New Tech Threatens DNA-Free Conviction

     (CN) – In light of technological advancements, a man convicted of attempted sexual act nine years ago is entitled to new DNA testing, the Ninth Circuit ruled.
     Bill Watson, a Native American, was indicted after attending a party at the home of a 14-year-old girl in the Rocky Boy’s Indian Reservation in Montana.
     The decision does not say how old Watson was at the time of incident, but the Bureau of Prisons describes him as 28 and an inmate at the Englewood Federal Correctional Institution in Littleton, Colo.
     On the night of the party, the alleged victim – identified in the decision by her initials, J.M.B. – was passed out drunk in her mother’s bedroom, with her older brother coming in intermittently to check on her.
     J.M.B. has no memory of being attacked, but her brother claims that he entered the room to find Watson having sex with his unconscious sister.
     The brother testified that Watson had “his penis in [his] sister’s vagina,” according to the ruling.
     Watson concedes only that he was in the bedroom but says he had only passed through, without ever touching the girl, to use the master bathroom, worried that if he used the downstairs bathroom he would “smell [it] up” and get laughed at.
     After Watson and the brother fought and Watson left the house, J.M.B.’s brother and her friend woke up the girl and gave her different cloths to wear since she had vomited before passing out.
     One of the articles of clothing was underwear belonging to J.M.B.’s mother, collected from the bathroom floor.
     J.M.B.’s medical examination was inconclusive. Her hymen was intact, and there was no semen on her vaginal swabs.
     Though a DNA examiner for the FBI did find semen in the underwear, the substance was too small in 2006 for the examiner to test for DNA.
     J.M.B.’s brother also had credibility issues as a witness, given that he was intoxicated at the party as well, and he was inconsistent in his story about fighting with Watson.
     A jury nonetheless convicted Watson of attempted sexual assault, and he was sentenced to 14 years and 10 months in prison, plus five years of supervised release.
     With the help of the Innocence Project, Watson has moved to order – and pay for – new DNA testing, but Senior U.S. District Judge Sam Haddon in Great Falls, Mont., denied the motion as untimely, having been filed more than three years after conviction.
     A three-judge panel with the Ninth Circuit reversed Friday, finding that “new DNA tests that make previously useless DNA capable of identification amount to ‘newly discovered DNA evidence.'”
     Even though the underwear and semen are not new, the availability of a new DNA test rebuts the presumption of the motion’s untimeliness, according to the ruling.
     “Where only a single male could be the perpetrator, semen might be all the evidence needed, but where, as here, the semen could have come from other males, innocently if by way of J.M.B.’s mother, or criminally from some other male at the party, a DNA test identifying which male it came from is the evidence that makes or breaks the case,” Judge Andrew Kleinfeld wrote for the court in Seattle.
     Indeed, the new testing “could prove actual innocence and mistaken identity in at least two ways,” the panel ruled. “The DNA test might show that one of the other males at the party, not Watson, had raped J.M.B. Or, in conjunction with the medical evidence suggesting an unruptured hymen, it might suggest that no one had raped J.M.B., and some sexual relationship of the mother rather than rape of her daughter explained the semen.”
     Touch DNA testing of skin cells of anyone who touched J.M.B.’s vagina or clothing -which was not possible in 2006 – could also prove Watson’s innocence, the ruling states.
     “Identifiable DNA could now be obtained from the vaginal swabs and even from J.M.B.’s shorts, showing who pulled them off,” Kleinfeld wrote. “The prosecution’s theory was that Watson pulled J.M.B.’s shorts off her to rape her. J.M.B.’s brother testified that when he put J.M.B. to bed she was fully clothed. Touch DNA only became available after Watson’s conviction. If touch DNA testing is as good as the evidence before us suggests, it could also prove Watson’s innocence, if he is innocent.”
     The Montana Innocence Project applauded the decision for assuring “that new DNA technologies are available to prove innocence of people who were convicted under inconclusive and outdated procedures.”
     “The court’s conclusion recognizes the risks of wrongful convictions inherent in our criminal justice system, and echoes the need for constant vigilance of the system by organizations such as the MTIP, so that the innocent are protected to the greatest extent possible,” the group said in a statement, abbreviating its name.
     The government was not immediately available for comment.

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