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When I became director of the FBI in 1987, the forensic use of DNA to find
and convict wrongdoers was just emerging as a tool in criminal
investigations and trials. This "genetic fingerprinting" provided an
entirely new capability in the effort to separate the guilty from the
innocent. In early 1988, the FBI Laboratory Division created a DNA testing
lab; by year's end, testing was completed in 100 active cases. I fully
expected the results to confirm the careful investigative and evaluative
work that had gone into the decisions to prosecute these suspects.
Instead, I was stunned: In about 30 % of the cases, DNA gathered in the
investigation did not match the suspect's DNA.
15 years later, this rate remains virtually the same. Approximately 25 %
of DNA tests do not produce a match. I'm proud that throughout its
existence, the FBI's DNA lab has served both to ident ify criminals and to
exonerate suspects mistakenly identified by law enforcement investigations
nationwide. But with 137 post-conviction DNA exonerations now on the
books, I'm increasingly concerned about recent news stories suggesting a
growing resistance by prosecutors to allow post-conviction DNA testing,
even in cases when there is strong evidence of innocence.
There are always reasons -- time, money, bureaucratic obstacles -- that
something cannot be done. But when it comes to justice and fairness, those
reasons are just excuses. Prosecutors have not only a professional duty to
seek the truth but a moral responsibility to respond to the DNA no-match
rate. Just as pretrial DNA testing has illuminated the unexpected
frequency with which police and prosecutors have targeted the wrong
person, post-conviction testing in cases that were tried 15 or more years
ago -- before the availability of forensic DNA -- can exonerate those
wrongl y convicted, and can possibly identify the true perpetrator and shed
light on the causes of the wrongful conviction.
1 case vividly illustrates the power of DNA testing. In 1984, a 9-year-old
Maryland girl was found strangled, raped and beaten to death with a rock.
In 1985, Kirk Bloodsworth was convicted of the crime in Baltimore County
and sentenced to death, mainly on the basis of eyewitness identifications
and vaguely suspicious statements he had made. Luckily for him, there was
biological evidence in his case, and later DNA testing proved more
reliable than the evidence presented against him at trial. In 1992, DNA
testing of sperm on the victim's clothing excluded Bloodsworth as the
source. In 1993, after spending more than 8 years in prison, 2 of them on
death row, Bloodsworth was exonerated and released.
The case didn't end there. For more than a decade, Baltimore County
prosecutors continued to consider Bloodsworth their ch ief suspect in the
crime, until they finally agreed to perform more sophisticated DNA tests
that could be entered into state and federal databanks. Just a few weeks
ago, DNA material left by the rapist-murderer at the scene was entered
into Maryland's DNA database and produced a "cold hit," implicating a man
currently serving time for an unrelated crime. Bloodsworth finally
received the apology from prosecutors he had been waiting 10 years to
hear.
That case vividly demonstrates the need for law enforcement officials to
join advocates for the innocent in seeking DNA testing where it previously
was unavailable. The phenomenal scientific potential of this evidence
should be championed by law enforcement officials, whose principal
interest has always been to protect the innocent as they try to apprehend
the guilty.
As DNA technology continues to improve, so does its ability to identify
the true perpetrators of crimes and exclude those who are wrongly
suspected or charged. Defendants convicted before these scientific and
technological advances might have exonerated them are now desperately
asking for advanced DNA tests to prove their innocence. If the 137
DNA-based post-conviction exonerations are any indication, their requests
clearly are warranted.
It's one thing for prosecutors to argue that, in some cases, DNA test
results wouldn't necessarily establish a defendant's innocence and that
other evidence is so strong that the conviction should still stand. What
is not understandable are prosecutors' efforts to deny defendants access
to DNA evidence for testing in cases where the results could make a
difference.
Last year, Kentucky inmate Michael Elliot was trying to prove his
innocence in a murder. An enterprising law student had located a blood
stain near the crime scene. Elliot, who is serving a life sentence, wanted
the court to order DNA testing of t he stain. The prosecutors responded not
just by opposing the testing, but by informing Elliot's lawyers that they
would destroy the evidence unless a judge instructed them not to do so.
The judge granted the prosecutors' motion, but the Kentucky Court of
Appeals intervened before the prosecutors could act. Unfortunately for
Elliot, the blood stain turned out to be from the victim and was thus of
no help to his claim. But Elliot couldn't have known that without testing
-- and neither could the prosecutor's office.
In 1997 in Harris County, after DNA testing exonerated Kevin Byrd of rape,
court officials decided to discard the "rape kits" -- the vaginal swabs
taken from victims -- in 50 other cases. They cited a lack of storage
space. Byrd's lawyer was quoted in the media as questioning the decision,
saying the rape kit has been crucial to proving his client's innocence in
the 1985 case. Why wasn't the prosecutor's office asking for the evidence
to be preserved?
Prosecutors have nothing to lose -- unless they put their pride before
their professionalism -- in allowing post-conviction DNA requests. If the
DNA test proves the defendant is guilty, then all doubts will be resolved.
If it exonerates the defendant, then there is an opportunity to correct a
tragic mistake and begin searching for the real criminal.
Those opposing post-conviction DNA testing say it opens the door to
demands from every inmate and would cost a fortune. No one is suggesting
such a widespread re-examination. Organizations such as the Innocence
Project -- which favors testing -- rigorously screen requests from
inmates, eliminating roughly 90 percent of these requests.
The tests are relatively inexpensive and often are paid for by the
defendants, the Innocence Project and other nonprofit groups. In cases
where alternative funds are unavailable, DNA testing at state and county
labs m ay cost as little as $1,000 -- a fairly minimal expense for
taxpayers, given the price of imprisoning or executing the wrong person
while allowing the real perpetrator to remain free.
I had contact with
prosecutors and law enforcement officials who are among the best anywhere,
working together in a criminal justice system that is the model for
countries around the world. But we can -- and must -- do better. Given the
stakes involved, we cannot deny defendants a right to post-conviction DNA
testing.
William Sessions is a former federal judge in Texas and FBI director
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