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Many Convicted Felons Have Been Proven Innocent by DNA Evidence.

Aired December 21, 2005 - 21:00   ET


DENNIS MAHER: It's finally over. It's been 19 years.


MAHER: Go home.


BOB COSTAS, CNN HOST: Tonight, Dennis Maher sentenced to life in prison for rapes he didn't commit. He served 19 years.

Herman Atkins, he was convicted of rape too and did eleven years inside after he was falsely accused.

Wilton Dedge spent 22 years in a Florida prison for a rape he didn't commit.

And, Vincent Moto, his rape conviction overturned after more than ten years behind bars.

They've all been cleared and freed by DNA evidence. The stories of four men locked up for years convicted of crimes they didn't commit next on LARRY KING LIVE.

Good evening to you from New York, Bob Costas sitting in tonight for Larry King. Before we get underway, Larry's show last night with Tammi and Erik Menendez was interrupted because of breaking news out of Boston about that plane that was in trouble. The Menendez show will re-air in its entirety on January the 2nd.

The four wrongfully convicted men, whom you're about to meet one at a time over the course of this hour, are all featured in an extraordinary film called "After Innocence" which has been shown and honored at a number of film festivals including Sundance.

It's based on the work done by the Innocence Project, which is headed by Barry Scheck and Peter Neufeld, whom you may recall from the O.J. Simpson trial. More than 150 wrongly convicted individuals have been exonerated based on DNA evidence. And, the four men whom you will meet tonight on this program are among them.

Also joining us from Los Angeles is the well known criminal defense attorney Mark Geragos, good evening to you, Mark. MARK GERAGOS, CRIMINAL DEFENSE ATTORNEY: Good evening, Bob.

COSTAS: And with us here in New York, Mary Fulginiti, former federal prosecutor; and one of the men we talked about a moment ago, Wilton Dedge, who was in a Florida prison for 22 years for crimes he did not commit. DNA tests on hair samples used to convict him proved he could not have been the rapist. He remained in prison, however, for three years after the initial DNA test.

How is it that after evidence of your innocence had been presented it took another three years before you were released?

WILTON DEDGE, FREED BY DNA EVIDENCE: Well, they used -- they used hair analysis, which at that time was a microscopic examination or a comparison of the hair. At the time, they didn't have DNA in 1982.

But in 1999 when I did prove that the hair was not mine then they come up with a story that it could have come from somewhere else. It could have been a delivery man or something like that. But during the course of the trial it was mine is what they were saying.

COSTAS: What evidence was used to convict you? What was it that led police and prosecutors to believe that you were the guilty party?

DEDGE: Well, it was a victim identification. Apparently the victim saw me or someone like me at a store close to where I lived at and it come about that I was arrested for it.

COSTAS: The perpetrator was described as someone having long blonde hair?

DEDGE: Correct.

COSTAS: You meet that description. However, the description also said that the alleged perpetrator was more than six feet tall. You are less than five and a half feet tall.

DEDGE: Correct.

COSTAS: He was supposedly a large and muscular man. You're a trim man.

DEDGE: Yes, sir. There was probably a 75-pound difference in the weight. I had long blonde hair. That's the only thing that fit the description.

COSTAS: How good or bad was your representation?

DEDGE: Well, I never had dealings with the law, so you know...

COSTAS: You had no prior convictions?

DEDGE: Right, so I thought that, you know, the attorney that I had was sufficient. You know, well I actually never thought it would go to trial.

COSTAS: Was he court-appointed, he or she court-appointed?

DEDGE: No, sir it was a private attorney, a friend of the family but I believe he was a little in over his head.

COSTAS: Mary, according to the film "After Innocence," nearly 80 percent of those wrongly convicted, at least the cases which the Innocence Project took up, about 80 percent of them had been convicted based on what turned out to be faulty eyewitness identification. Does that kind of jive with your experience?

MARY FULGINITI, FORMER FEDERAL PROSECUTOR: You know it doesn't, Bob. I have to tell you eyewitness identification is used in a number of criminal proceedings in these types of cases and a number of other cases too because the defendant is usually identified in court where you have an eyewitness obviously by somebody who saw him.

And, it's based on a human being's ability to perceive, so I have to tell you it's no different than any other evidence when we put somebody on the stand that recollects events or recollects what they hear.

Obviously, when they're identifying somebody as being the, you know, the someone who committed the crime you want to make sure as the prosecutor you vet that person as much as possible. And, to the extent, you know, you might fall short in some respects and obviously it happened here with Mr. Dedge.

You know, your attorney has an ability to cross-examine that person on the circumstances of the identification, whatever stress he or she was under, you know, how close were they to the, you know, the alleged perpetrator you know?

Could they see clearly you know? You know was there proper lighting? Was it not lit properly you know? There's a lot of different mechanisms in the system to be able to hopefully vet out, you know, eyewitness identification that might be inappropriate.

COSTAS: So even though in a high percentage of cases that turned out to have been wrongly prosecuted, even though in those instances a high percentage of them involved a faulty eyewitness identification you're saying that in most cases if a case is brought to trial the eyewitness identification is reliable?

FULGINITI: You know, I think, yes, in the cases that I've brought to trial definitely. I have put them on the stand and I believed in the conviction and in their ability to obviously recollect what they saw and who they saw.

So, I think in most cases that's, yes. Unfortunately I think the criminal justice system, you know, as good as it is, it isn't perfect and these gentlemen unfortunately reflect the imperfections in the process.

COSTAS: Mark Geragos, on the subject of DNA, is it always reliable as proof of guilt or innocence? GERAGOS: Well, I don't know if it's always reliable. It's a good thing I'm in the studio 3,000 miles away because I couldn't disagree with Mary more. The dirty little secret in the criminal justice system is that eyewitness identification is probably the least reliable kind of evidence that we have in the criminal justice system.

The reason that 80 percent of these cases have been reversed and it turns out the people have been exonerated is because of faulty eyewitness identification and it starts at the get-go. In every one of these cases you'll find that you've got what's called a tainted identification.

Either an officer has suggested in some way that this is the person, that the person when they don't fit in Mr. Dedge's case, where it turns out he's six inches shorter and 75 pounds lighter. All of a sudden that gets glossed over.

By the time that witness gets into the courtroom to make an identification in front of a judge or a jury that witness is positive that this is the person because the cops have actually told them "Don't worry, this is only one piece of the puzzle. Your eyewitness identification isn't going to be the only thing," and off times it truly is the only thing.

COSTAS: Prosecutor.

FULGINITI: Well, I have to say, you know, defense attorneys always argue when they don't have the eyewitness identification that there's reasonable doubt because there is no identification.

GERAGOS: That would be a problem.

FULGINITI: And when you do have it you claim it's unreliable because it isn't...

GERAGOS: Mary, there couldn't be, and Mary you know this, there couldn't be a more misleading thing than eyewitness identification.

FULGINITI: You know, Mark I...

GERAGOS: And the problem is, is that people tend to believe it almost unfailingly when it comes into a courtroom. Jurors tend to believe it.

COSTAS: Mark, let me clarify here. Are you not simply saying that eyewitness identification is not always reliable and therefore should be viewed with skepticism or are you saying that more often than not it's unreliable?

GERAGOS: I'm saying more often than not the way it's traditionally done by law enforcement in this country it's unreliable. There's a study out of New Jersey as to why it is this way and why it's unduly suggestive.

When you put people into what's commonly called a six-pack, when they take the photos and then they have somebody try to pick somebody out sometimes that will be misleading.

When you have a situation where somebody has not made an identification, I had a case within the last two weeks where the woman says "That's not him," the cop comes back the next day and shows just one photo of the same guy and basically kind of prods her and then all of a sudden she becomes certain by the time she gets to court.

That is not the way it should be done. Six packs are not the way it should be done and that's why we have -- I mean it's truly amazing to have 80 percent of these exonerations were cases where there was eyewitness identification and I think the reason is and probably what the solution should be is you should not allow a conviction based on eyewitness identification unless there's some kind of corroboration.

COSTAS: All right, Mark and Mary and Wilton Dedge, sit tight for just a moment. We'll continue from New York on LARRY KING LIVE right after this.


UNIDENTIFIED FEMALE: Frankly, it was that simple then and it's that simple now. If it was his hair, he's guilty. If it's not his hair, no jury would convict him beyond a reasonable doubt.

UNIDENTIFIED MALE: They got a hair that could have come from God knows where and it's not Wilton Dedge's and we ought to just say let that man walk. Let the citizens of Brevard County find out if he really is a rapist. Let's find out the hard way is what she tells you.

There deserves to be some finality for victims, for the community but these people don't have to be fair. They aren't fair. They don't want to be fair. This is Project Innocence.



COSTAS: Continuing from New York, Bob Costas sitting in for Larry King on the subject of those eventually exonerated by DNA evidence after spending long stretches in prison for crimes they did not commit, including Wilton Dedge, who is here with us in the studio did 22 years while serving two life sentences for rapes he did not commit.

Just from a personal standpoint leaving all the evidence and the particulars aside what was it like and how did you get through it knowing you were behind bars for a crime you did not commit and there was no foreseeable release in sight?

DEDGE: You know, I basically lived from motion to motion until roughly '87 or '88 when I ran out of -- well, one, I ran out of money. My family and myself we ran out of money as far as attorneys go.

I wrote to numerous attorneys and in 1988 was when I first read about DNA testing and I thought after reading about it, I thought it would just be a matter of months before I'd be released but I just couldn't get nobody to take my case.

COSTAS: Does Florida have a program for compensation for those who have been wrongly imprisoned?

DEDGE: No, sir.

COSTAS: Some states do.

DEDGE: Right. I believe it's up to 18 now but at this moment Florida doesn't have a compensation law.

COSTAS: How about a program, be it in Florida or you can maybe speak to the entire country about how widespread it is, programs to ease people back into society and give them some of the tools to cope with it after they've been released? There are such programs for parolees.

DEDGE: Right.

COSTAS: But this is kind of a different category. You would think you would have preference over someone who had actually committed a crime and then been paroled.

DEDGE: Well, actually we have less than what they have. When we get out, you know, we don't get the $100. We don't get state help or basically any type of help because we're innocent, so we're really not an ex-con.

But there is a program in California called the Leap Program. It's basically a mom and pop set up right now. There's like two people running it and they're trying to help everybody, you know, all the guys that are in, which is I believe it's up to about 167 now. But it's only two people doing it and there's no funding for it and they're doing the best they can with what little they have to work with.

COSTAS: Mary, some states have passed laws guaranteeing the accused the right to DNA evidence. Why shouldn't that be universal?

FULGINITI: Yeah, you would think it should be because I actually agree with that. I think that it should be universal but unfortunately some states still, DNA testing despite the fact that it's been, you know, used and scientifically accepted in the community in many states, it hasn't necessarily in all states.

So, it has -- it's still got a little bit of a ways to go but I have to tell you as we get more scientific testing the system gets better. The flaws get minimized because now prosecutors get to utilize that testing in determining whether or not somebody is involved in the criminal activity or whether or not they're not involved.

COSTAS: Clearly, prosecutors and defense attorneys will come at this from somewhat different perspectives but we would agree that all ethical participants in the system want to see justice done.

FULGINITI: Yes. COSTAS: Why then would some prosecutors be resistant to the introduction of DNA evidence and why in some cases does it appear that the state is resistant to a review that the pride and ego of individuals gets in the way of seeing justice done?

FULGINITI: Yes, you know, sometimes that does happen but it's just like in any business or profession egos do get in the way and prosecutors in particular, just like defense attorneys, get very heavily invested in their cases.

But, in Wilton's case in particular the prosecutor fought hard on procedural grounds really to keep out the DNA evidence and I think, you know, I can only speculate because I haven't been able to speak to the prosecutor but one of the reasons may have been that at that time the testing wasn't as, you know, accepted necessarily. It was somewhat still maybe skeptical.

He had invested a lot of time, effort and money in this prosecution and probably felt that the convictions, which there wasn't just one unfortunately, there was a retrial and another conviction, should stand since two juries had spoken on the issue. So, I think you know...

GERAGOS: Boy you really are -- you're really giving him the benefit of the doubt, aren't you? Do you see that sound byte out of there about the argument that maybe it was some other hair. First they convict the guy based on the hair and then when the hair turns out that it's not him then all of a sudden they're arguing well it could have come from anywhere. I mean how do you -- that's really giving somebody the benefit of the doubt isn't it in terms of the prosecutor and his ethical duties?

FULGINITI: Well, you know, Mark, it's my understanding that the hair when it was introduced wasn't introduced to conclusively establish that it was Wilton's hair. They said that, it's my understanding is that they couldn't eliminate it as your hair is that correct or incorrect?

DEDGE: OK, OK now that's -- that's the way it started. That's what their expert said but during the course of the trial the D.A. reinforced it until at the end he was telling the jury that we have a perfect match. What are the chances of another person...

GERAGOS: Exactly.


DEDGE: ...having a pubic hair exactly like Mr. Dedge's. He convinced the jury over a period of a week that it was an exact match.

COSTAS: But it was not?

DEDGE: But it was not.

GERAGOS: But it was not. And, Mary, you've had -- I've had that in I don't know how many countless cases where with mitochondrial DNA, which is not as accurate as the other forms of DNA, it starts off with basically you can say it's consistent with and by the end, the time you get to closing argument it's a perfect match and prosecutors have a tendency to do that.

FULGINITI: Yes, but you know what...

GERAGOS: Unfortunately they -- I think it's outrageous that they would not want to have the DNA testing done.

COSTAS: Mark, let me stop you right here. Mark and Mary will be with us throughout. Wilton Dedge is going to leave us after this segment. We'll be joined as the hour moves along by three other men who have found themselves in circumstances similar to Mr. Dedge.

But, a couple of quick questions before we let you go Wilton, what if any contact have you had with the victim since you have been exonerated and what are your feelings toward her?

DEDGE: I've had no contact but I did let it be known that I would like to talk to her but I'm not going to pursue her. I'm not going to, you know, she's been through enough and now she's got to go through even worse because they messed up, you know. So I'm not going -- I'm not going to hound her but I would like to talk to her but I'm not going to push myself on her.

COSTAS: I take it you have no hard feelings toward her?

DEDGE: No, because, you know, she went through a bad experience, you know.

COSTAS: Do they have a suspect?

DEDGE: No, they're not even trying.

COSTAS: Not even trying?

DEDGE: We're trying to get them to put the DNA testing into a federal or state sexual offenders -- or in the DOC. If you go into DOC they take your DNA. We want to get it put in that computer to see if the guy has been arrested and we can't get them to do it.

COSTAS: And apart from this case itself what's the state of your -- state of affairs in your life? How are you doing?

DEDGE: I'm doing much better. I just -- we just passed a compensation bill through special legislation that's passed, well, matter of fact this month and I've got compensation. It will never be enough but I'm glad this part of it's over with.

COSTAS: Have you been able to find employment?

DEDGE: Oh, yes, I've been working anything outside. I do work with a tree service and I have a lawn care business.

COSTAS: Wilton Dedge, thank you for joining us.

DEDGE: Thank you.

COSTAS: We'll continue from New York and Los Angeles after this.


UNIDENTIFIED MALE: Congratulations.

DEDGE: Thank you.



COSTAS: Continuing now from New York and we're joined by Vincent Moto, who was wrongfully convicted and imprisoned for ten and a half years. To date, his record has still not been expunged of that rape conviction.

If you're just joining us, also with us from Los Angeles is the renowned defense attorney Mark Geragos and here in New York former federal prosecutor Mary Fulginiti. And the general subject again for those just joining us is people who have been wrongly convicted of serious crimes.

In Vincent's case the crime was rape, imprisoned for long periods of time and subsequently exonerated and freed after the introduction of DNA evidence. Why is it that since you have been exonerated and freed your record has not been wiped clean?

VINCENT MOTO, FREED BY DNA EVIDENCE: Well, that's a good question. At this time I really don't know. I have a lawyer through a program called the exonerated Leap Program that we'll be talking about and his name is Jason Sniderman (ph).

He's working on trying to get my record expunged at this time. At this time, it's still on my record as being convicted. It's not erased as far as it should be that it was overturned.

COSTAS: Now, technically you and the others featured in the film "After Innocence," the documentary film, the other men who will be on the program tonight, you were all convicted technically but wrongfully convicted.

MOTO: Exactly.

COSTAS: So, now you go to get employment or you fill out an application for admission to college or whatever and as I understand it the question generally is worded this way. Have you ever been convicted of a crime? Technically, the answer to that question is yes.

MOTO: Absolutely.

COSTAS: Shouldn't this be a very simple thing, Mary...

FULGINITI: Yes. COSTAS: ...for any state to say this flies in the face of common sense and justice.

FULGINITI: Well, I agree. I think the expungement process in particular for somebody that's been wrongfully convicted there should be an automatic expungement on the record, no question about it.

And, with regard to convictions, it's my understanding actually if you have your record expunged for whatever reason in certain circumstances you may be able to answer on certain applications that you haven't been convicted of a crime because the expungement basically erases away that conviction as if it never occurred.

So, I'm sure that's a state-by-state, you know, decision that needs to be made there but I think each state varies on that and there are some that actually you can answer no to that question.

COSTAS: Vincent, I'll ask you the same question I asked Wilton Dedge earlier in the program. What was it that led police and prosecutors to believe that they had their man and his name was Vincent Moto?

MOTO: It was eyewitness testimony. It was her testimony that they used solely on testimony as I was walking down the street this young lady pointed me out and she spoke to me. I spoke back and I continued to walk.

And, during that time, a gentleman walked up to me and he asked me, he said "Excuse me, no disrespect, is your name Vincent"? And, I said "Yes, it is." And he said that "My girlfriend said that you raped her."

So, I was like "Who is your girlfriend"? And he pointed over to the young lady that was standing on the corner, so I stayed there 45 minutes because he said she was going to get the police, so I waited there. And, after that it was a living hell ever since.

COSTAS: And this identification, incorrect as it turned out, was several months after the rape itself took place right?

MOTO: That's correct, Bob.

COSTAS: And there was no other compelling evidence?

MOTO: No, they did have a rape kit but it was never introduced as to be used in any type of testing. It seemed odd to me that they had this kit that was supposed to have been soiled panties.

They had semen yet no testing was done, no hair follicles were taken from me, no blood samples or anything. So, during that time I requested that all evidence in my case be preserved for future testing.

COSTAS: A motion for DNA testing was denied during your trial.

MOTO: That's correct.


MOTO: Well, I was told that only the FBI was using DNA at that time for murder cases.

COSTAS: This is in the mid-'80s?

MOTO: Yes, '86 to be exact and that it wasn't being used for the defendants.

COSTAS: Did you have prior convictions, prior trouble with the law?

MOTO: Nothing of that nature, no.

COSTAS: Does it happen, Mary, in your experience, even though it shouldn't that police and prosecutors will say, we're not talking about Vincent in this instance but they'll say, "We have a bad guy here. We know he's done a lot of things. This case isn't perfect but, a) he may have done this and if he didn't he did a lot of other things. Let's nail him."

FULGINITI: You know what I have to say that shouldn't happen. I think what happens more likely than that is that they say, hey this guy has a prior rap sheet, you know, let's take a closer look at him, as opposed to just releasing him on the spot. I think that's probably the more likely scenario.

But I think at the end of the day you've got to have evidence and sufficient evidence beyond a reasonable doubt to obtain that conviction so investigators and prosecutors all evaluate it and especially the prosecutors in that light because, you know, they don't want to put a lot of time and effort in and get an acquittal. You know it's a wasted, you know it's a waste of their time and a waste of their resources.

COSTAS: Mark Geragos, as a defense attorney obviously this new DNA technology and science can be a boon to you and can be a boon to justice. On the other hand, Barry Scheck and Peter Neufeld, who are prominent in the Innocence Project, started the Innocence Project, they first came to prominence in the O.J. Simpson case. Most fair- minded people think that the DNA evidence to the extent that they understand it pointed toward a guilty man in that case.

GERAGOS: And I think...

COSTAS: What do you as a defense attorney do when the DNA evidence seems to point toward your client's guilt rather than innocence?

GERAGOS: You work out a plea agreement. That's generally what you do. I mean if you've got the DNA evidence that's one of the most compelling kinds of or pieces of evidence that you can have. The problem is how was that evidence collected that was then subjected to DNA testing?

That's what Barry and Peter did in the O.J. case is show that at that time the LAPD crime lab and the forensics and how they collected it and what was done with it was just abysmal and consequently what ended up happening is that there were massive changes that were made in trying to bring them into the 21st Century.

Part of the other problems that you have and that they've been able to expose in other places, in Texas for instance, in Houston, where there's been numerous convictions that were thrown out because of shoddy testing that was done.

There's also another series of cases that was thrown out where forensic people were testifying in the south and it turned out that they were not doing the tests and they were just making it up in certain instances.

So, it's not -- it's not something that's universally going to be perfect but if it's rigorous, if it's done right, if protocol is followed then it can be one of the most effective tools for determining who did it, which is after all -- remember, for each of these guys that you're seeing tonight who was convicted wrongfully, there's somebody else out there that did it that got away with it.

COSTAS: We have to take a break here.

I want to let you know that if you want to learn more about issues facing the exonerated, you can go to the Life After Exoneration's website which is,


GERAGOS: ... did it but got away with it.

COSTAS: We have to take a break here. Want to let you know that if you want to learn more about issues facing the exonerated, you can go to the life after exoneration programs Web site, which is More from New York and Los Angeles after this.


JACKIE MOTO, VINCENT MOTO'S SISTER (voice-over): Went to the best schools, lived in a really nice neighborhood. Your father worked to pay for five kids to go through Catholic school. Every Sunday, you had pancakes. And everything in your life is wonderful. Then one day somebody comes up and tells a lie on you and you end up in jail. What the difference is, he knows fear doesn't exist.



COSTAS: Continuing from New York and Los Angeles on the subject of those wrongfully convicted and then subsequently exonerated and freed on the basis of DNA evidence. Vincent Moto spent 10 and a half years in prison for a rape he did not commit.

Now two of the four wrongfully convicted individuals on the program tonight happen to be black, two are white. There's a mixture in those featured in the film "After Innocence" about the innocence project, but in general, in so far as you have these figures or some understanding of them, Vincent, are black defendants disproportionately likely to be wrongfully convicted?

MOTO: That's hard to say, Bob. Due to my experience of people that are wrongfully incarcerated and the people that have been released so far, we have people that were police officers, we have people that were mailmen which were Caucasian. Like Nick Yarris, he spent 23 years on death row. I spent 10 and a half years.

So it's a variety of different people. But I know there's a lot of the majority of people that are incarcerated are of minority of color. So if you take them statistics, you say maybe 20 million people and you say one percent of 20 million people incarcerated, you would say like one percent would be like 20,000 people. So the majority that may be innocent would be of color.

COSTAS: How good was your representation?

MOTO: Terrible. My lawyer never handled -- actually, he never handled a criminal case before. He had told us...

COSTAS: ... never handled a criminal case of any kind?

MOTO: No. Civil. He was a lawyer that was introduced through someone of the family. And my mother and father paid large amounts of money. As a matter of fact through the 10 and a half years that I spent behind bars, they spent over $160,000 on lawyer fees.

COSTAS: How common is this scenario, Mary, which Vincent just described?

FULGINITI: Unfortunately, it's all too common. I think that's the bigger issue, actually, with those that are wrongfully convicted, when you look at the level of their representation.

And we can just compare it to those that have the opposite. Look at O.J. Simpson, look at Robert Blake and look at Michael Jackson. You know, when you have a disparity actually in the quality of counsel, you're going to see sometimes a disparity unfortunately in the outcomes of the verdicts.

COSTAS: Mark Geragos, do people get a skewed vision of how the legal system works because of these celebrity cases? You've been involved in some of them. And the general perception is that a guilty party is likely to walk if it's a high-profile enough case and they can afford top quality representation. Meanwhile, well under the radar are cases like those we're talking about tonight?

GERAGOS: Yes. And what's awful is that it permeates the system. And the way it permeates the system is that when you have jury selection. Within the past two weeks I've been picking a jury in downtown Los Angeles. And you start to hear some of the things that people say, and one of the things that they almost uniformly will refer to are cases that are high-profile, where somebody to their way of thinking "got off." And they got off because of their representation. And you oftentimes -- and they have trouble with that. And they think that they're going to exact some measure of revenge now in other kinds of cases. So yes, it's an awful effect on the criminal justice system. And it really is not representative of what goes on a daily basis in the trenches in most criminal courts throughout this country.

COSTAS: Very quickly, before we have to go to a break and say good night to you, Vincent, you're currently campaigning to convince the Pennsylvania legislature to enact compensation legislation for those wrongfully convicted in that state. They still don't have it, right?

MOTO: That's correct. Right now Representative Roebuck and Representative McGeehan, they're working on trying to get a bill passed for compensation. We need more support. We need more people to become involved.

COSTAS: Any contact between you and the prosecutor since you were released? Any apology?

MOTO: No, none at all. Of course not.

COSTAS: How are you doing?

MOTO: Not good. That's a long story. I still have nightmares, cold sweats. I still have problems -- I go see a psychiatrist twice a week. And this has been going on for awhile. I still have some issues that I'm dealing with from me being wrongfully incarcerated.

COSTAS: We wish you well.

MOTO: Thank you very much.

COSTAS: Thank you for being here. And we'll continue after this.


MOTO (voice-over): That was in prison, down in the music department. And a guy called down. And he was like turn "The Phil Donahue Show" on, turn "The Phil Donahue Show" on. They're talking about DNA. I wrote him a five-page letter and I said, "I was watching your show. I'm sitting in prison and I didn't commit this crime. I was accused of a rape."

He told me that he had forwarded my letter to Barry Scheck and Peter Neufeld and that they would take my case.



COSTAS: Dennis Maher joins our panel now. He spent 19 years in prison for crimes he did not commit. Before we speak with him, as we went to the last break, Mary, you were saying that it is not unheard of for a prosecutor to apologize. Is it not unheard of for he or she to reverse field.

FULGINITI: No, I think you'll hear from Dennis on that topic too later on. But I was commenting on Mr. Geragos' comment, of course a prosecutor is never going to apologize. I happen to have a case, Mark, believe it or not, where I charged an individual with a crime. Through the course of the prosecution, I learned that I charged the wrong guy. And it is a prosecutor's nightmare. Nightmare.

GERAGOS: Do you remember Judge Eichmann (ph) sitting in the Federal District Court? Was he there when you were practicing? His favorite line was being an Assistant United States Attorney means never having to say you're sorry.

FULGINITTI: Well, I did say I was sorry, though. And I promptly dismissed the case as soon as possible when I realized obviously we had made a mistake. So we are human beings and we do make mistakes

GERAGOS: then you left the prosecutor's office because you couldn't live with yourself being a prosecutor.

FULGINITTI: That's not true. I stayed.

COSTAS: Before we get to Dennis' story and it is compelling like the others we've heard tonight, between some of the celebrity cases where the public is generally convinced that the guilty walk and cases like those that we're talking about tonight where the innocent were incarcerated, what do you say to the average American hearing of all these case, watching this tonight, about the general effectiveness and fairness of the American judicial system?

Are these cases aberrations, and does the system generally do a good job outside the margins? Mark?

GERAGOS: No. I mean, it's the best system in the world. Let me just say that. And I live and breathe it every single day. But the fact of the matter is these are not aberrations. In every courtroom, in every state of the union, there are terrible injustices that are taking place. There are people being wrongly convicted on a daily if not weekly basis. And it's awful.

And you've got -- part of the reason is the judiciary has been co-opted. And they've been co-opted by the fact that in states like California where they're elected every six years, a lot of times you got what we affectionately call D.A's in a row. And the D.A's in a row basically do what the prosecutor wants.

If the prosecutor can't do it, then the judge will jump in and carry their water.

COSTAS: Mark, obviously this is from a defense attorney's perspective. And well stated. But while even one incorrect result is one too many in America, what percentage, roughly, of cases are unfairly decided?

GERAGOS: It would not surprise me, and I've seen studies, that there are up to 20 percent of wrongful convictions in the United States. And that would not surprise me in the least, not for a minute. I see -- and I can't tell you, here in L.A. County we've got some of the best judges in the state, yet there are awful injustices that still take place.

You can go to some of the outlying counties in California and you can't believe what takes place. But the fact of the matter is that judges are intimidated on a regular basis, they're intimidated by the prosecutors.

The prosecutors ultimately don't care about justice. They care about getting a conviction. That's an awful, awful thing.

COSTAS: Isn't it fair to say that some defense attorneys don't care about justice. They care about getting their client off?

GERAGOS: Let me just tell you something, Bob. This is something people don't understand. A defense attorney's job is to zealously defend his client.

COSTAS: Of course.

GERAGOS: A prosecutor's job is not. A prosecutor's job and his oath in California is to seek truth and justice, it is not to seek a conviction. Mary, when she was a prosecutor did not take an oath to get a conviction. She had taken an oath to seek truth and justice.

This system is set up so that a defense lawyer is not under that same obligation. He is there to zealously test the evidence of the prosecutor.

COSTAS: Understood. Quickly here before a break, Mark says that some 20 percent of those convicted, in his estimation, might have been wrongfully convicted.

From the prosecutor's perspective, what percentage of guilty defendant, not talking about the gentlemen we've seen here tonight, what percentage of guilty defendants walk in America?

FULGINITTI: Oh, I think there's probably a very large percentage of guilty people that actually walk because the system -- I have to disagree with you. I also don't think there's any judges out there who are particularly intimidated by me as a prosecutor.

GERAGOS: That's because you were in the U.S. Attorney's Office and the federal judges have life tenure. Go to the state court.

FULIGINITTI: But just quickly, I think that the system the way it is set up is really to protect the innocent. It is done in such a way that we have a burden that's beyond a reasonable doubt. You have constitutional protections. The right to a attorney, the right to remain silent.


COSTAS: I the right to interrupt you both. Because the producer will have my head if I don't take this break. And I'm going to do it. (COMMERCIAL BREAK)

COSTAS: Like all of our guests tonight, the story of Dennis Maher's wrongful conviction and later exoneration is told in a new documentary called, "After Innocence."

Quickly, the bare bones facts here. In November of 1983, a woman was attacked as she was walking home from work in Lowell, Massachusetts. The next evening another young woman was attacked very near the site of the first assault.

The second rape victim described her attacker as wearing a red hooded sweatshirt and a khaki military jacket. Dennis was stopped that night. He was wearing a red sweatshirt and an army field jacket along with a military issued knife found in his car. At the time he was a sergeant in the army. And perhaps that accounts -- that clothing similarity accounts for the arrest.

You were also charged with a third rape that happened elsewhere in Massachusetts, but there wasn't much else in the way of evidence besides those eyewitness identifications, correct?


COSTAS: Well there was -- all three victims pick you out of a lineup or with a photo identification. How did that happen?

MAHER: I have no idea. You'd have to ask the police. I had a jeans jacket on, not a field jacket. Because I wouldn't wear my military clothes outside the military. The other conviction was right outside of Fort Devins. I was walking down the street and the cop identified me from between 100 and 150 feet away on a November night between 5:00 and 6:00. It was dark out. So I fit his artist's conception from that far away. I think he only arrested me because he seen the red hooded sweatshirt.

COSTAS: According to the film after innocence and what I read, you never saw your attorney except when you were in court. The representation, such as it was, that you received was abysamal.

MAHER: Yes. He was disbarred for life after my trials.

COSTAS: How did you learn about the Innocence Project? Had you given up hope just about prior to that?

MAHER: I saw them on -- I saw Barry Scheck on Phil Donohue in 1993. And then my friend helped me write a letter to the Innocence Project. And in 1997, they sent the motion in for DNA testing in front of the judge who prosecuted me. And of course, he denied it. The only reason that I got out is because he retired. And I was able to get DNA tested.

COSTAS: With the next judge?

MAHER: With the next judge.

COSTAS: You did receive an apology, yes, from the prosecutor?

MAHER: From the prosecutor, J.W. Conti (ph), the day I got out. I hadn't even left the courthouse building yet and he apologized.

COSTAS: How are you dealing now as a free man with the issues of having been wrongfully incarcerated, whatever you experienced in prison, the transition back to life as a free man?

MAHER: I think I'm doing pretty good because I don't have a lot of time to be angry. I'm angry at the right people. I'm angry at the judge who wouldn't let me out. I'm angry at the cop who arrested me.

But I have a job. I work. I have a wife and son. Hi Melissa and Joshua. I go on about life.

COSTAS: In ten seconds, what is the state of your fate or lack of it in the American justice system?

MAHER: It's been restored somewhat, but I still have issues around it. You know, it's as good as it's going to get.

COSTAS: Dennis, thank you. We'll continue after this.


COSTAS: We're joined by Herman Atkins, a man who was wrongfully convicted and later exonerated and freed based on DNA evidence. In 1988, he was convicted of robbery, rape, forcible oral copulation and for using a handgun in the commission of those crimes.

They took place in California. What was the evidence, such as it was, against you? what was the basis for your conviction?

HERMAN ATKINS, FREED BY DNA EVIDENCE: Like so many cases, it was mistaken identity.

COSTAS: Mistaken identity and nothing but?

ATKINS: Nothing but.

COSTAS: And how is it that you came to be in touch with the Innocence Project and eventually be exonerated?

ATKINS: Like so many exxonnerees, making contact with the Innocence Project, having the Innocence Project take the case, have them file the needed motions, appeals and what you have to have the evidence released so it could be tested. Once it was tested, then the exoneration came about.

COSTAS: We don't have time, unfortunately, to get into even the most superficial examination of your case, let alone all the particulars, but a fascinating personal aspect is that your dad was and may still be, but was certainly, a highway patrolman.


COSTAS: And he would not visit you in prison because his predisposition was to believe in your guilt?

ATKINS: Yes. He was a police officer. He was trained to think in terms of evidence. And evidence showed that I was guilty. Just as it showed 12 other people in a box that I was guilty.

COSTAS: But you said the evidence was only an eyewitness identification. There wasn't much beyond that or was there?

ATKINS: No, that was it. Witness identification.

COSTAS: Have you have you reconciled with your father?

ATKINS: Yes, I've never had a problem with my father. My father is my father. I lost my mother a year after I was released. I'm thankful to have my father. I have no animosity in my heart towards my father.

COSTAS: How has life gone since your release?

ATKINS: I work closely with both the Innocence Project as well as the Leap Project. I work closely with Mark Simon, who is the producer, Jessica Sander, who both are producer and directors of the movie. I worked to bring about judicial reform.

If anybody needs to know what they can do to get involved with the cause itself, you can check out the Web sites at You can also check out the Yes. And there you'll find a set agenda as to what's being done and what's coming up.

Since I've been released I've obtained not one but two degrees. I hold two degres in the field of psychology. I am employed. I work with an organization that worked closely along the lines of individuals getting out of jail with mental disabilities and what have you.

My job is to help them acclimate themselves back into society, make smooth transitions along the lines of basic living conditions and what have you.

My objective in life at this particular stage is to double back, get my Doctorate degree, align myself with the Leap Prject and administer the much need psychological therapy to many of the exonerees who need it as in the case of Vincent Moto.

COSTAS: Mary, none of the four people who visited with us tonight or those featured in the documentary after innocence were death penalty cases. On the other hand, DNA evidence does affect those who are charged with murder. And in some cases those who have been convicted of murder have been subsequently freed because of DNA evidence.

Is this evolving science a good argument for at least a freeze, if not the abolition of the death penalty, a freeze on the death penalty? Former Governor George Ryan in Illinois commuted, as one of his last acts, commuted all death penalty cases to life in prison without parole.

FULGINITTI: Yes, you know, I think -- I personally am opposed to the death penalty. In some of these cases where there was scientific evidence that could have been used, it could benefit, obviously, these individuals. We've seen it benefit some of the people in the Innocence Project.

I think it's how you go about that freeze, though. I think it has to be done in a uniform way, and it has to be done sytematically. It can't be done on a piece by piece or even state by state basis. I think we should do it universally across teh country, double-check these convicitons and see just where we stand.

COSTAS: Mark Geragos, 30 seconds for a last word from you.

GERAGOS: You mentioned Illinois. Illinois did do a study, and the study found that in these exonerations, the one thing that was almost uniformly present throughout all these wrongful convictions was the lack of forensic evidence. That is the strongest argument for a moratorium on the death penalty.

If you've got, even in the most serious cases, this kind of a rate of error and you don't have forensic evidence, how can you put people to death in this system?

COSTAS: Mark Geragos, Mary Fulginitti, thank you very much. Herman Atkins, were glad that justice was done, albeit belatedly. THank you for being here tonight.

ATKINS: Thank you for having me.

COSTAS: Thanks to all of our guests. John King is sitting in tonight on "ANDERSON COOPER 360." We'll send it off to him next as teh news continues on CNN.

Bob Costas sitting in for Larry King.

Sara Jessica Parker's on the show, by the way, on Friday night. We'll see you for that. And for now, good night from New York.

John king is sitting in tonight on anderson cooper 360. we'll send it off to him next as the news continues on CNN.


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