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Law

Beyond innocence

A Michigan exoneree finds purpose in advocacy, closure in identification of perpetrator

Photo: Bruce Giffin
Photo: Bruce Giffin
The prison at Jackson where Wyniemko spent part of his decade behind bars.
Photo: Bruce Giffin
His license plate proclaims his innocence.
Photo: Bruce Giffin
Wyniemko and Cooley Law's Innocence Project Co-directors Marla Mitchell and Donna McKneelen before the House Judiciary Committee last week.
Photo: Bruce Giffin
After the committee's vote.
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Published 7/2/2008

Ken Wyniemko spent nearly a decade behind bars for a Macomb County rape. His most pressing concern was surviving. His second was proving his innocence.

He succeeded at both.

Wyniemko was released five years ago, exonerated by DNA testing that showed he could not have been the man who broke into a Clinton Township woman's home one morning in April 1994 and repeatedly raped her.

But he knew suspicions about him remained, and that he wouldn't feel truly cleared until the real perpetrator was caught.

Last week, that apparently happened. Clinton Township Police publicly confirmed that another man's DNA matched semen found at the crime scene.

"I've been waiting 14 years for this information to come out," Wyniemko told Metro Times. "It's very important. Not only did the police and prosecutors cost me 10 years of my life, but this guy did too and he knew all along that I was innocent. That's just not fair. It's not right for me or the victim."

It's a new freedom for Wyniemko, knowing that the last doubts about his innocence should be put to rest. But he never waited for that information to design a plan of action for his second chance at life.

Wyniemko, now 57, credits the late United Auto Workers Union President Walter Reuther with the words he lives by: "There is no greater calling than to serve your fellow men. There is no greater contribution than to help the weak. There is no greater satisfaction than to have done it well."

He invoked the quote during testimony last week in Lansing before the House Judiciary Committee, one of his many efforts lobbying for laws to both help the exonerated and prevent others from being wrongly convicted. He travels the country speaking about his experience to students, attorneys and lawmakers. He's testified in Lansing several times. He's active with the New York-based Innocence Project, which has helped exonerate 218 people, including himself, across the country using DNA testing to invalidate convictions.

He's supported other Michigan men who have been released from prison with no money, no housing, no health care, no job prospects and no other support services, noting that parolees often have these "luxuries."

He plans to attend law school, doesn't count out a run for office someday and hopes there will always be curiosity about his story, because he sees it as a catalyst for reform.

"The more people that know about it," he says, "the better."


Snitch and miss

The 28-year-old Clinton Township woman was home alone, her husband out of town playing golf, in the early morning of April 30, 1994, when a man broke into her house. Wearing a nylon stocking on his head during most of the four hours he attacked her, the 20- to 25-year-old man she described as 6 feet or 6 feet, 2 inches tall weighing between 200 and 225 pounds handcuffed and blindfolded her, raping her in several rooms of the house, according to reports. She caught a few glimpses of his face and described him to police for a composite sketch. She later said the drawing was only 60 percent accurate.

The man left after stealing $2,500 — including bowling league winnings — from her purse. Semen was found on the victim's underwear and the bed sheets but wasn't fully analyzed before trial. Testing showed that the evidence on the sheets was consistent with the victim's husband's blood type — but not Wyniemko's.

Wyniemko, a former factory worker and then a bowling alley manager, was charged 10 weeks later. Police had arrested him on an unrelated misdemeanor stalking charge — which was dropped — involving an ex-girlfriend. But while he was in custody, officers told him that he resembled a composite drawing of the suspect in the rape, according to court documents.

They placed him in a lineup, but the victim did not initially pick him. After meeting alone with police and a prosecutor, and then having the men in the lineup speak, she identified Wyniemko, then 43, as the rapist. He was 5 feet 11 inches tall and weighed less than 200 pounds, bearing little physical resemblance to her first descriptions of her attacker.

Wyniemko was charged the next day.

After a five-day trial, a jury convicted Wyniemko of 15 counts of criminal sexual conduct, armed robbery, and breaking and entering. Police have admitted their case was "circumstantial"; no physical evidence tied Wyniemko to the crime. But in addition to the victim's identification, a jailhouse snitch who was given a reduced sentence testified that Wyniemko had confessed. And an ex-girlfriend described his preferred sexual practices as similar to what the victim described.

Noting that Wyniemko failed to show any remorse for the crimes he'd been convicted of, Macomb County Circuit Judge Michael Schwartz handed down a sentence even harsher than guidelines called for: 40 to 60 years for each of the 15 rape counts, 10 to 15 years for breaking and entering, and 20 to 25 years for armed robbery. With the sentences to be served concurrently, the earliest he'd be eligible for parole was 2025.

"There were moments when I actually thought I had died and gone to hell. Prison was hell. I knew that I was innocent and I never gave up hope. I never gave up faith that one day the truth would come out," Wyniemko says.

He didn't let anger consume him. "People ask me now, 'Why aren't you angry?' I tell them because you cannot allow yourself to become angry. Anger will kill you. It will distort your mind and make you unable to focus. I studied the law and tried to contact reporters and attorneys to help me. That's how I survived. And I prayed and I prayed and I prayed."

The state Court of Appeals in 1997 rejected Wyniemko's claims that the trial court abused its discretion by allowing the ex-girlfriend's testimony, that prosecutorial misconduct denied him a fair trial and that his defense lawyer was ineffective. U.S. District Court Judge Patrick Duggan in 2000 rejected Wyniemko's federal habeas petition, which made several claims, including that he'd had ineffective assistance of counsel and that prosecutors lacked evidence.

That same year, the Michigan Legislature passed a law allowing DNA testing in rape cases where the evidence existed, hadn't been analyzed before trial and could exonerate the convicted person. It became effective Jan. 1, 2001.

That May, the Cooley Law School Innocence Project in Lansing officially opened, though faculty had already been getting dozens of desperate requests from inmates to look at their cases.

Among them was Wyniemko's.


Freedom found

With a history in criminal work, attorney Marla Mitchell was part of Cooley's Innocence Project from its beginning. As its co-director, she's seen more than 4,000 requests since the state's DNA statute was passed. "That doesn't mean 4,000 people in prison have DNA cases that fall under the testing law," she says. "Most of them didn't and those cases were screened out."

But Wyniemko's wasn't. He fit the statute's provisions, having been convicted on or before Jan. 1, 2001, with evidence that hadn't been tested and might still be available. (People convicted after that date are ineligible because lawmakers assumed DNA testing was routine during investigation or trial by then, Mitchell says.) In Wyniemko's case, attorneys first had to find out if the underwear, sheets or other evidence still existed. Police don't always keep such evidence.

"The burden is completely on the person who files the petition to prove that the biological evidence sought to be tested exists and is available for testing. That's something that a prisoner simply has no means of determining," Mitchell says.

Much of the Cooley Innocence lawyers' work involves filing Freedom of Information requests with police departments to try to determine if evidence exists. Prisoners are barred by state law from filing FOIA requests, which seek access to public records. But Mitchell says FOIA has actually been an "ineffective" tool because of its limits.

"The FOIA law allows you access to documents. While we are often looking for documents, old lab reports for example, we also ultimately have to find the actual evidence. You can't write a letter under FOIA and say, 'Do you have any evidence?'" she says. "It's not very simple to figure out where the evidence might be. That takes a considerable amount of time and is a big part of our investigation in any particular case."

In some cases, evidence was destroyed before the statute mandating its retention. In Wyniemko's, it was not. Attorneys felt lucky.

In November 2002, Gail Pamukov, a Sterling Heights criminal defense attorney working pro bono with the Innocence Project, filed a request in Macomb County Circuit Court asking that a DNA test be performed on the evidence in Wyniemko's case.

Macomb County Prosecutor Carl Marlinga, who had been in office when Wyniemko was convicted, did not object to the testing that could prove Wyniemko's innocence and his office's error.

"The mistake is not having something like this happen on your watch. The mistake would be to try and deny it and cover it up," he told Metro Times last week. "It just shows the importance of both prosecutors and defense attorneys working together when there is a viable claim of innocence."

Testing found that semen on the bedding from the Clinton Township scene was from the victim's husband, but the semen in her underwear was a mixed sample from her husband and an unknown male. Not Wyniemko.

He was freed June 17, 2003. He calls it his second birthday.


Conviction & compensation

In addition to their caseloads and teaching work, Mitchell and the Cooley faculty have joined with other advocates to help write and re-write bills that have been introduced in the Michigan Legislature to prevent some of the causes of wrongful conviction and help free those who are imprisoned for crimes they did not commit.

They're hoping to extend the DNA testing provision — the one that cleared Wyniemko — which is set to expire Jan. 1. If inmates do not have their petitions filed for testing by then, the law's expiration would prevent them from doing so.

Other pending bills would change police lineup procedures to improve suspect identification and would mandate recording of police interrogations to help prevent false confessions.

At the House Judiciary Committee meeting last week, Wyniemko testified in favor of a bill that would provide compensation to people who have been wrongly convicted and cleared with DNA.

The measure is sponsored by Rep. Steve Bieda (D-Warren). "I can't think of a more egregious miscarriage of justice than of someone who is actually innocent being convicted and going through our system of incarceration," Bieda says.

When prisoners are paroled they may receive job training, housing assistance, counseling and health care; men and women exonerated of crimes receive no state help. The pending legislation would grant them $40,000 for each year they served, though it would not be paid until a court determines they meet the criteria, which could take months.

So far, there've only been four cases of prisoners who've been freed on the basis of DNA evidence and who could pursue compensation under such a bill.

"After spending nearly a decade in prison for a rape I did not commit, I had absolutely no idea how I was going to survive each day," Wyniemko told the committee.

A day before the hearing, Wyniemko had visited representatives on the judiciary committee with a staff member of the national Innocence Project hoping to convince them to pass it out of committee. Several had not supported the bill.

Mitchell wasn't sure it would pass out of committee last week. Her co-director, Donna McKneelen, was sure it wouldn't.

"But Ken's pretty effective," McKneelen says. "He's invaluable. He has an effect on people that we don't have in the same way. We can testify about the bills. We can talk about the need for them. We can talk about correcting the reasons for wrongful conviction. Ken comes in and puts a face on it. He's lived the things we're talking about it and he makes an impression on legislators that we can't."

After the attorneys spoke to the committee for about 20 minutes, it was Wyniemko's turn. He first talked about Eddie Joe Lloyd, the state's first DNA exoneree who had served 17 years for the rape of a Detroit teenager after he had falsely confessed to police and was convicted. Lloyd was released in 2002 and died in 2004. The real rapist has not been found.

"I saw him a week before he passed. I told him I would keep up this battle for fairness and justice not only for him but on behalf of my father, whom I lost when I was still wrongly imprisoned," Wyniemko told the committee. "It's only fair that the state should offer compensation to these people who have been hurt so much."

The committee voted unanimously to send the measure to the House floor for a vote. Wyniemko, McKneelen and Mitchell exchanged tearful hugs, surprised at the unanimous vote.

"You did this," both McKneelen and Mitchell told him.

Wyniemko had testified with no prepared remarks and barely a pause. He's come a long way from the man who walked out of the Macomb County Jail after his exoneration five years ago.

WXYZ-TV reporter Bill Proctor remembers that day well. He was one of the first reporters to meet Wyniemko following his release. "When I looked in his face when he was coming out of prison, I saw sorrow. He seemed to be a beaten person. He came out looking like somebody who may not make it," says Proctor, himself a former cop. "There's reason to be very proud of his accomplishments. In five years he has demonstrated what you would certainly want someone to try and do when it's all over."

Wyniemko has been helping Proctor form a non-profit organization called Proving Innocence, which will examine wrongful conviction cases where DNA is not present. The former client has also turned advisor for Cooley and the national Innocence Project. He considers working for "the cause" to be his full-time job.

It took Wyniemko a few years and a federal lawsuit, in part, to get where he is today: dedicated, as he says, to providing "justice for all."

The day he was released he first visited the grave of his father, who had died while Wyniemko was incarcerated. Then he went to Greektown's New Parthenon for dinner. He laughs when he recounts his trip to the men's room, where he was confused by a urinal with no handle to flush it — motion-sensitive flushing became the norm while he was locked up.

For months he stayed with family and friends, trying unsuccessfully to land a job. Two months after he was released he got a German shepherd puppy that a friend had rescued from the side of a freeway. He started spending time with his grandchildren, born while he was in prison, and his elderly mother.

But he couldn't let his wrongful conviction go without seeking reparation from those whom he believed caused it. He filed a federal lawsuit against Clinton Township and the police officers who arrested him, claiming serious police misconduct.

"I was motivated to file the suit because of the suffering that not only I but my family had to go through," he says.

Police, according to Wyniemko's suit, arrested him without probable cause, withheld evidence that would have contributed to his defense, and knowingly used perjurious testimony from the jailhouse snitch to wrongly incriminate him.

In addition, according to Wyniemko's lawsuit, police knew the victim was having an extramarital affair — possibly with a law enforcement officer — and failed to investigate. Nor did police test or analyze the victim's underwear.

In his ruling against the township's motion for summary judgment to have the suit dismissed, U.S. District Judge Lawrence Zatkoff wrote, "There is sufficient evidence on the record that the (mis)conduct of Defendants was instrumental to the continued confinement, prosecution and conviction of Plaintiff and that such conduct tainted the legal process such that Plaintiff was denied a fair trial."

The township settled the case before it went to trial, and Wyniemko received $3.7 million.

"We proved they were lying and the whole case was a cover up," Wyniemko says.

Still, he's not bitter to everyone involved in his prosecution. He is friends with Marlinga, who says he's honored by that.

"Ken is kind of my patron saint in life," the former prosecutor says. "I think that Ken Wyniemko is probably the greatest human being I've ever met. ... I wasn't personally involved in the case, but I was the dude in charge when he was wrongfully convicted. For him to not just forgive me but to embrace me and become such an important part of my life, it's beyond what we normally could expect from other human beings."

Marlinga says DNA-related exonerations like Wyniemko's show that wrongful convictions happen. Many are likely in prison, he says, who don't have the scientific proof DNA offers to overcome victims' misidentifications of their attackers.

"There are a whole host of cases, the vast majority of cases where DNA would not be relevant to any issue in the case. Wrongfully convicted persons still end up spending time behind bars with no hope of getting let out because DNA would not be applicable in their case because either there was no biological evidence left behind or it was too eroded."

To help support legal work and exonerees, Wyniemko set up a foundation bearing his name that raises money for innocence work. He drives a Jeep Grand Cherokee with the vanity plate "INO CNT." His other car, a Corvette, is identified by its "EXNR8TD" tag.

The sports car has an eerie connection to Wyniemko. It's a 2003 model, built to commemorate the 50th anniversary of the popular car. When Wyniemko was researching his vehicle, he discovered the day it rolled off the line: June 17, 2003.

That was the day he walked out of prison.

"Weird, huh?" he says, his green eyes twinkling.


The call

In May, Wyniemko got the call he'd long been waiting for. While shopping at a department store, his ever-present cell phone rang. It was his attorney, Pamukov. "Are you sitting down?" she asked him.

"Every time she says that I get real nervous," says the soft-spoken, deliberate Wyniemko. "She said, 'I've got something to tell you you're not going to believe.'"

Clinton Township police had contacted her and said Michigan State Police had found a match to the DNA from the crime scene 14 years ago. "So they know who the real rapist was in my case," Wyniemko says. "I've been sitting on pins and needles ever since. I'm real curious to see if he committed any other crimes during the time I was in prison."

Clinton Township Police Captain Richard Maierle refused last week to give details about the suspect, saying police would work with prosecutors to determine charges before releasing his name. Nor would Maierle discuss whether the man had committed other crimes in the 14 years since the Clinton Township rape.

For Wyniemko, knowing the identity of the actual perpetrator is the final piece of the puzzle of how he was arrested, convicted and sentenced for a crime he didn't commit. It's his total vindication.

"It's good for everyone," McKneelen says. "It's good for Kenny because now people really know he didn't do it and it's good for the victim because there's closure for her."

Wyniemko hopes his story will help lawmakers, police, prosecutors and judges at all levels of the criminal justice system take a closer look at innocence claims and avoid wrongful convictions. But he still can't understand fully why it happened to him.

"I told them I didn't do it," he says.

Sandra Svoboda is a Metro Times staff writer. Contact her at 313-202-8015 or ssvoboda@metrotimes.com.

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