Call It Even

The wrong guys went down for an old lady's murder. At least the prosecutors are unscathed

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Serowik's work on the cases of Siller and Zimmer were not his only bouts with sloppiness. As it turned out, he treated DNA testing and his lab like a 10-year-old treats his first at-home science kit. The case of Anthony Michael Green would blow open his work and blow up his reputation.

Green was convicted of rape based largely on DNA testing and testimony by Serowik. Further DNA testing exonerated Green after 13 years of imprisonment, and a civil suit proved Serowik lied during the trial. He was fired in 2004.

The city of Cleveland investigated its forensics lab, including an audit of cases in which Serowik was used.

Siller filed for new DNA testing of Jason Smith's pants. The state opposed. After Siller acquired the counsel of the Innocence Project, new testing was approved, and 20 blood spatters were found on the front of Smith's pants. Nine were tested, seven were the blood of Zolkowski.

Siller filed a motion for a new trial, which was denied by Judge Steven Terry but successfully appealed. In June 2009, Siller was granted a new chance at justice: a retrial in September 2011.

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But the Cuyahoga County Prosecutor's Office was not going to make it easy. Through the years, the office became known for unleashing mocking quips and puffy-chest declarations reaffirming its belief in Siller's guilt and support of Jason Smith.

Prosecutor Bill Mason opposed Siller's initial request for new DNA testing in 2004. In 2007, after the Innocence Project joined Siller's cause, Mason told The Plain Dealer, "I'll take a closer look at this case, but they lost their way on this one. They must be running out of innocent people to represent." (Mason's office declined via e-mail to comment for this story.)

When Mason's office decided to fight the appeal, Assistant County Prosecutor Matt Meyer told the paper, "This has been a battle from the get-go — and all it did was reconfirm what we already know. It is important to expose this fraud, because we've spent four and a half years of the public's money litigating a lie."

In late 2010, while preparing for Siller's retrial, the prosecutor's office shipped evidence — including Zolkowski's bindings and nightgown — for new DNA testing. The results: The only DNA on the bindings besides Zolkowski's belonged to the state's star witness, Jason Smith.

"He snookered us a little bit," Mason told The Plain Dealer. "We're working in the mud with defendants and witnesses all the time, and you make your best call on a person's credibility. But given all that has happened in this case, this was the right thing to do."

Mason also made a point to clarify that the DNA results did not rule out Siller or Zimmer as accomplices. In May, Smith was extradited from his new home in Atlanta and charged with two counts of perjury and three counts of obstruction of justice. A Plain Dealer editorial lauded Mason's "aggressive pursuit of justice."

“They [The Plain Dealer] went out of their way to point out that nothing happened until the prosecutors sent the bindings,” says Alba Morales. “The bindings were initially sent off and with improvements we were able to find DNA this time. It was not the prosecution who initiated the testing of the bindings. When everything went out, the bindings went out.”

Mason's office had no evidence against Siller and a mountain of new evidence against Smith. To Siller’s camp, an aggressive pursuit of justice would have meant dropping the charges outright. Instead, prosecutors offered a deal: He could walk away with time served in exchange to pleading guilty to three felony counts of theft. Or they could take him to trial again.

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