What the Judge Ate for Breakfast

The law clinic at the Washburn University filed a petition today asking Gov. Sam Brownback to grant clemency for Ronnie Rhodes in his 1981 murder conviction.

Washburn is asking Brownback to review the case, after a Prison Review Board denied Rhodes parole last summer. The law clinic points to evidence that “strongly suggests that Mr. Rhodes was wrongfully convicted of the murder of Cleother Burrell,” the petition says.

Rhodes has maintained his innocence for 30 years, and his case caught the attention of students studying wrongful convictions at Washburn, after DNA evidence that once existed in his case couldn’t be located.

“Consequently, the failsafe of executive clemency is the only remedy available for the miscarriage of justice in this case,” adjunct professor Rebecca Woodman and legal intern Michael Hinkin wrote in the petition.

The petition asks Brownback either to grant full clemency for Rhodes’ conviction, or to commute his sentence to the time he’s already served. The pleading first goes to the Prison Review Board, which will then send a report to Brownback.

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Destroying evidence in Ronnie Rhodes‘ case might have been against Wichita Police Department policy — if it had one.

“We have no policy in our very thick policy and procedural manual that states how long evidence will be kept,” said Tom Stolz, deputy chief of the WPD investigations division. “We go into great detail about how to collect it and where it goes and how to preserve it. But we have no policy that talks about how long you have to keep it.”

The Sedgwick County Sheriff’s office, meanwhile, has a detailed written policy for retaining evidence, based on a state law requiring a court order.

Such discrepancies between agencies illustrate why 33 states have passed laws mandating how long evidence should be kept.

Kansas isn’t one of them.

“Preservation laws seek to provide uniform guidance to all agencies charged with the retention of biological evidence, said Rebecca Brown, senior policy advocate for state affairs at The Innocence Project in New York.

Stolz said Wichita police follow “unwritten rules” on how long to keep evidience, which may have changed over time.

Rhodes went to prison in 1981 for Wichita murder he maintains he didn’t commit. His case came to light again after he asked for DNA testing of evidence, and it couldn’t be located. DNA testing wasn’t available during his original trial.

Students at the Washburn School of Law have since questioned the strength of the evidence that convicted Rhodes, the adequacy of his legal representation and the reasoning behind appeal and parole decisions that have kept him incarcerated.

While working with the law class, the Eagle learned most — if not all — of the physical evidence in the stabbing death of Cleother Burrell had been destroyed, despite the apparent absence of a required court order

No one currently at the WPD worked on the Rhodes case, and Stolz said the department has kept evidence from even older convictions.

“We’ve got homicide stuff from the ‘50s,’ Stolz said. “We’ve kept that essentially forever.”

While Stolz doesn’t know what the practice was in the 1980s, he said evidence in some cases was destroyed after the prosecution had been completed and the appeals exhausted.

“We had no clue at that time that DNA was going to become as viable as it has for evidence,” Stolz said. “So now … maybe we should keep stuff longer, because you never know in 20 years what the science is going to be. And once you destroy it, it’s gone forever.”

In 1989, two U.S. men were exonerated by DNA evidence. By 1992, the genetic testing of old biological material had shown 10 men were innocent of the crimes that sent them to prison.

“In the early 1990s, … people in prison, 20, 25, 30 years, we’re resurrecting DNA evidence and their appeal becomes viable. So now, we keep everything.”

Stolz said he’s assigned Lt. Ken Landwehr, head of the homicide unit, to study what other cities do and to come up with a policy for how long to retain evidence. Stoltz said the department is considering keeping biological evidence in murder cases for the life of the defendant.

More than 250 people have been found not guilty through DNA evidence, after being locked up, on average more than a dozen years. Criminologists say they have no way of knowing how many others remain in prison for crimes they didn’t commit, because evidence no longer exists.

Brandon Garrett, a University of Virginia law professor who has studied the reasons behind wrongful convictions says its not uncommon to see policies differ between law enforcement agencies.

The Sedgwick County Sheriff’s office has “a considerable written policy” on keeping and destroying evidence, said Capt. Terry Parham.

“We don’t destroy evidence unless we have a valid court order that has been reviewed by both the county attorney’s office and the district attorneys office,” said Parham, commander of the sheriff’s support services division.

That does not include evidence in homicide cases, which Parham said is never destroyed.

Ann Swegle, deputy district attorney for Sedgwick County, said that office supports keeping evidence in serious cases, such as rapes and murders, for “as long as they have evidentiary value, even after appeals are exhausted.”

Swegle said most of the time, she’s found Wichita police practices effective.

“They almost always keep evidence until they have a proper court order to destroy it,” she said.

No court orders have turned up in concerning purging of evidence in the Rhodes case.

Stolz said he doesn’t know why Rhodes’ evidence was destroyed.

“Why would you ever in a homicide case destroy anything? It’s a good question,” he said.

“We surely don’t want to convict wrong people,” Stolz added. “Nobody is in the business of doing that.”

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Ronnie Rhodes is one more than a dozen inmates who have filed motions in Sedgwick County District Court since 2001, when Kansas passed a law allowing judges to order DNA testing in old cases.

The Eagle found that prosecutors across the state don’t track such motions, and one case where the request appeared lost for years.

Requests by inmates often are summarily denied on the basis of objections by the prosecution, frequently without the inmate having access to legal counsel.

“Counsel is not required (by law), sadly,” said Michael Whalen, a Wichita attorney who has represented several defendants on appeal.

“The obvious problem is most inmates need representation to see if there is a basis for their request or to at least advocate for their position,” Whalen added.

The Eagle asked for lists of cases where such requests were made from district attorneys offices in Sedgwick, Johnson, Wyandotte and Shawnee Counties. All said they had no method of keeping track of those motions.

The Sedgwick County District Attorney’s office provided a list of five cases in September 2009. A year later, it had identified 18 cases since 2001 where inmates made motions for DNA testing.

Johnson, Wyandotte and Shawnee Counties could not provide a list, saying they had no way to keep track of those cases.

“It’s important that prosecutors take those requests seriously,” said Brandon Garrett, a University of Virginia law professor who has studied cases where inmates have been exonerated through DNA testing. “It would obviously look terrible for that office if there’s a case that they lost track of and it turns out it was an innocent person, once the DNA results came back in.”

A list of such cases are available in Dallas County, Texas, said District Attorney Craig Watkins, who has established a Convictions Integrity Unit to examine claims of innocence.

“We need to give DA’s the courage to do this,” Watkins said of looking into old cases. “You’ll get credibility with the public. You’re freeing innocent people. Then at the end of the day, when you do pop a guy and give him a life sentence, it will mean more because you’re doing both things.”

The Sedgwick County District Attorney’s office lost track of one case for nearly three years.

Luke Reed, 56, is serving a life sentence on a 1982 rape and kidnapping conviction. Reed filed a motion for DNA testing on June 8, 2004.

After turning down Reed’s request for an attorney, Judge Greg Waller ordered the district attorney’s office to see whether there was any DNA evidence.

Prosecutors filed no further actions, and the case languished until Jan. 29, 2007, when Reed filed a motion of habeas corpus _ a civil action that challenges an illegal sentence. He attached Waller’s order as an exhibit.

The Sedgwick County District Attorney’s office never responded.

“I cannot tell why there isn’t a formal response to the court order,” said Ann Swegle, deputy district attorney.

On his habeas case, Reed received legal representation from Whalen and the Innocence Project of New York. A search then began to see whether any DNA evidence existed.

By then, Whalen said, no evidence had been preserved.

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