Tuesday, November 15, 2005

The Truth about DNA

There is a lot of talk about how DNA testing has exonerated "hundreds" of convicts. What is less often discussed is the fact that it was America's prosecutors who pioneered the use of DNA in the courtroom over the fevered objection of criminal defense lawyers who claimed it was "junk science." Now DNA is accepted as gospel.

The St. Louis prosecutors (city and county) went back and ran DNA checks on hundreds of criminal cases to see if the tests would change the ultimate conclusion.

The report which follows, from the November 14 edition of the St. Louis Post Dispatch, tells a very different story, and is representative of what has happened across America, from San Diego to Minnesota and other jurisdictions where prosecutors reopened cases because they wanted to make sure they had the RIGHT people in prison.
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Review of DNA sets very few free
By
ST. LOUIS POST-DISPATCH

Monday, Nov. 14 2005   After nine hours of deliberations at the end of George Allen Jr.'s first trial in the 1982 rape and murder of Mary Bell, jurors voted 10-2 to acquit. Three months later, a different jury took five hours to reach the opposite, unanimous conclusion - Allen was guilty.

Since that first trial in April of 1983, Allen's supporters have loudly professed his innocence, saying his confession was coached and that no physical evidence linked him to the crime. Prompted by those concerns, and concerns about other cases in the pre-DNA era, St. Louis prosecutors began a review in 2003 of Allen's case and about 1,400 others to determine if DNA testing could confirm or deny guilt.

In Allen's case, it couldn't. "There is no evidence that we have found that exonerates him. Every path has been followed to its fullest extent," said St. Louis Circuit Attorney Jennifer Joyce.

Allen's case ended like most of the more than 2,100 cases reviewed by prosecutors in St. Louis and St. Louis County: Either there was nothing to test or the evidence would not confirm or deny guilt. Allen joins a legion of incarcerated men and women who have been disappointed by the DNA revolution.

Of 1,400 cases reviewed by the St. Louis Circuit Attorney's Office, only three people, all men, have been freed based on DNA testing. All of those were brought forward by lawyers, not uncovered in the review.

In five or six cases, DNA results neither confirmed nor ruled out guilt, said Assistant Circuit Attorney Ed Postawko. Results in about 12 cases are pending.

About seven people who claimed innocence were proven guilty, said Postawko, who heads the review.Only one person has been exonerated by DNA evidence in St. Louis County, also from outside the formal review. Prosecutor Robert McCulloch's office examined 700 to 900 cases from before 1991-1992, when DNA evidence became widely used.

Joyce said the numbers are not surprising. "I think people have the wrong idea that every time we look at a case and do DNA testing, it exonerates somebody," she said.

St. Charles County Prosecutor Jack Banas, Jefferson County Prosecutor Robert Wilkins, St. Clair County State's Attorney Robert Haida and a spokesman for Madison County State's Attorney Bill Mudge all said they had not done wholesale reviews but had looked at some old cases and were open to looking at others.

Wilkins said crime is different in less densely populated areas such as his, with fewer cases involving strangers. He said most of his convictions are won on eyewitness testimony or other physical evidence, with DNA sometimes as "icing on the cake."

"The worst answer ... is no answer."

The Allen case illustrates "probably the least satisfying result," Joyce said. "The worst answer ... is no answer." She is frustrated that many people don't understand the limits of the DNA review. "Our job is not to basically re-try a case that has been presented to a jury," she said.

City prosecutors and law school interns reviewed evidence and trial transcripts to whittle about 1,400 cases to around 210 with potential DNA relevance, plus 35 or 40 cases brought to the staff's attention by lawyers, Postawko said.

After "very extensive evaluations," he said, many cases were eliminated because DNA evidence had been discarded or never existed.

Barry Scheck, co-founder of The Innocence Project, which represents Allen, said there is useful biological evidence in only about 15 percent of cases.

Ted Hunt, chief trial assistant for the prosecutor in Kansas City, noted that rapists often don't leave DNA behind. And a hair or DNA material that cannot be connected with the crime will prove nothing. Hunt said the five DNA tests done in old cases in Jackson County all confirmed the defendant's guilt.

In Allen's case, seminal fluid was found at the scene that DNA testing showed was not his. But it did match Bell's live-in boyfriend. Postawko said it only proves "boyfriends and girlfriends who live together and sleep in the same bed have sex from time to time."

Convicts not excluded by DNA testing are unlikely to have their cases reversed any other way.

"There's really no relief for those people," said Susan McGraugh, an assistant clinical professor at St. Louis University's Law School and supervisor of the school's criminal defense clinic. "That's what concerns me. Because I'm certain there are people incarcerated right now on the basis of well-meaning but incorrect testimony."

As the era of testing old DNA comes to a close, McGraugh said, it is time to examine the unreliability of eyewitness testimony. "It's a lot easier to make a mistake about an identification than you would think," she said, noting that the stress of being confronted, perhaps with a gun, can warp a memory.

Of the four St. Louis area men exonerated by DNA, all had been identified by the crimes' victims.

McGraugh said she's unaware of any Missouri court that has allowed experts to challenge the reliability of witness identifications.

Just a confession


In Allen's case, there was neither physical evidence nor eyewitness testimony linking him to the rape and stabbing of Bell in her apartment in the 1000 block of Marion Street on Feb. 4, 1982.

Police picked up Allen, then 26, more than a month later because he resembled a suspect in another case. He confessed to attacking Bell, although he later claimed the admission was coached. Police denied that.

Allen could have faced a death sentence, but a juror left the panel because of his mother's death and prosecutors agreed to waive the death penalty to avoid holding a new trial.

Allen declined to be interviewed for this story.

Scheck said Allen's case merits additional investigation, but he acknowledged, "I would agree, at this point, that we've done all the DNA testing that we can do."

McGraugh, who reviewed the file for the Innocence Project, said the conviction was one of the weakest murder cases she has examined.

Believing it, she said, means believing police "just got lucky and picked the right guy off the street at the right time." She noted that Allen "kept confessing to the wrong thing, and they had to keep correcting him," she said.

Joyce said there is nothing left to do for now in the Allen case. "It's time to get this some closure."

She said there is strong evidence of Allen's guilt. "I mean, he confessed," she said. Joyce also said that prosecutor Dean Hoag, who won the conviction, said that it was impossible to coerce the details that Allen knew about Bell's death.

Joyce said that DNA exonerations are not an indictment of the justice system but a signal that it is committed to fixing mistakes. Cases like Allen's are always subject to further review.

"There's no such thing as irreparably closed," Joyce explained. "If they think of something else ... we'll re-open it."

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