Incident of Innocence Innocence Project frees Detroit man from prison after seven years for crime that DNA evidence shows he did not commit

By Jo Mathis Legal News People are surprised to learn how little it took to convict Detroit resident Donya Davis of rape, says Marla Mitchell-Cichon, co-director of the Thomas M. Cooley Law School Innocence Project in Lansing. Scientific evidence didn't save him. Nor did the fact that he didn't resemble the victim's description of the stranger who assaulted her. Instead, it took six years of hard work by Cooley law students to free him from prison after DNA testing revealed that Donya Davis had served nearly seven years for a crime his supporters are convinced he did not commit. "It's a miracle he's out," said Mitchell-Cichon, who is also a Cooley professor. Davis has maintained his innocence since his arrest in 2006. After his conviction, he immediately reached out to the Thomas M. Cooley Law School Innocence Project, which since 2001 has identified, provided legal assistance to, and secured the release of those persons who are imprisoned for crimes they did not commit. The Project only pursues cases in which there is biological evidence that can be tested using DNA testing under Michigan's post-conviction law, MCL 770.16. The task is a difficult one. The Project has screened more than 5,000 cases and has been responsible for the exoneration and release of two other men in Michigan: Ken Wyniemko in 2003, and Nathaniel Hatchett in 2008. The only direct evidence against Davis was the victim's identification. His first trial ended in a mistrial. At a subsequent bench trial before Judge Leonard Townsend, Davis presented an alibi defense, and Townsend (now deceased) found him guilty based on the victim's testimony. Mitchell-Cichon said the victim made an honest mistake in identifying Davis and that misidentification is much more common than people realize. In fact, eyewitness misidentification is one of the leading causes of wrongful convictions nationwide, playing a role in 75 percent of convictions overturned through DNA testing, she said. "The social science of eyewitness identification indicates that we are not very good at identifying strangers in stressful situations. And once an identification is made, it's very rare that you would change that," she said. Prior to his trial, the Detroit Forensic Services crime lab tested skin cells collected from the victim's thighs that excluded Davis. Still, Davis was convicted and sentenced to 22 years in prison. In 2013, the Project-staffed by student interns-sought DNA testing in Davis' case. Bode Technology Group in Lorton, Virginia identified sperm cells on thigh samples that were never identified or tested by the Detroit Crime Lab. That new evidence excluded Davis as the source of the male DNA. Davis was released from the Wayne County Jail in June. But while the Wayne County Prosecutor's Office agreed to the motion for a new trial, it did not dismiss the charges against Davis. A pretrial has been set for Aug. 1. "He's factually innocent of the crime, so the charges should be dismissed," said Mitchell-Cichon. "There's no explanation that he could be the perpetrator in this case, and in fact, the DNA testing points to another individual. Our hope is that charges will be dismissed." But Davis may face a new trial. For the last seven years, Davis made the best of his time in prison, earning his GED, and completing a small business education program and a commercial driver's license course. Davis also earned credits toward a paralegal degree and is working toward his culinary arts degree. Davis spent his free time learning as much as he could about biology, DNA testing and its role in criminal convictions. Since his release, he's taken advantage of re-entry services offered by the Federal Probation Office in Detroit. Mitchell-Cichon said the students learn a lot about the many shortcomings of the criminal justice system. "They also see how difficult it is to undo a wrongful conviction," she said. "All these cases are miracles." She said many stars must be aligned in order to prove a person's innocence. "We can only speculate how many people are innocent in prison because there are over 300 DNA exonerations and hundreds of non-DNA exonerations, but those are only cases in which we could actually uncover the wrongful convictions," she said. "If you just use DNA cases as an example, if the biological evidence was destroyed, and you have no ability to retest the evidence, then you have no ability to prove your actual innocence." The burden is extremely high, she said, noting that a person may be innocent and not able to get the case to court. She said MCL 770.16 doesn't allow for post-conviction DNA testing if the individual pled guilty. And in 2006-when Davis first wrote to the Project-the law did not cover someone who was convicted after 2001. The law was changed in 2009, at which time he became eligible. Because DNA technology is constantly advancing, she believes it's important for inmates to have the ability to get DNA testing when such testing can support a claim of innocence. "When you're factually innocent what you really want to do is tell a new story about what happened and there's really no avenue to do that in the criminal justice system once you've been convicted," she said. "The story at trial is the story." It's very important for prosecutors and the public to learn more about eyewitness identification and to realize that it's actually more typical for an eyewitness to identify the wrong person than the right one, she said. "For a lot of people, it's hard to believe these things happen," she said. "But they do." Published: Thu, Jul 24, 2014