DNA Testing

  • June 19, 2012
    Guest Post

    By Brandon L. Garrett, a professor at the University of Virginia School of Law. Garrett’s book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, is coming out in paperback later this summer, and updates are at the book’s Facebook page here.


    Yesterday the Supreme Court Justices splintered over the meaning of the Confrontation Clause in cases involving forensic DNA testing – making a muddle of an important problem and with few discernible arguments that hold much water. The case involved a sexual assault, but the Illinois State Police did not test crime scene evidence – they tested a sample of blood from the suspect and obtained his DNA profile. The evidence from the rape kit was DNA tested by an outside lab, Cellmark. The prosecutor did not call the Cellmark technician at trial, the one who did the most important DNA testing in the case, the testing that identified the DNA profile from the semen of the assailant. Instead, the prosecutor called the crime lab technician who described the defendant’s profile – and sneaking the match in through the back door, by having that technician say how it matched the profile identified in the Cellmark report. The DNA was central evidence at trial, although the victim also identified the defendant in a line-up. The defense had no opportunity to cross-examine the Cellmark analyst who did the crucial DNA work.

    The case called for a straightforward application of the Court’s recent precedents in the Confrontation Clause area. Just last year, the Court held in Bullcoming v. New Mexico, a case where DUI test results were not presented by the technician who did the tests, that this was a Confrontation Clause problem. The defense must have an opportunity to cross-examine the person who did the relevant work. That decision reinforced the Court’s 2009 decision Melendez-Diaz v. Massachusetts, stating that the Confrontation Clause requires live testimony, not merely introduction of a certificate stating the conclusion of a forensic test used to identify drugs. 

    The new answer to the question of whether a forensic DNA analyst must testify is “maybe.” 

  • March 31, 2011
    BookTalk
    Convicting the Innocent
    Where Criminal Prosecutions Go Wrong
    By: 
    Brandon L. Garrett

    By Brandon L. Garrett, a professor at the University of Virginia School of Law. You can follow updates related to Garrett’s book, “Convicting the Innocent: Where Criminal Prosecutions Go Wrong,” at the book’s Facebook page here.


    On January 20, 1984, Earl Washington, Jr. was found guilty of rape and murder in the state of Virginia and sentenced to death. After nine years on death row, DNA testing cast doubt on his conviction and saved his life. However, he spent another eight years in prison before more sophisticated DNA technology proved his innocence and convicted the guilty man. 

    DNA exonerations have shattered confidence in the criminal justice system by exposing how often we have convicted the innocent and let the guilty walk free.   Wrongful convictions are ubiquitous in the news.  In just the past few weeks, yet another innocent man was freed by DNA tests in Virginia.  Improvements to eyewitness identification procedures in response to wrongful convictions have been considered by legislators, scandals have wracked  dozens of crime laboratories and Congress is considering legislation in response, and the U.S. Supreme Court ruled that civil rights actions can be used to seek DNA testing, In my new book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong, I examine what went wrong in the cases of the first 250 wrongfully convicted people to be exonerated by DNA testing. I studied their trial transcripts, pre-trial hearings, appellate and post-conviction rulings, and confession statements. 

    A close look at the transcripts from Washington’s original criminal trial sheds light on how he was convicted in the first place.  His lawyer had never tried a death penalty case before, and it showed.  The guilt phase of the trial was only five hours long.  The prosecution presented a series of witnesses, but Washington was defended for all of forty minutes. His lawyer never claimed he was innocent, never challenged his confession, and never hired an expert to develop how he confessed due to mental retardation. The jury heard that Washington confessed to a series of details that supposedly only the killer could have known. We now know this confession was false and this mentally retarded young man likely just answered “Yes, sir,” each time law enforcement told him more about how the crime happened.

  • March 7, 2011
    Guest Post

    By Brandon L. Garrett, a professor at the University of Virginia School of Law.
    The U.S. Supreme Court settled another boundary dispute about what lies inside and what lies outside of habeas corpus today in Skinner v. Switzer. Henry Skinner was convicted and sentenced to death in Texas in 1995 for the murder of his girlfriend and her two sons, whom he lived with. Skinner claimed he was home, but did not commit the murders since he was incapacitated by large amounts of codeine and alcohol. Before trial, the State tested some crime scene evidence, and some of it inculpated Skinner, but some did not. Inexplicably left untested were key pieces of evidence, including knives found at the scene, an axe handle, vaginal swabs, fingernail clippings, and hair samples.

    In the meantime, in 2001 Texas passed a DNA access statute, which makes available post-conviction testing to prisoners who satisfy its criteria, including that there is a "reasonable probability" that the results could change the outcome. The Texas Court of Criminal Appeals repeatedly denied his motions seeking DNA tests on all of those other items. They blamed Skinner's trial lawyer, saying that it was a "reasonable" strategy to fail to request the DNA tests at the time of his trial, since the results might just have further inculpated Skinner. Skinner could be executed without any tests done on that crucial crime scene evidence - unless the federal courts would reverse the rulings by the Texas courts. He brought a civil rights action seeking to do just that, but the State argued federal habeas corpus was the exclusive avenue for such a claim.

    These boundary issues did not come up often before. Both the habeas corpus statute, 28 USC § 2254, and the civil rights statute, 42 USC § 1983, provide avenues for litigation of constitutional violations by state actors. Prisoners often used both. However, the habeas statute has been encumbered with a raft of Supreme-Court made restrictions, together with limits added by Congress under the Antiterrorism and Effective Death Penalty Act. While the Court has limited access to remedies under Section 1983 as well, Section 1983 does not have unfair timing rules. If one suffers separate constitutional violations over time, one can bring multiple actions.

    Not so under federal habeas corpus. If new evidence of constitutional violations or of innocence comes to light only years after a conviction, it may be impossible to file a federal habeas petition. Any number of rules, from the AEDPA statute of limitations, to the dreaded "successive petition" rule may rule out access to a federal court. Many of the innocent people who have been exonerated by DNA tests had to wait years to get those tests; they waited on average 15 years to be exonerated. I describe their difficult path to exoneration in a book that has just been published by Harvard University Press, Convicting the Innocent: Where Criminal Prosecutions Go Wrong. More generally, the book explores what went wrong in the first 250 DNA exonerations. Selective testing of the crime scene evidence was just one of many problems with the way that the forensics was handled and presented in the cases of those innocent people.

  • October 15, 2010
    Guest Post

    By Brandon L. Garrett, a professor at the University of Virginia School of Law and author of the forthcoming book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong.
    This week the U.S. Supreme Court heard arguments in Skinner v. Switzer, concerning a request for DNA testing by an inmate, convicted of murders and on death row in Texas. Prosecutors have opposed the DNA tests and intend to proceed with an execution.

    Why does this scenario sound familiar? Because Hillary Swank is currently starring in a major motion picture about the true story of how Betty Anne Waters put herself through law school and fought for years to obtain DNA tests that ultimately proved her brother’s innocence?

    Because just last term the Court decided Osborne v. District Attorney’s Office, in which the state of Alaska successfully opposed DNA tests that it conceded could resolve the question of an inmate’s innocence?

    Because in 2006, the Court decided House v. Bell, in which a death row inmate sought relief based on evidence of innocence including DNA, and following the Court’s remand, he obtained DNA tests that led to his exoneration?

  • March 25, 2010

    Twila Jean Busby's family has waited over 16 years to witness the execution of Hank Skinner, who was convicted of murdering Busby and her two adult sons on New Year's Eve in 1993. After yesterday's reprieve, granted by the U.S. Supreme Court, their wait continues.

    Skinner, who adamently proclaims his innocence, was spattered in blood and hiding in a neighbor's closet when he was tracked down by police three hours after the murders. He claims that he could not have committed the murders on account of having passed out next to the victims after using vodka and codeine.

    DNA evidence from the crime scene remains untested. Skinner argues that the evidence will prove his innocence. His lawyer, however, refused to test the evidence in preparation for trial, fearing that it would only add to the case against Skinner.