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Three for Three: Why Not Test the DNA?

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DNA_color-230pxMost of our cases do not involve DNA evidence, or the possibility of DNA. Of the 15 cases we are now litigating, only 6 are requests for post-conviction DNA testing. In some cases, the prosecutors readily agree to have evidence left from the crime scene tested for DNA to compare to our client. As one prosecutor told us,

“I am confident in my conviction. But if the evidence shows it wasn’t him, I certainly want to know.”

And so most people feel about DNA testing. Just test it. If it confirms guilt, so be it. But if the DNA on the evidence from the crime does not match the person convicted but matches to a known perpetrator, as it has in 126 of the 309 DNA cases, who doesn’t want to know that?

Sadly, it seems, the Philadelphia District Attorney’s Office would prefer to be in the dark. We have, so far, been forced to argue for testing in 3 cases. In all 3, the response from the District Attorney’s Office has been disappointing. Not once did the prosecutors argue that the testing should be denied because it would not prove that the defendant was innocent. Not once. Rather, the office has chosen to fight every testing request on purely technical, procedural grounds.

For example, in the case of David Turner, the District Attorney’s Office opposed testing on the grounds that the gloves we sought to test which everyone believes the perpetrator left at the crime scene may not have been stored properly and could be contaminated. Putting aside that the area we wanted tested was inside the gloves, where the DNA would most likely be, the argument makes no sense. It is only an issue if DNA comes back which does not match Mr. Turner and for which no matching profile could be found in the national DNA database, referred to as CODIS. Of course, should the DNA testing reveal that Mr. Turner’s DNA is actually on the glove, would the prosecutor still argue that it must have been the result of contamination?

Another case, William Moore, provided a different opportunity to oppose testing. Before we filed the motion asking for DNA testing, we confirmed with the Philadelphia Police Department that the evidence existed and was available for testing. The Department even told us where it was being stored. But the prosecutors tried to convince the judge that the evidence was stored in a massive storage area under the court’s control (not the police, as we had been informed) and that since the storage room contained hundreds of boxes which had not been catalogued or sorted, the evidence was “unavailable.” That’s right. According to the prosecutors, although they knew where the evidence was stored, because no-one had actually gone to look for it, they wanted to deny Mr. Moore the chance to prove his innocence. Luckily, the judge was having none of it and ordered the testing.

Finally, just this week, the Philadelphia District Attorney’s Office asked the judge to dismiss our petition for DNA testing because the defendants (there are 3 of them) did not bring the petition in a “timely manner.” The testing that we sought in the petition has only been available since 2007 and, in another case, 2010. Yet, according to prosecutors, these incarcerated individuals should have known precisely when this new DNA testing technique, Y-STR, became generally available at the state crime labs. We would venture to guess that no readers of this blog knew that before reading it. Once again, the judge rejected the prosecutors’ arguments and ordered the testing to take place.

Three for three. In front of three different judges. These cases took, on average, 18 months to get to this point. Months of delay by the prosecutors in answering the petitions in the first place, months of delay caused by the protectors of justice throwing up procedural and technical arguments lacking in both good faith and good research.

The testing itself will take around 8 – 10 weeks. We will have results in less time than it took the prosecutors to compile their motions and file them. Had they just agreed to the testing initially, like we asked them to do, all of this time would have been saved. And the taxpayers for the City of Philadelphia would not have had to waste their tax dollars on defending against a mere DNA test.

Remember. This is JUST TO GET THE TESTING. Agreeing to the test is not agreeing to release the defendant from prison. Only if the testing proves to be exculpatory can the defendant ask for a new trial. And then we can argue about whether the DNA does or does not prove his innocence. If the judge were to agree with the client, the result is still not release but a new trial.

1339415_question_3We have been asked this question more than almost any other – why don’t prosecutors agree to allow possibly innocent defendants access to the only evidence that could potentially prove it?

We simply don’t have an answer. Do you?

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