This kind of story is more John’s bag than mine, but it seems pretty glaring to me:
In Illinois, prosecutors have opposed a DNA test for Johnnie Lee Savory, convicted of committing a double murder when he was 14, on the grounds that a jury was convinced of his guilt without DNA and that the 175 convicts already exonerated by DNA were âstatistically insignificant.â
In the case of Robert Conway, a mentally incapacitated man convicted of stabbing a shopkeeper to death in 1986 in Pennsylvania, prosecutors have objected that DNA tests on evidence from the scene would not be enough to prove his innocence.
And in Tennessee, prosecutors withdrew their consent to DNA testing for Rudolph Powers, convicted of a 1980 rape, because the victim had an unidentified consensual sex partner shortly before the attack.
[…..]But the prosecutors also seem to believe that Mr. Reedâs arguments are far-fetched. âThere are simply too many âifsâ in this case,â Mr. Moore wrote in a recent appeal.
Prosecutors said much the same when Douglas Warney, convicted of murder in Rochester in 1997, argued that a DNA test could lead to the real killer. They called his assertion âa drawn-out kind of sequence of if, if, if.â Yet that is exactly what happened after Mr. Warneyâs DNA test, and the killer, when he was identified, confessed.
The article does describe some issues with using DNA evidence for crimes with multiple perpetrators but other than that, the arguments against testing seem totally bogus. (And the arguments in the multiple defendant cases aren’t that strong either.)
Josh Hueco
You mean prosecutors are more concerned with their conviction and overturn rates than getting to the truth? Shocking!
kommrade reproductive vigor
Pretty much what JH says. The prosecutors are the ones creating all the ifs. However, I also suspect every new forensic technique has met the same sort of resistance.
“Why, this “finger printing” creates too much uncertainty. How can we really be certain that two or more people don’t have the same prints on their fingers? Furthermore, the bumps on the prisoner’s skull clearly indicate he is a brutish criminal.”
Scruffy McSnufflepuss
Sometimes, you have to punish the innocent to deter the guilty. Or something like that. It makes a lot more sense if you hit yourself in the head with a hammer a few times. Law school is like getting hit with a hammer every day for three years, so you can see where these prosecutors are coming from on this thing.
Woody
I recall, about 20 years ago, I read a report on a study which found that about 70% of those who approved the Death Penalty would STILL approve it even with the certainty that innocent people would ALWAYS be wrongfully executed.
This is a bloody-minded, bloody-handed country, alright…
Cat Lady
This story is a great example of the kind of story that will go unreported when newspapers are gone. This reporter would be thrilled with half the money they waste on MoDo.
MikeJ
I’ve never understood why people think convicting the wrong person looks tough on crime. If the accused is innocent then the soft on crime prosecutor is letting criminals walk the street.
The whole “tough on crime” v “soft on crime” dichotomy is pure sophistry 99% of the time, but alas, using it the way I did in my first graph may be our best weapon.
The Grand Panjandrum
In the USA you only get the justice you can afford to pay for. It really is pretty simple, innit?
MattF
Well, it’s an adversarial system. The thing that’s needed here is a competent defense for these guys. And judges who are more than cops in robes.
Reverend Ruppert
This “DNA” is only a Evolutionist plot to undermine the Faith in our Judicial System. Jesus had twelve jurors, a fact that succinctly proves my point.
Robin G.
It does get somewhat conplicated when you consider that you *must* be 100% certain that the hair or bloodspot in question belonged to the killer. If there’s any uncertainty about that… Of course, that’s not said in the reports about these cases. But I admit that I’m hoping the prosecutors have some reasoning beyond sadism.
Notorious P.A.T.
This is the judicial equivalent of “You can’t use the computers for personal business. phones, bathrooms, pens and pencils, yes. But not computers.”
QDC
I’ve worked on post-conviction appeals to get DNA testing, so let me just throw a few things out there.
(1) I think that, in order to do their jobs, prosecutors have to shut down the part of their brain that doubts someone’s guilt. Once a certain evidentiary threshold is met, they have to be able to get up in front of a jury and convince them to lock that person up for a very long time. It’s hard to do that if you doubt that the defendant is guilty, even if you think that residual doubt is unreasonable. I think that there is a lot of cognitive dissonance when prosecutors are asked to consider that someone might be innocent.
(2) People (and certainly prosecutors) should be aware of the causes of wrongful conviction. The most common basis for conviction among people exonerated by the Innocence Project is eyewitness ID. Many of those exonerated confessed to the crimes of which they were convicted. The case of Christopher Ochoa is probably the worst set of facts on which an Innocence Project Client has been exonerated.
(3) I don’t think it’s unreasonable to establish some threshold requirement in order to get DNA testing. At the very least, a sworn statement of innocence should be required so that an inculpatory test would give rise to a perjury charge. The notion that the test should at least be capable of proving innocence is not unreasonable, it just seems that prosecutors and judges have taken an extremely narrow view of what that means. Prosecutors should be bound to the theory of the crime they actually used at trial, and if DNA could conclusively disprove that theory–including via an unforseen database match–then the person should get testing.
(4) The good news is that pretty much all DNA is now tested before trial. We are by-and-large no longer locking people up without DNA testing the available evidence, and that is something we can be happy about.
The Raven
“Our mind is made up–don’t confuse us with facts.” Krawk!
Other than that, what QDC (#12) said.
Scruffy McSnufflepuss
@QDC:
Sorry, couple questions:
Why would someone on death row care that an inculpatory test led to a perjury charge? They don’t have a whole lot to lose. Death plus 10 years is a laughable sentence. (It might be deterrent in non-capital cases, I suppose, depending on the sentence; but this raises all kinds of Fifth Amendment issues, since a mandated confession is then being used against the person on the basis of non-testimonial evidence. I’m not saying that the courts wouldn’t let it provide the basis for a perjury charge, just that it seems a little slippery.)
Furthermore, what if the evidence advances the defense theory, rather than the prosecution’s theory? Shouldn’t the state have the obligation to allow for all exculpatory evidence in a capital case? If the indigent defendant can’t afford to pay for the test, shouldn’t the State be required to?
Really, there should be some sort of statutory mandate that DNA testing be performed, where possible, in all capital cases. If the State doesn’t enjoy the added cost of the testing, they can stop asking for the death penalty.
arguingwithsignposts
whatever happened to that “beyond a reasonable doubt” thing?
omen
congress can’t pass a law barring prosecuters from blocking dna tests?
ThymeZoneThePlumber
@Scruffy McSnufflepuss:
Yes. But all seriousness aside, the real issue here is this one:
Which justice system do you choose? One which lets a guilty man go free on occasion, or one which sends an innocent man to prison on occasion?
Ultimately, no system can serve its intended purpose and maintain the respect of the governed unless it strives to be the former, and not the latter. No system can stand on any moral ground whatever unless it strives to be the former. No honest person can argue otherwise unless he or she is willing to be the innocent person who goes to prison, or the death chamber, to serve as a necessary sacrifice to the system that knowingly errs in favor of convicting the innocent. A society that chooses to jail innocent people to protect itself, to get safety, is not going to be safe from itself.
Justice is not perfect, and for that reason, it has to err on the side of protection of the rights of the accused. Nothing else is acceptable in a democracy.
AhabTRuler
That is how the deterrence model of justice works, yes. I mean, it’s bullshit, but then, when did that stop anybody?
Woody
I would like to test that theory … on GOPuke bankers, for example… Or mebbe just kill off a couple of guilty ones–Madoff and Stanford come immediately to mind. Just to see if ot DOES deter the ponzi-schemers…
DougL (frmrly: Conservatively Liberal)
Remember that once accused of a crime in America, you are found to be “guilty” or “not guilty”. You are rarely exonerated, you are only found to be “not guilty”. The word “innocent” doesn’t even enter into the game, even if you are you will not be declared “innocent”. Not guilty is the best our law can do for you. All the prosecutor cares about is a conviction so once they have decided to try you, you are pretty much guilty until you can prove otherwise. Even then you may still carry the consequences of the trial for years to come.
Don’t even get me started on the right to a speedy trial, I found out there is no such thing. Prosecutors have all kinds of little rules to get around that and if all else fails the judge can decide to not dismiss the case on the violation of the right to a speedy trial due to the fact that it ‘would be prejudicial to the prosecution’ to do so. Nice way to keep the right to a speedy trial intact, in name only. The denial only counts if you successfully appeal your conviction, the judge is under no pressure to abide by the law as most defendants can’t afford the appeals process in the first place. That or the sentence is short enough that you are released before your appeal is heard.
Our judicial system is a mess, no two ways about it. The ‘hard time’ line, ‘three strikes’ and such are all cheap tactics to win election or re-election for politicians. That is all it is. The unfortunate pay so they can win the political lottery.
DougJ
Yes, I agree completely.
omen
@Woody:
I recall, about 20 years ago, I read a report on a study which found that about 70% of those who approved the Death Penalty would STILL approve it even with the certainty that innocent people would ALWAYS be wrongfully executed.
i’ve been hearing here and there that support for the death penalty has been waning.
i don’t suppose that recent gallup poll about majority support for being “pro-life” included people opposing the death penalty.
DougJ
I agree that there is this underlying issue. And in the crimes with multiple perpetrators I think the notion that a guilty person may get off because of DNA comes into play (as the article mentions).
But it seems like with the others, it really is just about prosecutors not wanting to lose convictions.
Davis X. Machina
It’s not a justice system. It’s a vengeance system.
Change the premiss, and the conclusion becomes valid.
ThymeZoneThePlumber
@DougJ:
Yes, exactly, because a system based on the public wanting safety at any cost, only rewards convictions, not justice. Once we tilt the thing toward Ends Justify Means, justice is off the table. Justice doesn’t work unless it is first and foremost just for the accused. “Justice” at the cost of conviction of innocent persons is false, and becomes toxic.
At that point, the people lose confidence in the system, and ultimately, in government itself, and therefore, in their own ability to govern themselves. There’s no free lunch.
Carried to its logical extreme, that false system of justice turns us all into Republicans suffering from mass delusion.
AhabTRuler
I agree on the one hand, but on the other, stories like this (about, innocence, as much as DNA) have been reported on for years and years and years and…, with, IMHO, very little substantial reforms in the justice system.
I mourn the death of the newspaper, but if the effects of these stories are akin to pissing in a dry well, well, what’s the point? Americans will watch the Academy award-winning movie when it comes out, say “what a travesty,” and then tune into the latest atrocity from the TX death house over their Wheaties without a single thought disturbing the flow of their virgin brain.
Oh, and BTW, I agree with Teez in that the thought experiment is this: If you support the DP, even in the face of obvious evidence of the fallibility of the system, the question is this: are you willing to be the one to be wrongly put to death?
Scruffy McSnufflepuss
@ThymeZoneThePlumber:
I agree completely. Unfortunately, the national debate on the subject of criminal justice is about what you’d expect if you queried a playground-full of fifth graders on the death penalty. “Just kill’em” would be the response of 95% of those who were torturing ants to death 4 minutes ago.
No intelligent debate is to be had on the subject from a nation which derives its conception of the criminal justice system from reruns of Judge Judy and vague recollections of the OJ Simpson trial.
Scruffy McSnufflepuss
@AhabTRuler:
It gets even more batshit-insane if you talk to people who believe this crap. I’ve heard the argument that even if they weren’t guilty of the crime they were executed for, they must be guilty of SOMETHING. So, they were punished correctly for the incorrect crime. (I don’t know, maybe they ran a red light once. Or jerked off to porn. Or blasphemed. In any event, they sinned, and the wages of sin are death. QED, do-gooders!)
Scruffy McSnufflepuss
@DougJ:
One thing you should remember is that prosecutors are very used to winning. They win 95% of the time before the case even goes to trial (through plea bargains, etc.), and probably at least 80% when the case DOES go to trial, so that works out to winning about 99% of the time.
If you win 99% of the time, it’s easy to get pissed off that you’re not winning 100% of the time.
HyperIon
What is all this talk about timing and cost of DNA testing, etc?
On CSI they run the samples as soon as they are transported back to the lab. And when they get a match, they arrest the guy and the episode is over.
Are you trying to tell me that it doesn’t work that way IRL?
jenniebee
@DougJ:
But that excuse gets used reflexively, not logically. I remember a Texas case where a man was wrongly convicted of rape and murder, and even when DNA technology became available and proved that the semen found on the victim wasn’t his, the Texas high court ruled that proof that someone else was guilty was not proof that the man who had been convicted was innocent, even though there had never been any theory of the crime that included multiple assailants.
It seems to me that when possibly exculpatory DNA evidence is uncovered, if that evidence directly challenges the prosecutors’ theory of the case as it was presented to a jury, that ought to be grounds for a new trial.
ThymeZoneThePlumber
@Scruffy McSnufflepuss:
Heh. I used to live in Southern California, the New York City of ants. These little brown ants have what was once thought to be a Supercolony stretching from Canada to South America along the Pacific coast. Life in SoCal is a constant war with ants. I became the Adolf Eichman of the ant wars, and turned my house and yard into Ant Auschwitz.
With great glee, I invented ways to wipe out entire ant colonies so that I would watch them all writhe and die under my smiling gaze.
Don’t short-sell ant slaughter. Ants are the devil.
omen
isn’t there already a rule that frowns against prosecutors withholding evidence?
AhabTRuler
Funny, I wouldn’t have chosen the word banal to describe you, but if the shoe shoah fits…
jenniebee
While we’re on the subject of punishing the innocent…
Swedish swing/rap with banjo accompaniment. No, really.
Speaking of rap, did anybody else check out the poorman yesterday?
ThymeZoneThePlumber
@AhabTRuler:
Just for you, Acker Bilk and Stranger on the Shoah.
Enjoy.
noncarborundum
@QDC:
The corresponding bad news is that people like Savory, Conway and Powers (if in fact they’re innocent) are lucky that there’s DNA to test. Up-front DNA testing may reduce future cases of wrongful imprisonment, but the lesson of the Innocence Project is that there are serious systemic flaws in our justice system (cf. your point (2) above) that allow the conviction of innocent people. DNA testing only serves to demonstrate the problem; it doesn’t solve it. In many crimes there is no DNA evidence, and anyone unfortunate enough to be wrongfully convicted of one of these crimes is still SOL.
@DougL (frmrly: Conservatively Liberal):
Actually “found to be ‘not guilty'” is exactly what ‘exonerated’ means. Exoneration is the removal of the charge or burden of guilt (Latin ex-, from, and onus, burden), not a declaration of innocence.
Scruffy McSnufflepuss
@ThymeZoneThePlumber:
You monster.
Scruffy McSnufflepuss
Don’t get me wrong, I used to torture ants myself, as a young’un. But then I found PETA Jesus.
Bob In Pacifica
I’m trying to figure out in the rape case why DNA should not be used because the victim had had consenual sex prior to the rape.
Was the presence of semen used against the defendant? If it was, but it was someone else’s semen, wouldn’t that make its presence at best irrelevant?
Sorry, I was thinking logically.
omen
@jenniebee:
oooooh….
english lyrics are in the back. i like the part about being raised by gypsies.
AhabTRuler
@AhabTRuler: I want my motherfucking tags back. Jeez, talk about criminal…
MikeJ
Is that 1024 Tera Jesuses? Which of course is 1024 Giga Jesuses.
ThymeZoneThePlumber
@Scruffy McSnufflepuss:
At the First Church of the Baby Seal?
Not to be confused with Bobby Seale.
AhabTRuler
Technically, I believe the gentleman in question is playing a Banjo guitar.
Scruffy McSnufflepuss
@MikeJ:
Jesus crashed for your sins, saving you from that virus that you picked up on the porn site.
Scruffy McSnufflepuss
@ThymeZoneThePlumber:
Club not, lest ye be clubbed.
AhabTRuler
Giga-Jesus? What, if you don’t pray or tithe to him enough he gets sad and wastes away?
bago
@MikeJ: Talk about your own, personal, Jesus.
Roger Moore
@omen:
Yes, there is. But frowns are about all that prosecutors get in all but the most egregious cases. If they successfully hide the evidence until well after the trial, it rarely does the defendant any good to find it. Unless it’s incredibly obvious that the evidence would have destroyed the case- like somebody else confessing- appeals courts are happy to pretend that the withheld evidence wouldn’t have had any effect on the trial’s outcome. And prosecutors are rarely, if ever, held personally accountable for withholding evidence. When was the last time you heard about a prosecutor being disbarred for even the most flagrant violations?
Dustin
Yep, and in the state of Wisconsin the simple act of having charges brought against you in court, even if you’re found not guilty, is enough to destroy your job prospects for years to come. Just ask my father. He was charged with breaking and entering on no evidence other than a drunken eye witness, miles from the house in question, and and even though there was no physical way he could have been at the house being broken into he was still guilty (according to the cop) because he could have been “the getaway guy”. All this for the simple act of driving down a country road at 2am to go to work at the wrong time.
Because of that he has the trial on his record (even though not guilty), and now finds himself unable to get a decent job 8 months after the incident. Why? Because robbery is considered “substantially related” to literally any career outside of self-employment and therefore business are legally allowed to hold the trial against him. Not the conviction, the trial.
We truly do live in a screwed up system, no ifs, ands, or buts about it.
AhabTRuler
Well, to be fair, not if you’re rich. There’s no way like the American Way(TM)!
Scruffy McSnufflepuss
@Roger Moore:
Harmless error!
Trollhattan
I’m sorry, but I missed the news item that Illinois has declared themselves Texas, North. WTF is wrong with these prosecuters? “Hey, don’t go bringing fact thingies into this!”
Also.
ThymeZoneThePlumber, I have a substantial division of the Argentine ant mega-army at my place in NorCal, farming their slave colonies of garden pests, sending clouds of their tiny soldiers into my house with every change in the weather, and likely completely packing the exterior wall caveties of my house with their miniscule little bodies. I have never found a way to kill more than a couple hundred thousand at a time. Please do share your favorite genocide tips. Special bonus points for anything lemony.
Cain
@Scruffy McSnufflepuss:
Until of course they get caught and that attitude gets thrown in their face. I bet they’ll wake up for the period they are in trial rediscovering the constitution and then after it is all over go back to what they were doing.
cain
asiangrrlMN
@jenniebee: So, do you just troll around YouTube looking for this kind of stuff?
Seriously, though, I am in the ‘let the guilty free’ camp rather than the ‘imprison one innocent (black) man’ camp. However, I think our society in general has become more punitive-based over my lifetime. Hell, we’re debating, in 2009, whether it’s OK to torture. We are an ends justifies the means society, even though people won’t say it.
As for prosecutors, yeah, they want to win. There is no justice.
Creamy Goodness
When I lived among the stink ants in Eugene, OR, I found that while most baits wouldn’t attract them, they couldn’t resist Terro traps and drops.
asiangrrlMN
@Cain: Yeah, it’s like when something horrific happens in a “good” neighborhood. There is always someone who says, “We never believed it could happen here.” It’s always hypothetical–until it happens to you. Then, “I can’t believe our judicial system is set up this way!”
The Moar You Know
When DNA testing was first introduced, prosecutors were the ones who had a hard-on for using it – they looked at it as the nuke in their arsenal, the big one that was going to allow them to slap all the nogoodniks in a cell forever.
Hasn’t worked out that way, and it has been interesting to see which DAs offices (the vast majority of them, so far) oppose the use of the technology to confirm the evidence used to convict somebody. Turns out that evidence is, in quite a few cases, made up out of thin air, and they damn well know it from the start of the trial process.
Makes you think, doesn’t it? No? Well….it should.
Scruffy McSnufflepuss
@Cain:
Well, hypocrisy is one of the characteristics of modern conservatism. (I’m not familiar enough with Burke and Oakeshott to say whether it applied to them or not. Sully’s got me wondering, though…)
Face
When do paternity testing results get “accidently” shared with crime DNA databases?
jenniebee
@asiangrrlMN: I’m on a mission from God to drive you mad with youtube strangeness.
I thought Movits was kind of cool though. And I’ve been a Gogol Bordello fan for years.
BTW, the Atomik Harmonik Turbo Polka is one of my husband’s favorite videos ever, and he’s not being ironic about it – he genuinely likes Slovenian Bubble-Gum Pop.
ThymeZoneThePlumber
@Trollhattan:
Find the anthills. Flood them with water. AFter a few minutes, the entire colony will exit the nest, and start heading up the nearest vertical surface, building or tree. Give them time to evacuate the entire colony up there.
Once the entire colony is up off the ground, you are ready with a chemical sprayer. Soak the little motherfuckers with poison. You won’t have any ants for a while.
Mnemosyne
@Roger Moore:
The only one I can think of is Mike Nifong, but that was because he made the mistake of trying to frame rich white kids instead of poor kids. If they’d been townies, they’d probably be in jail today.
omen
@Trollhattan:
try these before going nuclear:
http://www.prevention.com/cda/article/ants/2aaf7e643f803110VgnVCM10000013281eac____/health/healthy.home/gardening
Mnemosyne
My ant-killing secret weapon: Hot Shot. It’s so strong that I’m sure it’s going to give me cancer someday, but damn it works to keep those little bastards from getting back in the same way.
omen
@Face:
worried?
ThymeZoneThePlumber
@Mnemosyne:
Another terrific ant weapon is Amdro.
A few granules around a busy red anthill and the colony is dead and gone in a couple of days. It’s nasty stuff, use it with caution, but it works.
I generally buy it at Home Depot. Store it and use it with the greatest of caution around children or pets, read all the information and follow directions.
Tonal Crow
Many prosecutors vigorously advocate collecting DNA from convicts (irrespective of the crime of conviction) and even from arrestees, for testing against every existing (and future) crime-scene DNA sample, thus allowing them to catch previously-uncaught perps.
So, they have no problem with large-scale use of DNA tests, nor with trolling databases for matches. Their problem is with using DNA evidence to exonerate people — especially people against whom they’ve already obtained convictions. Thus, these prosecutors show that they’re more interested in obtaining (and preserving) convictions than in furthering justice — or even in getting the real perps off the streets.
The “criminal justice” system needs wholesale reform, beginning with a rededication to actual justice.
ThymeZoneThePlumber
@Tonal Crow:
As one who has worked in the criminal justice industry, and that’s what it is, I agree with you completely.
Roger Moore
@Mnemosyne:
That was also a very high profile case, and he got caught in his lies before the trial, not after a conviction. And even then there were a few idiots who thought he hadn’t done anything wrong.
asiangrrlMN
@jenniebee: But this is precisely what I mean! Except for the abomination that was Celine Dion singing AC/DC, I am flummoxed by the other videos. They are strange, odd, and weirdly addictive. Gah! I don’t know what to do with this new knowledge!
The Raven
When an innocent is convicted, a perpetrator goes free. When Ronald Cotton was convicted of raping Jennifer Thompson, the real rapist, Bobby Poole, went free. Poole was ultimately jailed for another rape, and who knows how many Poole he committed before he was finally jailed. Think on that, O advocates of convicting the innocent.
Krawk!
Trollhattan
Here on “Sprockets” we appreciate the many delightful extermination suggestions. The miscreants in question are these:
http://www.ipm.ucdavis.edu/TOOLS/ANTKEY/argentine.html
If you click through to the management tips you’ll be advised to “Sponge invaders with soapy water as soon as you see them.” Which, in my experience takes a LOT of time and tiny, tiny sponges. They’re sent off with a warning.
“Go tell the others what you’ve seen here today.”
FWIW these bastards can’t be bothered to make proper anthills, they just dig in wherever. It’s true that when flooded they’ll pour forth in vast clouds, up the nearest wall or bush, carrying all the young’ns. Then it’s go-time, baby.
Hours of fun.
sab
Of course what we are all forgetting, and these prosecutors have remembered, is that Bernie Madoff bankrupted the Innocence Project, so there is no one out there backing these defendants.
Calouste
@Woody:
To quite a few people this particular problem in the American judicial system is a feature, not a bug.
TenguPhule
The Death Penalty, like higher taxes, will only apply to people making over $250,000 a year.
/not quite snark
polyorchnid octopunch
Well, part and parcel with the US approach to the world at large.
Shining city on a hill… in The Lord of the Rings one of the shining cities on a hill that I recall was Minas Morgul. Gollum was tortured there… looks like the analogy is actually pretty relevantly similar.
Your leadership is working really really hard at driving both the people and the country of the USA into the dirt, afaict. From the outside looking in, it looks like OBL read you guys like a book. He’s got to be pretty happy with the really fantastic job you guys are doing at self destructing.