Extract
Proven guilty: an examination of the penalty-free world of post-conviction DNA testing.
I. INTRODUCTION
The fairy tale-like story of the innocent man wrongly accused and convicted of a crime, later freed through post-conviction DNA testing, is told every week in magazines, newspaper comments, television shows, and radio interviews. (1) However, there is a far more common story, (2) one that often goes untold. It is the story of the petitioner who spends years lobbying the government, either with or without the assistance of an innocence project attorney, to perform a post-conviction DNA test. This petitioner absorbs hundreds of hours of an already overburdened state prosecutor's time and puts the victim through the grief and pain of doubting the resolution of her ordeal. At last the petitioner is granted the test, which can cost as much as $5,000, (3) and it seems that his struggle will be vindicated. But this story does not have a fairy tale ending. Instead, the results of the post-conviction DNA test confirm the guilt of the petitioner, rather than proving his innocence. Estimates on the percentage of cases in which post-conviction testing confirms the petitioner's guilt range from "about half the cases" (4) to about 60% of cases (5) in which testing "further implicate[s] the defendant." (6) For Assistant Cook County State's Attorney Mark Ertler, the numbers are similarly sobering. In October 2005, Ertler had thirty pending petitions from inmates seeking post-conviction DNA testing. (7) In 2004, ten of Ertler's testing petition cases had met resolution. (8) Of those ten, none were conclusively exculpatory. (9) Rather, two resulted in matches to the petitioner's DNA, (10) confirming guilt. (11) Each petition may take anywhere from one year to many years to reach resolution, depending on the evidentiary complications and peculiar circumstances of a particular case. (12) While the stretched resources of prosecutors' offices are one serious concern raised by the problem of post-conviction testing that confirms the petitioner's guilt, (13) another far less quantifiable factor is the trauma experienced by the victim. Reopening a case can be acutely stressful, painful, and traumatic for the victims and families of victims. (14) Jennifer Joyce, the St. Louis Circuit Attorney, has witnessed the experience of victims whose cases have been reopened by post-conviction testing petitions: (15) [Joyce] personally counseled shaking, sobbing victims who were distraught to learn that their traumas were being aired again. One victim, she said, became suicidal and then vanished; her family has not heard from her for months. Another, a deaf elderly woman, grew so despondent that her son has not been able to tell her the results of the DNA test. Every time he raises the issue, she squeezes her eyes shut so she will not be able to read his lips. DNA tests confirmed that she was raped by Kenneth Charron in 1985, when she was 59. To get that confirmation, however, investigators had to collect a swab of saliva from her so that they could analyze her DNA. They also had to inquire about her sexual past, so they could be sure the semen found in her home was not that of a consensual partner. The questioning sent the woman into such depression that she's now on medication. (16) The concern of traumatizing a victim by seeking post-conviction DNA testing (17) is echoed by Ertler, who notes that, "[The office of the state's attorney] notifies the victims as a professional courtesy, but it is a horrible process for them. Often, they have to come in and give a sample and have to relive the process fifteen or twenty years after they thought they'd gotten some resolution." (18) An obvious response to any evocation of victim trauma is that however terrible the post-conviction process may be for a victim, it is outweighed by the potential harm of keeping an innocent person in prison. However, if, as in the case of Kenneth Charon, the test only serves to confirm the petitioner's guilt, the expense and pain of the post-conviction petitioning process are entirely unnecessary and, this Comment will argue, eminently avoidable. In order to deter frivolous (19) applications for post-conviction DNA testing, this Comment proposes and assesses three alternative solutions, all of which take the form of revisions or additions to state statutes that provide for post-conviction DNA testing. The first proposed solution is the creation of a more rigorous screening process for applications for post-conviction DNA testing. The process would incorporate less subjective standards for the determination of whether or not to grant a test. (20) Because state statutes providing for post-conviction DNA testing are relatively new, (21) there is some disparity in their structures and approaches to the problem of post-conviction testing, specifically with regard to the necessary conditions tha...See the full content of this document
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