For a prosecutor, DNA analysis can be the best thing in the world. Nothing facilitates a conviction more than biological evidence irrefutably connecting the defendant to the crime through blood, saliva or semen. But DNA analysis can also be the worst thing in the world for prosecutors. It can prove that someone accused of a crime — or even convicted of a crime — could not possibly have done what he’s accused of doing.
Wait a minute. How can it be a bad thing for prosecutors to discover the crucial facts about a crime, even years later? No sensible district attorney wants to put an innocent person in jail and let a guilty one go free.
But some prosecutors show a curious reluctance to learn what DNA could tell them. Once a defendant has been tried and convicted, some of them resent the notion that the verdict should ever be reexamined. Having concluded someone is guilty, they shield their eyes from anything that might suggest otherwise.
Take the case of Johnnie Lee Savory, charged in a double murder committed in Peoria, Ill., in 1977, when he was 14 years old. He disavowed a confession that police extracted after a prolonged interrogation, but an appeals court ruled it inadmissible and threw out his conviction. After that, the prosecutors said they had no other evidence tying him to the killings. But he was convicted in a second trial, thanks partly to testimony that a hair recovered at the scene may have been his.
In those days, sophisticated DNA technology was not available. It is now, and Savory, who has always maintained his innocence, has asked for tests on several items introduced in his trial, at his own expense. But the prosecutor has fought the request, arguing it conflicts with the public’s interest in "finality."
When the case came before the U.S. Court of Appeals for the 7th Circuit last month, the prosecutor’s office tried to justify the refusal on all sorts of technical grounds. It may be true that the law doesn’t require allowing testing of the items. But it’s hard to see any good reason why the prosecutor shouldn’t go along regardless.
Finality is a worthy goal. No one wants to waste court time with frivolous petitions brought by justly convicted felons who have nothing better to do. But denying recourse to an innocent man doesn’t advance finality — it obstructs it, by preventing the discovery and punishment of the guilty.
The prosecutors say that even if the tests come back negative for Savory, they wouldn’t matter because there was other evidence against him. Wouldn’t matter? Imagine, if you can, a prosecutor who wouldn’t introduce DNA evidence supporting his theory — no matter how good his other evidence might be. In any case where a criminal has left biological traces at the crime scene, DNA matters a whole lot. It trumps just about everything.
It may be that DNA analysis would come out in Savory’s favor. But it’s also possible it will confirm the verdict against him. Convicted rapist Rubin Weeks went to the Missouri Supreme Court seeking DNA testing, and the court granted his wish. When the DNA results came back, they said: Yep, you’ve got the right guy. In about half of all such cases, that’s what happens.
Most prosecutors are upright public servants who have no desire to punish people who don’t deserve it. In recent years, the great majority has come to accept the value of post-conviction testing in cases where it might yield valuable information.
In Cook County, Ill., the state’s attorney has set up a DNA review unit to find such cases on its own (though it has gotten mixed reviews). No fewer than 41 states have passed laws to let inmates petition for testing.
But some government lawyers still take any request as an invitation to run screaming from the room. Two men who had served almost 20 years were recently exonerated by DNA only after a court mandated the tests over the objections of Baltimore prosecutors. A federal judge in Alaska recently ruled against prosecutors and ordered the state to allow DNA testing in a 1993 rape case, at the request of a convicted man who says he is innocent.
Like football coaches, stock analysts and newspaper columnists, prosecutors are human and sometimes screw up. They should welcome a tool that helps uncover devastating errors. When a prosecution has gone wrong, it’s never a mistake to get it right.