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Prosecutor reflects on wrongful conviction in D.C. killing

By Keith L. Alexander
Saturday, March 6, 2010; B01

It is the type of news no prosecutor wants to hear: The defendant you worked for months to send to prison for 28 years is actually innocent.

J. Brooks Harrington received such news in December when a DNA test proved that Donald E. Gates, the District man Harrington prosecuted and helped send to prison, was innocent of raping and murdering a Georgetown University student in 1981.

"I can't express how sick this has made me feel," said Harrington, 61. "I was always trying to be about protecting people. To find out that I had the wrong guy is beyond description."

It was the first murder conviction overturned by DNA evidence in the history of the U.S. attorney's office in the District. Prosecutors there declined to talk about the Gates case publicly. Behind closed doors, many are checking and double-checking their caseloads to make sure they don't have another Gates.

"Not only can this happen again, but it will," said Harrington, now an ordained minister in Fort Worth. "Nobody has any interest in convicting somebody who didn't commit a crime. You do your best with the evidence you have. I was just flatly wrong about it. I did my best, and it wasn't good enough."

Emotion fractured Harrington's voice as he talked about the exonerated man. Harrington now keeps a photo of Gates that he downloaded from the Internet in a frame over his desk. Also on the desk is a letter he received from Gates after he was released. It reads:

"Rev. Harrington, I forgive you. I forgave you a long time ago. Now I consider you my friend. Your brother in Christ, Donald."

Gates's absolution left Harrington in tears. "It's one thing to say I ought to forgive and not have bitterness, but he really seems not to have any," Harrington said. "He was more than kind to me. He's an amazing man."

Meanwhile, Gates, 58, remains in Tennessee, trying to adjust to freedom just months after his release.

"I don't have any anger towards anyone," he said recently. "I can't focus on what has happened to me. I can only focus on the now."

For five years, Harrington was a star prosecutor U.S. Attorney's Office in the District. Between 1978 and 1983, he prosecuted about 70 of the District's most gripping rape and murder cases. During that time, he received a not guilty verdict in only five trials, he recalled. In 1982, he was promoted to deputy director of the D.C. Superior Court's felony trial division.

"Institutionally, you don't rise in the office by being afraid to prosecute difficult cases," Harrington said. "There's a certain amount of institutional pressure. The more you win difficult cases, the more you move up the totem pole."

The most talented prosecutors, who exude strength and know how to wield power, tend to rise faster. "A person who is a prosecutor has a tremendous amount of power, and a lot of that power is exercised behind closed doors, interviewing and preparing witnesses," he said. "It takes a lot of moral integrity. But even then, it's not infallible."

Prosecutors also face additional pressure from community leaders and residents to ensure a criminal isn't set free to commit another crime. "If you have the right person and the jury acquits, that person goes out and does the crime some more," Harrington said. "You have to protect the community."

Harrington said he believed he was protecting the community when he convinced a jury that Gates was the man who raped and killed Catherine Schilling, 21, a college student whose naked body was found in Rock Creek Park in 1981 with five bullet wounds to her head. Gates, all the while, maintained his innocence.

As lead prosecutor, Harrington based his case on several pieces of evidence. A hair taken from Gates was found to have matched a hair found on Schilling's body, according to an FBI forensics analyst. The hair, Harrington later said in court, was the "key" and the "link and the corroboration to every other evidence."

Harrington also relied on the testimony of a paid informant, who told authorities that Gates admitted to killing Schilling during a botched robbery. Gates told lawyers that he never met the informant to whom he supposedly confessed. Harrington said later that it was the first time he had put a paid informant on the witness stand during a trial.

And Harrington considered Gates's criminal history, which included assault charges and the assault of a woman in Rock Creek Park just days before Schilling's body was found.

The murder case against Gates began unraveling in 1997, when the Justice Department found that the FBI analyst who reviewed the hair sample, Michael P. Malone, made false reports on cases across the country, including Gates's. "None of us knew the hair examiner was dishonest," Harrington said.

In 2000, the Justice Department asked the U.S. attorney's office to review the Gates case. By then, Harrington had left the office and moved to Fort Worth. Other lawyers in the office reviewed the case but found that the informant's testimony and Gates's criminal history outweighed the false testimony from the FBI.

Harrington said he was not contacted about the new evidence in the Gates case until December, after officials in the U.S. attorney's office forwarded a copy of the DNA request from Gates's new attorney.

Harrington, a former Marine and graduate of George Washington University Law School, is co-pastor of the 7,000-member First United Methodist Church in Fort Worth. He uses his legal expertise to help abused women and children in the city and volunteers with the Innocence Project, a national group dedicated to exonerating wrongfully convicted people.

The Gates case wasn't the first time a defendant put in prison by Harrington was later found to be innocent. In 1980, Harrington convinced a D.C. Superior Court jury that Archie Alston, then 47, of Northeast Washington shot a man during a fight over money. Alston told attorneys and police that he never shot the man but instead hit him with a brick in self-defense. Alston was convicted of assault with a deadly weapon, a gun, and carrying a pistol without a license.

Alston spent five months in jail before he persuaded another defense attorney to take his appeal. The new attorney reviewed extensive medical examiner and hospital reports that said the victim's wounds were not consistent with bullets.

A year later, a D.C. Superior Court judge granted Alston a new trial and criticized Alston's previous attorney for "gross incompetence." Before the second trial was to begin in 1982, Harrington dropped all charges against Alston.

A month later, Harrington announced that he was leaving the U.S. attorney's office and moving to Texas.

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