PHOTO COURTESY OF WMU-COOLEY LAW SCHOOL
by Cynthia Price
Legal News
Ken Wyniemko’s life was derailed by being convicted of a vicious crime he did not commit. He spent nine years in prisons in Michigan.
After he was exonerated, he filed a civil suit and was awarded $3.7 million. But in an episode of The Innocence Files, a new Netflix series, he says, “That’s a lot of money, but if someone offered to give me that kind of money to go back, I’d say to them, ‘You’re crazy.’”
The live-streaming series, which premiered April 15, is a case study of some of the stories, including the original prosecutions, of many exonerees served by the Innocence Project Network, of which WMU-Cooley’s Innocence Project is a part.
“I’ve only watched the one episode that features Ken, but my sense is that the focus of the Innocence Files is to identify some of the worst cases of government misconduct,” says Marla Mitchell-Cichon, the current director of the WMU-Cooley Innocence Project. “The purpose of The Innocence Files is, I think, to expose some of the back stories of the wrongfully convicted.”
Mitchell-Cichon does not appear in the episode except briefly in the background of actual footage of Wyniemko’s release from prison in 2003. She says that is in part because the way her clinic does its work has changed.
At its founding in 2001, the clinic’s focus was on doing the investigation and, ultimately, paperwork to obtain additional DNA testing.
The clinic’s founder and first director was Norman Fell. “There are a lot of urban legends about how it started, but the history is really quite cool. Apparently the Michigan legislature was debating whether to allow post-conviction DNA testing. Obviously, they wanted to know how much it was going to cost if they passed the legislation. Norman Fell was in the gallery during that debate, and said that maybe Cooley could screen those cases,” said Mitchell-Cichon.
“Now as a clinical faculty member, I can tell you we don’t tend to start clinics like that,” she adds with a laugh. “We look at community needs and go through a lot of evaluation and processing first. But once that story made front-page news, to his credit, Dean Don LeDuc approved it.”
Since then the mission of the Innocence Project, which is the only innocence clinic in the state focused on DNA and “false forensics,” has changed to “provid[ing] legal assistance to, and secur[ing] the release of, persons who are wrongfully imprisoned for crimes they did not commit.” However, in 2001 when Wyniemko’s case was among the first they explored, after developing the case for DNA testing of the original evidence, the clinic would turn over what it had learned to an outside attorney.
“Gail Pamukov was a long-time criminal defense attorney with a great reputation,” says Mitchell-Cichon, who joined the Innocence Project in 2002 as a faculty member and gradually got more deeply involved.
“Essentially we wrote the petition for DNA testing and then pitched the case to Gail. She finalized the document and took it from there.”
Pamukov is prominently featured in the Netflix series episode about Wyniemko’s story. She details the progress toward his release, which was so clearly indicated that the judge ordered it without a re-trial, and tells about her emotional response to discovering the flimsiness of the circumstantial evidence against him.
But the star of the episode is Wyniemko, who comes off as fairminded and charming. He describes his emotions, whether anger, sadness, or fear, in a low-key manner, and though he tears up at times, and perhaps due to careful editing, he never appears overwrought in the episode.
That editing is probably not surprising, considering that many of those involved with The Innocence Files have either been nominated for Academy Awards, or won them. These include executive producers/directors Liz Garbus, Alex Gibney, and Roger Ross Williams. The national Innocence Project Network co-founders Barry Scheck and Peter Neufeld acted as consulting executives.
The series currently runs for nine episodes and was three years in the making. Barry Scheck appears in the Wyniemko episode, which is called “The Million Dollar Man.”
Wyniemko’s conviction for a horrible 1994 rape, along with breaking and entering and armed robbery, was based on three factors. First, the victim identified him in a line-up despite the fact that her attacker wore a mask. Second, Wyniemko’s ex-girlfriend saw the composite drawing (which the victim said was “60% accurate”) and sent a tip that she thought it looked like Wyniemko And finally, someone who spent a brief amount of time in a cell with Wyniemko “ratted” on him.
The only forensic evidence used at the time was a crime-scene blood analysis which indicated the perpetrator had a different blood type than Wyniemko.
Ironically, the judge gave Wyniemko a stiffer-than-guidelines 40-60 year sentence based on the fact that he did not show remorse – which is of course because he knew he was not responsible for committing the crime.
He started reaching out to innocence clinics very shortly after being put in the Jackson prison. The national project was overwhelmed and could not respond. Eventually the WMU-Cooley project began pursuing the case in earnest.
Pamukov says in the episode that she was amazed at the amount of evidence they found that had not been DNA-tested. After the petition was accepted, the DNA?tests clearly indicated that Wyniemko was not the rapist.
Linda Davis, the prosecutor at the time and now a well-respected judge who spearheads work with community assistance for people with opioid use disorders, says as part of an investigation in 2004 that, when she first found out about the DNA?results, she spent a sleepless night going over all of the details of the case that she could remember. She testified that she did not come up with anything that could have been done differently.
Wyniemko, however, did enter a lawsuit asking for compensation. Represented by well-known attorneys George Googasian (a former State Bar president) and Thomas Howlett from the Googasian Firm, Wyniemko was granted the $3.7 million award. He continues to work toward policy and practices that will make such wrongful convictions a thing of the past.
In 2008, the DNA database had a match “hit,” identifying the real attacker, but there was no prosecution because the statute of limitations – which has since been virtually eliminated by legislation – had expired.
The WMU-Cooley Innocence Project, staffed by attorneys and students under the supervision of attorneys, has also obtained exonerations in the cases of Nathaniel Hatchett, Donya Davis, and LeDura Watkins.
Mitchell-Cichon says that the clinic has recently been operating in partnership with the Wayne County Conviction Integrity Unit, in part, and they anticipate working with a recently-developed statewide unit going forward. She says it has been a positive experience, since, among other things, the CIU can often get records that might have taken a long time for the Innocence Project to find.
“We really need to track the data, and we need to determine what can we fix and fix it. We’re never going to able to fix bad actors, but we can punish them, and we can also improve identification and other procedures,” says Mitchell-Cichon. “There are so many things we can do to prevent these wrongful convictions from ever happening.”
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