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VOL. 123 | NO. 224 | Friday, November 14, 2008

Evidence at Heart of Matter For Cooley, The Innocence Project

By Bill Dries

Print | Front Page | Email this story | Email reporter | Comments ()
Position: Staff Attorney
Organization: The Innocence Project
Basics: Cooley spoke at this week’s annual Memphis Bar Foundation’s Benjamin L. Hooks luncheon.
“Evidence preservation is a huge issue that we are trying to change.”
– Craig Cooley

Craig Cooley compares the aftermath of a wrongful criminal conviction to the aftermath of a train crash.

“They are going to investigate that train accident over and over again. … Why did that train wreck?” Cooley said of the exhaustive investigations that follow such crashes. “When there’s a wrongful conviction in the criminal justice system in the United States, you know what a lot of times happens? They give the guy 20 bucks and say, ‘Here’s a bus ride. Sorry.’”

Cooley, a staff attorney for The Innocence Project, was the keynote speaker at Wednesday’s annual Memphis Bar Foundation Benjamin L. Hooks Awards Luncheon.

The Innocence Project is a nonprofit organization formed in 1992. It reviews and appeals criminal cases that involve post-conviction DNA testing. Mississippi attorney and best-selling author John Grisham is on the board. So is former U.S. Attorney General Janet Reno.

Covering Tennessee

Cooley’s territory includes Tennessee. He works with local defense attorney Kemper Durand who was the force behind the DNA testing that exonerated Clark McMillan.

McMillan was convicted of a 1979 rape and robbery in Overton Park. He served 22 years in prison before DNA testing exonerated him in 2002 and he was released.

McMillan is the only DNA exoneration in the state of Tennessee. Cooley said that is because of different standards for preserving evidence in the state, not necessarily that there are fewer mistakes in the state’s courts.

He was particularly critical of how evidence in old cases is maintained in Shelby County court cases.

“They can’t find any of the evidence,” Cooley told those at the luncheon who included prosecutors as well as criminal court judges. “I have five cases in Shelby County. In two cases, we found it. In three cases, we can’t find anything. … Evidence preservation is a huge issue that we are trying to change.”

Durand, a partner at Thomason, Hendrix, Harvey, Johnson & Mitchell PLLC, attributes the problem to funding for storage and turf issues among different agencies locally. He once found a key piece of physical evidence for a case in an appeal file. Durand credits Assistant Shelby County Attorney Janet Shipman with making progress on the problem over several years.

“Each locale, each agency has different procedures,” Cooley told The Daily News. “And it’s hit or miss. One agency might have good preservation issues or protocols. And another agency might not have any.”

By contrast, Dallas County, Texas, has had more than 20 exonerations from the tenure of District Attorney Henry Wade, who held office for decades.

“The primary criteria for moving up in his office was convictions,” Cooley said. “So the prosecutors and law enforcement kept all the evidence in these cases because if the case was overturned, they could go back to that evidence and still prosecute individuals.”

The result was “great evidence preservation,” Cooley said.

It also caused an examination of other cases and criticism of Wade’s standards for deciding who to prosecute.

Who stores it?

Another issue is the cost of storing the evidence, which determines what gets kept and what is tossed. Cooley said the evidence shouldn’t be kept forever, but that there should be a uniform standard that sets an amount of time in certain kinds of cases.

“If you talk to me, I’ll say most of them,” he said. “If you talk to a prosecutor, they’ll say some. If you talk to law enforcement who actually has to house the evidence, they’ll say only a small amount.”

When the evidence is blood or some other fluid on a car seat, for example, Cooley questioned whether the car seat or the entire car should be preserved.

The Innocence Project, which is affiliated with the Cardozo School of Law at Yeshiva University in New York City, gets 250 letters a month from inmates who claim they are innocent. The project only takes cases involving DNA evidence, although many of the requests deal with defendants convicted in drive-by shootings. Each case is evaluated for a four- to five-year period.

The project recently added a social work program to help the exonerated deal with adjusting to life out of prison.

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