For first Kansan exonerated through DNA, freedom remains elusive
Joe Jones made history when he was exonerated of a 1985 rape. But the chance encounter that put him behind bars haunts him nearly 20 years later.
TOPEKA ? Joe Jones knows that block in downtown Topeka well.
He lives nearby, but nowadays avoids Kansas Avenue altogether.
The Topeka native can point to the exact building where two woman spotted him — and then called police, identifying him as the man who had raped their friend the night before.
What if he’d taken a different street as he walked home from a club on Aug. 25, 1985? What if he left the club earlier, or later? What if he’d walked on the other side of the street?
“To go thinking like that, you know ‘what if?'” said Jones, his voice trailing off.
From that walk 26 years ago, it’s been a long, winding road for Jones, from convicted rapist to one of the first people in the country exonerated by DNA, to where he is today: an unemployed former drug addict who’s spent the past decade in and out prison for crimes he really did commit.
In his small, one-bedroom apartment in Topeka, Jones talks about his case, and the man who really committed the rape all those years ago. Jones and the defense team who eventually freed him think they know who that man is.
And DNA evidence — sitting in a storage freezer in Richmond, Calif. — might be able to confirm or refute their suspicions.
Two decades after Jones walked out of prison a free man, a terrible wrong has yet to be fully righted.
And no one yet has received justice in the case, says Jim Kenney, an investigator for Jones’ public defender team.
“The victim didn’t. Joe didn’t,” said Kenney, the memory of the case still fresh. “Whoever really did it, they got away with it.”
Exonerated, but still not free
‘He didn’t seem like a rapist’
In 1985, Jones was a carefree, 23-year-old recently laid off from a factory job at Frito Lay. He spent his entire weekends in the garage and had dreams of one day racing cars.
Jones liked to have fun, but had never been arrested or been in any sort of legal trouble.
On his way home from a downtown club on Aug. 25, he walked down Kansas Avenue, nearing the intersection of 10th Street shortly after midnight.
Police cars met him at the intersection. Officers asked for his identification, found marijuana stuffed in his wallet and hauled him to the station for questioning.
Jones, at the time, thought it was all about the marijuana. What he didn’t know: Two woman inside a club he walked by had called police and identified Jones as the man who had assaulted them and raped their friend the evening before.
Jones explained where he was the previous night, but it didn’t matter. Once police started asking about a sexual assault, Jones said, he went blank. He says he remembers being transferred from the police station to the jail, arrested for his first-ever crime.
Ron Wurtz, Jones’ court-appointed attorney, said it didn’t take him long to believe in Jones’ innocence. For starters, Jones had no criminal record. He was gay. Wurtz also had defended his share of violent criminals, and Jones didn’t fit that profile.
“He just did not present, in any way, shape, or form, as a violent person,” Wurtz said. “He didn’t seem like a rapist.”
‘They looked so much alike’
While Jones waited in jail for trial, another man, 19-year-old Joel Russell, was committing a string of violent crimes in the area.
Kenney, the investigator assigned to assist in Jones’ defense, saw Russell at the courthouse one day and began focusing his efforts to free Jones by connecting the crime to Russell, then a teenager.
Recent mug shots of Russell and Jones don’t show much of a resemblance, other than both men are black. Russell is lighter skinned and bigger, by about 70 pounds.
But back in 1985?
“They looked so much alike,” Kenney said. “I thought they could have been brothers.”
With the strong eyewitness testimony against Jones, Kenney said their only hope at trial, and eventually on appeal, was to show that another man committed the rape. Kenney then, and now, believes that man was Russell.
In addition to the resemblance, Kenney pointed to similarities between the crimes Russell was eventually convicted of, and the rape Jones was wrongfully convicted of.
Russell, according to court records, was convicted of three assaults that occurred in November and December 1985. In all three, as in the crime Jones was eventually convicted of, Russell entered an automobile and held a knife to a woman’s throat.
One of the assaults, on Dec. 7, 1985, also occurred in the 900 block of Kansas Avenue.
“In sum, Russell’s crimes are linked in time, place, entry of car, use of knife, similarity of statement of whereabouts, and actual physical descriptions to the crime in this case,” stated Jones’ defense team in one of Jones’ unsuccessful appeals.
But the problem, Kenney explained, was that Russell was being represented by the same public defender’s office, and access to Russell was limited.
The defense called Russell to testify at an appeals hearing, but he denied any involvement in the crime.
One difference in the cases, however, was that in the three assaults Russell was convicted of, no sexual assault had occurred. Those victims had fought off or scared off Russell.
In 1986, Russell pleaded guilty to three other charges, and no contest to a fourth — including assault, burglary, kidnapping and robbery. In all, Russell was sentenced to seven to 30 years in prison.
As the imprisoned Jones fought to get DNA testing to prove his innocence, Russell was released on parole in 1990.
Two years later, Russell was arrested, and later convicted of rape, sodomy and aggravated indecent liberties with a child in Reno County. Russell is being held at the Ellsworth Correctional Facility and is eligible for parole next June.
Al Bandy, with the Shawnee County Public Defender’s Office, who represented Russell during Russell’s 1986 case and his subsequent appeals, would not comment on Russell’s case, citing attorney-client confidentiality.
‘There was no doubt’
At Jones’ 1986 trial, the defense presented an alibi — that Jones was seen at an area convenience store at the time of the crime. Coupled with the lack of criminal history, Jones thought he’d be set free.
“I had this illusion, even going through that … I wouldn’t be convicted,” Jones said.
But there were the confident witnesses: the victim and two friends who had seen the abduction.
Topeka resident Ed Rotz, who was on the jury, said the eyewitness testimony was “powerful.”
“It was pretty compelling,” Rotz said.
The jury deliberation was easy and quick, Rotz remembers.
“I felt bad. My goodness,” said Rotz, at his home recently. “We obviously made a mistake.”
At trial, the witnesses confidently said Jones was the rapist. And even though DNA evidence exonerated Jones in 1992, the victim in the case, who now lives out of state, said she still believed Jones was the rapist.
“There was no doubt,” the victim told the Journal-World recently. She contests the validity of the DNA testing, which was in its infancy in 1992. “The DNA testing is really hard for me to swallow. Would that test come out differently today?”
Gary Wells, a psychologist who has testified about eyewitness misidentification, said it’s not unusual for victims, despite scientific proof, to believe their memory in such cases.
“The person who you misidentified starts to become your memory,” Wells said. That memory is further enforced as the victim sees the alleged assailant in court. “They become increasingly certain.”
Of the more than 270 people in the United States exonerated by DNA evidence since 1989, 75 percent were originally convicted based in part on mistaken eyewitness identification, according to the Innocence Project, a New York-based organization that assists with exonerations and DNA testing.
And often, as in Jones’ case where the three witnesses were white, it’s a “cross-racial” identification, which presents its own challenges, said Lawrence Wrightsman, a KU psychology professor who filed a report about the issue with the court in Jones’ original trial.
Wrightsman said that white people focus on very specific facial features in other whites, but when it comes to other races, that’s not the case.
“When they see a black in a situation like this, they in a sense cut off their investigation,” he said.
Once that identification has been made, it’s difficult to turn back, Wrightsman said.
“Over and over again, she’s taken this position,” he said. “It’s just human nature.”
Despite the defense team’s best efforts, appeals accusing Russell of the crimes were unsuccessful, and legal avenues for freeing Jones slipped away.
“That’s the worst nightmare of any defense attorney,” said Wurtz of his belief that Jones might die an innocent man in prison. “I never put his file away.”
Meanwhile, Jones, starting his life sentence, saw a snippet in a scientific magazine about DNA evidence. That small article planted the seed in his mind that the emerging science might help his case.
“I thought: ‘Oh my God,'” Jones said.
But time would pass, and Jones would wait several more years before he again heard about DNA.
As the first cases in which DNA evidence freed people from prison began hitting the national spotlight in the late 1980s, Wurtz contacted David Gottlieb, a KU law professor who was then director of the KU Defender Project.
Gottlieb helped secure funding for the DNA testing, and samples were sent to two labs before they were able to obtain conclusive results. The tests eventually excluded Jones from the rape, and he was released in 1992. Jones was the first person in Kansas to be exonerated through DNA evidence, and just the seventh in the United States.
Since that time, more than 270 people have been exonerated by DNA evidence in the United States, and one other in Kansas.
The exoneration, however, was the beginning of several other battles for Jones.
Two years ago, Eddie Lowery, who was convicted in Riley County of a 1981 rape he didn’t commit, settled a lawsuit with Riley County officials for $7.5 million. Lowery, convicted based on a false confession, served a 10-year sentence, but eventually obtained DNA testing that proved his innocence. Settlements in wrongful conviction cases like Lowery’s are seen across the country; they often reach into the millions.
But such settlements were unheard of back when Jones was exonerated.
Instead of a lawsuit, Jones’ lawyers advised him to lobby Kansas legislators to add a compensation bill into the state budget.
For five months, Jones said he went to the state Capitol almost every day following his release. Eventually, in 1993, Jones received a $350,000 payment, or about $6 for every hour he spent behind bars.
Jones detailed the admittedly poor choices he made when he was fresh out of prison.
While Lowery got a job, married and resumed a somewhat normal life following his incarceration, Jones struggled handling his $350,000 and his freedom.
“I was broke,” Jones said. “In four, five years.”
Jones bought a house, a race car, and despite hearing about the dangers of cocaine while in prison, got hooked on the drug.
Jones estimates that at one point he had a $500-a-day drug habit.
“Self-medicating for the grief and pain … it outweighed leaving it alone,” Jones said of his drug use that spanned more than a decade.
Out of money by the late 1990s, Jones began committing a series of nonviolent drug offenses and property crimes.
And he’s been in and out of prison since.
Jones was most recently paroled in March, and he says he’s been drug-free for more than two years.
In hours of interviews with the Journal-World, Jones talked in-depth about a variety of personal topics, including contracting HIV in the early 1990s.
But there’s a window of time he doesn’t talk about. He talks about his conviction and his release from prison.
But what about those seven years in between? He simply says it was like he was “in a war.”
“He’s not the kind of person who had an easy time in prison,” Gottlieb said. “He’s very gentle. I think that’s the thing that comes across very quickly.”
Jones’ struggles following his exoneration are not at all unusual, said Karen Wolff, a social worker with the Innocence Project.
“There are a lot of stories like that,” she said.
Wolff is one of the workers at the Innocence Project who work with recently exonerated people, helping them to adjust to life outside of prison. Back in 1992, there was no such system.
“There’s absolutely no formula for what happens to these guys when they get out,” she said.
‘Nobody ever raised the issue’
It’s unclear whether an investigation to find the real rapist was ever conducted following Jones’ exoneration. In 1992, there wasn’t a DNA database that authorities could have used. And the type of testing performed then wouldn’t have been able to conclusively identify a particular suspect, said Ed Blake, the California scientist who tested the original material and testified at Jones’ exoneration hearing.
What about testing the evidence with today’s technology?
Blake said his lab’s protocol is to return the evidence to law enforcement following testing. That material, according to Sgt. Richard Volle, head of the Topeka Police Department’s Cold Case Unit, is nowhere to be found.
“It doesn’t appear we have any evidence in the case,” said Volle, who said he hadn’t heard of Jones’ case until questioned by the Journal-World.
But there’s a twist: Blake said his office would still have some testable evidence in its storage freezer.
“We’ve got the remnants of the fluid,” Blake said. “There’s something that could be tested, most likely.”
The problem? No one has asked Blake’s lab for material.
“Nobody ever raised the issue,” he said.
Volle said they’d be interested in following up if the evidence exists.
“We can get the ball rolling,” he said.
The statute of limitations for prosecuting rape cases is five years in Kansas. However, a Kansas law extends that time frame for one year after DNA evidence identifies a suspect, making prosecution of older cases possible.
Jones, meanwhile, said he’s working to get his life on track, attending regular meetings with a counselor.
“I’m really, really working on the ‘well’ thing right now,” Jones said. “Anything to make me feel like this didn’t happen.”
Decades after his conviction, Jones said he harbors no ill will toward the woman who picked him out as her rapist.
He and she? They’re both victims, he said.
“The woman made an honest mistake,” Jones said. “It later came to me how I could accept it. God, that must be a pretty traumatic situation.”