The Prosecutor, March-April 2009, Volume 39, No. 2

Helping victims in DNA exoneration cases

2009
After several DNA exonerations, the Dallas County Criminal DA’s Office has written guidelines for notifying and helping the original victims of these crimes.

Striving for justice and putting the correct offender in prison is unquestionably the goal of any prosecutors’ office. Using DNA to release a wrongly convicted person from prison is an important job that must be vigorously pursued. Thank goodness for DNA! However, in exonerated DNA cases, we also must never forget the original crime victim, the person who was sexually assaulted or murdered. As far as the victims or their families are concerned, the correct offender was convicted and imprisoned at trial. When we in the DA’s office tell them, years later, that the wrong individual was identified and convicted, it can trigger disbelief, guilt, anger, confusion, and most of all, revictimization. (As one sexual assault victim wrote in a letter to the local police department that handled her case decades ago, “Being the victim in an exoneration is a foreign, difficult, scary, horrible, confusing thing that only a tiny percentage of people will ever have to face
in their lifetime. I was violated in 1984, but now, years later, the media ends up violating me again.”)

Due the large number of DNA exonerations in Dallas County, the Victim Witness Division found it necessary to develop new methods of providing assistance to its victims. These include informing victims of rights they may not have had when the crime happened more than 20 years ago and providing referrals for counseling, which may be necessary after reopening a wound they had worked so long and hard to close.

Working with the victims in DNA-exoneration cases is a tricky and not altogether rewarding experience. Our office’s first contact with them will, in most cases, turn their world completely upside-down. Many of these exoneration cases are more than 20 years old, and most of the sexual assault victims have put the assault behind them. Some have married and started families, never telling their friends and loved ones of their victimization. That phone call from us will most certainly disrupt their entire lives. Preconceived notions of truth and justice will go to the wayside because a person convicted and imprisoned by a jury of 12 citizens (or who pled guilty to the crime) turns out to be innocent of those charges. Victims’ sense of safety is lost when the true offender cannot be identified, and any feeling of closure disappears when the facts of their case are brought to the fore once again. Don’t expect the victim or their family to thank you for making that call.

When working with victims or their families in DNA cases, several things must be considered. First, decide at what point the DA’s office will contact the victim: when the offender first requests testing, when the State agrees to the testing, when a testing date has been set, after DNA testing, or not at all (when tests affirm the offender’s guilt or testing is denied). When making your decision, remember that many of these victims are registered with the Texas Department of Criminal Justice to receive information regarding their offender’s parole hearings as well as movement of that offender on a bench warrant. The victim may be notified before you are ready to do so.

Second, be prepared to answer their numerous questions. “How can he do this when he was found guilty or pled guilty?” “Do I have to provide a buccal swab?” “How long will it take to get the test results?” “What do the results mean?” “If the results come back negative, will you identify and convict the true offender?” The Dallas County District Attorney’s Office has prepared a brochure to answer these questions, provide referrals for counseling, and offer a contact within the office. This brochure is mailed to the victim or their family after the initial contact has been made (a copy is available on www .tdcaa.com; search for “DNA brochure”). It is helpful for them to have something to refer to when more questions come up.

A third consideration is the date of the actual crime. If the case is more than 23 years old, chances are good the victim was never told of her rights and available services because legislation mandating notification of victims was not put in place until September 1985. These victims should be informed of their right to protest parole and be kept informed of parole hearing dates. This point is important when deciding whether to notify the victim at all when testing affirms the offender’s guilt. The victims should be told that they have the right to write a letter of protest to the Board of Pardons and Paroles when the offender requests testing knowing that he actually committed the crime. The victim should be notified when testing is denied due to the possibility that the offender will appeal.

In Dallas County, we aid this process by sending protest letters of our own. We send letters when testing affirms an offender’s guilt and when testing reveals that another offender committed the crime. Doing so can be helpful whether the offender is still in prison or out on parole.

Lastly, be aware that not all victims are going to react in the same manner or have the same needs. Some victims want to be kept informed of every legal proceeding that takes place; others want no further contact with the prosecutor’s office whatsoever. Be sensitive to their need for anonymity or confidentiality. For those victims who have moved on, never telling their loved ones of their assaults, we have learned to be creative in contacting them and obtaining buccal swabs. For example, one victim who was sexually assaulted 20 years ago had moved away from Dallas and never told her family about the crime. The man convicted of the assault requested DNA testing, which prompted us to ask for her buccal swab. To maintain her privacy, our investigator flew to her local airport, met her during her lunch hour at the airport security office, and took her swab—all without her employer or family knowing.

In another case, our office provided the sexual assault victim with past and present pictures of the released (exonerated) defendant after he had threatened to kill her during the trial. The victim was terrified of his retaliation, so we gave her those photos to share with her children and the local police department just in case he approached one of them (as he threatened to do years before). We have also allowed the victim to hear audiotaped confessions to assure her the correct offender was found. We must accept that some victims will never believe the wrong person was convicted, no matter what we do to help them understand otherwise. Here in Dallas, we have even formed a support group for victims whose offender was released due to DNA testing. No one understands what they are experiencing better than those going through it.

Remember, the victims relive the crime every time we call, write, or email with new information. Be prepared for their confusion with the legal system, guilt over the wrong person being imprisoned, disbelief that the test results are accurate, or anger that the true offender cannot be prosecuted due to the statute of limitations. I try to empower our victims by suggesting they advocate for legislative changes that would allow an offender to be tried for past crimes and changes that would provide sanctions against an offender whose DNA results affirm his guilt. As the law is now written, he is legally allowed to retraumatize the victim emotionally, all the while knowing that he committed the crime. Victims and their families are the best advocates for change, having experienced the full spectrum of emotions from the actual crime to the results of the DNA testing. Our job is to help them understand that their rights have not been ignored or forgotten.

Anyone who is dealing with a DNA exoneration case is welcome to contact me with questions; I can be reached at 214/653-3838 or cjenkins@dallascounty.org. ✤