CHAPTER 13 EXONERATIONS OF THE WRONGLY CONVICTED
| Jurisdiction | United States |
Chapter 13 Exonerations of the Wrongly Convicted
There are two organizations that report on the phenomenon of exonerations, a significant percentage of which have resulted from the testing of DNA that demonstrates the perpetrator was not the person convicted of the crime. The Innocence Project,1 founded in 1992 at the Cardozo Law School, accepts a small percentage of petitions from the incarcerated requesting their help and as of 2016, report 344 exonerations based on DNA and 148 actual perpetrators found.2 The Innocence Project accepts only DNA-related petitions and have terminated 30% of the cases they accepted due to lost or destroyed DNA. In addition, a majority of the prisoners who request testing of DNA evidence prove not to be innocent after all. Therefore, groups like The Innocence Project must carefully review and choose those prisoners whom they will represent.
The National Registry of Exonerations is a joint project of the University of Michigan School of Law and the Center on Wrongful Convictions at Northwestern University School of Law. It has a wider database than the Innocence Project because it does not limit itself to DNA cases only. It reported 2089 exonerations from January 1989 to September 2017, 420 of which involved DNA. As of 2012, mistaken eyewitness identifications (excluding deliberate misidentifications) accounted for 43% of exonerations.3
In 2014, the National Academy of Sciences (NAS) published Identifying the Culprit: Assessing Eyewitness Identification, which set forth proposed reforms that might reduce eyewitness identification errors.
A recent report states that the President's Council of Advisors on Science and Technology has concluded that bite-mark evidence is not scientifically valid. An online journal called Intercept notes that twenty-five wrongful arrests or convictions have been linked to bite-mark analysis.4 On June 8, 2017, Alfred Swinton was exonerated for a murder conviction in Connecticut and his sentence vacated. His conviction rested on bite-mark testimony by Dr. Gus Karazulas, former chief odontologist for the Connecticut State Police Forensic Science Laboratory. Karazulas acknowledged that bite-mark analysis had been repudiated. In addition, the use of "touch DNA" on the swabs taken from the victim's bite marks showed that the DNA was not Swinton's.5
The phenomenon of DNA exonerations has captured the public interest and has led many states to adopt legislation to help with exoneration requests. These laws cover issues such as:
• A requirement that states preserve DNA evidence after conviction for some period of time.
• A process to request post-conviction DNA for testing.
• Costs to be paid by the state if the prisoner cannot pay.
• A process for petitioning the court for exoneration.
• Compensation statutes for exonerees.
• Laws to provide post-exoneration social services.
Based on this chapter, students will:
1. Understand the role that testing of DNA evidence plays in exonerating prisoners.
2. Explain the efforts of groups such as The Innocence Project in representing potential exonerees.
3. Appreciate the evolution of state responses to post-conviction exonerations, including legislation to create a process for requesting DNA testing.
4. Distinguish between pardons, dismissal of charges, and findings of actual innocence.
5. The importance of a finding of actual innocence as a prerequisite to suing for civil damages for wrongful incarceration.
6. Identify the role of habeas corpus petitions in the exoneration process.
7. Understand the effect of a prisoner's confession or plea to a lesser offense on a claim for exoneration.
8. Explain the legal test for motions for a new trial based on newly discovered evidence.
9. Appreciate the difficulty exonerees face in returning to society, the efforts of groups such as After Innocence, and proposed legislation to provide social services to exonerees.
In 1989, Gary Dotson's conviction of a 1979 rape he did not commit was dismissed. Dotson had spent ten years in and out of prison as a result of this conviction. His was the first reported exoneration based on a testing of the DNA from the original rape kit. In 1994, Barry Scheck and John Newfeld founded The Innocence Project at Cordozo Law School in New York and began to review requests from prisoners for help in proving their innocence.
The Innocence Project has resulted in 344 post-conviction exonerations based on DNA forensic testing through 2016. Their website posts articles on research and activism for exonerations. In December of 2016, Congress passed the Justice for All Reauthorization Act of 2016, which provides funding for post-conviction DNA testing. As of 2012, all but eight states provided for some type of post-conviction relief,6 but a process for relief without funding will not result in many exonerations.
The most well-known exonerations involve rape charges, simply because DNA can prove that semen from the rape kit did not belong to the prisoner. However, only 40% of those who request DNA testing are shown to be innocent. In other words, for 60% of prisoners, their DNA is actually present in the rape kit. And a number of prosecutors take the position that even if the semen did not belong to the defendant who was convicted, he could still be guilty of the rape.7
Although rape exonerations are the best known, one study reported that the total rape exonerations from 1989 to 2003 were 30%, compared with 60% for murder cases. In the vast majority of the rape cases, DNA testing was critical to the exoneration.
One reason that a majority of exonerations involve murder may be because attorneys are more likely to take on an exoneration claim for a high-profile case, particularly one that may involve the death penalty. Wrongful murder convictions have been shown to result from coerced confessions, police pressure to close terrible crimes, and testimony by the real killer that framed someone else for their crime. However, even in some of the murder cases, DNA has figured in the exoneration.
In the 2003 study referred to above, 121 of the 340 exonerations were for rape (36%), and 88% of those involved an eyewitness misidentification.8 Two-thirds of the exonerated were African American or Hispanic.
We do not know how many innocent defendants agree to a plea to a lesser sentence to avoid serving long periods in prison before their case comes to trial, but there are doubtless a fair number of innocent prisoners who have pled guilty. This presents another problem in exonerations, as most people assume that a defendant who had pled guilty is guilty.
In 2003, the top four states for exonerations were Illinois, New York, Texas, and California, which accounted for 40% of the exonerations reported by the study.
Laws to Preserve DNA Evidence
DNA is considered the gold standard of forensic evidence. A DNA profile of one person cannot wrongly implicate another. The statistics underlying DNA testing are such that the likelihood of a random person matching a defendant's DNA profile is generally greater than the entire U.S. population of over 300 million. Although defense counsel still argue to juries that poor testing procedures result in DNA profiles that are faulty, most scientists agree that a degraded or contaminated DNA sample will give no reading or a garbled reading, but it cannot give a false reading implicating another person. Of course, DNA from rape kits typically contains a mixture of DNA from the victim and the perpetrator, and in some cases, it may contain DNA from more than one sexual contact. However, DNA technicians can detect mixtures and determine the identity of the various contributors.
As a commentator who has argued for national standards for DNA storage argues:
Currently, the FBI forensic laboratory in Quantico, Virginia, accepts evidence related to all crimes under investigation by the FBI, as well as evidence from violent crimes under investigation in federal, state, and local law enforcement agencies. These facilities include extensive long-term storage for DNA samples. As of May 2011, the FBI laboratory had over 712,000 DNA samples that required storage, which were stored in a "room in boxes stacked to the ceiling." At that time, the Department of Justice was looking into long-term storage alternatives, including off-site options. The Department of Justice was concerned about the option of storing DNA offsite because it would add complexity to the current storage and retrieval protocols and would increase risk regarding the maintenance of the samples. Currently there is no legislation to reform the way that the DNA samples are kept on the federal level.
On the state level, DNA samples are kept in accordance with state law: some states require retention for particular crimes, others require retention for a certain period of time only, and some states do not have any evidence retention laws at all. This system is very fragmented and as a result, states have their own procedures and policies regarding evidence retention. This is reflective of the fragmentation of the criminal justice system, where positive progress is bogged down because of poor cooperation and communication between agencies.
One of the main failings of the criminal justice system is its vast size and fragmentation. In order to ensure that appropriate systems are in place for retention of DNA (as well as other real) evidence, cooperation and standardization among the federal, state, and local facilities is necessary.9
As of 2016, there were no national standards for statutes requiring law enforcement or courtroom personnel to retain DNA evidence after a conviction. The length of time to preserve the evidence, the types of crimes for which preservation is required, and the penalties for not preserving the evidence all vary from state to state. Sixteen states did not even have any form of evidence-retention statutes...
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