Thursday, March 01, 2007

Should DAs seek DNA destruction in plea agreements?

Rob Kepple, executive director of the state prosecutors' association, forwards an article from today's Dallas Morning News that apparently examines the case underlying the comment string that inspired this Grits post and another one reacting to prosecutor comments. Wrote Kepple:
Well what do you think? In this context, isn't the DA being pretty reasonable? Look at what the defense attorneys say.....
I responded thusly:
And yet, if the pleas in any of those Dallas cases included such a provision, the poor guys would still be in prison.

I've gone and looked at evidence in dozens of old cases in county courthouses, judges' chambers and occasionally some court reporter's garage in every corner of the state. Lots of evidence is routinely preserved for a long time, and there are strong public policy arguments for doing so. I don't see any harm in preserving DNA evidence, especially in cases where there are co-defendants or the defendant maintains their innocence.

That said, I'll post a link to the article and see what my readers think, since I know folks in your shop care so much about their opinion. ;)
And so I do. The main difference between this and the older Dallas cases is that the DNA evidence has been tested and the defendants' attorneys are privy to the results. But does that resolve all need to retain the evidence? This suspect has two co-defendants. Can one defendant agree to destroy evidence that might affect the other two cases? I'm not a lawyer. I don't know. But it doesn't on its face pass the smell test to me.

MORE: Kepple responded:
You know, you could at this point just concede that it's ok in this circumstance, even though it is not ok in many others. That was kinda the point of this whole discussion to begin with. Of course it wouldn't be a swell idea when the guy is contesting the that situation the guy will be asking for it to be tested...
To which I replied:
Except I don't agree it's necessarily ok in this case. This guy has two co-defendants. Even on your own listserv that aspect was questioned. But then, I'm not a lawyer. I asked my readers and we'll see what they think.

Maybe y'all could admit at this point that the failure to retain old DNA evidence likely has resulted in many undiscovered innocence cases in counties where the evidence was destroyed rather than retained. What do you think? Will you make that public pronouncement?

I think when the evidence has been tested and no other parties have a stake in it, there are circumstances where I'd feel comfortable having it destroyed. But there are no such caveats in the law about what can be agreed to in a plea bargain, and too many DAs frankly have a convict at any cost mentality, which is why Dallas has all these innocent guys getting out of prison now in the first place. So I'm reluctant to grant license to DAs in a capital case, for example, to tell a defendant, "Let me destroy the evidence, or we'll kill you." I'd like to see evidence destruction policies uniform and not dependent on plea agreements.

Or am I missing something?
Read the Dallas News article and my original two posts, then let me know in the comments if this additional information changes your opinion about whether or when prosecutors should seek destruction of DNA evidence as part of plea deals. The more I think about it, I think there needs to be uniform standards established for when to destroy DNA evidence just like with drug evidence. Let me know what you think.

UPDATE: One of TDCAA's lobbyists, Shannon Edmonds, has added this comment to the DA's user forum: "FYI, I have confirmed that a bill or amendment will be proposed during this legislative session that would attempt to prohibit these kinds of plea conditions." So I guess I'm not the only one who thinks such plea conditions are a bad idea.


Anonymous said...

What is the possible upshot of this proposal? Only innocent people in prison. Possibly some cost-saving later in post-conviction, but by that rationale why not just have the guy sign away his right to any collateral review. It's obvious what their goal is.

It doesn't even sound like a voluntary waiver.

Anonymous said...

I have a friend who is currently in TDCJ on a DWI. I recently read his papers (disposition?) where he had to agree to have all DNA evidence destroyed in order to accept the plea bargin. I was shocked! I wondered if they did this on all cases? What if it were different situation where DNA could have proven him to be not guilty? What reason does the county have for wanting to destroy something that could be used to prove innocense or guilt? Personally, I don't understand the mentality behind it. The actual samples can't be that large. What do they use? Hair samples and mouth swabs? Don't want to keep those things, then run the test and keep the records. I would think in this day and age, when records can be kept on tiny computer chips, maintaining records like DNA results shouldn't be an issue. (Which bring up the question of why the parole board is still using a paper filing system, but that is another comment for another blog.) Back to DNA... I think it should be kept and not destroyed and I think it should be law that DNA testing be done on anyone accused of a sexual crime. Especially with stiffer SO penalities being enacted. DNA testing is a valuable tool when it comes to proving whether a person is guilty or not and should be utilized in that capacity. Justice lies in the truth!

Gary Carson said...

Just because DNA has been tested means nothing.

Not so long ago if you had blood evidence and tested for blood type then you were done with that blood. Until a couple of years later when technology changed and we could supplement that blood type testing with DNA testing.

We don't know what the science will be in 5 years.

So evidence destruction is just an insistence on maintianing whatever level of ignorance we have today into the future.

Mike Howard said...

The evidence having been tested and the defense attorney having been informed does not make destruction okay for one simple reason: the science behind these tests has and continues to evolve. Samples that produced inconclusive results in the past now or at some point in the future could produce conclusive, and possibly exculpatory, results. Ten years ago DNA was a very inexact science. In the next ten years all involved expect the science to become even better. So saying the evidence was tested in the past is a red herring - were the results conclusive? What lab performed that test? Is the lab reliable? Was that test independently confirmed by an outside lab?

Bottom line: there's just too many variables to destroy this evidence without a uniform procedure that has been put into place after an open and honest debate. That's exactly why the bill you mentioned in the update to the post is so important to this issue.