NY Times: Prosecutors Blocking DNA Tests

The New York Times reports that prosecutors are too often blocking access to DNA tests that could exonerate the innocent, even in states where legislatures have specifically passed laws allowing access to testing.

In some cases, they're saying the tests are unnecessary because jurors reached their verdict based on other evidence, even though that other evidence—eyewitness testimony, for example—is much less reliable than DNA. In others, they're arguing that the possibility of multiple DNA samples or the fact that there are multiple defendants means a DNA test would prove inconclusive, even though technological advances in testing would in many cases be able to sort all of that out.

Continued resistance by prosecutors is causing years of delay and, in some cases, eliminating the chance to try other suspects because the statute of limitations has passed by the time the test is granted.

Mr. Reed has been seeking a DNA test for three years, saying it will prove his innocence. But prosecutors have refused, saying he was identified by witnesses, making his identification by DNA unnecessary.

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.

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."

The other argument prosecutors often give is "finality," meaning that for the sake of the victim and the system, sometimes it's best to just declare a case closed, even if there remains doubt about the verdict.

"It's definitely a matter of drawing the line somewhere," said Peter Carr, the assistant district attorney who handled the case of Mr. Wright, who was accused of raping and killing a 77-year-old woman. The defendant did not request testing until 2005, three years after the statute was passed, Mr. Carr said, and in his view there was no possibility that the test would show innocence.

"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."

This argument rings hollow. If they didn't look into whether or not the victim was sexually active before the initial trial, that's some pretty poor police work. An innocent person shouldn't have to rot behind bars to spare a victim's family uncomfortable questions that should have been asked a long time ago.

Meanwhile, there have been two more exonerations in the last couple of weeks, one in Virginia, and one in Tennessee. The man in Tennessee spent 22 years on death row. The man in Virginia was exonerated for one of three rapes for which he was convicted. His attorneys believe the same man, a serial rapist, committed all three crimes. They're now trying to reopen the other two cases as well.

I wrote about new research casting doubt on eyewitness testimony here. I wrote about a case currently under Supreme Court review that could establish a right to post-conviction DNA testing here.