Proving the innocent innocent, and the guilty guilty

Joe McCulloch called me this morning to give us a heads-up on something. The House agreed on Thursday to recall a bill from committee that would allow people who are convicted of murder, rape and a handful of other violent crimes to have DNA testing done if they can convince a judge it would likely prove them innocent. The bill has passed the Senate, so there’s a chance it could become law this year, if the House approves it this coming week. Here’s the editorial we wrote about it earlier this month:

Post-conviction DNA testing
protects all of us

WHEN THE WRONG person is convicted of a crime, the only clear winner is the actual criminal – although police and prosecutors might appear to be winners, since they were able to score a conviction. The person wrongly convicted certainly doesn’t win, and in fact we do incomprehensibly grave harm to that person. Neither do the rest of us, who are less safe because the real criminal remains free to harm others.
    We don’t have reason to believe that a large number of people are wrongly convicted in South Carolina, but we do know that our laws are not adequate to right the wrong when it does occur. A bill passed last month by the Senate (S.429) would correct part of the problem, by adding our state to the 44 others that allow people convicted of murder, rape and a handful of other violent crimes to have DNA testing done if they can convince a judge it would likely prove them innocent.
    Under current law, there’s no mechanism for such testing; in most cases, judges can’t order DNA testing – or do anything about it if such testing is somehow done and demonstrates the convict’s innocence – unless the solicitor agrees to the request.
    That wouldn’t be a problem in an ideal world, because the job of prosecutors is to do justice, and so they would be just as anxious as anyone to make sure the wrong person isn’t in prison. The reality is different. Prosecutors are human and dislike admitting their mistakes; and besides, they grow cynical from hearing the inevitable claims of innocence from criminals who really aren’t innocent, so with rare exceptions, they fight tooth and nail against those claims.
    One of the main criticisms of laws to facilitate claims of innocence is that they would be abused by prisoners who, with all the time in the world on their hands, will pursue any avenue of appeal that’s opened to them. That’s always a risk, but the bill’s sponsor, Sen. Gerald Malloy, projects that no more than five to 10 requests would be made each year. That’s in part because the bill is a double-edged sword for prisoners who really are guilty: If the DNA testing confirms their guilt, they are subject to contempt of court, revocation of good-time credits and denial of parole requests. Perhaps more importantly, it requires that any new DNA samples be run through state and federal databases, to see whether the prisoner can be tied to unsolved crimes.
    Senators tried to address concerns about the cost by putting an annual limit of $150,000 on the amount of money the state would spend to provide DNA testing for prisoners who can’t afford it themselves. But that doesn’t address the larger potential cost, in increased demand on our already overburdened and underfunded courts. That cost is not a sufficient reason to reject the legislation – but it is reason to give the courts the resources they need to do their job. Another way to hold down the cost might be to eliminate the appeals procedure, and make the judge’s decision on whether to order testing final.
    There is certainly room for debate over precisely how such a program should operate – and we hope that the House will engage that debate before lawmakers adjourn for the year. But we have not heard any convincing arguments why our state should continue to bar the courthouse door to inmates with reasonable claims that a simple test can prove their innocence.

A way to prove the innocent innocent, and the guilty guilty. It’s hard to see why this wouldn’t pass in a heartbeat.

12 thoughts on “Proving the innocent innocent, and the guilty guilty

  1. David

    Pretty much all I know about this is what I’ve seen on episodes of ‘Forensic Files’ but, aren’t several states now taking DNA samples from every person that enters the prison system as a felon? I thought it had sort of become one of the steps at check in, you know:
    1) Snap a flattering photo
    2) Remove civilian attire and issue state jumpsuit
    3) Issue key to the weight room and map to the TV lounge and other points of interest on campus
    4) Swab mouth for DNA sample
    Is this not how they do it? David

  2. p.m.

    As the sheriff in my county recently said, “This ain’t CSI.”
    Gerald Malloy happens to represent a part of my county in the Senate.
    DNA evidence isn’t quite as simple as The State’s editorial makes it. Such evidence could never prove anyone innocent. If a suspect’s DNA is not present at a crime scene, that doesn’t prove the suspect didn’t commit the crime. If someone else’s DNA is present at the crime scene, that person might thus become a more likely suspect, but even the presence of someone else’s DNA doesn’t prove the innocence of a person whose DNA is absent.
    Criminal trials involve proof of guilt beyond a reasonable doubt and a jury’s assessment of that. There is no such thing as an “innocent” verdict, and “not guilty” doesn’t mean the suspect is innocent, just not proved guilty in the eyes of a judge or jury.
    Malloy’s bill should be examined closely to make sure it’s not designed just to pad lawyers’ wallets or free convicts in the absence of DNA evidence for racial reasons.

  3. David

    All of that may be true PM, but I think this bill (or something like it) should be passed now.
    DNA may not be the single factor which eclipses all others in every case, but it is certainly the deciding factor in some cases and pushes the jury beyond “reasonable doubt” in many, many other cases. Surely it does so in enough cases to be justified.
    In a rape case for instance, if the rapists’ DNA obtained from the victim does not match the DNA of the person who has been convicted for that rape, that’s pretty conclusive isn’t it?
    If for no other reason than that type of case alone, I say let’s pass the bill. And I poked fun at it in my first post, but if we ARE in fact gathering DNA samples from every convicted felon, that can’t help but be an effective tool with which to solve other cases, can it?
    I like this bill. I say two thumbs up. David

  4. jafo

    At least there is an acknowledgement that our laws must keep up with technological breakthroughs. How or when is still up for debate.
    Discussion is a good thing.

  5. penultimo mcfarland

    If the rapists’ DNA obtained from the victim does not match the DNA of the person who has been convicted for that rape, it’s pretty conclusive, yes — that someone other than the convict had sex with the victim before the test occurred.
    In some cases, that might indicate the convict is probably not guilty. In others involving a more promiscuous victim, it might not.
    I’d like to see the actual language of the bill to see exactly what’s going on here. Creating a legal system where DNA evidence is required for a conviction might mean the gloves will almost never fit anyone. That wouldn’t be good.

  6. David

    I am definitely not about creating another tool which lawyers can use to pad their wallets, as PM suggested. Neither do I want to create a legal system wherein DNA is rigidly required for a conviction.
    Our legal system functioned acceptably for roughly 190 years without DNA, pretty well convicting the bad guys and absolving the innocent.
    Whatever we do with DNA should improve what we’ve been doing all along: We want to make wrongful convictions less likely, not impair the ability to try cases. And we certainly don’t want to create a windfall for lawyers.
    Given these limits and acknowledging that we need to carefully craft the bill to take them into account, I say pass the DNA bill. David

  7. p.m.

    I’m just saying (there’s that expression again) let’s examine the actual language of the bill to make sure it does exactly what it’s supposed to.
    I myself like the idea of convicting only the right people. I just don’t want DNA to become the minimum standard for conviction.

  8. Cindi Scoppe

    Excellent idea — reading the bill to see what it does. Here’s the link:
    The bill does NOT REQUIRE DNA evidence for a conviction; it does nothing to change the requirements for conviction.
    And it’s absolutely true that DNA evidence can’t prove someone’s innocence. What the bill does is allow a convict to request the test; the test will be performed only if a judge determines that chances are good that a jury would find the prisoner not guilty if the DNA test goes the way he wants and is presented at trial.

  9. p.m.

    And all I found objectionable was this:
    “If the person is convicted or adjudicated on a guilty or nolo contendere plea … the physical evidence and biological material must be preserved for seven years from the date of sentencing…”
    After a person pleads guilty, of what use could the biological evidence possibly be? Why should it be preserved?
    If someone who pleaded guilty originally eventually pleads not guilty and gets off, can they then be charged with perjury for pleading guilty in the first place?

  10. Teresa Parker

    I have a long story but I will make it as short as I can. But my father was found guilty and they did not use DNA evidence or they would have found him not guilty. I want to find out how I go about helping my father prove his innocents even though he has been convicted but not sentenced yet.
    Thank you

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    Maternity testing is normally performed by testing a potential mother and a child. This type of testing would normally be requested by an adoption or immigration agency.If there is more than one possible mother of the child and the possible mothers are closely related to each other, then it is very important to test them both. This would be true, for example, if two potential mothers are related to each other as sisters or as mother and daughter. The DNA maternity test of a single alleged mother only identifies a probability of maternity for that alleged mother compared to other unrelated women.

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