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DNA provides new hope for wrongly-convicted death row inmates

DNA analysis has become a powerful investigative tool for both prosecutors and defense attorneys since it was introduced in the U. S. in 1986

By Raju Chebium
CNN Interactive Correspondent

June 16, 2000
Web posted at: 3:27 p.m. EDT (1927 GMT)

WASHINGTON (CNN) -- A Maryland crab and commercial fisherman named Kirk Bloodsworth spent eight years in prison, including two on death row, for the rape and murder of a 9-year-old girl in 1984.

ALSO One man's story of exoneration by DNA testing   CASE FILE The debate over the death penalty and access to DNA testing moves into high gear. The Death Penalty and DNA   MESSAGE BOARD What is your opinion of the death penalty? Join the discussion

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He proclaimed his innocence, but few people believed him. In 1992, he took a DNA test to prove that it was not his semen on the girl's panties. Bloodsworth, now 39, walked out of prison a year later.

Anti-death penalty groups say he is the first death row inmate in the United States to have won freedom based on DNA tests.

Now, hundreds of prisoners, including some on death row, are seeking DNA tests to prove their innocence. Pending legislation in Congress would provide inmates access to DNA tests where appropriate. Each state has a DNA database -- or legislation to create DNA databases -- and efforts are under way to link them into a national clearinghouse. Since the Bloodsworth case, anti death-penalty advocates have seized upon DNA as a powerful tool to exonerate those inmates they believe are innocent.

DNA evidence was pivotal for only eight of the 87 death row inmates who have won freedom since the 1970s. The U.S. Supreme Court reinstituted the death penalty in 1976.

Advocates such as Richard Dieter, executive director of the Death Penalty Information Center in Washington, say DNA evidence is "rising in importance" as a tool to exonerate innocent inmates facing execution.

In the United States, the Innocence Project, headed by O.J. Simpson lawyer Barry Scheck and his partners, is leading the way in the use of DNA evidence in capital cases. The project is based at the Benjamin N. Cardozo School of Law in New York.

Peter Neufeld, an attorney with the project, said his group was involved in the eight cases overturned by DNA evidence.

Collection and handling of DNA evidence became an issue in the criminal trial of O.J. Simpson

The project currently is handling 200 cases and has a backlog of 1,000 cases, Neufeld said. To handle the rising workload, the project's attorneys have partnered with about a dozen other law schools since February.

The science of forensic DNA testing was invented about 10 years ago. The field has become increasingly sophisticated technologically and testing has become more accurate.

Bloodsworth said his lawyer paid $10,000 for his DNA test in 1992. The cost has dropped; estimates range from anywhere from a few hundred dollars to around $7,000 for the most complicated DNA test. Some groups also provide free testing for poor inmates.

Not always salvation

Experts warn that DNA does not always mean salvation. In a majority of disputed cases, death penalty and otherwise, DNA evidence is neither applicable nor relevant.

And even if DNA test results seemingly help the inmate, prosecutors and defense attorneys may not agree that it proves innocence.

"It is only as powerful as it is relevant in a given scenario," said Chris Asplen, executive director of the National Commission on the Future of DNA Evidence, a national group run by the Department of Justice. "I think we need to be clear it is not a magic bullet in post-conviction cases."

For instance, if DNA tests prove that semen on the rape victim's body does not match that of the convicted man, prosecutors and defense attorneys would likely conclude he did not do it.

But suppose an inmate's DNA is not found at the scene of a murder but a preponderance of other evidence leads to the man convicted of the crime. In such a case, the DNA test would not apply.

Asplen said it is key that law enforcement agencies seek DNA samples while investigating crimes to minimize the possibility of wrongful convictions. To that end, it is important that police agencies receive more funding to outfit forensic labs with DNA techniques, he said.

DNA and law enforcement

Advocates on both sides of the death penalty issue say DNA forces the police authorities, prosecutors and judges to be more vigilant about who is arrested and convicted.

"There have always been questions about reliability (of) other types of evidence -- eyewitness testimony or circumstantial evidence," said Chris Plourd, a California lawyer who belongs to a group called the Justice Department's DNA evidence group. "Once they see the DNA evidence, there's no question. You are either guilty or not guilty."

Kirk Bloodsworth, who spent two years on death row, was released from prison in 1993 after exoneration by DNA testing

That is because it is virtually impossible statistically for two people to have the same DNA structure. Fingerprints, like DNA, are also unique to each individual.

"It's not a point of debate, not like hair analysis, not like polygraph tests. It is admissible in court," said Shawn Armbrust, case coordinator for the Center on Wrongful Convictions at the Northwestern University School of Law.

Journalism students at Northwestern proved the innocence of death row inmates in Illinois, leading to pro-death penalty Gov. George Ryan's order in January banning executions. Illinois is the only state in the nation to issue a moratorium.

Twelve other states have passed legislation to overturn or temporarily halt the death penalty. Like Illinois, Nebraska, Indiana and Maryland have studies under way to examine whether capital punishment is meted out fairly.

Wrongful convictions are rare

No one can say for sure how many of the more than 3,000 death row inmates in the United States are innocent. And it is unclear if DNA evidence would be relevant or is even available to exonerate those who say they are innocent.

In fact, experts say that DNA and other biological evidence are not applicable in most cases for a variety of reasons. In some cases, there were no biological clues at the crime scene. In others, the evidence was either intentionally destroyed for lack of space or because the crimes occurred long ago.

Some death row inmates were convicted of crimes committed in the 1980s and earlier, before DNA testing was invented.

"We haven't been able to get (DNA) in most of the capital cases. In 75 percent of the cases we take on, we can't do DNA because the evidence has been lost or destroyed," Neufeld said.

Today, with the still-evolving technology, it is possible to extract DNA from the tiniest evidence found at a crime scene -- hair, skin, blood, saliva, semen, for example -- even if the crime occurred several years earlier.

Bloodsworth is a case in point. The girl, Dawn Hamilton, was killed in 1984. A semen stain smaller than a dime was found on her panties. The FBI, with the available technology at the time, found nothing of value from the panties.

In 1992, after the DNA technology became available, Bloodsworth's lawyer got the semen stain retested. The results showed the DNA in the stain did not match Bloodsworth's. He was fortunate that the panties had not been destroyed.

Virginia Sloan, executive director of the Constitution Project, a Washington group, asked, "What about all those cases where DNA is not applicable and people are convicted? ... What do we do with those cases where there is no biological evidence?"

Importance of proper handling

There is no guarantee that if DNA evidence is available, testing will prove a death row inmate's professed innocence.

Defense attorneys may not question the result, but they may question how the evidence was collected. Improper collection, storage or handling techniques could ruin the delicate DNA.

Collection and handling of DNA evidence became an issue in the criminal trial of O.J. Simpson who was accused and acquitted of killing his wife, Nicole Brown Simpson, and her friend, Ronald Goldman.

"In O.J., the defense raised the questions that the evidence was kept in the trunk of the car, collected without officers using gloves, et cetera," Plourd said.

"If it is not handled properly, it can be contaminated," Plourd added. "Let's say a police officer sweats on a piece of an evidence; (it is) contaminated. You have to use rubber gloves, you cannot keep it in high temperatures, it has to be cool and dry."

DNA and politics

DNA increasingly is playing a role in political discussions about the death penalty. The Illinois moratorium raised questions about what the leading executioner -- Texas --would do to ensure that the death penalty is instituted fairly.

Sen. Patrick Leahy, D-Vermont, introduced legislation to give death row inmates a right to DNA testing

Gov. George W. Bush, who is seeking the GOP nomination for president, said he is sure all inmates on Texas' death row committed the crimes they were convicted of. Texas has executed 18 people this year; since Bush took office in 1995, some 130 people have been put to death.

After his remarks raised questions about his degree of certainty, Bush said he supports DNA testing where applicable if there is uncertainty about any death row inmate's culpability.

Anti death-penalty advocates say most states lack legislation granting DNA testing rights to death row inmates because legislatures fear that would lengthen the time prisoners spend waiting to be executed. According to Dieter, death row inmates wait an average of nine years between sentencing and execution.

U.S. Sen. Patrick Leahy, D-Vermont, introduced the so-called Innocence Protection Act in Congress this year. The measure championed by the former prosecutor and pending in Congress would give death row inmates who believe they are innocent to right to DNA tests, among other things.

The view of a pro death-penalty group

Even groups that support the death penalty favor the use of DNA testing. "Obviously no one wants anyone but the guilty punished," said Diane Clements, president of Justice for All, a victims rights group in Houston.

She said DNA would perhaps be most valuable as a crime-fighting tool and a way to ensure the true culprit is caught.

She also cautioned against relying too much on DNA.

"With the technology advancing, we should not throw out the traditional investigative techniques. Let's not throw out the baby with the bath water," she said.

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Cornell Law School Death Penalty Project
Closeup Foundation section on capital punishment
Pro-death penalty.com
Criminal Justice Legal Foundation
Justice For All
A Capital Defender's Toolbox
ACLU Death Penalty Information
Death Penalty Information Center

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