Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
As the Supreme Court considers a case on the question of whether the state can deny access to DNA evidence that may prove a convicted person's innocence -- a case in which the Obama administration chose to argue the vile position that they can -- the New York Times reports that prosecutors routinely block access to such evidence, even in states where the law grants them access.
Louisiana, where Mr. Reed is in prison, is one of 46 states that have passed laws to enable inmates like him to get such a test. But in many jurisdictions, prosecutors are using new arguments to get around the intent of those laws, particularly in cases with multiple defendants, when it is not clear how many DNA profiles will be found in a sample.The laws were enacted after DNA evidence exonerated a first wave of prisoners in the early 1990s, when law enforcement authorities strongly resisted reopening old cases. Continued resistance by prosecutors is causing years of delay and, in some cases, eliminating the chance to try other suspects because the statute of limitations has passed by the time the test is granted.
Mr. Reed has been seeking a DNA test for three years, saying it will prove his innocence. But prosecutors have refused, saying he was identified by witnesses, making his identification by DNA unnecessary.
And shows the extent of the problem:
A recent analysis of 225 DNA exonerations by Brandon L. Garrett, a professor at the University of Virginia School of Law, found that prosecutors opposed DNA testing in almost one out of five cases. In many of the others, they initially opposed testing but ultimately agreed to it. In 98 of those 225 cases, the DNA test identified the real culprit.
So in these 225 cases, the prosecutors objected to tests that proved the innocence of the man they'd convicted for the crime. That's more than 40 men who would still be in prison even though they were innocent if those prosecutors had succeeded in their arguments. And their arguments for doing so are transparently absurd:
Prosecutors say they are concerned that convicts will seek DNA testing as a delay tactic or a fishing expedition, and that allowing DNA tests undermines hard-won jury verdicts and opens the floodgates to overwhelming requests."It's definitely a matter of drawing the line somewhere," said Peter Carr, the assistant district attorney who handled the case of Mr. Wright, who was accused of raping and killing a 77-year-old woman. The defendant did not request testing until 2005, three years after the statute was passed, Mr. Carr said, and in his view there was no possibility that the test would show innocence.
"There's also the idea that you want finality for the victim's sake," Mr. Carr said. "If someone else's semen was found at the crime scene, we'd have to talk to the victim's family about whether the victim was sexually active."
Awww, my heart bleeds. Those poor prosecutors might have to have an uncomfortable conversation if an innocent man is set free. Yeah, you're right, we should just let innocent men languish for the rest of their lives in prison so you can avoid any anxiety that might result from such a tragic situation. Because the justice system is all about your feelings, not about actual guilt or innocence.
Carr should be fired just for making such an idiotic argument and proving that he doesn't give a damn whether the people he convicts actually did anything wrong.
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And people wonder why I'm reflexively distrustful of DAs. Of course, that might also have a lot do that I'm from Texas, and the Houston area in particular, so we're all more than familiar with horrifying systemic malfeasance.
Who doesn't? But I would think that 'finality' would include jailing the right person.
What scum.
Posted by: Bachalon | May 19, 2009 9:45 AM
As I have commented previously on this blog when this subject has come up, the real reason that prosecutors oppose DNA tests after conviction is the fear that the publicity from post conviction exonerations will make it more difficult for them to obtain convictions in the future. This is particularly true in death penalty cases where prosecutors fear that such publicity will cause jurors to avoid giving the death penalty, in jurisdictions where the decision is made by a jury, for fear that an innocent person may be executed.
IMHO, this trepidation on the part of prosecutors is quite understandable, even if it is totally immoral.
Posted by: SLC | May 19, 2009 9:48 AM
Bachalon, you don't get it. They wouldn't be jailed if they weren't guilty. /snark.
Posted by: James Hanley | May 19, 2009 9:49 AM
James, I'll be sure to let Nick Yarris and Wilton Dedge know. :-P
Seriously though, how do some of those people get re-elected?
Posted by: Bachalon | May 19, 2009 10:14 AM
This fits right into the mindset of some of my students that I mentioned in the Meese thread. "Obviously they wouldn't have been charged if they weren't guilty of something, and they wouldn't have been convicted if they weren't guilty, so why let them appeal?"
When I pointed out cases where polices, DAs, and AGs had suppressed evidence one of them asked me why I hate the police.
Scary mindset...
Posted by: dogmeatib | May 19, 2009 10:26 AM
@SLC,
In my case, that's exactly what's happened. I have always been (and still am) in favor of the death penalty in principle, under the right circumstances. But over the past ~ 10 years, I have come to strongly oppose it in practice, precisely because there are WAY too many cases of innocent people being falsely convicted for crimes like rape, murder, etc., where DNA evidence has subsequently exonerated them.
I accept that false convictions are unavoidable. I would never fault police or prosecutors for a false conviction achieved in 'good faith.' What I won't accept is a system which refuses to do its reasonable best to minimize and correct mistakes. Allowing the death penalty in such a system is unacceptable.
Posted by: qetzal | May 19, 2009 10:36 AM
"When I pointed out cases where polices, DAs, and AGs had suppressed evidence one of them asked me why I hate the police."
Because they suppress evidence?
Posted by: Captain Mike | May 19, 2009 10:46 AM
Words fail me.
Posted by: Dr X | May 19, 2009 11:14 AM
As a geneticist, I thought that DNA evidence would bring objectivity to the courtroom, but I was mistaken. I have a friend in the DNA forensics industry who told me a story that showed me that courts are not necessarily interested in the truth. My friend's DNA forensics company was hired to test DNA samples for the defense in a case. The DNA evidence showed that the defendent's DNA sample was found at the crime scene. The DNA company was immediately fired. In this instance, the defense was trying to avoid the DNA evidence unlike the DAs discussed above. Fortunately, the prosecutors in the case hired the DNA forensics company for their side. This suggests to me that there should be an independent office of DNA testing that will handle any DNA testing for a case outside of the DAs or defense attorney's offices. The testing should be done if possible in any case where hair or blood samples are found at the crime scene. One might think that this is an added expense to the taxpayer, but in the long run putting the correct people in jail will save more money from not having to revisit particular cases a second time.
As a side note, I find it funny that juries want DNA evidence to be presented in trials, the so-called CSI effect. This evidence has evolutionary thinking as its theoretical underpinning, yet we still debate teaching evolution being taught in the classroom.
Posted by: DobyGS | May 19, 2009 11:34 AM
As a geneticist, I thought that DNA evidence would bring objectivity to the courtroom, but I was mistaken. I have a friend in the DNA forensics industry who told me a story that showed me that courts are not necessarily interested in the truth. My friend's DNA forensics company was hired to test DNA samples for the defense in a case. The DNA evidence showed that the defendent's DNA sample was found at the crime scene. The DNA company was immediately fired. In this instance, the defense was trying to avoid the DNA evidence unlike the DAs discussed above. Fortunately, the prosecutors in the case hired the DNA forensics company for their side. This suggests to me that there should be an independent office of DNA testing that will handle any DNA testing for a case outside of the DAs or defense attorney's offices. The testing should be done if possible in any case where hair or blood samples are found at the crime scene. One might think that this is an added expense to the taxpayer, but in the long run putting the correct people in jail will save more money from not having to revisit particular cases a second time.
As a side note, I find it funny that juries want DNA evidence to be presented in trials, the so-called CSI effect. This evidence has evolutionary thinking as its theoretical underpinning, yet we still debate teaching evolution being taught in the classroom.
Posted by: DobyGS | May 19, 2009 11:38 AM
Maybe I've got this wrong and someone with more legal knowledge can correct me, but I thought in our adversarial system it was the prosecution's job to challenge/argue against defense testimony and evidence. Its the judges job to decide whether that argument holds water. If some transparently bogus prosecutorial argument is allowed to stop the consideration of DNA evidence, isn't that more of a comment on the judge's competence and ethics, rather than the prosecutor's?
Posted by: eric | May 19, 2009 11:41 AM
SLC said:
"the real reason that prosecutors oppose DNA tests after conviction is the fear that the publicity from post conviction exonerations will make it more difficult for them to obtain convictions in the future."
I think I might replace 'convictions in the future' with 'higher office'.
Is there any other municipal position seen as a stepping stone to political position so much as the DA? And all too often that means a need for a sterling conviction rate.
Which means that all too often all they want is a conviction, not justice. If a DA can make a case that will convince a jury, that is all he needs, not any kind of certainty that he has the guilty perpetrator.
This is why they don't want to allow DNA testing to exonerate the innocent. They know damn well that it WILL exonerate the innocent.
If they had the right guy in prison 100% of the time, they would have absolutely nothing to fear from the test, and the results would give that closure to the victim's family that these DA's are spouting off about.
Posted by: Gingerbaker | May 19, 2009 11:53 AM
If the reluctance to use DNA tests stems from concern about not being able to secure death penalty convictions, the solution seems pretty obvious to me: pass laws requiring DNA evidence for death penalty convictions.
After all, the death penalty should only be used in airtight cases in the first place, and this would create a pretty good incentive for prosecutors to want to review DNA evidence.
Posted by: Dan L. | May 19, 2009 11:59 AM
qetzal: Interesting, I feel the same way. Most of the arguments I've ehard against the death penalty seemed to me to be little more than sentimental drivel; however, the possibility of wrongful conviction worried me, and after learning how common it is and how conducive to it the behaviour of law enforcement officers is, I have come to be steadfastly opposed to it.
Posted by: Valhar2000 | May 19, 2009 12:15 PM
That's exactly the problem, of course. Their careers are advanced through successful convictions, which is only a proxy measure for achieving justice. Everyone judges the prosecutor by his conviction count, so he's not likely to warm up to anything that might reduce his tally.
Posted by: Scott Hanley | May 19, 2009 12:15 PM
Scott Hanley: Interesting, I feel differently. Most of the arguments I've heard for the death penalty seemed to me to be little more than emotional drivel...
Anyway, this is just another demonstration that the system is screwed up, too many self-serving psychos looking for higher office using the position of DA as a stepping stone rather than doing the job properly.
Posted by: Ramel | May 19, 2009 12:31 PM
Oops, quoted the worng person, I ment Valhar2000....
Posted by: Ramel | May 19, 2009 12:34 PM
Ramel
We agree,I have yet to see a cogent defense of the death penalty. There is no gain to society, and the fact that some victims or survivors get a kick out of seeing someone being killed seems a meagre defence for such a medieval practice to continue.
Posted by: Soren | May 19, 2009 1:51 PM
Gingerbaker: Indeed, and this desire for convictions in furtherance of their career corrupts prosecutorial ethics in other ways as well. For instance, DA's will often discourage local police departments from bringing "minor" violations such as assault and domestic violence to court simply because such cases can be both murkier and less likely to garner media attention. The irony is, of course, that in such cases quick and thorough investigation is precisely what you need to insure a solid case, an easy conviction, and a justice system society trusts. A person who sees an assailant escape punishment simply because detectives and DA's aren't interested in "small fry" is much less likely to trust police and the justice system in the future.
Posted by: Julian | May 19, 2009 2:35 PM
In all fairness, it's obvious that assistant DA Carr was talking about the discomfort that the victim's family would feel about having a closed case reopened, not the feelings of the "poor prosecutors." His argument is already weak enough as it is, this strawman version of it is unnecessary.
Posted by: Michael Hoaglin | May 19, 2009 2:36 PM
Michael Hoaglin:
Yes, but to revisit Bachalon's point, the victim's comfort comes from thinking the right person is in jail. If he isn't, they shouldn't be.
Posted by: eric | May 19, 2009 3:53 PM
To an extent, I agree with the prosecutor's argument. We can't bring new trials every time a new piece of evidence surfaces. There must be finality at some point.
However, DNA is unlike other evidence. DNA evidence is, for all practical purposes, definitive. For example, in a rape case, if the DNA of the accused matches the DNA of the semen, the semen was produced by the accused beyond all reasonable doubt (assuming he doesn't have an identical twin). Therefore, there should be an exemption for DNA evidence--if it exists, the accused should have access to it at any time after conviction.
With regard to almost all other evidence, however, the evidence simply moves the scale a little bit in either direction. We simply can't revisit a conviction because new evidence arises. To revisit a guilty verdict that was arrived at by the unanimous consideration of twelve jurors, the evidence must cast serious doubt about whether the accused is actually innocent.
The next question is whether there should be a different standard when the punishment is death. Should society require a new trial in cases where the accused has been sentenced to death and new evidence arises that casts some doubt about whether the accused is actually guilty?
Posted by: David C. Brayton | May 19, 2009 4:42 PM
The law has been kicked around alot lately so so DAs and Police & judges looking at political advancement are very unhappy with overturned cases. BUT...
ANY DA, cop, or judge that does not allow any and ALL evidence to be presented (for or against) is a fraud and a crook!!!! period. And should be procecuted as such.
Will this lower inocents going to jail...hopefully. Will this allow some guilty to go free? Probably not as many that are allowed free by the political buddy system or by so called maranda snafus, or by illigal searches BS.
Posted by: CybrgnX | May 19, 2009 7:31 PM
So much for "though the heavens fall".
Posted by: CW | May 19, 2009 11:08 PM
Because the justice system is all about your feelings, not about actual guilt or innocence.
Actually Ed, as a disillusioned former prosecutor myself, I submit that the justice system is about plea agreements that are based on strategic considerations other than guilt or innocence (e.g. possible time in prison if convicted, strength of state's evidence, cost of defense, etc.).
Posted by: Richard Peters | May 20, 2009 12:30 AM
CybrgnX:
That would allow the defense to flood the courtroom with irrelevant and distracting trivia - leading to South Park's "Chewbacca defense" and more of your tax money wasted on 5-minute cases that were dragged out for years. I think judges have an important role as gatekeepers to keep the irrelevancies out and keep trials focused on the issue. Having said that, I would probably agree with most posters here that "it wasn't available X weeks ago" is a lousy reason to disallow relevant, timely, and credible evidence.
Posted by: eric | May 20, 2009 8:41 AM
"So in these 225 cases, the prosecutors objected to tests that proved the innocence of the man they'd convicted for the crime. That's more than 40 men who would still be in prison even though they were innocent if those prosecutors had succeeded in their arguments."
Not only were innocent men being held in prison longer than necessary, but — presumptively at least — during that same period men guilty of those crimes were walking free.
I fail to see how either the prosecutors or the victims' families can take comfort from that fact.
Posted by: Chris Winter | May 20, 2009 6:09 PM
One also has to understand that many prosecutors believe that, even if a particular defendant is, in fact, innocent of a particular crime, he is probably guilty of other crimes for which there was insufficient evidence to present a charge or for which he was not a suspect.
Posted by: SLC | May 20, 2009 7:24 PM
SLC:
"One also has to understand that many prosecutors believe that, even if a particular defendant is, in fact, innocent of a particular crime, he is probably guilty of other crimes for which there was insufficient evidence to present a charge or for which he was not a suspect."
What do you suppose the overlap is between those folks and the ones who think torture is okay in "some" situations?
Posted by: democommie | May 20, 2009 9:39 PM
@cw #24
I submit these facts for your consideration: trials are complex and expensive; witnesses are substantially inconvenienced; memories fade as time marches on; witnesses move, get sick and die; jurors have lives and suffer substantial inconvenience.
So, are you suggesting that every time a new piece of evidence arises, that a trial should be re-held regardless of the alleged crime (i.e. petty theft or murder) and regardless of whether the accused has served her time?
Posted by: David C. Brayton | May 21, 2009 1:43 PM