Colorado's wrongful conviction of Robert Dewey holds lessons

The following opinion by Jason Kreag was published by the Denver Post on May 4, 2012 Lawyer: Colorado should compensate the innocent

NEW YORK — During the nearly 18 years he was incarcerated for a rape and murder that DNA evidence finally proved he didn't commit, Robert Dewey coped by imagining that he was riding a motorcycle. In his own words, "I'd hop on and ride in my mind."

Eighteen years is a long time to fantasize about being on a bike, but it would have likely been an even longer ride had the Colorado state attorney general's office and the Mesa County district attorney's office not been willing to work with the Innocence Project and Dewey's long-time counsel, Danyel Joffe, to reopen its investigation of the crime.

Dewey became a suspect in the 1994 rape and murder largely because the police found his actions suspicious. Although DNA testing done at the time excluded Dewey as the source of semen at the crime scene, pretrial DNA testing of his shirt seemed to indicate the presence of the victim's blood on it. Even this evidence was not particularly strong; the analyst testified at trial that the blood on Dewey's shirt was consistent with approximately 45 percent of the population. That was good enough for the jurors, who convicted Dewey despite any other substantial evidence of guilt.

We now know the system got it wrong. Robert Dewey is innocent. Unlike many of our clients, he was fortunate to have been assigned counsel to help with his post-conviction appeals. In 2007, the Innocence Project teamed up with Joffe and retested the trial scene evidence. Advances in DNA technology made it possible to definitively exclude the victim as the source of the blood on Dewey's shirt. The new testing also confirmed that Dewey wasn't the source of the semen recovered from the blanket.

We took this information to the state attorney general's office, which had recently received a federal grant to fund a Justice Review Project. After securing the cooperation of the Mesa County District Attorney's office, the attorney general's office conducted additional testing confirming that it was Dewey's blood, not the victim's, on the shirt.

This testing also yielded DNA results from the semen stain on the blanket which matched profiles of the DNA from the fingernail scrapings and other evidence from the victim's body. The profile of the semen was put in the CODIS databank and matched to Douglas Thames, who is serving a life sentence for a similar crime. The DNA results and some traditional investigative work confirmed Dewey's innocence.

Now that Dewey's innocence has been established, four aspects of the case deserve attention. First, although prosecutors elected not to pursue the death penalty in his case, the crime certainly could have been prosecuted as a capital murder. It's sobering to think what might have happened had he been sentenced to death.

Second, all too often we are forced to close cases because crime scene evidence is no longer available. Fortunately, that is not a problem in Colorado because the state legislature passed a law in 2008 requiring law enforcement to preserve evidence. Colorado lawmakers should pat themselves on the back because these laws not only help to free the innocent but, as we saw in this case, can also help identify the real perpetrator.

Third, Dewey's case is a compelling example of the usefulness of having the prosecution and defense cooperate in post-conviction cases involving innocence claims. DNA evidence has helped to show many in law enforcement that the system doesn't always get it right. In response, prosecutors around the country have started conviction integrity units like Colorado Attorney General John Suthers' project to investigate cases where someone may have been wrongfully convicted.

Dewey's case is the first exoneration to have stemmed from the Colorado project.

The Innocence Project has worked with many of these projects, and we've found that the most successful projects welcome cooperation from defense attorneys. Involving defense attorneys provides an alternative perspective and therefore a more objective examination of the evidence.

After this successful experience, we're hopeful that Attorney General Suthers has seen the value of always including defense lawyers in these investigations. From our experience, those projects that encourage defense cooperation are likely to find cases where the wrong person has been convicted, whereas those that work in a vacuum rarely do.

Finally, while Colorado has done many things right with regard to uncovering wrongful convictions, it is lagging behind in one very important regard: compensation. While he was wrongly incarcerated for the past 18 years, Dewey lost out on some of the best years of his life. He missed out on opportunities to get an education and build a career.

When he was released last week, he walked out of prison with literally nothing but the clothes on his back. While nothing could compensate Dewey for the years he's lost, the state owes it to him to see that he doesn't spend the remainder of his years penniless.

My hope for him is that the state will agree and quickly pass a compensation statute to bring Colorado in line with the majority of the states that have compensation statutes for wrongfully convicted individuals.

I also hope that Dewey has a chance to hop on a real bike soon. I have no doubt that when he does, he'll quickly remember the feeling he had on his last ride nearly 18 years ago, before his odyssey through the criminal justice system began.  

Jason Kreag is a staff attorney at the Innocence Project.