PERVASIVE WRONGFUL CONVICTIONS IN THE USA

And prosecutors like it that way

By William S. Sessions

When I became the director of the FBI in 1987, the forensic use of DNA to find and convict wrongdoers was just emerging as a tool in criminal investigations and trials. This "genetic fingerprinting" provided an entirely new capability in the effort to separate the guilty from the innocent. In early 1988, the FBI Laboratory Division created a DNA testing lab; by year's end, testing was completed in 100 active cases. I was fully expecting the results to confirm the careful investigative and evaluative work that had gone into the decisions to prosecute these suspects.

Instead, I was stunned by the results. In about 30 percent of the cases, the DNA gathered in the investigation did not match the DNA of the suspect. Fifteen years later, this rate remains virtually the same. Approximately 25 percent of DNA tests do not produce a match. I am proud that throughout its existence, the FBI's DNA lab has served both to identify criminals and to exonerate suspects mistakenly identified by law enforcement investigations across the country. But with 137 post-conviction DNA exonerations now on the books in the United States, I am increasingly concerned about recent news stories that suggest a growing resistance on the part of prosecutors across the country to allow post-conviction DNA testing, even in cases where there is strong evidence of innocence.

There are always reasons -- time, money, bureaucratic obstacles -- that something cannot be done. But when it comes to justice and fairness, those reasons are just excuses. Prosecutors not only have a professional duty to seek the truth, they have a moral responsibility to respond to the DNA no-match rate. Just as pretrial DNA testing has illuminated the unexpected frequency with which police and prosecutors have targeted the wrong person, post-conviction testing in cases that were tried 15 or more years ago -- before the availability of forensic DNA -- can exonerate those wrongly convicted, and can possibly identify the true perpetrator and shed light on the causes of the wrongful conviction.

One case vividly illustrates the power of DNA testing. In 1984, a 9-year-old Maryland girl was found strangled, raped and beaten to death with a rock. In 1985, Kirk Bloodsworth was convicted of the crime in Baltimore County and sentenced to death, mainly on the basis of eyewitness identifications and vaguely suspicious statements that Bloodsworth had made. Luckily for him, there was biological evidence in his case, and later DNA testing proved more reliable than the evidence presented against him at trial. In 1992, DNA testing of sperm on the victim's clothing excluded Bloodsworth as the source. In 1993, after spending more than eight years in prison, two of them on death row, Bloodsworth was exonerated and released.

But the case did not end there. For more than a decade, Baltimore County prosecutors continued to consider Bloodsworth their chief suspect in the crime, until they finally agreed to perform more sophisticated DNA tests that could be entered into state and federal databanks. Just two weeks ago, DNA material left by the rapist-murderer at the scene was entered into Maryland's DNA database and produced a "cold hit," implicating a man currently serving time for an unrelated crime. Bloodsworth finally received the apology from prosecutors that he had been waiting 10 years to hear.

The Bloodsworth case vividly demonstrates the need for law enforcement officials to join advocates for the innocent in seeking DNA testing where it previously was unavailable. The phenomenal scientific potential of this evidence should be championed by law enforcement officials, whose principal interest has always been to protect the innocent as they try to apprehend the guilty.

As DNA technology continues to improve, so does its ability to identify the true perpetrators of crimes and exclude those who are wrongly suspected or charged. Defendants who were convicted before these scientific and technological advances might have exonerated them are now desperately asking for advanced DNA tests to prove their innocence. If the 137 DNA-based post-conviction exonerations are any indication, the defendants' requests for DNA testing clearly are warranted.

It is one thing for prosecutors to argue that, in some cases, DNA test results wouldn't necessarily establish a defendant's innocence and that other evidence is so strong that the conviction should still stand. But what is not understandable, nor seemingly justified, are the efforts of prosecutors to deny defendants access to DNA evidence for testing in cases where the results could make a difference.

Last year, a Kentucky inmate named Michael Elliot was trying to prove his innocence in a murder. An enterprising law student had located a blood stain near the scene of the crime. Elliot, who is serving a life sentence, wanted the court to order DNA testing of the stain. The prosecutors responded not just by opposing the testing, but by informing Elliot's lawyers that they would destroy the evidence unless a judge instructed them not to do so. The judge granted the prosecutors' motion, but the Kentucky Court of Appeals intervened before the prosecutors could act. Unfortunately for Elliot, the blood stain turned out to be from the victim and was thus of no help to his claim. But Elliot couldn't have known that without testing -- and neither could the prosecutor's office.

In 1997 in Harris County, Tex., after DNA testing exonerated Kevin Byrd of rape, court officials decided to discard the "rape kits" -- the vaginal swabs taken from victims -- in 50 other cases. They cited a lack of storage space. Byrd's lawyer was quoted in the media as questioning the decision, saying the rape kit has been crucial to proving his client's innocence in the 1985 case. Why wasn't the prosecutor's office asking for the evidence to be preserved?

Prosecutors have nothing to lose -- unless they put their pride before their professionalism -- in allowing post-conviction DNA requests to go forward. If the DNA test proves the defendant is guilty, then all doubts will be resolved. If it exonerates the defendant, then there is an opportunity to correct a tragic mistake and begin the search for the real criminal.

Those opposed to post-conviction DNA testing say that it opens the door to demands from every inmate and would cost a fortune. No one is suggesting such a widespread reexamination. Organizations such as the Innocence Project -- which favors testing -- rigorously screen requests from inmates, eliminating roughly 90 percent of these requests.

The tests themselves are relatively inexpensive and often are paid for by the defendants, the network of Innocence Projects around the country and other nonprofit organizations. In cases where alternative funds are not available, DNA testing at state and county labs may cost as little as $1,000 -- a fairly minimal expense for taxpayers, given the price of imprisoning, or even executing, the wrong person while allowing the real perpetrator to remain free to commit more crimes.

During my time as a federal judge in Texas and as FBI director, I had contact with prosecutors and law enforcement officials who are among the best anywhere, working together in a criminal justice system that is the model for countries around the world. But we can -- and must -- do better. Given the stakes involved, we cannot deny defendants a right to post-conviction DNA testing.

(William Sessions served as director of the FBI from 1987 to 1993 and, earlier, as chief judge of the U.S. District Court for the Western District of Texas. He is a member of the Constitution Project's Death Penalty Initiative, a committee studying ways to prevent abuses in capital punishment)

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