Since DNA testing became commonplace in the ’90s, more than 250 convicts nationwide have been set free — including 11 in Pennsylvania.
Marshall Hale would like to be number 12. In 1984, a jury convicted him of raping a 14-year-old girl in North Philly; he was sentenced to up to 47 years behind bars. Hale’s attorney argues that a blood test performed just hours before the verdict — the results of which the jury never saw — ruled out Hale as the assailant. A DNA test could settle the matter, and the Pennsylvania Innocence Project at Temple has agreed to pay for it. There’s one problem: The Philadelphia Police Department has no idea where the blood that convicted Hale is.
Hale’s not alone. In 2004, 10 area convicts asked the Court of Common Pleas to force the PPD to produce evidence for DNA testing. They, too, were told the cops couldn’t find it. According to the national Innocence Project, Pennsylvania is one of 17 states without a law dictating how long the police must keep evidence after a trial. But while state guidelines are nonexistent, and while the PPD does destroy old evidence to make room for new, its evidence custodian, Lt. John Hrywnak, testified in a 2004 hearing that after he took over in 2000, he ordered that evidence in murder and sex crimes cases be preserved indefinitely.
For cases after 1987, Hrywnak said, “I feel 95 percent [sure that the evidence] is probably there.” (He became a sergeant in the evidence custodian unit in 1988.)
In fact, he testified, most evidence from before the mid-’80s was gone — some of it apparently destroyed after the Health Department declared some materials in a City Hall evidence room hazardous. (In summer, he continued, one could find maggots in the storage rooms.)
The PPD doesn’t exactly keep stellar records on its missing evidence, meaning there’s virtually no way to know what’s been destroyed or misplaced. There’s also no way to tell how many inmates might have been falsely convicted.
“It’s insane to me that no one can answer a pretty straight-up question: What happened to the evidence?” says Pennsylvania Innocence Project legal director Marissa Bluestine. “We’re forced to work around that. Sometimes we can, but in most cases we can’t. And because of that, I think you have a lot of people serving time in Pennsylvania for no reason.”
“DNA was just three letters in the alphabet in 1984,” counters PPD spokesman Lt. Raymond Evers. (Hrywnak, who is still the evidence custodian, referred questions to the department’s public affairs unit.) “And over 20 years, 30 years, a lot of evidence gets collected. We just don’t have the space to keep it all …. Do we sometimes throw away evidence? Yes. But now, there are certain kinds of evidence — like evidence in murders and rape cases — that we just have to keep. DNA means something now.”
You can’t blame the PPD for not foreseeing the advent of DNA evidence; still, it doesn’t require much foresight to recognize that, if someone is put away thanks to blood or semen, it’s not the best idea to trash the stuff while appeals are ongoing.
Ultimately, Hale caught something of a break. In early December, the district attorney’s office agreed to examine the defense team’s analysis of the 1984 blood test. If that examination confirms Hale’s innocence, he might soon be a free man.
Others aren’t so lucky. Though the PPD has kept evidence for homicides and sex crimes for the last decade, its policy change came too late for dozens — maybe hundreds, maybe more — of convicts who can no longer access the evidence that locked them away.