From: Mary McCarthy [abolition@earthlink.net]
Sent: Friday, September 05, 2003 2:13 PM
To: patrickd@mis.net; kcadp@earthlink.net
Subject: RE: DNA
Pat,
Are you thinking maybe we should support some kind of "DNA committee"
bill?
Mary
Mary McCarthy, Campaign Coordinator
KCADP
abolition@earthlink.net
>--- Original Message ---
>From: "Pat Delahanty" <patrickd@mis.net>
>To: "kcadp" <kcadp@earthlink.net>
>Date: 9/5/03 4:38:19 AM
>
>
>USA:
>
>Prosecutorial Resistance to Exculpatory DNA Evidence---Why We
Must
>
>Overcome It, And What Institutional Safeguards Will Help Us
Do So
>
>
>
>By far the most important development in the field of criminal
justice
>
>over the last generation has been the advent of DNA analysis.
The most
>
>dramatic result of DNA testing has been the exoneration of literally
>
>hundreds of inmates who were wrongly convicted of serious crimes
and
>
>sentenced to lengthy prison terms and even death.
>
>Meanwhile, and equally importantly, DNA testing has, for the
1st time
>
>ever, given us a tool for assessing the accuracy of our adversarial
system
>
>for determining guilt or innocence. We now know to a scientific
certainty
>
>that police, prosecutors, and juries make catastrophic mistakes
-
>
>especially when they overly rely on such inherently problematic
evidence
>
>as jailhouse informants, hair samples, and even eyewitness testimony,
>
>which turns out to be surprisingly unreliable.
>
>The legal system is still adjusting to the truth-revealing power
of DNA
>
>analysis. Of course, prosecutors have sought to use DNA evidence
to prove
>
>their cases (often successfully - though not, most famously,
in the O.J.
>
>Simpson case). And of course, defense attorneys turned the tables
by using
>
>DNA evidence to prove innocence, sometimes many years after
a defendants
>
>conviction. But the ramifications of DNA evidence go far beyond
its use at
>
>current and future trials. DNA also sheds light on the past.
>
>Sometimes, though, the light it sheds has proved unwelcome.
In the chess
>
>game of our adversarial system, prosecutors are now resisting
the
>
>re-opening of cases based on DNA evidence. And even if cases
are
>
>re-opened, they are fighting in court to preserve even those
convictions
>
>on which DNA testing has cast extremely serious doubt.
>
>Prosecutors face institutional pressure to win victories, and
then
>
>preserve what they have won. And of course, like all of us,
they share the
>
>human impulse to resist admitting error - especially when the
admission
>
>could hurt their careers. They also share the need we all have
for closure
>
>- to believe that, at some point, whats over is over and done
with - and
>
>DNA evidence issues are the quintessential example of reopening
the past,
>
>and sometimes even the distant past. As a result, we cannot
trust
>
>individual prosecutors always to do the right thing when DNA
puts their
>
>hard-won convictions in doubt.
>
>Instead, prosecutors offices must voluntarily put in place institutional
>
>safeguards to ensure that the great advances in criminal justice
made
>
>possible by DNA evidence are realized to their fullest.
>
>And if they refused, legislation should be enacted to force
them to do so.
>
>A prosecutors stake in a particular victory should not be able
to blind
>
>the eyes of justice, so that an innocent person wrongly remains
in jail.
>
>In Recent Cases, Prosecutors Have Refused to Accept DNA-Based
Exoneration
>
>In recent days, the New York Times has reported a spate of cases
in which
>
>new DNA testing refuted the main evidence on which convictions
had been
>
>based. Yet in each case, prosecutors nevertheless steadfastly
refused to
>
>accept that they had prosecuted and convicted the wrong person.
>
>In some of these cases, the DNA evidence points powerfully towards
the
>
>conclusion that the conviction was wrongful. In one rape case,
semen
>
>recovered from the victim was matched to the blood type of the
defendant,
>
>Richard McKinley. But DNA tests have now shown that in fact,
the semen did
>
>not come from McKinley.
>
>In another rape case, the only physical evidence linking the
defendant,
>
>Wilton Dedge, to the crime was a pair of light brown hairs.
Through expert
>
>testimony, the prosecutor tied the hairs the defendant. Thanks
to DNA
>
>testing, we now know the hairs did not belong to Dedge.
>
>Yet prosecutors in both cases refuse to admit that the DNA tests
are
>
>sufficient to show the defendants innocence. As a result, both
defendants
>
>are still serving life sentences. According to the prosecutors,
even
>
>assuming the accuracy of the DNA tests, the remaining evidence
still
>
>supports the defendants convictions.
>
>As a factual matter, though, the prosecutors claims are suspect.
Take the
>
>Dedge case. Excluding the hairs, the remaining evidence was
the victims
>
>physical description (which Dedge did not even match); the testimony
of a
>
>jailhouse informant that Dedge had confessed to him; and the
testimony of
>
>an expert who claimed Dedge had been picked out by a dog in
a "scent line
>
>up."
>
>Surely, this case never would have been prosecuted but for the
>
>now-discredited hair match. And with good reason.
>
>Why Prosecutors Offices Need to Adopt an Institutional - Not
Individual -
>
>Solution
>
>Situations like this raise a serious institutional problem for
every
>
>prosecutors office in the country. Trial prosecutors, who have
invested
>
>themselves in cases, will rarely if ever have the necessary
perspective to
>
>evaluate convictions being challenged on the basis of new DNA
evidence.
>
>Inevitably, too many line prosecutors will view DNA evidence
of innocence
>
>as an attack on their judgment and abilities, as well as those
of their
>
>colleagues. When DNA evidence casts doubt on a conviction, it
may also be
>
>seen as casting doubt on the thoroughness of the police investigation,
and
>
>on the judgment of the entire prosecution team in evaluating
a case. Of
>
>course, that doubt may be undeserved: Police and prosecutors
can be
>
>scrupulous, yet still be wrong. But the doubt is cast, and felt,
>
>nonetheless - and police and prosecutors, both good and bad,
may resent
>
>it.
>
>At a personal level, no prosecutor - good, bad, or indifferent
- is going
>
>to be naturally inclined to accept the idea of having obtained
a wrongful
>
>conviction. For the best prosecutors, such a concession means
accepting
>
>the ultimate professional failure of disserving the paramount
mission of
>
>protecting the public and achieving justice. And more self-serving
>
>prosecutors are likely to be consumed by the career implications
of
>
>admitting such a giant screw-up.
>
>In many cases, line prosecutors will also face substantial pressures
from
>
>crime victims and their families not to admit error. The victims
and
>
>families want closure, too. As a theoretical matter, one might
think that
>
>victims and their families would want to know the truth, whatever
it may
>
>be, and that their primary interest would be in finding the
real criminal.
>
>But in practice, that is not always true.
>
>According to those involved in the process, in many cases, the
victims and
>
>their families are just too invested in the result obtained
at trial to
>
>open their minds to the possibility of mistake. After a terrible
ordeal,
>
>they have obtained a measure of peace and vindication that is
simply too
>
>valuable for them to easily let go.
>
>As a result, the victims or their representatives - who often
have
>
>developed deep bonds with the prosecutors - reinforce the reluctance
of
>
>prosecutors to reopen cases. The prospect that the convicted
defendant is
>
>innocent, or very likely so, often turns out not to be welcome
news to
>
>anyone. Only the innocent defendant himself - and possibly his
defense
>
>counsel, though defense counsel, too, may fear that their skills
have been
>
>put in doubt - is eager to see DNA evidence reopen the case.
>
>There is thus a desperate need for District Attorneys and U.S.
Attorneys
>
>to establish independent, separate units or committees within
their
>
>offices to evaluate claims of innocence based on DNA evidence.
The
>
>original prosecutor, while he or she will have input, is far
too close to
>
>the issue to decide what the offices position on reopening a
case - or
>
>even agreeing that a conviction should be vacated - in light
of DNA
>
>evidence.
>
>There will be cases where DNA evidence should not be deemed
sufficient to
>
>unsettle a conviction - for the other evidence against the defendant
may,
>
>standing alone, be overwhelming. But there will also be cases,
probably
>
>many more, where the wrongly convicted person must be set free
as soon as
>
>possible, because the DNA evidence either was the linchpin of
the case
>
>against him, or actually points to another persons guilt.
>
>Deciding which cases fit in which category is a job for experienced
>
>prosecutors with no vested interest in the original prosecution
- not for
>
>the prosecutor who obtained the conviction (and congratulations
in the
>
>office for it) in the 1st place.
>
>Many prosecutors offices use this same system of independent
peer review
>
>when deciding which potential cases should actually lead to
the filing of
>
>criminal charges, and which - while perhaps technically violations
- are
>
>too hard to prove, or too minor to use resources upon.
>
>After developing a case, line prosecutors must obtain the approval
of an
>
>"indictment committee." This committee is a group of prosecutors
with no
>
>interest in the case under review, who are called upon to decide
whether
>
>the evidence developed is sufficient to meet the standard for
actually
>
>charging a crime.
>
>The "DNA committee" I am proposing would work much the same
way. If DNA
>
>testing discredits evidence used to obtain a conviction, then
the
>
>committee would evaluate the quantity and quality of the untainted
>
>evidence to determine whether the office should admit error
- or at least
>
>support a courts reopening the case, or agree to a re-trial.
>
>In sum, DNA evidence provides a unique window into the truth
of guilt or
>
>innocence. And every effort must be made to keep that window
free from the
>
>dust and dirt of conflicts of interest, especially prosecutors
interests
>
>in keeping the convictions they have won pristine.
>
>(source: Findlaw; Edward Lazarus writes about, practices, and
teaches law
>
>in Los Angeles. A former federal prosecutor, he is the author
of 2 books -
>
>most recently, Closed Chambers: The Rise, Fall, and Future of
the Modern
>
>Supreme Court)
>
>Rev. Patrick Delahanty
>Interim Director
>Catholic Conference of Kentucky
>1042 Burlington Lane
>Frankfort Kentucky 40601
>502-875-4345 (w)
>www.ccky.org
>
>Chair
>Kentucky Coalition to Abolish the Death Penalty
>PO BOX 3092
>Louisville KY 40201-3092
>502-581-9154 (H)
>www.kcadp.org
>
