Double helix, double bind: factual innocence and postconviction DNA testing.

AuthorKreimer, Seth F.


  1. The Bruce Godschalk Story (1)

    In the summer of 1986, less than two months apart, two women who lived in the same housing complex in Montgomery County, Pennsylvania, were raped by an assailant who entered their apartments at night. Based on the descriptions provided by the victims, and the similar means of entry into the residences and other actions of the assailant, it appeared highly probable that a single person was responsible for both attacks. The police prepared a composite sketch of the suspect. Several months later, based on a call from Bruce Godschalk's sister informing authorities that her brother looked like the person in the sketch, the police showed a photo spread to the victims, one of whom identified Godschalk. Soon thereafter, the police brought Godschalk into the police district and interrogated him about the incidents. According to the police, in noncustodial questioning, and with no pressure or Coercion, Godschalk readily admitted to the crimes in a taped interview. (2) Indeed, the police claimed that he provided details of the assaults that only the victims, the police, and the rapist knew, as the police had not disseminated this information to the public. (3)

    At trial, the prosecution presented the eyewitness testimony (a complainant testified that she studied and compared the photographs presented to her by the detective), (4) the confession, evidence of the similar modus operandi of the rapist, and a jailhouse informant who testified that Godschalk admitted the crimes to him while in jail awaiting trial. (5)

    In addition, the prosecutor offered scientific evidence: the semen recovered from the first rape was from a man with type B blood, and Godschalk had type B blood. Godschalk, who had recanted his "confession" pretrial, testified that the detectives tricked him into admitting the crimes and asserted that they provided him with the private details of the assaults. Not surprisingly, with a full confession, modus operandi evidence, eyewitness identification, and blood-type matchings, the jury convicted Godschalk of both crimes. In 1987, he was sentenced to a term of ten to twenty years' imprisonment.

    In 1995, based on Pennsylvania cases establishing a qualified right to postconviction access to previously untested DNA evidence, (6) Godschalk filed a petition seeking access to the DNA evidence from both incidents still held by the District Attorney. (7) The Superior Court of Pennsylvania denied access on the grounds that the prosecution's case was overwhelming and that it rested on more than contested eyewitness identification. (8)

    Godschalk then filed a civil rights action under 42 U.S.C. § 1983 for access to the DNA evidence, claiming a constitutional right to access and testing as a matter of due process of law. The District Attorney opposed this action, arguing that it was procedurally barred by the Rooker-Feldman doctrine (9) and that there was no constitutional right to access to potentially exculpatory evidence postconviction. In support of the defense to the civil litigation, the district attorney stressed the strength of the State's case at trial and, in particular, Godschalk's confession with its numerous details of facts known only to the complainants, police, and rapist. The district court ruled that the Rooker-Feldman doctrine was inapplicable and that the Brady v. Maryland (10) due process duty of disclosure of exculpatory evidence extended to postconviction DNA evidence, regardless of the evidence that supported the conviction. (11)

    The parties then agreed to a protocol under which the DNA evidence was divided for testing by their respective laboratories. Testing at each laboratory confirmed that a single rapist had committed both assaults but that Bruce Godschalk was absolutely excluded as being that assailant. (12) In February 2002, on a petition for postconviction relief, Godschalk was freed and the criminal charges against him were dismissed. (13) Bruce Godschalk had served fifteen years of his ten-to-twenty-year sentence. Although he was eligible for parole at his minimum of ten years, in all likelihood he would have served his entire sentence of twenty years. In Pennsylvania, parole in sexual assault cases is largely dependent on the defendant's admission of guilt and participation in sex offender programs, neither of which the innocent Godschalk would accept. Bruce Godschalk thus became one of more than 100 persons exonerated of serious criminal convictions by postconviction DNA testing. (14)

  2. The Frank Lee Smith Story

    In early 2000, Florida death row inmate Frank Lee Smith died of cancer. On his deathbed Smith had reasserted his long-held claim to innocence and continued to demand that the State agree to test DNA evidence from the crime scene. Smith had been convicted of the 1985 rape and murder of an eight-year-old girl, based largely on a single eyewitness identification (with no physical evidence of his involvement). In 1989, this sole eyewitness recanted her testimony, alleging that the police had pressured her and had repeatedly told her that "Smith was dangerous." (15) Indeed, at the time of the recantation, the witness named another person, Eddie Lee Mosely, as the killer. Defense lawyers were able to point to other evidence that strongly connected the crime to Mosely, then a prime suspect in a number of sexual assaults and murders. (16)

    For years, prosecutors had refused defense requests to test existing DNA evidence. As Smith lay dying in pain and delirium in a prison hospital, the slow wheels of justice finally ground to a point where testing was authorized. Ten months after his death in prison, in December of 2000, the test results cleared Smith of any involvement in the crime. (17) Prosecutors had claimed that state law did not permit a post-conviction challenge based on the outstanding DNA evidence and had accused the defense lawyers of "playing games" to delay Smith's execution. (18) Upon receiving the test results, the prosecutor stated that she would move to vacate Smith's conviction. (19) He spent fourteen years on death row and died with his request for DNA testing still in limbo.

  3. The Problem

    Godschalk and Smith are representative cases in a growing pool of DNA exonerations. (20) They are also representative of the legal struggles over claims to access to DNA for postconviction testing. (21) Comparing the ultimate outcomes in the two cases, one might expect moral consensus that Smith is to be avoided and that Godschalk is to be preferred. (22) Few courts or prosecutors directly advance the proposition that the judicial system should permit the incarceration of manifestly innocent individuals. (23) In a system where as a matter of constitutional law "[i]t is critical that the moral force of the criminal law not be diluted by a standard of proof that leaves people in doubt whether innocent men are being condemned," (24) this preference has a strong claim to constitutional stature.

    In the criminal justice system today, however, the status of postconviction DNA testing is a matter of some contest. It is to that contest that this Article is addressed. In Part I, we will survey the current practices and policies of prosecutors in responding to requests for postconviction DNA testing. As that review reveals, the hurdles faced by Bruce Godschalk and Frank Lee Smith are not inevitable, for many prosecutors view the importance of DNA testing's potential to exonerate the innocent as equal to its role in convicting the guilty. But neither are the dilemmas faced by Godschalk and Smith isolated or unique, for hostility to postconviction access typifies an important sector of the prosecutorial community. The Article will then address the principal doctrinal bases for a constitutional right to postconviction disclosure: prisoners' rights of meaningful access to the courts (Part II) and the due process obligations of the state to disclose exculpatory evidence and to avoid arbitrary deprivations of liberty (Part III). In Part IV, we consider the arguments that have been mounted, both substantive and procedural, as balancing factors against the constitutional claims, and conclude that in the cases where DNA is potentially determinatively exculpatory, those factors are unpersuasive.


      Before trial, by rules of criminal procedure and federal constitutional mandate, defendants are entitled access to physical evidence for forensic testing. (25) After trial, however, in the states that have not adopted statutes giving convicted defendants the right to seek DNA testing, (26) the disposition of physical evidence rests largely in the discretion of prosecutors, police officers in evidence rooms, and court clerks.

      For many prosecutors, the possibility of freeing wrongly convicted prisoners is as important an element of the emerging DNA technologies as the possibility of finding and convicting the guilty. Indeed, when an innocent defendant is incarcerated the wrongdoer remains unpunished. In 1996, in response to a National Institute of Justice (NIJ) report, (27) Attorney General Janet Reno appointed a National Commission on the Future of DNA Evidence, composed of representatives of law enforcement, prosecutors, and defense attorneys, to recommend standards for postconviction DNA testing. The Commission developed five categories of cases:

      Category 1. These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, exclusionary results will exonerate the petitioner. Example []: Petitioner was convicted of the rape of a sexually inactive child. Vaginal swabs were taken and preserved. DNA evidence that excludes the petitioner as the source of the sperm will be dispositive of innocence. Note that in a case such as this, the victim's DNA--also obtainable from the vaginal swab--operates as a control that confirms that the correct...

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