Obstruction of Justice

[Puppycow]

Prosecutors Block Access to DNA Testing for Inmates (http://www.nytimes.com/2009/05/18/us/18dna.html?hp)

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.
. . .
In Illinois, prosecutors have opposed a DNA test for Johnnie Lee Savory, convicted of committing a double murder when he was 14, on the grounds that a jury was convinced of his guilt without DNA and that the 175 convicts already exonerated by DNA were “statistically insignificant.”

Eyewitness identification (http://en.wikipedia.org/wiki/Eyewitness_identification)
Eyewitness identification evidence is the leading cause of wrongful conviction in the United States. Of the more than 200 people exonerated by way of DNA evidence in the US, over 75% were wrongfully convicted on the basis of erroneous eyewitness identification evidence.[1] In England, the Criminal Law Review Committee, writing in 1971, stated that cases of mistaken identification "constitute by far the greatest cause of actual or possible wrong convictions".[2] Yet despite substantial anecdotal and scientific support for the proposition that eyewitness testimony is often unreliable, it is held in high regard by jurors in criminal trials, even when "far outweighed by evidence of innocence."[3] In the words of former US Supreme Court Justice William J. Brennan, there is "nothing more convincing [to a jury] than a live human being who takes the stand, points a finger at the defendant, and says 'That's the one!'"[4]
You can't double-check, because we're convinced that we've got the right guy. This is not just stupid, but evil.
:bwall

[INRM]

I don't get it. If they're so sure the guy's guilty, why not just pay for the stupid test.

If he's guilty the test will conclude he did it and it will be case closed, unless they're afraid they actually convicted an innocent person and don't want to deal with the "embarrassment"

[BonkingBear]

Prosecutors Block Access to DNA Testing for Inmates (http://www.nytimes.com/2009/05/18/us/18dna.html?hp)



Eyewitness identification (http://en.wikipedia.org/wiki/Eyewitness_identification)

You can't double-check, because we're convinced that we've got the right guy. This is not just stupid, but evil.
:bwall

Without knowing all the facts in this case - it's a bit pointless to speculate whether they should or should not do a dna test.

[drkitten]

I don't get it. If they're so sure the guy's guilty, why not just pay for the stupid test.

Because if he actually is guilty, the test is a WOMBAT (Waste Of Money, Brains, And Time).

[That_guy]

Without knowing all the facts in this case - it's a bit pointless to speculate whether they should or should not do a dna test.

They should always do a DNA test.

[drkitten]

They should always do a DNA test.

Because in your universe, neither money nor lab time are in limited supply?

I wish I lived in your universe.
(http://www.chron.com/disp/story.mpl/special/crimelab/3229431.html)


When Aldo Penaflor raped a 9-year-old girl in Houston's East End nearly four years ago, he left behind a telltale piece of evidence: his DNA.

Soon afterward, an unrelated case landed Penaflor's name and genetic code on file in the FBI's database of 1.6 million criminal profiles, the place police can go to match known criminals with unsolved crimes.

Yet Penaflor remained free for a year and a half because of delays in getting the evidence in his case tested and checked against the massive national database. During that time, prosecutors alleged during his trial last month, he abducted and raped a woman, an 18-year-old who was walking home from school.

[Gord_in_Toronto]

Because in your universe, neither money nor lab time are in limited supply?

I wish I lived in your universe.
(http://www.chron.com/disp/story.mpl/special/crimelab/3229431.html)

I honestly don't see why two wrongs equal a right.

I suppose there are DNA tests and DNA tests but a quick Google shows tests at accredited labs from $80 US up. Since there is a chance that this person may be innocent, does anyone think that it is too much to pay. Let him or his family or anyone pay for it. If it turns out that it proves he is innocent, is this not justice done? :boggled:

[Beerina]

You can't double-check, because we're convinced that we've got the right guy. This is not just stupid, but evil.
:bwall


Correct, unfortunately. :(



The Supreme Court has pointed out that a "normal" conviction that doesn't use DNA testing is sufficient for everything up to and including capital cases*, but that's a far cry from actively opposing DNA testing to prevent overturning a conviction.






* Which, by the way, is the correct answer, since the validity is based on whether a jury convicts or not. Note this says nothing about a judge allowing appeals, or a DNA test at the request of the defense after the trial, or similar issues. In any case, we dare not let the government overrule jury declarations of innocence, though overruling jury declarations of guilt are fine.

[Beerina]

I don't get it. If they're so sure the guy's guilty, why not just pay for the stupid test.

If he's guilty the test will conclude he did it and it will be case closed, unless they're afraid they actually convicted an innocent person and don't want to deal with the "embarrassment"



It was assumed in the '80s as all this DNA testing was gaining steam, that there'd be a huge flood of DNA freeings, from death row and otherwise, since common sense* told people that wrongful convictions were rampant. In fact, there were very few defense requests for DNA testing from post-conviction inmates (where DNA was available.) The reason was obvious: Almost all convictions were of actually guilty people, and the inmates knew the DNA test would come back positive.




* Where we define common sense as the disasterbating fantasies of people who find a little rush of purpose and feelings of goodness in their lives by believing themselves defenders against such monstrous and pervasive things.

In any case, 175 may very well be statistically vanishing when compared to hundreds of thousands or millions of cases. Still, to oppose this, feigning you're saving dollars for the constituency (what a swell guy!) and, oh, coincidentally, you're trying to prevent embarrassment for a wrongful conviction. No, that's not really why. I"m really about saving a tiny sum of money. By the way, 175 is statistically insignificant vs. the prison population as a whole, but not vs. prisoners who actually want DNA testing. Remember nobody, especially capital cases, want to be tested if they actually did it. So the correct statistics to use are not 175 vs. the prison population as a whole, but 175 vs. the number who requested as a whole, and the number who requested, got tested, and failed.

I'm willing to bet 175 is pretty damned close to the number who requested DNA testing, if not identical to it.

Hence it's statistically almost a certitude it will come back to exonerate him.




So the long and short of it is, either way, the officials are being disingenuous at best, and deserve to replace him in jail at worst. And in either case, deserve to lose their jobs. The population should see to it at the next election.

[GreNME]

Because if he actually is guilty, the test is a WOMBAT (Waste Of Money, Brains, And Time).

This is absolutely false. If he's guilty, then it means they've done due diligence in maintaining that he is guilty beyond reasonable doubt. That is the onus of criminal convictions in the first place.

[drkitten]

This is absolutely false. If he's guilty, then it means they've done due diligence in maintaining that he is guilty beyond reasonable doubt. That is the onus of criminal convictions in the first place.

This is word salad.

If the convicted defendant is guilty -- i.e., he actually committed the crime for which he has been convicted and sentenced -- then the only way for the DNA test to have any effect at all is for it to erroneously clear him, a clear miscarriage of justice. Since the whole advantage of DNA testing is its extremely low error rate, the chances of this happening are remote, and DNA testing is a WOMBAT.

If the convicted defendant did not actually commit the crime for which he has been convicted and sentence, he is not guilty. (And, in fact, "actual innocence" is the term used for this particular grounds for appeal.) Just because a court has pronounced you guilty doesn't mean that you are. And, of course if this is the case, then a DNA test is appropriate to clear the convicted defendant.

And it makes sense that in cases where the evidence is questionable, DNA testing should be made available. But that's not what INRM said. He said that the cops should offer [and pay for] DNA testing specifically in cases where "they're so sure the guy's guilty." Those are, at least in theory, the cases where new DNA testing is least appropriate.

[drkitten]

I honestly don't see why two wrongs equal a right.

They don't. But refusing a DNA test absent compelling grounds to demand it is hardly a wrong.


I suppose there are DNA tests and DNA tests but a quick Google shows tests at accredited labs from $80 US up.

I'm not sure what "accredited" means in this instance,.... but I'm willing to bet large sums of money that it's not good enough for courts. The forensic standards for admissible evidence is quite high, and therefore quite costly. It's like the difference between the $5 home pregnancy tests with an 80% accuracy rate and the one your ob/gyn will give you to confirm that has a 99.9% accuracy rate, but costs several hundred dollars.


Since there is a chance that this person may be innocent, does anyone think that it is too much to pay.

Who's going to do the test? Are you going to let other criminals walk free while you deal with the backlog of spurious cases? Re-read the example I posted. It took a year and a half to get the test done. How much are you willing to contribute to that problem?

[That_guy]

Because in your universe, neither money nor lab time are in limited supply?

I wish I lived in your universe.
(http://www.chron.com/disp/story.mpl/special/crimelab/3229431.html)

I'll amend my statement. If there's a chance DNA evidence could exonerate a defendant, and the plea is "not guilty," a DNA test should be performed. Wouldn't you want that if you were accused of a crime?

[GreNME]

This is word salad.

If the convicted defendant is guilty -- i.e., he actually committed the crime for which he has been convicted and sentenced -- then the only way for the DNA test to have any effect at all is for it to erroneously clear him, a clear miscarriage of justice. Since the whole advantage of DNA testing is its extremely low error rate, the chances of this happening are remote, and DNA testing is a WOMBAT.

If the convicted defendant did not actually commit the crime for which he has been convicted and sentence, he is not guilty. (And, in fact, "actual innocence" is the term used for this particular grounds for appeal.) Just because a court has pronounced you guilty doesn't mean that you are. And, of course if this is the case, then a DNA test is appropriate to clear the convicted defendant.

And it makes sense that in cases where the evidence is questionable, DNA testing should be made available. But that's not what INRM said. He said that the cops should offer [and pay for] DNA testing specifically in cases where "they're so sure the guy's guilty." Those are, at least in theory, the cases where new DNA testing is least appropriate.

I don't care what INRM said. In cases where the only evidence is circumstantial and based on eyewitness testimony, DNA evidence should be mandatory. The number of cases being turned around here in Texas alone should be enough to show just how flimsy testimony is compared to actual evidence. There's no word salad about it: if there's a chance the guy is not guilty, then it should be pursued to avoid a false conviction.

[drkitten]

In cases where the only evidence is circumstantial and based on eyewitness testimony, DNA evidence should be mandatory.

Well, I'll be happy to let you pay for it, then.

The number of cases being turned around here in Texas alone should be enough to show just how flimsy testimony is compared to actual evidence.

How many "cases" are being turned around in Texas? (The numbers I see are about 25, over the past ten years; feel free to correct me if I'm grossly inaccurate.)

Bear in mind that that is out of a total prison population per year of about 160,000. This suggest that fewer than 0.0156% the total population of prisoners in the past year have been overturned on DNA evidence, since many prisoners will have served out their sentences and been released.

Since forensic DNA tests cost about a grand each, you want to spend something like $160 million to release 25 prisoners. That works out to, what, fifty million dollars per false conviction?

[drkitten]

I'll amend my statement. If there's a chance DNA evidence could exonerate a defendant, and the plea is "not guilty," a DNA test should be performed. Wouldn't you want that if you were accused of a crime?

I'll not amend mine. Apparently in your world neither time nor money are in limited supply.

[That_guy]

I'll not amend mine. Apparently in your world neither time nor money are in limited supply.

Well, if DNA testing shouldn't be used to clear someone falsely accused of a crime, am I understanding correctly that you only support such testing as a means to seal a conviction?

[Bikewer]

In cases like this where DNA evidence from the original case is available, and the culpatory evidence is essentially that of eyewitnesses, the test should be done.

NPR's Talk Of The Nation recently profiled a similar case, the convicted individual had been identified as the rapist by the victim herself, who not only assisted in preparing a composite drawing, but picked the suspect out of a lineup.
She was wrong.
The actual rapist, imprisoned in the same facility as the wrongly-convicted suspect, did in fact look quite a bit like him. It took several years working through the Project Innocence folks to not only prove the fellow innocent but to convict the actual rapist.

Now, the freed suspect has established a project with the victim in the case to explore these sorts of cases.

As one working in law enforcement for many years, it's painfully clear that the once gold-standard of eyewitness testimony is often unreliable.

Alas, prosecutors are often unwilling to re-visit cases. Money is a concern, of course, but often the actual expense is minimal. More often it's that these overturned cases make the prosecutors look bad. In most venues, prosecutors are in an elected-to-office scenario, and having a good conviction ratio can be used when angling for a more prestigious elected position.

[drkitten]

Well, if DNA testing shouldn't be used to clear someone falsely accused of a crime, am I understanding correctly that you only support such testing as a means to seal a conviction?

Not at all. DNA testing should be available if it's likely to be useful. But to claim that "If there's a chance DNA evidence could exonerate a defendant, and the plea is "not guilty," a DNA test should be performed" is tantamount to saying that DNA testing should always be performed, regardless of the amount of other evidence available, and (equivalently) that conviction should be impossible without DNA evidence.

That's a preposterous bar to set.

If I find your tire tracks outside the motel room where I find the body of your estranged spouse, with your footprints in her blood and your fingerprints on the murder weapon, and I have three eyewitnesses who saw you enter the room with the crowbar and heard her scream, I shouldn't need to spend another $1000 and year and a half to convict you of her murder.

And you shouldn't be able to have your lawyer tie the appeals court in knots about how justice has been denied to you.

It's a little different, of course, if I didn't have the physical evidence, or if all three witnesses later recanted and said I had bribed them into testifying against you. Eyewitness testimony is unreliable. But that doesn't mean that DNA should ever be required.

[drkitten]

In cases like this where DNA evidence from the original case is available, and the culpatory evidence is essentially that of eyewitnesses, the test should be done.

Now that I can agree with.

I think there's a very good chance that in this case, the DNA will exonerate him, enough to justify spending a grand.

[GreNME]

Well, I'll be happy to let you pay for it, then.

We already do. And it's a hell of a lot cheaper to drop the grand for someone who is not guilty than spend the hundreds of thousands to pay for them to stay in jail from 10 years to life. Not to mention the money that winds up being paid to people who are exonerated, usually a settlement for the time they spent in prison and often a stipend for some designated time afterward. You talk about costs, but you're completely ignoring the outstanding costs of keeping innocent people in jail for long stretches of time, even when they're later found to be innocent.

Since forensic DNA tests cost about a grand each, you want to spend something like $160 million to release 25 prisoners. That works out to, what, fifty million dollars per false conviction?

The irony here is that you accuse me of "word salad" and you go and make up your own. Not every case is going to require DNA tests. Rapes and some murder cases would be the ones most often applicable for DNA testing. But the costs of trying and convicting someone who isn't guilty is a far greater WOMBAT than the grand it costs to get the DNA test to be sure.

Which is a greater waste of time: $1000 in an applicable case to certify guilt or innocence, or finding out 20 years later that the wrong guy was put away and having to repay the guy for all of those years of incarceration?

[Kestrel]

Well, I'll be happy to let you pay for it, then.

How many "cases" are being turned around in Texas? (The numbers I see are about 25, over the past ten years; feel free to correct me if I'm grossly inaccurate.)

Bear in mind that that is out of a total prison population per year of about 160,000. This suggest that fewer than 0.0156% the total population of prisoners in the past year have been overturned on DNA evidence, since many prisoners will have served out their sentences and been released.

Since forensic DNA tests cost about a grand each, you want to spend something like $160 million to release 25 prisoners. That works out to, what, fifty million dollars per false conviction?

DNA evidence is only collected in a small fraction of crimes, mostly cases of rape or murder. Calculating a cost based on testing the entire prison population is highly misleading.

[Gord_in_Toronto]

They don't. But refusing a DNA test absent compelling grounds to demand it is hardly a wrong.

We don't know whether there are compelling grounds in the case but the article makes reference to "a prolonged series of legal appeals". This is a cost too for the state. Maybe the only evidence was eye witness evidence -- the weakest of all.

I'm not sure what "accredited" means in this instance,.... but I'm willing to bet large sums of money that it's not good enough for courts. The forensic standards for admissible evidence is quite high, and therefore quite costly. It's like the difference between the $5 home pregnancy tests with an 80% accuracy rate and the one your ob/gyn will give you to confirm that has a 99.9% accuracy rate, but costs several hundred dollars.Look at http://www.gtldna.com/ to see the accreditations they have. Included is the one from the State of Texas -- "The TXDPS Crime Lab Accreditation Program was created on September 1, 2003. Laboratories performing forensic DNA analysis of criminal evidence must be accredited by DPS in order for that laboratory's results and testimony to be admissible in court or criminal proceedings."

Who's going to do the test? Are you going to let other criminals walk free while you deal with the backlog of spurious cases? Re-read the example I posted. It took a year and a half to get the test done. How much are you willing to contribute to that problem?

The court and legal systems are underfunded and bureaucratic. I am sure that private enterprise can do the analysis job faster. The state can take the next 17.5 months to do the database upload and matching.

[Puppycow]

Because if he actually is guilty, the test is a WOMBAT (Waste Of Money, Brains, And Time).

And if he actually is not guilty, then it is not a waste of time.

[drkitten]

And if he actually is not guilty, then it is not a waste of time.

I agree. But notice INRM's question, to which I responded. "If they're so sure the guy's guilty, why not just pay for the stupid test?"

At some level, we have to assume that the court system is reality-based, or at least reality-influenced. If someone is convicted, that probably means that the evidence for his guilt was strong enough to establish him as guilty "beyond a reasonable doubt," and therefore the chances of him being innocent are very small. If the police and DA are particularly confident of his guilt (beyond what they normally have in a conviction), that should translated to an even higher likelihood of his guilt.

You don't get to tie up the appellate court forever with increasingly silly theories that might clear you, on the off chance that you will get lucky someday. You don't get to tie up the already overworked police labs on the chance that someone might screw up a test or something. The courts are busy and don't have time for such nonsense; they (correctly) guard their docket space from wild-assed guesses and forlorn hopes.

So what's the chance that this will actually clear him? Well, we've already seen (from the article cited in the OP) that this argument is merely one in a "prolonged series of legal appeals." If DNA really is the "magic bullet" that will clear him, why only fire it now? Louisiana passed the law allowing post-conviction DNA testing in 2001. Yet "Mr. Reed has been seeking a DNA test for three years" -- since 2006. What the hell was he doing for the five years before that?

[drkitten]

Look at http://www.gtldna.com/ to see the accreditations they have.


Yeah, thought so.

Look more closely at that site. The $89 special is not legally admissible because it violates the rules for "chain of custody" -- if you want a legally admissible test, it's $230.

And those tests are only for paternity, which is a substantially different test than identity (and much easier). The test is also based on recent samples (you take samples and send them to the lab within days, not within years), which also makes it much easier/cheaper.

[Puppycow]

I agree. But notice INRM's question, to which I responded. "If they're so sure the guy's guilty, why not just pay for the stupid test?"

At some level, we have to assume that the court system is reality-based, or at least reality-influenced. If someone is convicted, that probably means that the evidence for his guilt was strong enough to establish him as guilty "beyond a reasonable doubt," and therefore the chances of him being innocent are very small. If the police and DA are particularly confident of his guilt (beyond what they normally have in a conviction), that should translated to an even higher likelihood of his guilt.

You don't get to tie up the appellate court forever with increasingly silly theories that might clear you, on the off chance that you will get lucky someday. You don't get to tie up the already overworked police labs on the chance that someone might screw up a test or something. The courts are busy and don't have time for such nonsense; they (correctly) guard their docket space from wild-assed guesses and forlorn hopes.

So what's the chance that this will actually clear him? Well, we've already seen (from the article cited in the OP) that this argument is merely one in a "prolonged series of legal appeals." If DNA really is the "magic bullet" that will clear him, why only fire it now? Louisiana passed the law allowing post-conviction DNA testing in 2001. Yet "Mr. Reed has been seeking a DNA test for three years" -- since 2006. What the hell was he doing for the five years before that?

I understand your argument if performing a DNA test is an unreasonable burden or would prevent higher priority work from being done, but here's what the first paragraph of the article said:
In an age of advanced forensic science, the first step toward ending Kenneth Reed’s prolonged series of legal appeals should be simple and quick: a DNA test, for which he has offered to pay, on evidence from the 1991 rape of which he was convicted.

If it's "simple and quick" and he's offering to pay for it, then your argument stops being reasonable, no? Do we or do we not live in "an age of advanced forensic science"?

The other part is: What is the actual motivation of prosecutors at work here? Is it what you say it is, or is it because they want to keep their winning percentage up?

[Finn McR]

Not at all. DNA testing should be available if it's likely to be useful. But to claim that "If there's a chance DNA evidence could exonerate a defendant, and the plea is "not guilty," a DNA test should be performed" is tantamount to saying that DNA testing should always be performed, regardless of the amount of other evidence available, and (equivalently) that conviction should be impossible without DNA evidence.

That's a preposterous bar to set.

If I find your tire tracks outside the motel room where I find the body of your estranged spouse, with your footprints in her blood and your fingerprints on the murder weapon, and I have three eyewitnesses who saw you enter the room with the crowbar and heard her scream, I shouldn't need to spend another $1000 and year and a half to convict you of her murder.

And you shouldn't be able to have your lawyer tie the appeals court in knots about how justice has been denied to you.

It's a little different, of course, if I didn't have the physical evidence, or if all three witnesses later recanted and said I had bribed them into testifying against you. Eyewitness testimony is unreliable. But that doesn't mean that DNA should ever be required.

If there is straw at the scene of the crime and a man was accused of committing it, is it a straw-man argument??

I'm sure that prison stoolies that give evidence for shortened sentences always recant. Eyewitness testimony is always accurate. And public defense counsel is never sub-par in capital cases.

Are there times when DNA testing is overkill? Yes. "He stole my circular saw; we found it in his garage with the serial number intact." Are there times when DNA testing should be required? I think so. "That is definitely the stranger that raped me." Any sort of blanket statement that DNA testing should always be required, or is a useless waste of time and money is not reasonable. If a defendant wants to pay for the test himself/herself, what is the concern? Is DNA testing so unreliable that they will win the testing lottery, being one of the few false negatives to be freed to continue a life of crime??

[gumboot]

Surely any new evidence that might over turn a conviction is the responsibility of a defense lawyer to acquire. It's not the police's job to help support convicted criminals' appeal efforts.

To say that officials are preventing these people having DNA testing is false. They just won't do it on the criminal's behalf. Just like they won't do anything else towards an appeal case on a a criminal's behalf.

[gumboot]

There's one obvious point to make... DNA testing is only useful if you have something to compare it to. I would presume if the police actually recovered the perpetrator's DNA testing their suspects would be par for the course.

This suggests either

A) Police are recovering DNA at the scene of crimes and not testing it, and neither are the Defense (which indicates unfathomable incompetence on both sides)
B) No DNA has been recovered and officials are refusing DNA testing because it would be entirely pointless since there's nothing to compare it to.

[Kestrel]

There's one obvious point to make... DNA testing is only useful if you have something to compare it to. I would presume if the police actually recovered the perpetrator's DNA testing their suspects would be par for the course.

This suggests either

A) Police are recovering DNA at the scene of crimes and not testing it, and neither are the Defense (which indicates unfathomable incompetence on both sides)
B) No DNA has been recovered and officials are refusing DNA testing because it would be entirely pointless since there's nothing to compare it to.

In the case of District Attorney's Office v. Osborne (http://writ.lp.findlaw.com/colb/20081110.html) currently being considered by the Supreme Court, the evidence was collected before accurate DNA testing existed.

What motive would the state of Alaska have to appeal this all the way to the Supreme Court?

[GreNME]

Surely any new evidence that might over turn a conviction is the responsibility of a defense lawyer to acquire. It's not the police's job to help support convicted criminals' appeal efforts.

To say that officials are preventing these people having DNA testing is false. They just won't do it on the criminal's behalf. Just like they won't do anything else towards an appeal case on a a criminal's behalf.

I supposed you missed Puppycow's post (http://forums.randi.org/showpost.php?p=4726942&postcount=27), where he points out that the defense is offering to pay, and the officials are still trying to block it. So calling this a case of the officials preventing people from doing it is quite accurate.

Also:
There's one obvious point to make... DNA testing is only useful if you have something to compare it to. I would presume if the police actually recovered the perpetrator's DNA testing their suspects would be par for the course.

This suggests either

A) Police are recovering DNA at the scene of crimes and not testing it, and neither are the Defense (which indicates unfathomable incompetence on both sides)
B) No DNA has been recovered and officials are refusing DNA testing because it would be entirely pointless since there's nothing to compare it to.

As has been pointed out, you missed "collected material evidence before there was DNA testing of sufficient quality to provide an answer." False dichotomies-- while popular in court arguments-- rarely ever hold water.

[Suddenly]

There's one obvious point to make... DNA testing is only useful if you have something to compare it to. I would presume if the police actually recovered the perpetrator's DNA testing their suspects would be par for the course.

This suggests either

A) Police are recovering DNA at the scene of crimes and not testing it, and neither are the Defense (which indicates unfathomable incompetence on both sides)
B) No DNA has been recovered and officials are refusing DNA testing because it would be entirely pointless since there's nothing to compare it to.

A) Isn't completely implausible and can happen.

B) Is incorrect in that in nearly all of these DNA cases either DNA wasn't in use at all at the time of trial or that advances in DNA technology have made samples untestable at trial now testable.

(Disclaimer: I'm not a neutral observer in this deal as I'm a defense attorney who does a lot of work with DNA in cold cases such as the OP)

In my opinion there are few reasons to deny DNA testing.

The biggest and most common reason is when it is not dispositive. A good example I've run across was in a rape case where the defense wanted to test a sample from a hotel mattress where the rape allegedly occurred. Since the sample's age couldn't be determined with any accuracy, that it was from someone other than the accused would not establish innocence. (In a post-conviction attack the burden of proof shifts to the defendant.)

This factor alone eliminates the vast majority of cases. Most that remain involve rape as your common gunshot murder doesn't usually involve DNA.

The second is that there is staggering evidence. Even tons of eyewitness don't cut it as it isn't that hard to have a mass tainting of eyewitnesses. Same with a confession. I mean something like a clear identification from a video recording, the person caught at the scene next to the body, that sort of thing.

There may be others, but those are the big ones and they eliminate nearly all cases.

[Bikewer]

Suddenly is exactly right; in most cases it's a result of the advancing technology. Tiny samples obtained at a crime scene years ago could not be reliably processed; they can now.
Even if the evidence (say, a bullet with tiny quantities of DNA) has lain in a locker for years, modern testing can recover and analyze it.

DNA is not magic, of course. We only get DNA evidence in a small percentage of crimes.
Interestingly, our university made one of the very first DNA cases in the St. Louis area years ago. A burglar ( a repeat offender ) had broken into a fraternity house through a skylight, cutting himself and leaving blood drops all over.

[Suddenly]

In the case of District Attorney's Office v. Osborne (http://writ.lp.findlaw.com/colb/20081110.html) currently being considered by the Supreme Court, the evidence was collected before accurate DNA testing existed.

What motive would the state of Alaska have to appeal this all the way to the Supreme Court?

Motive? The neutral way of saying it is that some state attorneys are zealous in their advancing what they see as an essential state interest in swift and final justice and so forth.

...or you can say they are punishment happy bloodthirsty geeks with no sense of decency.

My favorite example (http://www.nytimes.com/2003/02/24/us/prosecutors-see-limits-to-doubt-in-capital-cases.html?sec=&spon=&pagewanted=all) of this sort of thing:

Judge Laura Denvir Stith seemed not to believe what she was hearing.

A prosecutor was trying to block a death row inmate from having his conviction reopened on the basis of new evidence, and Judge Stith, of the Missouri Supreme Court, was getting exasperated. ''Are you suggesting,'' she asked the prosecutor, that ''even if we find Mr. Amrine is actually innocent, he should be executed?''

Frank A. Jung, an assistant state attorney general, replied, ''That's correct, your honor.''

That exchange was, legal experts say, unusual only for its frankness.

I'll comment that the assistant AG's position is not novel in the legal community as some see the purpose of the justice system is to allow a "fair" trial rather than reach the right result.

[Suddenly]

It was assumed in the '80s as all this DNA testing was gaining steam, that there'd be a huge flood of DNA freeings, from death row and otherwise, since common sense* told people that wrongful convictions were rampant. In fact, there were very few defense requests for DNA testing from post-conviction inmates (where DNA was available.) The reason was obvious: Almost all convictions were of actually guilty people, and the inmates knew the DNA test would come back positive.


Most convicts I've come across have figured out the game theory flaw in the assumption that they would only ask for DNA if they are not guilty.

Often these convicts are in a position where there is no harm with a DNA test confirming guilt. They are serving long sentences already with little hope of clemency. So why not roll the dice on the one in a million shot that somehow the lab screws it up?

The reason I don't share the concerns over price and backlogging is threefold. First the criteria I set out in an above post about the usefulness of DNA in a cold case. Second is that the test cost is insignificant against both the cost of incarceration and the common interest in accuracy in criminal matters. Third, I can get a private DNA test with maybe a six week turnaround, even if there was some sort of dramatic upswing private labs will react by increasing capacity.

[chulbert]

You can't double-check, because we're convinced that we've got the right guy. This is not just stupid, but evil.

The defendant was found guilty beyond a reasonable doubt. If we allow DNA testing simply to "double check" then we are implicitly stating that the standard of reasonable doubt is insufficient. That seems fraught with unintended legal consequences, but I'm not a lawyer.

[Gord_in_Toronto]

The defendant was found guilty beyond a reasonable doubt. If we allow DNA testing simply to "double check" then we are implicitly stating that the standard of reasonable doubt is insufficient. That seems fraught with unintended legal consequences, but I'm not a lawyer.

Conversely, there have been a number of cases where a person has been "found guilty beyond reasonable doubt" and later DNA evidence has cleared them. Simple justice should preempt concerns about "legal consequences".

[That_guy]

The defendant was found guilty beyond a reasonable doubt. If we allow DNA testing simply to "double check" then we are implicitly stating that the standard of reasonable doubt is insufficient. That seems fraught with unintended legal consequences, but I'm not a lawyer.

So we shouldn't admit that the standard is lacking? My cynicism tells me that juries are often swayed more by the arguments of lawyers than the evidence, and lawyers know this. It would be a much better system, in my opinion, to have the evidence presented to a jury along with the counsel of experts who can explain its significance. Appeals to emotion have no place in a courtroom, but in our current system they can convict a person who's done nothing wrong.

[ponderingturtle]

Now that I can agree with.

I think there's a very good chance that in this case, the DNA will exonerate him, enough to justify spending a grand.

What about the waste of money brains and time? He is just as guilty as he was at the top, but you have suddenly reversed yourself about DNA testing.

[ponderingturtle]

We already do. And it's a hell of a lot cheaper to drop the grand for someone who is not guilty than spend the hundreds of thousands to pay for them to stay in jail from 10 years to life. Not to mention the money that winds up being paid to people who are exonerated, usually a settlement for the time they spent in prison and often a stipend for some designated time afterward. You talk about costs, but you're completely ignoring the outstanding costs of keeping innocent people in jail for long stretches of time, even when they're later found to be innocent.


Got a source for this? I have not heard that wrongful convictions generaly got much in the way of monetary compensation unless there was serious misconduct proven.

[ponderingturtle]

I agree. But notice INRM's question, to which I responded. "If they're so sure the guy's guilty, why not just pay for the stupid test?"

So as they know he is guilty they shouldn't let the test be done.

[ponderingturtle]

Surely any new evidence that might over turn a conviction is the responsibility of a defense lawyer to acquire. It's not the police's job to help support convicted criminals' appeal efforts.

To say that officials are preventing these people having DNA testing is false. They just won't do it on the criminal's behalf. Just like they won't do anything else towards an appeal case on a a criminal's behalf.

How is the defense supposted to get the evidence from the case with out the police giving it to them?

[GreNME]

Got a source for this? I have not heard that wrongful convictions generaly got much in the way of monetary compensation unless there was serious misconduct proven.

What? What the heck are you asking a source for? Look into the story for every one of the fellows freed via the Innocence Project-- they are compensated for every year they served in prison during the wrongful conviction. The price tag differs per state for those who pay per year-- in Florida, for example, it's $50k per year (http://www.uslaw.com/library/Legal_Research/Loopholes_Florida_Approves_Wrongful_Conviction_Com pensation.php?item=127408)-- but not every state pays by year. Some pay by days served, and more than half of the states in the US don't have any set legislation, resulting in a number of lawsuits (http://www.nytimes.com/2007/12/02/weekinreview/02santos.html?ex=1354338000&en=c5e3954f1aff0e5e&ei=5124&partner=permalink&exprod=permalink) for compensation.

The point is that the justice system doesn't get to just let go people it's had in the prison system for 15-20 years with a "whoops, my bad" and a few well wishes. The system, often in the form of state tax money, usually winds up having to foot a notable bill to pay for the time that they've held someone in the prison system on a wrongful conviction.

Why would you even doubt this?

[Suddenly]

What? What the heck are you asking a source for? Look into the story for every one of the fellows freed via the Innocence Project-- they are compensated for every year they served in prison during the wrongful conviction. The price tag differs per state for those who pay per year-- in Florida, for example, it's $50k per year (http://www.uslaw.com/library/Legal_Research/Loopholes_Florida_Approves_Wrongful_Conviction_Com pensation.php?item=127408)-- but not every state pays by year. Some pay by days served, and more than half of the states in the US don't have any set legislation, resulting in a number of lawsuits (http://www.nytimes.com/2007/12/02/weekinreview/02santos.html?ex=1354338000&en=c5e3954f1aff0e5e&ei=5124&partner=permalink&exprod=permalink) for compensation.

The point is that the justice system doesn't get to just let go people it's had in the prison system for 15-20 years with a "whoops, my bad" and a few well wishes. The system, often in the form of state tax money, usually winds up having to foot a notable bill to pay for the time that they've held someone in the prison system on a wrongful conviction.

Why would you even doubt this?


I think there is some confusion as to the use of the term. Usually these compensations occur when actual innocence can be shown and/or state misconduct can be proven. The Florida law is described as applying to those who did not commit the crime, which suggests something beyond a mere wrongful conviction.

If it is simply a wrongful conviction based on something like improper rulings at trial and the state declines to retry the case it is unlikely the accused will be paid absent proof of actual innocence.

[GreNME]

I think there is some confusion as to the use of the term. Usually these compensations occur when actual innocence can be shown and/or state misconduct can be proven. The Florida law is described as applying to those who did not commit the crime, which suggests something beyond a mere wrongful conviction.

If it is simply a wrongful conviction based on something like improper rulings at trial and the state declines to retry the case it is unlikely the accused will be paid absent proof of actual innocence.

If a DNA test for a rape case shows that the person who is in prison wasn't the guy who performed the rape, then I'd say what I've been talking about applies pretty accurately. What you're saying applies only when tackling the more broad issue of changes in rulings that may come after-the-fact. Since 1989, I believe there have been nearly 200 cases of prisoners freed by proving their innocence through improved DNA testing alone. That number, when taking into account the costs involved with having them incarcerated, the possibility of them receiving compensation after being released, and the overall costs of the extra court time, the cost of allowing a few DNA tests for convicts then begins to look smaller in comparison.

[Skeptic Ginger]

I honestly don't see why two wrongs equal a right.

I suppose there are DNA tests and DNA tests but a quick Google shows tests at accredited labs from $80 US up. Since there is a chance that this person may be innocent, does anyone think that it is too much to pay. Let him or his family or anyone pay for it. If it turns out that it proves he is innocent, is this not justice done? :boggled:I think the point was allocating limited resources. However, I think any murder conviction, and any conviction based on mostly or all eyewitness testimony should require DNA testing if DNA is available.

[drkitten]

What about the waste of money brains and time?

You can't read, can you?

It's a waste of money, brains, and time, if the evidence on which the person was convicted was sufficiently compelling that there's not much chance that a DNA test would clear him. Remember that INRM was saying that the test should be done because the case against him was so strong, just to shut him up.

That's absolutely Alice-in-Wonderland reversed to reality. You want to spend the time and money on the cases where DNA testing is likely to have an effect.

[drkitten]

If it's "simple and quick" and he's offering to pay for it, then your argument stops being reasonable, no?

Forensic DNA identity tests are neither simple nor quick.

[jj]

I think that anyone should be allowed to pay their own money to do a DNA test, of course in a registered, etc, lab that won't contaminate the results.

If they are found not guilty, then they ought to get back a lot more than the money they spent on the test.

[GreNME]

You can't read, can you?

It's a waste of money, brains, and time, if the evidence on which the person was convicted was sufficiently compelling that there's not much chance that a DNA test would clear him. Remember that INRM was saying that the test should be done because the case against him was so strong, just to shut him up.

That's absolutely Alice-in-Wonderland reversed to reality. You want to spend the time and money on the cases where DNA testing is likely to have an effect.

Um, that's because "compelling" is a subjective term. I believe it's already been mentioned about the television interview with the woman who was raped that identified her accuser, both in photos and a line-up, only to find many years later that he wasn't actually the guy who did it. This woman was positively convinced, no doubt in her mind, that she'd picked the right fellow. Not a shred of doubt. And even when faced with the evidence she wasn't willing to believe at first.

Cases like that are precisely why having something like DNA evidence admissible is the right thing to do.

[GreNME]

Forensic DNA identity tests are neither simple nor quick.

I'd say two months to get the results is pretty quick. You're semanticizing now.

[Bob Klase]

A prosecutor was trying to block a death row inmate from having his conviction reopened on the basis of new evidence, and Judge Stith, of the Missouri Supreme Court, was getting exasperated. ''Are you suggesting,'' she asked the prosecutor, that ''even if we find Mr. Amrine is actually innocent, he should be executed?''

Frank A. Jung, an assistant state attorney general, replied, ''That's correct, your honor.''

That reminded me of this story from 15 years ago:

http://findarticles.com/p/articles/mi_m1295/is_n3_v57/ai_13510311/

The U.S. Supreme Court has plunged to a depth of barbarity surprising even to its harshest critics. It has ruled that solid evidence of innocence can be considered irrelevant to the case of a prisoner condemned to death. It ruled that the courts don't have to listen to the evidence. It ruled that the state may kill the probably innocent prisoner anyway, because he missed a filing deadline.

[gumboot]

Thanks for the answers correcting me about these being old cases wanting to exploit new DNA technology. Regarding access too the evidence, what is the current standard practise if the defense wants access to evidence for an appeal? Do they get a court order for the police to release it, or what? Presumably there must be an existing process for this.

[Uncayimmy]

Because in your universe, neither money nor lab time are in limited supply?

Have you done the math? I haven't, but let's take a quick stab.

A legally binding DNA test seems to run about $250 (http://www.gtldna.com/). That's a hard cost in that it's an extra $250 somebody has to pay.

Let's put the cost per year per prisoner at $20K. It varies by state (http://www.ojp.gov/bjs/pub/pdf/spe01.pdf), but this is close enough for our purposes. The problem is, this is a soft cost. If you release one prisoner, you won't realy save $20K in cash. If his cell stays empty, you're still paying for the building and much of the utilities. You'll still need the same amount of staff.

However, there are definite hard costs per prisoner. There's food, water, clothing, bedding, maintenance and outside medical care. What's the number? Hell if I know, but I think $2K (about $5.50 per day) would be in the ballpark.

What about the average remaining sentence? Since we're talking DNA, you gotta figure quite a few sex crimes are involved. Drug crimes are unlikely to have DNA evidence, but violent crimes may have blood and other physical evidence where DNA is involved.

The best we can do is speculate. According to this site (http://www.ojp.usdoj.gov/bjs/pub/ascii/aasps.txt) the average sentence for a rape conviction is 14 years. To keep the math simple, let's say we can save 10 years of prison time by freeing someone unjustly convicted.

That means a savings of $20K in cold hard cash before for each conviction that gets overturned. This makes the break-even point in overturning a conviction once for every 80 tests. And that's assuming the state pays for the test.

What we haven't factored into this are the government costs for the test. I say it's mostly a soft cost in that the current system could absorb it. It would only be a hard cost if the volume were so high that we needed extra staff involved to handle it. Considering that prisoners file lawsuits all the time, I doubt this would be the case.

I am sure there are hard costs associated with the processing required to free someone, but that's a price I think society is more than willing to pay. We don't like locking up people who are innocent.

This quick look at the situation tells me that it's worth investigating further. Keeping people in prison ain't cheap, and keeping the wrongfully convicted in prison just doesn't sit well.

[Suddenly]

Have you done the math? I haven't, but let's take a quick stab.

A legally binding DNA test seems to run about $250 (http://www.gtldna.com/). That's a hard cost in that it's an extra $250 somebody has to pay.


While I agree with your larger point, that price range appears to be for a paternity type DNA test, those are simpler procedures than a forensic examination for a number of reasons, mainly because paternity usually deals with high quality samples as those tests aren't dealing with a bloodstain or whatever. That lab doesn't have a lot of information about forensic testing. Non-optimal samples usually are more expensive, same with chain of custody issues and analysis of poor samples, reaching conclusions as to what is a weak data point and what is an artifact and so on.

Just sending suspicious raw data from the state lab to a good private lab for an independent review pushes four figures...

We usually spend in the 1K - 3K range depending on the circumstances and what is to be tested. I don't think this effects your final analysis though as the number of cases where DNA is likely to help is quite limited.

[ponderingturtle]

You can't read, can you?

It's a waste of money, brains, and time, if the evidence on which the person was convicted was sufficiently compelling that there's not much chance that a DNA test would clear him. Remember that INRM was saying that the test should be done because the case against him was so strong, just to shut him up.

They had all that witness testimony against him, that was good enough to convict so why revisit it? It is just a useless waste of resources. You were clear.

You were clear on your positions, you just prefer to resort to personal attacks than admitting you didn't examine this clearly.

[drkitten]

They had all that witness testimony against him, that was good enough to convict so why revisit it?

Because witness testimony without supporting physical evidence is not especially reliable.


You were clear on your positions,

I was indeed, but you didn't bother either to read my positions (or the posts to which I was responding) or to think about their implications.

[drkitten]

I'd say two months to get the results is pretty quick.

It is. Astonishingly so, to the point of unavailability.

Again, you're confusing the nice, simple, clean-and-recent-sample paternity test with the sort of test that would actually be required in this instance.

You couldn't get this test done for less than $1000,... .and I'd be surprised if you got it back in less than six months. (and, of course, if you need it quickly,... well, you pay for rush processing.)

[Suddenly]

You couldn't get this test done for less than $1000,... .and I'd be surprised if you got it back in less than six months. (and, of course, if you need it quickly,... well, you pay for rush processing.)

I am holding in my hands a memo from my investigator telling me that as of March Cellmark (a very respected DNA outfit) told us four to six weeks, but they had been running closer to four. No rush processing involved.

The cost of re-analysis of state lab data plus the testing of a new sample was quoted at $2190.

[drkitten]

I am holding in my hands a memo from my investigator telling me that as of March Cellmark (a very respected DNA outfit) told us four to six weeks, but they had been running closer to four. No rush processing involved.

The cost of re-analysis of state lab data plus the testing of a new sample was quoted at $2190.


I am very impressed. Our labs routinely give us deadlines measured in months.

[Suddenly]

I am very impressed. Our labs routinely give us deadlines measured in months.

Is it a state lab?

Our State Police Crime Lab can take eight months to find that suspected marijuana is actually marijuana. They are slow, but they make up for it by being sloppy and periodically fraudulent.

If it isn't a state lab, I'd shop around a bit...

[drkitten]

Is it a state lab?

Yeah. And staffed by relatives of state senators, as you might expect.

[Suddenly]

Yeah. And staffed by relatives of state senators, as you might expect.

Mine is staffed mostly with State Police officers with BAs in chemistry from Marshall.

I once was cross examining one of them as to handwriting analysis whether there have been any peer reviewed articles discussing the scientific principles behind what he called the "science" of handwriting comparison.

He told me he had published an article in some obscure handwriting analysis periodical. I asked if it had been peer reviewed, and he told me it was, that some people who had read the article in the journal complimented him on it and thought it was good. Which was a bit deflating because it is hard to respond to that without cursing.


Between that sort of sage scientific chops and the Fred Zain scandal, I wouldn't trust that lab to test my car for herpes...