Thursday, June 25, 2009

Guest Shot: DNA tests should be available to prisoners

The following opinion was published in the Philadelphia Inquirer on June 25, 2009.

DNA tests should be available to prisoners
Confirming innocence or guilt is the right of all who claim to be falsely accused.

By Marissa Bluestine and David Rudovsky

Chief Justice John Roberts began last week's opinion in District Attorney's Office of the Third Judicial District v. Osborne by noting: "DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty." But the ruling by Roberts and four other Supreme Court justices ultimately showed little regard for DNA's power to undo injustice.

In 1993, an Alaska court convicted William Osborne of kidnapping, assault, and sexual assault. On appeal, Osborne requested newly available DNA testing that, everyone agreed, would show definitively whether he was guilty. He also offered to pay for the testing. But the district attorney, without giving a reason, refused to turn over the DNA evidence.

A federal district court ruled that, as a matter of due process, Osborne was entitled to the evidence, and an appeals court agreed. However, the Supreme Court ruled that no such right exists after conviction, and that each state can decide when and under what circumstances a convicted defendant may have access to DNA evidence.

The Supreme Court's willingness to turn a blind eye to wrongly convicted prisoners is troubling - particularly in light of the 240 exonerations through DNA since 1989. As Justice John Paul Stevens noted in his dissent, Alaska never gave a reason for its refusal other than a need for "finality." Stevens called that position "arbitrary."

The court's majority opinion failed to answer the same question: Why, when an inmate has professed his innocence, repeatedly requested such testing since his trial, and agreed to cover all the associated costs, would a prosecutor not provide the evidence? Why, especially, when the test could conclusively prove that he committed the crime?

And if Osborne is in fact proved innocent and the DNA could identify the actual rapist, why is there not an overwhelming societal interest in providing the evidence for testing?

Unfortunately, many prosecutors have aggressively blocked prisoners seeking post-conviction DNA testing. According to a recent New York Times report, the reasons for the denials have included "overwhelming" eyewitness testimony (even though 75 percent of those exonerated by DNA were wrongly convicted based on eyewitness testimony), the purported statistical insignificance of the number of exonerations, and - the most often-cited reason - the need for "finality" in the criminal-justice system.

In response, most states, including Pennsylvania, have passed laws providing post-conviction access to DNA evidence. But many of these statutes are too narrowly framed to ensure sufficient access to DNA testing.

There is no doubt that the paramount aim of the criminal-justice system - to convict the guilty and free the innocent - is promoted by full access to DNA evidence. Incarcerating someone who had nothing to do with a crime does not benefit the victim. Nor does it benefit the victims who have suffered because a true perpetrator was never convicted and was able to commit more crimes - as has happened in the cases of at least 43 percent of the DNA exonerations to date.

When an inmate makes a credible claim of innocence, and when the DNA evidence will be able to conclusively establish the identity of the perpetrator, a genuine interest in "finality" should mean finally and conclusively identifying the true perpetrator.

While the ultimate impact of the Osborne decision is uncertain, its effect on potentially innocent men and women locked away for things they did not do is devastating. Peter Neufeld, a co-director of the Innocence Project in New York, which represented Osborne, has said, "As a result of this decision, more innocent people will languish in prison, and some may die in prison, because they were prevented from proving their innocence."

The Osborne ruling represents a betrayal of our society's core values. In Pennsylvania, the legislature and the courts should make sure that innocent inmates are not denied access to the evidence needed "to exonerate the wrongly convicted and to identify the guilty."

Marissa Bluestine is legal director of the Pennsylvania Innocence Project. David Rudovsky is vice president of its board. They can be contacted at and

Monday, June 22, 2009

Guest shot: Oregon case puts reliability of science itself on trial

The following opinion was originally published on June 20, 2009 in The Oregonian.

Oregon case puts reliability of science itself on trial
by Pamela Cytrynbaum, guest opinion June 21, 2009

Oregon inmate Philip Scott Cannon"Bullet lead analysis" viewed as discredited evidence

Oregon Department of Corrections inmate No. 88329999 is a convicted murderer serving three life sentences for a 1998 triple homicide at a mobile home in West Salem.

Inside the Oregon State Penitentiary, that inmate, Philip Scott Cannon, spends every waking moment poring over legal documents as if his life depends on it. Because it does.

While the 42-year-old inmate may appear to be just another lifer shuffling through the system, he is, in fact, on the front lines of a quiet revolution overtaking the nation's criminal justice system. The "bullet lead analysis" that was the prosecution's primary tool in an otherwise circumstantial case against Cannon has since been discarded as bad science. The FBI no longer uses it.

Cannon and his legal team plan to put this evidence, and his conviction, on trial in a July 7 hearing they hope will result in his release.

We've seen a lot of media coverage of those found innocent, and later released, by the reliable scientific evidence provided by DNA. At the same time, but perhaps with less public attention, many of the other key scientific building blocks used for decades by prosecutors to convict are crumbling. It is not clear how many such tainted convictions exist -- or how often they have resulted in innocent people being convicted.

But for real justice to occur, the news media must shine their most searing and relentless light on the criminal justice system, now more than ever. Fewer investigative reporters have the time or resources to track down witnesses or unearth new evidence, even as more cases of possible wrongful conviction demand attention. For those of us who care about the integrity of the criminal justice system -- and democracy itself -- this case is a canary in the coal mine. What happens next month in Oregon, and in the months to come in courtrooms around the country, should matter to us all.

In fact, forensic science and cases of potential innocence collided again Thursday when the U.S. Supreme Court rejected an Alaska inmate's request for DNA testing, ruling that prisoners do not have a constitutional right to DNA testing that could prove their innocence.

A Polk County jury found Cannon guilty in the 1998 fatal shootings of Jason Kinser, Suzan Osborne and Celesta Graves, whose bodies were found in or beneath a mobile home in West Salem. Cannon testified he was at the residence to fix a plumbing problem but has always maintained his innocence, saying he neither knew about nor had anything to do with the crimes.

A former Oregon State University researcher in the university's Radiation Center provided the evidence now in question when he testified that tests showed bullets found at the crime scene matched those found in Cannon's garage. He told jurors there was only a 1 in 64 million chance of getting that match.

Now Cannon and his legal team are finalizing his claim of "actual innocence" for next month's hearing in Marion County Circuit Court. They will present new evidence intended to show he was convicted primarily on faulty and discredited "junk science" called bullet lead analysis -- evidence so unreliable it has been abandoned by the FBI. This same evidence is also the main forensic tool prosecutors nationwide have used to convict hundreds of defendants, according to a joint investigation last year by The Washington Post and "60 Minutes."

Nobody knows how many cases or convictions have resulted from flawed forensic science, said Eric Ferrero, spokesman for the New York-based Innocence Project, headquarters for the national network of innocence projects. "All that we track is how many of the nation's 239 wrongful convictions overturned with DNA testing involved forensic problems," Ferrero said. "On that score, approximately 50 percent involved what we refer to as invalidated or improper forensic science."

In Cannon's case, the discredited forensic evidence was crucial to the conviction, argues Mark J. Geiger, Cannon's attorney. The rest was circumstantial. "If you're telling the jury the bullets from the crime scene are the same as the bullets from a box in the defendant's garage, well, what else do you need? That's it. It's over," Geiger says. "The problem is, it just wasn't true."

Bullet-related evidence is not the only prosecution tool under a credibility cloud. While DNA analysis -- often seen as the "magic bullet" of the criminal justice system -- has reliably identified the guilty and exonerated the innocent, the accuracy of other scientific techniques is shrouded in far more than reasonable doubt. Such evidence includes techniques claiming to analyze hair, bite-mark comparisons, fingerprints, firearms, tool marks, shoe prints and some techniques used in arson investigations.

In February, the National Academy of Sciences released a comprehensive report citing "serious problems" in the scientific evidence being presented every day in courtrooms around the country. The academy found "no forensic method has been rigorously shown able to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source."

Where does that leave Cannon and others serving life or living on death row?

Oregon Department of Justice officials declined to comment on Cannon's upcoming hearing while acknowledging the challenge of viewing old cases in light of new scientific standards. "The post-conviction relief process is exactly the appropriate place to sort out these things," said Tony Green, a department spokesman. "The FBI is no longer doing these tests because they don't consider them valid. But, if there is other evidence lined up, then we want to get it in front of a judge to sort it out. We're interested in getting to the truth. We have a higher obligation to the truth."

In addition to attacking the bullet evidence, Cannon's legal team will file sworn affidavits arguing: The prosecution mishandled and withheld key evidence; there are at least five credible alternative suspects with motives who should have been investigated; two more people have died suspiciously on the same site as the original crime scene; and the credibility of the prosecution's key witness, who owned that property, is suspect because she has since been convicted of manslaughter for a killing at that same site.

After a decade of proclaiming his innocence, Cannon is scheduled to be heard in the courtroom of Circuit Court Judge Lynn Ashcroft. Geiger, Cannon's attorney, says his client is "incredibly intelligent" and has worked tirelessly on his own behalf.

Cannon's legal team also has relied on the old-school gumshoe skills of Eric Mason, a former investigative reporter who went from broadcast journalism to private investigating and took on Cannon's case a year ago. Mason has reviewed thousands of documents and talked to witnesses who were overlooked a decade earlier.

At the same time the criminal justice system is facing the implications of all the convictions that hinged on discredited forensic science, Mason's investigative work on Cannon's case represents a parallel and equally crushing national trend: the slashing of newspaper staffs and the grave reduction in investigative journalism available to dig into cases, where the law has left a potentially innocent person to die in prison -- either on death row or as a lifer, like Cannon.

A May 20 front-page story in The New York Times reported the loss of investigative journalists whose pavement-pounding reporting resulted in the ultimate righting of wrongs: the exoneration and release of innocent prisoners, many of whom spent decades on death row. The shuttering and shredding of American newsrooms across the country means even fewer potential miscarriages of justice are being investigated.

This may be the greatest crime of all.

Pamela Cytrynbaum, a former Chicago Tribune reporter, is on the New Media Communications faculty at Oregon State University, where she teaches courses in multimedia writing, reporting and wrongful convictions. She is the former director of the Justice Brandeis Innocence Project and former associate director of the Schuster Institute for Investigative Journalism at Brandeis University. She also has taught in Northwestern University's nationally acclaimed Medill Innocence Project and the University of Oregon's School of Journalism and Communication.