Pay for DNA

In Summit County, the price of justice is exactly $7,400.

Avril Lavigne, with Simple Plan and Gob CSU Convocation Center, 2000 Prospect Avenue 7:30 p.m. Tuesday, April 15, $22.50 advance/$27.50 day of show, 216-241-5555.

Supporters of Clarence Elkins make a compelling case that he was wrongly convicted of murdering his mother-in-law and raping his six-year-old niece.

There was no forensic evidence linking him to the crimes. The police investigation was riddled with errors and omissions. In the end, Elkins was found guilty largely on the traumatized girl's testimony. She has since recanted and fingered another man.

It just so happens that the other man makes an equally -- if not more -- compelling suspect. He could easily be mistaken for Elkins and even talks with the same lisp. Several people saw scratch marks on the man's body soon after the murder. He knew the dead woman, who had rebuffed his romantic advances. He was also known to carry a sawed-off pool cue wrapped in silver duct tape, which matches the description of a blunt object the girl says was used during the assault. (Scene is not identifying the man because police have not named him as a suspect.)

A DNA test could prove once and for all whether Summit County convicted an innocent man. There's just one problem: The family lacks the money to pay for it, and the county refuses to pony up.

It's a standoff that has produced mistrust and suspicion on both sides. Prosecutors see a family trying in vain -- as families often do -- to reverse a conviction rightfully won. Elkins's supporters see prosecutors willing to spend tens of thousands to convict him and fight his appeals, but unwilling to spend $7,400 -- the price of a DNA test -- to see if they got it right.

"I think they're afraid they're going to show themselves to be wrong," says Glen Elkins, one of Clarence's five brothers.

The crime has been front-page news from the start, in part because of its brutality. In the early morning hours of June 7, 1998, an assailant beat 58-year-old Judith Ann Johnson to death and raped her with a blunt object. The struggle woke Johnson's six-year-old granddaughter, who was spending the night. The man then choked the girl until she was unconscious, raped her with the blunt object, and left her for dead.

But the girl survived. The next morning, awash in blood, she went to a neighbor's house for help. At first, she said only that "someone" had killed her grandmother. But she would later identify her uncle, Clarence Elkins, as the assailant. She told the same thing to a jury, which ultimately convicted him.

A tape-recorded statement from the girl, played before sentencing, left little room for doubt. "I didn't know why you should hurt me," she said, addressing Clarence. "I trusted you. You broke my heart, and now I feel empty inside. At one time, I loved you, but now I hate you. I'll always remember what you did . . . I will never forgive you for that."

Yet police and prosecutor's work was not so sure-footed. A pubic hair found on the young girl didn't match those of Elkins or either of the two victims. Police never compared Elkins's fingerprints with a bloody fingerprint found at the crime scene. And perhaps most important, Johnson broke at least one of her fingernails while defending herself, but no one analyzed her nails for DNA evidence.

Elkins was arrested the morning of the murder. Soon after, his family began to suspect another man. When Clarence's wife, Melinda, went to her mother's funeral, she noticed a man who seemed nervous. "I didn't know who he was, but I got a bad feeling about him," she says. Four days after her husband's conviction, Melinda saw the same man in a wedding video, where he repeatedly asked the victim to dance.

"Who is this guy?" Melinda asked.

Her mom's friend, Beverly Kaisk, identified him as a man who boarded in Kaisk's home. Kaisk said the man met Johnson soon after he moved in and developed a crush on her, though she was old enough to be his mother.

Elkins's family hired a private investigator, who turned up information that cemented Melinda's suspicions. The man's mother had reportedly thrown him in front of a truck when he was three, causing brain damage that left him mentally slow. The man's ex-wife reported that while they were married, he had told her that, as a juvenile, he was convicted of a sex offense in which he used a foreign object to penetrate his victim. The wife separated from the man after he was arrested for domestic violence against his daughter. Kaisk also said the man had tried to molest her 10-year-old daughter.

Yet the family's suspicions were contradicted by the six-year-old's identification of Elkins. After all, a niece can generally be counted on to recognize her uncle, even if the conditions are less than ideal. But the girl would eventually recant, and after looking at a picture of the alternative suspect, she identified him as her attacker.

It would seem that with so many questions, Summit County would have ample reason to conduct DNA tests. But Mary Ann Kovach, chief counsel for the prosecutor's criminal division, doesn't see it that way. She says the girl's story changed only after she was pressured by Elkins's supporters and underwent hypnosis, and that her original testimony was rock-solid.

"That little girl gave clear, articulate, powerful testimony," Kovach says. "She has no reason to name the wrong person, and she knew both of these people."

Moreover, Kovach argues that her office's original failure to test for DNA was not an error, but an economic decision. Testing each of the murder victim's fingernails would have cost $10,000; the county doesn't have that kind of money to spend on each case, she says.

"We don't have a deep pocket, where we can just spend to our hearts' content," says Kovach. "So we pick the things that we believe will most likely yield results."

Prosecutors did test hair samples found at the scene. The results didn't implicate Elkins, but that doesn't necessarily point to an alternate suspect, Kovach says. The hair could have come from anyone who had visited the house recently.

At the time of Elkins's trial, the family had yet to identify the alternative suspect. But Kovach did obtain the other man's DNA after Elkins's supporters promised to pay for the tests. "I basically said, 'Are you willing to put your money where your mouth is?'"

Unfortunately, Melinda Elkins doesn't have the money. Family members spent more than $100,000 defending Elkins; they're tapped out. Yet to Kovach, Melinda Elkins's reluctance to pay is a sign that she lacks confidence that the tests will exonerate her husband. "I'm doubting whether she's really sincere about it," says the prosecutor.

And there remain additional hurdles.

Family members naturally distrust the people who convicted Elkins, so they want a representative present when the sample is taken, to ensure that it's from the suspect they have in mind. They also want the evidence held by a third party, to preserve the chain of custody and prevent tampering. "It might be stored in the refrigerator, between the mayonnaise and the ketchup," says Elkins's attorney, Elizabeth Kelley.

Kovach is willing to obtain a new sample with a family representative present, but she refuses to let anyone else take custody of it. Nor will she pay for the test. Even if the DNA under the victim's fingernails matches that of Elkins, there's no guarantee the family won't launch new appeals. Similarly, if the DNA doesn't match that of Elkins, it won't necessarily prove that he's innocent.

"[The victim] could have been doing something days ahead of time, by touching somebody with her fingernails or rubbing somebody's back or scratching their back with her fingernails, and she could have that person's DNA," Kovach says. "It proves nothing."

Yet even April Sutton, the mother of the girl who was raped and the daughter of the woman who was killed, now thinks the alternative suspect did it. "All I want in the end is for my daughter to be safe, no matter who it is," Sutton says. "But I have to know that the right person is in jail."

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