By Keith L. Alexander
Washington Post Staff Writer
Wednesday, December 16, 2009; B01
A District man who was incarcerated for 28 years in the rape and murder of a Georgetown University student in Rock Creek Park was ordered released Tuesday by a D.C. Superior Court judge after DNA evidence revealed that another man committed the crime.
Donald Eugene Gates, now 58, had maintained his innocence from the start. He was to board a bus from a prison in Arizona on Tuesday afternoon and head to a new home -- and a new life -- in his home town of Akron, Ohio.
Although the judge's ruling frees Gates, it does not exonerate him. There will be a separate hearing to make that determination after more DNA testing is completed.
"This is very exciting and beautiful," Gates said as he tried to figure out how to operate the cellphone belonging to his Arizona-based attorney. Gates said he was trying to "process everything" now that he had been released from a life sentence.
At Tuesday's hearing, senior Judge Fred B. Ugast angrily criticized government officials who relied heavily on the testimony of an FBI analyst during Gates's trial. The analyst incorrectly linked two hairs from an African American male to Gates. The hairs were found on the body of Catherine Schilling, 21, a white college student who had had been shot five times in the head in 1981. Semen was found on her body.
A 1997 review by the Justice Department discredited the work of that FBI analyst, Michael P. Malone, and 13 other analysts, finding that they had made false reports and performed inaccurate tests.
Although DNA exonerations have received nationwide publicity, Gates is only the second District defendant to be cleared using DNA, according to the Innocence Project, a national group dedicated to exonerating wrongfully convicted people. The last was in 1990.
In this case, attorneys said, the U.S. attorney's office will have a difficult time convicting Schilling's real killer, even if they identify him. Evidence and case files are missing, and the original trial jacket is gone, officials said.
Gates continued to fight for his exoneration from the Tucson prison where he was held, one of various prisons across the country to which D.C. convicts are sent. Last year, the District's Public Defender Service filed a motion to have further DNA testing done on Schilling's remains. Those and subsequent tests discovered another man's DNA and indicated that Gates did not commit the crime, attorneys said in court.
Ben Friedman, a spokesman for the U.S. attorney's office in the District, said the case is now considered an "ongoing investigation." Detectives are checking national DNA databases in an attempt to identify a new suspect. "If we don't have the correct murderer, we're going to do everything we can to find who the correct murderer is," Friedman said.
Reached at her Colorado home, Margaret Schilling declined to comment on her daughter's case.
In court, Ugast asked how such a mistake could occur and go undetected for so long. "This is outrageous," the judge said. He ordered a review of all convictions in the District in which Malone testified. "We are trying to right a wrong," he said.
Prosecutors said authorities had relied on more than testimony about hair when they asked a jury to convict Gates. A government-paid informant who said he knew Gates from the five years Gates lived in the District in the early 1980s testified that Gates confessed to him. Gates told attorneys that he had never heard of the witness.
Another witness testified that Gates tried to rob her just days before Schilling was killed and in the same place.
Ugast, who is a former chief judge and is now on senior status, oversaw the Gates trial in 1982. A jury found Gates guilty of felony murder while armed, and Ugast sentenced him to 20 years to life.
In 1988, Gates wrote Ugast from prison asking the judge to order a DNA test. He even promised to pay for the test himself. Ugast granted the test. But at the time, genetic testing was less reliable, and the results were not conclusive.
Then in late 2007, as his former court-appointed attorney, Roger Durban, was preparing to retire, Durban wrote Ugast asking him to order another DNA test if Gates was still alive. Durban sent a copy of the letter to the District's Public Defender Service.
At the hearing, Ugast asked Assistant U.S. Attorney Joan Draper why it took so long for prosecutors to look into the case. "We began looking into it as soon as it was brought to our attention," Draper said.
Draper said the government would provide Gates with winter clothes, $75 and a bus ticket to Ohio, where he has family. Gates's adviser, University of Arizona law professor Andy Silverman, who met him at the bus terminal, said Gates had to pay $35 for a cab ride from the prison to the Greyhound station.
At the hearing, Gates's attorney, Sandra K. Levick, asked that he receive more financial help. "Mr. Gates is a victim here. We ask the U.S. to use more resources beyond this pittance so Mr. Gates can get on with his life," she said.
Another hearing was scheduled for Dec. 23, at which prosecutors will review all the DNA testing to determine whether Gates should be exonerated and be released from having to register as a sex offender.
One of Gates's friends, Ricardo Nesbitt, who attended the hearing, said he never thought that his friend could have raped and killed anyone. "I knew he wasn't the one," said Nesbitt, who used to play basketball with Gates on the public courts on Seventh Street NW and worked with him unloading trucks.
Gates "just wouldn't do anything like that. He deserves more than $75."
Staff researcher Magda Jean-Louis contributed to this report.