Virginia Hench

Alvin F. Jardine III was set free recently after nearly 20 years behind bars; he had been wrongly identified as the man who raped a 25-year-old woman at her Maui home in 1992.

The Hawaii Innocence Project, headed by University of Hawaii law professor Virginia E. Hench, put forth DNA evidence that Jardine was not the assailant, even though the victim had identified him as such. The group put forth evidence that a tablecloth covering a “papa san” bowl chair where the victim said the rapist had sat during and after the assault had four DNA samples, none of which came from Jardine, whose 1992 conviction followed two trials that had ended in hung juries.

Hench has been a professor at the University of Hawaii’s William S. Richardson School of Law since 1993. About 2004, she said, longtime Hawaii Deputy Public Defender Susan Arnett, an acquaintance of Justin Brooks, director of the California Innocence Project in San Diego, talked with Hench about establishing a similar project in Hawaii. Hench brought Honolulu criminal defense attorney Brook Hart and William Harrison onto the scene, and the Hawaii Innocence Project achieved its first success in freeing Jardine.

Other cases are being reviewed by the Hawaii project, and Hench said several are reaching a significant point that could free others on the basis of DNA evidence.

QUESTION: How do you go about looking for cases where the project may be of use?

ANSWER: Cases look for us. We don’t ever contact somebody and say we think we can help you with your case. Most of the time it’s a family member. Occasionally someone that we’ve worked with will tell someone else. Cases take years to develop, so someone who is actually incarcerated whose case we are working on might mention to someone else that they might want to contact us. So we have a screening procedure.

After the first contact, whether it’s a family member or whether it’s a letter — we get letters from inmates — then we first look at whether the inquiry meets our basic requirements. The person has to have been convicted in Hawaii; it can be federal court, military court, state court, it doesn’t matter, but it has to be here in Hawaii. … Hawaii prisoners who are in Arizona, we can take their cases.…

In some cases, people contact us with purely legal questions, and we really don’t have the resources to just be a genuine post-conviction or appellate project. So if they’re not claiming actual innocence — which for our purposes means somebody else did it or there was no crime at all; that’s our definition of actual innocence, which doesn’t include legal defenses such as self-defense or something like that — we don’t take that type of case, where they’re saying “Yeah, I did it, but it was excusable or justifiable and the court didn’t agree with me.”

Q: How did you learn about the Jardine case?

A: Ilima Morrison, who is an attorney in town, a graduate of (UH) Richardson Law School, had heard, I guess, through the Richardson grapevine that we were starting an Innocence Project, and she had been contacted by Alvin Jardine’s family to file a motion to preserve evidence on Maui, which she had done pro bono, and she contacted me. We were just in the process of getting set up — we hadn’t even started taking cases yet — so Alvin’s case was in the first package of applications that we ever received in the fall of ’05. … She had filed a motion to preserve evidence, which it turned it out that most of the evidence had already been destroyed, but it was very helpful because it helped to preserve the one piece of evidence that was finally able to be DNA-tested. So we started investigating the case.

Hawaii has a very good DNA statute, but one of the requirements to file for DNA testing is that you have to show where in the record the new DNA results, if any, might have made a difference. For example, if it had been a consent case, the DNA would make no difference — for instance, if it were a case where the person was claiming they were not guilty because the other person consented in sex assault. In a case like that, DNA would have been irrelevant.

We first contacted the prosecutor’s office on Maui and asked if they would work with us to get the testing, because when we do DNA testing, we set it up so that it goes to an independent lab, and they send the results to us and to whatever prosecutor is involved, too. … If it’s not exculpatory, we’re moving on. If it is exculpatory, we would hope the prosecutors would want to work with us. But they declined for whatever reason. We have an email from (the Maui trial prosecutor) saying that she wasn’t going to cooperate in anything that might overturn one of her cases.…

There’s no doubt that this crime occurred. It was somebody else.

Q: How many cases do you have now that you’re looking at?

A: We have about four or five that are active to the point where we’ve either committed or already filed something in court, or may in the near future. They’re not all DNA cases. We have perhaps 14 others that were actively investigated, and we have several dozen others where we have initial inquiries or applications that we’re looking through to see whether or not we can do anything further.

Q: In those four to five, do those cases have conditions where there is justification to go forward?

A: Yes, but it’s our policy until something is on public record, we don’t discuss the case.

Q: How close are these four to five to being activated?

A: I guess three now are at various stages — two sex assaults and a murder. We have (exculpatory) evidence in each case. (Jardine was the fourth.)

Q: As a rule, is evidence now being held adequately so that what you’re doing can be achieved?

A: We’re the only state that doesn’t have a state crime lab, and as far as I’ve been able to determine, at least, none of the departments have been willing to say whether they do or do not have preservations policies, so it’s difficult to determine whether it’s being held adequately. But there do not seem to be standards, which would be a good first step.

I think it would be very important to us as a start to take a look at eyewitness identification, especially because in a multicultural population, eyewitness error is even higher when it’s cross-racial. There’s been a lot of study about that. Even when you live around people of other races and you’re very accustomed to them, there’s still a higher error rate, for whatever reason I have no idea.

So one good step would be to adopt some of the best practices that have been established, or at least to have a commission to study it and come up with a proposal.

The only person who benefits from a wrong ID is the actual criminal. Somebody committed this crime against the victim, and it’s too late to prosecute them now.