As the collection of DNA samples by law enforcement and courts expands exponentially in order to create a database that can be used to identify those who commit crimes, these same advocates fight hard to prevent access to DNA from the past that might undo their “hard won” convictions. This seemingly irreconcilable stance belies the constant tension between the prosecution and the defense, and the emptiness of the claim that we only want to convict the guilty.
The New York Times provides a survey of cases where prosecutors are fighting to keep defendants from obtaining DNA tests to prove their innocence. Why? Why would prosecutors, whose professed ethical responsibility is not to convict but to do justice, argue against the use of the very test that they so desire, so enjoy, when it suits their purposes?
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.These reactions, when stripped of their rhetorical elements, are clear: We won and we’re not giving up the conviction without a fight. Bearing in mind that DNA evidence applies in a minute fraction of cases, meaning that the statistical significance of wrongful convictions, often as a result of mistaken identifications, is proportionately larger when one considers that it should happen with the same frequency in cases where there is no DNA to be tested, one would think that the prosecutors could show a little more grace in letting the convicted have a chance to test the DNA. But no, all the nice talk about the government’s ethical responsibilities go flying out the window when they’ve got a conviction to protect.
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.”
And in Tennessee, prosecutors withdrew their consent to DNA testing for Rudolph Powers, convicted of a 1980 rape, because the victim had an unidentified consensual sex partner shortly before the attack.
On the one hand, it’s fair to assume they believe they have the right guy in prison, so are acting with a good faith belief that they aren’t imprisoning an innocent person. On the other hand, if their belief holds water, then what’s the harm of letting the test proceed? If the defendant is guilty, why should they fear a test that could conclusively prove it? If nothing else, it has the stink of a disingenuous position. Why is this miracle of science wonderful when used by the prosecution, but unfair when used by the defendant?
While it would be easy to harp on the prosecutor’s duty, distinct from the defense in that it is supposed to seek justice, whether that be the conviction or acquittal of the defendant. The prosecutor should no more want to see an innocent person convicted than the defense. So, the truth comes out in this Times’ article that there are prosecutors out there whose interest in protecting their convictions exceeds their ethical duties. What a shock.
The excuses offered are silly, easily undermined by basic arguments, facts and the science itself. There is no good reason to refuse a convicted prisoner access to DNA testing. Even the slippery slope, that if they let one prisoner do it, every prisoner will want to if for no better reason than to take a shot in the dark. After all, they can’t do worse than they already have. But this doesn’t pan out either, both because there are so few DNA cases to begin with, and because it involves DNA testing on old cases, since new cases are having it done already as a matter of routine. Assuming the worst, it’s just not much of a burden.
And so we get down to the bottom line of the issue squarely framed in the Times’ article, yet wholly ignored. Who cares what the prosecutors have to say. Why aren’t judges ordering these DNA tests?
Somehow, these stories forget that there is a person in the room who gets paid to make decisions about disputed issues. Even if prosecutors are busily defending their convictions, they can only do so if judges are busily facilitating them. A judge need only utter the word “granted” when a defendant seeks a test to put the issue to rest (at least absent appeal).
When one reads that a defendant has been waiting for years to get a test, or that a prosecutor is not agreeable, does anyone question what the judge is doing about this? How did this escape the Times’ attention?
While one can easily point the finger at the adversary and complain that he’s not as kind-hearted as we would want, we need to get beyond this expectation that every prosecutor in the criminal justice system is going perform his function admirably and remember, there’s a reason we have judges. I’m not excusing prosecutors for their failure to honor their ethical duties; I’m challenging judges to fill the breach. That’s why you get to wear the cool robes.