'Killer Instinct'

It had been nearly four years since Melinda Elkins’ husband, Clarence, was put away for rape and murder—crimes she believed he had not committed.

And now, Melinda was about to hear from someone who witnessed what happened that awful night:  her niece, Brooke.

Melinda hoped Brooke would finally tell her everything. Remember, Clarence had been convicted because Brooke identified him as her attacker.  Brooke, now 9 years old, stunned Melinda when she said she was no longer sure.  

And when Brooke later saw a photo of her uncle, she was overwhelmed by doubts.

April Sutton, Brooke’s mother: She said "It couldn’t have been Clarence. The person that hurt me and me maw had brown eyes. And Clarence has blue eyes."

Brooke Sutton: It just like stunned me.

Sara James, Dateline correspondent: You just stared at it.

Brooke Sutton: Yeah. I was just standing there looking at him. I missed him and I can’t believe I put him in jail.

Soon after, Clarence’s attorney questioned Brooke her in this videotaped deposition.

Now that Brooke’s changed her story, Melinda felt Clarence might have a chance for an appeal.

Laywer: Why did you say it was Uncle Clarence?

Brooke Sutton: Because it looked like him.

Lawyer:  It looked like him.  Um...but do you think it was Uncle Clarence?

Brooke Sutton:  At first, yeah.

Lawyer:  At first, yeah.  But do you think so today?

Brooke Sutton:  No.

Lawyer:  Do you think today, that Uncle Clarence was the same man you saw in the kitchen that night with your grandma?

Brooke Sutton:  No.

Lawyer:  Do you think he was the same man who punched you in the cheek?

Brooke Sutton:  No.

Lawyer:  And why do you think that?

Brooke Sutton:  Because he would never do that to me. And - my grandma and—they loved each other.

Melinda was convinced the court would have no choice but to grant a new trial. 

Instead, she was stunned when a judge denied their request claiming Brooke had been pressured into changing her story by that recent family reunion.

Melinda Elkins: They said that Brooke’s recantation was coerced by me pretty much.

Now 38 years old, Clarence would remain behind bars.

James: Did you think – “I’m just not gonna do it. I’m not going to find out. I’m never going to know”?

Melinda Elkins: Sure, there were times that I felt that. But each time that there was a wall that went up, made me even more angrier.

If Brooke’s recantation wasn’t going to change things, Melinda’s only hope lay in forensic science.  

Recently the court had agreed that she could have access to DNA recovered from the crime scene. But she would have to pay to get it tested. 

Melinda was undaunted. She spearheaded rallies, kept her story alive in the media, and organized an Internet-fundraising drive which drew international interest and raised close to $40,000 dollars.

James: You felt confident that if you could get the DNA evidence from the crime scene and match that against your husband’s, it would prove he didn’t do it?

Melinda Elkins: Right.

Melinda also realized she desperately needed more legal manpower. 

Recently, she’d heard about a new legal clinic at the University of Cincinnati Law School, it was called the Ohio Innocence Project. The pro-bono program was dedicated to freeing wrongfully convicted prisoners. 

Former prosecutor Mark Godsey, Ohio Innocence Project: I was immediately taken by her credibility, her sincerity, her passion, her conviction. And you could just see that this was something different.

Former prosecutor, Mark Godsey, runs the program.

Godsey: The first thing she said is that “my mother was murdered and my husband is wrongfully imprisoned for it.” And so right there is credibility. Typically the victim’s family is the last person who will believe that the person in prison is innocent.

They talked for two hours. By the end of the conversation, Godsey assured Melinda he would start working on the case the next day.

James: Did you find yourself believing that she might have a significant case here?

Godsey: Yeah, absolutely.  I could tell that this had a lot of DNA that wasn’t tested yet. And so, that’s the crucial thing we’re looking for.

In reviewing the case, Godsey realized the state had not used DNA to convict Melinda’s husband Clarence. 

Remember, back in 1998, DNA screening hadn’t been sophisticated enough to get conclusive results in this case. But the testing procedures had improved dramatically in the years since the case was prosecuted.

Godsey: The type of DNA testing we have now five or six years later is so far advanced over that level that you can go back to these cases and get results that you couldn’t get before.

The first step for Godsey was figuring out what on the evidence list to test first.  There were close to 50 items— bedsheets, bottles, clothing—it would cost a small fortune to test everything.

Godsey: So it became a question of strategically what do we pick? What kind of testing do we do? And what do we choose to test?

They convinced a lab in Texas to test two samples at half their normal price - still $25,000.

The first crime scene sample tested had been collected from Melinda’s mother’s body.  And this time, using the latest techniques, the lab said DNA was present.

James: When they tested it, what did they find out?

Melinda Elkins: They found male DNA.

James: And that DNA, did it match Clarence?

Melinda Elkins:  No, it did not.

They also tested a pair of Brooke’s underwear found under the couch at the crime scene.

Melinda Elkins: There was male DNA on those panties.

James: And did it match Clarence?

Melinda Elkins: No, it did not.

Godsey: There was a o.o percent chance that it was Clarence Elkins.

James: That’s gotta be a homerun.

Godsey: Yeah, we thought it was a homerun that should be enough to get him cleared in 99 percent of the courts in the country.

And yet, to their astonishment, it wasn’t.   The court ruled that because prosecutors had convicted Clarence based on that compelling eyewitness testimony, a jury would’ve reached the same conclusion even if it had known his DNA didn’t match the killer’s.  

Clarence would stay in prison.

Melinda Elkins: I just couldn’t believe it. My thought was, what is it gonna take? They want me to hand this murderer on a silver platter to them? Well, by damn, that’s what I’m gonna do.           

MORE FROM 'KILLER INSTINCT'

'Killer Instinct' Section Front

Housewife-turned-CSI investigator Sara James: This should be a movie Producer Bob Gilmartin on covering the story Motion from the defense to free Elkins (.pdf) Innocence Project letter of support (.pdf) Post-conviction DNA findings (.pdf) 'Killer Instinct' Section Front   Add 'Killer Instinct' headlines to your news reader: