Justice delayed

Friday, December 18, 2009

"I DIDN'T KILL her. I never saw her. I am sorry she died, because her death has ruined my life." The truth of those words -- spoken 27 years ago by Donald E. Gates as he was being sentenced to life in prison for the murder of a D.C. woman -- was confirmed this week. Mr. Gates is finally free, but what the judge called the "absolutely appalling" circumstances of this case merit further investigation.

Mr. Gates, 58, was released Tuesday from jail by D.C. Superior Court Judge Fred B. Ugast after DNA tests revealed that another man committed the crime. Prosecutors had claimed that Mr. Gates attempted to rob Catherine Schilling while she was on her way home from work in June 1981, but when she resisted, he raped her and shot her in the head. Key to the prosecution's case was the testimony of FBI special agent Michael Malone that two pubic hairs found on the woman's body were microscopically identical to a sample taken from Mr. Gates.

What appalled Judge Ugast is that information discrediting Mr. Malone surfaced as early as 1997 but that neither he, as the original sentencing judge, nor the defense was informed. Particularly damning is a Jan. 22, 2004, letter from the Justice Department informing prosecutors that Mr. Malone's lab report in the Gates case was not supported by his notes and advising them to determine whether the defense should be notified, as legally required under Brady v. Maryland. The U.S. attorney's office said it only recently became aware of the letter and is conducting an investigation to determine whether it was actually received and, if so, why it wasn't given to the appropriate officials. A better question is why the government -- as a matter of policy -- didn't alert the defense to doubts raised in 1997, when the inspector general concluded that Mr. Malone had provided false testimony, or in 2002, when it determined his work was material to Mr. Gates's conviction.

It is scary to think how Mr. Gates's release came about only because of valiant, individual efforts. His court-appointed attorney, Roger Durban, was about to retire but was so bothered by the case he wrote in 2007 to both the judge and the D.C. public defender's office, which took up the case. Their efforts to get new DNA testing would have gone nowhere if not for the work of two D.C. police officers, James Trainum and Grant Greenwalt, in tracking down long-lost evidence from the victim's body in the medical examiner's office. It's also scary to think that while Mr. Gates sat in jail, Ms. Schilling's real killer has gone unpunished.

Mr. Gates still must await another court ruling to be exonerated of the charges. Once that happens, he will be able to make a claim for compensation for time spent in prison. Federal law provides for up to $50,000 per year of incarceration; the District leaves the amount up to the court. As much as Mr. Gates gets, it won't be enough.

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