- The Washington Times - Wednesday, December 16, 2009

A man who spent 28 years behind bars for a rape and murder he said he didn’t commit walked out of a federal prison in Arizona on Tuesday with $75 and a bus ticket to Ohio after DNA testing showed he was innocent.

The conviction of Donald Eugene Gates, 58, was based largely on the testimony of an FBI forensic analyst whose work later came under fire and a hair-analysis technique that has been discredited.

“I feel beautiful,” Donald Eugene Gates, 58, told the Associated Press by telephone after leaving the U.S. penitentiary in Tucson, Ariz.

Just hours earlier, the same judge who had presided over Mr. Gates’ trial years ago in D.C. Superior Court ordered his release.

Prosecutors had agreed that Gates should be released. However, at their request, Senior Judge Fred B. Ugast delayed Gates’ formal exoneration until next week to give the government a chance to conduct one more round of DNA testing.

Ben Friedman, a spokesman for the U.S. attorney’s office in Washington, said Gates would be the first D.C. defendant who spent significant time in prison to be exonerated based on DNA evidence.

Gates was convicted of the 1981 rape and murder of Catherine Schilling, a 21-year-old Georgetown University student, in Washington’s Rock Creek Park. He was sentenced to 20 years to life in prison.

But the conviction was based largely on the testimony of FBI hair analyst Michael P. Malone, whose work came under fire in 1997. At that time, the FBI’s inspector general found that Mr. Malone gave false testimony in proceedings that led to the impeachment and ouster of U.S. District Judge Alcee Hastings in 1989.

Judge Ugast was incredulous that prosecutors had failed to inform him after Mr. Malone’s work was called into question. He ordered the U.S. attorney’s office to review all of its cases in which Mr. Malone testified - something he said should have been done earlier.

Sandra K. Levick, one of Gates’ attorneys from the D.C. Public Defender Service, said she came across the inspector general’s report while doing her own research for the case. She then obtained more information through a Freedom of Information Act request that showed the FBI had issued warnings about the work of Mr. Malone and 12 other analysts who were criticized by the inspector general. As part of a review requested by the FBI, prosecutors confirmed they had relied on Mr. Malone’s work to obtain Gates’ conviction.

Assistant U.S. Attorney Joan Draper said she was unaware of the problems with Mr. Malone’s testimony until the defense filed its motion this month seeking to have Mr. Gates’ conviction thrown out.

Based on Mr. Malone’s report, prosecutors had claimed that hairs taken from Gates and hairs found on the victim were microscopically indistinguishable.

Even leaving aside the allegations against Mr. Malone, the technique he relied on - microscopic hair analysis - has been discredited, Ms. Levick said. She cited a 2009 report by the National Research Council of the National Academy of Sciences that said there was no scientific support for using hair comparisons for identification.

Barry Scheck, co-director of the Innocence Project, said judges, as well as prosecutors, need to be informed when crime lab analyses are called into question.

The important part of all these exoneration cases is to learn lessons from them, he said.

Gates asked for and got DNA testing in 1988. However, the DNA sample available at the time was insufficient to draw any conclusions with the technology then available.

Gates’ lawyers arranged for a University of Arizona law professor to meet him Tuesday and take him to the bus station after his release. Mr. Gates, who is from Akron, Ohio, said he planned to reunite with family in his home state.

If the judge exonerates Gates, as expected, he will likely be entitled to compensation for the time spent in prison. As a former federal prisoner, he may be entitled to compensation under federal law, which provides $50,000 per year of incarceration. The District has its own compensation statute, which leaves the amount up to the court.

Gates said he prayed for his release and never doubted it would come.

My faith in God is very strong, he said.

The one-time construction worker said he had no immediate plans.

It’s all coming at me so fast, he said. I gotta think on it.

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