Lessons from dna: restriking the balance between finality and justice

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3. Insisting on a continuous claim of innocence versus treating guilty pleas and confessions as factors to take into account. We know from the work of the Innocence Projects that a high percentage of those whose convictions were ultimately vacated, had confessed or had allegedly confessed, to the crimes of which they were convicted.^⁵⁶ We also know from other sources that false confessions are not a rarity.^⁵⁷ Recently, the phenomenon received much attention in connection with the 1989 Central Park jogger rape case in which five young men, then 14 to 16 years old, were convicted after they confessed to a particularly heinous gang rape in which the victim was left for dead. Twelve years later, an inmate imprisoned for a series of rapes, confessed to the crime and his DNA was found to match the Central Park crime scene sample.^⁵⁸ The convictions were vacated.

The failure to assert a continuous claim of innocence should not, therefore, be treated as a conclusive factor weighing against a request for testing.

B. Procedural issues. Another way of allocating resources is to provide varying benefits for the petitioner depending on how likely it is that an exclusionary result would result in proof of innocence. For instance, the state might pay for testing in certain categories of cases if the petitioner is indigent but not in others, though it would still permit testing if the inmate could arrange for funding.

Payment for counsel is, however, essential in the case of all requests. As the preceding discussion about the varying significance of an exclusionary result should indicate, far more is involved in postconviction DNA applications than simply asking for testing of the biological crime scene evidence. The viability of the inmate’s claim cannot be assessed without a thorough investigation of the case. This means evaluating trial transcripts, laboratory and police reports, as well as trial and appellate briefs. It is highly unlikely that this can be done without the assistance of counsel whose help is also essential in presenting petitioner’s request to the court ruling on the petition,^⁵⁹ and in identifying and locating the biological evidence that was collected and that might be testable if it still exists.

There is no constitutional right to counsel at the postconviction stage. While the new Arizona, California, Indiana, New Jersey, North Carolina, Oklahoma and Wisconsin statutes contain specific provisions authorizing the court to appoint counsel for indigent petitioners seeking postconviction testing,^⁶⁰ other statutes are silent on this issue. Since it is impossible to categorize the nature of a claim without counsel’s assistance, the need for counsel for all indigent petitioners should be acknowledged in all jurisdictions, and some sort of funding mechanism should be established.^⁶¹ Otherwise the would-be-petitioner may be thwarted in his efforts to obtain testing unless he manages to obtain the assistance of an organization like the Innocence Project, or is referred to appropriate pro bono counsel by a sympathetic prosecutor or judge. Such an ad hoc approach does not deal adequately with the gravity of wrongfully obtained convictions. Funds for paying experts should be available as well. Defense counsel require assistance in assessing DNA evidence.^⁶²

C. Where Should the Responsibility for Assessing Postconviction Relief Lie? Aside from spurring legislative action, the current interest in postconviction issues has had another effect – it has convinced some prosecutors to review convictions in their jurisdiction to determine whether inmates should be offered postconviction DNA testing even though they have not made a request. At first glance, this looks like a wonderful development. Prosecutorial review promises an even-handed approach that would benefit all inmates and not just those who are particularly resourceful, or who have persistent lawyers, relatives or friends who can find and persuade a court or prosecutor to allow access to DNA testing. But there is another side to this coin. We have ample evidence from other professions and from the law enforcement community itself that institutions frequently resist exposing errors committed by their constituents for fear of jeopardizing relationships with fellow members.^⁶³ Unfortunately we know of quite a few long-standing failures to uncover mistakes in the criminal justice system. Prosecutors have been reluctant to report possible failings in the laboratory,^⁶⁴ police departments,^⁶⁵ or within the prosecutorial office itself.^⁶⁶ This institutional reluctance to acknowledge mistakes poses the risk that prosecutorial review, rather than uncovering instances in which postconviction testing should be done, will instead whitewash the system and make it harder to secure testing in any individual case. As the discussion above indicates, there is not always a bright line that instantly distinguishes a case in which testing is justified from one in which it is not. Institutional biases may blind prosecutors who are reviewing cases en masse from recognizing the deserving cases.

Is there anything that can be done to ensure that deserving candidates for postconviction DNA testing will not be overlooked? One possibility would be not to leave the initial protocol that sets out criteria for reviewing cases solely to the discretion of a prosecutorial office. Instead, the protocol should be designed by a joint committee that includes representatives of the defense bar, such as public defenders, and members of the judiciary, who are familiar with DNA issues. A second possible safeguard would be to have the actual review of the convictions audited by an outside group, perhaps by sampling the cases that are being considered. Bar groups or law school clinics might be able to undertake some of this work pro bono. Finally, as has long been urged by the Innocence Project, we need a commission or commissions, such as Britain has, to investigate all convictions that are vacated to determine what went wrong. Such a commission could look beyond the facts of the particular case to determine whether systemic problems in the jurisdiction produced the erroneous verdict. A finding of serious flaws in the operation of any component of law enforcement should trigger an independent review of inmate convictions with regard to the viability of postconviction DNA testing.^⁶⁷

IV Lessons for the Future

Requests for postconviction DNA testing may soon disappear. Indeed, some of the new statutes have inserted dates after which testing requests will be automatically denied in the absence of exceptional circumstances.^⁶⁸ But although the need for postconviction DNA testing is undoubtedly a temporary phenomenon, one that will be relegated to a footnote in some treatise of the future, we will be making a terrible mistake if we do not extract some enduring lessons from this experience:

We must develop protocols for preserving evidence after a conviction. We will never know how many persons remain in prison who could have been cleared by DNA testing, if only there had been something to test. At the very least we need guidelines on where and in what form evidence should be retained, and for how long, and we need provisions as to how available evidence should be inventoried. The countless hours spent in searching for evidence to test could certainly be put to better use. It may be that other technological innovations may occur in the future, raising the same need to reexamine evidence as existed with DNA. Furthermore, we know that evidence may have to be reexamined for many reasons. At this moment, there is an ongoing investigation of the police in Los Angeles as well as other cities, and investigations of forensic laboratories are being conducted in a number of states. The possibility of moratoriums on the death penalty is being explored. Overturning wrongfully obtained convictions in these jurisdictions and others, may hinge on finding evidence in the files of the cases being reexamined.
We must pay more attention to what constitutes good science. Many of the vacated convictions hinged on forensic science that should and could have been attacked at trial, either because the underlying science had not been validated, or because the laboratory procedures were so deficient. Bad forensic science cannot be eliminated unless funding for studies is provided.
We must improve the quality of defense counsel representing indigents. Many of the cases demonstrate that the defendant might well not have been convicted if he had been provided with adequate representation.
The DNA postconviction cases clearly point to the ugly effect of racism on our criminal justice system. The Innocence Project found that 40% of the cases in which they successfully vacated a conviction involved a black inmate and white victims, even though only 15% of sex murders had these characteristics.

The postconviction DNA cases provide us with a window through which to view our criminal justice system. The landscape that we glimpse clearly corresponds with other contemporaneous accounts of the sorry state of criminal justice in the United States.^⁶⁹ This is a condition that we cannot afford to tolerate if we value living in a just society.

Rather than ending this essay on a pessimistic note, however, I would suggest that a more upbeat, alternative reading can also be gleaned from this record of postconviction DNA testing. The experience shows that change is possible, that individuals can make a difference, and that persons of good will can cooperate even though they represent different constituencies with divergent views. Starting less than ten years ago, a small group of dedicated lawyers, and in particular those connected with the Innocence Project, grasped the remedial power of DNA and began an effort that led to justice, albeit greatly delayed justice, for at least some of the wrongfully convicted. In doing so, they have alerted us to the danger of rigidly upholding finality as a prime value of our criminal justice system, and have illuminated the many failings that infect criminal proceedings in the United States. The current legislative initiative with regard to postconviction DNA testing attests to the public’s having become sensitized to these issues through the accounts of DNA exonerations. We may now have a remarkable opportunity to make sorely needed changes in our system of criminal justice that could have significance long after the era of postconviction DNA testing has ended. We should make the most of this moment in time.

1 See http://www.innocenceproject.org (last visited Jan. 31, 2003).

2 Statement of Barry C. Scheck that needed biological material cannot be found in 75% of cases taken up by Innocence Project. Frank Green, “Lawyer Stresses Power of DNA; Test Clear Even Some Who ‘Confess,’” The Richmond Times-Dispatch, July 17, 2001, at A1.

3 Herrera v. Collins, 506 U.S. 390, 408 (1993).

4 Id. at 410.

5 Herrera v. Collins, 506 U.S. 390, 411-12 (1993) (“Clemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted.”).

6 Id. at 402.

7 Id. at 421-424; (O’Connor, J. concurring).

8 Cf. Jaffee v. Redmond, 518 U.S. 1, 2 (1996) (Court justified creating a new privilege for communications to a licensed social worker on the ground that: “The mental health of our citizenry, no less than its physical health, is a public good of transcendent importance.”)

9 Steve Mills et al, “3 Cases Weaken Under Scrutiny: Investigative Report. Executions in America,” Chicago Tribune, December 17, 2000, p. A1. The release of prisoners on death row as a consequence of DNA testing has been linked to growing uneasiness about the death penalty. See, e.g., Jennifer L. Harry, “Death Penalty Disquiet Stirs Nation,” Corrections Today, vol. 62, p. 122, 128 (2000).

10 At least two persons, who were not executed, have been exonerated after their death. Frank Lee Smith who died after 14 years on Florida’s death row (Frank Green, “DNA Tests Not Likely After an Execution,” The Richmond Times-Dispatch, Mar. 26, 2001, at A-1) and a rape suspect who committed suicide in jail while his case was pending (Associated Press, “DNA Evidence Clears PA. Rape Suspect,” N.Y. Times, Jan. 9, 2003.) A Georgia court ordered post-execution DNA testing, but the results were inconclusive. Green, supra. In November 2002, Virginia denied a request for post-execution testing brought by a group of newspapers in the case of Roger Keith Coleman. See Eric M. Weiss, “DNA Testing by Media Barred,” The Washington Post, Nov. 2, 2002, at B1; Sheryl McCarthy, “All Doubt Should Be Absent in Capital Cases,” N.Y. Newsday, Nov. 11, 2002, at A26. Virginia had also denied a post-execution request from the Richmond Catholic Diocese in 1997 to test DNA samples in the case of Joseph O’Dell and ordered the destruction of the evidence. In 2001, Virginia enacted a law authorizing the destruction of DNA samples immediately following an execution. Green, supra.

11 See Edwin M. Borchard, Convicting the Innocent, (Da Capo Press, 1970), passim (originally published in 1932).

12 See United States v. Wade, 388 U.S. 218 (1967) and Gilbert v. California, 388 U.S. 263 (1967) (holding that identifications made at lineups were inadmissible unless counsel was present); Stovall v. Denno, 388 U.S. 293, 301-02 (1967) (due process right recognized to exclude from evidence the results of an identification procedure that was “unnecessarily suggestive and conducive to irreparable mistaken identification.”)

13 In Kirby v. Illinois, 406 U.S. 682, 689 (1972) the Court greatly restricted the Wade-Gilbert right by making it applicable only to identification procedures taking place after formal adversary proceedings were initiated, and in United States v. Ash, 413 U.S. 300 (1973), the Court held that Wade-Gilbert did not apply to photographic show-ups. The due process right announced in Stovall has been found to rarely result in the exclusion of identification testimony. See Benjamin E. Rosenberg, “Rethinking the Right to Due Process in Connection with Pretrial Identification Procedures: An Analysis and Proposal,” Kentucky Law Journal, vol. 79 (1990-91) p. 259.

14 See, e.g., Elizabeth Loftus, Eyewitness Testimony (Harvard University Press, 1996); Brian L. Cutler and Steven D. Penrod, Mistaken Identification: The Eyewitness, Psychology, and the Law (Cambridge University Press, 1995); Gary Wells, Eyewitness Testimony (Carswell Legal Publications, 1988).

15 Gary Wells, “Applied Eyewitness Testimony Research: System Variables and Estimator Variables,” Journal of Personality and Social Psychology, vol. 36 (1978) pp. 1546, 1551-55.

16 Edward Connors and others, Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial (National Institute of Justice, 1996), pp. 16-17 (exhibit 3 summarizes the evidence produced at trial in each of 28 cases; all except for the homicides involved victim identification). See also Barry Scheck, Peter Neufeld and Jim Dwyer, Actual Innocence: Five Days to Execution and Other Dispatches From the Wrongly Convicted, p. 73 (Doubleday, 2000) (84% of vacated wrongful convictions were dependent on mistaken identifications).

17 Ronald Cotton was imprisoned for 11 years when Jennifer Thompson, a college student with a 4.0 GPA, identified him as having raped her at knifepoint. Thompson has stated that she made a concerted effort to memorize her assailant’s features: “I studied every single detail on the rapist’s face. I looked at his hairline; I looked for scars, for tattoos, for anything that would help me identify him. When and if I survived the attack, I was going to make sure that he was put in prison and he was going to rot. When I went to the police department later that day, I worked on a composite sketch to the very best of my ability. I looked through hundreds of noses and eyes and eyebrows and hairlines and nostrils and lips. I identified my attacker. I knew this was the man. I was completely confident. I was sure.” Several years later at a pretrial hearing after Cotton’s conviction was overturned because of the exclusion of exculpatory evidence, Thompson was confronted with Bobby Peale who had allegedly confessed to being Thompson’s rapist. Thompson swore she had never seen him before. Cotton was convicted again, and sentenced to two consecutive life sentences. When DNA testing was finally done, the results showed that Bobby Poole and not Ronald Cotton had raped Thompson. See Jennifer Thompson, “I Was Certain, but I Was Wrong,” N.Y.Times, June 18, 2000, § 4, at 15.

18 Connors, Convicted by Juries, pp. 16-17[2d reference; see n. 13]. See also Jim Yardley, “Inquiry Focuses on Scientist Employed by Prosecutors,” N.Y. Times, May 2, 2001, § A, at 14 (reporting on Barry Scheck’s comments about the case of Robert Miller, who was sentenced for murder in 1988 after testimony that hairs found at the crime scene were consistent with his; another suspect, Ronnie Lott had been excluded as a possible hair donor; DNA testing eventually exonerated Miller and inculpated Lott).

19 Max M. Houch & Bruce Budowle, “Correlation of Microscopic and Mitochondrial DNA Hair Comparison,” J. Forensic Sci., vol. 47 (2002) pp. 964, 966 (“Of the 80 hairs that were microscopically associated, nine comparisons were excluded by mtDNA analysis.”); Paul C. Giannelli, “Scientific Evidence in Civil and Criminal Cases, Arizona State Law Journal, vol. 33 (2001) pp. 103, 113-17 (discusses hair evidence and some of the cases in which DNA evidence ultimately exonerated the defendant).

20 See, e.g. Paul C. Giannelli, “The Abuse of Scientific Evidence in Criminal Cases: the Need for Independent Crime Laboratories,” Virginia Journal of Social Policy & the Law, vol. 4 (1997), p. 439.

21 Committee on DNA Forensic Science: an Update, The Evaluation of Forensic DNA Evidence (National Research Council, 1996), chapter 3; Committee on DNA Technology in Forensic Science (National Research Council, 1992), pp. 104 -105.

22 David H. Kaye & George F. Sensabaugh, Jr., “Reference Guide on DNA Evidence,” in Reference Manual on Scientific Evidence (Federal Judicial Center, 2d ed., 2000), pp. 509-15.

23 National Institute of Justice, Forensic Sciences: Review of Status and Needs (1999), p. 43 (“During the past 5 years, quality-control and quality-assurance program improvements have been realized by forensic DNA laboratories. These improvements have not only enhanced the reliability of the methods employed, but laboratories have also increasingly found the criminal justice system receptive to admissibility issues.”). As of 1998, just over half (56% of 120) of DNA crime laboratories were accredited by an official organization. As of 2001, 63% (of 110) were accredited. Bureau of Justice Statistics, Bulletin, Survey of DNA Crime Laboratories, 2001. Margaret A. Berger, “Raising the Bar: The Impact of DNA Testing on the Field of Forensics,” in Perspectives Lecture Series 2000-2001 (National Institute of Justice 2002).

24 Montana and Washington are currently reviewing cases handled by state forensic scientist Arnold Melnikoff, who had been the director of the Montana State Crime Laboratory and now works for the Washington State police, after DNA evidence cleared a Montana man who spent 15 years in prison for the rape of a young girl. Adam Liptak, “2 States to Review Lab Work of Expert Who Erred on ID,” N.Y. Times, Dec. 19, 2002, at A24 (Melnikoff had testified that hair on victim matched defendant’s -- which FBI report found to be false – and made up probabilities about likelihood of match). Yardley, “Inquiry Focuses” [2d reference; see n.18] (Oklahoma governor ordered investigation after FBI report found that an Oklahoma police forensic chemist had misidentified evidence or testified improperly in at least 5 of the 8 cases the FBI reviewed; chemist had worked on approximately 3000 cases and had identified suspects on the basis of hair, blood and fiber analysis; she testified in 23 cases resulting in death sentences, 10 of which have already been carried out; in the case that prompted the FBI investigation, defendant was convicted of rape 16 years earlier on the basis of her testimony about hair matches; DNA testing and the FBI’s review of the hair evidence excluded the defendant). See also note 55, infra. The West Virginia Supreme Court stated that a State Police Crime Lab analyst may have lied or fabricated evidence in dozens of cases. Becky Bohrer, “Former Crime-lab Chief’s Cases Under Review,” The Philadelphia Inquirer, Dec. 22, 2002, at A9. See also Investigation of the West Virginia State Police Crime Laboratory, Serology Division, 438 S.E.2d 501 (1993). In 2002, Las Vegas began reviewing hundreds of DNA tests after authorities discovered name labels on DNA profiles had been switched. Glenn Puit, “Police Forensics: DNA Mix-up Prompts Audit at Lab,” Los Vegas Review-Journal, April 19, 2002, at 1B. 27.

25 Herrera, 506 U.S. at 402.

26 See, e.g., Maria Samminiatelli, “Virginia’s DNA Database Averaging One Cold Hit a Day,” The Associated Press State & Local Wire, April 29, 2001. In April, 2001, Virginia, the largest state contributor of samples, averaged one cold hit per day and ultimately reached its 1,000^th cold hit in November, 2002. See also Erin Hallissy, “Baffling Rapes, Slayings Solved; Federal ‘Cold Hit’ DNA Database Links Old Evidence to Felons,” The San Francisco Chronicle, Dec. 9, 2002, p. A1. In 2000, Arizona had 153 cold hits from the database. Howard Fisher, “State Acts to Widen DNA Testing,” The Arizona Daily Star, April 12, 2002, p. A8.

27 National Commission on the Future of DNA Evidence, The Future of Forensic DNA Testing: Predictions of the Research and Development Working Group 15 (National Institute of Justice 2000) (“DNA is remarkably stable, as is evidenced by its being identified long after death, for example, in Egyptian mummies or even extinct mammoths.”)

28 National Commission on the Future of DNA Evidence, The Future of Forensic DNA Testing: Predictions of the Research and Development Working Group 15 (National Institute of Justice 2000) (“DNA is remarkably stable, as is evidenced by its being identified long after death, for example, in Egyptian mummies or even extinct mammoths.”)

29 Thompson, “I Was Certain,”

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