THE NATION

Death Penalty Foes Mark a Milestone

Crime: Arizona convict freed on DNA tests is said to be the 100th known condemned U.S. prisoner to be exonerated since executions resumed.

By HENRY WEINSTEIN, 

A former letter carrier who originally was sentenced to death for the 1991 murder of a cocktail waitress in Phoenix has been exonerated by DNA testing and freed from prison.

 Ray Krone, 44, walked out of prison in Yuma, Ariz., late Monday after being incarcerated for a decade.

Krone has always maintained his innocence, despite being convicted twice of stabbing Kim Ancona to death on Dec. 29, 1991. Krone was initially sentenced to death in 1992. That sentence was overturned in 1995, but he was convicted again the following year and sentenced to life. Although Krone was no longer on death row, a bevy of capital punishment foes--including Sen. Patrick J. Leahy (D-Vt.), the American Civil Liberties Union and the Justice Project--described Krone on Tuesday as the 100th person in this country who had been sentenced to death but eventually exonerated since executions resumed in the mid-1970s.

 For every seven people executed in the U.S. in the last quarter century, one has been exonerated--an error rate that death penalty critics say is unacceptably high.

 "Our nation this week reached an infamous milestone: 100 known--and goodness only knows how many unknown--cases of people being sentenced to death, since the reinstatement of capital punishment, for crimes they did not commit," Leahy said.

 "The time for denial is over. . . . Ray Krone lost 10 years of his life while Arizona's women were endangered because the wrong man was in jail," said Leahy, the chief sponsor of the Innocence Protection Act, a package of death penalty reforms.

 "Justice has finally come," Krone said in a telephone interview Tuesday. "The strength of knowing you are innocent" helped him get through 10 years in prison.

 "And there was the strength I got from my friends and family. They never doubted I was innocent. They did everything they could to help me not get down."

 Krone said his cousin Jim Rix, a Lake Tahoe businessman whom he had never met before his murder conviction, came to visit him in prison and soon thereafter launched efforts that ultimately led to his exoneration.

 Krone, an Air Force veteran who was working as a letter carrier at the time of his arrest, had no criminal record.

 But Phoenix police focused on him within hours after Ancona's naked, blood-spattered body with 11 stab wounds was found in a bathroom of the ABC Lounge on the morning of Dec. 29, when the bar owner went there for a meeting.

 Krone lived just a few blocks from the bar and his phone number was in Ancona's address book. Another woman who worked at the bar testified that Ancona told her that a man named "Ray" was coming late the night of Dec. 28 to help her close up.

 Krone said he was home that night. His roommate confirmed that Krone had gone to bed about 10 p.m. but said he could not say for sure whether Krone had gone out later.

 Krone frequently came to ABC Lounge to play darts. He testified that he was acquainted with Ancona but did not know her well.

 A bite mark was found on the victim's left breast and on her neck. Krone agreed to give police a dental impression by biting down on a plastic foam cup. Because of an earlier accident, Krone had a distinct bite pattern and a dentist helping police at the crime scene said Krone's bite mark strongly resembled the one found on Ancona. Krone was later referred to as the "snaggletooth killer."

 The bite mark was the critical evidence at the trial. There were no fingerprints and there was no semen on Ancona, although there was evidence she had been sexually assaulted. All the blood at the crime scene was type O--the same type as Ancona and Krone and that of millions of other Americans. No DNA testing was done.

 The key testimony in the case was presented by odontologist Ray Rawson, who testified that Krone's bite mark matched the ones found on the victim. A jury convicted Krone of murdering Ancona in 1992 but acquitted him of sexual assault. A judge sentenced Krone to death, saying that the murder had been committed in an especially "heinous or depraved manner."

 Christopher Plourd, a San Diego attorney who specializes in cases involving complicated forensics, filed an appeal. It contended that the prosecutors had failed to turn over exculpatory evidence--a test done by another forensic odontologist that concluded Krone's bite mark was not consistent with the one found on the victim.

 The Arizona Supreme Court did not rule on that issue. Rather, in 1995, the state's highest court reversed the conviction, saying that prosecutors had failed to turn over critical information--a videotape on the bite mark evidence prepared by Rawson that played a key role in the trial--until right before the trial began.

 Krone was retried. Rawson testified for the prosecution again. Plourd presented contradictory testimony from other bite mark specialists, but Krone was convicted again in 1996. That time he got a life sentence.

 Two years ago, Krone's family hired another attorney, Alan M. Simpson of Phoenix, to work with Plourd. They requested DNA tests using sophisticated new technology. The initial tests conducted on saliva found on the victim's tank top concluded that Krone could not have been the source.

 Then, further tests were done, seeking to match the DNA found on the tank top with material in a state database of convicted sex offenders.

 Those tests pointed strongly to Kenneth Phillips, 36, who already was in prison in Florence, Ariz., convicted of attempted child molestation.

 On Monday, an attorney for the Maricopa County attorney's office told a judge in Phoenix that the odds were 1.3 quadrillion to 1 that the DNA came from Phillips. In addition, prosecutors have found that Phillips, like the victim, has type O blood and that a dental expert has said he "cannot eliminate Phillips" as the person who left the bite mark, according to William Fitzgerald, a spokesman for the Maricopa County attorney's office.

 Maricopa County Superior Court Judge Alfred Frenzel released Krone, subject to a hearing scheduled for April 29 after police and prosecutors finish other testing. But Richard M. Romley, the Maricopa County attorney, indicated that he strongly believes the wrong man was convicted.

 "Modern technology that was not available at the time of Mr. Krone's convictions has provided new scientific evidence, which raise a serious question regarding Mr. Krone's guilt," Romley said.

 Krone, who was a proponent of the death penalty before he was sent to prison, said he hopes his case will prompt people to reexamine the way the criminal justice system operates.

 "I'm not the only one," Krone said. "To make a mistake is one thing. It's another thing how you correct it afterward."

 There are more than 100 people on death row in Arizona, and a special commission has been examining capital punishment there for more than a year.

 Of the 100 death penalty exonerations around the country, six came from Arizona, according to a report by the Death Penalty Information Center in Washington, D.C., a group that opposes the death penalty.

 And of the 100 exonerations, 12 came as a result of DNA testing. The Innocence Project at Cardozo Law School, co-founded by New York attorneys Peter Neufeld and Barry Scheck, played a key role in numerous DNA exonerations. Neufeld and Scheck said the Krone case showed both the power of DNA testing and the faulty nature of bite mark evidence.

 Michael J. Saks, a professor at Arizona State University Law School, who coauthored a book on forensic evidence, said bite mark testimony is "classic junk science." He said a recent study by the American Board of Forensic Odontologists found that 63.5% of bite mark analyses generated "false positives" and that another 22% turned out to be false negatives.

 "At an absolute minimum," Saks said, "jurors should be informed of the relative accuracy or inaccuracy of these tests so they don't think there is more to them than there is."

 If you want other stories on this topic, search the Archives at latimes.com/archives. For information about reprinting this article, go to www.lats.com/rights.

April 12, 2002 

FREE AT LAST: Ray Krone, right, with one of his lawyesr, is the 100th former death-row inmate freed since 1973.

CHARLES WHITEHOUSE

US milestone: 100th death-row inmate exonerated

 Activists cite latest mistake to build their case for a death-penalty moratorium.

 By Kris Axtman | Staff writer of The Christian Science Monitor

 HOUSTON � Like so many of the innocent people freed from death row, Ray Krone says he isn't bitter. He just wants to make up for lost time. So it was that, on his first day out of prison in 10-1/2 years, this former mail carrier spent his time feasting on steak and floating in a hotel swimming pool in Phoenix.

His story probably would've been confined to the local Arizona newspapers, if it weren't for the fact that Mr. Krone is a milestone in the battle over capital punishment. He is the 100th former death-row prisoner to be exonerated since 1973, when the Supreme Court found the death penalty unconstitutional. (The death penalty was reinstated in 1976.)

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His case is a powerful reminder that there are grave problems with this ultimate punishment � and his case has renewed calls by civil rights activists for a moratorium on the death penalty.

 "This is a system broken beyond repair," says David Elliot, with the National Coalition to Abolish the Death Penalty. "There's nothing magic about the number 100, but it'is a good opportunity to convey to the public the extent of the problem."

 Since 1976, 767 people have been put to death, says Mr. Elliot. And with 100 exonerations of death-row inmates in the past 25 years, he says he can only conclude that innocents have been executed.

 Indeed, polls do suggest public attitudes are influenced by these exonerations � particularly since DNA testing became a tool to prove innocence, or guilt, conclusively. Though a majority of Americans still support the death penalty in murder cases, the Gallup Poll shows that support dropped from an all-time high of 80 percent in 1994 to 67 percent in 2001.

 Still, death-penalty advocates argue that capital punishment is needed. "Yes, there are innocent people and the system has to be vigilant about that. But that's why we have the extraordinarily time-consuming appeals system," says Joshua Marquis, an Oregon prosecutor on the board of the National District Attorneys Association.

 "The reason these people want to say that there are 100 people who are innocent is that they want to make it sound like an epidemic," he says. "There are far more people who are guilty than people who are wrongfully convicted. I'm not saying we should trade one for the other, but the problem is not so extreme that we should shut down the capital-punishment system."

 But Krone's attorney, Alan Simpson, sees it up close and personal. "As I sat and talked to Ray, I began to realize that there are 100 guys just like Ray," says the Phoenix defense attorney. "This is a terrific person with a terrific family and, my God, the state almost got to the point of executing him.... This is the face of the wrongfully accused."

 The problems with Krone's case are similar to those of other exoneration cases. Accused of murdering a cocktail waitress in 1991 � based on what was later determined shoddy investigative work andflimsy forensic evidence � he was convicted and sentenced to death in 1992. On appeal, he was granted a retrial but was convicted sentenced to life in prison. Krone's family rasked for DNA tests. Those tests strongly implicated, Kenneth Phillips, who was already inprison for attempted child molestation.

 Maricopa County Attorney Rick Romley said it's almost certain Krone wasn't the killer and that Phillips was.

 "[Krone] deserves an apology from us, that's for sure," said Mr. Romley. "What do you say to him? An injustice was done, and we will try to do better. And we're sorry."

 But death-penalty foe Sen. Russ Feingold believes there is more the American people can say to Krone.

 "We can do more than just talk or apologize," he said. "An apology is the first step. But we can also act. We can act to ensure that not another innocent person faces execution," he said this week.

 He's sponsoring the National Death Penalty Moratorium Act, which includes a federal moratorium on capital punishment and a review of the death penalty.

 "It is time to recognize the magnitude of the problems plaguing our nation's death-penalty system," says Diann Rust-Tierney, director of the American Civil Liberties Union Capital Punishment Project, which is calling for a nationwide moratorium until problems are adequately addressed.

 She wants to address: mistaken or false testimony, prosecutorial misconduct, police misconduct, racial bias, and incompetent lawyers. These are important because DNA testing only works in certain cases.

 "If 100 people sentenced to death have been found wrongfully convicted, how many more people don't we know about that aren't lucky enough to have ... DNA to change their fate?" she asks.

 Sometimes, DNA evidence doesn't come soon enough. Frank Lee Smith, for instance, was convicted of the 1985 rape and murder of an 8-year-old Florida girl. He died in 2000 while still on death row, and was later cleared of these charges through DNA testing.

Five states last year passed legislation banning the execution of the mentally retarded, 17 states enacted laws that provided greater access to DNA testing, and 18 states introduced bills to place a moratorium on executions, though none of those passed. And just this year, Indiana passed a law banning the execution of juveniles under 18.

 Reform can't happen soon enough for Gary Gauger, who spent 3-1/2 years on death row in Illinois for the murder of his parents. In 1996, he was exonerated. Upon hearing the news of the 100th exoneration, he said the flaws in the death penalty are a direct reflection on all of us.

 "We all have to bear responsibility for this conduct. There's no place for it in a civilized society."