DNA Tests
Can Free the Innocent. How Can We Ignore That?
By William S.
Sessions
Sunday, September 21, 2003;
Page B02
When I became the director of the FBI in 1987, the forensic
use of DNA to find and convict wrongdoers was just emerging as a
tool in criminal investigations and trials. This "genetic
fingerprinting" provided an entirely new capability in the effort to
separate the guilty from the innocent. In early 1988, the FBI
Laboratory Division created a DNA testing lab; by year's end,
testing was completed in 100 active cases. I was fully expecting the
results to confirm the careful investigative and evaluative work
that had gone into the decisions to prosecute these suspects.
Instead, I was stunned by the results. In about 30 percent
of the cases, the DNA gathered in the investigation did not match
the DNA of the suspect.
Fifteen years later, this rate remains virtually the same.
Approximately 25 percent of DNA tests do not produce a match. I am
proud that throughout its existence, the FBI's DNA lab has served
both to identify criminals and to exonerate suspects mistakenly
identified by law enforcement investigations across the country. But
with 137 post-conviction DNA exonerations now on the books in the
United States, I am increasingly concerned about recent news stories
that suggest a growing resistance on the part of prosecutors across
the country to allow post-conviction DNA testing, even in cases
where there is strong evidence of innocence.
There are always reasons -- time, money, bureaucratic
obstacles -- that something cannot be done. But when it comes to
justice and fairness, those reasons are just excuses. Prosecutors
not only have a professional duty to seek the truth, they have a
moral responsibility to respond to the DNA no-match rate. Just as
pretrial DNA testing has illuminated the unexpected frequency with
which police and prosecutors have targeted the wrong person,
post-conviction testing in cases that were tried 15 or more years
ago -- before the availability of forensic DNA -- can exonerate
those wrongly convicted, and can possibly identify the true
perpetrator and shed light on the causes of the wrongful
conviction.
One case vividly illustrates the power of DNA testing. In
1984, a 9-year-old Maryland girl was found strangled, raped and
beaten to death with a rock. In 1985, Kirk Bloodsworth was convicted
of the crime in Baltimore County and sentenced to death, mainly on
the basis of eyewitness identifications and vaguely suspicious
statements that Bloodsworth had made. Luckily for him, there was
biological evidence in his case, and later DNA testing proved more
reliable than the evidence presented against him at trial. In 1992,
DNA testing of sperm on the victim's clothing excluded Bloodsworth
as the source. In 1993, after spending more than eight years in
prison, two of them on death row, Bloodsworth was exonerated and
released.
But the case did not end there. For more than a decade,
Baltimore County prosecutors continued to consider Bloodsworth their
chief suspect in the crime, until they finally agreed to perform
more sophisticated DNA tests that could be entered into state and
federal databanks. Just two weeks ago, DNA material left by the
rapist-murderer at the scene was entered into Maryland's DNA
database and produced a "cold hit," implicating a man currently
serving time for an unrelated crime. Bloodsworth finally received
the apology from prosecutors that he had been waiting 10 years to
hear.
The Bloodsworth case vividly demonstrates the need for law
enforcement officials to join advocates for the innocent in seeking
DNA testing where it previously was unavailable. The phenomenal
scientific potential of this evidence should be championed by law
enforcement officials, whose principal interest has always been to
protect the innocent as they try to apprehend the guilty.
As DNA technology continues to improve, so does its ability
to identify the true perpetrators of crimes and exclude those who
are wrongly suspected or charged. Defendants who were convicted
before these scientific and technological advances might have
exonerated them are now desperately asking for advanced DNA tests to
prove their innocence. If the 137 DNA-based post-conviction
exonerations are any indication, the defendants' requests for DNA
testing clearly are warranted.
It is one thing for prosecutors to argue that, in some
cases, DNA test results wouldn't necessarily establish a defendant's
innocence and that other evidence is so strong that the conviction
should still stand. But what is not understandable, nor seemingly
justified, are the efforts of prosecutors to deny defendants access
to DNA evidence for testing in cases where the results could make a
difference.
Last year, a Kentucky inmate named Michael Elliot was
trying to prove his innocence in a murder. An enterprising law
student had located a blood stain near the scene of the crime.
Elliot, who is serving a life sentence, wanted the court to order
DNA testing of the stain. The prosecutors responded not just by
opposing the testing, but by informing Elliot's lawyers that they
would destroy the evidence unless a judge instructed them not to do
so. The judge granted the prosecutors' motion, but the Kentucky
Court of Appeals intervened before the prosecutors could act.
Unfortunately for Elliot, the blood stain turned out to be from the
victim and was thus of no help to his claim. But Elliot couldn't
have known that without testing -- and neither could the
prosecutor's office.
In 1997 in Harris County, Tex., after DNA testing
exonerated Kevin Byrd of rape, court officials decided to discard
the "rape kits" -- the vaginal swabs taken from victims -- in 50
other cases. They cited a lack of storage space. Byrd's lawyer was
quoted in the media as questioning the decision, saying the rape kit
has been crucial to proving his client's innocence in the 1985 case.
Why wasn't the prosecutor's office asking for the evidence to be
preserved?
Prosecutors have nothing to lose -- unless they put their
pride before their professionalism -- in allowing post-conviction
DNA requests to go forward. If the DNA test proves the defendant is
guilty, then all doubts will be resolved. If it exonerates the
defendant, then there is an opportunity to correct a tragic mistake
and begin the search for the real criminal.
Those opposed to post-conviction DNA testing say that it
opens the door to demands from every inmate and would cost a
fortune. No one is suggesting such a widespread reexamination.
Organizations such as the Innocence Project -- which favors testing
-- rigorously screen requests from inmates, eliminating roughly 90
percent of these requests.
The tests themselves are relatively inexpensive and often
are paid for by the defendants, the network of Innocence Projects
around the country and other nonprofit organizations. In cases where
alternative funds are not available, DNA testing at state and county
labs may cost as little as $1,000 -- a fairly minimal expense for
taxpayers, given the price of imprisoning, or even executing, the
wrong person while allowing the real perpetrator to remain free to
commit more crimes.
During my time as a federal judge in Texas and as FBI
director, I had contact with prosecutors and law enforcement
officials who are among the best anywhere, working together in a
criminal justice system that is the model for countries around the
world. But we can -- and must -- do better. Given the stakes
involved, we cannot deny defendants a right to post-conviction DNA
testing.
William Sessions served as director of the FBI from 1987
to 1993 and, earlier, as chief judge of the U.S. District Court for
the Western District of Texas. He is a member of the Constitution
Project's Death Penalty Initiative, a committee studying ways to
prevent abuses in capital punishment.
© 2003 The Washington Post
Company
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Steven Avery, imprisoned for 18 years on charges he
attacked a female jogger, was freed from the Stanley
Correctional Institution prison in Stanley, Wis., on Sept. 11,
after DNA evidence showed he didn't commit the crime. (Jeffrey Phelps -- Milwaukee Journal Sentinel
Via AP)
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