In 2000 a free lance writer named J.J. Maloney wrote a piece entitled, “Will DNA Evidence Revolutionize Criminal Law” for the online publication CRIME Magazine.

In the ensuing decade the nation’s criminal justice system has witnessed the dramatic way DNA evidence has indeed revolutionized the way criminals are prosecuted and defended in a court of law.
Maloney’s piece was based on a 1996 U.S. Department of Justice report entitled “Convicted by Juries, Exonerated by Science: Studies in the Use of DNA Evidence to Establish Innocence After Trial.” Authored by Edward Connors, Thomas Lundregan, Neal Miller, and Tom McEwen, the report examined the cases of 28 men, who had been convicted of violent sex crimes, including murder, and who were released from prison because they had been exonerated by DNA evidence.

A decade ago an innocent man in prison faced a daunting task trying to establish his innocence. As Maloney pointed out, many states did not recognize DNA evidence, attorneys were not willing to take these kinds of cases, there were no codified methods for routine DNA testing, many states destroyed all the physical evidence after final appeals were exhausted, and few inmates had the resources necessary to secure the kind of independent DNA testing that would be acceptable to the courts.

But DNA evidence quickly emerged as a tool that eroded many traditional prosecutorial and judicial assumptions; primarily, that in-court eyewitness testimony was the best evidence to secure a criminal conviction. The credibility of the “pointed finger” of an eyewitness was no longer sacrosanct, especially in rape cases. DNA evidence demonstrated that previously “absolutely certain” eyewitness testimony from the witness stand was often wrong – and that innocent men had been locked way decades because of it.

Beyond the challenge to victim eyewitness testimony, DNA evidence also undermined prosecutorial “expert witness” testimony. Several of the 28 cases reported on in 1996 by the Justice Department involved the same “forensic chemist” who, as Maloney wrote, “testified at 130 (in several states) criminal trials before it was learned he had lied about his credentials and training and in some cases had committed outright perjury concerning his credentials.”

The first of its kind, the study’s most stunning finding, which was based on 20,000 tests conducted in the FBI’s laboratory, was that 20 percent of those tests revealed that “the person charged with the crime was ‘excluded’ by the tests – meaning the blood of the defendant did not match with the semen, blood, hair or other body cells found on the victim at the scene of the crime,” Maloney wrote.

The reaction by prosecutors to this emerging new science was mixed. Some joined forces with defense attorneys to see that the exonerated inmates were freed. Others fought defiantly, refusing to accept this new DNA evidence. The latter attitude was exemplified in the Gene Bibbins rape case in Baton Rouge, Louisiana in the 2002. Bibbins was the first inmate in Louisiana to gain access to biological evidence for testing under the state’s DNA post-conviction statute. The DNA evidence unequivocally proved that he did not rape the 14-year-old victim in 1986. The victim made a “positive” in-court identification of Bibbins at his trial. That in-court identification was bolstered by the fact that Bibbins was arrested with a radio taken from the victim during the rape. The prosecution felt it had a “slam dunk” case. But Bbbins always maintained his innocence, saying he found the radio in some bushes as he walked down the street.

When the initial DNA test results excluded Bibbins as the “rapist,” Assistant District Attorney Sue Bernie was reluctant to accept the findings, choosing to stand by the identification made by the victim and the physical evidence of the radio. Although Bernie would ultimately say the District Attorney’s office would not oppose Bibbins’ court-ordered release, Jancy Hoeffel, criminal law professor at Tulane University, commented afterwards that prosecutors are convinced they convicted the right person, no matter what the courts may say.

The initial reluctance of prosecutor Bernie’s to accept the DNA finding in Bibbins’ case was given some credence one year after his March 2003 release when the Baton Rouge Department re-arrested him for a 1985 rape. Police Chief Pat Englade said the DNA sample Bibbins supplied that exonerated him in the 1986 rape matched him to the 1985 rape.

Bibbins was the 125th person exonerated by DNA evidence. But in 1996 prosecutors had significant difficulty accepting the Justice Department finding that as many as 20 to 25 percent of the criminal defendants prosecuted in sex crimes was innocent. The first person exonerated by DNA evidence, according to the Innocence Project, came in 1989 – an Illinois inmate named Gene Dotson who had been convicted in 1979 for the crime of rape. Twenty-seven more men convicted in sex offense cases would be exonerated between Dotson and 1996. Prosecutors simply could not make the leap from those 28 DNA exonerations to the possibility that as many of 25 percent of all rape cases involved innocent men.

The judiciary also found itself facing serious constitutional problems as the DNA firestorm spread. This made apparent in the case of James Harvey. On April 30, 1990 Harvey was convicted of rape and forcible sodomy in Fairfax County, Virginia. He was sentenced to consecutive terms of 25 years for rape and 15 years for the forcible sodomy. In 1998 and 1999 Harvey requested that the district attorney provide him with access to the state’s physical evidence for DNA testing. The prosecutor refused. Harvey filed a 42 U.S.C. § 1983 action in the United States District Court claiming that he had a constitutional right to the evidence. The Federal district court agreed, holding that Harvey had a due process right under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1973) to access and testing of the evidence. See, Harvey v. Horan, 119 F.Supp.2d 581 (E.D.VA. 2000).

The Fourth Circuit Court of Appeals reversed the district court ruling, saying: 1) a § 1983 action was not the proper remedy for present a due process claim of innocence; 2) the sole remedy available for such a claim was habeas corpus; 3) that a state prisoner does not enjoy a due process right under Brady to DNA evidence that might establish his innocence; and 4) that the § 1983 action should have been considered as a habeas corpus petition and dismissed because it was a “successive” petition. See, Harvey v. Horan, 278 F.3d 370 (4th Cir. 2002).

The Fourth Circuit relied upon a U.S. Supreme Court precedent which held that a convicted criminal cannot bring a § 1983 action that raises the “invalidity of his conviction or sentence” unless his “conviction or sentence has already been invalidated.” See, Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).

The Fourth Circuit added that “… we believe that finality [of a state criminal conviction] cannot be sacrificed to every change in technology. The possibility of post-conviction developments, whether in law or science, is simply too great to justify judicially sanctioned constitutional attacks upon criminal convictions.” Harvey v. Horan, supra, 278 F.2d at 376.

The Fourth Circuit made it quite clear that it was not prepared to extend to a state inmate the “constitutional” right in the post-conviction setting to access to evidence that could potentially establish his innocence, no matter how compelling that evidence might be.

Peter Neufeld, a pioneer in the Cardoza School of Law’s Innocence Project, testified shortly after the Fourth Circuit’s decision in Horan before the House Judiciary Committee on Crime, Terrorism, and Homeland Security concerning the Innocence Project Act of 2001.

“There are now one-hundred and eight Americans who have been exonerated by post-conviction DNA testing,” he said. “Thirteen of the exonerated had at one time been sentenced to death. Thirty-two of the exonerated were convicted of murder, and many of them would have almost certainly faced execution if the death penalty had been available in the jurisdictions where they were tried. Collectively, those 108 men have served 1,116 years in prison.

“The pace of post-conviction DNA exonerations has accelerated because states have begun to pass statutes that permit those claiming innocence a chance to gain their freedom. In 1993 there were 3 DNA exonerations. Thirty-five law schools have started a network of ‘innocence projects’ on shoe string budgets to prevent, as best they can, these DNA statutes from becoming unfunded, unrealized mandates. There can be no doubt that the number of wrongly convicted freed by DNA testing would dramatically increase if the post-conviction DNA legislation were passed by this Congress – the number of exonerations would at least double within five years – just as apprehension of the real perpetrators of these crimes through DNA databank ‘hits’ would impressively proliferate. This is a ‘win-win’ proposition for law enforcement, innocents who rot in America’s prisons and on death row, for crime victims, for families of all involved, and for anyone who believes in justice.”

The State of Missouri followed the lead of the U.S. Congress with its “The Integrity of Justice Act.” A “Report” by the Missouri Bar Criminal Law Sub-Committee on DNA Exonerations examined that legislation. The report opened with a reference to the case of Larry Youngblood, an Arizona man convicted of molesting and sodomizing a 10-year-old boy in 1983. The state court of appeals granted him a new trial because the police did not preserve potentially useful evidence. See, State v. Youngblood, 153 Ariz. 50, 734 P.2d 592 (Ariz.App. 1986). The State of Arizona appealed to the U.S. Supreme Court. The nation’s high court, through Chief Justice Rehnquist, reversed the Arizona Court of Appeals and reinstated Youngblood’s conviction. See, Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 109 L.Ed.2d 281 (1988)[absent showing of “bad faith,” the failure of police to preserve “potentially useful evidence” does not violate due process].

DNA evidence later exonerated Larry Youngblood.

The Missouri report posed the following question: “Could we learn any lessons from DNA exonerations and possibly transfer those lessons into recommendations to protect the innocent from wrongful incarceration without impairing criminal investigations or prosecutions?”

Woven into that question is the basic issue of whether social concern about incarceration of the wrongfully convicted should be a matter of public policy. It should indeed should be a matter of public policy given the fact that in 2003 Rob Warden, Executive Director of the Center for the Wrongful Convictions at Northwestern University in Evanston, Illinois pointed out that 700 persons had been freed by judges over the previous 25 years after it was determined they had been wrongfully convicted. A free Democratic society has a fundamental obligation to protect the innocent a matter of public policy.
There was once a prominent legal maxim in America that “better ten guilty men go free than one innocent man imprisoned.” In today’s society, in which law enforcement operates with the Patriot Act, Anti-Terrorism and Effective Death Penalty Act, Detainees Fair Treatment Act, and Military Commission Act, the maxim has become “better ten innocent men be imprisoned, than one guilty go free, because the others are likely guilty of something anyway.”

It is this kind of public sentiment that has allowed our legislative branch of government to spawn restrictive laws like the Anti-Terrorism and Effective Death Penalty Act which severely limits access to the writ of habeas corpus in federal court to state prisoners, even those with compelling arguments of actual innocence; and the Detainees Fair Treatment Act and the Military Commission Act which have eliminated altogether access to habeas corpus, and any other form of judicial remedy, to all prisoners designated as “enemy combatants.”

With these kind of laws now in place, and against the backdrop of a society intimidated by the threat of terrorism and angry at “crime in the streets,” it is inevitable that the number of innocent people who will be wrongfully convicted will dramatically increase – many times for being in the wrong place at the wrong time and having the wrong skin color. The evidence is overwhelming in support of this terrible social manifestation.

The Missouri report cited an Associated Press analysis of the first 110 DNA exonerations. Eleven of these men were sentenced to death; half of them had no prior convictions; two-thirds were convicted through mistaken eyewitness testimony from either victims or bystanders; 14 percent were imprisoned due to mistakes or misconduct by forensic experts; nine were either mentally retarded or borderline retard and confessed after being tricked or coerced by authorities; approximately two-thirds of the men were either African-American or Hispanic; and about 60 percent were aided by the Innocence Project at the Cardoza Law School.

These AP statistics held true through the first 192 DNA exonerations through 2006 in thirty-one states, according to the Cardoza Innocence Project. Fourteen of the exonerations involved death penalty cases or inmates who had once been under the death sentence. 110 of the exonerees were African-American, 50 Caucasians, 19 Latinos, 1 Asian-American, and the rest the race was unknown. They were an average of 12 years behind bars. Seventy-five percent of these cases involved mistaken identification.

What is particularly disturbing about the Cardoza Innocence Project’s findings is that since 1989 when DNA evidence was first utilized in a criminal case there have been tens of thousands of cases in which the prime suspect was arrested or indicted before being cleared prior to trial by DNA evidence. This finding reinforced the 1996 Justice Department’s conclusion that as many as 25 percent of all defendants convicted in sex offenses are innocent. This disturbing reality has prompted twenty-one states, the federal government and the District of Columbia have enacted legislation to compensate the wrongfully convicted.

Though extremely disturbing they may be, DNA exoneration statistics provide insight into understanding why the courts and public sentiment favor the doctrine of finality even in those cases where there are serious questions about the guilt of the person convicted. There is no such animal as “compassionate conservatism” in the judiciary. Conservative Federal judges, most of whom like to be called “strict constructionists,” believe that the doctrine of finality not only preserves the integrity of the state court system but the independence of the federal court system as well. It’s often called “judicial deference” – and there is more than a reasonable probability that judicial deference has sent innocent men to state death chambers based on a mistaken identification. The June 22, 2000 execution of Texas death row inmate Gary Lee Graham is a likely example.

The Missouri report pointed out that every study it reviewed concerning DNA (or even non-DNA) exonerations, mistaken identification were the leading cause of the wrongful conviction/incarceration. Former New Jersey Attorney General John Farmer, Jr., in 2001 wrote about the need for eyewitness identification guidelines in the wake of so many DNA exonerations, saying: “It is axiomatic that eyewitness identification evidence is often crucial in identifying perpetrators and exonerating the innocent. However, recent cases in which DNA has been utilized to exonerate individuals convicted almost exclusively on the basis of eyewitness identifications, demonstrate that this evidence is not foolproof.”

New Jersey became the first state to adopt recommendations made by the U.S. Justice Department in its 1999 “Eyewitness Evidence: A Guide for Law Enforcement” and implemented safeguards in the state’s eyewitness identification procedures.

DNA exonerations have made it unmistakably clear that mistaken identifications are more prevalent than generally perceived.

Still, it is virtually impossible to get a criminal conviction reversed on identification issues. The U.S. Supreme Court in Manson v. Braithwaite, 432 U.S. 98, 97 S.Ct. 2243 (1977) clarified previous test factors it set forth in Neil v. Biggers to determine whether an eyewitness identification has been “impermissibly tainted” under the “totality of the circumstances” standard. These factors include: 1) opportunity of witness to view suspect at time of the crime; 2) witness’s degree of attention; 3) accuracy of his prior description [prior to trial]; 4) level of certainty demonstrated at the confrontation; and 5) time between crime and confrontation. Id., 432 U.S. at 114, 98 S.Ct. at 2253. See also: 488 U.S. 188, 199-200, 93 S.Ct. 375 (1972)
Since three out of four DNA exonerations were due to “mistaken identification,” and were the basis of the appeals in many of those cases, it is evident that the Manson test factors do not afford meaningful judicial protection from mistaken identification.

Writing in the May 3, 2007 edition of the Washington POST, David Fears wrote about the 200th person exonerated by DNA evidence came in April 2007. His name is Jerry Miller. He spent 25 years in the Illinois prison system for a rape he did not commit. He was the victim of a mistaken identification.

The DNA statistics of 2007 continue to mirror the earlier Associated Press analysis: 60 percent of the 200 exonerations were African-American or Hispanic; and of those exonerated in rape cases, 85 percent were black men who were convicted of raping white women.

“What it says to me is that, ultimately, if you are a black man charged with sexually assaulting a white woman, the likelihood that you will be convicted, even if you are stone-cold innocent, is much, much higher,” said Peter Neufeld, who added that the 200 exonerations “are the tip of the iceberg.”

Fears said that DNA exonerations have resulted in the reversal of so many criminal convictions that it “is prompting changes in criminal procedures that reaches beyond race. States and cities are starting to enact or consider laws to change decades-old police methods such as eyewitness identifications and police interrogations that lead to confessions.”

Gary L. Wells, a psychology professor at Iowa State University whose research has contributed to new changes in eyewitness identification procedures in that state, was quoted in the POST article as saying: “The exonerations have been an extremely important force in getting the legal system to recognize there’s a problem. I’ve been working at this for 30 years, and before DNA they pretty much ignored the studies.”

There have been indeed some dramatic changes, many of which have been led by the state of New Jersey where four convictions were overturned by DNA evidence. Paul H. Heintzel, a deputy attorney general, said his office issued a directive to all of the state’s law enforcement agencies to electronically record all police interrogations in violent cases to protect against false confessions. The POST reported that 500 smaller police forces have adopted the same practice, and at least 20 states are considering similar plans, including California, Virginia, Florida, and Tennessee.
Former prosecutor and now U.S. Senator Amy Klobuchar said that Minnesota started taping confessions eleven years ago following a supreme court ruling. “Police and prosecutors I’ve talked to thought it was a good thing,” she told the POST. “It builds police credibility. People talked about it being too expensive. But I would put buying a cheap tape recorded over paying some of these multimillion-dollar wrongful-conviction judgments any day.”

The POST article underscored the fact that 75 percent of the DNA exonerations involved mistaken identification. New Jersey once again led the way in its continuing effort to protect the innocent. The POST reported that the State discarded its “old police lineup” practices that allowed victims and eyewitnesses to view criminal suspects from an array of photographs and then in an actual “in-person lineup” attended by investigating detectives whose often provided suggestions about who to identify.

The new New Jersey identification guidelines set by the state’s attorney general “now present individuals – in person or in photos – one after the other so witnesses cannot compare one member of a lineup to another, making relative judgments ‘about which individual most looks like the perpetrator’…,” reported the POST.

Texas (where DNA evidence exonerated at least 11 men in Tarrant County alone), West Virginia, Georgia, New Mexico, and Connecticut where DNA evidence resulted in the reversal of 25 criminal convictions are considering legislation that would follow New Jersey’s lead in changing eyewitness identification procedures.

“It’s way far from being established that this is the magic bullet,” said Joshua Marquis, district attorney for Clatsop County, Oregon and vice-president of the National District Attorneys Association who cautioned against the new eyewitness procedures. He said such procedures could set perpetrators free, but conceded prosecutors want “eyewitness identification that is valid.”

But with so many wrongful convictions obtained through mistaken identification, a compelling argument can be made for nationwide changes in eyewitness identification procedures.
For example, Army veteran Jerry Miller was at home in September 1981watching the famous bout between Sugar Ray Leonard and Tommy Hearns. He had an alibi witness who watched the fight with him. Yet he was identified at a criminal trial as the person who committed a rape on the night of the Leonard/Hearns bout. Fortunately, the police preserved evidence that ultimately led to his DNA exoneration.
In 1984 Jennifer Thompson also mistakenly identified Ronald Cotton as her rapist in a North Carolina courtroom. Thompson, who is white, apologized to Cotton, who is black. She described the eyewitness identification process in the POST article:

“When you sit down and look at the choices in front of you, the hundred noses, the hundred eyebrows, you try to get the best eyes, eyelashes, the best lips. When the composite was finished and I was asked, ‘Does it look like the man who attacked you?’ I said, ‘Yes, it looks like the man.”

Thompson picked Cotton from an array of photographs.

“I did get verbal and nonverbal encouragement: ‘Good job. Way to go’,” she said. “In the lineup, I looked for somebody who looked like the photograph. And Ronald Cotton was doomed.”
Cotton spent ten years in prison before securing a new trial. Thompson insisted at the second trial that Cotton was the man who raped her. Then the real rapist confessed, and DNA evidence supported his confession.

The second major area of concern addressed in the Missouri report was “forensic misconduct.” The report focused on two blatant examples of such misconduct. One case involved former West Virginia State Police Sergeant Fred Zain and the other involved Oklahoma City Police Lab Director Joyce Gilchrist.

The West Virginia Supreme Court In the Matter of an Investigation of the West Virginia State Police Crime Laboratory, Serology Division, 190 W.Va. 321, 438 S.E.2d 501 (VA. 1993) held that “as a matter of law, any testimonial or documentary evidence offered by Zain at any time should be deemed invalid, unreliable and inadmissible.” The court noted that Zain testified to results even though the police lab did not have equipment to conduct the tests necessary to produce those results and cited the investigation conducted by the lower court of the lab procedures: “(1) no written documentation of testing methodology; (2) no written quality assurance program; (3) no written internal or external auditing procedures;(4) no routine proficiency testing of laboratory technicians; (5) no technical review of work product; (6) no written documentation of instrument maintenance and calibration; (7) no written testing procedures manual; (8) failure to follow generally-accepted scientific testing standards with respect to certain tests; (9) inadequate record-keeping; and (10) failure to conduct collateral testing.” Id., 190 W.Va. at 503, 438 S.E.2d at 324.

The Zain episode resulted in wrongful or constitutionally suspect convictions in many different jurisdictions. For example, a Texas court of appeals found that Zain committed perjury in the case of Charles Mark Tuffiash who was convicted for the 1990 murder of his wife and sentenced to 30 years in prison. See, Tuffiash v. State, 878 S.W.2d 197, 198 (Tex.App.-San Antonio 1994).
The Oklahoma City Police Department hired Joyce Gilchrist in 1980, and by 1987, complaints had been filed with the Southwestern Association of Forensic Scientists charging her with misconduct. The association for years refused to address the Gilchrist problem, but finally did “rebuke” her in 1987 for violating the group’s code of ethics. The FBI reviewed 680 of the thousands of cases Gilchrist had handled and the agency had serious “concerns” in 112 of those cases.

To avoid such horrific examples as those experienced by the West Virginia State Police and the Oklahoma City Police Department, the Missouri report suggested the following guidelines: “The basic tenets of good science are: document results. Verifiable results, and repeatable results. Solid scientific analysis involves established procedures which survive scrutiny by other scientists. “Junk Science’ results are not repeatable and subject to vastly differing interpretation and are usually not well documented or capable of passing peer review scrutiny. Police crime labs have been abused by the likes of Zain, Gilchrist, and others. These police labs already using good scientific techniques will not be disturbed by peer reviews since their work can withstand independent scientific scrutiny.”

A collateral tragedy of the Zain/Gilchrist episodes is that not all the convictions obtained because of the perjured testimony of these two “experts” resulted in new trials. The court of appeals in Tuffiash remanded with instructions that he be granted an out-of-time appeal. Id., at 201. The West Virginia Supreme Court was more explicit: “… although it is a violation of due process for a State to convict a defendant based on false evidence, such conviction will not be set aside unless it is shown that the false evidence had a material effect on the jury verdict.” Id., 190 W.Va. at 505, 438 S.E.2d at 325.

Those wrongfully convicted defendants, therefore, has a two-fold hurdle: first, they had to establish that false evidence was used, and, second, that the false evidence was the reason the jury convicted them. This rigid judicial view is not consistent with a meaningful public policy that protects the innocent. The pre-trial presumption of innocence and the post-trial doctrine of finality must have a more realistic middle ground. The solution is simple: if a judicial determination is made that there has been forensic misconduct in a criminal trial, the conviction should be reversed without a required showing of prejudice. That is the only way to protect the integrity of our adversarial system of justice whose primary goal must be to obtain the truth in a orderly, lawful manner.

Finally, the Missouri report recommended serious restraints on the use of “jail house snitches.” Some of the DNA exonerations included cases where jail house snitches had testified that the defendant “confessed” to them while in jail or prison – and in exchange for their testimony, the snitches were rewarded with significant sentence reductions or dismissed charges.

Endorsing a proposal of the Integrity in Justice Act, the Missouri report recommended that “a three prosecutor/Attorney General review panel, none of whom may be subordinate to the prosecutor acting as trial counsel and seeking to offer this witness’s testimony to review specific criteria to determine if this testimony possess sufficient indicia of reliability, and then the panel will in a recorded vote recommend whether they accept this testimony as reliable. A judge will then review the findings of the prosecutors’ panel and determine if the evidence is sufficiently reliable to be submitted to the jury. The Act would create a registry of jail house snitches to be developed and perennial snitches would have to justify their lengthy history of testimony to future panels, judges, and juries.”

Every state should have some sort of an oversight review panel to determine the reliability of jailhouse snitches, some of whom are “serial snitches” who manipulate the weaknesses in a prosecutor’s case in order to testify and thereby secure self-serving “sweetheart deals.”

But the only truly meaningful way to protect the innocent is for state legislatures to require district attorneys to preserve the physical evidence in all cases, especially those involving the death penalty and long term imprisonment.

“Thank God the investigator in my case felt that he needed to hold on to evidence,” Jennifer Thompson told the POST. “Had it not been for that, Ron Cotton would still be in prison today.”
The DNA exonerations in Tarrant County, Texas were attributed to the practice of the Dallas district attorney’s office maintaining physical evidence. Other counties in Texas – most notably Harris County – does not preserve physical evidence beyond the first round of state criminal appeals. Some prosecutors say the evidence-destruction practice is a byproduct of the Anti-Terrorism and Effective Death Penalty Act which mandates that federal courts, when reviewing habeas corpus petitions by state prisoners, accept state court findings upholding a criminal conviction unless there has been an unmistakable Federal constitutional violation – and even when there has been a “constitutional violation,” federal courts will grant habeas corpus relief only after it has been shown that the state conviction was the direct result of the constitutional violation.

Undeniably, some district attorneys simply do not want inmates to have access to their files and the physical evidence years after conviction. After a series of highly-publicized reversals because of suppressed police reports, the New Orleans district attorney’s office lobbied the Louisiana legislature for authorization to destroy its prosecutorial files and physical evidence once the state’s direct appeal process has been exhausted. The legislature agreed.

Suppressed police reports pointing to other suspects or physical evidence that could possibly lead to DNA exonerations create politically embarrassing prosecutorial misconduct situations. The doctrine of finality becomes the best political insulation against such misconduct embarrassments and multi-million dollar wrongful conviction judgments. It is tragic that some prosecutors believe it is preferable to destroy potentially damaging files and physical evidence than to protect the innocent.

While Peter Neufeld believes that 200 DNA exonerations represents only a tip of the proverbial iceberg, it will become increasingly more difficult for wrongfully convicted inmates to establish their innocence as states enact laws that permit evidence destruction and restrict post-conviction DNA testing.

Article 64.03 of the Texas Code of Criminal Procedure provides:

A convicting court may order forensic DNA testing under this chapter only if:
(1) the court finds that:
(A) the evidence:
(i) still exists and is in a condition making DNA testing possible; and
(ii) has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect; and
(B) identity was or is an issue in the case; and
(2) the convicted person establishes by a preponderance of the evidence that:
(A) the person would not have been convicted if exculpatory results had been obtained through DNA testing; and
(B) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.
A convicted person who pleaded guilty or nolo contendere in the case may submit a motion under this chapter, and the convicting court is prohibited from finding that identity was not an issue in the case solely on the basis of that plea.
If the convicting court finds in the affirmative the issues listed in Subsection (a)(1) and the convicted person meets the requirements of Subsection (a)(2), the court shall order that the requested forensic DNA testing be conducted. The court may order the test to be conducted by the Department of Public Safety, by a laboratory operating under a contract with the department, or, on agreement of the parties, by another laboratory.
If the convicting court orders that the forensic DNA testing be conducted by a laboratory other than a Department of Public Safety laboratory or a laboratory under contract with the department, the State of Texas is not liable for the cost of testing. If the court orders that the testing be conducted by a laboratory described by this subsection, the court shall include in the order requirements that:
(1) the DNA testing be conducted under reasonable conditions designed to protect the integrity of the evidence and the testing process;
(2) the DNA testing employ a scientific method sufficiently reliable and relevant to be admissible under Rule 702, Texas Rules of Evidence; and
(3) on completion of the DNA testing, the results of the testing and all data related to the testing required for an evaluation of the test results be immediately filed with the court and copies of the results and data be served on the convicted person and the attorney representing the state.
The convicting court, not later than the 30th day after the conclusion of a proceeding under this chapter, shall forward the results to the Department of Public Safety.

The court of criminal appeals has ruled that Article 64.03 requires DNA testing only if “a reasonable probability exists that exculpatory DNA tests will prove a convicted individual’s innocence.” See, Skinner v. State, 122 S.W.3d 808, 811 (Tex.Crim.App. 2003). See also: Rivera v. State, 89 S.W.3d 55, 59 (Tex.Crim.App. 2002). The court added that an inmate faces a substantial burden to secure DNA testing because Article 64.03(a)(2)(A) explicitly provides that: “A convicting court may order forensic DNA testing under this chapter only if: … (2) the convicted person establishes by a preponderance of the evidence that: (A) a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing….” Tex.Code of 64.03(a)(2)(A)(amended 2003).

The appeals court in Rivera said that “the ultimate question of whether a reasonable probability exists” [is] “that exculpatory DNA tests would prove innocence.” Id., 89 S.W.3d at 59. The court defined “reasonable probability” as a “probability sufficient to undermine confidence in the outcome.” See, Ex parte Guzmon, 730 S.W.2d 724, 733 (Tex.Crim.App. 1978).
Clearly Article 64.03, and its application as defined by the Texas Court of Criminal Appeals, does not come down on the side of innocence. The statute and its judicial interpretation are window dressing that pays special homage to the doctrine of finality. Truth has been replaced by necessity as the primary goal of our adversarial system of justice.

“Wrong forever on the throne, truth forever on the scaffold,” Thomas Wolfe wrote nearly eighty years ago.

The weight of Wolfe’s words bear heavy on every criminal defense attorney in this country today who still cherishes truth as the highest form of justice.