By Geoff Dutton and Mike Wagner
The Columbus Dispatch
COLUMBUS, Ohio — Robert McClendon’s release from prison last week, after he served 18 years for a child rape that DNA testing showed he didn’t commit, was hailed as a triumph of science and the law.
But in some ways, the Columbus man was redeemed in spite of the law, not because of it.
McClendon and his supporters hope his ordeal will encourage authorities to re-examine other cases, and the system itself. This week, state lawmakers are scheduled to introduce a bill that would fundamentally change how crime is investigated and prosecuted, and make DNA testing available to more convicts.
“This is not about me,” said McClendon, 52. “There are other inmates stuck in prison who deserve a chance to prove their innocence.”
Proving McClendon’s innocence was a long shot under current law.
The best testable evidence in his case was lost or destroyed long ago. Nobody is sure when. Ohio doesn’t have statewide standards for cataloguing and preserving evidence, and it routinely goes missing.
The judge never acknowledged McClendon’s first application for testing in 2004. It slipped by unnoticed and was revived only after a recent avalanche of publicity, a renewed push by his attorneys and a private lab’s offer to test the victim’s underwear at no charge.
McClendon openly worried last summer -- before his DNA application finally gained traction -- that he might be paroled. Most prisoners dream of parole, but McClendon knew that once he was released, he wouldn’t be eligible for a DNA test.
Ohio law says so. McClendon would have lived the rest of his life as a registered sexual predator.
Jim Petro, a former state attorney general and a proponent of sweeping reforms, said McClendon’s case could give the bill an important boost. “Having a case like Robert McClendon’s come forward and prove once again the justice system is not perfect is a very big step,” Petro said.
Franklin County Prosecutor Ron O’Brien opposed testing for McClendon in 2004 but consented this time. The outcome, O’Brien said, made him rethink the wisdom of always viewing the DNA-testing law in strict and narrow terms. “We need to look beyond whether they’re
entitled to it,” he said.
Mark Godsey, director of the Ohio Innocence Project, a legal clinic at the University of Cincinnati that represented McClendon, said his case is just the latest example of the need for expanded access to DNA tests.
“The prosecutors who are still opposing these DNA requests need to do a little soul-searching and rethink their positions,” Godsey said.
The bill, as described by its supporters, would require that biological evidence be preserved and police interrogations recorded. Photo lineups would have to be conducted by somebody who doesn’t know which person is the suspect. The bill also would allow convicts on parole to apply for testing.
Each of these safeguards has been adopted by some other states; a few states have enacted them all in some form.
The debate in Ohio probably will focus on which standards would be mandatory and which recommended.
“It’s something that’s subject to significant discussion,” Petro said. But, “Ohio’s going to finally do something to create a standard for evidence.”
The bill is being sponsored by Sen. David Goodman, chairman of the criminal justice committee, and Sen. Bill Seitz, both Republicans.
“It’s important to me because anyone who is innocent shouldn’t be behind bars,” said Goodman, of New Albany. “Taking away someone’s freedom is the worst thing that can happen in our system. We only have one life, and Mr. McClendon lost 18 years of his.”
Gov. Ted Strickland added: “Even if you don’t have any sympathy for the wrongfully convicted, the other side of the coin is a guilty person has gone scot-free.”
The Ohio Supreme Court also is considering changes that would require every judge to regularly report the status of all post-conviction cases, such as DNA requests, so they don’t slip through the cracks as McClendon’s did. Judges already report the status of other types of cases.
A committee that recommends new rules to the Ohio Supreme Court will meet in October. “We’ll specifically put the DNA issue on the agenda,” said Justice Judith A. Lanzinger, who leads the committee.
McClendon was arrested in 1990 after a 10-year-old relative alleged he had abducted her from her backyard, driven her to a vacant house and raped her.
The Columbus crime lab failed to find semen on her underwear or the swabs from her medical exam. Over the years, the swabs were lost or destroyed. Last month, prosecutors agreed to send the underwear to DNA Diagnostics Center, a lab in suburban Cincinnati. It found semen on the underwear; the DNA didn’t match McClendon’s.
State Public Defender Tim Young said McClendon’s case should be a wake-up call.
“The amount of time and money prosecutors spent around the state fighting whether inmates should get DNA tests was far more expensive than if we’d just done the tests,” Young said.
“And then we end up with this.”
Copyright 2008 The Columbus Dispatch