Mistaken Identification|Wrongful Conviction|DNA

The following story appears in the Palm Beach Post newspaper.  Although it originates in South Florida, the story could happen anywhere.

DNA TESTING ON TRIAL

By Susan Spencer-Wendel

Palm Beach Post Staff Writer

Sunday, December 23, 2007

WEST PALM BEACH — Exonerations using DNA evidence have topped 200 cases now, corroding confidence in the American criminal justice system.

Men and women imprisoned for crimes they did not commit, many of those sexual batteries. He-said-she-said cases debunked by science decades later.

Some men exonerated when they were set to be executed. Most men released from prison with a bag of belongings, some robbed of half their lives.

For every person who walks out the steel door comes a wave of prisoners insisting they, too, have DNA evidence that they want tested - post-conviction claims, they are called.

It's a trend so disturbing, Florida legislators recently passed a law requiring that all criminal defendants taking plea deals be asked beforehand if there exists any biological evidence that may exonerate them. It's the state's way of heading off a defendant's post-conviction claim before he even utters "guilty."

It's a way to spare the courts more cases and victims more agony.

In a recent sexual battery case against Esdras Cardona, though, no one had that chance.
The additional DNA testing that both Cardona and the devastated woman wanted never took place. And for one of them, there would be a disastrous ending.

At the time of her rape in April 2006, the woman, then 20, worked as a pastry chef at the exclusive Everglades Club in Palm Beach. Cardona worked there as a dishwasher. They lived in the club's employee dormitories off Worth Avenue, the "barracks" as they are known, she in one building, he in another.

She awoke to a nightmare about 4:30 in the morning on April 2.

A naked man lying atop her, forcing himself inside her.

She says she reached down, pushed him off. She crossed her tiny room and flipped the light on. He flipped it off. She flipped it on again to see him bent over, pulling on his blue shorts. She grabbed his hair, pulled his head back and saw his face before he fled.

It was an "amigo" from the kitchen, she told Palm Beach police very soon after, one of the young Hispanic dishwashers who worked there, but she did not know his name.

Within the hour, the victim was looking at photos of the club's dishwashing staff, a host of young and old, many Hispanics, including 33-year-old Esdras (pronounced EZ-druss) Cardona, a Guatemalan. Cardona and five other men had the same features: short, dark hair and square faces mapped with cheekbones and saw-line jaws.

Swiftly, surely, the woman pointed to Cardona.

Police roused him in his room near dawn, and he answered the door in blue shorts. Cardona agreed to let them search the room, told them he had been sleeping most of the night and had not been to a woman's room at all. He later agreed to give a DNA sample.

Police found a T-shirt in his drawer exactly like one the rapist had left behind in the victim's room: a white V-neck, Hanes, medium.

They noticed tiny scratches on the side of Cardona's neck, and later reddish marks on his lower back. They noted changes in his story of where he had been the night before.

At the police station, he dozed between rounds of questioning by detectives.

Cardona was clearly suspicious.

And there was clearly a strong eyewitness ID - swift and sure, of a person known to the victim. Much more reliable than when a victim must identify a stranger, research says.

Cardona was arrested right then, charged with sexual battery and burglary with assault, punishable by life in prison.

This month, the 210th person exonerated by DNA walked free from prison, a Georgia man falsely accused of raping an elderly woman. Also this month, New Jersey abolished the death penalty, the first state in 40 years to do so. Its governor cited, among other reasons, no way to "preclude the possibility of executing the innocent."

As in the majority of exonerations, the Georgia case was another story of mistaken eyewitness identification.

Among the most chilling examples of misidentification is the story of Ronald Cotton and Jennifer Thompson.

Thompson was a bright college student in North Carolina when a man broke into her apartment and raped her in 1984. She writes today that she studied every detail of the rapist's face, knowing she would have to identify him.

From police photos and a physical lineup, she picked out Ronald Cotton and was absolutely sure it was him. Through two trials, she faced Cotton and identified him again while he professed his innocence.

Both times Cotton was convicted and sentenced to life in prison.

At one point, another man heard bragging that he did the crime was shown in person to Thompson.

"I have never seen him in my life," she recalls saying at the time.

DNA testing of her rape kit later revealed it was the other man all along - after Cotton spent more than a decade in prison.

"I was certain, but I was wrong," Thompson says today as she publicly shares her story and advocates for eyewitness identification reform.

Stories like these have prompted police and prosecutors to fortify eyewitness cases with forensic evidence, and jurors have come to expect it.

As they did at Cardona's sexual battery trial this summer.

The night of the rape in the Everglades Club dorm, a crime scene investigator from the Palm Beach Police Department took photos of the woman's tiny, cluttered room and collected this:

The sheet with hairs on it from the twin bed.

The rapist's white Hanes T-shirt found at the foot of the bed.

Into the brown paper bags they went, marked EVIDENCE.

At the hospital, the woman underwent a sexual assault examination.

They swabbed her private parts and scraped under her fingernails for any skin "debris" from the struggle. They made a rape kit, marked EVIDENCE.

"All tests imaginable were performed on my body to collect evidence, yet none on my assailant," she says today.

When the woman and her boyfriend returned from the hospital to her room in the "barracks," they noticed a gray Colgate toothbrush, documented in the crime scene photos as being on a small table near the foot of the bed.

They called the detective, saying it did not belong there and must have been left by her attacker.

The toothbrush and the rape kit underwent DNA analysis.

The rape kit showed nothing - no foreign skin detected underneath her fingernails, no semen detected inside her.

But the toothbrush had DNA on it: a statistically staggering match to Cardona.

Toothbrushes, though, are portable and easily planted. And whoever heard of a rapist who cared about fresh breath?

Hairs left on the bed and hairs found on the attacker's white T-shirt were never tested for DNA by police or prosecutors.

Hairs that unequivocally may have tied Cardona to being in her bed.

Hairs that may have buttressed the theory that the white T-shirt belonged to him - and not any of legions of men who wear the same kind.

The victim hoped all of the evidence would be tested.

"I had no objection to the hair being tested for DNA. I had wanted that action taken in the first place," the victim says today.

But in the do-si-do between police and the lab and prosecutors, the hairs never were given more than a cursory look, according to trial testimony.

When quizzed at Cardona's trial about the testing, a crime scene investigator from the Palm Beach police testified that the lab tells police what they will test for DNA. The lab is the Palm Beach County Sheriff's Office Crime Lab, which conducts testing for various police agencies around the county.

A forensic analyst from the lab who examined Cardona's evidence testified that no one, police or prosecutors, had asked her to test anything else.

Police say further testing was a decision primarily left to prosecutors. The Palm Beach police handed Cardona's case off to the state attorney's office soon after Cardona's arrest.

Former Assistant State Attorney Ron Herman handled the case in the months before Cardona's trial.

Herman said he was confident in the evidence he had: a rape victim's strong eyewitness ID of Cardona and his toothbrush found at the scene.

"I thought it was solid to support a conviction," Herman said.

Hairs from the bed and T-shirt - they were a gamble. If none belonged to Cardona, it would not point-blank exonerate him, Herman says.

And it may have mucked up the prosecution's case against him.

Besides, Herman knew Cardona's defense team had asked to have the hairs tested at a private DNA lab - an effort he did not oppose.

A month before Cardona's trial, Herman left the state attorney's office to enter private practice. The case then landed with Assistant State Attorney Tara McIntosh.

McIntosh says she thought the evidence was "overwhelming" to support Cardona's guilt: his toothbrush, the victim's ID. And beyond that: his suspicious story, his matching color shorts, the scratches on his neck.

Remember, she says, there are cases that go forward with no DNA evidence at all.

With that, McIntosh went to trial this past June.

Other attorneys who have prosecuted sex crimes say they would have tested hairs from the bed and the rapist's T-shirt for their own peace of mind as they attempt to put a man in prison, possibly for life.

"It's a quest for the truth, the whole truth," said former prosecutor Marc Shiner.

Also, they would have done it to fortify their case for the jury and head off Cardona's decrying the lack of testing in the future.

"I would have gone in there double-loaded," former prosecutor Barry Maxwell said.

Knowing Cardona's defense attorneys were moving to have the hairs tested might absolve the prosecutors of doing so, they say.

But what happens when Cardona's own attorneys fail him?

"A prosecutor must also make sure the defense is doing their job, that a person is adequately represented," Shiner said. "Why wait for somebody to say the lawyer didn't do the job?"

Who is Esdras Cardona?

An immigrant from Guatemala here illegally, working his second season at the Everglades Club. He worked there, along with two of his brothers, rinsing the china of the rich six nights a week for $7.37 an hour.

People who know Cardona say he is simple-minded and mild-mannered, incapable of a violent assault. That he does not drink or smoke and is an evangelical Christian who regularly attended Iglesia Cristiana Fuente de Poder in West Palm Beach. They say he's never been accused of anything like this in his entire life.

Cardona has eight siblings. The family cobbled together money - $25,000 all told, his sister estimates - to pay a private attorney.

Michael Amezaga of Palm Beach Gardens took Cardona's case, assisted at times by fellow attorney Ed Gonzalez.

Six weeks after his arrest, Amezaga asked a judge to lower Cardona's $50,000 bond. Amezaga presented an affidavit of a club employee who says she saw the rape victim extremely drunk a few hours before her attack.

"She could hardly walk," the affidavit states.

Cardona was released from jail on bond and in the year before his trial appeared for his court dates and regularly reported to his bondswoman, Alma Mariles, in West Palm Beach.

Mariles describes Cardona as being calm and confident that because he did not commit the crime, God would not let him be convicted. As a bondswoman, Mariles is naturally skeptical of defendants' stories - but not Cardona's.

Mariles began to worry for him, she says, because he did not seem to understand what was happening. She says she accompanied him to meet with Amezaga and felt like she had to remind Cardona that he must defend himself and remind the attorneys of that, too.

Cardona gave Mariles a little pillow, on it a white picket fence, birdhouse and Bible verse: "No te afanes por el mañana ... que el mañana está en las manos de Dios."

Don't fret about tomorrow, for it's in God's hands.

Cardona had faith, too, in the evidence.

He says from that from the beginning he wanted the hairs found at the scene tested. That those found on the victim's bed and on the rapist's T-shirt do not belong to him. That he did not rape the woman and wanted everything possible tested to show that.

In the months after Cardona's arrest in April 2006, the attorneys began their work, deposing witnesses, Amezaga's flying to Maine to take the victim's statement.

In January 2007, Amezaga asked Circuit Judge William Berger to allow the defense to test the hairs at a private lab in Broward County, which the judge did. Amezaga said then Cardona's family would pay for the testing.

Then their money ran out.

When a person who has paid a private lawyer runs out of money, he can have the state cover some basic costs by being declared "indigent for due process." Taxpayers then pay for the critical elements every defense deserves, including forensic testing and experts.

The money is paid by the Justice Administrative Commission, an agency in Tallahassee that monitors requests.

There is a complex process of how to make JAC requests, attain court orders, follow fee schedules and specify costs. Court-appointed attorneys who regularly deal with the agency are more adept at navigating it, lawyers say.

Amezaga said it was the first time he had a privately retained a client who was declared indigent.

Mariles, aware of this, says she asked an attorney friend to help advise Amezaga on how to do it. He says he was comfortable on his own.

In February, Amezaga received an invoice from the private Broward lab for the DNA testing. It cost a small fortune - $575 per hair, $350 per hour to review a case and $2,800 per day for expert testimony.

Way in excess of what the JAC was willing to pay.

In late April, Cardona's attorney returned to court and told Berger of the quandary, that testing cost much more than the caps on costs allowed. Local caps, for example, would pay an expert only $150 an hour.

The commission, though, follows court orders from judges.

And at that two-minute hearing in late April, Berger gave Cardona a critical ruling: "I find extraordinary circumstances and a need to have this particular lab engaged," the judge said. "Therefore the cap ... this will exceed it if necessary."

The lab's invoice lists two hairs detected on the white T-shirt and 35 hairs on the sheet or collected from the bed.

According to the invoice, the majority of hairs have roots, which in forensic science can make a world of difference.

Roots contain skin cells. And skin cells contain DNA. Forensic scientists say roots are more likely present if a hair has been pulled, such as when the rape victim grabbed her attacker's hair or grabbed at his private parts.

Hair roots can be analyzed using a DNA test commonly performed in forensic labs.

Yet no test on the hairs in Cardona's case was ever done.

Police retrieved the evidence hairs from the private lab in Broward County as jurors were being seated for his trial.

The Palm Beach police employee who picked them up was told by the lab that none of the items were tested because Amezaga's office "did not want to pay the cost," the report states.

Amezaga said it was not a strategic decision not to test the hairs; it was a financial one. He was unable to square the $6,000 cost of tests with what the state was willing to pay, he said.

But why was that?

Berger had ruled Amezaga could exceed caps and spend more to get the hairs tested.

The attorney looks taken aback when asked about this and refuses to say why.

"You can draw your own conclusions about that," Amezaga said.

Just before Cardona's trial began in June, he met with Amezaga.

That's when Cardona learned the hair evidence in his case had not been tested.

According to his sister's account, Cardona then asked Amezaga why he had not been told that beforehand so he could have tried somehow to raise the money.

Amezaga said the best legal advice he could give was for Cardona to fire him and get the public defender's office to represent him. That office, presumably, would be able to pay for the testing.

Then the tens of thousands of dollars Cardona and his family had paid the attorney might all be for naught.

So Cardona went to trial.

One after another, the witnesses entered the cold courtroom, raised their right hands and stepped up on the stand. They faced Cardona and the attorneys, seated behind black tables, and the jurors in the gallery to the side.

The victim's neighbor friend testified he heard a dull thumping in the woman's room next door, then encountered the woman crying she had been raped.

Her boyfriend testified he had seen Cardona carrying a toothbrush in his pocket before. That other employees did that as well, because they did not have sinks in their rooms.

Police testified Cardona seemed to change his story, first saying he was asleep all night, then when pressed, saying he had been with his brother watching TV and then a friend listening to music but could not state the time. The police noted slight scratches on the side of his neck and marks on his lower back.

The victim testified how she just had a few glasses of wine and was not drunk when she went to bed.

Then how she awoke with a stranger inside her. Yelling "You sick #@$*!" Pushing at his chest, shoulders, privates. Flipping the light on and off. Grabbing his hair and seeing his face.

The face of the man in the suit at the black table, Cardona.

"Are you sure that's the person who did this act to you?" McIntosh asked.

"Yes," the woman said.

Prosecutor McIntosh questioned the police about the similar T-shirt found in Cardona's room, the same brand as the rapist left at the scene. She emphasized to jurors that the victim had a good look at her attacker and her identification could be trusted.

"We don't just have to take (the victim's) word," McIntosh told jurors.

There was the toothbrush left there. Cardona's toothbrush.

"We know that the defendant was the person on top of (the victim)."

The defense postulated heavily at trial about the toothbrush. They questioned its being turned over to the police by the victim hours later, suggested it may have been planted. They emphasized that the victim contacted a civil litigator within a month after the alleged attack, intent on suing the Everglades Club, a bastion of wealth - a very strong motive to make up a rape.

Amezaga argued that in the employee dorm full of people, the rooms with slatted doors, no one heard her screams.

"There were no screams, and my client was not in that room," he told jurors.

He cross-examined the police and investigators at length on why the hairs from the scene were not tested for DNA.

Cardona testified via a Spanish interpreter, answering flatly with no emotion. He seemed confused, answering yes to a question, then no to the same question, such as whether he had ever seen the victim in the club's kitchens before.

He said he had a nervous habit of scratching his neck and that the marks on his back were from the weight belt he used at the gym. He recounted being with his brothers and a friend that night, watching TV and listening to music in their rooms, never in the victim's.

"Do you have any idea how your DNA got on any toothbrush in (the victim's) room?" Amezaga asked.

"I don't know," Cardona said.

In Amezaga's closing statement to jurors after two days of testimony, he emphasized the lack of testing and asked them to find Cardona not guilty.

"You are basically left to speculate whether or not unmistakable evidence left at the scene ... links anyone to this alleged crime."

Jurors were wondering why the evidence hairs were not tested for DNA, said jury forewoman Sharon Elbaum of Lake Worth.

Elbaum said her ex-husband and son are both police officers, and to her it seemed the police had botched the case.

"It should have been done," she said.

To Elbaum, Cardona did not seem truthful. She says he looked down all the time during the trial and not at the jury. She found his story conflicting about where he was that night.

She wondered why they never heard from the brothers he was supposedly with and questioned whether he really had a nervous habit of scratching his neck.

"Not once did he scratch his neck during trial," Elbaum said.

Jurors recessed to deliberate the two charges - sexual battery and burglary - at noon on the trial's third day.

While they ordered lunch, the attorneys packed up the evidence in the courtroom to be sent back to the jury room: the blue shorts taken off Cardona that night, the toothbrush, the T-shirt. The tiny package of hairs from the shirt fell out in the process, still ignored.

Elbaum says jurors took a poll, and all six nearly agreed.

Then they took out Cardona's shorts and put the toothbrush in the side pocket, testing whether it could have fallen from there to the table.

Boom - they had a verdict.

Guilty. Both counts.

"We felt that 'thank God' they had DNA on something - the toothbrush," Elbaum said.

In the weeks before Cardona's sentencing, his sister, Amalia Pineda of Rhode Island, wrote a letter to Berger, telling the judge how the DNA testing he approved never had been done and would he please have it done before sentencing her brother?

"I think the results could be monumental for Esdras," she wrote.

The sentencing went on as scheduled July 13.

The victim, who lives in the Northeast now, bought her own plane ticket to be there. She testified how she lived on high alert all the time, how in strangers she saw attackers, how she felt dirty and worthless.

She asked that Cardona be sentenced to life in prison, and if not that, at least 40 years.

Cardona testified that while he was out on bond for the year before trial, his friends suggested he flee, go back to Guatemala and leave it all behind.

"How can I go to Guatemala if I didn't do it?" he asked.

For the first time, there was emotion in his voice, short sobs punctuating his claim of innocence.

With no comment, Berger sentenced him to 20 years in prison.

Today Cardona is at Century Correctional Institution in the Panhandle, near the Alabama state line.
He says he does not understand why the hairs never were tested before trial. That he wanted it done.

And today, does he want it?

Now he doesn't know, he says, because he does not trust the police.

He trusts Jesus Christ, though, and to him he's given all his problems, Cardona says.

The Palm Beach County Public Defender's Office has been appointed to represent Cardona in his appeal.

While the appellate attorneys there have not officially reviewed his case - trial transcripts are being readied now - what they have heard has them thinking this possibility: a post-conviction claim for DNA testing.

Another in the surge of prisoner requests Florida is trying to end.

Another case for the court.

Another round of hearings and possible outcomes a victim must endure.

In a written response to questions, the victim said she is not concerned that this type of claim would happen in Cardona's case.

She's aware the defense asked just before trial to have the hairs tested.

As a witness, the woman was not present in the courtroom to hear testimony about the lack of testing.

It seems she is under the wrong impression that it's already been done.

"One would assume that the DNA results were not in his favor," she said.

And it should have been done earlier by police and prosecutors, right after Cardona's arrest, not nearly a year later by the defense, the victim said.

"I expected that all of this had already been taken care of."

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