Editor's Note
Christine Mumma, Dwayne Dail's lawyer, spoke at last year's annual NIJ Conference. Mumma is the Executive Director of the North Carolina Center on Actual Innocence and the Executive Director of the North Carolina Chief Justice's Criminal Justice Study Commission. Here are excerpts from her July 23, 2008, remarks.
About three weeks after the rape, the [rape victim's] mother saw Dwayne drive by the apartment complex. Dwayne was looking for his friends, but the mother thought he was looking up at their apartment complex at their window. She took down the license plate and called the police and said, "I know who raped my daughter."
You can imagine that she was completely focused on who had done this to her 12-year-old daughter. She gave the police the license plate number — and the police said that her daughter had to be the one to ID the attacker, as she (the mother) was not there.
Three weeks after that — six weeks after the rape — the mother saw Dwayne in the parking lot with his friends. She walked through the parking lot with her daughter and basically said, 'Is that him?' And it became "him" in the child's mind.
Misidentification is the leading factor in wrongful conviction across the country. It's present in 75 percent of the wrongful convictions. Crossrace ID has its own very unique issues. On top of that, in Dwayne's case, you had 2:30 in the morning, a young victim, woken in the middle of the night, very little lighting, a short-interval exposure, weapon focus and trauma. You had all the factors that can cause a misidentification.
Of course, when you have the victim sit on the stand at the trial and point and say, "That's the man who raped me," that's incredibly powerful evidence for a jury.
On Forensic Evidence
The only "forensic evidence" in Dwayne's case — and I use quotations very purposefully — was the microscopic comparison of hair. Hair was taken from a throw rug in front of the victim's bed; the rug had been bought used three years prior. They vacuumed it and obtained hairs: 40 African-American hairs and three Caucasian.
The letter Dwayne referred to from his attorney was before they had identified the three Caucasian hairs.
Two of the pubic hairs were determined not to match Dwayne, and they determined the other hair — a head hair — was microscopically consistent and therefore could not exclude Dwayne. So that was the forensic evidence that was presented at trial.
On Preservation of Evidence
The rape kit was destroyed in 1994. The other evidence — the bed sheets and the child's nightgown — was put into a bag after trial, taken back to the police station and put on the wrong shelf. Thanks to a mistake, it was put on a shelf with murder evidence — only murder evidence is preserved — and an inventory was not done for 18 years.
We made countless phone calls and visits asking about that evidence and were constantly told there is no evidence in rape cases, only murder cases. We never dreamed that someone had not actually gone in and checked the shelves to make sure. Then one day, we called when they happened to be doing an inventory, and they had discovered the evidence in Dwayne's case.
On Selecting Dail's Case
The North Carolina Center gets about 1,200 inquiries a year — and that doesn't count all the mail, people asking for help with sentencing or anything like that. That's 1,200 innocence claims a year that we have to go through. We run about a 95 percent rejection rate.
The things that highlighted Dwayne's case for us were the eyewitness identification — the weakness of that ID — and the fact that he turned down a very, very attractive plea offer. He was dragged from the courtroom by his ankles claiming innocence. He constantly claimed innocence throughout the entire time he was in prison. The weakness of the forensic evidence, the fact that there was a rape kit taken, these were all things that go on our checklist to say this is a case that we need to pursue.
There are many cases, however, where I believe there is a credible claim of innocence and the evidence has absolutely been destroyed … and there's nothing we can do. Proper collection, storage, preservation and notice of destruction should be the top priority item not only for innocence claims, but for cold case resolution, for rape victims and murder victims and victims of violent crimes. Forensic science in general is changing so much that we'll be able to solve those crimes tomorrow even though we can't solve them today. So, preservation of evidence has to be a priority.
On DNA Evidence 18 Years Later
Semen was found on the inside seam of the child's nightgown; it excluded Dwayne and matched someone else in CODIS (Combined DNA Index System), who was in prison, serving time as a habitual felon after more than 12 convictions for breaking and entering, as well as convictions for secret peeping, forgery, larceny and charges for a separate incident of first-degree rape. Had we not had that DNA hit, Dwayne's case probably would not have moved as quickly as it did.
About This Article
This article appeared in NIJ Journal Issue 262, March 2009, as a sidebar to the article Postconviction DNA Testing Is at Core of Major NIJ Initiatives by Nancy Ritter.