Prosecutors Fight DNA Use for Exoneration
August 29, 2003
New York Times
By Adam Liptak
SHARPES, Fla., — After seeing more than 130 prisoners freed by DNA testing in the last 15 years, prosecutors in Florida and across the country have mounted a vigorous challenge to similar new cases.
Prosecutors acknowledge that DNA testing is reliable, but they have grown increasingly skeptical of its power to prove innocence in cases where there was other evidence of guilt. Defense lawyers say these prosecutors, who often relied on the same biological evidence to convict the defendants before DNA testing was available, are more committed to winning than to justice.
The fight has become particularly heated in Florida, where prisoners will soon be barred from seeking DNA testing for old cases under a 2001 law that set an Oct. 1 deadline for such requests.
In this state, the cases of two prisoners illustrate both the power and limits of DNA testing.
In one case, Wilton Dedge was convicted of rape based in part on two light-brown hairs found in the victim's sheets here in 1981. It was the only physical evidence against him. The hairs were, the prosecutor said at his trial, "microscopically identical" to those of Mr. Dedge.
In a 1983 trial of another man, Richard McKinley, for the rape of an 11-year-old girl in Homestead, the prosecutors told the jury that semen recovered from the girl matched his blood type.
DNA testing, which was not available at the time of either trial and which was performed recently only after fierce resistance from two sets of Florida prosecutors, showed that the hairs and the semen could not have come from the defendants.
Yet both men remain in prison serving life terms, and the prosecutors who relied on the biological evidence to convict them now say the DNA testing is not proof of their innocence.
Other Florida prisoners may never have the chance to argue about whether DNA evidence exonerates them. In 2001, the state Legislature opened a two-year window for DNA retesting in older cases. The window will close on Oct. 1, after which courts cannot hear the cases of hundreds of inmates who say that testing could free them, and lawyers across the state are in a race against time to file motions on behalf of such clients.
While prosecutors concede that DNA can prove whether someone is associated with a given piece of biological evidence, they insist that is not the same thing as proving whether a defendant committed a crime.
In the cases of Mr. Dedge and Mr. McKinley, for example, the prosecutors say that the remaining evidence in those cases was strong enough to uphold the men's convictions.
Defense lawyers say these arguments amount to prosecutorial vindictiveness. Prosecutors respond that it is time to reconsider the power of DNA evidence, saying its usefulness in many cases is overstated.
The debate about the value of DNA evidence also rages in other states.
In Houston, prosecutors have resisted an appeal for an unconditional pardon by Josiah Sutton, who was cleared by DNA testing in a 1998 rape and has been freed. The victim continues to maintain that she identified the right man.
"If this is not categorically dispositive evidence of innocence," said David Dow, a lawyer for Mr. Sutton, referring to the results of the DNA testing of sperm collected from the victim, "there is no such thing."
Chuck Rosenthal, the district attorney in Houston, saw things differently. "From the standpoint of the law, he's innocent until proven guilty," he said.
"Whether he's actually innocent, I don't know," he said. "I'm not about to call the victim in this case a liar."
Mr. Dow said this exchange illustrates a trend. "What we're seeing is a double standard," he said. "Evidence will be considered more than sufficient by prosecutors if it establishes guilt and questionable or insufficient if it established innocence."
Barry Scheck, the cofounder of the Innocence Project at Cardozo Law School in New York, said prosecutors in New York, Illinois and many Texas counties have embraced DNA testing. But in Alabama, Arkansas, Colorado, Louisiana, Michigan, Mississippi and New Mexico, Mr. Scheck said, prosecutors often resisted testing requests on the ground that even a positive result would not conclusively establish innocence.
On Monday, for instance, Lonnie Erby was released in St. Louis after 17 years in prison for rape. The prosecutor there, Jennifer Joyce, had opposed efforts to perform DNA testing, calling it pointless because tests could not conclusively clear Mr. Erby, since biological evidence was available in only two of three rapes with which he was charged. She changed her mind after testing excluded him as a suspect in those rapes.
In Florida, Mr. Dedge had to sue to have the evidence in his case retested, over the objections of prosecutors who said that the state's interest in finality and the victim's feelings should preclude it.
Judge Winifred J. Sharp dissented in a 1998 appeal ruling that initially turned down his request. "The results of the tests, if successfully performed, will likely be absolutely conclusive of either guilt or innocence," she wrote.
The tests were performed in 2000. Though the victim said that only she, her sister and the rapist could have left the hairs in her sheets, the tests excluded the sisters and Mr. Dedge.
But prosecutors say that Mr. Dedge has not proved his innocence or his entitlement to a new trial. They rely on three other pieces of evidence against him.
The victim, who was 17 at the time, identified him. But she first said that her assailant was 6 feet tall, weighed 200 pounds and had a hairline receding to the point of baldness. Mr. Dedge is more than six inches shorter than that and weighs about 145 pounds; at the time of the crime, according to court records, he was about 125 pounds. He still sports a full head of hair.
A prison informant testified that Mr. Dedge had confessed to him in a passing conversation. The informant received a 120-year reduction in his sentence in exchange for his testimony. A truck confiscated by the state was also released to the informant's wife as part of the same deal.
And an expert witness was allowed to testify that his dog had compared the victim's sheets three months after the rape to a selection of sheets from the local jail and had picked out Mr. Dedge's sheets. Such "scent line-ups" have since been questioned by the Florida courts.
In June, a trial judge, J. Preston Silvernail of Brevard Circuit Court in Viera, ruled that Mr. Dedge could pursue his motion for exoneration.
"There is," he wrote, "a reasonable probability that the defendant would have been acquitted if the DNA evidence excluding the defendant as the contributor of the pubic hair had been introduced at trial." Prosecutors appealed that decision.
Robert Wayne Holmes, the prosecutor in the case, did not return repeated calls for comment. In court papers, he emphasized the justice system's interest in finality, the hardship that a retrial would inflict on the victim and the strength of the remaining evidence. "The fact that it can now be said that the defendant was not the source of the hair has little significance," he wrote.
Mr. Dedge, a steely man who wore a bright-red prison jump suit, handcuffs and leg shackles during an interview at the detention center in Cocoa, Fla., disputed that.
"They used it against me," he said of the hair evidence, "and now they say it doesn't matter."
Mr. Dedge, now 41, presented six witnesses at his trial who said he was working as an auto mechanic and was on the job at the time of the rape.
In the McKinley case, prosecutors concede that DNA testing of the sperm found in a rape of an 11-year-old girl shows that it could not have come from the defendant. The prosecutors now say that doesn't matter. "The DNA is a sideshow," said Edward Griffith, a spokesman for the Miami-Dade state attorney's office.
More important than the DNA, Mr. Griffith said, was a police officer's testimony that he saw Mr. McKinley atop the girl with his pants down.
The DNA evidence does not contradict that testimony, he added, because the girl had had sex with another man not long before the rape. She also said that Mr. McKinley had not ejaculated.
Testimony about the girl's earlier sexual encounter was excluded under a Florida law that bars introduction of a victim's sexual history in a rape trial. "That's insane," said Mr. Scheck, who represents Mr. McKinley in his current request. "Whoever had sex with an 11-year-old committed a crime."
He said that Mr. McKinley deserved at least a retrial. "There is no question that the prosecution took the position at trial that the semen came from McKinley," he said.
Other prisoners in Florida may never be able to seek DNA testing because of the Oct. 1 deadline. Almost 500 inmates have contacted lawyers and groups that represent potentially innocent people asking for help in reviewing transcripts, finding evidence and making motions. Teams of volunteer lawyers and law students are working furiously to beat the deadline.
They have been able to review about 280 cases, said Jennifer Greenberg, the director of the Florida Innocence Initiative, and have concluded that about 20 have viable DNA-based innocence claims. Each will now require quick and intensive litigation to file motions before the deadline.
Many other files remain unexamined, and letters keep arriving. "We have 202 people for whom we've done nothing," Ms. Greenberg said. "We've been inundated."
Defense lawyers plan to ask the Florida Supreme Court to extend the deadline, and they hold out hope that federal courts would allow retesting even after the deadline passes.
But these lawyers say they are concerned with one aspect of the testing law: Except in death penalty cases, in which biological evidence must be saved until 60 days after execution, the law allows the destruction of DNA evidence.
Mr. Dedge said that his experience shows the deadline should be extended. "There's no statute of limitations on murder one," he said. "How can there be a statute of limitations on proving your innocence?"
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