Man serving life for murder can’t seek out DNA evidence
A serviceman serving a life sentence for the 1982 murder of a teenager is not entitled to seek DNA evidence to try to prove his innocence because he was tried in a court-martial, a federal appeals court ruled Tuesday. But the court urged Congress to change the law and allow military defendants the same DNA access as civilians.
Clifford Hubbard, a soldier from Texas, was found guilty of trying to sexually assault 14-year-old Derek Kusumoto before suffocating him at Schofield Barracks Army base in Hawaii.
Kusumoto, the adopted son of an Army officer, disappeared after going bowling with his brother. His bruised and partially nude body was found the next night. There was no physical evidence against Hubbard, but he was implicated by another soldier, Joseph Courtney, who had previously been a suspect in the case.
Courtney gave a series of sworn statements to prosecutors, then went AWOL as Hubbard’s court-martial was about to start. He later died in jail, where he was being held in an unrelated case. The courtmartial judge allowed prosecutors to use his statements against Hubbard, whose lawyers said Courtney had changed his account six times.
In one of those statements, Courtney said Hubbard had been a friend of Thomas Spindle, the soldier who reported finding Derek’s body and who was separately convicted of taking part in his murder, a conviction he is also challenging. Hubbard said he did not know Spindle, but prosecutors said a hair found in Spindle’s laundry basket at his barracks that came from Hubbard.
Hubbard denied guilt, but military courts upheld his convictions. His case was taken up by the Hawaii Innocence Project at the University of Hawaii Law School. Citing technology that was not available during the trial, the project’s lawyers sought DNA testing of the hair and other evidence that they said would exonerate Hubbard.
But while a 2004 federal law, the Innocence Protection Act, allows defendants to try to reopen their cases with DNA evidence, the Ninth U.S. Circuit Court of Appeals in San Francisco said the law applies only to requests for evidence in the court where the defendant was convicted. In Hubbard’s case, that was a court-martial, in which he was tried and convicted.
The law “creates the bizarre and unjust result that service members convicted by courtsmartial are less able to obtain DNA testing than other categories of prisoners, federal or state,” said Judge Michelle Friedland, in an opinion joined by Judges John Owens and Jacqueline Nguyen.
“This disparity is entirely inconsistent with the respect usually given to veterans,” Friedland said. “I urge Congress to remedy this unfairness by amending the IPA.”
The panel also noted that military officials could agree to voluntary DNA testing, though they have not yet done so.
“The absence of physical evidence at trial connecting Hubbard to the crimes makes this a particularly compelling case for DNA testing, as it presents at least the possibility that the wrong person has spent nearly 40 years in prison,” the court said.
Kenneth Lawson, co-director of the Hawaii Innocence Project, said military prosecutors said at first that the hair incriminated Hubbard, then said the hair and other evidence that might be subject to DNA testing had either disappeared or been destroyed, even though the defense had made it clear that it was critical to the case.
Lawson said the Innocence Project had hoped the court would find that the federal law violated military defendants’ constitutional right to equal treatment. He said the project is forwarding the ruling to Hawaii’s representatives in Congress to consider changing the law, but if no evidence is available for DNA testing in Hubbard’s case, his only hope for release would be a presidential grant of clemency.
The federal prosecutor’s office said it agreed with the court’s decision to uphold the convictions and declined further comment.