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John Dixon was released earlier this month after a decade in a New Jersey prison for a 1990 rape and kidnapping that DNA testing later proved he didn’t commit. But if justice was eventually served in Dixon’s case, his 10-year fight to have the testing done is a study of the snags and pitfalls awaiting other potentially innocent convicts in similar predicaments. Although legislation in the pipeline in New Jersey is designed to make post-conviction testing more widely available, inmates like Dixon still face such obstacles as lethargy by defense counsel, resistance by prosecutors, loss or corruption of evidence and the high costs of the testing itself. Dixon’s case began when genetic testing of crime evidence was in its nascent stages, a year before New York lawyers Barry Scheck and Peter Neufeld founded the Innocence Project, a clinic at New York City’s Cardozo School of Law aimed at helping inmates use DNA evidence to challenge their convictions. It provides free legal assistance but does not pay for the testing. A network of similar programs is being set up in law schools across the United States, including one at Rutgers Law School-Newark, founded about three years ago as part of the Constitutional Litigation Clinic. It was the New York clinic that recruited Dixon’s present lawyer, a Hoboken, N.J., solo practitioner Paul Casteleiro. Dixon started asking for the tests soon after he was indicted on May 22, 1991, for a rape and kidnapping in Irvington. Casteleiro says Dixon’s public defender, Regina Marrow, advised him to plead guilty, without a plea bargain, because he faced a 50-year sentence if he went to trial. Dixon took her advice, and Essex County Superior Court Judge Leonard Ronco accepted his guilty plea on July 17, 1991. While awaiting sentencing, Dixon continued to press his public defender to have the DNA tests done. Getting nowhere, he wrote to Judge Ronco on Sept. 4, 1991, explaining he pleaded because he panicked after Marrow told him the sentence he faced. “When I requested my attorney to give me a DNA test she gave me an hundred excuses … that’s why I pleaded guilty,” wrote Dixon. According to Casteleiro, the only evidence against Dixon was a victim identification based on a photo array, of the type abandoned by New Jersey earlier this year because of its unreliability. In addition, Dixon’s 5-foot, 8-inch, 150-pound physique did not match the description of the 6-foot, 190- to 200-pound attacker given to the police, says Casteleiro. At a Nov. 12, 1991, hearing on Dixon’s motion to withdraw the plea, Michael Penders, an assistant prosecutor for Essex County, told Ronco that he offered no plea bargain because of “the strengths of the proof which included forensic evidence, a complete lab kit, a victim taken off the street, dragged through several neighborhoods, raped, robbed at gunpoint.” Casteleiro says the lab kit mentioned by Penders contained the DNA specimens that ultimately exonerated Dixon. During the hearing, Ronco said of Dixon’s request for testing, “It’s not even relevant in this case is it, DNA?” Penders answered, “Judge, I doubt it at this juncture, quite frankly.” Penders, now with the Environmental Protection Agency in Washington, D.C., did not return a call requesting comment. Though Marrow explained the relevance, Ronco denied the motion. On Feb. 3, 1992, Dixon was sentenced to 45 years, with 15 years of parole ineligibility, consecutive to a 15-year sentence he already was serving on a Union County robbery conviction. Casteleiro says it was Dixon’s conviction on the robbery that helped scare him into pleading guilty to the rape and that during the Union County trial, the prosecutor improperly referred to the rape case against Dixon in Essex. Dixon never let up on his quest for the test, but the Public Defender’s Office continued to rebuff him, says Casteleiro. He says the appeal filed by pool attorney Jack Gerber of Elizabeth, did not raise the testing or guilty plea issues that Dixon wanted. “I don’t recall a thing about it,” says Gerber, but insists that he complies with R. 3:22-6(d)’s mandate that he raise all grounds insisted on by the defendant. GENETIC SAMPLES RECOVERED Things looked brighter for Dixon when five or six years ago it was discovered by the county prosecutor that the rape kit was still in existence. In 1996, Dixon filed a pro se action for a prerogative writ to compel the testing, but the case was dismissed for failure to state a claim, says Casteleiro. Even after Casteleiro took the case, Dixon’s inability to pay for the testing remained an obstacle. Casteleiro, Assistant Public Defender Dale Jones and Essex County Deputy Public Defender Michael Marucci cite various figures from as low as $400 to as much as several thousand dollars, depending on the number of samples and which lab does the testing. It was the Essex County prosecutor’s decision not only to agree to the testing but to pick up the tab that allowed Dixon to move toward freedom. Deputy Chief Assistant Prosecutor Robert Laurino who joined in Casteleiro’s request to do the test and later to vacate the sentence says at first, Dixon’s guilty plea “gave me pause.” But the dearth of evidence against Dixon and his continued efforts to obtain testing swayed Laurino, who agreed after conferring with the state Division of Criminal Justice. Essex County Superior Court Judge Harold Fullilove authorized the testing in September 2000. The samples were sent to the state police lab on Jan. 5, and a report dated Sept. 25 found no match between Dixon and the attacker. Marrow declines comment on the case. Her supervisor, Marucci, says that what happened to Dixon “sounds like a complete and total miscarriage of justice” but one that wouldn’t happen today. “DNA testing has become routine” for both prosecution and defense, he says. “Most counties are doing it now because they realize it’s the proper thing to do,” agrees Casteleiro. Over the past several years, prosecutors in Hudson, Atlantic, Cumberland and Union counties have cooperated with him on DNA testing in old cases, he says. Marucci says his office is still trying to unearth Dixon’s archived file to determine what went wrong. He also acknowledges there are other innocent people sitting in jail because they have not been tested. There is no systematic review of old files to find such cases, but inmates who ask for testing will have their files reviewed to see it might help. If so, the next step is to see if evidence still exists to be tested. Jones says that since the Attorney General’s Office announced its own DNA testing program in June his office has had two or three old cases referred to it by the state. The attorney general’s program, called the Truth Project, requires passing a lie-detector test first. There is no reluctance to pursue cases that ought to be pursued,” says Jones. But “there are not that many cases to which it applies.” A particular problem with the older cases is that the physical evidence has often been destroyed, especially in nonhomicide matters, says Jones. He notes that preserving physical specimens can be difficult and costly and is not required by law. “It’s rare that evidence was retained for that long” says Laurino of the fact that the Irvington police still had the rape kit that exculpated Dixon. NEW LAW HAS NO FUNDING A bill that allows post-conviction DNA testing, S-1920, passed the state Senate 35-1 on Nov. 26 and is pending in the Assembly Judiciary Committee. It was amended in June to delete the original bill’s requirement that physical specimens be retained as long as the person convicted of the crime remains incarcerated. “There should be a policy requiring preservation of the evidence,” says Casteleiro. Lori Urs, who heads the Innocence Project at Rutgers Law School-Newark, agrees. But a stronger DNA-testing bill she drafted and for which she is seeking support does not include a general retention provision because the cost would scare off support. Her bill, the Innocence Protection Act of 2000, does provide for notice to the state once someone applies to the court for DNA testing, so that any surviving evidence can be preserved. It also authorizes the judge to order the state to pay for the testing if the applicant can’t afford it. S-1920, on the other hand, imposes the cost on the applicant, which wouldn’t have helped Dixon or others like him.

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