Part II: A Second Chance?

Melinda Elkins has no doubt in her mind that her husband, Clarence, is innocent of the murder of her mother, Judith Johnson. But a jury found him guilty, and Melinda needs new evidence to get a new trial.

“My mother is still laying six feet in the ground and someone other than my husband murdered her,” adds Melinda. “I want the person responsible to pay for what they’ve done.”

So Melinda hired private eye Martin Yant, whose investigation has convinced him that Clarence Elkins did not commit this gruesome murder.

In fact, he says that Ryall Rush, 29, a “Clarence Elkins look alike,” is guilty of the crime.

Rush and the victim, Judith Johnson, knew each other. But Yant claims that Rush was interested in more than friendship – that he had a crush on the much-older woman, and that Johnson’s rejection could be a motive for the murder.
Yant also says that Rush, who lived in Johnson’s neighborhood, was known to carry a club – a pool cue that was sawed off at both ends - for protection. A club that the 6-year-old star witness said the man was carrying the night of the attack.

Elkins’ attorney, Elizabeth Kelly, says the most damning piece of circumstantial evidence is a police surveillance video shot the day of Judith Johnson’s funeral. She says it shows that Rush had deep scratches on his face and hand.

As a result, she wanted police to get a sample of Rush’s DNA, to see if he’s a match for the hairs found on Judith Johnson - the ones that didn’t match Elkins.

But he insists that in this case, he, too, is an innocent man: “I’m a nice guy. I go to work and back home.” He admits that he once asked Judith out, but he claims it was a joke.

Rush also denies carrying a club - and as for those scratches, he says they were from rough sex with a woman he met at a bar.

But the Elkins defense team insists prosecutors can’t ignore a stunning development in this case. The prosecution’s own star eyewitness – the little girl, who’s now 10 - has seen a photo of Ryall Rush, and now says he looks like the man who attacked her grandmother. She also claims she was never as sure as she may have seemed four years earlier, when she pointed a finger at her Uncle Clarence in the courtroom.

“I remember the face of the guy that was there, and it looked like Ryall,” says Elkins’ niece in a new deposition. “I thought I knew the guy, but then I was scared because he was a guy and I was so little.”

“It’s probably been on her mind from the beginning, and I don’t believe she was allowed to say the truth,” says Clarence. “She knows that I did not do this.”

“I started remembering things when I went over to my Aunt Mindy’s house,” recalls the young witness. “I saw a picture of my Uncle Clarence, he has blue eyes. And I remembered brown eyes.”

But prosecutor Mike Carroll is suspicious of the child’s sudden change of heart - and he's absolutely sure that she was coached. What’s also troubling to the prosecution is that these new details emerged only after the defense had the little girl hypnotized.

“I don’t blame people for being suspicious about the recantation,” says Dr. Elizabeth Loftus, an expert on eyewitness testimony at the University of California at Irvine.

“When you hypnotize someone, they are in a heightened state of suggestion and suggestibility. It’s hard to know what the truth is here. It’s like trying to nail Jello to the wall with this memory.”

Dr. Loftus says a child can be a reliable eyewitness, as long as that child hasn’t been coached. But she points to two troubling statements in the child’s recantation.

Question: Why are you talking to me today about the night that your grandma died?
Witness: Because we got more information.

“That does suggest that there was a group process going on here,” says Loftus.

Question: Do you think he's the same man who punched you in the cheek?No? Why do you think that?
Witness: He would never do that to me and my grandma and they loved each other.

“Is this something she thought of on her own,” asks Loftus. “Is this something she heard other family members saying? It’s really hard to know.”

But Loftus says it’s also hard to know if the child was coached the first time around, before she took the witness stand.

“Something happened between her saying, ‘Somebody killed my grandma,’ and Uncle Clarence,” says Loftus. “If I were a judge in this case, I’d be wanting some more physical evidence, because the little girl is not giving us a good answer to this problem.”

“I want my Uncle Clarence to get out of jail,” says the witness. But it will be up to a judge to decide if this child’s testimony is more reliable now than it was four years ago - and whether the lack of forensic evidence is compelling enough to set Clarence Elkins free.

“We should not have to come here to visit him. He should be at home,” says wife Melinda. “I feel victimized by the system. I feel very victimized.”

But she hangs on to the hope that she may not have to make this trip much longer

A judge has agreed to hear arguments on new evidence in the murder of Melinda’s mother, Judith Johnson – evidence she thinks could set Clarence free, or at least win him a new trial.

"I lost four years of my life and my family's being together because I'm falsely accused and wrongly convicted," says Elkins.

When the day arrives, emotions are at the breaking point. The courtroom is packed, and defense attorney Elizabeth Kelly begins by presenting her case against Ryall Rush.

“We have discovered a man who looks like Clarence Elkins, sounds like Clarence Elkins, and who in all probability murdered Judith Johnson,” says Kelly.

But Judge John Adams insists he has no legal authority to order a DNA sample from Rush.

Kelly then cites a laundry list of potential evidence from the crime scene that never even was tested by police – including items in the kitchen, fingernail scrapings from Judith Johnson and a bloody fingerprint.

Assistant District Attorney Richard Kasay, however, insists jury members were well aware of the lack of physical evidence tying Elkins to the crime – and it didn’t seem to bother them.

“Well, it is clearly sufficient evidence to convict,” he says. “The jury found Mr. Elkins guilty beyond a reasonable doubt.”

But what clinched it for the jury was the testimony of the child eyewitness, who Kelly argues, has now recanted her story.

However, Judge Adams, who presided over the original trial, has real doubts about this recantation: “It would be reprehensible if a child who has been the victim of a brutal sexual assault, witnessed the killing of her grandmother, was being manipulated to free an individual who is guilty.”

A local newspaper reporter calls from the courthouse with word of a ruling - and the news is devastating. The judge has denied the defense’s motion for a new trial.

Melinda breaks the news to her husband, who calls from prison: “He denied the motion ... Clarence, I don’t even know what to say. Don’t let it worry you that much. You keep fighting."

Judge Adams rejected the child’s recantation, calling it unreliable. And he also says the absence of physical evidence already was addressed at the original trial - yet the jury still found Elkins guilty.

As for Ryall Rush, it’s up to prosecutors to decide if they want to investigate him.

Meanwhile, Melinda Elkins vows to take her battle next to federal court. She insists that the fight is far from over.

"Maybe years down the road we'll still be fighting," she says. "But I can't give up and I won't."

But the district attorney says it’s up to Clarence Elkins’ family to pay for the test. So far they haven’t come up with the money - about $3,000.

Ohio does have a new law that allows for limited DNA testing at state expense, if a convicted felon can show the test could exonerate him.
Melinda Elkins is hoping the new law will hold the key to her husband’s freedom.