So reads the title of This New York Times story. I have read it. I urge you to as well. Then you will encounter things like this paragraph:
A recent analysis of 225 DNA exonerations by Brandon L. Garrett, a professor at the University of Virginia School of Law, found that prosecutors opposed DNA testing in almost one out of five cases. In many of the others, they initially opposed testing but ultimately agreed to it. In 98 of those 225 cases, the DNA test identified the real culprit.
I am neither lawyer nor forensic scientist. I am a citizen of a jurisdiction (the Commonwealth of Virginia) which (a) had the 2nd highest (to Texas) number and highest rate proportional to population of executions of any state; and which also (b)has a 21 day rule, under which no court is permitted to review any newly discovered evidence presented 21 days or more after the initial sentencing, regardless of its probity and despite the fact that a 2001 survey showed over 80% of Virginians opposed this rule.
Please join me as I explore the issues raised by the refusal of many prosecutors to allow DNA testing to go forward.
There is a concern by many that the request for DNA testing often represents either a delaying effort, and/or an effort to confuse jurors. Allow me to offer two brief examples of objections offered by prosecutors:
Prosecutors say they are concerned that convicts will seek DNA testing as a delay tactic or a fishing expedition, and that allowing DNA tests undermines hard-won jury verdicts and opens the floodgates to overwhelming requests.
"There’s also the idea that you want finality for the victim’s sake," Mr. Carr said. "If someone else’s semen was found at the crime scene, we’d have to talk to the victim’s family about whether the victim was sexually active."
State laws allowing post-conviction DNA testing are often restrictive - they may have a standard that requires the results of the test not merely establish reasonable doubt, but absolute proof of the innocence of the convict requesting the test. And some prosecutors argue that allowing widespread testing would require that they consider other possibilities rather than focusing in on suspects for whom they already have substantial evidence to demonstrate their guilt, as demonstrated by the convictions returned by juries convinced of their guilt beyond a reasonable doubt.
Consider the brief paragraphs immediately after the one with which I began:
In Illinois, prosecutors have opposed a DNA test for Johnnie Lee Savory, convicted of committing a double murder when he was 14, on the grounds that a jury was convinced of his guilt without DNA and that the 175 convicts already exonerated by DNA were "statistically insignificant."
In the case of Robert Conway, a mentally incapacitated man convicted of stabbing a shopkeeper to death in 1986 in Pennsylvania, prosecutors have objected that DNA tests on evidence from the scene would not be enough to prove his innocence.
And in Tennessee, prosecutors withdrew their consent to DNA testing for Rudolph Powers, convicted of a 1980 rape, because the victim had an unidentified consensual sex partner shortly before the attack.
Let me now reflect on part of the problem, from the perspective of this non-lawyer. Were the DNA test requested prior to conviction and prosecution attempted to block it, would not that constitute a denial of due process of law? Would not any doubts - not necessarily certainty of innocense - raised by contradictions between the other evidence and the results of a DNA test be sufficient grounds for returning a verdict of Not Guilty? After all, would not such contradiction be a clear exemplar of reasonable doubt? Prior to conviction, if the prosecution has any evidence that MIGHT be exculpatory and they failed to reveal it to the defense, that constitutes serious prosecutorial misconduct, sufficient not only to get a mistrial declared, but possibly with jeopardy attached and sanctions for the prosecution. But if the prosecutor has a duty to the truth, which is one reason for the prosecutorial discretion that does not require bringing of criminal charges when the evidence is weak, should not the prosecutor have an equal responsibility to not only allow, but to actively seek DNA testing precisely when the possibility that it might raise serious doubt about the validity of a conviction? After all, the prosecution was brought in the name of the people of the jurisdiction, because one then a defendant and now a convict was accused of violating the social contract, and we prosecute and imprison to punish that violation and protect us from further actions by the violator. But if the one convicted might not be the actual bad actor, does not the refusal to allow post-conviction DNA testing represent an abandonment of the responsibility to protect us from the actual bad actor, should the DNA testing raise serious doubts about the rightness of the conviction?
This also points at another question, one which has been discussed in Supreme Court opinions. The due process clauses of the 5th (against the Federal government) and 14th (against the state governments) Amendments do not discuss innocence at all. Is it Constitutional to allow punishments including not only imprisonment but up to and including execution when the accused may in fact be innocent? A strict constructionist who reads literally would argue there is no constitutional bar to the execution of an innocent person providing s/he has received all the protections of due process. I would suspect that such reasoning would have horrified the Founders responsible who insisted upon due process protections as a condition for ratification of the Constitution.
I am of Jewish background. There is a principle of Jewish legal thinking I would like to mention, although I cannot provide the exact Talmudic citation. When a person had been convicted of a capital crime, even if almost at the place of execution a new thought of why s/he should not be executed would arise, the court was supposed to turn back to the place of trial and reopen the case, to ensure that no error occur.
Errors do occur. The one noble act of George Ryan's otherwise corrupt governorship of Illinois was his recognition that the level of error already proven in capital convictions in his state morally required him to commute all extant death sentences to life imprisonment so that no innocent man be executed.
And lest we have any doubt about error, we merely need to look at the number of people imprisoned - and often tortured - as a result of the actions against supposed terrorists at places like Guantanamo and Abu Ghraib, Bagram and Balad, on our behalf in Egypt and Morocco, by people in our service in Eastern Europe and Diego Garcia.
Yes, there is the possibility of a correct conviction being overturned. Yet we have many precedents for this. A detective who is convicted of violating the rights of one suspect or manufactured or planted evidence or having committed perjury in one trial causes all the cases where he participated as investigator or witness called into question. And when Clarence Earl Gideon won his habeas corpus case on the grounds of having been denied the right to counsel, thousands of others who had similarly been denied counsel from the date he attempted to assert that right at his trial had their convictions expunged as the ruling was applied retroactively by a unanimous Supreme Court. Most of those freed were never retried.
There is something fundamentally wrong with an unwillingness of prosecutors to admit the possibility of error, and to restrict the ability of those convicted to challenge the rightness of those convictions. We are already the nation with the highest rate of incarceration among civilized nations. One must wonder why some are so unwilling to examine the rightness of convictions when science has improved sufficiently to help us correct our judicial mistakes.
And as a resident of the Commonwealth of Virginia, I admit my embarrassment that we still have our obscene 21 day rule, which is illustrative of much that is still wrong and unfair in our criminal justice system.
Now I will go to my classes, where I will continue to teach young people about our system of government. Perhaps we will debate this issue. I will certainly mention it. If nothing else, is it not incumbent upon us all to discuss it? After all, if these convictions are incorrect, are not we all responsible, since it is in our names and on our behalf that they were obtained?
Peace.