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Over 100 Prisoners Exonerated Through DNA, Government Cuts Funding

Bruce Godschalk became a free man on February 14, 2002,after fifteen years of incarceration for a crime he refused to admit to. In May, 1987 he was convicted in Philadelphia for the rape of two women and indecent exposure of a third. Two of these women identified Godschalk, as their assailant. A fellow prisoner also reported that Godschalk admitted his guilt in these crimes to him. The prosecution brought further incriminating evidence against Godschalk when they revealed to the jury a taped confession to police. Godschalk was found guilty of the crimes.

Despite the confession, which he claimed was coerced, Godschalk maintained his innocence and asked for DNA testing. Montgomery County District Attorney Bruce L. Castor Jr. refused the request because of the taped confession.

The Innocence Project at the Benjamin N. Cardozo School of Law in New York City represented Godschalk in this case. In 1997, a U.S. District Court judge allowed the DNA testing. Godschalk was denied parole for not admitting to the crime. He kept maintaining his innocence even if it meant staying behind bars. Godschalk went on to say: "That was Detective Saville's confession, not mine, I was tricked. I was intimidated. He forced me to confess to it because he needed a confession for the conviction." See: Godschalk v. Montgomery County DA, 177 F.Supp. 2d 366 (EDPA 2001).

Godschalk was exonerated after District Attorney Bruce L. Castor dropped all charges. Castor went on to say: "This is one of those situations where I can't tell you what the truth is. As a prosecutor, I have to be sure. And we're not sure. It's frustrating because I think the evidence is compelling that he's guilty, and the evidence is compelling that he's innocent. I don't like uncertainty. We can't prove it beyond a reasonable doubt, so we let him go." Castor added, "I am not convinced that Bruce Godschalk was innocent. What I am convinced of is that he cannot be proven innocent beyond a reasonable doubt. And in this business, a tie goes to the defendant." Godschalk's only response to Castor's allegations: "He's insane."

DNA specialist Barry Scheck, who is a nationally known lawyer and a founder of the Innocence Project said, "You have to live or die by the science. The semen samples tell you whether he committed this crime or not, and it unequivocally told us he's innocent."

Belatedly recognizing the importance of DNA testing and the fact that most prisoners are indigent, the federal government appropriated $500,000 to allow DNA testing of prisoners who claimed they were innocent and could be exonerated as a result of such test. The pilot program was proposed during Janet Reno's term in the Clinton administration and was finalized under the current Attorney General John Ashcroft in August, 2001. The half-million dollar federal grant was to provide 250 prisoners with the necessary funds to re-examine their convictions through DNA testing. Defense lawyers believe that these tests could provide crucial evidence which would exonerate prisoners should be provided free of charge. In September 2001, the National Institute of Justice (NIJ) terminated the proposed pilot program, after complaints from state prosecutors alleging that the tests would clog the justice system with frivolous appeals. Sarah Hart, the director of the NIJ decided to divert these funds in the aftermath of the September 11th attacks for victim identification and other related work. Sources from the Justice Department said the NIJ played a minor part in identifying the genetic profiles of the casualties from the World Trade Center site.

An Indiana man, Larry Mayes was the 100th prisoner exonerated by DNA evidence. Resa Overhoudt was the law student volunteer who obtained the long-misplaced evidence kit that provided crucial evidence of the actual rapist's DNA, which did not match Mayes or his alleged accomplice. Criminal law professor Fran Hardy, at Indiana University-Indianapolis who observed this case said. "This one was a real eye-opener," after finding out that victim was hypnotized prior to identifying Mayes as the perpetrator of her assault. Professor Hardy went on to say. "It strongly suggests that single eyewitness identification cases should be problematic for all of us."

Barry Scheck of the Innocence Project says. "I've got 2,000 letters (from convicts) asking for testing that are still sitting in my office. The prosecution and conviction of the innocent is clearly not a small or isolated problem." He also believes that the criminal justice system needs to emphasize other tactics towards the wrongfully convicted where DNA testing cannot be used due to the lack of evidence.

In February 2002, Virginia decided to up the ante by building a DNA bank with samples of saliva from all felony arrests. These genetic samples would be used in past cases that have little or no leads towards a conviction. Virginia already surpasses every state in the union in the DNA banking field. They have accumulated the DNA from every prisoner in the state's system by swabbing saliva samples.

While mandatory DNA swabbing exploits arrestees' rights by invading their privacy, the Legislature went ahead and approved this plan, although in a different version. Mark R. Warner, Governor of Virginia has expressed his concerns at whether DNA evidence would be erased if a person gets exonerated, thus he was indecisive about whether to veto this bill or not. Jerry W. Kilgore, who is Virginia's Attorney General said. "This will help us solve cases much quicker and ensure public safety by making sure somebody's not released back into the general public who has committed a string of crimes." Kilgore who is a Republican, used mandatory DNA testing of all arrestees as a campaign tactic in the 2001 elections, which he won. Kilgore went on to say that taking DNA from 8,000 people arrested annually, would benefit both innocent and guilty with speedier justice proceedings.

Virginia's American Civil Liberties Union's executive director Kent Willis, said this plan was, "a dangerous step in the wrong direction. The next step under this logic would be to take DNA from all males between 18 and 22 years, because they're the people most likely to commit crime."

DNA specialist, defense lawyer, and co-founder of the Innocence Project Peter Neufeld, warns against this proposal of swabbing saliva from all felony arrest. He said that this would provide another tool to be misused by the police, "to find an excuse to arrest people just so you can get their biological specimen. As soon as you expand police power to do DNA beyond convicted felons and probable-cause situations, you are encouraging dragnetting based on race."

Prosecutor Joe Carico, of Wise County says. "DNA testing at arrest absolutely makes sense. We fingerprint people at arrest now." Carico went on to mention a particular unsolved murder case where the DNA from a piece of toilet paper was a genetic match with a convicted burglar. When Carico was asked about the possible abuse of genetic testing by the police, he said. "Any tool is prone to abuse, and if that happens we'll deal with it on a case-by-case basis."

Sources: Philadelphia Inquirer, USA Today, The New York Times

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Related legal case

Godschalk v. Montgomery Co DA


C.A. NO. 00-5925


177 F. Supp. 2d 366; 2001 U.S. Dist. LEXIS 15722

August 27, 2001, Decided

August 27, 2001, Filed; August 28, 2001, Entered

DISPOSITION: [**1] Motion of the plaintiff for summary judgment GRANTED. Judgment ENTERED in favor of the plaintiff and against the defendants.






OPINION: [*366]



AUGUST 27, 2001

The plaintiff brought this action under 42 U.S.C. § 1983 for access to biological evidence for DNA testing that is currently in the possession of the Office of the District Attorney of Montgomery County and which plaintiff contends can conclusively [*367] determine whether he is guilty of two rapes for which he was convicted in state court in May, 1987. Plaintiff requests that this court issue an injunction requiring the defendants to release the biological evidence for DNA testing. Presently before the court is the motion of the plaintiff for summary judgment. For the reasons which follow, the motion is granted.

Summary judgment is appropriate when there are no genuine issues as to any material facts. See Fed.R.Civ.P. 56(c). In such a case, a trial is unnecessary because a reasonable fact finder could not enter a judgment for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). [**2] We must construe all evidence and resolve all doubts raised by affidavits, depositions, answers to interrogatories, and admissions on file in favor of the non-moving party.

The material facts necessary for disposition of the plaintiff's motion are mainly taken from the state court record and are undisputed.

Plaintiff was charged with two rapes that occurred in 1986. A rape test kit examination of both victims, Elizabeth Bednar and Patricia Morrissey, proved positive for seminal residua. At trial, the Commonwealth relied on the identification testimony of one of the victims (the other victim could not make an identification) and a confession made by the plaintiff.

Following his conviction by a jury on both counts of rape as well as two counts of burglary, plaintiff was sentenced to a total term of imprisonment of 10 to 20 years. Plaintiff filed a post-trial motion, claiming, inter alia, that the trial court erred in not suppressing his confession. The motion was denied. Plaintiff appealed to the Superior Court of Pennsylvania again contending, inter alia, that the trial court had erred in not suppressing his confession. The Superior Court ruled that plaintiff's confession [**3] was voluntary and that the trial court properly refused to suppress his inculpatory statements. Commonwealth v. Godschalk, 389 Pa. Super. 648, 560 A.2d 826 (1989). Plaintiff's petition for allocatur was denied by the Pennsylvania Supreme Court on August 15, 1989. See Commonwealth v. Godschalk, 522 Pa. 623, 564 A.2d 915 (1989).

Almost six years later, plaintiff filed in the Court of Common Pleas of Montgomery County a Petition to Inspect and Test Evidence, seeking to have the Montgomery District Attorney's Office turn over seminal residue samples obtained from the two rape victims in order to conduct DNA tests. The petition was denied by the Montgomery Court of Common Pleas and by the Superior Court. Commonwealth v. Godschalk, 451 Pa. Super. 425, 679 A.2d 1295 (1996).

In denying the Petition, the Montgomery Court of Common Pleas found that plaintiff's confession, which was deemed valid and admissible by the Superior Court, represented "overwhelming evidence of the appellant's guilt, completely separate from any identification testimony." The Superior Court also found that plaintiff's conviction "rests largely on his own confession [**4] which contains details of the rapes which were not available to the public." 679 A.2d at 1297.

Plaintiff's claims for relief in this action are that by refusing to release the biological evidence for DNA testing, defendants have: (1) deprived plaintiff of Due Process of Law; (2) deprived plaintiff of the opportunity to make a conclusive showing that he is innocent of the crime for which he is incarcerated, in violation of the Due Process Clause of the Fourteenth Amendment; (3) deprived plaintiff of the opportunity to make a conclusive showing of actual [*368] innocence, in violation of the Cruel and Unusual Punishment Clause of the Eighth Amendment; (4) deprived plaintiff of his right to present evidence of innocence in State Court, Federal Court, or before the Pennsylvania State Board of Pardons, in violation of the Confrontation and Compulsory Process Clauses of the Sixth Amendment; (5) deprived plaintiff of the opportunity to effectively litigate his claim that he is innocent of the crime for which he is currently incarcerated, thereby preventing plaintiff from access to the state and federal court to obtain legal relief, in violation of the Due Process and Equal Protection [**5] guarantees of the Fourteenth Amendment and (6) deprived plaintiff of his right to avail himself of the opportunity to apply for executive clemency and the function that executive clemency serves in preventing the violation of his constitutional rights that would arise from continued incarceration of an inmate who can make an actual showing of innocence. See Complaint at 5-7.

In Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), the United States Supreme Court held that "the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Id. at 87. "The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985).

Plaintiff contends that DNA testing on the [**6] genetic material would exonerate him because only the assailant could have left this DNA material and if the DNA does not match, he could not be the assailant. Defendants respond that there is no need to do DNA testing on the genetic material since plaintiff's confession was not coerced and contained details of the rapes which were were not known to the public and would only be known by the perpetrator.

Plaintiff made a confession which was taped and transcribed. Plaintiff acknowledged at trial that it was his voice on the tape. In that confession, plaintiff confessed to details of both rapes which were not available to the public. In the case of Bednar, plaintiff stated the following:

1. He watched the victim while she was in the recreation room reading a book. (pg. 7, lines 16 thru 22).

2. He said the victim was wearing a robe. (pg. 7, lines 23 thru 26)

3. He said he entered through a rec-room window. (pg. 6, lines 24 thru 28).

4. He waited until the victim went upstairs before entering the townhouse. (pg.7, lines 27 thru 32)

5. He went up two sets of stairs before finding the victim's bedroom. (pg. 7, line 12).

6. He took a pillow from another room before entering her room. [**7] The room that the pillow was removed from was on the same level as the victim's bedroom. (pg. 8, lines 13 thru 20)

7. He said the victim told him other people lived in the home and that someone could come home. (pg. 9, lines 5 thru 7 and line 19)

8. He said she was nude. (pg. 9, lines 10 thru 15).

9. He said he had been drinking prior to the incident and that he normally drank beer. (pg. 7, line 14 and pg. 18, lines 16 thru 19). [*369]

10. He said he had sex with the victim while she was on her back on the floor. (pg. 9, lines 17 thru 23).

These details, which were not released to the press, matched those in the statement given to the police by Bednar.

In the case of Morrissey, plaintiff stated the following:

1. He was outside of the bedroom window watching the victim. (pg. 2 lines 10 thru 17)

2. He said the victim was reading a magazine while she was lying in bed. (pg. 2 lines 15 thru 22).

3. He said there was a light next to her bed, which was on, allowing him to see the victim. (pg. 2, line 23 and pg. 3 lines 2 and 3)

4. He had sex with the victim on her bed. (pg. 4, line 6).

5. He said the victim was wearing underpants. (pg. 6 lines 11 thru 14).

6. The victim was on her stomach [**8] during the intercourse. (pg. 4, lines 11 thru 14).

7. Prior to having sex, plaintiff removed the victim's tampon and tossed it to the side. (pg. 4, line 8 and lines 19 thru 24).

8. He described the victim as a brunette with a medium build. (pg. 5, line 6)

9. He said he was gentle with the victim. (pg. 5, line 18).

10. He said he left the apartment by going out the door. (Pg. 5, line 4).

11. He remembered being chased off the patio by a man prior to the assault. (pg. 5, lines 25 thru 28 and pg. 6, lines 1 thru 8).

Again, these details matched those contained in the statement given by Morrissey to the police. Before making these statements, plaintiff was read his Miranda rights. (pg. 1, lines 1 thru 9). Plaintiff stated that he was willing to make a statement, that he was there on his own free will and that he had been treated "very well". (pg. 1, lines 11 thru 20, pg. 2, line 1). There is absolutely no evidence in the transcript that plaintiff's confession was obtained through coercion, undue pressure or other improper police interrogation techniques. There is no evidence that the interrogating detective put words in plaintiff's mouth.

In denying defendant's Petition to Inspect [**9] and Test Evidence, the Court of Common Pleas of Montgomery County found plaintiff's confession to be valid and admissible and that it presented "overwhelming evidence of the appellant's guilt" completely separate from any identification testimony. The Superior Court of Pennsylvania also found plaintiff's conviction rested largely on his own confession which contained details of the rapes which were not available to the public.

However, in considering whether plaintiff is entitled to the biological evidence under the Due Process Clause of the Fourteenth Amendment, we must employ the standard set by the Supreme Court in Brady and Bagley, supra. The one district court decision which applied this standard to a request for genetic material for DNA testing in a § 1983 action, Harvey v. Horan, 119 F. Supp. 2d 581 (E.D.Va. 2000)(decision on motion to dismiss); 2001 WL 419142 (E.D.Va. April 16, 2001)(decision on motion for summary judgment), ordered disclosure of the evidence. The district court based its decision on the lack of positive identification of the plaintiff as one of the culprits and doubts as to the credibility of the state's witnesses. [**10]

In the case sub judice, however, we also have the uncoerced, detailed confession of the plaintiff. In addition, the defendants [*370] point out that the DNA taken from Bednar is incapable of being tested because of an insufficient amount of product, except to reach the conclusion that the DNA comes from a male. See affidavit of Charlotte J. Word, Ph.D. In addition, defendants argue that even if DNA testing of genetic material in the Morrissey case took place, the results could not be completely exculpatory since Morrissey stated that she had sexual relations with her finance the night before the assault and therefore the genetic material might be that of the fiance.

Nevertheless, if by some chance no matter how remote, DNA testing on the biological evidence excludes plaintiff as the source of the genetic material from the victims, a jury would have to weigh this result against plaintiff's uncoerced detailed confessions to the rapes. While plaintiff's detailed confessions to the rapes are powerful inculpatory evidence, so to any DNA testing that would exclude plaintiff as the source of the genetic material taken from the victims would be powerful exculpatory evidence. n1 Such contradictive [**11] results could well raise reasonable doubts in the minds of jurors as to plaintiff's guilt. Given the well-known powerful exculpatory effect of DNA testing, confidence in the jury's finding of plaintiff's guilt at his past trial, where such evidence was not considered, would be undermined. Even though Dr. Word has averred that the Bednar material is incapable of being tested, the parties have nevertheless agreed to have the material tested by plaintiff's expert in California. With respect to the Morrissey material, since the genetic material was obtained shortly after the rape, DNA results which excluded the plaintiff would still be evidence of his innocence for the jury to consider. The fiance could also be tested to see if he was the source of the genetic material. Thus, we find that there is indeed a reasonable probability that had DNA evidence which showed plaintiff was not the source of the genetic material found on the victims been disclosed to the defense, the result of the proceeding would have been different. Of course, the ultimate decision as to whether the results of the DNA testing would warrant an acquittal or a retrial is for the state trial court to make.

n1 Of course, DNA testing might also reveal that plaintiff was indeed the source of the genetic material, thereby providing further inculpatory evidence to bolster the jury's verdict.


Since DNA testing of the genetic material could indeed provide material exculpatory evidence for a jury to consider along with the inculpatory evidence of plaintiff's detailed confession, we find that plaintiff has a due process right of access to the genetic material for the limited purpose of DNA testing.


The motion of the plaintiff for summary judgment is GRANTED.

The parties shall follow the testing protocol to which they agreed and which was approved by the court.

Judgment is ENTERED in favor of the plaintiff and against the defendants.