The Cincinnati Police Department has agreed to hand over DNA database reports and homicide case records to a “court-appointed, independent auditor” after the New York-based Innocence Project and local law firm Gerhardstein & Branch negotiated a settlement with the city.
The goal is to see if DNA evidence that would have identified alternate suspects was properly disclosed to both the convicted individual and their lawyer(s).
According to the Innocence Project, “The settlement arises from a civil rights lawsuit filed in 2018 by the Innocence Project and Gerhardstein & Branch against the City and two police officials on behalf of Joshua Maxton. In June 2015, 26-year old Maxton, a Black man, was arrested for the murder of an 18-year-old Black woman who was shot and killed while sitting in a parked car in the North Avondale neighborhood of Cincinnati. Maxton was charged with murder and jailed for a year before trial. At all times, he maintained his innocence and turned down plea offers.”
Maxton was acquitted by a jury in 2016, but during his trial, his defense attorneys learned that CPD had DNA evidence from the crime scene (obtained from a soda can on the ground near where the bullet was fired) that indicated an alternate suspect named Dante Foggie. The defense claimed during trial that Foggie was responsible for the murder, due to eyewitness testimony, but didn’t learn about the DNA evidence hit in CODIS until it “emerged by chance in the middle of the trial when a crime lab witness testified about it.” (If you don’t watch any kind of procedural crime shows, CODIS is the FBI’s Combined DNA Index System — a database of more than 18 million DNA profiles of individuals arrested for and convicted of crimes that investigators and law enforcement across the country can access for comparison and identification.)
“What happened to Josh Maxton was an unconscionable breakdown of due process. Josh Maxton was innocent, yet he nearly went to prison for the rest of his life for a murder he did not commit,” says Jennifer Branch, one of Maxton’s lawyers at Gerhardstein & Branch. “We commend the City Solicitor and Mayor of Cincinnati for recognizing that the audit to identify if DNA/CODIS evidence was not disclosed is critical to determine whether any other Cincinnati citizens were wronged in a similar fashion.”
The audit, according to the settlement, grants the following:
An Audit will be conducted of a subset of cases investigated by Cincinnati PD, subject to the following limitations:
- The time period for cases reviewed in the Audit will be 7 years — from June 2011-June 2018, including Joshua Maxton’s case;
- CODIS reports identify DNA of an individual other than the charged suspect;
- A suspect was convicted; and
- The crime being investigated was a homicide.
The settlement also states: “The parties recognize that not all CODIS ‘hits’ are necessarily exculpatory evidence, but agree to conduct this review for the purpose of identifying situations where a CODIS report was not properly disclosed to a convicted person and their counsel.”
Maxton will be compensated for the seven months he spent in jail between the time of the CODIS hit and his acquittal.
Chicago lawyer and former federal prosecutor Ronald Safer has been appointed as “Special Master” to oversee the audit. The Innocence Project says “pro bono attorneys and students from the Ohio Innocence Project to review the cases in question.” Safer will then be able to hand over any undisclosed CODIS info to the convicted individual or their last-known lawyers.
“This settlement is historic. It acknowledges that Josh Maxton sat in jail for more than seven months on a wrongful murder charge, even after police were notified of DNA evidence that supported his longtime claim of innocence,” said Nina Morrison, Senior Litigation Counsel for the Innocence Project. “It also provides a novel and rigorous process to determine if other innocent people in Cincinnati were convicted of crimes they did not commit. Ultimately, this settlement is a powerful tool that protects public safety in Cincinnati — since any undisclosed DNA database ‘hit’ may well mean that the real perpetrator of a crime was identified, but never brought to justice.”
This article appears in The Meaning of Monuments.