By Jeffrey Deskovic
“Looking back” will feature reprints of articles that Jeff previously wrote while a columnist at The Westchester Guardian, which encompass topics that are applicable here in CA as well as across the country and not simply applicable to NY.
The movie “Conviction,” due to open in movie theaters in New York on October 15, as well as in many other states, starring Hillary Swank and Norman Rockwell, is about the incredible and inspiring journey of Betty Ann Waters, who became a lawyer in order to clear her brother, Kenny Waters, who had been wrongfully convicted of a murder in Massachusetts in 1983. At the time of her brother’s wrongful conviction, Betty Ann did not even possess a high school diploma.
Her educational path would require her to obtain a GED, a Bachelors Degree, schooling in preparation for the law school SAT, commonly referred to as the LSAT, graduating law school, and then passing the Bar Exam in order to be admitted as a lawyer, requiring at least 8 years. Ultimately, she became a lawyer and worked collaboratively with The Innocence Project in establishing his innocence by way of DNA testing.
On May 21, 1980, Katherina Brow was stabbed more than 30 times in her home, causing her death. Her purse, jewelry, and cash were missing. Blood, hairs, and fingerprints were found in the house, and a knife, purportedly the murder weapon, was also recovered. Kenny Waters became a suspect because he lived next to the victim with his girlfriend, Brenda Marsh, and worked in a diner where the victim was a frequent customer. Diner employees knew that Brow kept large amounts of cash in her home. Waters provided a detailed alibi, had no blood stains on his clothes or cuts on his body, and gave fingerprints. He was not charged.
Two years later, Robert Osborne, living with Waters’ then ex-girlfriend, Marsh, approached police and told them that Marsh had told him that Waters confessed to her, trying to receive cash in exchange for his information. It is unknown whether Osborne was ever paid. The police then interrogated Marsh, threatening to charge her as an accessory to the murder and take away her children if she didn’t corroborate Osborne’s account. Although initially refusing, she eventually gave in, stating that Waters had returned with a long, deep scratch on his face.
During the trial, information that the fingerprints did not match Waters’ was withheld from the defense. The prosecution presented evidence from Marsh, and another former girlfriend, Roseanna Perry, who also initially told police that she had no information about the crime, but after three hours of interrogation and threats of arrest, stated that Waters told her something about stabbing a woman and stealing her money and jewelry. A third witness, a friend of the victim’s who worked at the diner with Waters, stated that Waters sold her a ring that had belonged to the victim.
According to The Innocence Project’s website, “A forensic analyst also testified for the state about test results on blood from the crime scene. Blood types O and B were found in the apartment. The victim was type B and Waters and the victim’s husband were both type O. The analyst told the jury that 48% of the population has Type O blood. The analyst also testified that three hairs collected from the crime scene — including one in the victim’s hand and one on the murder weapon — did not match the victim or Waters. Waters raised an alibi defense, saying that he was at work at the Park Street Diner until 8:30 a.m. and then at court until 10:45 a.m. His time card from that week, however, had gone missing and wasn’t presented as evidence. Although it has been revealed that police independently confirmed Waters’ work schedule during the investigation, this evidence wasn’t presented during trial.” Waters was convicted and sentenced to life in prison.
During the appeal process, although Perry recanted her testimony, Waters lost several state and federal appeals. In the course of that process, the defense made several requests for the complete documents from the Ayers Police Department, but were instead given the same incomplete documents. In 2000, Betty Waters, already an attorney, collaborated with The Innocence Project, obtaining an agreement with the Middlesex County District Attorney, whereby a private lab would conduct a DNA test on the evidence. In March of 2001, the results excluded Waters, who was released two days later. During a reinvestigation by a state police officer, directed by the district attorney, it was revealed that the police reports that had been turned over to the defense were incomplete. The police then turned over complete records from the case, including a report confirming Waters’ alibi, and fingerprint evidence collected before trial. On June 19, 2001, the District Attorney’s office dropped all the charges and he was exonerated.
A note of tragic irony; six months following his release, Waters died in a accident, at age 47, having spent more than a third of his life, 18 years, in prison wrongfully.
While the story of Betty Waters and her odyssey make a very thought provoking presentation, nevertheless the circumstances under which this tragedy occurred are all too commonplace in law enforcement throughout our nation.
Incentivized witnessing, which is when a witness receives a reward in exchange for testimony, has been the cause of wrongful convictions in 15% of the now 259 DNA proven wrongful convictions. In this case, Osborne sought to get cash for testimony.
In view of the withheld information, including their independent confirmation of Waters’ alibi, it is clear that the Ayers Police Department intentionally and maliciously sent an innocent man to prison. A disturbing pattern in some of the wrongful conviction cases is that police and/or prosecutors knowingly send innocent people to prison, and not simply, as the frequent post-exoneration spin from authorities would have us believe, a good faith mistake. Another common contributor involves the frequent rejection of alibi evidence by jurors and appellate courts.
Police coercion of witnesses is not an effective and reliable method of obtaining accurate information. Instead it frequently, as in this case, does result in a wrongful conviction. Police departments and district Attorneys across the country should take note and cease the practice. Taking it a step further, as a society, we need to have a zero tolerance policy for police coercion and dishonesty.
In this case, the failure to turn over information valuable to the defense, referred to in legal jargon as “Brady material,” also led to the wrongful conviction. Police misconduct was a factor in 37 of the first 74 DNA proven wrongful convictions. Out of that figure, suppression of evidence by police was found in 34% of the cases.
Still, another lesson to be learned from the Waters case is the importance of police departments not withholding records, including during the post conviction process. Police departments concerned with the accuracy of investigations and convictions they are involved in should not engage in evidence or document withholding, including during the post-convictions.
When Perry recanted her testimony, authorities should have reinvestgated Waters’ conviction. Too often, when evidence of innocence emerges, authorities do not reinvestigate cases because there is a disincentive to do so; they would have to admit a prior mistake, or intentional wrongdoing.
Similarly, appellate courts do not like to grant new trials when witnesses recant, and they typically view such evidence with skepticism. That line of reasoning, in light of what we are now discovering, needs re-examination. In my view, Waters should have received a new trial based upon that recantation alone; after all, the jury considered her testimony in convicting him. So too should other defendants.
Betty’s effort and her journey is both breathtaking and inspirational, yet tragic. This case spotlights the human cost of wrongful conviction- Waters lost eighteen of the last eighteen and a half years of his life. During that time, his lawyers had been requesting documents that continued to be withheld. Had they not been, he very likely would have been released sooner and thus spent the last part of his life free. Waters’ life in a very real way was stolen from him, as well as from Betty and the rest of his family.
But her journey was not in vain and in fact continues. Betty remains a anti-wrongful conviction advocate, and frequently appears at Innocence Project fundraising events and other functions, as well as speaking out in general. I have shared the podium with her and other advocates on a number of occasions, and have found her to be quire passionate and dedicated to the cause. Hillary Swank referred to Betty Ann Waters as her “real life hero.”
Jeffrey Deskovic, Esq, MA, is an internationally recognized wrongful conviction expert and founder of The Jeffrey Deskovic Foundation for Justice, which has freed 9 wrongfully convicted people and helped pass 3 laws aimed at preventing wrongful conviction. Jeff is an advisory board member of It Could Happen To You, which has chapters in CA, NY, and PA. He serves on the Global Advisory Council for Restorative Justice International, and is a sometimes co-host and co-producer of the show, “360 Degrees of Success.” Jeff was exonerated after 16 years in prison-from age 17-32- before DNA exonerated him and identified the actual perpetrator. A short documentary about his life is entitled “Conviction“, and episode 1 of his story in Virtual Reality is called, “Once Upon A Time In Peekskill“. Jeff has a Masters Degree from the John Jay College of Criminal Justice, with his thesis written on wrongful conviction causes and reforms needed to address them, and a law degree from the Elisabeth Haub School of Law at Pace University. Jeff is now a practicing attorney.