You would be wrong.
In recent years, DNA testing has freed 72 inmates from prison –eight from death row. Each year brings new advances that expand the universe of cases where DNA analysis can help. But the political and legal systems are just now waking up to the potential of this rapidly improving technology. Only two states –Illinois and New York –give inmates the right to use the latest DNA testing. Bills to do the same nationally are still languishing.
And the machinery of death grinds on. In Texas next week Ricky McGinn is scheduled to be executed by lethal injection for the 1993 rape and murder of his 12-year-old stepdaughter. Absent an unlikely delay, he will die without the benefit of the latest genomic and mitochondrial DNA tests, which for a few thousand dollars could irrefutably prove his guilt –or point to another assailant. McGinn has received poor legal counsel; it took until last week before the trial court in Brown County, Texas, received a request that a pubic hair found inside the victim –and a possible semen stain –be tested. In an appeals system that makes it difficult to introduce new evidence –even in a capital case –his odds of a reprieve are low. McGinn is just one of thousands of prisoners pushed through the system without the modern-day equivalent of fingerprints. The vast majority are probably guilty. But why settle for “probably” when a definitive answer is at hand?
Prosecutors are beginning to ask that question, but their old habits die hard. Until now, most have allowed post-trial DNA testing only under threat of litigation. Even after innocence is proved with 1 billion:1 certainty, some prosecutors cling to their previous theories of guilt. In the Roy Criner case in Texas and several others where DNA tests of semen have ruled out the inmate convicted of rape, prosecutors still refuse to free them. They hypothesize that while the victim had another man’s semen inside her, she was still raped by the man they convicted. (This is now known as the “unindicted co-ejaculator” theory.) “I don’t think prosecutors are maliciously trying to keep the innocent behind bars,” says Larry Marshall of the Center on Wrongful Convictions at the Northwestern University School of Law. “But they’ve become psychologically wedded to guilt. It’s tunnel vision.”
There are signs the climate may be changing. For the first time in a generation, the death penalty, legal in 38 states, is on the defensive –mostly abroad, but increasingly at home, too. The New Hampshire Legislature voted last week to become the first state to abolish the practice since the Supreme Court allowed its reinstatement in 1976 (although Democratic Gov. Jeanne Shaheen vetoed the bill). An important new book, “Actual Innocence,” by Barry Scheck, Peter Neufeld and Jim Dwyer, and a searing PBS “Frontline” documentary about the Criner case, “The Case for Innocence” (to be rebroadcast June 6), are helping explain that gross injustice is not as rare as many Americans would like to believe.
The turning point may have come in January, when GOP Gov. George Ryan of Illinois imposed a moratorium on executions after 13 inmates –one of whom came within two days of being executed –were proved innocent. All told, 87 death-row inmates have been released from prison since 1973. As the pace of executions accelerates, so do the odds of grievous and irreversible error.
But they don’t believe that in Texas, the capital of capital punishment. Barring last-minute stays, McGinn will be the 219th Texan put to death since 1982 and the fifth in just two weeks. Nineteen more Texas executions are scheduled between now and Election Day. Texas has executed nearly three times as many inmates as the next state, Virginia (with 76 executions). If Harris County, which encompasses Houston, were a state, it would rank third with 62.
When it comes to DNA, Harris County sets a poor example. The very week in 1997 that a Harris County inmate named Kevin Byrd was freed by Gov. George W. Bush after DNA evidence showed he was wrongly convicted of rape, the county clerk’s office was busy destroying rape kits from 50 other old cases, citing an overcrowded storage space. This is all too common across the country. Few laws exist to preserve evidence once appeals end, even though new technology makes it easier to lift samples from old clothing. Mostly, rape kits and other evidence are lost through routine sloppiness.
One of the surprises of DNA testing is how often the police get the wrong man. While post-trial testing is uncommon, pre-trial testing is now standard. Nowadays after police arrest someone for rape or rape-murder, they routinely send DNA samples to FBI labs. The results have been astounding. Of the first 18,000 results analyzed by the FBI, the DNA test excluded the principal suspects in 26 percent of the cases. If that level of innocence applies to those arrested, how about for those convicted? “The strong presumption that verdicts are correct has been weakened,” a Justice Department task force wrote last year.
Bush has not yet waded into the DNA debate. More broadly, he has repeatedly insisted he is “absolutely confident” that the 127 inmates executed on his watch (an average of one every fortnight) have all been guilty. So far, no one has proved him wrong, though two members of the Board of Pardons and Paroles, the Bush-appointed panel that hears all final appeals in Texas, told The New York Times they fear that the system could allow the innocent to be executed. A spokesman for the Bush campaign, Mindy Tucker, says the Times quoted the board members out of context. She adds that Bush believes that the system works well and “he thoroughly reviews every death-penalty case.”
Bush says he wants the death penalty to be “swift and sure.” Last year he vetoed a bill that would have helped counties set up public-defender offices. (Texas, unlike most big states, has no such system.) In 1995 he signed a bill that streamlined the system for legal counsel on death-penalty appeals. Now the elected judges of the Texas Court of Criminal Appeals –all adamantly pro-death penalty –appoint attorneys who they hope will speed up the process.
“I did not have the experience to handle this case,” admits Erica Copeland, whose client, James Clayton, is scheduled to be executed on May 25. Under Bush, the pay for lawyers handling death-penalty appeals (almost all of the 467 inmates on death row in Texas are too poor to afford an attorney) has risen from $15,000 to $25,000 a case, but only a maximum of $2,500 can be used for investigators or expert witnesses. This is a fraction of the real cost of a proper appeal.
Then there’s the problem of poor legal counsel. Ricky McGinn’s appellate attorney, Richard Alley of Ft. Worth, was unfamiliar with key details of his own client’s case. It took an unpaid independent investigator from Indiana, Tina Church, to notice last January that McGinn’s 1994 DNA tests had been “inconclusive” and that new DNA analysis could yield fresh evidence. “We’re not asking for much,” Church says. “Just some better tests to make sure that there hasn’t been a mistake.” But even after Church obtained an affidavit from a DNA expert saying new tests might help prove McGinn’s guilt or innocence “once and for all,” Alley still didn’t move quickly to help his client.
From a visitation booth on death row in Livingston, Texas, McGinn is bitterly critical of his attorney, who he says has rebuffed offers of help from other lawyers. “He gets his death-row cases and pushes them through as fast as he can. He works for the state of Texas,” says McGinn. Elisabeth Semel of the American Bar Association calls such conduct “outrageous.”
Alley readily admits he has handled as many as 11 death-penalty appeals at once –despite trial transcripts that run thousands of pages per case. He currently represents five others besides McGinn on death row. NEWSWEEK examined documents from the State Bar of Texas and found that Alley has twice been publicly reprimanded. In 1985, the state bar said he “knowingly used false evidence” and “knowingly made false statements of fact” (among other abuses). And in 1992 he was cited by the bar for “failing to properly safeguard the property of a client.” For his part, Alley denies inadequate representation and says clients are often unhappy with their lawyers: “It’s not that anyone is asleep at the wheel. I feel I did everything I could and am continuing to do everything I can. How did I become the bad guy?”
Inmates, especially those convicted on sexual-assault charges, wouldn’t be as harmed by poor legal counsel if they had an automatic right to DNA testing. Sen. Patrick Leahy has introduced such a bill, and Sen. Orrin Hatch indicated last week that he will hold hearings on the subject in June. Some argue that state law should handle it. But that would hamper the growth of a new DNA databank used to crack cases. Another fear is that the system would be flooded with requests from inmates for testing. But the experience in Illinois and New York doesn’t bear that out, because inmates who are guilty aren’t often eager to have their guilt confirmed.
DNA testing is only one way to free the innocent. Many big cases rely on testimony from jailhouse snitches with incentives to lie, faulty eyewitnesses, coerced confessions, rigged lab tests. Barry Scheck, whose good work exonerating the innocent is improving a reputation that suffered during the O. J. Simpson case, says the biggest barrier to righting wrongful convictions is human nature: “We’re so afraid the system will be embarrassed that we’ll let innocent people stay in jail and the guilty roam the streets.” Whether you’re for or against the death penalty, a hard-liner or a soft touch, who can be comfortable with that?
