An editorial in the Columbus Dispatch raises a question that percolates through a great many convictions, particularly those taken up by the Innocence Projects. Why do prosecutors fight so hard to prevent a defendant convicted long before DNA testing was readily available from testing the DNA?
Brunner possibly could have been exonerated sooner, when the Innocence Project based at the University of Cincinnati’s law school identified him for The Dispatch as someone with a questionable conviction. But at that time, a judge in Stark County denied his request for testing.
It’s hard to see any reasonable justification for the denial. DNA technology continues to advance, meaning evidence that previously wasn’t testable may now be able to provide certainty about guilt or innocence.
The Innocence Project didn’t give up; it again requested testing for Brunner in 2018 and the judge this time, Kristin Farmer, granted permission.
The Dispatch did a series on questionable convictions that included the case of Eric Brunner.
Eric Brunner’s story is a searing reminder of what’s at stake. Originally from Canton, he spent 13 years in prison for a rape he has insisted he didn’t commit.
If Brunner is legally exonerated, it will lift a hideous stain from his reputation and free him from the heavy burden of being legally designated a sex offender. It could also mean substantial financial compensation.
But none of that can return what he lost when he went to prison at age 24. He’s 47 now, unable to get a good job and living alone in a Canton motel that he helps clean. He’s never been married or had children. He’s distraught at the knowledge that people believe him to be a rapist.
On the one hand, the fact that Brunner has paid his debt to society and yet remains a pariah, doomed to spend the rest of his life suffering for the conviction shouldn’t be forgotten. On the other, if he was innocent all along, then it’s not only wrong that he can never get past the conviction, but that he was denied the opportunity to prove his innocence, now that DNA can do what the legal system couldn’t without it.
But state law still allows judges to deny requests for testing. Given what’s at stake, we hope judges always err on the side of allowing a test whenever new DNA evidence emerges or new testing technology becomes available. Justice rests on truth, and DNA analysis is about as close as humans can come to truth in a case of murder or rape.
Justice has nothing to fear from additional DNA analysis; a DNA test can confirm guilt as well as innocence.
While the editorial focuses on Ohio law, the issue is nationwide, and the question of why any prosecutor would oppose testing, why any judge would deny it, seems absurd to most people.
Justice is too important, and our justice system too imperfect, to leave such evidence unexplored.
Putting aside the dreaded word “Justice,” the point made, over and over, by DNA revelations is that the system is “too imperfect,” though it’s unclear how imperfect would be acceptable. Technology has given rise to huge change, from video of interactions that previously were limited to the cops’ version, which invariably told the story of them as heroes, to DNA to exclude the innocent. And, lest it be forgotten, technology has always revealed that other junk science methodologies that were used to procure convictions, from bite mark analysis to burn patterns in arson cases, were bunk. Of course, the Supreme Court still loves its drug dogs more than a coin toss, so they have yet to go.
But since we have the capacity to perform DNA testing in some cases, what possible reason could there be to deny it?
The arguments in response begin with the obvious, that prosecutors got their conviction, believe they got the bad dude and don’t want to accede to anything that could undermine their conviction. It’s a remarkably cynical argument, given that keeping their conviction intact is more important than ascertaining that they convicted the guilty defendant. Sure, they believe, but if their belief is mistaken (or, dare I say it, intentionally false), would not a decent human being want an innocent person exonerated?
The more technical argument is “finality,” that there must come a point in the process where it’s over. While this is true, that defendants can’t challenge their conviction ad nauseam, it’s a disingenuous argument in this context. It’s not that defendants are seeking to have their DNA tested over and over, but just once. Given its efficacy in proving that the defendant is not the person whose DNA was at the crime scene, one DNA test will hardly break the system down under the weight of his persistent demands.
Finally, the complaint is that if defendants are allowed to seek post-conviction DNA testing at will, it will open the floodgates to demands, which will overwhelm prosecutors, courts and labs. It will eat up scarce resources, cost an inordinate amount of money and prevent the prosecution of current crimes where defendants are not, as yet convicted.
The floodgate argument is a perpetual favorite of courts, fearing that it might force their judges to work really, really hard. But in this instance, it’s largely a sham argument. The vast majority of crimes involve no DNA to be tested, as it’s generally only available in certain cases of murder and rape. There just aren’t that many of these cases to overwhelm the system, and given the penalties imposed for conviction in these very serious cases, as well as the corresponding implications of convicting the wrong person, and thereby letting the guilty person roam free, the modest burden is hardly a justification to deny testing.
But perhaps the most significant reason to fight DNA testing is the one reflected in the assertion that our “system is too imperfect” not to. What’s come of the Innocence Projects’ successes is the realization that the methods used to convict are so deeply flawed, as proven by DNA, that they are inadequate in many cases to be assured that the bad dude is the guy in the cage. This challenges our faith in the system, even with all due process it can muster, to get the outcome right. We can’t have that, and that’s what testing DNA has done.