The New York Times supports access to DNA testing

Yesterday, the New York Times published an editorial to accompany their article on prosecutors' reluctance to grant DNA testing. The editorial called for states to pass laws granting access to DNA testing. Forty-six out of 50 states have such laws today, with the remaining four being Maryland, Alabama, Alaska and Oklahoma.

An excerpt from the Op-Ed, that sounds a lot like yesterday's article:

The Supreme Court ruled unanimously in 2006 that defendants have a constitutional right to introduce evidence of this sort of “third-party guilt” — the suggestion someone else committed the crime. Prosecutors often say they oppose DNA testing because it is burdensome, but testing requests are not that common. In many cases, prosecutors seem to be motivated by a desire to avoid having their work second-guessed by objective science.

The comments on the article from yesterday were surprisingly civil and one-sided. Most reflected outrage and disappointment at prosecutors' general refusal. This particular reader put it better than I could have:

It is absolutely amazing that the same prosecutors who want to collect DNA from everyone who comes into contact with the courts, including traffic law violators, refuse to use that same test to verify their convictions. Apparently prosecutors view DNA evidence as a great tool to fish for perpretrators and get convictions, but don't want it used to question their convict at all costs prosecutions. It is sad that prosecutors believe the judicial system is about closing cases instead of justice and truth.
— darter1, Columbus, Ohio (emphasis added)

SimpleJustice also has a great commentary on the article,

The excuses offered are silly, easily undermined by basic arguments, facts and the science itself. There is no good reason to refuse a convicted prisoner access to DNA testing. Even the slippery slope, that if they let one prisoner do it, every prisoner will want to if for no better reason than to take a shot in the dark. After all, they can't do worse than they already have. But this doesn't pan out either, both because there are so few DNA cases to begin with, and because it involves DNA testing on old cases, since new cases are having it done already as a matter of routine. Assuming the worst, it's just not much of a burden.

And so we get down to the bottom line of the issue squarely framed in the Times' article, yet wholly ignored. Who cares what the prosecutors have to say. Why aren't judges ordering these DNA tests? (emphasis added)

That's a good question, and totally unaddressed, as he said. Now, I do wonder that...

Prosecutorial Misconduct: What's Good for the Goose Should be Good for the Gander

In the wake of the former Sen. Ted Steven's conviction, election loss, vacation of his conviction, and dismissal of his charges for good, we learn that the federal judge in the case is simply appalled at the depths to which the prosecutors went to obtain the conviction against Stevens. From the Washington Post:

During and after the trial, the judge reprimanded prosecutors several times for how they had handled evidence and witnesses. He chastised prosecutors for allowing a witness to leave town. He grew more agitated when he learned that prosecutors had introduced evidence they knew was inaccurate, and he scolded them for not turning over exculpatory material to the defense.

Introducing false evidence? Check. Withholding exculpatory evidence? Check. Mishandling witnesses? Check. So now these rogue prosecutors are being investigated, as they should be, and this investigation may lead to criminal charges and eventual prison time if convicted. Way to go justice system.

So while the talking heads and political hacks are vilifying these prosecutors and trumpeting this is as a vindication of Stevens, this situation begs some important questions that the traditional media seems unwilling to touch:

How come we don't get the same remedial reaction to prosecutorial misconduct when the criminal defendant is somethone other than a seven-term US Senator or a wealthy lacrosse player? How come people are executed every year in this country despite equally, or even more compelling meritorious claims of misconduct by prosecutors?

Answering these questions would get to the heart of the imbalance and inequality that exists in our criminal justice system. It's an uncomfortable conversation, one that will inevitably get into race and class issues, as well as cause people to view the State's role in criminal prosecutions in a more skeptical way. Despite all this, it is a conversation our criminal justice system so desperately needs.

Many would be surprised to know that discipline of Florida prosecutors for misconduct is virtually unheard of, and criminal sanctions for misconduct is not something that has been entertained in Florida in run-of-the-mill criminal cases. Some of these are almost assuredly death cases, where the stakes are highest to get a conviction, which often leads to the highest incidence of misconduct.

So while we say to Judge Sullivan that it is is about time someone holds the prosecutorial community to task for misconduct that is hurting (and possibly responsible for wrongfully convicting) defendants and tainting the otherwise ethical work of others in the prosecutorial community, such action needs a broader reach within the criminal justice system.

On this point, just today, the Justice Project, out of Washington, DC, issued a report on the prevasiveness of prosecutorial misconduct within the criminal justice system and what to do about it.