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The Right and Privilege of Post-Conviction DNA Testing

• October 04, 2012 • 9:12 AM

Almost half the DNA tests conducted at prisoners’ request confirm guilt. Yet many believe that the exceptions more than justify making post-conviction testing widely accessible. And what is often fair or prudent is for Death Row inmates essential.

Rather than risk executing an innocent, why not permit Death Row inmates to have DNA testing on available biological evidence in their cases? Why not offer access to testing to others convicted of serious non-capital crimes? It’s quicker and cheaper to test than to hold a court hearing to block it. Besides, testing is no “get out of jail free card”—DNA may also corroborate guilt, and may not go far enough to completely establish innocence.

Lindsay Herf, DNA Project manager and executive co-director of the Arizona Justice Project, says arguments that expanding access to testing would open floodgates to frivolous stalling have no evidence.

“Our canvassing of 5,000 inmates led to just over 300 people applying for help,” she says. “Prior to that, we have found that in 12 years of Arizona having a post-conviction DNA testing statute, there have been approximately 45 defendants – that’s about four a year! – who have applied in all of the Arizona counties. And not all of them were granted DNA testing.”

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Righting What’s Wrong in Criminal Justice

Wrongful convictions stem from the belated entrance of scientific rigor into the field of forensics, systemic problems, and the ubiquitous ‘human factor.’ In the coming weeks, a series of stories by crime author Sue Russell looks at why convictions go wrong, at the common reluctance to rectify error, and at innovations to better safeguard justice.

Stories so far:

A Porn Stash and a False Confession: How to Ruin Someone’s Life in the American Justice System

Red Flags: Early Warnings of Wrongful Convictions

Human Lie Detectors: The Death of the Dead Giveaway

Why Fingerprints Aren’t Proof

Litigating Lineups: Why the American Justice System Is Keeping a Close Eye on Witness Identification

The Right and Privilege of Post-Conviction DNA Testing

Seeking Second Chances Without DNA

Why Can’t Law Enforcement Admit They Blow It Sometimes?

A Prescription for Criminal Justice Errors

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Innocence Project experts say prosecutors in more than 80 percent of the cases they handle are open to giving inmates access, although others “employ every legal avenue to block testing and exoneration.”

Opponents of post-conviction testing, such as Lynn Switzer, the district attorney for Gray County, Texas, have argued for “finality” and are concerned prisoners would “game the system.” While they want an expiration date on claims, others ask if it is ever right to draw an arbitrary line on questions of innocence.

“If a person is innocent, they’re innocent,” argues Katie Puzauskus, executive co-director of the Arizona Justice Project.  “And there is no finality to someone’s innocence. They should have the chance to prove it through DNA testing, or by other means, if they can.”

Improving technology creates opportunities where none existed before. Herf points to scientific developments in testing sensitivity that mean a profile can be obtained from miniscule amounts of DNA: “In rape cases, it used to be if there was no semen or sperm, there was no possibility of testing – today that is no longer the case.”

In 2000, only two U.S. states had laws allowing post-conviction access to DNA testing. A dozen years later, 49 states – Oklahoma is the odd man out — have some kind of laws on the books. In February, Massachusetts got a new DNA access law. Kentucky introduced but did not pass legislation this year to allow for expanded DNA testing post-conviction; currently, testing is only accessible to death row inmates.

In practice, many statutes limit requests dramatically. For example, some states deny requests if an inmate originally confessed to the crime. (Eleven of the first 225 people declared innocent after DNA testing in the U.S. initially entered guilty pleas.) Other laws exclude those who failed to request DNA testing at trial or who entered a guilty plea.

In Alabama, prisoners convicted of capital crimes can apply for DNA testing as long as none was previously performed in their cases – but they only have a year after conviction to file a request.

And, Herf points out, inmates still need outside help in navigating the legal terrain: “There is a misconception that every inmate in prison would know to file for DNA testing the moment the statute was passed.” Few in Arizona knew of its 12-year-old post-conviction DNA testing law; “Those who did know about it had counsel that informed them of it,” she says.

Some test access restrictions also put an impractical burden on the defense, argue Innocence Project experts, requiring they effectively solve the crime and prove in advance that DNA evidence will implicate someone else.

In addition to fewer procedural blocks to testing, the group would like to see new laws requiring states to properly preserve and be responsible for all biological evidence. And its lawyer Nina Morrison, for one, advocates for reassessing arbitrary time limits that halt prisoners’ access to courts and impede the use of new evidence.

 

Arizona Opens Up

Arizona’s model collaborative program shows how close cooperation can work in reviewing innocence claims, in this case between the state attorney general’s office and the Arizona Justice Project. In 2008, Arizona was one of the first five U.S. states to receive a National Institute of Justice grant to defray the costs of reviewing cases and locating and testing DNA.

Arizona’s wake-up call was the case of Larry Youngblood, convicted in 1985 of abducting a 10-year-old boy from a Pima County carnival and molesting and sodomizing him. While semen was collected, potentially exculpatory blood tests were impossible: the evidence was stored improperly and too degraded.

The victim, who described his attacker as having one disfigured eye, picked Youngblood out of a photo lineup of images of six black men, each with one eye blocked out. (Youngblood is blind in one eye.) In court, the victim again identified Youngblood.

Youngblood appealed his 10-and-a-half-year sentence, arguing that the destruction of the biological evidence violated his rights to due process. He was freed after serving three years when the Arizona Court of Appeals vacated his conviction. But in 1988 the U.S. Supreme Court reversed the lower court and reinstated the conviction.

Meanwhile, DNA testing was becoming more sophisticated and the Arizona prosecutor did not object in 2000 when Youngblood’s attorneys requested a test on the degraded old evidence. The results exonerated Youngblood, who was again freed, and implicated Walter Cruise, a Texas inmate then incarcerated on an unrelated charge—and also blind in one eye. “A lot of these DNA exonerations, we see that the true assailant does look similar,” says Herf. “But DNA is the way that we can know 100 percent.” Cruise was convicted of the molestation in 2002 and sentenced to 24 years.

“Arizona experienced a true exoneration,” says John Pressley Todd, special assistant attorney general in the Capital Litigation Section of the Arizona Attorney General’s Office. “I felt it was important to understand what happened and to see if there was something that could be done differently.”

Collaborating with the justice project to get the DNA grant was, says Todd, “a natural evolving process – as far as I know, neither a ‘tough call’ or a ‘controversial’ one within the office. It seemed like the right thing to do.”

As part of the program, Todd and Herf emailed prosecutors soliciting submissions of old rape or homicide convictions in which DNA testing might, many years later, prove helpful. The response was underwhelming. Prosecutors “submitted zero cases,” Herf recalls. And defense attorneys only mustered a couple.

The program really got underway after the Department of Corrections fulfilled a request to identify all inmates convicted of homicide or rape: a little more than 5,000 of Arizona’s 45,000-strong prison population. Herf and Todd then went into the inmate population, giving presentations. “Sometimes three people showed up, sometimes a hundred,” Herf recalls.

Applications were handed to anyone with a claim of innocence resting on DNA testing, along with a firm admonition from Todd that only the innocent need apply and wild goose chases would not be appreciated. Maximum security prisoners who could not attend viewed the presentations on television in their cells. Some 283 inmates so far have applied.

Todd sees the collaboration with the Arizona Justice Project as “a failsafe given the advances in DNA technology.

“I think my involvement with the DNA project has helped the project evaluate some cases,” he says, “and more important, gain access to other members of the justice system, police, prosecutors and corrections. I hope I add credibility to the DNA project that leads to trust. Personally, I want to be as sure as I can that we do not have wrongly convicted individuals or any major issue with our system. If we do, then I want to be part of the solution.”

 

Should There be a Last Word?

How long a window of time prisoners should be given in which to request DNA-testing is hotly debated. Puzauskus would abolish time limits “because new DNA testing technologies develop regularly and there should never be a limit put on someone to prove their innocence.”

In Pennsylvania, a bill is pending that if passed would abolish that state’s particularly restrictive “60-day rule” which bars an inmate who later discovers evidence of his innocence from presenting it to the courts. According to the Pennsylvania Innocence Project, “No matter how compelling the evidence that the inmate is actually innocent, if the petition is even a day late, a court will not hear it. Period.”

“The 60-day rule simply doesn’t work,” says Duquesne University law professor John Rago, who headed the state’s Commission to Study Wrongful Convictions. “It doesn’t work in Pennsylvania and I cannot imagine a similar limiting rule working well anywhere,” he says, citing a report the commission released in September 2011. “Genuine claims of actual innocence take much more time to develop in a post-conviction setting and the rule that currently exists does little more than frustrate legitimate claims. While it was designed to eliminate frivolous claims, it has, in fact, worked poorly in terms of actual innocence claims.”

The pending bill would extend the period for making requests to one year and allow for its elimination when the petitioner can show that they are “actually innocent” of the charges.” “When there’s a claim of actual innocence accompanied by some credible evidence, there shouldn’t be any time limit,” its sponsor, Sen. Stewart Greenleaf, has said. “I don’t see how anyone can argue about that.”

In 2009, the Supreme Court found no constitutional right to DNA testing. “The dilemma,” wrote Chief Justice John G. Roberts Jr., “is how to harness DNA’s power to prove innocence without necessarily overthrowing the established system of criminal justice.” And because the goal of finality is deeply entrenched in that system, there is an innate tug of war for those who want to give victims’ families justice but also to serve justice itself.

“While I appreciate, by implication, the value assigned to the principle of ‘finality’ in criminal justice,” says Rago, “I find myself asking the added question: ‘Whose finality are we talking about?’ Surely the victim and the victim’s family are deserving of this consideration. So, too, is the government. No prosecutor wants to try a case twice.”

“In a perfect world, the interests of justice seem to suggest that no time limit would be the perfect rule,” says Rago. He concedes that while a one-year limitation was proposed to balance the interests, “it is clear to me that even a one-year limitation might be too little.”

This assumes, of course, that evidence remains to be tested. Attorney Larry Hammond, who fought for Youngblood’s release, believes it is essential that the system preserves evidence so that it can be considered at any time. Yet, vying for space and citing storage costs, much is discarded. Approximately half the states have laws that compel the preservation of evidence but the statutes vary regarding the crimes from which evidence must be kept and how long it should kept for.

A study released in June by the Urban Institute of Virginia on sexual assault convictions between 1973 and 1987 underscores the importance of preservation and why it’s another Innocence Project goal. By testing old evidence kept in files, it set out to discover what proportion of a group of 715 convicted offenders might have been cleared by DNA. Since Virginia began its post-conviction DNA testing project in 2005, thousands of tests involving hundreds of cases have exonerated half a dozen inmates.

Madeline DeLone, the Innocence Project’s executive director, cautions against extrapolating the study’s findings to draw any conclusions about the number of innocents imprisoned. Still, there’s enough there to suggest that more exonerations are likely.

And without the preservation of evidence, most would be impossible. As Larry Youngblood once told ABC News, “If they destroy the evidence, you don’t have a chance. You could die.”

Sue Russell
Journalist Sue Russell's work has appeared internationally in such publications as The Washington Post, New Scientist and The Independent. She is the author of Lethal Intent, a biography of executed serial killer Aileen Wuornos.

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