DNA speaks

Frank Lee Smith

DNA speaks

The state Crime Lab needs to share the truth in old evidence

February 10, 2008

If new DNA evidence turns up that could shed light on the innocence — or guilt, of course — of an individual convicted of a crime, that person should be told. He should have a right to press for the evidence to be tested, using modern methods that can reveal the truth locked within. And he should be informed of the results of those tests.

Seems obvious, doesn't it? Simple justice. Enough cases have already demonstrated that Virginia has convicted, imprisoned and even come close to executing innocent people — until retesting of DNA evidence revealed the truth.

Somehow that obvious principle has been ignored in the massive hunt to unearth and reconsider biological evidence at the state crime lab. The approach must change. The people whose guilt or innocence is at stake must be informed.

Gov. Mark Warner ordered a thorough review of old files at the crime lab in 2005, in response to the discovery, based on new DNA testing of material from such files, that three men had been wrongly convicted of rape and imprisoned. After a pilot project uncovered two more cases, a decision was made to widen the search — to half a million files — for evidence that might reveal the truth when subjected to testing techniques that weren't available at the time of the original investigation and trial.

The project proved larger than expected. Even so, it has moved too slowly. More than two years later, fewer than 200 cases have been sent for new testing.

And a problem has become apparent: The people convicted of crimes are not notified when evidence is unearthed. They should be.

Nor do they have a say on whether that evidence is tested. They should.

In some cases — when someone was convicted of rape, murder or other major crime against a person — testing is automatic. But in other cases, involving crimes that aren't considered top priorities, it's set aside. State law gives defendants in such cases the right to ask for retesting of DNA evidence, but how can they ask if they aren't notified that evidence exists?

More troubling is the policy the Forensic Science Board has followed when test results come back. The new information is sent only to the office of the prosecutor who originally handled the case.

Of course, it makes sense to consult and share results with prosecutors, and for them to review the results with police. But the new information should also be shared with defendants.

Our judicial system is based on a balance: the prosecution on one side, the defense on the other, and the faith that justice will result from their fair interplay. We wouldn't tolerate a system that allowed the prosecution and police to decide who is guilty, without the counterbalance of defense. And we shouldn't tolerate this gap in that principle.

A state Forensic Science Board member, Alexandria's commonwealth attorney, offered assurance that prosecutors would do the right thing if evidence of innocence turns up. That's not good enough.

We have too many examples of men who spent years in prison because prosecutors worked hard to convict them of crimes they did not commit. Honest errors happen, and so does prosecutorial misconduct. And who has the greatest interest in notdisclosing the fact that people were wrongly prosecuted and convicted?

It's plainly unfair to leave decisions about potentially exonerating evidence solely up to prosecutors.

The Forensic Science Board points out the difficulties of informing convicted individuals. Like the fact that they have to be found.

True enough. And while the crime lab may not have staff or expertise, the State Police do.

The board has expressed a concern that releasing results might raise red flags about law enforcement. Yes, indeed. But that's not persuasive. The reason for this entire exercise is the human fallibility of law enforcement, of witnesses, of courts — set against the relative infallibility of DNA evidence.

Some defendants won't press for testing. Maybe they know they're guilty, maybe they've put the whole thing behind them and made a new life.

But some will want testing, and will want to have their cases reviewed if the results go in their favor. The system must allow for that.

And, to avoid needless expense and wasted time, the system must also include a simple means by which an impartial party — not the prosecutor — can weed out gratuitous appeals.

The results of testing should also be made public. Virginians have a right — and an obligation — to find out whether the judicial system that operates in their name has identified the real criminals or punished innocent people. Remember, wrongful conviction is not hypothetical or fanciful in Virginia. It's proven.

Mark Warner got this quest for truth off to a good start. Now, if the Forensic Science Board does not adopt the right policies about notification or if it needs support from other agencies, Gov. Tim Kaine should step in. It is worth his intervention to make sure Virginia approaches this pursuit of justice with the urgency and transparency it deserves.

http://www.dailypress.com/news/opinion/dp-ed_dna_edit_0210feb10,0,7411440.story