DNA and Convicted Prisoners

DNA and Convicted Prisoners.

DNA or deoxyribonucleic
acid is the genetic coding in cells specific to an individual. Bodily fluids, skin, bones or blood
samples can be tested for DNA, which could show if someone was at the scene or
connected to a crime. The use of
forensic science as a tool in the search for truth allows justice to be done
not only by apprehending the guilty, but also by freeing the innocent. The ability of DNA testing to precisely
identify the perpetrator has revolutionized the criminal justice system over
the past decade. An unforeseen
consequence of DNA testing is that closed criminal cases are being re-opened because
post-conviction DNA testing is occurring and exonerating defendants wrongfully
convicted and already serving a sentence for their crimes.

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American criminal justice system faces a dilemma. On one hand, the criminal justice system is in search for the
truth. On the other hand, the
decisiveness of judgments, especially after the appeals process is exhausted,
is sacrosanct. Yet, post-conviction DNA
testing has shown that juries have been wrong in sexual assault and homicide
cases where they relied upon either mistaken eyewitness identification or poor
forensic work and convicted innocent defendants. Post-conviction DNA testing has freed more than seventy
prisoners, including eight from death rows, and a national debate is raging
over how widely to make the technology available (Va Judge, 2000). It is
not known how momentous a problem this is, but pretrial forensic DNA testing in
the FBI laboratory has excluded the primary suspect in 25% of the cases since
1989. Also, 8 of the 87 people taken
off of death row since the reinstitution of the death penalty in 1976 have been
exonerated through post-conviction DNA testing.

A well-publicized post-conviction DNA case is
that of Gary Dotson of Chicago, Illinois.

In 1979, Dotson was convicted of aggravated kidnapping and rape and
sentenced to not less than 25 years and not more than 50 years. The evidence against him at trial included
both eyewitness testimony and traditional forensic methods, two types of
evidence most likely to be turned fallacious by DNA evidence. The victim had identified Dotson. The traditional forensic methods used were
blood group typing and pubic hair comparison, methods that do not discriminate
as well as DNA evidence. In 1985 the
victim recanted her testimony, but the original judged denied Dotsons motion
for a new trial because the victims recantation was not as believable as her
original testimony. Twice Dotson was
granted parole by the governor and each time parole was invalidated due to bad
behavior. When Dotson was back in
prison in 1988, his attorney had DNA tests, which were not accessible at the
time of the original trial, conducted on the victims underwear. The test results showed that the semen on
the victims underwear could not have come from Dotson, but could have come
from the victims premarital relations.

Dotsons conviction was overturned in 1989 after he had served eight
years in prison.

The pro bono
Innocence Project at Benjamin Cardozo Law School in New York City is the group
best known for exonerating prisoners with post-conviction DNA testing. As of
1999, the Innocence Project has exonerated 37 prisoners, some of them on death
row. The tension between a search for
the truth and the finality of judgments is evident in how different states
handle these requests for post-conviction DNA testing. The majority of states have not been
proactive in considering the issues raised by post-conviction DNA testing even
though 33 states have statutes of limitation of six months or less for
introducing new evidence. In most
states, a convicted prisoner has no right to obtain tests that might prove his
innocence. Only New York and Illinois
have statutes that allow for post-conviction DNA testing regardless of the
statute of limitation on newly discovered evidence or the ability of the
convicted to pay for the testing.

These laws allow a prisoner to obtain DNA testing if the results might
prove his innocence on evidence that was gathered at the time of trial, but DNA
testing was not available. Not
surprisingly, these two states have the highest number of reversed convictions
based on genetic evidence: fourteen in Illinois, seven in New York. Other states that have post-conviction DNA
exonerations are Alabama, California, Connecticut, Georgia, Indiana, Kansas,
Maryland, Massachusetts, Missouri, New Jersey, North Carolina, Ohio, Oklahoma,
Pennsylvania, South Carolina, Texas, Virginia, West Virginia, and
Wisconsin. In Actual Innocence: Five
Days to Execution, and Other Dispatches From the Wrongly Convicted, the
authors urge national and state legislation that would allow post-conviction
DNA testing if it could establish a reasonable probability that [the] inmate
was wrongfully convicted. (Beaird, 2000)
post-conviction DNA testing in Illinois is a two-part process. The statute establishes a right to a
post-trial petition for DNA (or fingerprint) testing of evidence collected
before trial but not tested due to unavailability of the test. If the court grants the motion and the test
results are favorable, the next step is a petition for a new trial based on new
evidence. At this point, the court
considers the DNA evidence as it would any other request for a new trial based
on newly discovered evidence.

In most
states the authority to grant post-conviction DNA testing is at the discretion
of the prosecutor, the courts, or the governor because of statutes of
limitation barring new evidence.For example, in Virginia, new evidence must be presented
within 21 days of conviction, and the only possibility of post-conviction
relief (via executive pardon) is at the discretion of the governor. The concern here, and in other states that
place the authority of post-conviction DNA testing or exoneration in the hands
of an elected official, is that political considerations might determine
whether the testing is done or whether an exculpatory results lead to
exoneration. It may also be unfair to
have DNA testing at the discretion of the prosecutor and the courts. Contrary to this, recently in Virginia, a
federal judge ruled that inmates who claim they were wrongfully convicted have
a constitutional right to request DNA testing that might prove their innocence
(Va Judge).
Texas, two state senators recently proposed a DNA bill to legislators. It
might not be long before more Texas inmates have access to DNA testing. The bill proposes giving inmates state paid
DNA testing as long as certain requirements are met such as the identity of the
suspect was an issue at trial. And
also, if a court determines that DNA testing would have made a difference prior
to an inmate’s conviction (Shannon, 2001).

Similarly, in Maryland law enforcement officials want to collect the
genetic fingerprints of almost every violent felon in the state for a database
that could help identify suspects from traces of physical evidence found at
scenes of crime (Argetsinger and Whitlock, 1999).
Sometimes, after the
state offers to pay for DNA testing for eligible death row inmates, none or
very few of them facing the death penalty apply for the tests. Prosecutors claim there just are not that many prisoners who qualify to have their
cases re-examined. In some cases, there
is no DNA to test, but in many others the prisoners never claimed
innocence. Prosecutors examine case
files and look for a continuous chain of claims of innocence. If a case looks promising, prosecutors
contact the prisoner’s defense attorney and ask if a DNA test should be
taken. Some prisoners may refuse
because the test would prove their guilt or link them to another crime. Prosecutors say the dearth of applicants
applying for the test reflects the strength of their guilty convictions. But defense attorneys state that the rules
for the tests heavily favor prosecutors and limit eligibility to a handful of
prisoners. Prosecutors do have the
final say on which applicants are accepted and they are obviously not on the
side of the convicts.

Since many convicts have not taken on the
offer of having DNA testing done, it may speak to the strength of the
convictions that are on the books. The
states that do not allow free DNA testing for convicts also make few inmates eligible
to apply for the test. Applications are
mostly limited to inmates for whom DNA tests were not available or not
admissible during their trials.

Original samples of material to be tested must have been kept secure
over the years and not tainted.
In Massachusetts, a group of prisoners was suing the state in 1998 over a new
law requiring most
inmates to give blood for a DNA data base.

The inmates said the law was unconstitutional. The law required anyone convicted of any of 33 crimes–ranging
from prostitution to murder–to give a blood sample. The group of inmates who were suing the state were convicted
killers serving life sentences.
Like New York and Illinois, all other
states must incorporate free DNA testing to allow a just system of law even
though the test is expensive. Only the
convicts who are guilty of the crime may resist DNA testing. In the states that do not have free DNA
testing, those who were, for instance, present on the scene of the crime but
not guilty, may be stopped by their attorneys from having the test as the
prosecutors may use the evidence against the convicts and justice may be
stopped. After all in such states, the
prosecutors have the final say in whether the test is done. An innocent prisoner may not resist this
test. Perhaps the guilty convicts
resist as they assume that the DNA testing would be useless. Furthermore, a guilty convict may feel that
he could be executed due to further evidence or his sentence may be

1. Argetsinger, Amy and Whitlock, Craig. (1999. May). Maryland
Seeks DNA of Criminals. Washington Post. Retrieved May 26, 2001 from the World
Wide Web:
2. Beaird, Joe. (2000. February). Actual Innocence: Making the
Case for DNA. Prominent Attorneys Argue for More Scientific Evidence. Retrieved
May 26, 2001 from the World Wide Web:
3. Shannon, Kelley. (2001. January). Senate bill would give
prisoners DNA testing access. Retrieved May 26, 2001 from the World Wide Web:
4. Va Judge. (2000. September). Va Judge: Inmates Can Get
DNA Test. Retrieved May 26, 2001 from the World Wide Web:


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