April 10, 2024
Ernesto Behrens, DC# 732564
Martin Correctional Institution
1150 S.W. Allappattah Road
Indiantown, Florida, 34956-4397
Harold F. Pryor, State Attorney
Seventeenth Judicial Circuit of Florida
Broward County Courthouse
201 S.E. Sixth Street
Fort Lauderdale, Florida, 33301-3360
RE: Conclusion on the Petition’s Review of Conviction
Honorable Harold F. Pryor,
On February 1, 2024, Assistant State Attorney Sarah H. Gresham wrote me a correspondence that I received a couple of weeks ago. The short letter is titled “Status of Petition Review of Conviction” and states, in pertinent part:
“The CRU has reviewed your petition, case file, DNA reports, letters, and every attachment or exhibit provided. The CRU has determined that you are not innocent. We are not able to help you. The CRU reviews cases where the petition establishes a plausible claim of innocence that is capable of being investigated and resolved. This concludes the review of your petition.”
Sir, I wish I could describe to you the deep sense of disappointment I am experiencing right now. However, it is just impossible to explain what I am feeling in words. It is an indescribable feeling of frustration, and it is most definitely extremely painful to deal with it as well. Nonetheless, I would most definitely like to take this once-in-a lifetime opportunity to express to you the reasons for my disappointment.
Being a wrongfully convicted individual for the last 27 years has enabled me to figure out my next legal battle’s disappointment. Each new experience I am confronted with is painful but allows me to explore and focus myself on new hope techniques. However, I wish to express my dismay for the appalling treatment I have received as a wrongfully convicted individual, who has been trying to prove his innocence for almost three decades. In fact, I first applied for my conviction to be reviewed by the Broward County Conviction Review Unit back in 2018. I have patiently waited for six (6) years to obtain a fair look at and a meaningful review of my petition or case, however, I did not achieve any positive result.
Nevertheless, my intention in writing to you is to vent my frustration over the whole situation and to address it. I am writing this letter to complain about the lack of ‘’integrity” and ‘’commitment’’ of the Broward Conviction Review Unit and its need to develop better work ethics so it is able to deliver what the Broward Conviction Review Unit has been created to do.
In this letter, I am writing to express that the Broward Conviction Review Unit should consider the very sensitive conviction review it provides and recognize that its conviction review is dependent on the trust that the participant defendants have in it when they engage, authorize, and consent for their convictions to be reviewed. Thus, the Broward Conviction Review Unit’s work ethic and pride in what it does are paramount, as is possessing a deeply ingrained sense of a good, meaningful, committed, and integral conviction review process, not just choosing and leaving out or ignoring necessary scientific testing procedures that should be performed on specific available evidence that may clear the participant’s wrongful conviction that he or she is currently complaining.
As stated in another way, the Broward Conviction Review Unit should conduct all possible scientific testing that might be available in any particular case in which there is available evidence for testing. This way, satisfying the participant’s last opportunity of his or her life to prove his or her innocence. In fact, by the Broward Conviction Review Unit limiting itself to just reviewing the very same evidence that was used to convict the defendants in the first place—as it was done in my particular case, and not pursuing DNA testing on different but available evidence that was never DNA tested with newly developed and more modern scientifically advanced DNA testing, as well as, ignoring the processing of the available finger and palm prints collected at the crime scene almost 30 years ago—at a time when there was not enough available data to point out to whom those prints belonged to, the Broward Conviction Review Unit, simply corroborates the already obtained wrongful conviction I am so vigorously disputing. In other words, the Broward Conviction Review Unit is not moving towards overcoming my wrongful conviction but instead affirming it, ignoring this way, the very purpose of why the Broward Conviction Review Unit was created in the first place.
A wise person once said, “Always render more and better service than is expected of you.” This statement is something I strive for at all times, but I believe that there should be a certain standard for everyone. In this scenario, both parties (defendants and conviction review units) are in a position to conduct a transaction; one is in need of a conviction review, and the other is in the capacity of providing the conviction review that is needed. Therefore, both parties must be cordial and respectful. Yes, every case that applies for conviction review will not ultimately be a good case for review; not every case qualifies for the strict and discretionary standards of conviction review every time, but in general, the rule needs to be one of professionalism, respect, and integrity among the two parties so that everyone is satisfied at the end of the transaction. One will prove he or she has been wrongfully convicted, and the other will put an end to such a wrongful conviction.
The strength of our criminal justice system depends on its ability to convict the guilty and clear the innocent. But we know that innocent people are sometimes wrongfully convicted, and the guilty remain free to victimize others. The consequences of a wrongful conviction are far-reaching for the wrongfully convicted and the survivors and victims of the original crimes. In fact, to examine the impact of wrongful convictions and better understand their needs, in February 2016, the National Institute of Justice (NIJ), along with its partners in the Office of Justice Programs (OJP) and external organizations, hosted listening sessions with victims or survivors of crimes that resulted in wrongful convictions and individuals who have been exonerated. Both original victims and exonerees described the need for specialized services after a wrongful conviction, but usually they did not have access to these services. Therefore, while there has been substantial attention devoted to the causes of erroneous convictions, there has been limited focus on what happens after an exoneration occurs. The NIJ is dedicated to using science to learn about the causes and consequences of wrongful convictions. Only with this understanding will we minimize these miscarriages of justice, support victims, and restore their confidence in the justice system.
Now, I would like to raise the issue of my innocence once again. I think it is best if I start by chronologically splitting and addressing the above-submitted correspondence I received:
Part I
“The CRU has reviewed your petition, case file, DNA reports, letters, and every attachment or exhibit provided. The CRU has determined that you are not innocent. We are not able to help you.”
Respectfully, the CRU’s review of my petition, case file, DNA reports, letters, and every attachment or exhibit I provided is not enough for the CRU to adequately determine that I am not innocent. In fact, by doing so without performing any further scientific testing on the available evidence, as unambiguously requested, the CRU is simply corroborating the already known fact that I have been wrongfully convicted by a jury panel that did not have the benefit of knowing all the facts related to this case. For example:
(1) The jurors were not able to know and/or properly weigh—during the trial proceeding and while trying to determine the identity of the perpetrator—to whom the finger and palm prints found at the crime scene belonged. Interestingly enough, the point of entry and exit of this burglary was the very same kitchen window where all the prints were found. Of course, thanks to the advances available in processing and identifying finger and palm prints, as well as the enormous increase in the data accumulated in this field in the last 30 years, nowadays it can be easily discovered the identity of such a suspected individual. This specific evidence has an enormous possibility of exoneration in my case. As stated in another way, when these prints become identified, it is more likely than not, that these prints will link to the true perpetrator of this crime. In fact, there is a great probability that these prints could show us the criminal background and criminal status of this individual. Whether he has been previously convicted of similar crimes or whether he is currently serving time in prison for this type of crime. Additionally, we must take into consideration an extremely important fact revealed by the victim in this case—that her assailant was a circumcised individual. So, identifying the prints collected at the crime scene would reveal the identity of the suspected assailant, and furthermore, if such a suspected individual is in fact a circumcised individual, it would be extremely helpful to support my future exoneration. Simply, because this will corroborate and further support what the victim in this case has testified regarding her assailant.
(2) The jurors never knew that the victim’s black and white slip dress, used to wipe off seminal fluid from the perpetrator and containing DNA from him, could now be adequately tested. In fact, the victim’s black and white dress is the best evidence to link the perpetrator to this crime, though it was never tested. This dress still exists and has never been tested for DNA. The scientific basis for testing this dress is that the technology is much more robust and discriminating. Modern STR testing examines 24 loci instead of the 5 that were done in this case back in 1995. Additionally, at the time of testing in this case, RFLP was relatively new, and history has shown us it was prone to error and subjectivity.
(3) The jurors were not aware of the sharp contradiction that existed between scientists. Specifically, during the pre-trial Arthur Hearing on December 17, 1999, BSO Crime Laboratory DNA technician Donna Marchese told the court that “when using my microscope, I was able to find one spermatozoa cell that was entwined into the fiber of the green fitted sheet.” Later on, during the actual trial, she testified that ‘’the sperm cell yielded six feet of generic material.’’ Ms. Marchese claimed that she obtained a sufficient amount of DNA material to conduct the RFLP DNA testing in this case. According to Anthony D. Winston, Associate Technical Director of Forensic Identity Testing at LabCorp—who was privately retained by one of my supporters after trial to explain the possibility of Ms. Marcheses’ having conducted an RFLP DNA test on a single sperm cell—his professional opinion was that it would have been scientifically impossible. Apparently, science dictates that in order to conduct an RFLP DNA test utilizing sperm cells, the scientists must have a minimum of 200 individual sperm cells. Therefore, this scientific conclusion from LabCorp is in sharp contrast with that which was presented to the jurors by the BSO Crime DNA Laboratory technician, Donna Marchese, at trial.
(4) At trial, the jurors were misled again by the testimony of BSO Crime DNA Laboratory technician, Donna Marchese. In fact, during her redirect-examination, Ms. Marchese told the jury—while being impeached by the Assistant State Attorney, Mr. Siegel—that the green fitted sheet did not come into the laboratory until Friday, June 30th, 1995. This testimony, of course, was contrary to her initial testimony at trial, that all the evidence had come into the crime laboratory on May 18, 1995. Nonetheless, BSO Crime Laboratory Administrative Coordinator Diana Edwards’ response to my Public Record Request dated December 29, 2018, unambiguously depicts that only two cases were actually submitted from the Plantation Police Department to the BSO Crime Laboratory on that specific day. Furthermore, the currently existing logs clearly reveal that both of those unrelated cases were ultimately logged into the BSO Crime Laboratory Evidence Vault on June 30th, 1995. Of course, these logs clearly demonstrate that no green fitted sheet, relating to this case, was ever logged into the BSO Crime Laboratory Evidence Vault on that day—contrary to Ms. Marchese’s testimony at trial. In fact, on two different occasions, this particular green fitted sheet was unaccounted for in the following terms: from June 30, 1995, to October 8, 1995, and from February 1, 2000, to June 29, 2000. Both times in excess of 100 days. This clear discrepancy in the logging of the only incriminating evidence in this case not only shows a significant break in the chain of custody but also supports the high probability of tampering with the only evidence containing DNA in this case. Additionally, this fact, of course, goes directly to the DNA technician Donna Marchese’s credibility at trial. Again, the jurors were not aware of the existing break in the chain of custody and/or the probable tampering with or planting of evidence on the only inculpatory piece of evidence the jurors relied on to convict me.
(5) The jurors never heard the amazing fact that the victim’s own DNA profile was not found on the green fitted sheet. I, myself, was sincerely dumbfounded by this new information I received from the state while requesting information from the state prosecutor’s file. It is unimaginable for the victim’s fitted sheet not to have contained her own DNA after sleeping nude on those sheets for over two weeks. I mean, had degradation and/or contamination occurred to the point where the victim’s DNA profile was not present on her own bed sheet, no other person’s DNA profile would have been found either. In other words, degradation would not have affected the victim’s DNA biological material but not all the DNA biological material on the bed sheet—the victim’s as well as the suspected assailant’s. Thus, the question still remains unanswered: how could my perfectly non-degraded or non-contaminated DNA biological material have been extracted from such a degraded or contaminated piece of evidence?
(6) The jurors never imagined during my 2000 jury trial, that the BSO DNA Crime Laboratory was going to be advised in April 2016—by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD), that there was inappropriate use of DNA calculations by this laboratory, and that the BSO DNA Crime Laboratory analysis practices were incorrect. Therefore, resulting in the Crime Laboratory mishandling, misinterpreting, and miscalculating samples that contained DNA from more than one person. Nor were the jurors expecting that in December 2016, the BSO Crime Laboratory DNA Consultant, Dr. Martin Tracey, was going to be terminated from his 33-year job as a teacher at the Florida International University (FIU) amid accusations of bias, racism, sexism, and particularly because of his regular comments about using drones and planting DNA evidence. Nor could the jurors have possibly known during my trial in 2000 that during a 2016 unrelated investigation—initiated by Forensic DNA Consultant Tiffany Roy, it was going to be revealed that Dr. Martin Tracey’s work was central to her published concerns, because Dr. Tracey had reviewed DNA from a knife—on an unrelated case that was erroneously found to be conclusive by the BSO Crime DNA Laboratory, when it was actually inconclusive under the ASCLD rules and protocols. The combination of all these facts, of course, became directly relevant to my case because it involved the same crime laboratory that performed DNA testing on the sole inculpatory evidence in my case and, additionally involved the state’s DNA consultant who testified at my trial in 2000, Dr. Martin Tracey. But of course, most importantly, we should not forget that the DNA evidence is the only inculpatory evidence in my case.
(7) On the other hand, it would have been impossible for the jurors, judges, attorneys, and myself to know back in 2000 about the BSO DNA Crime Laboratory’s and experts’ lack of professional integrity and professional reputation, before it became public in 2016. Thus, I was unable at trial, to expand and emphasize even more, the only defense theory I ever presented, tampering with or planting on DNA evidence. Hance, I have been harmfully precluded from using this new information about the BSO DNA Crime Laboratory’s mishandling and miscalculating of DNA evidence, as well as Dr. Tracey’s lack of professional integrity—which I could have used to cast out the necessary doubts on the state’s seemingly powerful DNA evidence, collection and testing procedures, and its experts’ now questionable scientific testimony and professional opinions.
In sum, the CRU was 100% able and capable of helping me prove my wrongful conviction during the latest conviction review—which they allegedly conducted in the last seven (7) months. Nonetheless, the CRU completely ignored the undeniable fact that newly and more scientifically advanced DNA testing has to be performed on at least the still existing evidence that was never DNA tested before. Additionally, the CRU equally refused to process the finger and palm prints through the AFIS computer software, in order to further ignore my current pleading about being wrongfully convicted.
Part II
“The CRU reviews cases where the petition establishes a plausible claim of innocence that is capable of being investigated and resolved. This concludes the review of your petition.”
Respectfully, my petition does unambiguously establish a plausible claim of innocence that is capable of being investigated and resolved, contrary to the CRU’s ultimate determination to conclude the conviction review of my petition. From the very beginning of this case, I have maintained my innocence and have continued to do so for the past almost 30-years. I have never met the victim of this case, let alone committed a crime against her. I have argued this case to no avail. I have clearly shown that I have been found guilty and sentenced to die in prison, due to DNA in my case being manipulated, tampered with and/or planted on the inculpatory evidence. I have been patiently and humbly pleading to be allowed to uncover the truth. I have been crying out for justice. But more importantly of all, the evidence presented at trial unambiguously shows that: (1) Physician Dr. Guy Durand’s uncontradicted testimony at trial was that on May 8, 1995, he had performed a surgical procedure on me, where three cyst were removed. All three incisions necessitated stitches for which changing of bandages and treatment was done for seven days, until all the stitches were removed on May 15, 1995. (2) Due to the surgical procedure, I was given pain killing medication which was uncontradicted I filled up a few blocks from my alibi witness’ home in LightHouse Point. (3) The instant crime, according to the evidence presented at trial, was committed on May 12, 1995, at approximately 5:00 am. (4) Equally uncontradicted was the trial testimony of my alibi witness. She testified that on the morning of May 12, 1995, I was sleeping at her house, in her bed, next to her. Approximately 20 miles away from the crime scene. Thus, I could not be in two different places at the same time. (5) There is no eyewitness testimony that could ever place me near or at the crime scene. (6) None of the finger, palm prints, footprints and/or shoe castings found and collected at the point of entry and exit of this crime, do not belong to me. (7) The victim and I had never met before. (8) The victim’s identification of the suspect in this case, is not even close to any of my features, age, height, hair length, body build, etc. In fact, the victim testified that her assailant was a circumcised male, I am not circumcised. (9) With the exception of the alleged DNA matched obtained to spot #1 of the green fitted sheet, there is absolutely no inculpatory evidence in this case that could incriminate me, as being the person inside the victim’s home on the day this crime was committed. (10) For complete information about this case, please, visit www.helpdna.org
Thus, contrary to the Broward Conviction Review Unit’s ultimate conclusion, I seriously doubt there is any other petition filed in Broward County that could ever be more persuasive in trying to establish a plausible claim of innocence, and that could ever be more adequately capable of being investigated and resolved than my petition. Therefore, the CRU’s termination of my petition’s review, without contacting any of the parties involved in this case (defense attorneys, alibi witness, defense Physician, defense DNA consultant, myself, etc) and furthermore, without conducting the requested scientific testing procedures on the still existing evidence that was never DNA tested—together with the CRU not having adequately processed the finger and palm prints collected from the crime scene with the AFIS computer software—knowingly that neither testing I requested would have created any additional economic burden to the State of Florida, seems extremely unfair to me. Specifically, where all I have been trying to do for the past three decades, is to conduct an adequate DNA testing and a proper finger and palm print processing of the collected evidence. In other words, all I am trying to do here, is to show that a manifest injustice has occurred in my case. I have been wrongfully convicted!
Respectfully submitted,
Ernesto Behrens,
DC# 732564
C.C. Honorable Gordon Weekes,
Broward Chief Public Defender
Seventeenth Judicial Circuit of Florida
Broward County Courthouse
201 S.E. Sixth Street
Fort Lauderdale, Florida, 33301-3360
DNA MANIPULATED CONVICTION 