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The following article appeared in the The National Law Journal (Volume 24, Number 18) on January 7, 2002. Copyright 2002 by The New York Law Publishing Company. FREE THE INNOCENT, MAKE THE STATE PAY Kathleen Zellner’s work finances pro bono cases–and they can pay off, too. David E. Rovella/Staff Reporter Kathleen Zellner says she receives about 300 calls a month from potential clients. Of the 4% that she looks into, she takes on about half–an average of six clients for every 300 requests. With only one partner and nine paralegals, Zellner, 45, says she tries only three civil cases a year, each usually being “a multimillion-dollar case.” But her selectivity pays off. She has won a string of big civil verdicts for her suburban Chicago firm, Naperville, Ill.’s Zellner & Associates, and her streak has subsidized her pro bono efforts on behalf of prisoners claiming innocence. Since 1994, Zellner, a death penalty supporter, has helped exonerate seven prisoners in a state where a spate of wrongful convictions led to a moratorium on executions. Initially spurred by an inmate letter in April 2000, last month she won the release of three Illinois men who were wrongfully convicted in the 1986 rape and murder of Chicago medical student Lori Roscetti. Omar Saunders, 32, and cousins Calvin Ollins, 29 and Larry Ollins, 31, walked free on Dec. 5 after having served 15 years of a life sentence. Their exoneration came after what Zellner says was 800 hours of work by her firm and $50,000 in expenses for DNA testing that proved the men’s innocence. Her first wrongful conviction case involved client Joseph Burrows, an Illinois man sent to death row for murder who she helped exonerate in 1994. Also that year, Zellner won the release of Ronnie Bullock after he had served 12 years for the 1983 rape of a 9-year-old girl. And in 1997, client Billy Wardell was freed by her efforts after serving nine years of a 55-year sentence for the rape and robbery of two college students. An eye-catching letter When she received Omar Saunders’ letter, Zellner was preparing for a malpractice trial dealing with a pediatric heart procedure. But something in the letter caught her eye, she says. “It wasn’t that he was claiming to be innocent but that it was a very intelligent presentation of the scientific evidence that had been used against the defendants at trial,” she says. The case involved the same state forensic scientist whose testimony was in doubt in another one of her pending cases. Saunders claimed that he was a so-called “non-secretor,” a person whose blood does not contain antigens that would be evident in other bodily fluids, says Zellner. The semen recovered from the crime scene, Saunders says, showed that the killer was a secretor. Zellner wrote him back, asking him to call her collect from prison. As she prepared his case, though, Zellner says she discovered that Saunders had failed to tell her about previous attempts to challenge their convictions. “Omar and Larry had tried to bring their own pro se DNA motions in 1999 and those were promptly denied because the judge said they had no proof that Calvin was a non-secretor,” she says. “Calvin filed his own motion and then filed an appeal. So when I went in, the judge said he had no jurisdiction since the appeals court was deciding Calvin’s case.” Despite the false start, the appeals court acceded to an affidavit from Zellner’s scientific expert and eventually sent the case back to the trial court. When the court ordered the case to be sent back, Zellner says the state also agreed to the testing–albeit “to nail down the conviction.” Last March, a test done at a Canadian laboratory showed that her clients’ DNA didn’t match the evidence. But prosecutors weren’t convinced, and instead ordered DNA testing for all of the physical evidence in the case. “We picked out 29 pieces of evidence to have tested,” Zellner says. Despite the previous investigation that resulted in her client’s convictions, Zellner notes acidly that the reinvestigation found 22 additional semen stains that had not been previously subjected to testing–none implicating her clients. Prosecutors were still reluctant to release her clients without DNA hair testing, something public defenders had warned Zellner against because of what they said was the possibility of hair being planted by the state. “The upside was that testing had the ability to exclude with 100% certainty,” Zellner says. In November, she agreed to the testing, which led to her client’s release last month. Zellner says she plans to file a federal civil rights suit in addition to a state claim next month. As with her civil cases, in exoneration cases, “you don’t get any money until you go to trial, so I’m kind of used to that. I’m sure at the end of the line, on the civil rights cases, I’ll reap financial benefits.” “This is a very important case and she did wonderful work,” says Barry Scheck, founder of the Innocence Network, a loose organization of wrongful conviction clinics across the country. He adds that, while he’s troubled by private lawyers’ taking on wrongful conviction cases for less than noble reasons, such as public relations or subsequent civil payouts, he nevertheless applauds Zellner’s success. “It’s not a competition for sainthood,” he says. “As long as you do good cases, you can’t ask for more than that.” Zellner argued that it would be “stupid” to discount the value of successful civil litigators such as herself taking on wrongful conviction cases–whatever the motivation: “The only way you’re going to get good attorneys to take these cases is if there is a contingency fee on a civil rights suit.” Steve Hanlon, a partner at the Atlanta office of Holland & Knight who is in charge of that firm’s pro bono program, agrees with Zellner. “If we could motivate a bunch of lawyers nationwide to do this, that would be a good thing,” he says. Rob Warden, head of the Center for Wrongful Convictions at Northwestern University School of Law, says that the steady increase in exonerations means that personal injury lawyers such as Zellner are now needed to take cases. According to the Death Penalty Information Center, 99 prisoners have been freed from death row since the death penalty was reinstated in 1973. Scheck’s group said that the same number, though not all on death row, have been released as a result of DNA testing. “If someone is going to take the cases and win good results for these people, it’s not going to be 32 Innocence Projects,” says Warden. “It’s going to take a much larger effort.” 1/7/02 NLJ A17, (Col. 1)

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