Although it is difficult, if not impossible, to estimate the number of false confessions nationwide, a review of one decade’s worth of murder cases in a single Illinois county found 247 instances in which the defendants’ self-incriminating statements were thrown out by the court or found by a jury to be insufficiently convincing for conviction. (The Chicago Tribune conducted the investigation.)35
According to the Innocence Project:
In about 25% of DNA exoneration cases, innocent defendants made incriminating statements, delivered outright confessions or pled guilty. These cases show that confessions are not always prompted by internal knowledge or actual guilt, but are sometimes motivated by external influences. Why do innocent people confess? A variety of factors can contribute to a false confession during a police interrogation. . . . They include: duress, coercion, intoxication, diminished capacity, mental impairment, ignorance of the law, fear of violence, the actual infliction of harm, the threat of a harsh sentence, and misunderstanding the situation.36
As described in the case of Darryl Hunt, even where DNA evidence is available, subjected to testing, and definitely found to not match an individual convicted of a crime, prosecutors and the courts may go to great lengths to refrain from exoneration. An example that illustrates a prosecutor’s use of hyperbolic rationalization in the form of an incredible theory in the face of a DNA mismatch is found in the case of Bruce Godschalk, who was convicted of a double rape in Philadelphia, Pennsylvania. He had falsely confessed to the two rapes, but the semen stains did not contain Godschalk’s DNA. The Montgomery County district attorney, Bruce Castor Jr., believed that the initial confession trumped the DNA evidence. In a CNN interview Peter Neufeld explained the district attorney’s theory why the DNA mismatch was not convincing: “He made the suggestion that perhaps someone could have sneezed in the one victim’s apartment in July of ’86 and then maybe sneezed in the second victim’s apartment in September,”37 implying that each of the crime scenes was contaminated by the sneezing individual. Given that the laboratory investigation showed that the DNA came from semen, the sneeze theory was inconsistent with sound science.
When the Defense Solves the Crime
Imagine that you are a defense attorney who has spent several years obtaining a postconviction DNA test for your client, who is serving a life sentence for a rape-murder conviction. Suppose that the test showed unambiguously that the DNA from the sperm found on the victim did not match the DNA of your client, but neither the prosecutor nor the courts will support the release of your client on the basis of the DNA evidence, even though no one questions the reliability of the test. The only option available to the defense attorney is to find the real perpetrator of the brutal crime. If there are other prime suspects whom the police overlooked, the defense attorney can obtain abandoned objects from these suspects to get a sample of their DNA. Alternatively, the defense can propose uploading the crime-scene DNA to CODIS and hope that there is a cold hit. In either case the defense attorney must obtain permission from the prosecutor or the police either to submit DNA to CODIS or to obtain a sample of the crime-scene DNA that he or she would compare with the DNA of the prime suspects.
In one of several cases handled by the Innocence Project, the lawyers investigating a wrongful conviction turned themselves into Perry Mason–like investigators solving the crimes in order to obtain justice for their client. The case in question began on August 1, 1982, in Dallas, Texas. Three armed African American males entered the home of a Dallas couple. One of the assailants robbed the male victim while the other two raped the female, who was five months pregnant. After the first rape all three men raped the woman repeatedly and eventually released her. The police took the rape victim to a hospital, where semen evidence was collected. She identified one of the three rapists (who was known by the couple) from a photograph. A second suspect, James Curtis Giles, was identified in a lineup. Despite an alibi and inconsistencies in physical appearance, in 1983 Giles was convicted of aggravated rape, and sentenced to 30 years in prison.
In 1984 the first rapist pled guilty to the crime and signed an affidavit that James Curtis Giles did not participate in the crime. That was not sufficient to exonerate Giles. The Innocence Project began its investigation of Giles’s conviction in 2000. Because there were three rapists, the investigators at the Innocence Project began by identifying the DNA profiles of the rapists from the rape kit. They learned that none of the profiles matched that of James Curtis Giles. That by itself, however, was not enough to exonerate Giles. It appeared that the only way to free Giles would be to obtain the identities of the three males whose DNA profiles were in the semen admixture taken from the rape victim.
The investigation by the Innocence Project continued and led the investigators to a suspect by the name of James Earl Giles (unrelated to James Curtis Giles). They also had evidence that a man named Michael Brown was one of the rapists. Both Brown and James Earl Giles were deceased, so they could not get a DNA sample from the suspects. In their continued seven-year investigation, the investigators at the Innocence Project obtained DNA from family members of the two deceased suspects. Through an analysis of their DNA they were able to show the court that the family members were relatives of the actual perpetrators and that James Curtis Giles had been convicted on the basis of mistaken identity.38
According to Garrett’s study “Judging Innocence,” out of 200 exonerees, there were 59 cases (29.5 percent) in which a cold hit in a DNA data bank resulted in identification of the actual perpetrator. In 25 other cases the actual perpetrator was identified in other ways.39
Why should a defense attorney have to play the role of criminal investigator in order to find the real perpetrator of a crime for which his client has been falsely convicted when DNA has proved his client’s innocence? Echoing the belief of a great majority of those involved in the criminal justice system, Garrett notes, “DNA testing provides the most accurate and powerful scientific proxy available to establish biological identity; it sets the ‘gold standard’ for other forms of forensic analysis.”40 If the gold standard of identity demonstrates beyond reasonable doubt that there is a mismatch between the biological evidence left at the crime scene and the DNA of the individual convicted of the crime, does our sense of justice require that we add to the gold standard yet a higher burden that involves finding the real perpetrator before innocence is established?
In a number of cases failure of a DNA match was insufficient in the eyes of the court to prove the innocence of a wrongfully convicted individual. Of the first 200 exonerees, 12 had been convicted at trial despite the fact that DNA testing excluded them.41 An analogy can be made to defective theories in science. Once a theory has been established, it is often retained, despite newly found falsifying evidence, until a new theory replaces the old one. One can wonder whether a similar model holds for convicted felons proved innocent by DNA, namely, that prosecutors are unwilling to override a guilty verdict until they have found the real perpetrator. Fortunately, this is not the general rule in criminal justice. Many individuals who have been proved innocent by DNA have been released without knowledge or prosecution of the real perpetrator. Of the first 200 exonerees, 126 were released by DNA evidence while the perpetrator remained at large.
The Innocence Project compiled data on cases (both its own and cases managed by others) of individuals exonerated of wrongful conviction between 2004 and 2008. Of 232 cases, 100 (43 percent) resulted in the real perpetrator being identified. In some cases the identification of the real perpetrator led to the exoneration.42
In science a theory is assumed false (or tentative) unless proved true; in criminal law a theory of guilt is assumed false (presumed innocence) unless the triers of fact find that the weight of evidence supports guilt beyond a reasonable doubt. The difference is that there is no finality in science; it is constantly evolving and changing, whereas the finality principle in law makes it difficult to overturn a theory of guilt that has been corroborated by a jury. Th
e finality principle was reaffirmed by Samuel Gross and colleagues in their study of exonerations that occurred between 1989 and 2003.43
An argument might be made that a universal DNA data bank could be helpful in exonerating wrongfully convicted incarcerees. But before we jump to this conclusion, we should draw attention to the presuppositions behind it, and ask whether there are less invasive ways of achieving justice. Defense attorneys investigating innocence claims may be helped by a universal database under conditions where the real perpetrator has not been convicted of a felony (and therefore does not already have a DNA profile in CODIS) or when prime suspects are not available for DNA testing. In those cases in which a serious felony was committed by a first offender, and where there is nondegraded DNA evidence at the crime scene, a universal database could provide the clue to the real perpetrator of a crime. But if we are judging how we can best achieve justice for those wrongfully convicted, the most important factors have nothing to do with universal DNA databases. They involve the availability of postconviction legal services and financial resources, access to postconviction DNA testing, preservation of DNA samples over the length of the sentence, timely processing and CODIS uploading of crime-scene DNA samples, and the recognition that a DNA mismatch should be sufficient to establish innocence in most circumstances, such as rape-murder cases involving a single individual.
Legal services for postconviction claims of innocence and DNA testing are, for the most part, a matter of philanthropy. As an example, between 2004 and 2008 the Innocence Project received a total of 12,614 new letters from prisoners and their families seeking help to prove wrongful conviction. They received 3,208 letters in June 2008 alone. A mere 1 to 2 percent of all persons sending letters were accepted as clients by the Innocence Project. A 2009 study by the National Academy of Sciences (NAS) “calls into question the scientific merit of virtually every commonly used forensic method, including analysis of fingerprints, hair, fibers, blood spatters, ballistics and arson.”44 The Innocence Project selects only cases where a claim of innocence can be resolved through DNA testing. One can only speculate how many wrongfully convicted individuals have remained in prison from the 98 percent whose cases were not accepted because of scarce resources or discarded or improperly stored biological evidence. We have evidence of the exoneration rate for the chosen cases. Within a period of five years the Innocence Project closed 233 cases, of which 98 were closed subsequent to DNA testing. Of those 98, 42.9 percent showed that the prisoner was excluded, and 41.8 percent showed that there was a match between the prisoner’s DNA profile and that of the crime-scene DNA. Many cases were closed without DNA testing for a variety of reasons, including death of the client, lack of sustained client interest, or poor DNA crime-scene evidence.45
Once all the states meet the responsibilities recommended by the NAS study and provide full access to postconviction DNA testing, and the appropriate exculpatory role of DNA is accepted, the burden of the wrongfully convicted to find the real perpetrator should fade into the background, and the claims of the need for a universal database for exoneration should become moot.
The two forensic faces of DNA are its role as evidence in guilt and in innocence, but these faces are not symmetrical. The state commits extensive resources toward deploying DNA evidence for prosecuting crimes but rarely exercises responsibility in using DNA after conviction to test claims of innocence. Many prisoners remain incarcerated because the DNA evidence that could potentially exonerate them has been lost or purposely discarded. Although a number of states have passed legislation to ensure the preservation of evidence, about half fall short of such protections. As a result, the claims by incarcerees of wrongful convictions cannot be resolved by the use of DNA testing.
Even when the evidence is preserved, once a conviction has been finalized, the burden of proof for demonstrating wrongful conviction is raised by cultural, technical, and financial barriers, not the least of which is the disappearance of exculpatory evidence. Police and prosecutors are rewarded for prosecution and conviction but are shamed for wrongful incarceration. Postconviction applications of DNA have made clear that the often-expressed ideal that the criminal justice system is designed to minimize false convictions has not yet been realized.
Chapter 8
The Illusory Appeal of a Universal DNA Data Bank
Everybody, guilty or innocent, should expect their DNA to be on file for the absolutely rigorously restricted purpose of crime detection and prevention.
—Sir Stephen Sedley, Lord Justice of Appeal
(Judge) for England and Wales1
We would be appalled, I hope, if the State mandated nonconsensual blood tests of the public at large for purposes of developing a comprehensive . . . DNA databank. The Fourth Amendment guaranty against unreasonable searches and seizures would mean little indeed if it did not protect citizens from such oppressive government behavior.
—Justice J. Utter, Washington State Supreme Court,
State v. Olivas 2
In January 2007 Glamour magazine ran an editorial titled “Let’s Catch More Rapists Before They Strike Again.” The editorial calls for the massive expansion of state DNA databases. The idea behind the expansion is based on a few known cases where a recidivist rapist, once arrested for a nonfelony violation, was not apprehended until he had committed multiple rapes. Had the individual’s DNA been placed in a data bank after the first arrest, the argument goes, then the second and subsequent rapes might have been prevented. Glamour wrote:3
Currently, most states get DNA samples only from convicted felons; victims’ advocates and law enforcement officials also want to collect them from people guilty of misdemeanors, like minor assaults or burglary, and those arrested for crimes, even without a conviction. . . . It is absolutely necessary [to take DNA upon arrest], experts say, given that criminals often progress from less serious crimes to more violent ones.
The article goes on to state, “Preventing rape and saving lives should be a national priority—and a beefed-up DNA database is our best hope,” and urges women readers to “check dnaresource.com to see what your state’s DNA collection laws are, then urge your legislators to broaden those laws and push for more funding.”
No one would disagree with the goal of preventing rape. But if one takes the stated goal of this article to its logical implications, then the next step after expanding the databases would be to universalize them. After all, if a rapist strikes and is not arrested, then the only way to prevent him from striking again might be to ensure that his DNA is in the database in the first place, and the only way to do that is to make it compulsory that everyone’s DNA be in the database. Indeed, if everyone’s DNA was in the database from birth, then theoretically every DNA sample collected from every rape would result in a hit.
Formal proposals for universal databases have been put forward by a handful of politicians and individual scholars. In 1999 Rudolph Giuliani, then mayor of New York City, proposed collecting DNA samples from all newborns for both medical and law-enforcement purposes.4 A similar proposal was made in Michigan.5 In 2006 Prime Minister Tony Blair called for a universal forensic DNA database to include every British citizen.6 Proposed collection methods for such a database include linking law enforcement with state newborn screening programs, taking samples as part of child vaccination requirements for entering school, making provision of a DNA sample a requirement for obtaining a driver’s or marriage license, and creating a national identification card that incorporates DNA information.
Certainly it would be a great benefit to public welfare and to the safety of women if the technology of DNA identification could reduce the incidence and increase prosecutions of sexual violence against women. But is an ever more inclusive database the best way to prevent rape? Do we need a database of everyone’s DNA to address the problem of sexual assault? What will be gained and what will be lost by developing a universal DNA database, where collections of genetic profiles begin in infancy, and a national DNA database stor
es an identity profile of every resident and visitor to the country? What will be the impact on crime solving? What are the dangers? And how feasible is it to create such a database? In this chapter we consider each of these questions as we explore the pros and cons of a comprehensive, compulsory DNA database.
Crime Prevention, Efficiency, and Exonerations
The most common argument advanced in support of a universal DNA database is that such a database would prevent crimes, especially sexual assault. As stated in the Glamour editorial: “It’s [DNA fingerprinting] especially helpful in case of rape, because while fingerprints can’t be taken off a woman’s body, fluids and other biological remnants can. But experts say we are underutilizing this breakthrough technology, leaving rapists on the street, free to attack again.”7
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