Justice on Hold

The following editorial was published by the Columbus Dispatch on May 10, 2010.

Governor, attorney general should push for testing of DNA for five inmates

The state of Ohio can do only so much to make up for the wrong done to Ray Towler, imprisoned for nearly 29 years for a crime he didn't commit.

But Ohio officials could try to spare others a similar fate.

Other inmates in Ohio prisons deserve DNA testing of evidence that could prove their innocence, as it did for Towler, who was falsely accused of raping a 12-year-old girl and attacking a 13-year-old boy in 1981. In five such cases, courts have rejected requests for retesting of DNA, even though testing could resolve unanswered questions and a Cincinnati DNA lab has offered to work for free.

When The Dispatch published "Test of Convictions," a series of stories in January 2008 highlighting flaws in the state's use of DNA evidence and focusing on 30 cases in which further testing is warranted, Gov. Ted Strickland supported the idea.

"It's not going to cost the county," Strickland told The Dispatch. "I don't know what the justification for trying to block that kind of testing would be."

But he's done little so far to make it happen.

The Ohio Innocence Project, which worked with The Dispatch to identify the cases most worthy of retesting, wrote Strickland a memorandum in February 2009, asking him to intervene in seven cases in which judges had denied testing requests. In two of those cases, appeals courts since have granted inmates the right to a test.

Why Strickland hasn't responded to the request is a mystery. He had it right back in 2008; there is no justification for denying testing in these cases. Attorney General Richard Cordray, who also received the memo, also hasn't spoken up.

If Strickland and Cordray are staying away from the issue because they're loath to alienate law-enforcement groups, that's unfortunate.

Ethical prosecutors and police should welcome the truth that post-conviction DNA testing offers, yet some fight it at every turn. In Towler's case, no one objected to his original request for testing in 2004, but the test didn't happen until 2008, because some of the evidence had been lost.

When results in November 2008 revealed evidence of DNA on the victim's underwear from two men, neither of which could be Towler, he expected to be freed. But Cuyahoga County officials wanted a follow-up test to sort out the issue of the two men. What followed was 18 months of waiting, with multiple issues raised by the county prosecutor's office and no good explanation for why it took so long.

Cuyahoga County Common Pleas Judge Eileen A. Gallagher finally had enough in March and set a short deadline for resolution. Towler was freed on Wednesday.

The 18 months Towler had to spend in limbo compounds the injustice already done to him. Even though a recently passed state law gives Ohio one of the nation's best systems for using DNA evidence to revisit questionable convictions, the law still needs refinements to end delays.

More immediately, the five inmates who have been denied testing deserve to have the truth uncovered. Strickland and Cordray should use their influence to make it happen.