Lessons from dna: restriking the balance between finality and justice

[2d reference; see n.17].

30 Statement of Barry C. Scheck, DNA and the Criminal Justice System, John F. Kennedy School of Government (Nov. 20, 2000) (estimating that between 50 and 60% of postconviction DNA tests incriminate the petitioner who sought testing).

31 In Arizona, Indiana and Michigan, if the results of the DNA testing are not favorable to the inmate, the court may request that the DNA sample be added to the federal or state DNA database. In Pennsylvania and Louisiana, inculpatory results may be entered in law enforcement databases. In Utah, the petitioner must waive all statutes of limitations in any jurisdictions as to any felony offense he has committed which is identified through DNA database comparison. Under the proposed federal Innocence Protection Act, inculpatory test results lead to submission of the inmate’s DNA to the federal DNA database. See Note 35, infra for citations to statutes.

32 Ibid and see Thompson, “I Was Certain,” [3d reference; see note 17].

33 See N.Y. Crim. Proc. 440.30(1-a) (McKinney’s 2001); 725 Ill. Comp. Stat. Ann. 5/116-3 (West 2001). These statutes contain no time limits on making such requests. Nevertheless, despite time bars in other states’ general statutes regarding newly discovered evidence, some courts have on a variety of theories permitted inmates access to postconviction DNA testing even after the applicable period had run. See National Commission on The Future of DNA Evidence, Postconviction DNA Testing: Recommendations for Handling Requests, chapter 2 (National Institute of Justice, 1999) (details the legal uncertainty that surrounds requests for postconviction DNA testing in states that do not have specific statutory authorization).

34 Numerous developments on a number of interrelated fronts have contributed to this demand for change. When, primarily through the efforts of the Innocence Project, inmates began to be released from prison on the basis of DNA testing, the National Institute of Justice commissioned a study which reported on 28 cases in which DNA had exculpated inmates. See Connors, Convicted by Juries, [3d reference; see note 16]. Attorney General Janet Reno then created a National Commission on the Future of DNA Evidence in 1998, whose first task, assigned to the Postconviction Issues Working Group, was to make recommendations for handling inmates’ requests for DNA testing. The resulting report was published in September 1999, and was widely distributed. See National Commission, Recommendations, [2d reference; see note 33]. The Working Group also proposed a model statute for handling requests. All of these events received wide media coverage, including a number of TV specials. The media has continued to report in considerable depth on the rapidly accelerating number of convictions being vacated on the basis of postconviction DNA testing.

35 Ariz. Rev. Stat § 13-4240 (2002); Ark. Code Ann. § 16-112-202 (Michie 2002); Cal. Penal Code § 1405 (West 2002); Del. Code Ann. tit. 11, § 4504 (2002); D.C. Code Ann. § 22-4133 (2002); Fla. Stat. Ann. 925.11 (West 2002); Idaho Code §§ 19-2719, 19-4902 (Michie 2002); 725 Ill. Comp. Stat. Ann. § 5/116-3 (West 2002); Ind. Code Ann. §§ 35-38-7-1 to 19 (West 2002); Kan. Stat. Ann. § 21-2512 (2001); Ky Rev. Stat. Ch. 422.285 (2002); La. Code Crim. Proc. Ann. art. 926.1 (West 2002); Me. Rev. Stat Ann. tit. 15, § 2137 (West 2001); Md. Code Ann., Crim Proc. § 8-201 (2002); Mich. Comp. Laws Ann. § 770.16 (West 2002); Minn. Stat. Ann. § 590.01 (West 2002); Mo. Ann. Stat. § 547.035 (West 2002); Neb. Rev. Stat. Ann. §§ 29-4417 to 4125 (Michie 2002); N.J. Stat Ann. § 2A:84-32a (West 2002); N.M. Stat. Ann. § 31-1a-1 (Michie 2002); N.Y. Crim. Proc. Law § 440.30 (McKinney 2002); N.C. Gen. Stat. § 15a-269 (2002); Okla. Stat. tit. 22, §§ 1371, 1371.1, 1372 (2002); 42 PA. C.S.A. § 9543.1 (2002); R.I. Gen. Laws 1956, § 10-9.1-11 (2002); Tenn. Code Ann. §§ 40-30-401 to 413 (2002); Tex. Code Crim. Proc. Ann. art. 64.03 (Vernon 2001); Utah Code Ann. §§ 78-35a-301 to 304 (2002); Va. Code Ann. § 19.2-327.1 (Michie 2002); Wash. Rev. Code § 10.73.170 (2002); Wisc. Stat. § 974.07 (2001). For a comprehensive discussion of the state statutes, see Kathy Swedlow, “Don’t Believe Everything You Read: A Review of Modern “Post-Conviction” DNA Testing Statutes,” 38 California Western Law Review, Vol. 38, p. 355 (2002).

36 Legislation for postconviction DNA testing has also been proposed in Alabama, Hawaii, Iowa, Mississippi, Nevada, North Carolina, Ohio, South Dakota and West Virginia. David DeFoore, “Postconviction DNA Testing: A Cry for Justice from the Wrongfully Convicted,” Texas Technology Law Review, vol. 491 (2002).

37 The Innocence Protection Act is at this writing pending before Congress. See S. 486 (approved by the Senate Judiciary Committee in July, 2002) and the House Version, H.R. 912.

38 See Craig Timberg, “Gilmore Signs Bill Permitting Felon DNA Tests; Death Row Inmates Eligible,” Washington Post, May 3, 2001 (reporting that Governor Gilmore had originally opposed bill and sought to amend it; his advisers explained that “he was reluctant to weaken the sense of finality that a conviction in Virginia now represents for victims and their families and that he also feared the law would unleash a torrent of new appeals.”).

39 Hudson Sangree, “DNA Reality,” San Francisco Daily Journal,” April 10, 2001, p.1.

40 Ibid, quoting Barry C. Scheck. In 2001, the Brooklyn District Attorney’s office began reviewing cases to determine if DNA evidence could exonerate incarcerated individuals. Of 703 cases reviewed, only 2 were examined in detail to determine whether DNA evidence could be recovered. The District Attorney’s Office eliminated almost half of the cases because the defendant confessed or acknowledged committing the act. Daniel Wise, “Brooklyn Prosecutors Find Convictions Pass DNA Test,” N.Y.L.J., Aug. 6, 2001, p. 1.

41 See N.Y. Crim. Proc. Law [2d reference; see n.33] (requires showing that had DNA results been introduced at trial , there is “ reasonable probability that the verdict would have been more favorable to the defendant.”).

42 Statement of George Woody Clarke, An International Conference on DNA and Human Rights, University of Berkeley, April 27, 2001. In May 2001, the California Attorney General’s Office announced that only 30 requests for testing had been received since the law went into effect on January 1, 2001 and that none had been granted. “Few Inmates Use Law That Allows DNA Testing,” Los Angeles Times, May 18, 2001, sec. B, p. 9. In New Jersey, less than a dozen inmates took advantage of a free testing program and none was cleared. Richard Willing, “Few Inmates Seek Exonerations with Free DNA Tests,” USA Today, July 30, 2002.

43 The Recommendations of the Working Group on Postconviction Issues in its Framework for Analysis classified cases in which exclusionary results will exonerate the petitioner as category 1 cases. National Commission, Recommendations, pp. 3-4 [3d reference; n.33] (other examples are given of recurring fact patterns). In Cherrix v. Braxton, 131 F.Supp.2d 756 (E.D. Va. 2000) a federal district judge held that it had authority under the funding assistance in capital cases statute to grant state inmate’s request for funds for DNA testing and to order testing; court relied on Recommendations to determine that testing was warranted because the case fell into category 1).

44 See National Commision, Recommendations, pp. 5-6 [4^th reference; n.33] for examples of when exclusionary results although not exonerative might be helpful.

45 Oklahoma Stat. Ann. § 1371.1 (West 2001) (“factual innocence requires the defendant to establish by clear and convincing evidence that no reasonable jury would have found the defendant guilty beyond a reasonable doubt.”).

46 New York Crim. Proc. Law [3d reference; see n.33].

47 See Statement of Barry C. Scheck [2d reference; see n.30]. A full account of the Criner case can be found in the Houston Chronicle. See Harvey Rice, “Justice Deferred,” Houston Chronicle, November 26, 2000, Texas Magazine, at 6.

48 Campbell v. United States, 365 U.S. 85, 96 (1961) (“the ordinary rule, based on considerations of fairness, does not place the burden upon a litigant of establishing facts peculiarly within the knowledge of his adversary.”).

49 Ind. Code Ann. § 35-38-7-15 (West 2002) (statute allows for elimination samples from third parties under “extraordinary circumstances.”) For a discussion of court orders compelling consensual partners to provide DNA samples, see Cynthia Bryant, “When One Man’s DNA is Another’s Exonerating Evidence: Compelling Consensual Sexual Partners of Rape Victims to Provide DNA Samples to Postconviction Petitioners,” Columbia Journal of Law & Social Policy, vol. 33, p. 113 (2000).

50 Utah Code Ann. § 78-35a-301 (enacted March 19, 2001) (“the evidence that is the subject of the request for testing has the potential to produce new, noncumulative evidence that will establish the person’s actual innocence”).

51 See Connecticut General Stat. Ann. § 52-582 (West 2001).

52 But see appellate court opinions that have interpreted state laws narrowly: State v. Gholston, 697 N.E.2d 375 (Ill. App. Ct. 1998) (denying the defendant postconviction DNA testing on the ground that testing would not be “material” to the defendant’s actual innocence claim). In Gholston, the court concluded that the absence of the defendant’s DNA from the crime sample would not conclusively exclude him as the perpetrator and, therefore, the evidence was insufficient to override witness identifications and self-incriminating statements. See also Coombs v. State, 824 So.2d 958 (Fl. 2002) (denying defendant’s motion for postconviction DNA testing on the ground that the motion was insufficient in explaining how testing would exonerate defendant, even though defendant argued that newer DNA testing could provide conclusive results where pre-conviction testing results in 1995 were inconclusive). The Texas Court of Appeals has interpreted its statute as requiring the defendant to show “a reasonable probability exists that exculpatory DNA tests will prove [his] innocence.” Kutzner v. State, 75 S.W.3d 427, 438 (Tex. Crim. App. 2002). Relying on Kuntzner, a Texas Appellate court denied defendant’s motion for DNA testing, finding that exculpatory DNA tests of blood on the weapon used in the assault would not prove the defendant’s innocence. Thompson v. State, __ S.W.3d __ (2002), at 2002 WL 31618806.

53 Tennessee Code Ann. § 40-26-106 (2000) (establishes presumption of no testing for convictions obtained after July 1, 1998); Kentucky Revised Statutes, Ch. 422.285 (2002).

54 West’s Revised Code of Washington Ann. 10.73.170 (2000) (requests for testing on or before December 31, 2002).

55 On May 7, 2001 an Oklahoma judge vacated the conviction of Jeffrey Pierce, the man whose case had triggered an investigation of a forensic chemist in Oklahoma. See Yardley, “Inquiry Focuses” [3d reference; see n.18]. Pierce had served 15 years of a 65-year sentence. Jim Yardley, “Flaws in Chemist’s Findings Free Man at Center of Inquiry,” N.Y. Times, May 8, 2001, at A1.

56 Scheck, Actual Innocence, p. 92 [2d reference; n.16] (convictions in 23% of DNA exonerations studied by the Innocence Project were based on false confessions or admissions). Similarly, a 1987 study of 350 exonerated capital defendants had found that 14% of the convictions were a result of confessions that turned out to be false. Hugo Adam Bedau & Michael L. Radelet, “Miscarriages of Justice in Potentially Capital Cases,” Stanford Law Review, vol. 40, p. 21 (1987).

57 Richard A. Leo and Richard J. Ofshe, “The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation,” Journal of Criminal Law and Criminology, vol. 88 (1988), p. 429 (“As many investigators have recognized, the problems caused by police-induced false confessions are significant, recurrent, and deeply troubling.”). In Florida, a 49-year old retarded man, Jerry Townsend, was released after spending almost 22 years in prison for a series of murders and a rape to which he had confessed; the review of his convictions was spurred when DNA testing exonerated another inmate on death row, and identified the perpetrator as Eddie Mosley; Mosley, committed to a state mental hospital since 1988, was also identified through DNA testing in another murder-rape case in which Townsend had been a suspect, leading to a review of all cases in which Townsend or Mosley had been suspects). Ardy Friedberg and Jason T. Smith, “Townsend Released Judge Cites ‘An Enormous Tragedy’ Attorneys Say Suspect Was Easily Led to Confess,” South Florida Sun-Sentinel, June 16, 2001.

58 The confessions contained numerous inconsistencies about when, where, and how the rapes had occurred. These had been explored by defense counsel on cross-examination as had the fact that none of the defendants’ DNA matched the crime scene sample. See Jim Dwyer & Kevin Flynn, “New Light on Jogger’s Rape Calls Evidence into Question,” N.Y. Times, Dec. 1, 2002, p. 1; Saul Kassin, Op-Ed, “False Confessions and the Jogger Case,” N.Y. Times, Nov. 1, 2002.

59 National Commission, Recommendations, pp. 44-46 [5^th reference; see n.33] (recommendations for defense counsel).

60 The statutes in the District of Columbia, Florida, Kansas, Nebraska, Tennessee and Virginia give the court discretion to appoint counsel. If the DNA testing results are exculpatory in Michigan, the statute authorizes appointment of counsel. See references to statutes in note 35, supra.

61 But see Laura Maggi, “DNA Test for Inmates Elusive Despite Law; La. Fund Lacks Cash; Evidence Hard to Find,” The Times – Picayune, Dec. 16, 2002 (no money put in budget for DNA testing; although Louisiana governor said he would budget for testing the following year, his attorney said there was no need to pay for attorneys).

62 See John Winterdyk & Janne A. Holmgren, “DNA Evidence: Balancing the Scales of Justice,” Canadian Business & Current Affairs, vol. 26, p. 11 (Nov. 2001) (concluding after study that Canadian defense counsel have inadequate knowledge to adequately represent their clients).

63 See, e.g., a recent account that a federal program requiring HMO’S and hospitals to report incompetent physicians is failing because these institutions refuse to furnish the necessary information. Robert Pear, “Inept Physicians Are Rarely Listed as Law Requires,” New York Times, May 29, 2001, sec. A, p. 1, col. 6.

64 In Oklahoma, complaints had been voiced about the forensic laboratory’s work long before an investigation was begun. See Yardley, “Inquiry Focuses” [4^th reference; see n.18].

65 After a scandal in its Ramparts division in which a group of officers was alleged “to have routinely robbed drug dealers, abused gang members and planted guns on suspects, the investigation of the Los Angeles Police Department languished for nearly two years with few if any real reforms being carried out.” James Sterngold, “Police Monitor Struggles in Los Angeles,” N.Y. Times, June 5, 2001, p. A18. Eventually, over 100 convictions were overturned. Kristina Sauerwein, “Shedding Light on Officers Who Help Prosecute with Cases Overturned in the Rampart Scandal in Mind,” L.A. Times, Dec. 20, 2002, at B2.

66 On January 31, 2000, Governor George Ryan of Illinois imposed a moratorium on executions after the release of 13 prisoners on death row. A 1999 investigation by the Chicago Tribune had pointed to numerous cases in which defendants were represented by lawyers who had at some time been disbarred or suspended, and the prosecutorial use of unreliable evidence furnished by jailhouse snitches, questionable forensic testing, or obtained through police torture. Steve Mills and Maurice Possley, “Death Penalty Debate Slowly Shifts. Executions Continue But Face More Scrutiny,” Chicago Tribune, January 31, 2001, p. 1. Before he left office in January 2003, Governor Ryan pardoned four men on death row and commuted the sentences of the remaining 167 on the ground that his extensive review of case files and the 3 year study of the Illinois system had convinced him of the innocence of people on death row and the unfairness of the system. Jodi Wilgoren, “Citing issues of Fairness, Governor Clears Out Death Row in Illinois.” NY Times, Jan. 12, 2003, p. 1.

67 After the exoneration of an Oklahoma inmate on the basis of DNA testing raised concerns about a police forensic chemist who had testified at his trial, the Oklahoma State Bureau of Investigation, at the recommendation of the FBI, began reviewing cases handled by the forensic chemist and identified 60 cases that needed further review in which inmates are currently serving sentences of life or life without parole; those inmates were mailed a formal DNA Forensic Testing Program application. Associated Press Newswires, June 5, 2001.

68 See, e.g., La. Code Crim. Proc. Ann art. 926.1 (West 2002) (requests prohibited after August 2005); Tenn. Code Ann. § 40-26-106 (2000) (establishes presumption of no testing for convictions obtained after July 1, 1998); Wash. Rev. Code § 10.73.170 (2000) (requests for testing had to be made before Dec. 31, 2002).

69 James Liebman, et al., A Broken System Part II: Why There Is So Much Errror in Capital Cases, and What Can Be Done About It (2002); James S. Liebman, “The Overproduction of Death,” Columbia Law Review, vol.100 (2000), p. 2030.