Prosecutors justify opposition to DNA testing

Several readers forwarded me a copy of The New York Times' piece yesterday about prosecutors blocking access to exculpatory DNA testing.

It's a good read and covers the terrain well. One point I'd add from Texas' experience (particularly in Dallas), is that there's a potential unintended consequence for the state avoiding DNA testing: If the defendant turns out to be actually innocent, the clock may be ticking on the statute of limitations for prosecuting the real offender. Texas has seen cases where the statute of limitations ran out on the actual perpetrator WHILE prosecutors were fighting to prevent DNA testing that turned out to prove a false conviction.

Today, Texas courts are much more likely just to order the tests, but some prosecutors still fight DNA testing. Indeed, one of the examples in the Times story was from Austin:

In one such case near Austin, Tex., a defendant who was convicted in the bludgeoning death of his wife requested a DNA test on a bloody bandanna found 100 feet from the house. On its own, a test of the bandanna would not prove the guilt or innocence of the defendant the same way testing semen in a rape case might. But if it matched DNA found at the scene of a similar crime in the same county, or DNA in a database of convicted felons, it would be significant evidence that someone else might be responsible — the kind of evidence that might plant a reasonable doubt in a juror’s mind or lead to a confession by a perpetrator.

Although such matches have been found in many cases, most state DNA statutes focus only on whether a test alone could prove innocence. The purpose of Tennessee’s DNA statute, a court there said, was “to establish the innocence of the petitioner and not to create conjecture or speculation that the act may have possibly been perpetrated by a phantom defendant.”

Law enforcement officials often say, “ ‘We’re not going to consider the possibility that a third party did it,’ ” Mr. [Barry] Scheck said, adding, “which is completely crazy because you use the databank every day to make new criminal cases.”

For my money, that's an argument for why the defense bar deserves equal access to the national CODIS database along with prosecutors. Maybe the defendant is on a fishing expedition, but the reason folks go on fishing expeditions is that sometimes they come back with a fish. Many of these actual innocence cases amount to a needle found in haystack. Plus, law enforcement goes on fishing expeditions every day. Some guilty defendants undoubtedly will also request testing, but too many innocent ones have been identified through DNA to justify opposing any motion with a legitimate chance of producing probative information.

In general, I think both the prosecution and defense should have access to sufficient forensic testing to prove up their side, including DNA testing when it might inculpate someone else. DAs would be wise to heed the counsel of an attorney for one of the men described in the story seeking a DNA test: “The one thing I’ve learned in doing this for seven years is there’s no reason to guess or speculate. You can just do the test.”

RELATED: I should add that this stereotype about DAs isn't universally true. The Fort Worth Star Telegram profiled Dallas DA Craig Watkins over the weekend, praising him for his willingness to break with tradition and allow DNA tests in cases, some proving actual innocence, where his predecessor opposed it.