Why Are They So Afraid of DNA?

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.

20 thoughts on “Why Are They So Afraid of DNA?

  1. albeed

    ” Justice rests on truth,”?

    Justice does not rest on truth. Justice rests on law.

    That is why he is screwed!

  2. Ray Lee

    Even if DNA exonerated them, it doesn’t change the fact that they were “credibly accused.” So there’s that.

  3. Onlymom

    Maybe it’s time to take that option away from judges and prosecutors and pass a Federal law that makes the option ‘You will test”

    As for the criminal stupidity of ‘finality” sorry they killed that one themselves with the rise of sex offender laws that they routinely change every 6-8 months and then apply retroactively. So they can shove that one in a box and but it in a hole in ground and forget it it’s Dead.

    1. SHG Post author

      If this was someone else, I might point out that a federal law doesn’t do anything when it’s a state crime, as almost all of these are. But since it’s you, I won’t.

      1. Onlymom

        I was aware if that. But figured if they can stick their noses into everything else. Why not actually useful for once. They don’t seem to have any problems taking over a failed state case using that retarded so-called civil rights violation charge.

  4. Lee

    Texas law, thank the Lege, already requires DNA testing on all biological evidence in death penalty cases and was recently amended to allow courts to grant DNA testing for pieces of evidence that have a “reasonable likelihood” of containing biological material, like saliva or sweat, that may not be visible to the naked eye. This was, in part, caused by several high visibility cases wherein the Innocence Project was successful.

    It is nice for Texas to be in the forefront, for once.

    1. SHG Post author

      Not to be a killjoy, but it only took one innocent guy spending 25 years in prison before being exonerated (not even mentioning the execution of innocent Cameron Todd Willingham), and there are a lot of cases that aren’t death penalty where the same problem exists. So while Texas is in the forefront, it’s not exactly much of a lead.

  5. B. McLeod

    Prosecutors are divided on this issue. Some are quite in favor of allowing the testing where it could be a conclusive factor on the question of factual innocence. After all, if an innocent person went to prison, a guilty one did not, and it should be important to everyone to sort that out. I have also know prosecutors who were opposed to post-conviction testing in all cases, and I can see no real reason for that beyond concern that it might reveal erroneous convictions (which, as I see it, would be a positive consideration).

  6. Bob

    I’m fuzzy on what you’re arguing here. The article you linked to seems to be taking the position that judges should not be allowed to EVER refuse DNA testing. Surely that’s not the position you’re advocating. And if there have to be limits, there’s going to be disagreement around the edges. Always.

    But prosecutors have lots of good reasons not to always consent to DNA testing. Lots of untested samples were too small or too degraded to test with old technology. Now we can do it, but there’s a substantial chance of false negatives due to degradation and contamination. Another reason is that, in the vast majority of cases, DNA evidence can’t prove definitively one way or another whether the defendant actually did it. There’s also often a strong element of gamesmanship involved. The defense could have had every drop of blood at the scene tested before the trial, and they would have if the defendant wasn’t 99% sure it was all his. Not testing lets them argue doubt at trial. But after he’s convicted there’s nothing to lose. Maybe a few of those drops were left by the plumber a week before—I mean, the real killer!

    An illustrative case I recall from back in the day: A guy had been convicted of raping and murdering an old lady. He got the semen DNA tested. It was his. Well, he had consensual vaginal sex with her, but the real killer was the one who left the pubic hairs in her throat. Back we go—oops, his again. But what about under the fingernails? That dried blood drop found in the other room? And so forth and so on.

    1. SHG Post author

      You raise issues with DNA testing generally, none of which have anything to do with whether testing should be permitted or denied. If it’s degraded to the point it’s untestable, that’s what the report says. Inconclusive? That’s what the report says. Contamination is a different problem with police or lab incompetence, but it is what it is, none of which provide any reason not to test.

  7. joan roberts

    1. Given SHG information relative to the more minimal number of testing being specific to rape and murder, the argument appears to be solid in that adversaries are unjustified in their reasoning not to test.
    2. However, as a criminal justice and paralegal student, would it not be more prudent to start teaching in pre-law and law schools, that ethically, DNA testing be given priority:
    a. to avoid convicting the innocent
    b. to keep the guilty off the street
    3. Considering the successes of the Innocent Project work, what laws could be addressed for potential amendments relative to this argument?
    4. If you are going to argue a point as critical as this, then giving a plausible solution would surely tone down the frivolous comments.
    5. What do readers see as a solution and how are they going to enlist that? We all have legislators, some are actually attorneys. How hard can the process to make an effort for change, be? It could not take more time than that engaged by comments on this forum. With a viable idea you could be contacting your legislator.

      1. joan roberts

        Excuse me. I thought I stumbled on a worthy site to discuss issues. But the more I read of your comments, the more I detect a critic waiting to pounce on anyone who dares comment. I do not have to be an attorney or a judge to discuss topics or encourage a means from which to bring changes. However, you appear to miss the ‘difference’ of discussion and criticizing. Guess it makes you feel superior. You miss the opportunity to share something significant or helpful to the cause of justice. Hopefully you never become a judge.

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