Attorney General Eric H. Holder Jr. has ordered a review of a little-known Bush administration policy requiring some defendants to waive their right to DNA testing even though that right is guaranteed in a landmark federal law, officials said.
The practice of using DNA waivers began several years ago as a response to the Innocence Protection Act of 2004, which allowed federal inmates to seek post-conviction DNA tests to prove their innocence. More than 240 wrongly convicted people have been exonerated by such tests, including 17 on death row.
The waivers are filed only in guilty pleas and bar defendants from ever requesting DNA testing, even if new evidence emerges. Prosecutors who use them, including some of the nation's most prominent U.S. attorneys, say people who have admitted guilt should not be able to file frivolous petitions for testing. They say the wave of DNA exonerations has little impact in federal court because all those found to be innocent were state prisoners, and the waivers apply only to federal charges. DNA evidence is used far more frequently in state courts. ...
Interviews and documents show that language allowing for DNA waivers was inserted into the law at the behest of Republican senators and that the Bush Justice Department lobbied against the measure even with the waiver provision. Soon after the law passed with bipartisan support, the department sent a secret memo to the nation's 94 U.S. attorney's offices urging them to use the waivers, several federal officials familiar with the memo said.
Josh Marquis of the national District Attorneys Association told the Washington Post that "he's never heard of DNA waivers in state court and that the organization opposes the concept. 'I think it's important to always leave the door open for actual proof of innocence,' he said." However, this tactic reminds me of a method used by Texas prosecutors to prevent post-conviction DNA claims: Requiring as part of plea deals that DNA evidence be destroyed to prevent future testing.
Indeed, the newly appointed Texas Forensic Science Commission chairman John Bradley has openly argued that destruction of DNA is important as part of a plea deal because "innocence trumps everything" and so what appear to be solid cases might unravel after conviction if the evidence isn't destroyed.
Innocence cases tend to represent gross errors in the system, seldom outright malicious prosecution. But choosing to destroy or limit testing of evidence in order to avoid those errors from being discovered surely borders on malicious: Certainly it's unfair, unjust, and simply bad public policy.
It strikes me that Texas prosecutors appear to be far ahead of their brethren among the feds and in other states at concocting methods to avoid successful innocence claims. Walter Reaves has a good post up about another tactic by Mr. Bradley (who is the Williamson County DA) to thwart post-conviction innocence claims: Prosecuting for aggravated perjury when someone who pled guilty later claims innocence in a habeas corpus writ. Writes Reaves:
Even the most staunch defender of law order might sense some unfairness in this. Other than concerns about decency and fairness, there are also some practical problems with this approach. The first is that just because a defendant pleads guilty doesn't mean he agrees he is guilty.
Long ago the United States Supreme recognized that defendants might who don't believe they are guilty might not want to risk going to trial. Although this can be he subject of a separate post, its basically common sense. Would you rather be innocent and spend 10 years in prison or innocent and spend 50 years in prison. Prosecutors know this, and sometimes make offers to good to be true. So a defendant basically fibs, and admits guilt in return for a favorable outcome.
The Court of Criminal Appeals recognized this a few years ago in DNA cases. Some of the persons who have been exonerated actually plead guilty originally. The court recognized there could be a number of reasons for pleading guilty, and held that would not prevent you from claiming innocence and filing a motion for DNA testing.
The Catch-22 Mr. Bradley would impose on defendants is further evidence of how absurd it is to analyze plea agreements as though they're voluntary contracts.
I don't blame prosecutors for the occasional mistake, but I do blame them when they attempt to cover up errors after the fact or seek to prevent them from ever being discovered. Habeas writs are a safety valve that exists to correct such errors - for example, when science improves to allow better testing or new evidence is discovered after the fact. Just because the law gives prosecutors tools to close off that safety valve using these kind of aggressive tactics doesn't make it wise or moral to do so.