Fred Dickey

Fred Dickey is a writer living in Cardiff, CA, USA

Worst-case Scenario

The Story of Herman Atkins' Years Imprisoned as an Innocent Man Might Scare the Hell Out of You. It Should.

June 25, 2000|FRED DICKEY, Fred Dickey last wrote about Jenny Craig International for the magazine

I'm in the kitchen dumping garbage for 8 cents an hour, like I do every day, when the head guard comes up to me and says, "Herman Atkins? They want to see you up front." I follow him into the office area of Ironwood, where this suit reads me a paper and then tells me, "You're going out in the morning."

After 13 years, three months and six days in state prison, I'm going out in the morning. Just like that. The suit keeps talking about how great it is that I've been proven innocent, but I'm not listening. That's not news to me. I'm thinking, "Thirteen years. Thirteen damned years of afraid to go to sleep; afraid to wake up."

I'm happy, but I'm not used to that and so don't know how to feel. I'm also mad. I know what that feels like. I want those years back, because, dammit, I really was innocent! But to the stone-cold killers and old-women muggers in this pissed-off place, I was a "sex offender." That put me on their list. Three times they tried to kill me. I lived every day knowing they'd try again.

The suit tells me they've got a separate cell for me tonight if I want it. "No," I say, "I'll spend my last night in D-3-111, just like all the other nights."

I don't sleep. I'm scared, but not of the threats inside. Am I ready for the world of Feb. 18, 2000? I don't know what's happening out there. Got no skills, no education, no friends, no way to make a living.

I listen to my cellmate toss and turn, and for the last time I hear hip-hop from the loud, tinny radios echo off the walls. After a while the noise dies down. I stare at the bunk above and think of what I've survived. I remember. I can't not remember.

I remember missing family funerals. I remember seeing murders, suicides, beatings, race riots. I remember until morning breaks through the narrow window, and I know those memories will walk with me out that gate. They'll walk with me until the day I die.

After breakfast, I head down to Reception and Release. I go through five sliding metal doors and listen to them close behind me. I count the doors until there are no more. At R&R, I change into the Levi's and sweatshirt that I'd saved just for this moment. They fit. The guard in charge gives me a card that says I'm a free man, and then he hands me $200 "gate money." I think what it means as I count: Ten $20 bills to rebuild a life.

The final gate opens. The blue desert sky is huge, and my family's waiting. They all look older. I don't hear that last door slam shut.

*

HERMAN ATKINS SR. ANSWERS THE DOOR AT HIS SISTER'S house in Inglewood. He looks trim and has a smile on a face that betrays no bitterness about the years spent in some of the toughest prisons in California, the last being Ironwood State Prison in Blythe.

Atkins is free to choose his life now, but everything seems out of reach. He can do anything he wants, but at 34 he doesn't know what to do, and he has no money, anyway. He is lost in a landscape with no familiar markers.

After being sentenced in 1988 to 47 years, 8 months for rape, robbery, the use of a gun and forced oral copulation, Atkins immediately headed for the prison law library and made exoneration his daily labor. For five years he fired off appeals and then watched in dismay as the rejections came back like a bad novelist's manuscript. One day, an old inmate in the library remarked about the futility of Atkins' approach: "You can't just trim the tree, you've got to uproot it." He then tossed an article toward the younger man about the Innocence Project, which, as Atkins learned, was an undertaking by New York lawyers Barry Scheck and Peter Neufeld. Atkins read it and learned how DNA testing could sometimes help inmates who were wrongly convicted.

DNA? Atkins knew little of DNA, but had heard it was so accurate that it rendered obsolete the blood-typing used to convict him. Atkins was soon writing the letter he hoped would do for him what the courts seemed unwilling to do: Give him the chance to prove he didn't belong behind bars.

*

DNA EVIDENCE HIT THE JUSTICE SYSTEM IN THE EARLY 1990S with the same thunderous impact of fingerprinting a century earlier. DNA is the genetic coding in human cells, the analysis of which can unerringly identify any person. The material used for testing can be microscopic--particles of blood, body fluid, skin or hair.

DNA emerged on the national stage at the same time and in the same place that Scheck and Neufeld did--the O.J. Simpson trial in Los Angeles. The Simpson prosecutors put on a show about the new science that introduced an enrapt nation to such DNA concepts as RFLP, alleles and nucleic acids. They insisted that DNA evidence placed the football star at the scene of his former wife's murder.

However, the two New York lawyers used the same evidence to raise serious questions about the collection of evidence and the possible distortion of its meaning by police and criminalists--questions the two attorneys have pursued through the Innocence Project, which is based at the Benjamin N. Cardozo School of Law in New York City, and are the subject of their new book with writer Jim Dwyer, "Actual Innocence" (Doubleday).

The project consists primarily of a thin budget, the lawyers' zeal to keep it going and the work of law-school students who believe, with Scheck and Neufeld, that the U.S. criminal justice system sometimes gobbles up defendants like Pac-Man.

Though the principal use of DNA analysis is medical, it's being used more and more in criminal cases where analysis of biological evidence can confirm or overturn crime lab work or eyewitness accounts. And when the new technology is applied to old cases--cases such as Herman Atkins'--the results of DNA tests can raise unexpected and disturbing questions that go much deeper than one man's guilt or innocence.

*

HERMAN ATKINS IS ONE OF 72 INMATES IN NORTH AMERICA exonerated of criminal charges and freed from prison as the result of DNA testing since the courts began allowing the tests. Some of those inmates were on death row. No one doubts that many others currently locked up could be set free.

Earlier this month, the issue burst into national debate when Texas Gov. George W. Bush, the presumed Republican presidential candidate, granted his first stay of execution so that additional, more sophisticated DNA testing could be conducted in the 1993 rape and murder case. "If there is any doubt, any outstanding evidence that exonerates him from the rape, we ought to look at it," said Bush, during whose five-year tenure 131 Texas inmates have been executed. The day before, Bush had pardoned another inmate convicted more than 10 years earlier of rape and kidnapping after DNA tests cleared him. It was Bush's third pardon based on post-conviction DNA evidence.

In February, President Clinton expressed support for a proposal that would grant all death row inmates a chance to prove their innocence by using DNA testing. The president, a death penalty supporter, also praised as "courageous" the recent decision by Illinois Republican Gov. George Ryan to suspend executions in that state after DNA tests exonerated several convicted murderers on death row.

The question of reopening cases to allow DNA examination has turned into open warfare between some prosecutors, who want their convictions to stick, and defense lawyers who want to overturn them. Still, many states have deadlines that restrict the introduction of new evidence in a concluded trial. "In 33 states, as a matter of law, you cannot reopen completed cases after a period of a few weeks or months have passed, even if new evidence becomes available," Neufeld says. "In Virginia, that door is slammed shut after 21 days."

Ira Reiner, former L.A. County district attorney, says the drawbridge attitude evolved "because of the need for finality of judgments." That attitude, he says, often becomes a barrier to the use of DNA testing.

One former prosecutor, Kenneth Eichner of Denver, offers less-than-lofty reasons why prosecutors might oppose the reopening of cases. "First, there's bureaucratic laziness. It's easier to file a boilerplate opposition motion than to address the merits of an issue. Other times, it might be a particular D.A.'s policy to battle every motion and assume every defendant is a bad guy. Then there is day-to-day pressure from victims' rights groups, who are always looking for signs of softness toward criminals. Finally, and I hate to say this, but there are some prosecutors who would rather keep someone locked up than face the embarrassment of having jailed the wrong person."

Two states, New York and Illinois, have passed laws giving prisoners the right to post-conviction DNA testing. Congress and other states, including California, have similar legislation pending. The U.S. Department of Justice has issued broad guidelines urging that post-conviction testing be allowed, and the American Bar Assn. will consider the issue at its convention early next month.

William Thompson, professor of criminology at UC Irvine, believes that pressure is building to make testing of prisoners a right. "People are startled to realize how many innocent people there are in prison. It reveals weaknesses in the criminal-justice system that are appalling."

Two bills pending in the Legislature reflect the schism between prosecutors and defense attorneys. Defense attorney groups and the American Civil Liberties Union support SB 1342, which would make post-conviction DNA testing a right. The same groups, fearing civil liberties abuses, oppose another bill, AB 2814, which gives the state the power to examine a suspect's DNA for crimes other than those charged.

Prosecutors disagree with the defense attorneys and ACLU on AB 2814, and likely will disagree on SB 1342. The conflict does not please Reiner. He believes that, eventually, "reason will prevail and DNA will expand to its potential in criminal proceedings. It's going to happen because rationality and simple justice compel us to use the science at our disposal to determine guilt or innocence."

*

LIFE STARTED DOWNHILL FOR HERMAN ATKINS AT AGE 20 IN the same way it does for most: He put himself on the wrong side of the law. On Jan. 26, 1986, he was accused of firing gunshots in South-Central Los Angeles that wounded three, including two police officers. He panicked and ran. He was captured in Phoenix 10 months later, but not before a fateful "wanted" poster of him was widely circulated.

Atkins agreed to accept an eight-year sentence for assault with a deadly weapon. He had no prior criminal record, and prosecuting attorney Daniel A.B. Lenhart says, "It became clear in our investigation that Atkins was panic-stricken and acted wildly. I had no sympathy for him; he deserved what he got. However, he wasn't trying to kill those officers."

Atkins agrees. "I was shooting at a guy who was robbing my friend and me. I was a stupid kid who got scared and ran. I deserved to be punished."

Atkins settled in to serve the mandatory four years of his sentence. One day, a guard escorted him to a meeting, where he was informed he was bound for Riverside County to stand trial for a rape in Lake Elsinore. Lake Elsinore? To a kid from the inner city, that small community near Temecula might as well have been on the fourth rock from the sun. He had never heard of it.

*

THE MORNING OF APRIL 8, 1986, WAS SLEEPY AND QUIET, the way it was supposed to be in Lake Elsinore. About noon, a young, slim black man walked into a shopping center shoe store and told the 23-year-old clerk that he wanted to try on some shoes. He was the only customer and took his time examining merchandise, then he pulled a handgun, demanded money and forced the woman into the back room. He raped her, wiped himself on the pink sweater that her mother had knitted for her, then disappeared through the front door.

The victim called police. After undergoing a medical exam at the hospital, she went with her mother to the sheriff's substation to look through photos in recent yearbooks from local high schools. She saw no one who looked like her attacker, but when Det. Danny C. Miller excused himself for a few moments, she glanced at a wanted poster on a nearby table that showed a young black fugitive from Los Angeles. In court, she testified that she turned to her mother and said, "That's him" and pointed at the picture of Herman Atkins.

Miller's account differs a bit. He told the court that when he returned to the room, the victim said: "I think this is him. If it's not him, it's somebody who looks exactly like him."

Later, the woman identified Atkins as her attacker from a photo lineup. Still later, a deputy district attorney named Richard Bentley, who had never before prosecuted a rape case, sat with her during one of Atkins' court appearances. He motioned to a row of seven prisoners in orange jail suits shackled together in the jury box. Bentley asked her if she recognized the man who raped her, and she pointed to Herman Atkins, the only black man in the group.

A clerk from an adjoining business where the attacker stopped briefly before the rape echoed the victim's misidentification of Atkins. She identified Atkins after glancing at a poster of him on a deputy's clipboard. Although another woman in that same store failed to identify Atkins in a photo lineup, she, too, identified him as he sat in the jury box with the white defendants.

The misidentification of Atkins does not surprise psychology professor Elizabeth Loftus of the University of Washington. She is an expert in eyewitness identification, which she believes is wrong far more often than most people realize. "For years, we have been trying to point out problems of eyewitness credibility. We were never able to drive the point home until DNA exonerations forced the realization. Sadly, innocent people have spent years in prison for crimes they didn't do."

In 1986, DNA was an emerging science whose power in the courtroom was not yet tested, and conventional serology was rudimentary by today's standards. During Atkins' trial, criminalist James Hall from the state crime lab in Riverside testified that Atkins and the victim shared a blood type common to only about 5% of the population. He also said he found body fluids, including semen, on both the vaginal swab and the sweater--fluids that revealed the same blood markers as both Atkins and the victim.

Hall testified that the fluid evidence could have come entirely from the victim or "from a combination of individuals with those blood types." In answering the next question from Bentley, Hall said that Atkins could not be excluded as a source of the evidence.

In his closing remarks to the jury, Bentley, in arguing for Atkins' guilt, tried to hammer home Hall's testimony: "So, the evidence can't be used to say this is exactly him, but it excludes a large percentage of the people, and does not exclude him, and that's corroboration."

The jury found Herman Atkins guilty.

*

ACTING ON THE ADVICE OF THE OLD CON IN THE LIBRARY, Atkins contacted the Innocence Project in 1993 and asked its help with his case. For once, he got good news in the mail.

Neufeld says the project staff took on Atkins' case because there was biological evidence--the sweater--that could be tested. He explained that in most felonies, biological evidence is either not available or is not an issue. In rapes, however, it often is the heart of the case. Often that evidence isn't saved, but Atkins was lucky. The policy of the Riverside County district attorney's office is to preserve such evidence.

Getting to it was another matter. Once the Innocence Project undertook Atkins' case in December 1993, project workers began to push for DNA testing on the sweater. But the Innocence Project was still in a start-up mode and relied on law students such as Steven Brand, now a criminal defense attorney.

Because reopening a closed criminal case is not an automatic right in California, the defense customarily seeks cooperation from the prosecutor before approaching the court to have evidence released. Brand says he called Bentley on three occasions, from Sept. 12, 1996, to March 7, 1997, attempting to persuade the prosecutor to release the sweater for testing, to no avail.

In a written response to repeated interview requests for this article, Bentley said he resisted turning over the evidence to the Innocence Project because "at this time there was no established protocol or office policy on handling post-judgment discovery requests for DNA testing" and that the matter was best handled through Riverside Superior Court. Brand says Bentley had other concerns.

"Bentley said he was convinced of Atkins' guilt, and he would not agree to release the evidence. He said he didn't want to drag the victim through any more stuff," Brand says. "I told him, if Atkins is guilty, then the test will confirm that, and if he isn't, then the victim and others should know that the rapist may still be out there." Brand says every conversation with Bentley became a circular argument, with Bentley insisting on Atkins' guilt, and Brand insisting that the DNA test could provide a definitive answer. Brand, who would go on to work for two years as a prosecutor, recalls Bentley's attitude as "disillusioning."

It took Innocence Project researchers until June 1997 to file a formal motion to release the sweater. A hearing was set for July 11, 1997, and a Bentley associate from the D.A.'s office came prepared. As Deputy Dist. Atty. Anne E. Corrado wrote in her argument to prevent the sweater's release: "Rather than a quest for the truth, the defendant's motion is simply the desperate ploy of a convicted predator who has exhausted all legal remedies."

As it turns out, Corrado's vehement argument wasn't necessary. Atkins' volunteer attorney, a Los Angeles lawyer recruited by the Innocence Project, didn't show up, and Herman Atkins' nightmare continued.

*

TWO MORE YEARS PASSED BEFORE THE INNOCENCE project was able to regroup and try again to move the case forward. "I believed the defense had decided to drop the matter," Bentley wrote in his response. "To this point, nothing had transpired or changed to make me believe Mr. Atkins' conviction was anything but just and well founded."

Last year, the Innocence Project assigned Sean Basinski, who is finishing law school at Georgetown University, to revive the case. He had one conversation with Bentley, on June 9. "He wouldn't cooperate. He told me he thought Atkins was guilty and there was no need to go through this. I got nowhere with him."

Finally, on Aug. 20 last year, Santa Ana defense attorney Douglas J. Myers--who worked for free as Atkins' local counsel on the DNA appeal--went to court to argue for the release of evidence. He says that neither Bentley nor Corrado was present, and says the motion was handled by a deputy D.A. who seemed to know nothing of the matter and did not argue against it. The judge signed the order, the testing was done, and on Jan. 18 of this year, Neufeld sent Riverside County Dist. Atty. Grover Trask the report of Forensic Science Associates laboratory in Richmond, Calif. That report ruled out Atkins as the source of the semen on the sweater.

In that report, forensic scientist Edward T. Blake took strong exception to the analysis of the fluid evidence by Hall, the state criminalist whose testimony helped convict Atkins. Blake said all the evidence on the swab and sweater could have come from the victim and could not be used to point to the source of the semen. He also said that Hall's testimony was "a fundamental misrepresentation of the scientific evidence and, therefore, constitutes scientific fraud."

After learning of Bentley's closing arguments to the jury from 13 years ago, Myers concluded that "there is no rational way that the evidence pointed to Atkins or anyone else."

It took another month for the Riverside County district attorney's office to confirm the results of the DNA tests through the FBI crime lab in Washington, D.C. But once that was done, Trask's office immediately petitioned the court to free Atkins.

Eileen Hunt, Trask's chief deputy, says that, in retrospect, the D.A.'s office should not have opposed the 1997 request for release of the sweater, and that the new policy of the D.A.'s office is to allow testing of DNA evidence if it might lead to exoneration. Hunt says there's no record in the files about the phone calls between the Innocence Project volunteers and Bentley, but concluded that at least one call must have been made for the release-of-evidence motion to move forward.

Hunt also emphasized that the D.A.'s office did not oppose the release of the evidence during the hearing last year. In written statements, both Bentley and Hunt said they were "horrified" by Atkins' ordeal.

Deputy D.A. Corrado and state criminalist Hall did not respond to repeated interview requests. However, a spokesman for the California Department of Justice, which oversees the state's crime labs, says the department is reviewing its role in the case.

*

I TURN OFF THE TAPE RECORDER and tell Atkins I'll buy lunch, and he can pick the place. He eagerly agrees and we drive for miles. When we finally pull into the parking lot of Atkins' favorite place, the sign promises, "HomeTown Buffet, $6.95, all you can eat." It's shovel food, but it's also a promise that Ironwood never made.

Atkins talks about his grandmother, 82-year-old Rosie Lee Atkins of South-Central, whose steadfast belief in his eventual vindication was based on sore-knee Baptist prayers. Married and divorced twice, Atkins talks fondly about his three sons by three different women, and that doesn't embarrass him. Does he support them? He grins sheepishly. "I can't even support myself."

It's clear Atkins is struggling to remain on a positive track. He hopes for a settlement from the state--a big settlement. Considering the roughly 10 years he served beyond what he owed for the police-shooting conviction, he thinks the maximum $10,000 the state offers to redress the conviction of innocent people is about as impressive as his $200 in gate money.

To get more, though, he would need a special bill put through the Legislature. There is precedent for that. Last year, the state gave Kevin Lee Green of Orange County $620,000 for 17 years of wrongful imprisonment--$100 for each day he spent behind bars.

Atkins insists that he has no anger toward the rape victim and the other witnesses. Racism? "Look," he says, "I don't need a dictionary to know the meaning of that word, and I think being black helped grease the skids for me. But I looked around prison and saw plenty of other innocent guys who weren't black. Race is part of the problem, but it's not all of it."

Although Bentley would not discuss the Atkins case, his written statement said "a day hasn't gone by that [Atkins] and his family are not in my prayers."

Atkins thinks often of prosecutor Bentley, too, but not so kindly. He leans forward and compresses his lips. "Mr. Bentley is an evil man. He tried everything he could to keep us from testing the evidence. He wanted to keep me in jail. The idea that I might be innocent didn't bother him one bit."

*

THERE IS IN SOUTHERN California a 37-year-old woman who leads a normal life: family, home, job. But standing between her and the full enjoyment of that life are ugly memories and a guilt that is as undeserved as the crime that caused it.

She is the rape victim.

The call to her home is unwelcome. She spent 14 years trying to forget the worst day of her life, and then, just a few months ago, she was shaken anew by word that the man she thought was justly behind bars is walking the streets as an innocent man. She is shaken, too, by the knowledge that the man who raped her may still be walking free.

As she opens to the new reality, her words rush out, defensive and doubting. There are no tears, only the anger and fear of someone forced to run from a tireless pursuer. "It hasn't been easy for me, either. I'm very upset about this. If it's true that he's innocent . . . They say you can't make mistakes with DNA, but . . . You know, part of those years were for shooting at police. He wasn't in prison just for what happened to me."

Then, she softens. "Saying I'm sorry is not enough. Nothing I can say will replace those years out of his life. I feel terrible. Absolutely terrible. Here I was, trying to get a rapist off the streets, and then I find out he could still be out there."

She gropes for something to say about a man she recently loathed, and now realizes she didn't know at all. Finally: "There are no words to make up for what happened." Her voice trails away. Before she hangs up, she says, "I thought he was the one."

*

HERMAN ATKINS HAS LEFT prison, but prison won't leave him. Daily habits fall reflexively into the regimen he lived for 14 years. In prison, he needed freedom, but now his needs are more numerous and complicated.

His efforts to free himself from prison taught him that he has a good mind, and he has enrolled for the summer term at Los Angeles Southwest College. At 34, he intends to try out for the football team. Atkins also spends time getting reacquainted with his extended family, with society and with himself. He lives with his grandmother in South-Central Los Angeles and sees his sons as often as he can, but they live in three different cities. He wants to work--knows he needs to, because he wants to support his sons--but says he fears his criminal past and those missing years will lead to rejections with which he's not ready to cope.

The first thing every morning, he cautions himself to stay positive and think about the future, not the past. Some days, he says, are tougher than others. He recalls one in particular. "In prison, all the mirrors are made of metal and you can't see much in them. The first day out, I went up to a glass mirror and saw myself clear for the first time since I went in." He shakes his head. "I saw the years in my face."

I say to him, "You know, cynics will say, 'Just wait, he'll go back.' "

Herman Atkins looks me right in the eye, as though through me he can see all of them, and says, "They didn't know me then, and they don't know me now."


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