Prosecutors Blocking Access to DNA Testing

Monday, May 18th, 2009

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.

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20 Responses to “Prosecutors Blocking Access to DNA Testing”

  1. #1 |  Mike T | 

    “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.”

    I’ve seen countless feminists make this argument as well. Rape is truly an issue on which much of the left is as bad for a napoleonic guilty-until-proven-innocent mentality as much of the right is on other issues.

    Character issues, like serious promiscuity, are issues that the defense has a legitimate right to exploit to bring the victim’s credibility into doubt. The prosecutor doesn’t like the notion that the defense could easily portray his client–errrr victim–as a homewrecker or something like that.

  2. #2 |  Michael Pack | 

    In my opinion,many prosecutors do not want this test because they show how unreliable some evidence can be.Eyewitness testimony ,a gold standard to many,has a high rate of error.Many forensic test are just not reliable beyond a resonable doubt.In many of these cases,D.N.A. would prove a defendant innocent ,yet would not give the answer to who commited the crime.That’s the rub,people want these cases solved.As I have stated here before ,it is a fixture of our system that a guilty verdit is hard to get.( or used to be).

  3. #3 |  Tokin42 | 

    Rape is such a heinous crime that I think it’s imperative they do DNA testing on every accused to make sure they have the right guy. Then, once they’re sure, they can frog-march his ass out the back door and put a bullet in him.

  4. #4 |  Tokin42 | 

    I re-read my comment and realized it could have sounded flippant and it wasn’t meant that way. Both Mikes are exactly right, too many false accusations and too many prosecutors using nothing other than eyewitness and victim testimony, that’s why I think they should all undergo DNA testing (then shoot em).

  5. #5 |  Boyd Durkin | 

    It shows how the state thinks. Better to keep an innocent man in prison (and allow a rapist to roam free as a threat to society) than to open the case and cause agitation for the victims.

    Hmmm…those words don’t sound right. I’m thinking, maybe, the state doesn’t want to be found wrong (and they don’t really care about the victims).

    Yes, that sounds right now.

  6. #6 |  Lloyd Flack | 

    I think finality is a value that the legal system must abandon. You can never be absolutely certain of any verdict, just certain enough to act on that verdict. But we must always keep the means and willingness to correct mistakes. To do otherwise is immoral. It would be nice to give the victims of a crime the absolute certainty that things have been dealt with once and for all. But we cannot give this assurance in any other part of our lives. This is something that they are simply not entitled to.

    Rape is a serious crime, worse than common asault but not in the same class as maiming or torture, let alone murder. Despite thinking that some cases deserve it, on ballance I oppose the death penalty bor even the worse cases of murder. Without hesitation I will oppose it for any lesser crime than murder.

  7. #7 |  Kieffer | 

    I’m surprised they don’t identify one of the reasons they oppose DNA testing as “because it’s really embarrassing when we lose.” It’s as reasonable an argument as the others they make.

  8. #8 |  Marty | 

    I wonder if the prison guards are lobbying on this issue…

    There is no reasonable argument against the truth. I guess the key word here is ‘reasonable’. People’s lives are being spent to further political agendas- bureaucratic prosecutors and cops are just out to complete a job, not find the truth. Assholes.

    Any one of us could be on the wrong end of this.

  9. #9 |  Tokin42 | 


    I would disagree. IMO I can’t think of many crimes, other than murder, that are more heinous than rape. I’m a firm believer in the death penalty, my only problem is I don’t have a lot of faith that there are only a few prosecutors who use their positions and case loads to enhance their political futures viability.

  10. #10 |  Mike T | 

    Rape is such a heinous crime that I think it’s imperative they do DNA testing on every accused to make sure they have the right guy. Then, once they’re sure, they can frog-march his ass out the back door and put a bullet in him.

    DNA can only prove innocence in some cases, and it can never prove guilt in and of itself. In the case of rape where a condom was used, odds are that DNA would not be there.

    Of course, the simplest solution to this problem is to give the falsely accused a legal right to order the government to convene a grand jury against their accuser and their witnesses. If someone is falsely accused, then the person who made the complaint, and those that supported their claim, should automatically be investigated for perjury.

    You’re wrong about something else. There is a crime that is even worse than rape, and that is equally common: falsely accusing someone of it. The mere act of falsely accusing a man of rape can go a long way to ruining his reputation as most women will unquestioningly support his accuser and many men will go along with it too.

  11. #11 |  ktc2 | 

    I believe the death penalty should be reserved solely for politicians and others who weild state authority in a corrupt manner.

    Not because I’m opposed to the death penalty for certain heinous crimes, but because I believe our legal system is corrupt and inept and cannot be trusted with a death penalty.

    As to the politicians, etc., well nobody FORCES you to be one so it’s voluntary IMO.

  12. #12 |  Mike T | 

    I believe the death penalty should be reserved solely for politicians and others who weild state authority in a corrupt manner.

    For the plebs, lethal injection and the firing squad (both fast and painless if done right) only for crimes that are caught on tape, witnessed by half a dozen credible witnesses, etc.

    For the patricians and politicians: crucifixion, burning at the stake or hanging for any felony committed under the color of authority.

    Whose with me?

  13. #13 |  Mike T | 

    ***Sorry, forgot to throw in stoning as a potential punishment for official corruption.

    Anyone think that the Viking Blood Eagle should be available for the most extreme ethical and criminal issues committed under authority?..

  14. #14 |  Highway | 

    I agree with the others who say that ‘finality’ is a bad concept and should be abandoned. What solace can there be in destroying an innocent person? How twisted does someone have to be to think that it’s acceptable that someone is punished for something they didn’t do, and that people will take comfort and closure from that?

    The concept of finality breaks down with the merest examination, not just in criminal cases, but in all cases. Punishing the innocent is wrong. It is more wrong than having the guilty go free. That’s why we have such platitudes as “Better to let a guilty man go free than to punish the innocent.” But these things just show how hollow those words are, and that the ‘justice’ system doesn’t provide anything of the sort. It’s a blame and punishment system, and all it does is find someone to take the blame and punishment, and apparently if they actually get the guilty guy, then Hey! It’s a bonus!

    Anyone who could make a quote like the one in the post should be forfeiting their status as a citizen of humanity.

  15. #15 |  PersonFromPorlock | 

    I suspect that prosecutors, as a class, feel the only thing wrong with the Crucifixion was that the state didn’t do it again when the opportunity arose.

  16. #16 |  Dave Krueger | 

    It’s impossible for someone to be a prosecutor and not know how unreliable eye witness testimony is. I think the reason they value it so highly is because witnesses can be so easily manipulated into supporting their case.

    I am also stunned when someone waves a confession around as irrefutable proof that the defendant did it. While it’s true that arrestees have a terrible time keeping their mouths shut, it’s equally true that police interrogation techniques have been repeatedly proven to elicit false confessions. Law enforcement is one of the few professions where dishonesty is actively cultivated in its practitioners. You can’t tell me that you can teach a cop that it’s ok to lie to a suspect to con him into a confession and then expect him to tell the truth when he’s questioned about his own behavior.

  17. #17 |  Lloyd Flack | 

    In Britain the police are not allowed to lie to suspects that they are interrogating.

    There are also restrictions on defence lawers. They are not allowed to lie to the court. If a defendant cofesses to them they are not allowed to enter a not guilty plea. Either they withdraw from the case or they enter a guilty ple and try for a reduced sentence. With this sort of restriction on them, the prosecutors are less likely to adopt a win at any cost attitude. Also a lwer who prosetes one case may be defending the next. There is klless identification with the state by the prosecutors.

  18. #18 |  Michael Pack | 

    #16 Dave,It’s also impossible for prosecutor to believe B.A.C machines have no margin for error,none.Many have stated they could not get a conviction with out the machine in 80 to 90% of D.U.I. cases without them.This means they knowing punish people who do no harm and are not a danger.They believe in the machine that much,but,refuse top allow .D.N.A. tests to possibly overturn a conviction.It’s all about winning.

  19. #19 |  CincyMatt | 

    #14 Highway you took the words right out of my mouth (almost). I can flat guarantee the family of the victim would not be feeling very good at all if they knew there was a chance the wrong guy is in jail. For 2 reasons, obviously first that there is an innocent person in jail. And also obviously, that the MF’er that did commit the crime is still free. I promise you better than 90% of the victims families would be in favor of removing all doubt.

  20. #20 |  Kevin Carson | 

    Virtually every single time I read about a wrongfully convicted person being freed on account of DNA evidence, thanks to the efforts of people like the Innocence Project, I read three paragraphs or less into the story that the prosecutor was fighting tooth and nail to suppress attempts to reopen the case and examine the evidence.

    The only explanation, as far as I can see, is that most prosecutors are filth.

    When I hear the monstrous Nancy Grace commenting about “even some defense attorneys” being decent, I recall the number of times she was censured by the Georgia bar for withholding evidence from defense. Not to mention how she drove a woman on her show to commit suicide, and how she’s never yet apologized to the Duke Lacrosse team defendants.

    I repeat: scum.