more commited to winning than justice? impossible: these are attorneys.
R
Prosecutors Fight DNA Use for Exoneration By ADAM LIPTAK <http://www.nytimes.com/2003/08/29/national/29DNA.html>
HARPES, Fla., Aug. 26 - After seeing more than 130 prisoners freed by DNA testing in the last 15 years, prosecutors in Florida and across the country have mounted a vigorous challenge to similar new cases.
Prosecutors acknowledge that DNA testing is reliable, but they have grown increasingly skeptical of its power to prove innocence in cases where there was other evidence of guilt. Defense lawyers say these prosecutors, who often relied on the same biological evidence to convict the defendants before DNA testing was available, are more committed to winning than to justice.
The fight has become particularly heated in Florida, where prisoners will soon be barred from seeking DNA testing for old cases under a 2001 law that set an Oct. 1 deadline for such requests.
In this state, the cases of two prisoners illustrate both the power and limits of DNA testing.
In one case, Wilton Dedge was convicted of rape based in part on two light-brown hairs found in the victim's sheets here in 1981. It was the only physical evidence against him. The hairs were, the prosecutor said at his trial, "microscopically identical" to those of Mr. Dedge.
In a 1983 trial of another man, Richard McKinley, for the rape of an 11-year-old girl in Homestead, the prosecutors told the jury that semen recovered from the girl matched his blood type.
DNA testing, which was not available at the time of either trial and which was performed recently only after fierce resistance from two sets of Florida prosecutors, showed that the hairs and the semen could not have come from the defendants.
Yet both men remain in prison serving life terms, and the prosecutors who relied on the biological evidence to convict them now say the DNA testing is not proof of their innocence.
Other Florida prisoners may never have the chance to argue about whether DNA evidence exonerates them. In 2001, the state Legislature opened a two-year window for DNA retesting in older cases. The window will close on Oct. 1, after which courts cannot hear the cases of hundreds of inmates who say that testing could free them, and lawyers across the state are in a race against time to file motions on behalf of such clients.
While prosecutors concede that DNA can prove whether someone is associated with a given piece of biological evidence, they insist that is not the same thing as proving whether a defendant committed a crime.
In the cases of Mr. Dedge and Mr. McKinley, for example, the prosecutors say that the remaining evidence in those cases was strong enough to uphold the men's convictions.
Defense lawyers say these arguments amount to prosecutorial vindictiveness. Prosecutors respond that it is time to reconsider the power of DNA evidence, saying its usefulness in many cases is overstated.
The debate about the value of DNA evidence also rages in other states.
In Houston, prosecutors have resisted an appeal for an unconditional pardon by Josiah Sutton, who was cleared by DNA testing in a 1998 rape and has been freed. The victim continues to maintain that she identified the right man.
"If this is not categorically dispositive evidence of innocence," said David Dow, a lawyer for Mr. Sutton, referring to the results of the DNA testing of sperm collected from the victim, "there is no such thing."
Chuck Rosenthal, the district attorney in Houston, saw things differently. "From the standpoint of the law, he's innocent until proven guilty," he said.
"Whether he's actually innocent, I don't know," he said. "I'm not about to call the victim in this case a liar."
Mr. Dow said this exchange illustrates a trend. "What we're seeing is a double standard," he said. "Evidence will be considered more than sufficient by prosecutors if it establishes guilt and questionable or insufficient if it established innocence."
Barry Scheck, the cofounder of the Innocence Project at Cardozo Law School in New York, said prosecutors in New York, Illinois and many Texas counties have embraced DNA testing. But in Alabama, Arkansas, Colorado, Louisiana, Michigan, Mississippi and New Mexico, Mr. Scheck said, prosecutors often resisted testing requests on the ground that even a positive result would not conclusively establish innocence.
On Monday, for instance, Lonnie Erby was released in St. Louis after 17 years in prison for rape. The prosecutor there, Jennifer Joyce, had opposed efforts to perform DNA testing, calling it pointless because tests could not conclusively clear Mr. Erby, since biological evidence was available in only two of three rapes with which he was charged. She changed her mind after testing excluded him as a suspect in those rapes.
In Florida, Mr. Dedge had to sue to have the evidence in his case retested, over the objections of prosecutors who said that the state's interest in finality and the victim's feelings should preclude it.
Judge Winifred J. Sharp dissented in a 1998 appeal ruling that initially turned down his request. "The results of the tests, if successfully performed, will likely be absolutely conclusive of either guilt or innocence," she wrote.
continued ....