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March 18, 2008

Senator Levin Helps Clinic Students Seeking Clemency for Client

By Anna Magazinnik

On February 18, two Michigan 3Ls interviewed Senator Carl Levin (D-MI) for a DVD that they will use to supplement their petition for clemency for Thomas Cress. Cress, who is borderline-mentally disabled, has served twenty-two years of a life sentence without parole for the rape and murder of a Battle Creek teenager. Cress has steadfastly maintained his innocence and passed a lie detector test. For many years, students from the Michigan Clinical Law Program have been trying to free him. Having exhausted all of his legal options, the students are appealing to Governor Granholm for clemency.

The case against Thomas Cress essentially rests on the testimony of witnesses who claimed that Cress confessed to them. However, three of the witnesses later admitted to having fabricated their story to receive reward money. Meanwhile, Arkansas resident Michael Ronning, who had been in Michigan when the murder took place, confessed to the crime for which Cress now sits in prison. Ronning has been convicted of and tied to numerous rapes and murders in several states. According to Doron Yitzchaki and Timothy Kuhn, 3Ls working on Cress’ clemency plea, Ronning’s rapes and murders exhibit similar characteristics to the one Cress has been convicted of. For example, all involved women with red hair, and all of the bodies were found partially buried within two miles of where Ronning lived at the time. However, when the Chief of Police came to the prosecutor to ask about reopening the case given all of this new evidence, the prosecutor destroyed the DNA evidence that had been collected from hair found in the victim’s hands. The destruction of this evidence was discovered a few years later, at which point the prosecutor claimed it had been “routine.”

Although the Court of Appeals initially ruled for Cress, finding that the trial court abused its discretion in refusing to grant a new trial, the Michigan Supreme Court in 2003 overturned that decision 8-1. In doing so, the Court did not even address the issue of the DNA destruction. In 2007, the Sixth Circuit affirmed the denial of Cress’ Habeas petition, effectively concluding all of Cress’ legal options. Although the Michigan Supreme Court did not consider the destruction of DNA evidence, in her dissent Justice Kelly said this was the particularly troubling aspect of the case. Even with the DNA technology available at the time, an expert testified that the hair excluded Cress as a suspect. Yitzchaki and Kuhn note that this underscores how important the DNA would have been with the better technology available now. They therefore hope to convince Governor Granholm that the prosecutor’s destruction of the DNA evidence robbed Cress of the ability to demonstrate his innocence.

This belief is shared by both the former Police Chief and also the detective in charge of investigating the Battle Creek rape and murder. It is also shared by Senator Levin, who was one of the sponsors of the Innocence Protection Act, passed in 2004, which prohibits prosecutors from destroying DNA evidence after securing a conviction. Senator Levin cited the case of Thomas Cress as demonstrating the need for the legislation. In his interview with Yitzchaki and Kuhn, Senator Levin stated that what most caught his attention about the case was that he knows of no other case where the people in charge later decide the convicted man is innocent and go to bat as strongly for him as the former Police Chief and detective are for Cress. In fact, in addition to interviewing Senator Levin, Yitzchaki and Kuhn will also include on the DVD interviews with the former Police Chief and the detective. Coupled with all of the new evidence in the case, such as the confession by another man and the recanting of the testimony by several witnesses, Senator Levin said that the combination of the circumstances show how unusual this case is.

Yitzchaki and Kuhn hope that the unusualness of the case will help set Cress apart from
the flood of other petitions they expect the Governor to receive now that she has set up a special clemency committee below the parole board, suggesting the state is getting ready to grant many such petitions. One possible reason for this is simply that the state does not have the budget to hold that many people in prison. According to Yitzchaki and Kuhn, Governor Granholm has so far only granted a few petitions for clemency and all have been for medical reasons and not due to false convictions. But they are hopeful that the involvement of influential people such as Senator Levin will highlight the particular injustice surrounding Cress’ continued imprisonment. If they are unsuccessful with this attempt at clemency, a new petition can be made again every two years. However, the best time for a favorable outcome is toward the end of a governor’s term, when most such petitions are granted.

The DVD is being made with the help of four University of Michigan undergraduate film students with an interest in law school. One of the students, Josh Noffke, a freshman, is also putting together a website which should be up soon at www.freetomcress.com. The website will feature an online petition as well. Yitzchaki and Kuhn hope to get as many people involved in the petition as possible.