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Post-Conviction DNA Testing Should Be a Right

By TChris, Section Innocence Cases
Posted on Wed May 24, 2006 at 03:11:45 PM EST
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by TChris

More than 175 people have been exonerated by post-conviction DNA testing. The Justice Project brings you the details of recent DNA exonerations in New York and Pennsylvania, along with the disturbing report of a Tennessee judge who has refused to permit DNA testing that might save an inmate from execution. Just as disturbing:

At this time, no state provides, as an absolute right, access to post-conviction DNA testing.

The Justice Project is trying to change that. Here's how you can help.

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    Post-Conviction DNA Testing Should Be a Right | 14 comments (14 topical)
    Re: Post-Conviction DNA Testing Should Be a Right (none / 0) (#1)
    by Talkleft Visitor on Wed May 24, 2006 at 04:23:16 PM EST
    You'd think the absolute right would be a no-brainer. It's probably more so in capital cases, but the vast majority of innocent people in prison were not sentenced to death.

    Re: Post-Conviction DNA Testing Should Be a Right (none / 0) (#2)
    by Talkleft Visitor on Wed May 24, 2006 at 04:34:01 PM EST
    Actually Illinois has a right to post-conviction testing. It is 735 ILCS 5/116-3. It allow for testing if identity was an issue at trial and the testing was not available at trial. I practice in this area, so I am quite familiar with it.

    Re: Post-Conviction DNA Testing Should Be a Right (none / 0) (#3)
    by weezie on Wed May 24, 2006 at 04:37:10 PM EST
    So, if the Duke lax players are convicted, will they be able to summon the results of the DNA tests and then get off?

    Re: Post-Conviction DNA Testing Should Be a Right (none / 0) (#4)
    by Talkleft Visitor on Wed May 24, 2006 at 05:23:55 PM EST
    TL, I'm sorry you felt the need to ban Bean and Orinoco.
    "When they came for the Trade Unionists, I did not speak out. I was not a Trade Unionist..."


    Re: Post-Conviction DNA Testing Should Be a Right (none / 0) (#5)
    by squeaky on Wed May 24, 2006 at 05:42:34 PM EST
    I'm sorry you felt the need to ban Bean and Orinoco.
    Admirable position seeing that you were often a target. Even though you did mention that you enjoyed his personal attacks, I am still impressed. Wish I were more like you. to me he seemed like an intellectual terrorist, terrorism just for the fun of it. What is your secret?

    Re: Post-Conviction DNA Testing Should Be a Right (none / 0) (#6)
    by Sailor on Wed May 24, 2006 at 05:50:29 PM EST
    PB, wrong thread, wrong time. Notice TL has an email link and open threads. misterreg says:
    It allow for testing if identity was an issue at trial
    So one state mandates it, if it was a 'trial' issue. How does that compare with what TChris wrote? Besides, how many folks pled guilty on advice of (bad) counsel. Shouldn't they have a shot? e.g. the state says we're going to charge you for raping 3 women. You'll serve LWOP if the jury believes the state. Or, you can plead guilty to assault and get 1 year. even your lawyer won't want to roll those dice, whether you did it or not. DNA testing is inexpensive enough that as a society we have to do it. It really is a no brainer. Facts should always trump suppositions.

    Re: Post-Conviction DNA Testing Should Be a Right (none / 0) (#7)
    by Talkleft Visitor on Wed May 24, 2006 at 06:18:53 PM EST
    I wouldn't say the state "mandates" it, but the defendant does have a right. The situation where "identity was an issue" involves situations where testing of DNA may not be probative (e.g. consent defense). As to the guilty plea situation, the Illinois Courts are split on whether that should preclude testing under 116-3. Also, I have to take issue with the state ment that DNA testing is cheap. DNA testing, when done properly can be quite expensive. Testing reference samples is cheap. Trying to get a probative DNA profile from twenty year old evidence handled and stored under questionable heat and moisture conditions (I'm not blaming anybody, its just that when a lot of these things were stored no one anticipated DNA testing) can be quite expensive if done properly. Also, it should be pointed out, that defendants have a fundamental right to DNA testing before trial. It is ineffective assistance of counsel not to do so, if the defendant wants it. (Not that it usually helps.)

    Re: Post-Conviction DNA Testing Should Be a Right (none / 0) (#8)
    by Sailor on Wed May 24, 2006 at 07:11:33 PM EST
    I wouldn't say the state "mandates" it
    'nuff said.
    Also, it should be pointed out, that defendants have a fundamental right to DNA testing before trial.
    Reeeaaly!? Gee, and who pays for that?

    Re: Post-Conviction DNA Testing Should Be a Right (none / 0) (#9)
    by Talkleft Visitor on Wed May 24, 2006 at 07:23:23 PM EST
    This is how the State sets the example of "taking responsibility" and "showing remorse."

    Re: Post-Conviction DNA Testing Should Be a Right (none / 0) (#10)
    by Sailor on Wed May 24, 2006 at 07:32:25 PM EST
    Also, I have to take issue with the state ment that DNA testing is cheap[...] when done properly can be quite expensive
    You don't have to compare all chains, (very expensive, and even the gov't doesn't do that when they go to court) all you have to do is a check on 27 markers. If they don't fit, you must acquit. If you are a defense attorney, I hope you'll never do a case where DNA is at stake. If you are a prosecutor, I'd offer my expert testimony for free to any person subject to your ignorance.

    Re: Post-Conviction DNA Testing Should Be a Right (none / 0) (#11)
    by Talkleft Visitor on Thu May 25, 2006 at 06:38:54 AM EST
    While post-conviction testing would help those who have been wrongly convicted already, and is therefore worthwhile, wouldn't it be better to require pre-trial testing anytime the prosecution has a sample it believes to be from the perpetrator? In that case, any definitively negative result would allow the prosecution to avoid a trial in the first place. I suppose one could then complain that this would violate the Fifth Amendment whenever someone's DNA matched, but that could be easily avoided by simply making it a requirement that the prosecution disclose that it has such a sample and leave it up to the defense to decide if it wishes to pursue such a test, with the caveat that if the results are positive they will be admissable in court and if the test is refused, any right to one after a conviction is waived.

    Re: Post-Conviction DNA Testing Should Be a Right (none / 0) (#12)
    by Talkleft Visitor on Thu May 25, 2006 at 10:03:48 AM EST
    To keep with the spirit of this thread, would people like the indicted Duke students get off as a "no-brainer" because the DNA of the sperm did not match?

    Re: Post-Conviction DNA Testing Should Be a Right (none / 0) (#13)
    by Talkleft Visitor on Thu May 25, 2006 at 02:26:09 PM EST
    I wanted to thank TChris for posting on this issue and I'm glad to see it has generated a discussion. I also wanted to provide a little clarification on state statutes and DNA testing. 39 states do have post-conviction DNA testing laws in place, but many statutes require revisions in order to allow more meaningful access to inmates who may be wrongfully convicted. For example, some states make it virtually impossible to get DNA testing if the defendant pled guilty, which, given what we know about the reality of false confessions, is a dangerous restriction. In other states, testing provisions expire after short windows, such as in Ohio and Florida where inmates were initially only given a year or two to apply for testing -- not always enough time for prisoners to learn of the law, contact a lawyer, determine if evidence was still available in their case and have testing done. Fortunately, lawmakers in both states are currently working to extend or eliminate these deadlines. With over 175 DNA exonerations, including more than a dozen from death row, we have to make sure this trend continues and testing is available to those who need it.

    Re: Post-Conviction DNA Testing Should Be a Right (none / 0) (#14)
    by Talkleft Visitor on Thu May 25, 2006 at 02:26:43 PM EST
    I wanted to thank TChris for posting on this issue and I'm glad to see it has generated a discussion. I also wanted to provide a little clarification on state statutes and DNA testing. 39 states do have post-conviction DNA testing laws in place, but many statutes require revisions in order to allow more meaningful access to inmates who may be wrongfully convicted. For example, some states make it virtually impossible to get DNA testing if the defendant pled guilty, which, given what we know about the reality of false confessions, is a dangerous restriction. In other states, testing provisions expire after short windows, such as in Ohio and Florida where inmates were initially only given a year or two to apply for testing -- not always enough time for prisoners to learn of the law, contact a lawyer, determine if evidence was still available in their case and have testing done. Fortunately, lawmakers in both states are currently working to extend or eliminate these deadlines. With over 175 DNA exonerations, including more than a dozen from death row, we have to make sure this trend continues and testing is available to those who need it.

    Post-Conviction DNA Testing Should Be a Right | 14 comments (14 topical)