The Death Penalty Information Center (DPIC) reported that “since 1973, 156 men and women from 26 states have been exonerated from death row.”
One of the most notable wrongful conviction victories came when the Connecticut State Supreme Court ordered a new trial for Richard Lapointe. On Oct 2, 2015, on International Wrongful Conviction Day, Lapointe was set free. The judge ruled that he cannot be retried again.
Lapointe is a mentally disabled dishwasher who was denied to introduce evidence to support his innocence claim when he was tried and convicted for the rape-murder of Bernice Martin (88). He received life without the possibility of parole. Lapointe had been imprisoned continuously since his arrest in July 1989. One of the many issues in his case was the application of inaccurate/outdated arson detection.
Before 1992, many guidelines for analyzing arson were not formalized and there was a lack of formal training. In 1992, the National Fire Protection Association (NFPA) released the first arson guidebook (NFPA 921). We do not know exactly how many people were sent to prison because of outdated forensic arson detection. But we do know that when an industry fails to monitor themselves and when they do not require continued education from their members, others pay the price.
We therefore, need to look at Bernice Martin’s case from a new perspective: it is no longer a closed murder file. It is a cold case. After Lapointe’s arrest and conviction nobody followed up on other pieces of evidence. We have untested materials and possibly evidence that could be tested with modern technology. Ask yourself; if not Lapointe who did kill Bernice Martin?
I am not aware that any major investigation is under way to explore Martin’s case again. That is a tragedy as she deserves to have her case investigated with modern technology and by new sets of eyes. Advancements in DNA collection such as the M-Vac can benefit her case. Absent a confession from someone new or another person’s DNA, Martin’s is a cold case.
Last year, Utah based M-Vac System teamed up with the American Investigative Society of Cold Cases (AISOCC).
“The AISOCC (American Investigative Society Of Cold Cases) has formed a partnership that will allow AISOCC to test evidence for law enforcement using the M-Vac’s unique wet-vacuum DNA collection method. The M-Vac has been shown to collect up to 200X more DNA material than other methods and may enable AISOCC investigators to collect DNA where traditional DNA collection techniques could not before.
AISOCC is a non-profit, professional organization that reviews cold cases from any law enforcement agency in the United States free of charge. AISOCC’s motto is “it is not about the prosecution or the defense; it’s about the truth.”
This exciting new collaboration will support law enforcement by testing old but properly preserved evidence for touch DNA. The M-Vac has already been used in various cold cases and will continue to make a huge difference.
The list of police departments owning or renting the M-Vac is growing and not just in the United States of America. In 2015, the M-Vac was instrumental in more than 30 cases in China, South Africa, and the UAE. Universities worldwide are studying the DNA collecting system and compare its results to traditional DNA collection methods such as swabbing.
Evolving standard in forensic sciences can be problematic for the courts. Not every judge is technically educated. Not all jurors will grasp all the possibilities and all the limitations of the forensic methods presented in court.
In 1993, the US Supreme Court Case ruled in Daubert v. Merrill Dow Pharmaceuticals that the trial judge must make a preliminary assessment of the expert scientific testimony. The judge must decide if the testimony is based on reasoning or a method. If it is based on a method then that method must be scientifically valid AND it must apply to the facts of THIS case.
The factors that the trial judge must weigh are:
(1) Whether the theory or technique in question can be and has been tested;
(2) Whether it has been subjected to peer review and publication;
(3) Its known or potential error rate;
(4) The existence and maintenance of standards controlling its operation; and
(5) Whether it has attracted widespread acceptance within a relevant scientific community.
The Daubert standard is the test used in the federal US courts and in some US state courts. In the federal courts, it replaced the less precise Frye standard which stated that a judge had to decide whether a method was generally accepted by experts in the particular field of expertise to get evidence.
Combatting wrongful convictions and exploring cold cases should go hand in hand. We need reforms to avoid wrongful convictions, yes. But we must also make the second step and routinely explore old cold cases with modern technology.
Let’s do it!
Alice de Sturler is a Dutch non-practicing lawyer/human rights defender. She works on unsolved homicides, wrongful convictions, and assist other human rights defenders and attorneys when requested.
Her professional blog Defrosting Cold Cases http://www.defrostingcoldcases.com/ won in the American Bar Association’s Top 100 Blawgs (category: criminal justice) in 2013, 2014, and 2015. You can follow her on Twitter @