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

1 comment:

Anonymous said...

My mother was wrongfully convicted of making physical contact with a police officer. My mother was already on probation in 2006. The court ordered her to have a psychiatric evaluation done and she complied with the court's order. However, the Judge was not aware that the evaluation was done and had her taken into custody for violation of probation. After she was taken into custody, two female sheriffs accused her of biting and scratching them. This occurred on January 10, 2007. The trial was delayed until June 10, 2009. Initially, the prosecution elected to proceed on the violation of probation. My mother was initially placed on mental health probation in 2006, and has since been transferred to regular Adult probation. She had three doctors perform evaluations and submitted them to the court, but she was still taken in for violation of probation. Once the prosecution realized this, they changed their election. The elected to charge her with biting one sheriff and scratching the other sheriff. The photos taken of the supposed injuries were clear. No bite or scratch marks were visible. My mother's public defender prepared to defend my mom on these charges. Then two days before the trial, the prosecution decided to change the charges so that they only had to convict her of making physical contact of an insulting manner. My mother was convicted on June 19, 2009 in a bench trial. I believe that this story is newsworthy because the prosecution had to keep changing the charges. The prosecution was over zealous. There are probably many other people like my mother who are in jail when they have done nothing wrong.