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INNOCENCE BETRAYED PART THREE

'My God, this thing is horrifying'

By Mary McCarty, Laura A. Bischoff

Dayton Daily News

Tense Melinda Elkins stands outside the door of her sister April's house in Barberton.

It has been three years since her husband Clarence was sentenced, three years since April

nearly spat at him: "You deserve to be raped every day of your life."

In all that time, the sisters have never spoken. Melinda has no idea whether April will slam the door on her, or even call the cops. But she can't hold out any longer. She is desperate to see the one person who misses her mom as much as she does. So, on Nov. 10, 2001, she and Martin Yant, a journalist turned private investigator recently hired by the Elkins family, drive to April's house and knock on the door.

April doesn't slam the door. She doesn't reach for the phone. Instead, she grabs her sister and refuses to let go. They hug, cry, talk. "I need your help and I want you to know that Clarence did not do this, and I would not be here, looking at other people, if he had," Melinda says.

April still isn't convinced. She opens the door not because she believes in Clarence's innocence, but because she misses her sister.

"She was my best friend," April says.

As the sisters engage in an emotional reunion, Yant spends a few private minutes with April's daughter Brooke, now 9. He gently asks her about the testimony that convicted her uncle: "Do you still feel that was true?"

"I've always had doubts," Brooke answers instantly, as if the truth were a jack-in-the-box waiting to spring. "The prosecutors would never listen to me."

The girl's words confirm Yant's simmering suspicions. For the past few months he has pored over the Barberton Police Department records on the Elkins case — police reports, witness statements, medical documents. "The train had left the station, and it's very hard to turn a train around," he muses.

In this case, the train was set in motion by a traumatized and confused 6-year-old. Yant is struck by the inconsistencies in the girl's testimony. He sees other mistakes as well: She had been interviewed by multiple authority figures, when it should have been only one, he says. Plus, investigators never seemed to take into account that she had received a blow to her head. "With that kind of trauma, even an adult is likely to be confused, let alone a little 6-year-old child," Yant reflects.

Yant can tick off a laundry list of other problems with the case: sloppy police work, haphazard investigation, authorities rushing to judgment, incomplete forensics. The bloody print left on the doorjamb at Judy Johnson's house was destroyed when police tried to lift it. Other items collected as evidence were never tested for latent prints. Judy Johnson fought for her life, but it doesn't look as if anybody bothered to test her fingernail scrapings.

"My God, this thing is horrifying," Yant tells Melinda in one of their first conversations.

"Thank God somebody else can see it," she says.

Martin Yant isn't just "somebody." His work has led to the exoneration of 10 prisoners — more than anyone else in Ohio — and he is one of the few private investigators in the nation who specializes in wrongful convictions. In 1996, he helped to free Huber Heights couple M. Jenny Wilcox and Robert Dale Aldridge, who were convicted in a highly publicized child-molestation case.

Despite the high-powered help, the Elkins family's problems are far from over. In his book Presumed Guilty, Yant hypothesizes that 10,000 people nationally are wrongfully convicted every year. "It's a heck of a lot easier to get an innocent person behind bars than to get them out," he says.

In the months following her mother's reunion with Melinda, Brooke tells April: "I'm just not sure about the color of the eyes, I don't think it was the same as Uncle Clarence's." April no longer doubts whether Clarence is innocent.

In May 2002, Brooke formally recants her testimony. Clarence asks the court for DNA testing on another suspect and requests the release of certain evidence for DNA testing.

But in December, Summit County Common Pleas Court Judge John Adams deals a blow to the Elkins defense team. He rules, in part, that Brooke's sudden change in her story may be a result of family pressure now that Melinda and April are reunited.

"There can be no doubt that the child-victim has to have been under enormous pressure to change her statement," Judge Adams writes in his 54-page ruling. "The Court is of the opinion that the child-victim told the truth originally and her change of mind is the result of influence from her family and others. ... Therefore, it is determined that the child-victim's recent recantation lacks credibility."

Becoming Erin Brockovich

Melinda bears down harder: scouring police reports, researching court records, interviewing witnesses. She buries her emotions. She doesn't have time for anger, exhaustion or even grief for her mother. She holds rallies in downtown Akron, making a point to march past the prosecutor's office building, and does what it takes to keep the story alive in the news media. She starts a Web site, freeclarence.com, eventually generating $42,000 for his defense.

Clarence's parents, Charles and Nancy Elkins, shell out $20,000 to cover their son's phone calls. "Mom, it's the only way I can reach the outside world," Clarence tells his mother.

Melinda continues to investigate the suspects on her improvised list, injecting herself into their lives so that she can pick up their pop bottles, beer glasses and cigarette butts — places they would likely leave their DNA. She plots with a bartender to put aside a suspect's beer glass so Melinda can pick it up later. She picks up another suspect's used Mountain Dew bottle and cigarette butt after recruiting some Barberton locals to invite him over for a visit.

"I was quite the actress," she says.

Melinda's sons cheer her on, rarely complaining when they are essentially left to raise each other. They watch in awe as Mom transforms herself from a working mother with a high school diploma to relentless detective and agitator, the Erin Brockovich of Ohio's prison system.

But their lives, too, have been shattered. The brothers assign themselves night watchman duties, fearful the real killer might try to stop their mother from finding the truth. Brandon stashes a baseball bat and hunting knives in his bedroom.

He prays every day to keep his father safe and healthy as he sleeps, eats and walks among Ohio's most violent and volatile men. And he prays, too, for God to bring Dad home so they could arm wrestle, fix cars, catch catfish at Atwood Lake.

Prays that they can be a whole family again.

Their family time is limited to state prison visiting rooms, where conversation invariably centers around "The Case." They feel guilty if they talk about anything else, if they give glimpses of a life outside those walls. "We were in our own prison," Melinda recalls.

They even learn to adapt to the cattle call of prison visiting day. On one particularly humiliating day, Melinda was stopped when the equipment beeped as she walked through the metal detector. A guard sent her through again. It beeped again.

"Are you wearing an underwire bra?" the guard asks.

"Yes," Melinda replies. The guard tells her to cup her hands under her breasts and walk through again. Beep!

"This is the last time," she tells Melinda. "If you don't make it through I won't let you go back."

Melinda's face flushes red with humiliation. "What am I going to do? Take my underwire out and give it to him so he can use it as a weapon?" she says to herself as she is finally allowed in to see her husband.

Melinda swallows her shame and resentment. She learned a long time ago that dignity is a luxury prisoners' families can ill afford.

April 28, 2002

Melinda picks up the Sunday edition of the Akron Beacon Journal and scans the Page 1 headline: "Child-rape sentence starts blame game; Prosecutor calls 7 years soft, but defense lawyer says government OK'd plea deal after erring."

The first three words of the article strike her like a snake bite: "Earl Eugene Mann rode from prison to the Summit County Courthouse to stand trial, facing a possible life prison sentence for raping three little girls. Days later, he was driven back to his Mansfield prison cell with a plea bargain in hand and what amounts to an additional 6½ years to serve."

She knows that name.

Earl Mann is the boyfriend of her mother's former neighbor, Tonia Brasiel. Melinda has often wondered about the way Brasiel reacted to Brooke the morning of the murder. Why didn't Brasiel bring the girl inside? Why didn't she call the police or an ambulance?

Now she finds out that Brasiel's boyfriend is a convicted child molester. Hit by a lightning-bolt premonition, she holds an imaginary conversation with the Barberton police: "You've said all along that 'We have our man.' Well, this is your Mann."

Melinda juggles her suspect list and puts Mann toward the top.

But she remains distracted by another suspect — a younger man whose romantic advances toward her mother were rebuffed. She pushes to compare his DNA to crime scene evidence. Eventually he volunteers his DNA, but it isn't a match.

It's another crack in Melinda's credibility with prosecutors, who regard her as little more than a camera hog. On "48 Hours," Assistant Prosecutor Michael Carroll says, "The driving force behind all of this is Melinda Elkins, who just likes to be the center of attention."

Melinda doggedly focuses on other suspects, including Mann. Bev Kaisk of Barberton, a friend of Judy Johnson, tells Melinda that someone told her Earl Mann may have been at Brasiel's house the morning Melinda's niece knocked on the door for help. His criminal history is long: assault, public indecency, domestic violence, theft, aggravated menacing, aggravated burglary, receiving stolen property.

Melinda pulls out flowery stationery and dabs it with perfume, adopts an alias — J. Lee — and tries to lure Mann into becoming her prison pen pal. She promises him gifts, maybe a little money for the prison commissary. It's nauseating, but "J. Lee" wants one thing from Earl Eugene Mann: DNA.

If only he'd lick a return envelope, his genetic fingerprint would be conveniently delivered right to her, via the United States Postal Service. The state of Ohio has Mann's DNA profile in its massive database, but prisoners aren't allowed to randomly request that crime scene DNA be compared against other inmates' DNA profiles.

Mann never writes back to J. Lee.

Finally, a break

In November 2003, Melinda gets a call from authorities in Colorado. April and David Sutton, who have had a volatile relationship, each have been arrested for domestic violence and their children are about to go into Colorado's foster care system.

Yant and others scrape together money for plane fare for the children. Melinda welcomes Brooke and her younger brother, happily surprised that the Stark County Domestic Relations Court has granted her temporary custody of both children.

But the decision adds another complication to Clarence's case. His accuser is now living in the very home into which he would be released. That doesn't stop Melinda, who says, "Anyone with half compassion would understand those kids needed me."

By the spring of 2004 it's clear Melinda needs more legal horsepower, preferably for free. She is coming off a tough year in which she lost her job at Goodwill Industries and then took on responsibility for her niece and nephew. She moves in with a high school friend to cut costs.

Then she catches a break. Nearly 250 miles away at University of Cincinnati, a new criminal law professor with a boyish face and top-drawer credentials has co-founded the Ohio Innocence Project. Mark Godsey has the charisma of a young politician. He's 38, but if it weren't for the pinstripes he could be mistaken for one of his students.

Godsey is quickly drawn in by the facts of the case, particularly the heavy reliance on the testimony of a 6-year-old who witnessed the attack in the dark. "That's a big red flag right there, because eyewitness IDs even by adults in bright light are often off-base," he says. He is also struck by the existence of items that could be tested for DNA. Ohio has no law requiring police and prosecutors to retain DNA for a specified time. By the time the inmate gets around to contacting the Innocence Project, it usually has been destroyed.

The day after Melinda's first phone call, Godsey skirts the typical screening process and assigns students to begin investigating the Elkins case. "That's highly unusual, but so was this case," he says.

Ohio Innocence Project students research and develop a DNA testing plan for Clarence's case. They want to send crime scene exhibits to Orchid Cellmark Diagnostics in Dallas for a new kind of DNA test, known as YSTR DNA testing. County authorities agree to release the evidence — a rare instance when they give the Elkins team what it wants.

At Cellmark, scientists conduct a test that links the genetic material to all males in the same family. They find that male DNA left on the little girl's underwear and on Judy Johnson's vaginal swab came from the same male.

And it is not Clarence.

The defense shares the report with prosecutors before asking for a new trial. Assistant Prosecutor Michael Carroll confers with the state attorney general's Bureau of Criminal Investigation and Identification labs for help interpreting the data. BCI scientists confirm Cellmark's report.

Still, Carroll remains convinced that Elkins is guilty. And he is troubled by the possibility of releasing him into the same home where the child victim now lives. So he fights.

In March 2005, a hearing is held on Elkins' request for a new trial based on the new DNA evidence. Carroll argues that the evidence may have been contaminated when a male juror or detective handled them without gloves. The rape kit, however, was never opened outside of labs where scientists are careful to avoid contamination.

Godsey is incredulous: Just how could the same male DNA get on the girl's pink underwear and on Johnson's sealed rape kit? Are they actually arguing that a man in the coroner's office contaminated the rape kit and then his male relative on the jury contaminated the pink panties?

Implausible. Darn near impossible.

Back in chambers, Godsey feels encouraged by the body language and demeanor of Judge Judy Hunter, who is now assigned to the case. It's only a hunch, but Godsey walks out thinking he has won a new trial for Clarence Elkins.

A cigarette butt and a Bible

In the summer of 2005, a coincidence worthy of a "Law & Order" episode brings about a critical break in the case. Elkins is now living in the same housing pod with an inmate now familiar to everyone in the Elkins family: Earl Mann.

One day in the visiting room at Mansfield Correctional Institution, Clarence and Melinda sit on chairs around a small square table. Clarence faces the guards, as required. So does Mann.

"He's over there, to your left," Clarence whispers.

Melinda walks across the room and buys a Pepsi from the vending machine, stealing glances at Mann. A chill washes over her as she imagines, "This could be my mother's killer."

The couple schemes up ways to get Mann's DNA. Melinda is worried for her husband's safety but he has other concerns: "At first, I did not want to point no fingers at people like was done to me, without evidence."

Mann has been telling other inmates he knows that Clarence is innocent, according to Elkins' friends in the prison. "I let on I didn't have any idea who he was," Clarence says.

For moral reasons Elkins rules out taking anything from Mann or stealing his laundry. Then one day, he sees Mann putting out a cigarette in a makeshift ashtray and getting up from the table. Snatching a discarded butt is not stealing. "This is a way I can do this without letting it bother my conscience," he tells himself.

He walks over to the table, pulls a tissue from his pocket and gingerly picks up the cigarette butt. He later slips it into a Ziploc baggie and tucks it in his Bible.

A few days later Elkins is sitting at a table with another prisoner when Mann walks up, swings a sock with a combination lock in it at the other prisoner and cuts his head open. That earns Mann a transfer out of Mansfield Correctional Facility — once again out of reach.

But Elkins has what he needs. He mails the cigarette butt to his criminal attorney, Jana DeLoach, along with a half-apologetic note:

"I don't know if this will help."

More DNA tests

On July 14, 2005, Judge Judy Hunter denies Elkins a new trial — an unexpected blow to the case.

Godsey is outraged. Elkins was convicted with no physical evidence, on the testimony of a 6-year-old who has since recanted. He never wavered on insisting on his innocence. He cooperated fully with police. He had an alibi from his wife, and his whereabouts were accounted for by other witnesses. DNA evidence excluded him from the scene.

What is it going to take? Hunter's ruling forces the Innocence Project to spend more resources on expensive DNA testing — this time on the cigarette butt Clarence snatched from Mann.

Godsey isn't hopeful; other DNA tests had led to costly dead ends. But in a sensational plot twist, the male DNA on the butt matched the male DNA found in the rape kit and on the girl's pink panties. Could it be that the real killer was in the same housing pod as Clarence Elkins?

Godsey doesn't trust Summit County prosecutors, so he turns to state Attorney General Jim Petro for help. It's a little like buying a lottery ticket. In hundreds of Innocence Project cases across the nation, a state attorney general has never publicly supported one. But Godsey is running short on options.

After reviewing the Elkins case, Petro strongly agrees that a miscarriage of justice had occurred. Petro, who was running for the Republican nomination for governor at the time, instantly brings political pressure, media scrutiny and more credibility to the case. "Our experience with Summit County is they didn't really know what DNA meant. They didn't think of it as conclusive as we did. And I was kind of surprised at that," Petro says.

Still, Summit County prosecutors refuse to capitulate. The evidence from the YSTR DNA test the Elkins team is relying on can only link males in the same family. It is so new that only 4,000 men are in this DNA database. That means Mann's paternal line matches, but the small size of the database limits the number of other men who can truly be excluded. The numbers aren't convincing enough for prosecutors. They begin investigating Mann but oppose releasing Elkins.

Petro and Godsey order another new type of DNA test — known as mitochondrial DNA — that links females in the same family. They test a pubic hair found in fecal matter left on Brooke's nightgown. The Cellmark lab test shows that it matches Mann's maternal genetic line.

With both the maternal and paternal lines matching, Godsey's experts handicap the odds that Earl Mann isn't the attacker:

About 19 million to one.