The Right and Privilege of Post-Conviction DNA Testing

October 6, 2012

Pacific Standard:

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.”

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…

Read it all.

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