We have seen a number of cases on this blog where prosecutors fought efforts by prisoners to obtain DNA tests that might prove their innocence — only to be proven innocent once the tests were performed. Prosecutors are rarely denounced for these reprehensible efforts. The story in the New York Times indicates that prosecutors are continuing to oppose such testing even in states that passed new laws guaranteeing such testing.
The article features all-too-familiar cases like Kenneth Reed’s case where prosecutors opposed his request for DNA testing even though he offered to pay to show that he did not commit the 1991 rape in Louisiana. The state is one of 46 states with new DNA testing laws. Prosecutors insisted that it was unnecessary since he was clearly guilty. A study of 225 cases of DNA exonerations shows that prosecutors opposed testing in one out of five cases. Moreover, in 98 of these cases, the testing uncovered the real culprit.
The continued opposition to such testing is an outrage and only occurs because media and public do not hold these prosecutors accountable, even when they are found to have fought against testing that could not only prove innocence but identify the real culprit. In Reed’s case, Hillar C. Moore III (left), the prosecutor in East Baton Rouge, has appealed every DNA-related ruling in Mr. Reed’s favor and even opposed a hearing on the issue.
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.”
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.
Such arguments, defense lawyers say, often ignore scientific advances like the ability to identify multiple DNA profiles in a single sample.
Defense lawyers also say the arguments ignore the proven power of DNA to refute almost every other type of evidence.
In a case before the Pennsylvania Supreme Court, for example, Lynne Abraham, the Philadelphia district attorney, argued that the defendant, Anthony Wright, was not entitled to DNA testing because of the overwhelming evidence presented at trial, including his confession, four witnesses and clothing stained with the victims’ blood that the police said was found at Mr. Wright’s home. The Pennsylvania DNA statute requires the courts to determine if there is a “reasonable possibility” that the test would prove innocence.
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.
“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.”
Barry Scheck, a co-founder of the Innocence Project, a New York legal advocacy group that uses DNA to help the wrongfully convicted, said that most prosecutors no longer resisted testing in cases like Mr. Wright’s, where there is one perpetrator. More obstacles arise, Mr. Scheck said, in cases with multiple defendants or cases where a test result might point to another suspect, even if it does not clearly prove the innocence of the defendant.