day of his release in 2004, after five and a half years in Massachusetts prisons. DNA tests did not match Cowans's profile and he was exonerated and freed. Photograph by Wendy Maeda/Globe Staff.
Case summary, according to the Innocence Project:
On May 30, 1997, an officer of the Boston Police Department was shot twice with his own service weapon in the backyard of a house in Jamaica Plain following a short struggle with an unknown assailant. The assailant fired an additional shot at an individual who was standing in the window of a second floor bedroom. The assailant ran from the scene, leaving the baseball hat he was wearing. He forcibly entered a nearby home, where he stopped to drink from a glass of water. The assailant then fled, leaving both the gun and the sweatshirt he had been wearing.
The injured police officer later identified Stephan Cowans from a photo array and then from a live lineup. However, the family in the house where the assailant took a drink of water (leaving a fingerprint on the glass cup) did not identify him.
At trial, prosecutors also called a fingerprint expert who claimed that the recovered thumbprint on the glass matched Cowan’s left thumb print. Cowans was sentenced to 30 to 45 years in prison. A subsequent appeal reduced his sentence.
However, after he served more than five years, DNA tests on the sweatshirt showed he wasn’t the perpetrator, and the fingerprint analysis was shown to be faulty. Cowans walked out of prison in January 2004.
The Schuster Institute’s Assistant Director, Lindsay Markel, interviewed Aliza Kaplan, who as an attorney at the New England Innocence Project (NEIP), helped Cowans get the DNA tests that ultimately exonerated him. Kaplan, who also represented Dennis Maher who was exonerated in 2003, provides insight on the case from her position representing Cowans.
Below are edited excerpts from Kaplan’s October 6, 2011 interview
On how Stephan Cowans became a police suspect:
“What happened was Stephan was the guy who sold the fake Calvin Klein bags on the street, and he had some prior [convictions] but nothing violent. And when this event happened, when the shooting occurred, people went around, people were canvassing the neighborhood and people said go speak to Stephan because he knows everything that goes on in this neighborhood. He sees everything; he knows everybody. When they talked to him, they arrested him because he met the description [of the shooter].”
On deciding to take Cowans’ case:
“That case came to us at the New England Project.... We were examining the case and actually it didn’t look that good because there were fingerprints and it was a cop shooting and it was not your normal kind of single perpetrator rape kit, bread and butter [typical DNA case] of the early days.”
On believing her client:
“Really, you’re never sure. I went with his appeals lawyer to meet Stephan, and I just believed him. He was a really compelling guy, super smart.
“[On appeal Stephan’s sentence was reduced so I asked him straight out]: Your sentence was just significantly reduced so you could be out in 5 to7 years and if we go forward with this and you’re not telling the truth, you’re not getting out in 5 to 7 years. You’ll be here [for the duration of your original sentence]. He was so convincing, so passionate about his innocence, so we were like ‘what the heck, let’s see what we can do.’”
On the difficulties of getting DNA testing without a law specifying the procedures all parties should follow:
“In Stephan’s case the time period wasn’t even that long. The [Suffolk County] DA’s office eventually [allowed it, but] that battle, even though short, was brutal. It was brutal for us. It was brutal for them. It was brutal for the client. So many unknowns: Who’s going to pay for it? Where does it go? All of those things are so undefined [without a statute] which sometimes can work to your client’s benefit. That’s always possible, but sometimes it just drags the process on and makes it impossible to get testing at the best possible place [for the kind of evidence that needs to be tested].”
On getting access to the evidence:
“What we wanted in that case was the evidence first and foremost. It was all preserved. It was all there. It was really hard to convince the Suffolk DA to give it to us because of the fingerprint [which an analyst said definitively linked Cowans to the crime].
“So we filed an obscene motion…everything under the sun, and basically what our argument was, was: ’put the cup [with the thumbprint that supposedly linked Cowans to the crime] aside for now, give us the hat, give us the sweatshirt; let us do the testing anywhere…. We will pay for it; you don’t have to do anything. And if it doesn’t match him, we will worry about the cup. And we fought and fought and fought and eventually they gave us access.
It was the same thing [as Dennis Maher’s case]. It was fighting and fighting for something we should have a right to. We had really good arguments for why he could be innocent. He had an alibi and all these things and what it really came down to was: why couldn’t we have the evidence? You’re not paying, you’re not doing anything; it was just a battle. We eventually won the battle. We subjected it to testing. It was pretty clean cut; neither the hat nor the sweatshirt matched him, we had that and we went into court and said we have [these exclusionary DNA results, so now] we want to look at that glass. We want to test that glass cup, we want to see what’s going on with those fingerprints… and before the court ruled, the prosecutor agreed and they were doing their own testing on the side and there was saliva on the glass along with the fingerprints…eventually they came forward and said there was a problem with the fingerprint.
Stephan Cowans was finally exonerated on February 2, 2004. Tragically, he was found shot to death in his home in October 2007. According to the Innocence project, an investigation is continuing.
Resources for learning more
Fingerprints, or friction ridge analysis:
In 2009, the National Academies of Sciences (NAS) published a groundbreaking report on the state of forensic science, “Strengthening Forensic Science in the United States: A Path Forward.” In this report, some of the country’s foremost scientists called for a scientifically-based national agency separate from the Department of Justice to oversee standards for forensics, and concluded that “in some cases, substantive information and testimony based on faulty forensic science analyses may have contributed to wrongful convictions of innocent people.”
Fingerprint comparison, in particular, is not as foolproof as television might suggest. The study’s authors wrote, that fingerprinting methods had little basis in scientific method: “Although there is limited information about the accuracy and reliability of friction ridge analyses [fingerprinting], claims that these analyses have zero error rates are not scientifically plausible.”
Quoting a previous study of fingerprinting methodology, the report stated: “Their conclusion is unambiguous: ‘We have reviewed available scientific evidence of the validity of the ACE-V [fingerprinting] method and found none.’”
According to the Innocence Project, in about half of the cases overturned through DNA, convictions rested at least in part in faulty forensic evidence.
—Lindsay Markel, November 20, 2011
News articles about Stephan Cowans’ case
"Man freed in 1997 shooting of officer," Jonathan Saltzman and Mac Daniel, January 24, 2004, The Boston Globe.
"DNA accuracy puts traditional forensics on trial," David Dobbs, July 1, 2006, Popular Mechanics.
"Truth, justice--or the Boston way," David S. Bernstein, August 17, 2006, The Boston Phoenix.
"Man wrongly convicted in Boston police shooting found dead," David Abel, October 26, 2007, The Boston Globe.
"More than a few loose ends," David S. Bernstein, March 5, 2008, The Boston Phoenix.
"Framed?" David S. Bernstein, January 28, 2010, The Boston Phoenix.
Last page update: November 19, 2011
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