October 1, 2007 Exoneration Using DNA Brings Change in Legal System By SOLOMON MOORE State lawmakers across the country are adopting broad changes to criminal justice procedures as a response to the exoneration of more than 200 convicts through the use of DNA evidence. All but eight states now give inmates varying degrees of access to DNA evidence that might not have been available at the time of their convictions. Many states are also overhauling the way witnesses identify suspects, crime labs handle evidence and informants are used. At least six states have created commissions to expedite cases of those wrongfully convicted or to consider changes to criminal justice procedures. One of them, the California Commission on the Fair Administration of Justice, will hold a hearing this month on remedies for people who have been wrongfully convicted. Laws in several states, including Illinois, New Jersey and North Carolina, have bipartisan backing, with many Democrats supportive on civil rights grounds and Republicans generally hoping that tighter procedures will lead to fewer challenges of convictions. “Technology has made a big difference,” said Margaret Berger, a DNA legal expert who is on a National Academy of Sciences panel that is looking into the changing needs of forensic scientists. “We see that there are new techniques for ascertaining the truth.” Maryland, North Carolina, Vermont and West Virginia passed legislation this year to create tougher standards for the identification of suspects by witnesses, one of the most trouble-ridden procedures. Nationwide, misidentification by witnesses led to wrongful convictions in 75 percent of the 207 instances in which prisoners have been exonerated over the last decade, according to the Innocence Project, a group in New York that investigates wrongful convictions. Legislatures considered 25 witness identification bills in 17 states this year, the National Association of Criminal Defense Lawyers reported. Five states approved bills, while five states defeated them. Bills are pending in seven states. “It’s become clear that eyewitnesses are fallible,” said Lt. Kenneth A. Patenaude, a police commander in Northampton, Mass., who is an expert on witness identification techniques. Two states, Vermont and Maryland, passed laws this year to improve crime lab oversight to eliminate errors and omissions. Maryland recently passed a law that will hold its crime labs to the same standards as clinical labs, a much more rigorous requirement. Other legislative changes to crime lab oversight are pending in 21 states, including New York. More than 500 local and state jurisdictions, including Alaska, Illinois, Maine, Massachusetts, Minnesota, New Hampshire, New Jersey, New Mexico, Wisconsin and the District of Columbia have adopted polices that require the recording of interrogations to help prevent false confessions, according to the Innocence Project. The California Legislature also passed a bill this year that requires informant testimony to be corroborated before it can be heard by a jury. Critics say such testimony can be unreliable, especially when it is offered by convicts or suspects in return for leniency. The bill awaits approval by the governor. Advocates of efforts to use DNA to exonerate those wrongfully convicted say the changes in the state laws are welcome and long overdue. “The legislative reform movement as a result of these DNA exonerations is probably the single greatest criminal justice reform effort in the last 40 years,” said Peter J. Neufeld, co-director of the Innocence Project. But some law enforcement officials oppose some of the changes, saying they create legal minefields for the police and prosecutors. Any deviation from the new standards, no matter how minor, could be taken up by defense lawyers in an appeal, the critics say. The California State Sheriffs’ Association is fighting two bills there that would mandate electronic recording of interrogations and corroboration of informant testimony. The bills have been passed by the Legislature and are awaiting final approval by Gov. Arnold Schwarzenegger, a Republican. “Simply put, these two bills create loopholes for defendants to get an edge in court on technicalities,” according to a letter from the sheriffs’ organization to the California Commission on the Fair Administration of Justice. The association also opposed a state bill that would create guidelines for suspect lineups. Even some proponents of the new standards balk at making them state law, insisting they are better dealt with by local law enforcement agencies. “I’m not fond of legislation,” said Lieutenant Patenaude, the Massachusetts police commander. “I’ve been asked to review bills in several states, and I haven’t seen one that mirrors the best practices that we’ve put out here. I’d like to see police agencies mold the procedures instead of legislatures or courts.” Studies of wrongful convictions suggest that there are thousands more innocent people in jails and prisons. The Innocence Project, the nation’s most prominent organization devoted to proving wrongful convictions, is pursuing 250 cases and at any given time is reviewing 6,000 to 10,000 additional cases for legal action. Approximately 1 percent of those cases will be accepted, and half of those accepted cases are closed because evidence has been lost or destroyed. Other smaller efforts to overturn wrongful convictions also receive thousands of letters from inmates. In a 2005 study, a University of Michigan Law School professor, Samuel R. Gross, estimated that 340 prisoners sentenced from 1989 to 2003 had been exonerated. Of those, 205 were convicted of murder and 121 of rape. Half of the wrongful murder convictions and 88 percent of the wrongful rape convictions included false eyewitness identification, the study found. DNA evidence was used to exonerate 144 of those inmates. In a 2007 study, Professor Gross analyzed 3,792 death sentences imposed from 1973 to 1989 and found that 86 death row inmates, or 2.3 percent, had been exonerated through 2004 Professor Gross said the total number of innocent prisoners was likely to be far higher. In his view, well-documented wrongful convictions in capital cases provided a window on systemic problems, with even larger numbers of convictions for less serious and less publicized convictions. “Of the 340 exonerations I looked at” in the 2005 study, Professor Gross said, “96 percent are for rape and murder.” He added: “Does that mean nobody was wrongfully convicted for drug possession, or drunk driving or burglary? Chances are there are many, many more false convictions for lesser crimes.” The most recent prisoner to be exonerated by DNA evidence was Dwayne Allen Dail, who served 18 years in North Carolina for a false conviction of child rape. Prosecutors had used the victim’s identification of Mr. Dail and hair found at the crime scene to convict him. Years later, after repeated inquires from defense lawyers, the police found a box of additional evidence in the case that contained the victim’s semen-stained nightgown. DNA analysis ruled out Mr. Dail and implicated another man. Mr. Dail was released from prison in August. The proposed laws on witness identification are intended to reduce cases like Mr. Dail’s by requiring things like sequential photo lineups of suspects, in which police officers show witnesses photographs of one suspect at a time. Studies have shown that witnesses tend to compare photos when they are shown them simultaneously, a tendency that can lead to errors. The legislation would also create “double blind” systems so that the police officers administering the photo lineups are unaware of the suspects’ identities in order to avoid influencing witnesses. The North Carolina legislature adopted both lineup procedures this year. Crimes labs are also getting additional scrutiny in some states. William E. Marbaker, president of the American Society of Crime Lab Directors, an independent accreditation body, said the group had accredited more than 300 crime labs. But some law enforcement agencies are finding that even more oversight is needed. A two-year review of the Houston Police Department’s crime lab called into question more than 600 cases. The review was initiated after a court found in 2005 that faulty forensic evidence led to the conviction of George Rodriguez in 1987 for kidnapping and assaulting a child. Mr. Rodriguez served 17 years of a 60-year sentence before his release two years ago. Houston crime lab officials erroneously concluded that hair found at the crime scene belonged to Mr. Rodriguez. The crime lab also failed to rule out Mr. Rodriguez as a suspect after finding that semen collected from the scene matched that of another man. Eight states — Alabama, Alaska, Massachusetts, Mississippi, Oklahoma, South Carolina, South Dakota and Wyoming — do not have laws that give inmates access to DNA evidence. Advocacy groups, including the Innocence Project, said they intend to lobby for the passage of access laws in those states during the next legislative session.

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