Crime Library: Criminal Minds and Methods

All about the DNA Revolution

DNA and Freedom

When Illinois Governor George Ryan learned that DNA testing had exonerated thirteen men on death row, he placed a moratorium on the death penalty in his state. He was shocked that innocent men might have been executed and everyone wondered how many might already have been. Thirty-seven other states allow the death penalty and it is no secret that the court proceedings are not always about justice. Even when they are, many convictions rely on eyewitness testimony, which has proven to be notoriously corruptible and unreliable. Lack of funding and bad lawyering also top the list of reasons why someone might be falsely convicted. Whatever the reason, DNA testing can provide a way out—but it is not always accepted without a fight.

Ricky McGinn (POLICE)
Roy Criner released with mom

In Texas, Roy Criner received a prison term of 99 years for the rape and murder of 16 year-old Deanna Ogg. Apparently he had made statements to friends that seemed to hint at his involvement in the crime. He was arrested and convicted. In the mid-1990s, he submitted to DNA testing, and the results excluded him as being the contributor of the genetic material found on the girl. However, Criner remained in prison. He was not granted a new trial because the majority of justices in the appeals court felt that the DNA evidence would have made no difference. One dissenting judge believed that the majority undervalued the force of this evidence. Then a local Houston reporter found more evidence of Criner's innocence. A cigarette butt, previously discounted, was tested for a DNA reading. It was found that the person who had smoked it was also the person who had raped Ogg—and that person was not Criner. After serving ten years for a crime that he did not commit, he was finally set free.

When properly used and understood by the court, DNA appears to be an important safeguard, and yet many states resist post-conviction testing. Those few that grant inmates the right are in the minority, although 95% of the American people believe that the right to have one's DNA tested should be guaranteed to all. Since 1982, over seventy men have been freed from death row based on exculpatory DNA evidence.

Lori Urs, a lawyer who worked with Centurion Ministries on cases that showed reasonable doubt and who set up the Innocence Project for Justice at Rutgers University, took on the case of Joseph Roger O'Dell. Based on circumstantial evidence, imprecise blood matches, and the testimony of a jailhouse snitch (who recanted), he had been convicted of a 1985 rape/murder in the state of Virginia. For the first time in its history, Virginia allowed post-conviction DNA testing. A newly trained Lifecodes technician who kept poor notes used an RFLP analysis method, band shifting that was prone to error and was not generally accepted by the scientific community. In addition, since much of the organic evidence had degraded, she could only test a small area of blood on the shirt, which she said was consistent with that of the victim. Nothing was done with the anal and vaginal swabs. In effect, she probably did more damage than good in this case. However, it got worse.

The U. S. Supreme Court refused to hear O'Dell's argument on actual innocence, but one of the judges mistakenly wrote that DNA test results had shown that blood found on O'Dell's clothing matched the victim's. His misunderstanding of the RFLP procedures remained part of the record.

As DNA testing advanced and the new PCR tests met court standards, O'Dell asked for further testing based on the possibility of better technology offering exculpatory evidence, but Virginia refused to grant it. Barry Scheck wrote a brief to the court on his behalf, pointing out that the trial court had weighed in most heavily on the semen sample appearing to be consistent with that of O'Dell. Since they now had a way to prove it one way or the other, the DNA tests should be allowed. Yet the court resisted a new trial and ultimately O'Dell was executed in 1997. The defense team continued to ask for the evidence for the possibility of post-execution exoneration, but the court would not release it to them. Instead, in March of 2000, the last of the evidence was burned without any further testing.

"There's no uniformity among the states right now," Urs points out, "about statutes allowing convicted people to gain access to evidence for DNA testing." She is currently working on a statute for New Jersey, based on the best parts of the statues from the six other states. She hopes for legislation that will make it mandatory under certain circumstances for judges to allow defendants access to evidence for DNA testing to support claims of innocence. "This is directly related," she says, "to the Leahy-Smith Innocence Protection bill, which includes a federal guarantee. The issue in the O'Dell case was not just about guilt and innocence, but also fairness and the court's denial of a defendant's request to prove his innocence before execution. This has become a matter of controversy throughout the world."

Barry Scheck has stated that many of the cases he takes on are "literally wars," because the courts tend to resist getting DNA testing done. To assert that an innocent person has been convicted is tantamount to an attack on the justice system. "In 33 states in this country," he says, "there are statutes of limitations of six months or less on newly discovered evidence of innocence motions. We have to fight that." In other words, legal procedure may not support real justice. Six months will hardly accommodate advances in science that can change everything for a defendant.

One thing that the DNA revolution in the legal system has proven, he goes on to say, is that there are far more innocent people in prison—sometimes awaiting execution—than we might have otherwise believed. That should horrify us all.

Janet Reno (AP)
Janet Reno (AP)

Janet Reno took note and in 1996 she called together a Commission on the Future of DNA Evidence. Everyone who attended agreed that such tests ought to be available, yet in reality, court personnel continue to defend against the possibility that mistakes were made. Few lay people understand the ramifications, but in essence, those who are fighting for better statutes for post-conviction testing are working on behalf of people whose innocence can be proven by science—a far more reliable standard than eyewitness testimony or the foibles of lawyers. Nevertheless, it appears to be an uphill battle.

Yet even while post-conviction DNA testing is resisted, trial courts generally accept DNA evidence across the country, although admissibility was not automatic. Despite early successes in the 1980s, there have been some serious challenges—including what happened in the O. J. Simpson case. Let's look at some of the legal history.