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.
Carlyle Moulton:
Thank you for the lesson on prosecutorial discretion.
Bron.
The thing is that humans respond to the incentives. If in playing a certain game, it is possible to win by cheating and no attempt is made to detect and penalize cheating then rational self interest will lead to cheating being the norm. It is a fact that the law is basically a game, it may be an important game that affects peoples lives but it is still a game.
Only constant and unacceptably intrusive oversight would be sufficient to rein in “rogue” prosecutors and judges.
Mike Spindell is correct that the use of elections to select legal officials is part of the problem, but it would not go away were some other method of selection were used. Governments that are on the (blue collar) crime moral panic band wagon are as good at selecting appropriately biased officials as are panicked and fearful voters from the respectable classes. The real problem is the existence of a large and terrifying underclass of the marginalized that have no realistic hope of a place in legitimate society. This creates the fear of crime that results in the incentives for prosecutors and judges as well as police to adopt a win at all cost mentality.
Bron,
Surely you’ve figured out by now that liberal and Democrat are not synonymous. Nifong is a liberal about like like Rock Hudson was straight. If he were a liberal like you’ve come to understand them since frequenting JT’s Salon, do you really think he’d have acted like he did? Both mespo and I are admitted “old school” liberals in the Jeffersonian sense. Do you think either of us would have committed this injustice? No, you were using the term liberal there like you used to, probably out of habit, but lumping liberal with Democrat is as big a mistake as lumping conservative with Republican – the labels are misleading when combined. Liberals may have brought Obama and Dems to power, but that doesn’t make us all Democrats. Believe me, I’d register Independent if I lived in a state with open primaries. Both parties suck, only one less than the other because of current criminal circumstances left by the previous administration.
And you’re right in that ego made him do it. Prosecutorial misconduct is a huge problem no matter the offenders political affiliation and like almost all wrongs and evils is done for ego gratification. Blind ambition is exactly that: blind. Also a little hard of hearing and dumb, but not dumb as in mute. We couldn’t get that lucky.
Carlyle Moulton:
Texas, I should have known.
Bron.
Actually Mike Nifong is an example of prosecutorial misconduct but you are right he is not a good example of race based prejudice. He may actually be prejudiced the reverse direction, but I suspect he just used his standard operating procedure which is to take no prisoners and use all methods that he thought he could get away with.
Bron.
Mike Nifong is an excellent example of someone being caught for using their standard operating procedure on the wrong victims. The Duke Lacrosse players were able to afford competent defense lawyers and investigators, something that Mike Nifong did not take into account. Do you really think that he did not use similar methods in other cases where his defendants were not well enough armed to expose similar misconduct.
You want examples, read Nate Blakeslee’s book on the 1999 Tulia cocaine cases “Tulia: Race, Cocaine, and Corruption in a Small Texas Town”. It is an excellent text book on how police ,prosecutorial and judicial misconduct works. If you cannot find a copy of the book go to the site of The Texas Observer magazine, consult the archives and read Nate Blakeslee’s articles that preceded the book. Another good site is Friends of Justice which is chock full of examples.
Carlyle Moulton
1, May 19, 2009 at 3:37 am
“Actually the word “innocent” is a problem, not everyone gives it the same meaning so discussions where it is used can be at cross purposes.
For politically correct liberals “innocent” means not having performed the actions of a crime whereas to conservatives it means belonging to the respectable classes and being deemed entitled to immunity from prosecution.”
As a conservative the word innocent to me means not having committed a crime. I don’t know the conservatives you hang out with but the ones I know believe in the rule of law and that innocent means innocent until proven guilty in a court of law.
We also don’t think the socio-economic status or the color of ones skin has anything to do with guilt or innocence.
Now why don’t you back that bold statement up with some examples and facts.
Oh and Mike Nifong (democrat) prosecutor of the Duke Lacrosse players, hmm skin color socio-economic status did not matter to him,-rich and white guilty as sin. Yep liberals sure are equitable in application of law and justice. And personally I think the players were full of shit for giving that woman a hard time, had that been my son I would have been appalled and would have opened up a can of country whup ass on him.
Personally I have a feeling that it has more to do with prosecutorial ego than liberal or conservative.
While I agree that DNA testing should be granted in every instance, I understand some people’s weariness to use it in cases where multiple pieces of DNA evidence are present.
Also, Bron98, that was a very good question about what happens if DNA evidence during trial says one thing and the jury says another. I guess it could be grounds for a new trial, perhaps?
I agree with Mike. Prosecutors with political ambition are a recipe for prosecutorial misconduct and the ruined lives of others. Personally, I can only compare the misconduct of such prosecutors to sociopathic criminals with no conscience – their supposed greatest adversaries. It is also abhorrent that some prosecutors fight so relentlessly to deny the possibility of establishing truth – that they might protect their records or theories from being besmirched at the cost of the freedom of another human being. This is truly an achilles heel of our justice system.
Actually the word “innocent” is a problem, not everyone gives it the same meaning so discussions where it is used can be at cross purposes.
For politically correct liberals “innocent” means not having performed the actions of a crime whereas to conservatives it means belonging to the respectable classes and being deemed entitled to immunity from prosecution. George W Bush and Dick Cheney are by definition innocent while all poor people and blacks constitute the imprisonable or guilty classes who are fair game for the prosecutors turkey shoot. For conservatives the function of the law is to match guilty people with alleged crimes, that a particular member of the guilty classes convicted or plea bargained in to prison is not the one who actually performed the actions of the alleged crime is an irrelevancy.
Human beings are not capable of dealing with conflict of interest, yet the law is based on the belief that a privileged class of persons, namely lawyers are able to balance the conflict between their duties to the law and what their clients want.
In the case of prosecutors and judges, their desire to please the community of the righteous and get as many poor people and blacks as possible into profitable private prisons means that they don’t want anyone double checking their work after it is over.
I’ve always contended that the political process of picking prosecutors has made these positions launch sites for political careers. As such they are usually sought out and occupied by people with further political ambition and a good conviction record is their object. Since DNA evidence might cast doubts as to their record and lack of confidence in their job performance, the ambitious among them would prefer an innocent person remains imprisoned, rather than to have themselves proven wrong.
Bron98 1, May 18, 2009 at 7:00 am
Answer “Question for the lawyers:”
why isn’t DNA done as a required pre-trial screening/evidence gathering procedure?
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This is a new avenue, though they use it freely, they oppose it much. They oppose it when it shows weakness in their case.
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If I was innocent I would want it done as quickly as possible. Also what are the ramifications if DNA pre-trial says innocent and jury still says guilty or vice versa.
If the Prosecutor agrees the case is not tried. They can tab someone else.
Is DNA testing 100% fool proof?
Yes, Look at the residents of Arkansas. They only have one code. Only Kiddin. Though the family tree don’t split much.
What I don’t understand about this controversy is that prosecutors take the same oath as all other attorneys. Their first obligation is to the truth. There is inherent corruption in a system in which success is measured solely by conviction rates.
Question for the lawyers:
why isn’t DNA done as a required pre-trial screening/evidence gathering procedure?
If I was innocent I would want it done as quickly as possible. Also what are the ramifications if DNA pre-trial says innocent and jury still says guilty or vice versa.
Is DNA testing 100% fool proof?
The only possible reason for denying the access to DNA testing is the prosecutors know that they have the wrong person. Any reasonable method to prove the innocence or guilt of an individual should be standard procedure in every state and in every courtroom.