Proven guilty: an examination of the penalty-free world of post-conviction DNA testing.

• Author: Carroll, Gwendolyn

1. 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 that a petitioner must meet in order to receive a test. (22) The development of more stringent and uniform screening standards could potentially reduce, if not entirely eliminate, the problem of frivolous petitioning.

   However, this proposal has four serious flaws. First, the established screening process is already fairly comprehensive in most states and, if not explicitly articulated in the statutory description of the process, is described in somewhat greater detail in the state courts' interpretations of the statutes. (23) Second, subjectivity of evaluation may very well be an inescapable element in the evaluation process for post-conviction testing petitions. (24) Third, a more stringent application process carries the risk of failing to exonerate an innocent person for failure to meet a heavier evidentiary burden. (25) Fourth, even if a more rigorous screening process could be effectuated, it would not necessarily reduce the number of applications; instead, it would simply reduce the number of those petitioners who are ultimately granted tests. (26) Thus, a proposal that places the onus on the courts and attorneys of reducing the burden on courts and attorneys is fundamentally misguided. In order to be effective, the proposal must deter guilty petitioners from seeking testing in the first place, while not discouraging innocent petitioners.

   The second proposal would shift the burden of payment for the costs of testing to the petitioner, rather than the state. Virtually every state that provides for post-conviction testing, as it now stands, funds the testing for indigent petitioners, and requires only solvent petitioners to advance the funding for the test. (27) If states were to require a petitioner to advance some, if not all, of the cost of the test, that condition might deter petitioners who know they are guilty from seeking testing. However, as with the first proposal, there are problems with this idea. First, indigent petitioners might be unfairly excluded, thus barring potentially innocent inmates from obtaining testing. Second, mandatory testing payments may invoke Fourteenth Amendment due process concerns. Finally, payment may not provide a sufficiently effective screen of the guilty petitioners.

   The third proposal follows Missouri's statutory model. The Missouri law that provides for post-conviction testing also levies specific penalties against petitioners who seek testing only to have the results confirm their guilt. (28) Not only is that person then liable for the costs of the test, (29) but he is also subject to sanction under a different law that mandates that sixty days be added to the sentence of any person who files a frivolous claim with the court. (30) Missouri is the only state that has incorporated into its post-conviction statute a provision that renders such a sanction mandatory in the case of guilt-confirming tests. (31)

   The third proposal urges the adoption of the Missouri statutory framework, specifically the incorporation of a sentence extension for those petitioners whose tests confirm their guilt. This Comment proposes that the sentence extensions be effected through the use of good time penalties. Every state that has a provision for post-conviction DNA testing also has a system of awarding "good time credits." Good time credits are reductions in length of the prisoner's sentence that may be granted for various forms of good behavior, and may be deducted for rules violations and, in some states, for the filing of frivolous claims with the court. (32) Although Missouri is the first and only state to levy sentencing sanctions against those petitioners whose tests confirm their guilt, no state has used good time penalties as the sanctioning mechanism in post-conviction testing cases. This Comment's third proposal relies on the logic of the Missouri statute, that petitioners who seek tests only to have the tests confirm their guilt should be subject to sentencing sanctions, but suggests implementing the existing good time credit sanctioning structure as a means of penalizing guilty petitioners.

   A mandatory sanction of a deduction of good time credits would not harm those who are innocent and have been wrongfully convicted. To the contrary, its function as a deterrent would reduce the burden on the courts, on prosecutors, and on innocence project attorneys. This would, in turn, free up the resources of money and time, which could then be allocated to those who truly are innocent and who will benefit from the exculpatory evidence that can be provided by post-conviction DNA testing. The innocent have nothing to lose by pursuing a post-conviction DNA testing petition. But under the status quo, neither do the guilty, and the result is the unnecessary and preventable burdening of an already over-burdened criminal justice system. This proposal will not only prevent needless trauma to the victims and reduce the waste of resources, it will facilitate the just resolution of the cases of both the guilty and the innocent.

   Section II of this Comment provides a general factual background on the process of post-conviction DNA testing and the...