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DNA LETTERS

Dave Harrison is not your typical prisoner. Through fifteen years of incarceration not a day has lapsed that his conviction has not been under investigation or review in state or federal court, often in multiple courts simultaneously. Invariably, a defendant's appeals are exhausted after a few short years, but the volume and substance of the injustices Harrison cites have kept the investigations and appeals into his case alive for fifteen years. A source within the Department of Justice has estimated Harrison's appeals alone, not counting costs associated with his prosecution and imprisonment, to have cost the taxpayers of California well over one-million dollars.

"Only the guilty go quietly to the gallows," is Harrison's mantra when asked to summarize what fuels his passion for vindication. He has loudly protested his innocence since his murder conviction and concomitant twenty-six-years-to- life sentence for the 1988 murder of Ann Jenkins. Harrison's conviction rests entirely on circumstantial evidence; lacking any direct links, such as fingerprints or witnesses. Harrison even had an alibi accounting for his time that day.

Fifteen years of chasing exhaustive paper trails using California's Public Records Act hit pay dirt in the dog-days of 2002, when law enforcement agents for the State of California reluctantly conceded that DNA evidence (two hairs) recovered from off of Jenkins' body remains preserved and in storage. At the time of Harrison's prosecution in 1990, the science of DNA forensic identification was in its infancy, and had not yet made its way into mainstream courtroom use. Indeed, no DNA testing was done in his case. Using the advanced technologies of today, that DNA evidence stands to exonerate Harrison or, at least, grant him a new trial.

"This discovery is huge," says an enthusiastic Harrison. "The case against me was, at best, insubstantial. Had today's technology been available in 1990, I would not have been prosecuted, much less convicted." Harrison goes on to conclude that "DNA tests will finally give credibility to my assertions of innocence. The state can not ignore this." Harrison has a large group of supporters including family, friends, and persons whom he has never met. Those supporters continue to lobby politicians and the media to persuade the District Attorney of San Diego, California, Ms. Bonnie Dumanis, to voluntarily test the DNA evidence. Thus far, Ms. Dumanis has declined every request for DNA testing. Understandably, testing the DNA evidence that would prove Harrison's innocence is a sensitive and risky matter for Ms. Dumanis, whose run for office included assurances that no innocent person would suffer during her term (lofty words that have proven hollow). Proof that Harrison was wrongly convicted and imprisoned would result in finger pointing, loss of public faith (both in Ms. Dumanis and the justice system), civil litigation and monetary judgments. The price tag of justice runs high.

Nonetheless, "by law they are required to test DNA evidence in cases, like mine, where that evidence is determinative of innocence." Harrison makes no secret of his frustrations. "It is obvious that careers and reputations are taking priority over justice. It is difficult to accept the lack of response to this", observes Harrison.

The long journey that has brought Harrison to these crossroads has led him to make an unprecedented offer to Ms. Dumanis, an offer that would settle his case once and for all. "In return for Ms. Dumanis' cooperation," says Harrison, "I will drop my fifteen years of investigations and appeals, and quietly spend my life in prison should the tests prove the DNA to be mine. Conversely, when the DNA is proven not to be mine, the state must vacate my erroneous conviction and sentence, and set me free or grant me a new trial. Fact is, I have never been inside the residence where Ms. Jenkins was slain. The DNA evidence cannot even accidentally be mine. I am 100% innocent," asserts Harrison. "Clearly," Harrison argues, "Ms. Dumanis knows the truth, and that is why she is refusing all requests for testing. She does not want the truth to be uncovered." The exact terms of Harrison's settlement offer have been provided to Ms. Dumanis repeatedly; offers she has refused, repeatedly. Calls to Ms. Dumanis for comment have never been returned. In seeking to turn an adversary into an ally, Harrison sees his offer as a win-win proposition for all parties, including the taxpayers of California. He also sees his vindication as inevitable.

Not content to sit idly by, on or about 28 July, 2003, Harrison filed his Request For Appointment Of Counsel Pursuant To Penal Code, � 1405, By An Indigent Convicted Person (ultimately for DNA testing). The Superior Court granted the Request on 15 August, 2003, and appointed the Office of the Public Defender to investigate the DNA evidence, and move the court for testing. Alas, since that time, the Office of the Public Defender has had their budget cut by 50%0. The case has been shuffled from one attorney to another. As a result, both the Office of the Public Defender and Harrison moved the court in August, 2004, to relieve the Office of the Public Defender from their appointment (Harrison asked for private counsel to be appointed). On 4 November, 2004, the Superior Court refused, confirming her Order of 15 August, 2003, stating that the Office of the Public Defender would remain on the case. Two years since being appointed, the Office of the Public Defender is still on the case. The attorney now handling the case is diligent and competent, and one of the few attorneys in years that Harrison has had any hope in. The attorney is overwhelmed with work, but is giving the case as much time each day as he possibly can.

So, in these late days of August, 2005, we wait patiently.

Contents

-Following is a summary of Dave's efforts to obtain DNA testing of two hairs found on the victim's body.

-Following that is a letter to the San Diego District Attorney's office (one of more than a half dozen) asking for DNA testing. To no avail.

-Following that is an article by J. Harry Jones(San Diego Union-Tribune) about DNA testing being offered to a convicted murderer and the District Attorney's program of DNA testing. Yet they refuse to do testing for Dave's case. Dave's case was a weak circumstantial case. One doesn't have to wonder too hard as to why they won't test.

-Following that is a letter to J. Harry Jones from Dave in response to the article by J. Harry Jones.

PRESS RELEASE--Convicted Murderer's Offer Rests On DNA Tests

Dave Harrison is not your typical prisoner. Through thirteen-years of incarceration not a day has lapsed when his conviction was not under investigation or review in state or federal court, often in multiple courts simultaneously. Invariably, a defendant’s appeals are exhausted after a few short years, but the volume and substance of the injustices Harrison cites have kept the investigations and appeals into his cases alive for thirteen years. A source within the Department Of Justice has estimated Harrison's appeals alone, not counting costs associated with his prosecution and imprisonment, to have cost the taxpayers well over one-million dollars.

"Only the guilty go quietly to the gallows," is Harrison's mantra when asked to summarize what fuels his passion for vindication. He has loudly protested his innocence since his murder conviction and concomitant twenty-six-years-to-life sentence for the 1988 murder of Ann Jenkins. Harrison's conviction rests entirely on circumstantial evidence; lacking any direct links, such as fingerprints or witnesses. Harrison even had an alibi accounting for his time that day. Thirteen years of investigations and chasing exhaustive paper trails using the Freedom Of Information Act/Privacy Act and Public Records Act hit pay dirt in the dog-days of 2002, when law enforcement agents for the State of California verified that DNA evidence recovered from Jenkins remained preserved and in storage. At the time of Harrison's prosecution in 1990, the science of DNA forensic identification was in its infancy, and had not yet made its way into mainstream courtroom use. Indeed, no DNA testing was done in his case. Using the advanced technologies of today, that DNA evidence stands to exonerate Harrison or, at least, grant him a new trial.

"This discovery is huge," says an enthusiastic Harrison. "The case against me was, at best, insubstantial. Had today's technology been available in 1990, I would not have been prosecuted, much less convicted." Harrison goes on to conclude that "DNA tests will finally give credibility to my claims of innocence. The state can not ignore this." Currently, the California Western School Of Law’s Innocence Project arm is working with Harrison in matters of the DNA evidence. Additionally, Harrison has a large group of supporters including family, friends, and persons whom he has never met. Those supporters continue to lobby politicians and the media to persuade the newly elected District Attorney of San Diego, California, Ms. Bonnie Dumanis, to voluntarily test the DNA evidence, but so far have not received any response. Understandably, testing the DNA evidence that would prove Harrison's innocence is a sensitive and risky matter for the District Attorney. Proof that Harrison was wrongly convicted and imprisoned for thirteen-years would result in finger pointing, loss of public faith, civil litigation and monetary judgments. The price tag on justice runs high.

Nonetheless, Harrison points out, "by law they are required to test DNA evidence in cases, like mine, where that evidence is determinative of innocence." Harrison hopes that Ms. Dumanis will have the DNA evidence tested voluntarily. If not, Harrison is prepared to obtain a court order to force the testing. Although encouraged since receiving verification of the extant DNA evidence, Harrison makes no secret of his frustrations. "It appears that careers and reputations are taking priority over justice. It is difficult to accept the lack of response to this," observes Harrison.

The long journey that has brought Harrison to these crossroads has led him to make an unprecedented offer to Ms. Dumanis, which would settle his cases once and for all. "In return for Ms. Dumanis’s cooperation," says Harrison, "I will drop my thirteen-years of investigations and appeals, and quietly spend my life in prison should the tests prove the DNA to be mine. Conversely, when the DNA is proven not to be mine, the state must set me free or grant me a new trial. I am also willing to make concessions as to compensation for my thirteen-years of false imprisonment." The exact terms of Harrison’s settlement offer have been provided to Ms. Dumanis. Calls to Ms. Dumanis for comment were not returned.

In seeking to turn an adversary into an ally, Harrison sees his offer as a win-win proposition for all parties, including the taxpayers of California. He also sees his vindication as inevitable.


16 December, 2004 (10:32am)

Dave Harrison
Ironwood State Prison
#E—62612
Bldg. B5 #215
P.O.,Box 2199
Blythe, CA 92226

Daniel Lamborn
Deputy District Attorney
Office of the District Attorney
330 West Broadway
San Diego, CA 92101

RE: Letter of 8 December, 2004.

Dear Mr. Lamborn:

Your letter of 8 December, 2004, arrived yesterday.

It does not surprise me that you "agree with Mr. Clarke's assessment of [my] case." After all, the true agenda of the DNA Project (of the District Attorney's Office) is not to ferret out cases of the wrongfully convicted, but only to posture for the media on those cases where the conviction is not in any real doubt. I have never been inside the residence where the murder occurred. The hairs collected off of the victim are not the victim's nor mine. The hairs could likely be that of an unknown, or known perpetrator, e.g., a burglar or murderer. The "evidence presented at trial" was, at best, circumstantial, and clearly indicated that someone other than I is responsible for the crime.

Other than the agenda of keeping false convictions, such as mine, hidden from the light, what reasons do you have in refusing to test the DNA evidence? I am an innocent person in prison. If you morally and ethically contest that I am innocent, then test the DNA evidence and prove me wrong. Craig Peyer refused your offer of DNA testing because he is guilty, just as you refuse my want of DNA testing because you know I am innocent. Short of agreeing to testing, admit that you and your office know of my innocence and are simply protecting your connections and interests to the district court (protecting a corrupt ex—prosecutor’s false conviction of an innocent man). Test the DNA evidence and settle the matter once and for all.

A copy of my Contract for DNA testing is provided, signed and dated. Until then, I remain...

Yours Sincerely, Dave Harrison

By J. Harry Jones
UNION-TRIBUNE STAFF WRITER
November 28, 2004

It was the kind of offer an innocent man would never pass up.

For years, former California Highway Patrol Officer Craig Peyer insisted he didn't kill Cara Knott. It was one of the most notorious murder cases in San Diego County history. But when prosecutors went to him in prison last year with an offer to conduct DNA testing on key evidence that could exonerate him, Peyer said, "No thanks."

His refusal to participate in the district attorney's DNA project didn't play well with the parole board several months later. Peyer's parole request was denied after board members considered the inconsistency between his protestations of innocence and his unwillingness to let authorities try to prove it.

Peyer's case was unusual, though. The program that helped keep him in prison was intended to free those who have been wrongly convicted.

Four years ago, the county District Attorney's Office undertook the project, unprecedented for a local prosecutorial agency. It decided to review the convictions of hundreds of people it sent to prison before 1993 to see if DNA testing would shed new light on the cases.

After reviewing 766 cases of San Diego County convicts who assert their innocence, not one has been exonerated. Two cases remain – both involving men on death row – and authorities say they doubt the results will be surprising.

In Peyer's case, prosecutors determined that testing might be possible on evidence recovered from the 1986 slaying.

Peyer was convicted of killing Knott, a 20-year-old San Diego State University student whose body was found at the base of a bridge off Interstate 15 near Mercy Road.

A jury found him guilty of second-degree murder in 1988. Peyer always claimed he was innocent, yet he declined the offer to do DNA testing on evidence such as the blood found on Knott's clothing.

At his parole hearing in March, Peyer's denial was brought up by prosecutor Joan Stein, who said Peyer should continue to be held behind bars. She asked him why he wouldn't agree to the tests if he didn't commit the crime.

Peyer didn't respond. Stein said his silence spoke volumes.

'Wanted to make sure' Then-District Attorney Paul Pfingst began the DNA testing project in early 2000. As its leader, he chose George "Woody" Clarke, a nationally known DNA expert who was part of the O.J. Simpson prosecution team and later assisted in the successful prosecution of David Westerfield for the murder of 7-year-old neighbor Danielle van Dam.

Most of the projects are run out of universities or private foundations and have been successful in freeing hundreds of condemned or otherwise imprisoned inmates. The most famous, The Innocence Project at the Benjamin N. Cardozo School of Law at Yeshiva University in New York City, was founded in 1992 and claims 153 exonerations.

Pfingst, however, was the first district attorney in the nation to undertake one using public money.

When he was a deputy DA, Pfingst persuaded the jury to convict Peyer.

"I hoped to find peace of mind that there wasn't anyone in jail wrongfully convicted," he said recently. "I wasn't hoping to find an innocent person, but I wanted to make sure they weren't out there."

Clarke, now a Superior Court judge, said the project quickly became a model in places such as Chicago; Austin, Texas; St. Paul, Minn.; Las Vegas; and Suffolk County in New York state.

Within months, Clarke and prosecutor Lisa Weinreb developed criteria to determine which cases to examine. They selected 598 homicide cases and 168 non-homicide cases, mostly sexual assaults.

To have their cases reviewed, inmates had to be alive, incarcerated and convicted before 1993, when the San Diego Police Department's crime laboratory began doing its own DNA testing.

An additional criterion, though not an absolute one, was that the inmates had "relatively consistently maintained their innocence."

Just because someone pleaded guilty did not exclude them. Sometimes, innocent people enter into plea agreements to avoid a lengthy incarceration, Clarke said.

Also, people sometimes confess falsely.

"So even if they did admit, sometimes we kept them in the running," he said.

From A to Z Case file after case file was reviewed by law students who were paid $9 an hour. Unless a special request by an inmate was made, the files were reviewed starting with the A's in 2000 and finishing with the Z's this year.

"The law clerks were fascinated by it," Clarke said. "You should have seen their eyes when they read details of some of the crimes."

The team rejected 70 percent of the cases relatively quickly because it was obvious that DNA testing of evidence would not be useful in proving guilt or innocence.

The remaining 225 cases were examined by law students who recommended whether to proceed. Weinreb and Clarke then reviewed them to decide whether to offer a DNA test.

Clarke said the evidence no longer existed in about 20 cases where testing would have been offered.

"It had been destroyed pursuant to normal policies of law enforcement agencies," he said. "Consequently, there was nothing that could be done."

Offers were made to seven inmates. One was Peyer, who refused. So did a man convicted of sodomy in 1990.

"We offered testing and he declined, so we stopped," Clarke said.

In one case, a man convicted of child molestation in 1989 requested a review of a different molestation conviction that had added nine years to the 21-year sentence he received in the first case. Clothing from the victim was examined, but no testable evidence could be found.

Another request came from an inmate convicted of rape in 1997. He asked that a towel the victim said her assailant wiped himself with be tested, since it hadn't been before. An exception to the 1993 cutoff date was made, the towel was tested and it matched the inmate's DNA.

Then there was Elmer Nance, who in 1991 was convicted of raping and murdering an Orange County woman in 1986 along Interstate 8 east of El Cajon.

Nance, with an IQ of 79, was convicted primarily based on a confession he made to police during a four-hour interrogation. A psychologist who interviewed Nance concluded the confession probably was false, the byproduct of a disturbed man seeking acceptance from detectives.

Even the judge who sentenced Nance to 30 years in prison said he had reservations about his guilt.

Nance agreed to the DNA project's testing, but the only biological evidence found on the victim's clothing matched the DNA of her husband, whom she had been visiting that weekend.

The final two cases await test results, said Deputy District Attorney Dan Lamborn, who has taken over the project. Both are death-penalty cases.

Asked about the chances of the results bringing the convictions into question, he said, "Don't hold your breath."

Pfingst said that when the project was first announced, some people in the office questioned using public resources for such a purpose.

But Clarke said costs were kept to a minimum because the bulk of the work was done by law students, and he and Weinreb were able to squeeze in the reviews between other duties.

"I think it was very much an important project, and I think it was a brilliant idea," he said.

13 December, 2004

Dave Harrison
Ironwood State Prison
#E—62612
Bldg. B5 #215
P.O.Box 2199
Blythe, CA 92226

J. Harry Jones
Staff Writer
San Diego Union-Tribune
P.,O.Box 120191
San Diego, CA 92112-0191

RE: SCREAMS OF THE INNOCENT IGNORED BY DNA PROJECT

Dear Mr. Jones:

I have just read your article of 28 November, 2004 ("Killer Peyer refused prosecutor's offer to test DNA"). Frankly, the article smacks of pandering to the District Attorney's Office. Let me tell you the real story surrounding the San Diego, California, District Attorney’s DNA Project.

In 1990 I was convicted of a murder I am 100% innocent of. At that time DNA science was in its infancy. DNA testing did not come into mainstream use in San Diego courts until 1993. In the course of my appeals I became aware that two hairs - - not of the victim or of me -- were collected from the victim. It took years of tenacious efforts through Public Records Act requests before San Diego law enforcement conceded that the hairs remained in storage (as the law requires). Mr. Jones, I have never set foot inside the residence where the murder occurred. Never. The hairs are not of the victim, and can not possibly be mine. Aware of the DNA Project, I wrote numerous letters pleading with George "Woody" Clarke and Lisa Weinreb urging them to test the DNA evidence. Indeed, my case meets all their stated criteria; I am alive, my conviction was in 1990, my conviction rests solely on circumstantial evidence, I have never wavered in asserting my absolute 100% innocence of the murder, and there are two other individuals who are extremely strong suspects. Yet, Clarke and Weinreb declined my repeated pleas for them to test the DNA evidence. So much for their professed aim of reversing convictions. But I did not stop there.

Enclosed please find a Contract I prepared and have submitted to the San Diego, District Attorney, Ms. Bonnie Dumanis, at least a � dozen times. Although a layman in such matters, you can see from the terms of the Contract, that I can not be anything but innocent to make the offers contained therein. Where Peyer may be desperate to avoid DNA testing in his case because of his guilt, I am equally desperate to have DNA testing conducted on the hairs of my case because of my innocence.

Indeed, your article is heavy with comments that a convicted person’s refusal to agree to DNA testing is de facto proof of his guilt. Conversely, then, I must be held as innocent for my unrelenting efforts to have DNA testing conducted. Moreover, I strongly suggest that the reasons why all my efforts for DNA testing have been rebuffed or ignored are that Dumanis, Clarke, Weinreb, et. al., are fully aware that I am innocent. Their ill—agenda is pure San Diego politics; to protect my ex—prosecutor, who is now a federal judge. For that matter, why isn't my ex—prosecutor, Judge Larry A. Burns, urging DNA testing? If he is sure his conviction is just, then the Contract terms would seem to be a blessing. But all my requests for testing have been refused, or ignored, as have all my requests that Dumanis sign the Contract. Peyer's "silence spoke volumes", as does the failure of the DNA Project to test the DNA evidence of my case. Why are my screams not being heard?

It is sickening to me that the District Attorney's DNA Project spouts an agenda of exonerating the falsely convicted, but refuses to test the evidence in cases, such as mine, where the DNA evidence could actually establish innocence. Of course "not one [convicted person] has been exonerated", because the District Attorney's DNA Project refuses to proceed on cases where actual innocence might be proven! The DNA Project is a mockery. A sham. Its members are phonies and hypocrites. Dumanis, Clarke, Weinreb and every person associated with the District Attorney's DNA Project are disgraces. And, with no disrespect intended, it is also a disgrace that you would write an article like so much syrup that doesn't pour.

Mr. Jones, please be so kind as to get the District Attorney's DNA Project to agree to testing of the DNA evidence of my case or, in the alternative, that Dumanis sign the enclosed Contract.

26 November, 2013 (8:50 a.m.)

David Scott Harrison
#E-62612
San Quentin State Prison @ 5-N-70
San Quentin, CA 94974

Bonnie Dumanis, District Attorney
Office of the District Attorney
County of San Diego
330 West Broadway
San Diego, CA 92101

RE: THE PEOPLE v. DAVID SCOTT HARRISON, Superior Court of California, County of San Diego (Case No. CRN.16848) DEOXYRIBONUCLEIC ACID TESTING OF BIOLOGICAL EVIDENCE CERTIFIED RETURN RECEIPT #7009 3410 0000 9099 6928

Dear Ms. Dumanis: You have in your possession, custody and control biological evidence (two hairs) that were collected from the immediate crime scene. As you have previously and repeatedly been made aware, deoxyribonucleic acid ("DNA") testing would most certainly establish my innocence of the erroneous murder conviction I suffer.

The essential facts are:

  1. I have never set foot inside the residence wherein the murder occurred, hence the two hairs did not come from me;
  2. The state's forensic expert established that the two hairs did not come from the victim;
  3. My conviction resulted from 100% (weak) circumstantial evidence;
  4. Not only was there no evidence placing me at the crime scene, there was a witness to the victim arguing with a man that the witness testified was not me;
  5. Identity of the perpetrator/perpetrators was the fundamental issue of the trial;
  6. The two hairs were most certainly left at the crime scene by the perpetrator/perpetrators (the murder was very much intimate, physical and hands-on); and
  7. DNA testing of the two hairs (they are not from the victim or myself) would most certainly provide the (a) identity of the perpetrator/perpetrators, or (b) establish that an unknown perpetrator/perpetrators were present at the crime scene.

The above facts are unassailable.

Obviously, had DNA test results been available at the time of my prosecution identifying the perpetrator/perpetrators, or simply an unknown perpetrator/perpetrators -- I would not have suffered conviction for a murder I am innocent of. The legal standard for DNA testing is simply that:

"[t]he requested DNA testing results would raise a reasonable probability that, in light of all the evidence, the convicted person's verdict or sentence would have been more favorable if the results of DNA testing had been available at the time of conviction."

See, e.g., California Penal Code, 1405 (f) (5). The facts of my case far surpass the legal standard for DNA testing.

DNA testing was not available at the time of my prosecution and conviction. Accordingly, I am requesting that you seek justice in this case by having the two hairs tested using the most advanced DNA testing now available, from any laboratory of your choosing. I ask that the DNA test results be run through State of California and federal databases to seek a match. Of course, I ask that the DNA results be compared to my DNA profile on record with the State of California. If you request, I am happy to provide new biological samples for comparison purposes. I request that all DNA test results, findings, reports, opinions, etc., as well as the outcome of the searches of the databases be provided to me.

Further, I offer to pay all costs of the DNA testing, searches of databases, comparisons, findings, reports, opinions, etc., at no cost to your office, the State of California or her taxpayers in the event the DNA testing results/comparisons show the hairs as originating from me. In other words, there'll be no cost to anyone but myself in the event the DNA test results match my DNA.

There can be no argument that you have in your possession, custody and control biological evidence (two hairs) that, subjected to DNA testing, would certainly cast doubt upon the correctness of the murder conviction I suffer, hence your ethical duty to seek justice in this case.

"[A]fter a conviction the prosecutor also is bound by the ethics of his office to inform the appropriate authority of after-acquired or other information that casts doubt upon the correctness of the conviction. Cf. ABA, Code of Professional Responsibility EC 7-13 (1969); ABA, Standards, supra, 3.11."

See, Imbler v. Pachtman, 404 U.S. 409, 427 n. 25, 96 S.Ct. 984, 993 n. 25, 47 L.Ed.2d 128, 141 (1976); Runningeagle v. Ryan, 686 F.3d 758, 771-72 n. 6 (9th Cir.2012) (accord).

Accordingly, I ask that you agree to the requests and terms presented herein.

In advance, thank you for your consideration of this most important matter. Please advise.

I remain

Yours Sincerely, David S. Harrison

If you have any questions or comments, or would like to correspond with Dave, please Contact Me. Home-Menu

Until then, I remain ... Yours Sincerely,
Dave Harrison