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					                                                               MARGARET A. BERGER
                                                                  Brooklyn Law School

                                                          LESSONS FROM DNA:
                                            RESTRIKING THE BALANCE BETWEEN
                                                        FINALITY AND JUSTICE




       One of the remarkable features of DNA testing is that it not only suffices to
convict, but that it also serves to exonerate. To date, over 120 convictions have been
vacated as a consequence of postconviction DNA testing.1 This number would
undoubtedly be considerably higher had it been possible to test in the many cases in
which crime scene evidence was inadvertently lost or routinely destroyed. It has been
estimated that no evidence can be found in about 75% of the cases in which inmates seek
DNA postconviction testing.2

        These vacated convictions require us to rethink how our criminal justice system
operates. They suggest the need to reassess the value of finality in criminal proceedings,
and to strike a new balance between the benefits of repose and the demands of justice. In
this essay, I first examine the assumptions buttressing our traditional approach to finality
and how they have been challenged by DNA testing. I then turn to factors that need to be
balanced in considering when postconviction DNA testing should be allowed. Finally, I
discuss some lessons of enduring importance that we ought to remember once the
demand for postconviction DNA testing dwindles, as it will. Postconviction testing will
gradually become passé as DNA testing is routinely done prior to trial, and as DNA
technology reaches the point where future retesting will not provide any more definitive
answers when initial results are inconclusive. Nevertheless, even though in the long run
the proper handling of postconviction requests for DNA testing may turn out to be a
fleeting concern, this interim problem has highlighted flawed assumptions and failings in
our criminal justice system that will continue to require attention.

I. The Case for Finality.

       The law has always recognized the need for finality in judicial proceedings, and
especially in criminal proceedings. Indeed at common law, a motion for a new trial could
be granted only during the term of the court in which the final judgment of conviction
was entered.3 Although over time, many states extended the period in which relief could
be sought from a perceived erroneous judgment, the window in which this could be done
remained quite narrow, rarely extending beyond a year.4

      Why did the legal system seek to ensure the finality of most convictions? A
number of strong beliefs converged to produce this result.




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        A. The presumption of correctness. First of all, there was a firmly embraced
presumption that a jury of one‟s peers would render a correct verdict after a trial at which
the accused was accorded a full panoply of constitutional guarantees, including the right
to counsel. And the system provided in addition for appellate review, and mechanisms
for correcting grave constitutional errors. Allowing verdicts to be reopened implied that
this system did not always work, and detracted from the majesty of the law. It seemed
more palatable to suggest that in the rare instance of an erroneous verdict, executive
clemency rather than judicial attention would adequately rectify the mistake.5

         B. Evidence becomes less reliable over time. Second, there was a fear, a
genuine and well-based fear, that vacating a criminal judgment would lead to a second
trial in which the result was less likely to be accurate than the original verdict. This was
so because criminal proceedings often hinged on testimonial proof offered by
eyewitnesses and other fact witnesses. Over time, we know that some of these witnesses
will die or vanish; we live in a highly mobile society in which persons often relocate, and
then cannot be found. Even when a witness is available for the second trial, we know
that memories fade with the passage of time. Furthermore, we suspect that perjury will
flourish as witnesses become unavailable or fail to remember.

         In Herrera v. Collins, the Supreme Court categorically stated that “the passage of
time only diminishes the reliability of criminal adjudications.”6 The facts of Herrera
certainly supported this conclusion. Ten years after his conviction, petitioner claimed for
the first time that his brother, who had died six years previously, was the actual killer. To
prove this claim, petitioner offered a number of affidavits, which were inconsistent with
each other, and with defendant‟s version of the events. The proof at trial had been
extensive, including some traditional serological evidence, and a letter signed by the
petitioner in which he confessed his guilt.7

         C. The value of closure. Finality promoted needed closure for victims and their
families, and for participants in the legal proceedings -- witnesses, judicial officers,
prosecutors, victims‟ rights advocates, and law enforcement personnel. Finality meant
that all these individuals could get on with their lives because the case was over. Because
some closure was undoubtedly a first step towards emotional healing, finality had value
in contributing to better mental health.8

        D. The floodgates argument. Judicial resources have always been strained.
Finality conserved scarce judicial time by not opening the floodgates to meritless and
costly claims. Furthermore, by freeing judges to handle cases in which there as yet had
been no adjudication, finality served the presumption of innocence by providing an
accused with a speedier opportunity to prove his innocence and emerge from the shadow
of the state‟s accusation.

II. The Impact of DNA Testing on Arguments for Finality

        Many of the assumptions on which the case for finality rested have been
significantly undercut by the advent of DNA profiling. We now know that eyewitnesses
may be mistaken, that traditional forensic evidence does not always produce accurate



2
results, that DNA evidence actually gets better over time as technology improves, and
that greatly expanded databases may enable the true culprit to be identified if
postconviction DNA testing is done. It also remains true, however, that courts are hard
put to handle their current dockets, and that judicial budgets are as strained as ever.
Furthermore, DNA testing has imposed tremendous costs in money and time on forensic
laboratories as they struggle to handle current case work, to reassess unsolved cases, and
to deal with enormous backlogs of samples collected for databanks. What has been the
impact of these changes on the arguments for finality?

       A. DNA testing rebuts the presumption of accuracy.                 Undoubtedly, the
demonstration that numerous defendants were wrongfully convicted has made the most
dramatic inroad into the case for finality, especially as a significant percentage of the
convictions that were vacated related to inmates who were on death row. 9 As yet, we
know of no case in which someone was executed who would have been exonerated by
DNA testing, but the possibility is real and is being investigated in a number of cases.10

        For the first time, we have irrefutable proof of the fallibility of eyewitness
testimony. Of course, the reliability of eyewitness identifications has been suspect for
years.11 The Supreme Court evinced an interest in reducing the suggestiveness of line-
ups as long ago as the 1960's,12 but shortly thereafter retreated from doing anything
further to improve the accuracy of pretrial identifications.13 Extensive psychological
research that began in the 1970's – before DNA entered the courtroom– seemed to
demonstrate convincingly the failings of eyewitness testimony.14 Of necessity, however,
the social science studies that documented the inaccuracies of witness‟ accounts were
based almost exclusively on data derived through simulations. Skeptics questioned
whether witnesses in real life would perform as poorly as the participants in a staged or
scripted event who lacked the same incentives to make a correct identification, and who
were not as actively engaged in the event as a witness to a real crime.15

        But the more than one hundred twenty convictions that have now been vacated on
the basis of postconviction DNA testing offer unquestionable and systematic proof of the
unreliability of eyewitness testimony. It has now become possible to analyze what went
wrong in these proceedings. Almost every one of these cases rested almost exclusively
on an erroneous identification.16 Furthermore, we know that even an intelligent witness
who consciously sought to study her assailant‟s face could make an incorrect
identification and, in addition, fail to recognize the true perpetrator.17

       Moreover, the advent of DNA testing has done more than expose the fallacies of
eyewitness testimony. It has also illuminated other errors. In many of the cases in which
convictions have been overturned on the basis of DNA testing, the prosecution had relied
on expert testimony about matching hair in addition to eyewitness testimony.18
Mitochondrial DNA testing has now established the inaccuracy of microscopic hair
comparisons that courts had previously admitted.19

       DNA has also had a revolutionary impact on forensic laboratory practices. Critics
had protested for decades about the sorry state of many American crime laboratories.20
Both committees formed by the National Research Council to study the forensic use of


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DNA stressed the need for strict laboratory standards to minimize the risk of error.21
Under the leadership of the FBI, guidelines were developed for quality control and
quality assurance programs in DNA laboratories,22 and by 1999, a report by the National
Institute of Justice reported progress in forensic DNA laboratories with regard to
implementing such programs.23 The report also recognized the need to tailor quality
control and quality assurance programs for other types of forensic laboratories as well.
The consequence is a heightened awareness of the importance of credible laboratory
performance and the realization that faulty or sloppy laboratory analyses may result in
wrongful convictions.24

       Obviously, the presumption that jury verdicts are correct takes a battering when
we see indisputable proof of the weakness of eyewitness testimony, the worthlessness of
some traditional forensic techniques, and the woefully deficient standards that exist in
some crime laboratories.

        B. DNA evidence becomes more reliable over time. One assumption on which
the belief in finality rests – that the passage of time will undermine the accuracy of a
criminal adjudication25 – is completely refuted by DNA testing.26 The cases in which
convictions have been vacated demonstrate that a far more accurate result is obtainable
by means of DNA testing, even though many years, often more than a decade, have
elapsed since the original verdict.

       Unlike the memory of witnesses, DNA does not fade away.27 Furthermore, ever
since forensic DNA first entered the courtroom, technological advances have steadily
enhanced the discriminating power of DNA to identify correctly the source of biological
samples. Additional progress is expected in the near future.28

        C. DNA testing may lead to closure in unsolved cases. The argument that
finality provides closure for those emotionally involved is powerful. Reopening a case
may be traumatic, especially for victims and their families, who thought that they had
finally put what are often prolonged legal proceedings behind them. When DNA testing
results in the exclusion of the inmate, the victim will suffer great guilt if his or her
erroneous eyewitness testimony was responsible for the conviction, 29 and the victim
may, in addition, be terrified that the real perpetrator will return as he may have
threatened to do.

        Despite these compelling reasons for acknowledging the value of closure, the
argument that finality is essential to psychological health has also become less
convincing since the appearance of postconviction DNA testing. Testing may lead to
new and different benefits for the victim that must be considered in evaluating the value
of finality. For instance, if the inmate‟s identity as the perpetrator is confirmed – as it is
in a significant percentage of cases30 – the victim can be reassured that this result
decreases the possibility that the assailant will be released on probation or parole.
Furthermore, the inmate‟s DNA may be added to the federal or state databases which
may result in his being implicated in unsolved crimes.31 If the testing results in an
exclusion of the inmate, running the crime scene sample against DNA from other
suspects or against a databank may lead to the identification of the true culprit.32



4
Although the victim may be left with regrets about her role in the original trial, she will
finally have true closure because attempts to reopen the original case will cease. In
addition, she will have the satisfaction of knowing that others will be safer. If the
perpetrator was not in prison at the time he was identified, he now will be, and if he was
imprisoned, he is much less likely to be released.

        In other cases of exclusion in which the identity of the true perpetrator is not
immediately revealed, running the crime scene sample against samples from unsolved
crimes may prove helpful. If there is a match, further investigation may reveal other
links between the cases that will serve to identify the perpetrator. Putting the sample into
the database may also help to solve crimes in the future. Here too, the linking of the
cases may provide crucial investigative leads. Furthermore, as databases grow, there is a
possibility that an unidentified sample will match a new entry. In sum, postconviction
DNA testing may lead to resolutions beyond the particular proceeding in question and
provide closure in cases that would otherwise remain unsolved.

        D. The availability of postconviction testing does not unloose floodgates
although it may impose some costs. The floodgates argument has been in the news of
late in connection with new legislation that would permit prisoners to seek access to
DNA testing.33 Until very recently, only two states, New York in 1994 and Illinois in
1998, had enacted special statutes that specifically authorize postconviction access to
DNA testing.      This is changing rapidly. Spurred by growing public pressure to
acknowledge the problem of wrongful convictions,34 legislatures in many jurisdictions
began to consider a host of new proposals. By January 1, 2003, thirty-one states,
including New York and Illinois, had enacted legislation authorizing inmates to seek
DNA testing under specified circumstances,35 and legislation is pending in other states,36
and in Congress.37

         Although critics voice apprehension that prisoners‟ petitions will have an adverse
impact on the legal system,38 the empirical evidence suggests that fears of an avalanche
of requests are vastly overblown. For instance, the California Attorney-General‟s office
asked for $1.8 million to respond to the 400 petitions it expects a year under California‟s
new statute which took effect on January 1, 2001.39 However, New York had a total of
only about 100 applications in the first seven years during which its statute has been in
effect.40 This is remarkably low considering the large population of New York, the
extremely liberal standard in the New York statute,41 and the fact that New York is the
home of the Innocence Project, which far more than any other group has been involved in
postconviction DNA proceedings. Furthermore, California‟s actual experience seems far
more consistent with New York‟s than with the California Attorney-General‟s office
prediction. On its own initiative, the District Attorney‟s Office for the County of San
Diego, which has a population of 3 million, began reviewing all convictions of persons
still incarcerated that were obtained prior to 1993, the year when DNA casework began.
With about 75% of the work completed, only 3 cases had been identified in which DNA
testing might make a difference, but in only one was there a possibility that testing will
be done. One of the three inmates rejected the opportunity to test, and in a second case
no biological evidence that could be tested was preserved.42



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        That there may be considerably fewer requests for postconviction DNA testing
than some envision, does not, of course, mean that there are no costs associated with such
requests. Aside from the expense of investigating, screening and perhaps ultimately
testing, the cases in which convictions have been vacated demonstrate that complex
issues arise that command considerable judicial and prosecutorial attention before they
are resolved. And certainly it is to be expected that the new statutes authorizing access to
DNA testing will raise numerous questions of interpretation when they initially go into
effect. In addition, as will be discussed below, the right to postconviction testing will be
meaningless unless adequate procedural protections are provided, and these will add to
the cost of the proceedings. The scarce resources argument therefore continues to have
some strength, even though some of the more extreme predictions can be discounted
about the judicial system being swamped by motions for postconviction DNA testing.

         The advent of DNA testing has clearly reduced the persuasiveness of traditional
arguments that urge finality in criminal judicial proceedings. This inroad into finality is a
reality that more and more jurisdictions have become willing to accept -- in at least some
situations. For at a minimum, the new statutes that authorize postconviction DNA testing
acknowledge that it is inconsistent with justice to deprive all wrongfully convicted
persons of a meaningful opportunity to set aside their convictions in a judicial
proceeding. These statutes vary considerably, however, in setting out the conditions
under which access to DNA testing will be available, and illustrate a variety of policy
choices in striking a new balance between finality and justice.

III. Restriking the Balance Between Finality and Justice

       This section first considers and critiques three sets of policy choices that enter
into determining when postconviction DNA will be available. It then discusses
procedural choices that also need to be made.

        A. When should testing be available. 1. Proof of innocence versus a lesser
standard. A fundamental choice that faces legislatures and courts is whether testing
should be available only when an exclusionary result could be determinative of the
innocence of the petitioner seeking testing,43 or whether testing should be extended to
situations in which proof of an exclusion might have a lesser effect.44 For instance,
testing could be limited to cases in which the result might raise a reasonable doubt, 45 or
allowed if an exclusionary result at trial would probably have led to a more favorable
verdict or sentence.46 Determining the standard that exclusionary results must meet is the
point at which striking an appropriate balance between the competing interests of finality
and justice becomes most acute.

        Sometimes the exonerative effect of an exclusion will be obvious– as when the
petitioner was convicted of raping a sexually-inactive child. At other times exoneration
may depend on the facts of the case. If, for instance, petitioner was convicted of raping a
woman who reported that two men had raped her, and that she had not had consensual
sex in the relevant period preceding the rape, testing will exonerate the petitioner only if
the results reveal two separate DNA profiles, neither of which is the petitioner‟s.




6
        There are also cases in which the effect of an exclusionary result will be in
dispute. One such scenario occurs when the rape victim is dead and the prosecution
argues that an exclusionary result does not prove the petitioner‟s innocence because if the
victim had consensual sex before her death the crime scene DNA profile might be that of
her partner rather than that of her assailant. Such an argument was made in the Criner
case in Texas in which petitioner‟s conviction was reinstated by the reviewing court after
it had been vacated on the basis of an exclusionary result. Petitioner was finally
pardoned after a DNA test of a cigarette butt found near the victim‟s body was found to
contain both the victim‟s DNA and DNA that matched the donor of the semen.47

         In cases such as these it might be fairer to place the burden of proof on the
prosecution to show the likelihood of the victim‟s having had consensual sex, rather than
requiring the petitioner to rebut the possibility. If the petitioner is innocent, he is unlikely
to have any information about the victim‟s life, but the prosecution will have conducted a
full investigation into the victim‟s last few days in searching for her killer. The law often
shifts the burden of establishing a fact to the party who has peculiar knowledge as to the
matter.48 Other evidentiary mechanisms, such as drawing inferences from the failure to
produce evidence, might be needed to deal with other fact patterns. Suppose, for
instance, that the victim admits to consensual sex at the relevant time, but his or her
partner refuses to provide a sample, or has vanished, or is dead, all real possibilities given
the time that may have elapsed between the conviction and the request for testing. As yet
there is virtually no law on obtaining elimination samples from third persons, or on the
consequences of such a sample not being available.49

        In some cases an exclusionary result will not be determinative of innocence. It
may, however raise a reasonable doubt about guilt, or may likely have produced a more
favorable result at petitioner‟s trial, or may simply be helpful to petitioner, as when the
conviction was used to enhance sentencing. Determining precisely what effect the lack
of testing had may be extremely speculative. What would have happened at the
defendant‟s trial if the prosecutor had not continuously and suggestively waved a bloody
shirt found at defendant‟s house? Even if DNA testing proves that the bloodstains are not
the victim‟s, that does not prove that defendant is not a murderer. But it may mean that
defendant had a very unfair trial. Should we spend scarce resources on looking at that
kind of case?

         The new statutes contain a variety of different standards that run along the
spectrum from requiring an exclusion to establish actual innocence50 to no standard at
all.51 It is too soon to determine what a majority of the states are doing because so many
bills are pending, and the appellate courts have not as yet had an adequate opportunity to
interpret the statutes that have gone into effect.52

        2. Limiting testing to inmates with the most severe sentences versus all
inmates. Some states have enacted statutes that tie access to postconviction testing to the
severity of the petitioner‟s sentence. Tennessee and Kentucky allow petitions only by
inmates who were convicted of first degree murder and sentenced to death.53 Washington
similarly permits petitions by inmates on death row, but also allows requests from
persons sentenced to “life imprisonment without possibility of release or parole.”54


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        Although it is perhaps understandable why a state might ration its resources by
limiting postconviction DNA testing to cases in which exclusionary results would most
likely have produced a different outcome, it is difficult to fathom why an inmate who
never had an opportunity to establish his innocence through DNA testing should rot
behind prison bars even when an exclusion would be exonerative.55

        3. Insisting on a continuous claim of innocence versus treating guilty pleas
and confessions as factors to take into account. We know from the work of the
Innocence Projects that a high percentage of those whose convictions were ultimately
vacated, had confessed or had allegedly confessed, to the crimes of which they were
convicted.56 We also know from other sources that false confessions are not a rarity.57
Recently, the phenomenon received much attention in connection with the 1989 Central
Park jogger rape case in which five young men, then 14 to 16 years old, were convicted
after they confessed to a particularly heinous gang rape in which the victim was left for
dead. Twelve years later, an inmate imprisoned for a series of rapes, confessed to the
crime and his DNA was found to match the Central Park crime scene sample.58 The
convictions were vacated.

        The failure to assert a continuous claim of innocence should not, therefore, be
treated as a conclusive factor weighing against a request for testing.

        B. Procedural issues. Another way of allocating resources is to provide varying
benefits for the petitioner depending on how likely it is that an exclusionary result would
result in proof of innocence. For instance, the state might pay for testing in certain
categories of cases if the petitioner is indigent but not in others, though it would still
permit testing if the inmate could arrange for funding.

        Payment for counsel is, however, essential in the case of all requests. As the
preceding discussion about the varying significance of an exclusionary result should
indicate, far more is involved in postconviction DNA applications than simply asking for
testing of the biological crime scene evidence. The viability of the inmate‟s claim cannot
be assessed without a thorough investigation of the case. This means evaluating trial
transcripts, laboratory and police reports, as well as trial and appellate briefs. It is highly
unlikely that this can be done without the assistance of counsel whose help is also
essential in presenting petitioner‟s request to the court ruling on the petition,59 and in
identifying and locating the biological evidence that was collected and that might be
testable if it still exists.

        There is no constitutional right to counsel at the postconviction stage. While the
new Arizona, California, Indiana, New Jersey, North Carolina, Oklahoma and Wisconsin
statutes contain specific provisions authorizing the court to appoint counsel for indigent
petitioners seeking postconviction testing,60 other statutes are silent on this issue. Since it
is impossible to categorize the nature of a claim without counsel‟s assistance, the need for
counsel for all indigent petitioners should be acknowledged in all jurisdictions, and some
sort of funding mechanism should be established.61 Otherwise the would-be-petitioner
may be thwarted in his efforts to obtain testing unless he manages to obtain the assistance
of an organization like the Innocence Project, or is referred to appropriate pro bono



8
counsel by a sympathetic prosecutor or judge. Such an ad hoc approach does not deal
adequately with the gravity of wrongfully obtained convictions. Funds for paying experts
should be available as well. Defense counsel require assistance in assessing DNA
evidence.62

         C. Where Should the Responsibility for Assessing Postconviction Relief Lie?
Aside from spurring legislative action, the current interest in postconviction issues has
had another effect – it has convinced some prosecutors to review convictions in their
jurisdiction to determine whether inmates should be offered postconviction DNA testing
even though they have not made a request. At first glance, this looks like a wonderful
development. Prosecutorial review promises an even-handed approach that would
benefit all inmates and not just those who are particularly resourceful, or who have
persistent lawyers, relatives or friends who can find and persuade a court or prosecutor to
allow access to DNA testing. But there is another side to this coin. We have ample
evidence from other professions and from the law enforcement community itself that
institutions frequently resist exposing errors committed by their constituents for fear of
jeopardizing relationships with fellow members.63 Unfortunately we know of quite a few
long-standing failures to uncover mistakes in the criminal justice system. Prosecutors
have been reluctant to report possible failings in the laboratory,64 police departments,65 or
within the prosecutorial office itself.66 This institutional reluctance to acknowledge
mistakes poses the risk that prosecutorial review, rather than uncovering instances in
which postconviction testing should be done, will instead whitewash the system and
make it harder to secure testing in any individual case. As the discussion above indicates,
there is not always a bright line that instantly distinguishes a case in which testing is
justified from one in which it is not. Institutional biases may blind prosecutors who are
reviewing cases en masse from recognizing the deserving cases.

        Is there anything that can be done to ensure that deserving candidates for
postconviction DNA testing will not be overlooked? One possibility would be not to
leave the initial protocol that sets out criteria for reviewing cases solely to the discretion
of a prosecutorial office. Instead, the protocol should be designed by a joint committee
that includes representatives of the defense bar, such as public defenders, and members of
the judiciary, who are familiar with DNA issues. A second possible safeguard would be
to have the actual review of the convictions audited by an outside group, perhaps by
sampling the cases that are being considered. Bar groups or law school clinics might be
able to undertake some of this work pro bono. Finally, as has long been urged by the
Innocence Project, we need a commission or commissions, such as Britain has, to
investigate all convictions that are vacated to determine what went wrong. Such a
commission could look beyond the facts of the particular case to determine whether
systemic problems in the jurisdiction produced the erroneous verdict. A finding of
serious flaws in the operation of any component of law enforcement should trigger an
independent review of inmate convictions with regard to the viability of postconviction
DNA testing.67

IV Lessons for the Future




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    Requests for postconviction DNA testing may soon disappear. Indeed, some of the
new statutes have inserted dates after which testing requests will be automatically denied
in the absence of exceptional circumstances.68 But although the need for postconviction
DNA testing is undoubtedly a temporary phenomenon, one that will be relegated to a
footnote in some treatise of the future, we will be making a terrible mistake if we do not
extract some enduring lessons from this experience:

        We must develop protocols for preserving evidence after a conviction. We will
         never know how many persons remain in prison who could have been cleared by
         DNA testing, if only there had been something to test. At the very least we need
         guidelines on where and in what form evidence should be retained, and for how
         long, and we need provisions as to how available evidence should be inventoried.
         The countless hours spent in searching for evidence to test could certainly be put
         to better use. It may be that other technological innovations may occur in the
         future, raising the same need to reexamine evidence as existed with DNA.
         Furthermore, we know that evidence may have to be reexamined for many
         reasons. At this moment, there is an ongoing investigation of the police in Los
         Angeles as well as other cities, and investigations of forensic laboratories are
         being conducted in a number of states. The possibility of moratoriums on the
         death penalty is being explored. Overturning wrongfully obtained convictions in
         these jurisdictions and others, may hinge on finding evidence in the files of the
         cases being reexamined.

        We must pay more attention to what constitutes good science. Many of the
         vacated convictions hinged on forensic science that should and could have been
         attacked at trial, either because the underlying science had not been validated, or
         because the laboratory procedures were so deficient. Bad forensic science cannot
         be eliminated unless funding for studies is provided.

        We must improve the quality of defense counsel representing indigents. Many of
         the cases demonstrate that the defendant might well not have been convicted if he
         had been provided with adequate representation.

        The DNA postconviction cases clearly point to the ugly effect of racism on our
         criminal justice system. The Innocence Project found that 40% of the cases in
         which they successfully vacated a conviction involved a black inmate and white
         victims, even though only 15% of sex murders had these characteristics.

    The postconviction DNA cases provide us with a window through which to view our
criminal justice system. The landscape that we glimpse clearly corresponds with other
contemporaneous accounts of the sorry state of criminal justice in the United States.69
This is a condition that we cannot afford to tolerate if we value living in a just society.

    Rather than ending this essay on a pessimistic note, however, I would suggest that a
more upbeat, alternative reading can also be gleaned from this record of postconviction
DNA testing. The experience shows that change is possible, that individuals can make a
difference, and that persons of good will can cooperate even though they represent



10
different constituencies with divergent views. Starting less than ten years ago, a small
group of dedicated lawyers, and in particular those connected with the Innocence Project,
grasped the remedial power of DNA and began an effort that led to justice, albeit greatly
delayed justice, for at least some of the wrongfully convicted. In doing so, they have
alerted us to the danger of rigidly upholding finality as a prime value of our criminal
justice system, and have illuminated the many failings that infect criminal proceedings in
the United States. The current legislative initiative with regard to postconviction DNA
testing attests to the public‟s having become sensitized to these issues through the
accounts of DNA exonerations. We may now have a remarkable opportunity to make
sorely needed changes in our system of criminal justice that could have significance long
after the era of postconviction DNA testing has ended. We should make the most of this
moment in time.




1
    See http://www.innocenceproject.org (last visited Jan. 31, 2003).
2
 Statement of Barry C. Scheck that needed biological material cannot be found in 75% of
cases taken up by Innocence Project. Frank Green, “Lawyer Stresses Power of DNA;
Test Clear Even Some Who „Confess,‟” The Richmond Times-Dispatch, July 17, 2001, at
A1.
3
    Herrera v. Collins, 506 U.S. 390, 408 (1993).
4
    Id. at 410.
5
 Herrera v. Collins, 506 U.S. 390, 411-12 (1993) (“Clemency is deeply rooted in our
Anglo-American tradition of law, and is the historic remedy for preventing miscarriages
of justice where judicial process has been exhausted.”).
6
    Id. at 402.
7
    Id. at 421-424; (O‟Connor, J. concurring).
8
 Cf. Jaffee v. Redmond, 518 U.S. 1, 2 (1996) (Court justified creating a new privilege
for communications to a licensed social worker on the ground that: “The mental health of
our citizenry, no less than its physical health, is a public good of transcendent
importance.”)
9
 Steve Mills et al, “3 Cases Weaken Under Scrutiny: Investigative Report. Executions in
America,” Chicago Tribune, December 17, 2000, p. A1. The release of prisoners on
death row as a consequence of DNA testing has been linked to growing uneasiness about
the death penalty. See, e.g., Jennifer L. Harry, “Death Penalty Disquiet Stirs Nation,”
Corrections Today, vol. 62, p. 122, 128 (2000).
10
  At least two persons, who were not executed, have been exonerated after their death.
Frank Lee Smith who died after 14 years on Florida‟s death row (Frank Green, “DNA


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Tests Not Likely After an Execution,” The Richmond Times-Dispatch, Mar. 26, 2001, at
A-1) and a rape suspect who committed suicide in jail while his case was pending
(Associated Press, “DNA Evidence Clears PA. Rape Suspect,” N.Y. Times, Jan. 9, 2003.)
A Georgia court ordered post-execution DNA testing, but the results were inconclusive.
Green, supra. In November 2002, Virginia denied a request for post-execution testing
brought by a group of newspapers in the case of Roger Keith Coleman. See Eric M.
Weiss, “DNA Testing by Media Barred,” The Washington Post, Nov. 2, 2002, at B1;
Sheryl McCarthy, “All Doubt Should Be Absent in Capital Cases,” N.Y. Newsday, Nov.
11, 2002, at A26. Virginia had also denied a post-execution request from the Richmond
Catholic Diocese in 1997 to test DNA samples in the case of Joseph O‟Dell and ordered
the destruction of the evidence. In 2001, Virginia enacted a law authorizing the
destruction of DNA samples immediately following an execution. Green, supra.
11
  See Edwin M. Borchard, Convicting the Innocent, (Da Capo Press, 1970), passim
(originally published in 1932).
12
  See United States v. Wade, 388 U.S. 218 (1967) and Gilbert v. California, 388 U.S. 263
(1967) (holding that identifications made at lineups were inadmissible unless counsel was
present); Stovall v. Denno, 388 U.S. 293, 301-02 (1967) (due process right recognized to
exclude from evidence the results of an identification procedure that was “unnecessarily
suggestive and conducive to irreparable mistaken identification.”)
13
  In Kirby v. Illinois, 406 U.S. 682, 689 (1972) the Court greatly restricted the Wade-
Gilbert right by making it applicable only to identification procedures taking place after
formal adversary proceedings were initiated, and in United States v. Ash, 413 U.S. 300
(1973), the Court held that Wade-Gilbert did not apply to photographic show-ups. The
due process right announced in Stovall has been found to rarely result in the exclusion of
identification testimony. See Benjamin E. Rosenberg, “Rethinking the Right to Due
Process in Connection with Pretrial Identification Procedures: An Analysis and
Proposal,” Kentucky Law Journal, vol. 79 (1990-91) p. 259.
14
 See, e.g., Elizabeth Loftus, Eyewitness Testimony (Harvard University Press, 1996);
Brian L. Cutler and Steven D. Penrod, Mistaken Identification: The Eyewitness,
Psychology, and the Law (Cambridge University Press, 1995); Gary Wells, Eyewitness
Testimony (Carswell Legal Publications, 1988).
15
  Gary Wells, “Applied Eyewitness Testimony Research: System Variables and
Estimator Variables,” Journal of Personality and Social Psychology, vol. 36 (1978) pp.
1546, 1551-55.
16
  Edward Connors and others, Convicted by Juries, Exonerated by Science: Case Studies
in the Use of DNA Evidence to Establish Innocence After Trial (National Institute of
Justice, 1996), pp. 16-17 (exhibit 3 summarizes the evidence produced at trial in each of
28 cases; all except for the homicides involved victim identification). See also Barry
Scheck, Peter Neufeld and Jim Dwyer, Actual Innocence: Five Days to Execution and




12
Other Dispatches From the Wrongly Convicted, p. 73 (Doubleday, 2000) (84% of
vacated wrongful convictions were dependent on mistaken identifications).
17
  Ronald Cotton was imprisoned for 11 years when Jennifer Thompson, a college student
with a 4.0 GPA, identified him as having raped her at knifepoint. Thompson has stated
that she made a concerted effort to memorize her assailant‟s features: “I studied every
single detail on the rapist‟s face. I looked at his hairline; I looked for scars, for tattoos,
for anything that would help me identify him. When and if I survived the attack, I was
going to make sure that he was put in prison and he was going to rot. When I went to the
police department later that day, I worked on a composite sketch to the very best of my
ability. I looked through hundreds of noses and eyes and eyebrows and hairlines and
nostrils and lips. I identified my attacker. I knew this was the man. I was completely
confident. I was sure.” Several years later at a pretrial hearing after Cotton‟s conviction
was overturned because of the exclusion of exculpatory evidence, Thompson was
confronted with Bobby Peale who had allegedly confessed to being Thompson‟s rapist.
Thompson swore she had never seen him before. Cotton was convicted again, and
sentenced to two consecutive life sentences. When DNA testing was finally done, the
results showed that Bobby Poole and not Ronald Cotton had raped Thompson. See
Jennifer Thompson, “I Was Certain, but I Was Wrong,” N.Y.Times, June 18, 2000, § 4, at
15.
18
  Connors, Convicted by Juries, pp. 16-17[2d reference; see n. 13]. See also Jim
Yardley, “Inquiry Focuses on Scientist Employed by Prosecutors,” N.Y. Times, May 2,
2001, § A, at 14 (reporting on Barry Scheck‟s comments about the case of Robert Miller,
who was sentenced for murder in 1988 after testimony that hairs found at the crime scene
were consistent with his; another suspect, Ronnie Lott had been excluded as a possible
hair donor; DNA testing eventually exonerated Miller and inculpated Lott).
19
  Max M. Houch & Bruce Budowle, “Correlation of Microscopic and Mitochondrial
DNA Hair Comparison,” J. Forensic Sci., vol. 47 (2002) pp. 964, 966 (“Of the 80 hairs
that were microscopically associated, nine comparisons were excluded by mtDNA
analysis.”); Paul C. Giannelli, “Scientific Evidence in Civil and Criminal Cases, Arizona
State Law Journal, vol. 33 (2001) pp. 103, 113-17 (discusses hair evidence and some of
the cases in which DNA evidence ultimately exonerated the defendant).

 See, e.g. Paul C. Giannelli, “The Abuse of Scientific Evidence in Criminal Cases: the
20

Need for Independent Crime Laboratories,” Virginia Journal of Social Policy & the
Law, vol. 4 (1997), p. 439.
21
  Committee on DNA Forensic Science: an Update, The Evaluation of Forensic DNA
Evidence (National Research Council, 1996), chapter 3; Committee on DNA Technology
in Forensic Science (National Research Council, 1992), pp. 104 -105.
22
  David H. Kaye & George F. Sensabaugh, Jr., “Reference Guide on DNA Evidence,” in
Reference Manual on Scientific Evidence (Federal Judicial Center, 2d ed., 2000), pp. 509-
15.


                                                                                           13
23
  National Institute of Justice, Forensic Sciences: Review of Status and Needs (1999), p.
43 (“During the past 5 years, quality-control and quality-assurance program
improvements have been realized by forensic DNA laboratories. These improvements
have not only enhanced the reliability of the methods employed, but laboratories have
also increasingly found the criminal justice system receptive to admissibility issues.”). As
of 1998, just over half (56% of 120) of DNA crime laboratories were accredited by an
official organization. As of 2001, 63% (of 110) were accredited. Bureau of Justice
Statistics, Bulletin, Survey of DNA Crime Laboratories, 2001. Margaret A. Berger,
“Raising the Bar: The Impact of DNA Testing on the Field of Forensics,” in Perspectives
Lecture Series 2000-2001 (National Institute of Justice 2002).
24
  Montana and Washington are currently reviewing cases handled by state forensic
scientist Arnold Melnikoff, who had been the director of the Montana State Crime
Laboratory and now works for the Washington State police, after DNA evidence cleared
a Montana man who spent 15 years in prison for the rape of a young girl. Adam Liptak,
“2 States to Review Lab Work of Expert Who Erred on ID,” N.Y. Times, Dec. 19, 2002,
at A24 (Melnikoff had testified that hair on victim matched defendant‟s -- which FBI
report found to be false – and made up probabilities about likelihood of match). Yardley,
“Inquiry Focuses” [2d reference; see n.18] (Oklahoma governor ordered investigation
after FBI report found that an Oklahoma police forensic chemist had misidentified
evidence or testified improperly in at least 5 of the 8 cases the FBI reviewed; chemist had
worked on approximately 3000 cases and had identified suspects on the basis of hair,
blood and fiber analysis; she testified in 23 cases resulting in death sentences, 10 of
which have already been carried out; in the case that prompted the FBI investigation,
defendant was convicted of rape 16 years earlier on the basis of her testimony about hair
matches; DNA testing and the FBI‟s review of the hair evidence excluded the
defendant). See also note 55, infra. The West Virginia Supreme Court stated that a State
Police Crime Lab analyst may have lied or fabricated evidence in dozens of cases. Becky
Bohrer, “Former Crime-lab Chief‟s Cases Under Review,” The Philadelphia Inquirer,
Dec. 22, 2002, at A9. See also Investigation of the West Virginia State Police Crime
Laboratory, Serology Division, 438 S.E.2d 501 (1993). In 2002, Las Vegas began
reviewing hundreds of DNA tests after authorities discovered name labels on DNA
profiles had been switched. Glenn Puit, “Police Forensics: DNA Mix-up Prompts Audit
at Lab,” Los Vegas Review-Journal, April 19, 2002, at 1B. 27.
25
     Herrera, 506 U.S. at 402.
26
  See, e.g., Maria Samminiatelli, “Virginia‟s DNA Database Averaging One Cold Hit a
Day,” The Associated Press State & Local Wire, April 29, 2001. In April, 2001, Virginia,
the largest state contributor of samples, averaged one cold hit per day and ultimately
reached its 1,000th cold hit in November, 2002. See also Erin Hallissy, “Baffling Rapes,
Slayings Solved; Federal „Cold Hit‟ DNA Database Links Old Evidence to Felons,” The
San Francisco Chronicle, Dec. 9, 2002, p. A1. In 2000, Arizona had 153 cold hits from
the database. Howard Fisher, “State Acts to Widen DNA Testing,” The Arizona Daily
Star, April 12, 2002, p. A8.



14
27
  National Commission on the Future of DNA Evidence, The Future of Forensic DNA
Testing: Predictions of the Research and Development Working Group 15 (National
Institute of Justice 2000) (“DNA is remarkably stable, as is evidenced by its being
identified long after death, for example, in Egyptian mummies or even extinct
mammoths.”)
28
  National Commission on the Future of DNA Evidence, The Future of Forensic DNA
Testing: Predictions of the Research and Development Working Group 15 (National
Institute of Justice 2000) (“DNA is remarkably stable, as is evidenced by its being
identified long after death, for example, in Egyptian mummies or even extinct
mammoths.”)
29
     Thompson, “I Was Certain,” [2d reference; see n.17].
30
  Statement of Barry C. Scheck, DNA and the Criminal Justice System, John F. Kennedy
School of Government (Nov. 20, 2000) (estimating that between 50 and 60% of
postconviction DNA tests incriminate the petitioner who sought testing).
31
  In Arizona, Indiana and Michigan, if the results of the DNA testing are not favorable to
the inmate, the court may request that the DNA sample be added to the federal or state
DNA database. In Pennsylvania and Louisiana, inculpatory results may be entered in law
enforcement databases. In Utah, the petitioner must waive all statutes of limitations in
any jurisdictions as to any felony offense he has committed which is identified through
DNA database comparison. Under the proposed federal Innocence Protection Act,
inculpatory test results lead to submission of the inmate‟s DNA to the federal DNA
database. See Note 35, infra for citations to statutes.
32
     Ibid and see Thompson, “I Was Certain,” [3d reference; see note 17].
33
  See N.Y. Crim. Proc. 440.30(1-a) (McKinney‟s 2001); 725 Ill. Comp. Stat. Ann.
5/116-3 (West 2001). These statutes contain no time limits on making such requests.
Nevertheless, despite time bars in other states‟ general statutes regarding newly
discovered evidence, some courts have on a variety of theories permitted inmates access
to postconviction DNA testing even after the applicable period had run. See National
Commission on The Future of DNA Evidence, Postconviction DNA Testing:
Recommendations for Handling Requests, chapter 2 (National Institute of Justice, 1999)
(details the legal uncertainty that surrounds requests for postconviction DNA testing in
states that do not have specific statutory authorization).
34
  Numerous developments on a number of interrelated fronts have contributed to this
demand for change. When, primarily through the efforts of the Innocence Project,
inmates began to be released from prison on the basis of DNA testing, the National
Institute of Justice commissioned a study which reported on 28 cases in which DNA had
exculpated inmates. See Connors, Convicted by Juries, [3d reference; see note 16].
Attorney General Janet Reno then created a National Commission on the Future of DNA
Evidence in 1998, whose first task, assigned to the Postconviction Issues Working Group,



                                                                                       15
was to make recommendations for handling inmates‟ requests for DNA testing. The
resulting report was published in September 1999, and was widely distributed. See
National Commission, Recommendations, [2d reference; see note 33]. The Working
Group also proposed a model statute for handling requests. All of these events received
wide media coverage, including a number of TV specials. The media has continued to
report in considerable depth on the rapidly accelerating number of convictions being
vacated on the basis of postconviction DNA testing.
35
  ARIZ. REV. STAT § 13-4240 (2002); ARK. CODE ANN. § 16-112-202 (Michie 2002);
CAL. PENAL CODE § 1405 (West 2002); DEL. CODE ANN. tit. 11, § 4504 (2002); D.C. CODE
ANN. § 22-4133 (2002); FLA. STAT. ANN. 925.11 (West 2002); IDAHO CODE §§ 19-2719,
19-4902 (Michie 2002); 725 ILL. COMP. STAT. ANN. § 5/116-3 (West 2002); IND. CODE
ANN. §§ 35-38-7-1 to 19 (West 2002); KAN. STAT. ANN. § 21-2512 (2001); KY REV. STAT.
Ch. 422.285 (2002); LA. CODE CRIM. PROC. ANN. art. 926.1 (West 2002); ME. REV. STAT
ANN. tit. 15, § 2137 (West 2001); MD. CODE ANN., CRIM PROC. § 8-201 (2002); MICH.
COMP. LAWS ANN. § 770.16 (West 2002); MINN. STAT. ANN. § 590.01 (West 2002); MO.
ANN. STAT. § 547.035 (West 2002); NEB. REV. STAT. ANN. §§ 29-4417 to 4125 (Michie
2002); N.J. STAT ANN. § 2A:84-32A (West 2002); N.M. STAT. ANN. § 31-1A-1 (Michie
2002); N.Y. CRIM. PROC. LAW § 440.30 (McKinney 2002); N.C. GEN. STAT. § 15A-269
(2002); OKLA. STAT. tit. 22, §§ 1371, 1371.1, 1372 (2002); 42 PA. C.S.A. § 9543.1 (2002);
R.I. GEN. LAWS 1956, § 10-9.1-11 (2002); TENN. CODE ANN. §§ 40-30-401 to 413 (2002);
TEX. CODE CRIM. PROC. ANN. art. 64.03 (Vernon 2001); UTAH CODE ANN. §§ 78-35A-301
to 304 (2002); VA. CODE ANN. § 19.2-327.1 (Michie 2002); WASH. REV. CODE §
10.73.170 (2002); WISC. STAT. § 974.07 (2001). For a comprehensive discussion of the
state statutes, see Kathy Swedlow, “Don‟t Believe Everything You Read: A Review of
Modern “Post-Conviction” DNA Testing Statutes,” 38 California Western Law Review,
Vol. 38, p. 355 (2002).
36
 Legislation for postconviction DNA testing has also been proposed in Alabama,
Hawaii, Iowa, Mississippi, Nevada, North Carolina, Ohio, South Dakota and West
Virginia. David DeFoore, “Postconviction DNA Testing: A Cry for Justice from the
Wrongfully Convicted,” Texas Technology Law Review, vol. 491 (2002).
37
  The Innocence Protection Act is at this writing pending before Congress. See S. 486
(approved by the Senate Judiciary Committee in July, 2002) and the House Version, H.R.
912.
38
  See Craig Timberg, “Gilmore Signs Bill Permitting Felon DNA Tests; Death Row
Inmates Eligible,” Washington Post, May 3, 2001 (reporting that Governor Gilmore had
originally opposed bill and sought to amend it; his advisers explained that “he was
reluctant to weaken the sense of finality that a conviction in Virginia now represents for
victims and their families and that he also feared the law would unleash a torrent of new
appeals.”).
39
     Hudson Sangree, “DNA Reality,” San Francisco Daily Journal,” April 10, 2001, p.1.




16
40
  Ibid, quoting Barry C. Scheck. In 2001, the Brooklyn District Attorney‟s office began
reviewing cases to determine if DNA evidence could exonerate incarcerated individuals.
Of 703 cases reviewed, only 2 were examined in detail to determine whether DNA
evidence could be recovered. The District Attorney‟s Office eliminated almost half of the
cases because the defendant confessed or acknowledged committing the act. Daniel Wise,
“Brooklyn Prosecutors Find Convictions Pass DNA Test,” N.Y.L.J., Aug. 6, 2001, p. 1.
41
  See N.Y. Crim. Proc. Law [2d reference; see n.33] (requires showing that had DNA
results been introduced at trial , there is “ reasonable probability that the verdict would
have been more favorable to the defendant.”).
42
  Statement of George Woody Clarke, An International Conference on DNA and Human
Rights, University of Berkeley, April 27, 2001. In May 2001, the California Attorney
General‟s Office announced that only 30 requests for testing had been received since the
law went into effect on January 1, 2001 and that none had been granted. “Few Inmates
Use Law That Allows DNA Testing,” Los Angeles Times, May 18, 2001, sec. B, p. 9. In
New Jersey, less than a dozen inmates took advantage of a free testing program and none
was cleared. Richard Willing, “Few Inmates Seek Exonerations with Free DNA Tests,”
USA Today, July 30, 2002.
43
  The Recommendations of the Working Group on Postconviction Issues in its
Framework for Analysis classified cases in which exclusionary results will exonerate the
petitioner as category 1 cases. National Commission, Recommendations, pp. 3-4 [3d
reference; n.33] (other examples are given of recurring fact patterns). In Cherrix v.
Braxton, 131 F.Supp.2d 756 (E.D. Va. 2000) a federal district judge held that it had
authority under the funding assistance in capital cases statute to grant state inmate‟s
request for funds for DNA testing and to order testing; court relied on Recommendations
to determine that testing was warranted because the case fell into category 1).
44
  See National Commision, Recommendations, pp. 5-6 [4th reference; n.33] for
examples of when exclusionary results although not exonerative might be helpful.
45
  Oklahoma Stat. Ann. § 1371.1 (West 2001) (“factual innocence requires the defendant
to establish by clear and convincing evidence that no reasonable jury would have found
the defendant guilty beyond a reasonable doubt.”).
46
     New York Crim. Proc. Law [3d reference; see n.33].
47
 See Statement of Barry C. Scheck [2d reference; see n.30]. A full account of the
Criner case can be found in the Houston Chronicle. See Harvey Rice, “Justice Deferred,”
Houston Chronicle, November 26, 2000, Texas Magazine, at 6.
48
  Campbell v. United States, 365 U.S. 85, 96 (1961) (“the ordinary rule, based on
considerations of fairness, does not place the burden upon a litigant of establishing facts
peculiarly within the knowledge of his adversary.”).




                                                                                              17
49
  IND. CODE ANN. § 35-38-7-15 (West 2002) (statute allows for elimination samples from
third parties under “extraordinary circumstances.”) For a discussion of court orders
compelling consensual partners to provide DNA samples, see Cynthia Bryant, “When
One Man‟s DNA is Another‟s Exonerating Evidence: Compelling Consensual Sexual
Partners of Rape Victims to Provide DNA Samples to Postconviction Petitioners,”
Columbia Journal of Law & Social Policy, vol. 33, p. 113 (2000).
50
  Utah Code Ann. § 78-35a-301 (enacted March 19, 2001) (“the evidence that is the
subject of the request for testing has the potential to produce new, noncumulative
evidence that will establish the person‟s actual innocence”).
51
     See Connecticut General Stat. Ann. § 52-582 (West 2001).
52
  But see appellate court opinions that have interpreted state laws narrowly: State v.
Gholston, 697 N.E.2d 375 (Ill. App. Ct. 1998) (denying the defendant postconviction
DNA testing on the ground that testing would not be “material” to the defendant‟s actual
innocence claim). In Gholston, the court concluded that the absence of the defendant‟s
DNA from the crime sample would not conclusively exclude him as the perpetrator and,
therefore, the evidence was insufficient to override witness identifications and self-
incriminating statements. See also Coombs v. State, 824 So.2d 958 (Fl. 2002) (denying
defendant‟s motion for postconviction DNA testing on the ground that the motion was
insufficient in explaining how testing would exonerate defendant, even though defendant
argued that newer DNA testing could provide conclusive results where pre-conviction
testing results in 1995 were inconclusive). The Texas Court of Appeals has interpreted its
statute as requiring the defendant to show “a reasonable probability exists that
exculpatory DNA tests will prove [his] innocence.” Kutzner v. State, 75 S.W.3d 427, 438
(Tex. Crim. App. 2002). Relying on Kuntzner, a Texas Appellate court denied
defendant‟s motion for DNA testing, finding that exculpatory DNA tests of blood on the
weapon used in the assault would not prove the defendant‟s innocence. Thompson v.
State, __ S.W.3d __ (2002), at 2002 WL 31618806.
53
  Tennessee Code Ann. § 40-26-106 (2000) (establishes presumption of no testing for
convictions obtained after July 1, 1998); Kentucky Revised Statutes, Ch. 422.285 (2002).
54
  West‟s Revised Code of Washington Ann. 10.73.170 (2000) (requests for testing on or
before December 31, 2002).
55
  On May 7, 2001 an Oklahoma judge vacated the conviction of Jeffrey Pierce, the man
whose case had triggered an investigation of a forensic chemist in Oklahoma. See
Yardley, “Inquiry Focuses” [3d reference; see n.18]. Pierce had served 15 years of a 65-
year sentence. Jim Yardley, “Flaws in Chemist‟s Findings Free Man at Center of
Inquiry,” N.Y. Times, May 8, 2001, at A1.
56
  Scheck, Actual Innocence, p. 92 [2d reference; n.16] (convictions in 23% of DNA
exonerations studied by the Innocence Project were based on false confessions or
admissions). Similarly, a 1987 study of 350 exonerated capital defendants had found that



18
14% of the convictions were a result of confessions that turned out to be false. Hugo
Adam Bedau & Michael L. Radelet, “Miscarriages of Justice in Potentially Capital
Cases,” Stanford Law Review, vol. 40, p. 21 (1987).
57
  Richard A. Leo and Richard J. Ofshe, “The Consequences of False Confessions:
Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological
Interrogation,” Journal of Criminal Law and Criminology, vol. 88 (1988), p. 429 (“As
many investigators have recognized, the problems caused by police-induced false
confessions are significant, recurrent, and deeply troubling.”). In Florida, a 49-year old
retarded man, Jerry Townsend, was released after spending almost 22 years in prison for
a series of murders and a rape to which he had confessed; the review of his convictions
was spurred when DNA testing exonerated another inmate on death row, and identified
the perpetrator as Eddie Mosley; Mosley, committed to a state mental hospital since
1988, was also identified through DNA testing in another murder-rape case in which
Townsend had been a suspect, leading to a review of all cases in which Townsend or
Mosley had been suspects). Ardy Friedberg and Jason T. Smith, “Townsend Released
Judge Cites „An Enormous Tragedy‟ Attorneys Say Suspect Was Easily Led to Confess,”
South Florida Sun-Sentinel, June 16, 2001.
58
  The confessions contained numerous inconsistencies about when, where, and how the
rapes had occurred. These had been explored by defense counsel on cross-examination as
had the fact that none of the defendants‟ DNA matched the crime scene sample. See Jim
Dwyer & Kevin Flynn, “New Light on Jogger‟s Rape Calls Evidence into Question,”
N.Y. Times, Dec. 1, 2002, p. 1; Saul Kassin, Op-Ed, “False Confessions and the Jogger
Case,” N.Y. Times, Nov. 1, 2002.
59
  National Commission, Recommendations, pp. 44-46 [5th reference; see n.33]
(recommendations for defense counsel).
60
  The statutes in the District of Columbia, Florida, Kansas, Nebraska, Tennessee and
Virginia give the court discretion to appoint counsel. If the DNA testing results are
exculpatory in Michigan, the statute authorizes appointment of counsel. See references to
statutes in note 35, supra.
61
  But see Laura Maggi, “DNA Test for Inmates Elusive Despite Law; La. Fund Lacks
Cash; Evidence Hard to Find,” The Times – Picayune, Dec. 16, 2002 (no money put in
budget for DNA testing; although Louisiana governor said he would budget for testing
the following year, his attorney said there was no need to pay for attorneys).
62
  See John Winterdyk & Janne A. Holmgren, “DNA Evidence: Balancing the Scales of
Justice,” Canadian Business & Current Affairs, vol. 26, p. 11 (Nov. 2001) (concluding
after study that Canadian defense counsel have inadequate knowledge to adequately
represent their clients).
63
  See, e.g., a recent account that a federal program requiring HMO‟S and hospitals to
report incompetent physicians is failing because these institutions refuse to furnish the



                                                                                            19
necessary information. Robert Pear, “Inept Physicians Are Rarely Listed as Law
Requires,” New York Times, May 29, 2001, sec. A, p. 1, col. 6.
64
  In Oklahoma, complaints had been voiced about the forensic laboratory‟s work long
before an investigation was begun. See Yardley, “Inquiry Focuses” [4th reference; see
n.18].
65
  After a scandal in its Ramparts division in which a group of officers was alleged “to
have routinely robbed drug dealers, abused gang members and planted guns on suspects,
the investigation of the Los Angeles Police Department languished for nearly two years
with few if any real reforms being carried out.” James Sterngold, “Police Monitor
Struggles in Los Angeles,” N.Y. Times, June 5, 2001, p. A18. Eventually, over 100
convictions were overturned. Kristina Sauerwein, “Shedding Light on Officers Who Help
Prosecute with Cases Overturned in the Rampart Scandal in Mind,” L.A. Times, Dec. 20,
2002, at B2.
66
  On January 31, 2000, Governor George Ryan of Illinois imposed a moratorium on
executions after the release of 13 prisoners on death row. A 1999 investigation by the
Chicago Tribune had pointed to numerous cases in which defendants were represented by
lawyers who had at some time been disbarred or suspended, and the prosecutorial use of
unreliable evidence furnished by jailhouse snitches, questionable forensic testing, or
obtained through police torture. Steve Mills and Maurice Possley, “Death Penalty Debate
Slowly Shifts. Executions Continue But Face More Scrutiny,” Chicago Tribune, January
31, 2001, p. 1. Before he left office in January 2003, Governor Ryan pardoned four men
on death row and commuted the sentences of the remaining 167 on the ground that his
extensive review of case files and the 3 year study of the Illinois system had convinced
him of the innocence of people on death row and the unfairness of the system. Jodi
Wilgoren, “Citing issues of Fairness, Governor Clears Out Death Row in Illinois.” NY
Times, Jan. 12, 2003, p. 1.
67
  After the exoneration of an Oklahoma inmate on the basis of DNA testing raised
concerns about a police forensic chemist who had testified at his trial, the Oklahoma
State Bureau of Investigation, at the recommendation of the FBI, began reviewing cases
handled by the forensic chemist and identified 60 cases that needed further review in
which inmates are currently serving sentences of life or life without parole; those inmates
were mailed a formal DNA Forensic Testing Program application. Associated Press
Newswires, June 5, 2001.
68
  See, e.g., LA. CODE CRIM. PROC. ANN art. 926.1 (West 2002) (requests prohibited after
August 2005); TENN. CODE ANN. § 40-26-106 (2000) (establishes presumption of no
testing for convictions obtained after July 1, 1998); WASH. REV. CODE § 10.73.170
(2000) (requests for testing had to be made before Dec. 31, 2002).
69
 James Liebman, et al., A Broken System Part II: Why There Is So Much Errror in
Capital Cases, and What Can Be Done About It (2002); James S. Liebman, “The
Overproduction of Death,” Columbia Law Review, vol.100 (2000), p. 2030.



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