DNA Evidence

  • March 31, 2011
    Convicting the Innocent
    Where Criminal Prosecutions Go Wrong
    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.

  • July 12, 2010
    The arrest of Lonnie David Franklin, suspected of being the "Grim Sleeper" seriel killer in Los Angeles, while being "an investigative triumph," should prompt concern about the methods police used to obtain the suspect's DNA, writes Elizabeth E. Joh in an op-ed for the Los Angeles Times.

    It is during these moments -- of seemingly investigative victories -- that "can blind us to the dangers of expanding genetic surveillance," Joh, a professor of law at UC Davis School of law, maintains. Joh describes three uses of DNA evidence that were used in the Grim Sleeper case that should trigger concern for the Fourth Amendment: "familial DNA searches abandoned or discarded DNA and sweeping arrests, or DNA dragnets.

    Regarding discarded DNA, Joh writes:

    The second investigative technique used in the Grim Sleeper investigation was the use of ‘abandoned' or ‘discarded' DNA. We all leave DNA on used coffee cups, smoked cigarettes and many other items on a daily basis. After the police turned their focus to Franklin, undercover police followed him until he left some of his DNA on a piece of pizza as well as silverware and a glass after a meal out.

    Few rules govern the circumstances in which police can collect this involuntarily shed DNA. Police typically defend the practice by saying it produces results. Of course, when successful matches are found, the unrestrained collection of abandoned DNA sounds defensible. But what about all of the hunches that police might like to pursue in this way? Have we all silently consented to giving up our discarded DNA to the police?

    Joh's entire article is here. Joh recently participated in a panel discussion about the Fourth Amendment and technology's impact on the amendment's scope. Video of the panel, "Technology, Change, and the Future of the Fourth Amendment," is available here.

  • 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.

  • June 18, 2009
    The Supreme Court has overturned a federal appeals court decision granting a convict access to DNA evidence in an attempt to prove his innocence. Writing for a 5-4 majority, Chief Justice John Roberts said the Alaska man, convicted of a violent crime, did not have a constitutional right to obtain DNA evidence more than a decade after his conviction. Roberts said that state legislatures are creating laws allowing greater access to DNA evidence and that the high court would not disturb that approach. "DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty," Roberts wrote in District Attorney's Office v. Osborne. "The Federal Government and the States have recognized this, and have developed special approaches to ensure that this evidentiary tool can be effectively incorporated into establishing criminal procedure - usually but not always through legislation." The Associated Press reported that, "The decision may have limited impact because the federal government and 47 states already have laws that allow convicts some access to genetic evidence."

    In another 5-4 decision, the high court ruled against a plaintiff's age employment discrimination claim. The majority in Gross v. FBL Financial Services concluded that a worker has to prove that age was the key reason for discriminatory action by the employer. Scotusblog's Lyle Denniston provides analysis of those cases and other actions taken today by the high court here