Cold Case Lessons for Post-Conviction DNA

1. Cold Case Lessons for Post-Conviction DNA Professor Jules Epstein NIJ 2009

3. Exonerations have: Confessions Forensics Eyewitnesses Informants Lesson I: Corroborative Evidence Isn’t The Test

4. Lesson I: Decisional Law • Just because the prosecution's evidence, if credited, would provide strong support for a guilty verdict, it does not follow that evidence of third-party guilt has only a weak logical connection to the central issues in the case. • Holmes (trial standard)

5. Lesson I: Decisional Law • [T]he strength of the evidence against a defendant is not a relevant factor in determining whether his identity as the perpetrator was a significant issue. State v. Peterson, 836 A.2d 821, 827 (App.Div. 2003)

6. Lesson I: Decisional Law • [T]he strength of the State's case was not a hurdle that he had to overcome in order to meet the statute's requirements for postconviction forensic testing. [Illinois.]

7. Lesson I: Science • In a recent “staged crime” study, witnesses who viewed a lineup and picked person “A” or no one switched their identification to person “B” when told that “B” had confessed.

8. Lesson I: Investigation Errors

9. Lesson I: Investigation Errors • Tunnel Vision has afflicted both prosecution/police and defense investigations. • THE MULTIPLE DIMENSIONS OF TUNNEL VISION IN CRIMINAL CASES, 2006 Wis. L. Rev. 291 ,

10. Keep Investigating • In 12 DNA exoneration cases, defendants were convicted when DNA evidence at trial made clear it was not the accused. • The facts fit some theory.

11. Keep Investigating • In the 12 cases, when the crime scene DNA was run against the database or against a new suspect, the real [more likely?] perpetrator was found.

12. Lesson II: ConstitutionalityIsn’t The Test

13. Concerns Regarding Suppression Law - I • Of the first 200 DNA exonerations, 158 involved eyewitness testimony • 29 raised “suggestive ID” claims • None received relief

14. Concerns RegardingSuppression Law - II • Of the first 200 DNA exonerations, 20 involved confessions • 10 cases challenged constitutionality • 13 cases challenged some aspect of confession • None prevailed

15. Lesson III: Criminal PastIsn’t The Test

16. Exonerees Had a “Past” • In 80% of the DNA exoneration cases, more than half of the “exonerees” had prior convictions.

17. The “Disconnect” • No DNA testing because defendant “confessed” and did not challenge confession as unconstitutionally obtained. Pennsylvania.

18. The “Disconnect” • If the allegation of the petitioner's innocence is recent and the evidence supports the petitioner as the offender, a prior confession may be enough to deny DNA testing. Tennessee

19. Disconnect • It is inconsistent to allow defendants who pleaded guilty to use post-conviction proceedings…in light of alleged new evidence…

20. Disconnect • Both his confession and his new claims cannot be true. A defendant knows at the time of his plea whether he is guilty…[and with the guilty plea] waives the right to present evidence regarding guilt or innocence.Indiana, 2008 (not a DNA case).

21. Disconnect • November, 2008: • Washington State trial court denies post-conviction testing because the blood-spatter evidence was convincing and overwhelming.

22. Nine exonerees pleaded guilty and many more did not dispute identity at trial Disconnect

23. So, What’s A Reasonable Test? • Ignore other evidence; ask about the potential of the DNA? • Remember – the decision to agree to test is not the same as the decision of what to do with test results.

24. What’s Reasonable • Consider the converse: DNA is sufficient to convict, even with bad description and no ID. People v. Soto, 981 P.2d 958 (Cal. 1999) • Is this “innocence” or “PBRD?”

25. Collateral Lessons - I • Familial DNA and Darryl Hunt • If it’s good enough for exonerations, isn’t it good enough for investigations? • Is this a database expansion issue?

26. Statutes of Limitations for Prosecutions: Eliminate Expand Toll (John Doe) Defense: Due Process (loss of witnesses) Statutes of Limitations for Post-Conviction DNA: Strict (5 states have a 1-3 year post-conviction limit) Prosecution: Loss of witnesses? Collateral Lessons - II

27. Collateral Issues - III • Defense Access to CODIS • Jeffrey Deskovic (database checked 16 years later) • Query: Is this a right under Brady v. Maryland? Is the federal database part of the local/state prosecutorial ‘team?’ Kyles v. Whitley. • 2 states allow post-conviction access to NDIS

28. Collateral Issues - IV • Should we have statutes for other types of post-conviction testing? • Six states and Washington, D.C. do.

29. Reliability, Not Adversariness • Findley, TOWARD A NEW PARADIGM OF CRIMINAL JUSTICE: HOW THE INNOCENCE MOVEMENT MERGES CRIME CONTROL AND DUE PROCESS, University of Wisconsin Law School 2009

30. References • THE MULTIPLE DIMENSIONS OF TUNNEL VISION IN CRIMINAL CASES, 2006 Wis. L. Rev. 291 • John Blume, The Dilemma of the Criminal Defendant With a Prior Record - Lessons from the Wrongfully Convicted (2008) • Brandon Garrett, Claiming Innocence, 92 Minn. L. Rev. 1629 (June, 2008)

31. References • Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55 (2008) • Risinger, INNOCENTS CONVICTED: AN EMPIRICALLY JUSTIFIED FACTUAL WRONGFUL CONVICTION RATE, 97 J. Crim. L. & Criminology 761 (Spring, 2007)

32. References • Epstein, “Genetic Surveillance” - The Bogeyman Response to Familial DNA Investigations (forthcoming, Journal of Law, Technology and Policy) • Samuel Gross, Convicting the Innocent, Annu. Rev. Law Soc. Sci. 2008. 4:173–92.

33. References • House v. Bell, 126 S. Ct. 2064 (U.S. 2006) • United States v. Risha, 445 F.3d 298 (3rd Cir. 2006)