Prisoning the Innocent 1

Post Conviction DNA and the Troubling Court Room

By

David G. Caban, MBA

Winter 2009

The Rationale for Post Conviction DNA

The post conviction DNA has benefited society by providing an opportunity of

revealing the innocence of those wrongfully convicted (Butler & Moran, 2007; Garrett,
n.d.). Post conviction DNA was instituted in the late 1980’s. Prior to the post conviction
DNA society, especially the U.S. Legal System depended on both the old and new
concept of criminology. For instance, relying on eyewitness testimony, fingerprints left
on the crime scene, confession and other physical evidence to prove beyond a reasonable
doubt for either conviction or innocence of the defense (Cole, 2007; Nathanson, 2005;
Sunshine & Tyler, 2003).
The problematic issue with the Old Criminology is that it was based on the
individual’s background. In other words, excluding any outside influences, but rather
judging individual’s status quo (Vold, Snipes and Bernard, 2002). Old criminology was
based on prejudices and bias opinion that targeted society (Vold, Snipes and Bernard,
2002). It is still practice today. For instances, prior convicts suspected of a crime, and-or
a minority located near a crime scene would stem the likelihood of either being detain,
arrest and perhaps convicted of crime that he nor she ever committed (Coke, 2007;
Eckroth, 2004).
Although, both DNA and fingerprints evidence revealed the contrary (Cole, 2007’
Eckroth, 2007). However, the public is overall persuaded through the media that justice
has prevailed, but in reality the evidence is weakened. Weak evidence and faulty
detective work is the concept of corruption, which unfortunately lies on the side of the
prosecutorial (Franceschet, 2004; Eckroth, 2004). And, it is the concept of old
criminology. Again, it is still practice today (Franceschet, 2004; Vold, Snipes and
Bernard, 2002).
The latter concept of criminology, which is the new, or modern criminology
policing stem too investigate and explore the crime scene further for clues and evidence
that can be utilize as a better detection of a potential suspect. For example, viewing other
potential options, such as, psychological and physiological matters tied to the victim,
rather than the common social racial ethnic issue (Garret, n.d.; Walker, 2003).
Instead, policing focuses more on evidence, such as, fingerprints, eye witness
accounts and other evidence supporting the victim involved in the crime scene. However,
 Prisoning the Innocent 2

several law scholars and fingerprint examiners viewed that perhaps evidence may be
lacking (Franceschet, 2004; Wise, 2007). For example, fingerprints may demonstrate the
individual as the potential defendant or suspect prove involved on the crime scene, but
failed too realize the association the victim had with the suspect (Wise, 2004). Therefore,
assuming the defendants guilt to a crime without the support of other scientific evidence
to prove or substantiate the contrary (Garrett, n.d.; Wise, 2004).

Historical Inception of DNA Forensics

DNA Forensics evidence was first introduced in the late 1980’s. Once
implemented, most courts did not admitted any scientific evidence, such as, DNA
forensic evidence because of lack of credibility and reliability (Nathanson, 2005; Coke,
2007). Suggesting, it was not a cultural practice, especially, the timeframe it would take
to gather DNA forensics evidence into the courtroom too determine the fate of the
defendant (Butler & Moran, 2007; Garrett, n.d.). Instead, it continued to focus on the
traditional model of modern criminology of science allowable as admissible evidence
into court, such as fingerprint analysis and physical evidence. The main reason for the
disallowable DNA evidence in courtroom was the fear that the new scientific DNA
forensic analysis may be misguiding the courts ruling, which may had weigh the
responsibility of the court if the ruling was in error (Garrett, n.d.). Therefore, earlier
courts had to rely on another approach to allow DNA forensics into evidence (Coke,
2007, Eckroth, 2004; Nathanson, 2005).
During the timeframe of early DNA forensics it was advisable to launch this
concept to a higher court, such as, Appellate and Supreme Court, which was the aimed
behind the ideology of modern forensic evidence (Eckroth, 2004). Prior to DNA forensic
evidence the court system utilized fingerprint analysis and physical evidence discovered
at a crime scene too determine the fate of the defendant. Especially, in rare cases
involving rape, murder, burglary and robbery. Early scientific evidence have to support
enough weight measured to convince the court system "beyond any reason of a doubt" to
convict the defendant (Wise, 2008).
One of the problematic issues that some courts and judges faced was the “Galton
16 point system”, which involved the accuracy of fingerprint analysis, as well as any
scientific analysis too determined the fate of the defendant (Nathanson, 2005; Wise,
2008).
Courts and judges utilized fingerprint analysis as admissible in court for over one
hundred years (Wise, 2008). Most inmates charged for rape, murder and robbery were
solely destined based on fingerprints left on the crime scene, as well as eyewitness
account (Coke, 2007; Naughton, 2005; Wise, 2008). In addition, to eyewitness accounts
as well as other forensic evidence supportive the weight linking the defendant to the
crime scene. However, one of the problematic issues is remaining consistent with the
Galton 16 point system. The Galton 16 point system is the scientific measurements too
determine a fingerprint match. In addition, determining any scientific analysis as
admissible within legal circles. But, not in every case a “Galton”16-point match equals, a
“match”. For instance, Daubert v. Merrill Dow Pharmaceutical scientific analysis became
questionable, because of the uncertainty of Dauber scientific analysis based on the case.
Therefore, the judge handling the case determined as inadmissible in court. Judges can
 Prisoning the Innocent 3

act as a gatekeeper when allowing any scientific analysis in court. Although, the judge
may not have any scientific knowledge that can either prove someone’s guilt or
innocence. In addition, allowing expert witness too express his or her opinion based on
his or her scientific knowledge-Whether accurate or debatable (Wise, 2008).

Lack of credibility of Scientific Analyses and the Fear of Public Reprisals

Over one hundred years fingerprint analysis was admired with more reliability
than any other instrument utilized as evidence too determine the fate of guilt or innocents
of the defendant (Wise, 2007). Fingerprint analysis seemed to be the safe approach as
proper evidence admissible within any federal court. Furthermore, with any less concern
of error-rate, which is the concept of sending the defendant innocently to incarceration
(Wise, 2007). However, fingerprint analysis came into a screeching halt in the case of
U.S. v. Carlos Ivan Llera Plaza. According to Wise (2008), described, “District Judge
Pollack weighed the various factors presented by the state and the defense over the
admissibility of fingerprint analysis” (p. 427). In other words, Judge Pollack was concern
of the different opinions that both the defense and prosecution practice would
demonstrate, which could determine the fate of the defense, or vice-versa the state. Judge
Pollack professional opinion felt that the original fingerprint discovered linking Carlos
Ivan Llera Plaza might not equal the “Galton 16-point system” as in the Daubert Case
(Wise, 2008). The Daubert Case meets the 16-point Galton requirement, which is the
legal requirement for scientific analysis to be admissible within any court level (Wise,
2008).
If the fingerprints does not fall within the parameters of the Galton 16-ponit
requirement the fingerprint for example is simply not a match. The same for any
scientific analysis discovered within any crime scene. Therefore Judge Pollack felt that
any expert witness to the case would be admissible, except their expert opinion (Wise,
2008). As a result, it struck a blow to fingerprint analysis in the court the system (Wise,
2008, Pg. 427-428). Therefore the judicial ruling would determine that fingerprint
analysis is not scientifically sound (Wise, 2008). As a result, to the battling of fingerprint
analysis questionable status judges and courts needed a breakthrough in science. It would
allow scientific evidence as a means to prove preponderance evidence too determine of
the following: Lower courts decision, accuracy of policing earlier findings gathered from
the crime scene, and the expert witness knowledge to both the evidence gathered from the
crime scene and the biophysiological analysis of the defendant (Wise, 2008). Without
these request it would be difficult for the higher court to weigh any judgment, which
includes the defense constitutional rights pertaining to any case.
The problematic issue of inconsistent fingerprint analysis overlooked by the lower
courts decision, became a problematic issue for both higher courts and society (Wise,
2008; Eckroth, 2004).
Prior to the DNA Forensics most people doubted that the court system could
ever wrongfully accused someone of committing a crime (Garrett, n.d.). Let alone being
convicted for a crime without any “beyond a reasonable doubt” based on faulty scientific
evidence, such as an inaccurate DNA Forensics (Garrett, n.d.). Society would feel a
nightmare if ever known that most people in prison have been convicted wrongfully
(Garrett, n.d.).
 Prisoning the Innocent 4

Leaving Justice Behind-Fear of Reproach

Society always trusted policing, court and the judicial system to punish those who
wrongfully committed a crime. Society trusted the court system to rightfully provide due
process of law, because it is the fundamental root of our constitution (Garrett, n.d.; Wise,
2008). Society, also relied on earlier scientific evidence too determined the fate of those
rightfully accused of a crime, as well as those found innocent (Garrett, n.d.; Wise, 2008).
Courts based judgment on fingerprint analysis because it’s determined as scientific
evidence, and NOT technical opinions (Coke, 2007; Naughton, 2005; Wise, 2008).
Therefore, the court system, especially the higher court such as the appellate and supreme
court during the latter part of the 20th Century determined as to whether or not if its
scientific evidence (Eckroth, 2004; Wise, 2008). In other words, judges controlled the
evidence that the scientific community presented to the courtroom too determined a
judgment (Wise, 2008).
According to Garrett (n.d.) described, “Despite the attention was devoted to the
problem of wrongful conviction, no one has studied how post conviction DNA
exoneerees in our criminal system” (p. 58). In other words, it questions the integrity to
our criminal justice system, which presents an array of questioning-Especially to each
exoneree’s cases (Garrett, n.d.; Coke, 2007; Sunshine & Tyler, 2003).
The history of DNA Forensics evidence exonerated 200 cases since its inception
in 1989. Gary Dobson became the first exonerated post conviction DNA client. Jerry
Miller was the 200 exoneerees for post conviction DNA on April 23, 2007. Most of these
particular cases were convicted based on a two-third of the court ruling, which was
utilized too determined their fate. In other words, the court allowed DNA Forensics to
enter as evidence too exonerates them. Pertinent information was NEVER released
through the media, why? It just shows how the court system as well as the judges elected
for these roles sentences the innocents (Garrett, n.d.; Sunshine & Tyler, 2003; Walker,
2003).
There were other inmates pleading for exoneration through post conviction DNA,
but remained on hold, because of the fact both the lower and higher courts wishes not too
review their cases (Eckroth, 2004; Garrett, n.d.; Naughton, 2005). If the Supreme Court
allows these cases to be review and perhaps exonerate it could potentially demonstrate to
the public that its policing and court system had failed (Coke, 2007). According to
Garrett, (n.d) described, “In Kansas v. Marsh, prisoner inculpated by DNA testing have
not received the same attention as those exonerated by DNA testing” (p. 60). However,
most of these cases were either misallocated or difficult to obtain (Gaarder, Rodriguez,
and Zatz, 2004; Garrett, n.d.). Therefore, cases that were located were least given the
satisfaction as Appendix C. that was presented to a higher court. In addition, to the
missing cases listed no pre-existing condition to maintained them. In other words, cases
were toss out physically and poorly handled by the court system (Garrett, n.d.).
Most of the cases received for DNA exoneration were proven guilty based on
prior DNA evidence, however, 36 received decisions (Supreme Court only allowed),
which allowed for exoneration (Garrett, n.d., pg. 60). A majority of prisoners eligible for
the post conviction DNA forensics were convicted for heinous crime, such as; murder,
rape and robbery. But, some of these inmates were convicted based on error, such as,
 Prisoning the Innocent 5

faulty evidence and eyewitness accounts. For example, eyewitness accounts were not
accurate, as well as false statements provided by both policing and eyewitness (Garrett,
n.d. pg. 60). In addition, of the 200 exoneerees only 16% falsely confessed, because of
the fear of public trial. Therefore, subjecting for plea bargain for lessor sentencing
(Garrett, n.d. pg. 60-61).
Unfortunately, the court failed to examine most of the exoneerees cases. Initially,
these cases revealed information based on false evidence and unreliable testimony from
both policing as well as the eyewitness testimony (Garrett, n.d.; Randall, 1998; Walker,
2003). Does post conviction DNA say otherwise?

DNA Codes

DNA is deoxyribonucleic acid which is a biological material based on certain

codes (Gaber, 2004; Wise, 2007). Every human and animal species has a DNA code,
which is designed to link each human being as well as animal in any particular
environment (Wise, 2007). The base fundamental root of DNA evidence is an
examination of a DNA code (Wise, 2007). According to Wise (2007) described, “The
sequence of DNA can be thought of a string of letters that when combined in a certain
order forms words, paragraph and even chapter of instruction for the body” (p. 428).
Suggesting DNA evidence is the science that can describe each individual’s description.
DNA evidence can describe the genetic composition or make-up of any
individual. It can reconstruct the feature of the individual and any potential suspects by
analyzing human compositions, such as, hair, saliva, skin tissue, just too mentioned a
few. It bridges the gap between evidence discovered from a crime scene that either
belongs to the potential suspect to the actual perpetrator. For instance, cases involving
rape victims, bank robbery, burglary and homicides. In every crime scene the perpetrator
may tend to leave traces of him or her behind. Policing would gather whatever pieces of
evidence and through DNA analysis track the source down to its origin, which is the
suspect (Liu & Martin, 2007; Wise, 2007). For example, DNA alphabet has four (4)
letters A, T, C and G, but it can go as long as three (3) billion (Wise, 2007, pg. 428).
Blood sample, urine, seamen and saliva as well as other bodily fluid discovered
from a crime scene forensic DNA experts would retrieve too determines any potential
suspects. Although, policing would tend to battle by relying on old fashion or traditional
police work, for example, eyewitness accounts, other parties related to the victim,
confession as well as potential suspects resembling eyewitness accounts (Sunshine &
Tyler, 2003; Wise, 2007).
However, DNA forensics analyze may disagree, because of the fact, evidence
found at a crime scene associated to the victim as within a rape case may not match the
allege suspect (Liu & Martin, 2007; Wise, 2007). Iterate, it just reveals how policing, the
court and legal system imprison innocent people (Butler & Moran, 2007; Wise, 2007).
Since the late 1980’s there have been 200 cases involving post conviction DNA that were
exonerated. In 2009 there have been several cases pending post conviction DNA analysis,
but the courts have done little too determine if any of these cases could be exonerated.
Imagine if the public finds out that several cases that could have been exonerated through
post conviction DNA but were ignored by the court. The public could develop the lack of
faith and trust for both the policing as well as the court and legal system (Wise, 2007).
 Prisoning the Innocent 6

According to wise (2007) suggested that the court have a concern between the
scientific discovery and error-rate. The error rate represents the number of cases
involving conviction that stem the likelihood of becoming exonerated based on post
conviction DNA analysis (p. 430). However, judges are not pursuing much on scientific
evidence for post conviction for the simple reason of developing public mistrust.
Therefore, suggesting the error-rate too remain while the innocent incarcerated in jails,
prisons and community service continue paying for a crime they did not commit (Walker,
2003; Wise, 2007).
In addition, is the severity of the crime, for example, serving a harsh sentence that
does not equal the crime (Butler & Moran, 2007; Walker, 2003). In other words,
punishment not equal to the crime, but punishment is equal to false evidence and poor
police and court work based on the supposed “War on Crime” (Gaber, 2004; Randall,
1998; Walker, 2003; Watson, Fischer, Andreas and Smith, 2004). Does this suggest
maybe most inmates that may be innocent remains incarcerated? It is NOT a racial
matter, but rather policing and the corporate infrastructure that guide policing through
political influences to target human population. Unfortunately, most of these inmates are
minorities (Gaber, 2004; Randall, 1998).
The department of corrections lays the weight on the judges too determine
whether or not having several cases analyze through post conviction DNA forensics.
Judges rather avoid pursuing any retaliation; because of the fact the scientific community
would not undermine the court. Therefore, freeing the judges from any concern issues
with error-rate (Mertens, 2003; Wise, 2007). Therefore, judges are becoming more of a
gatekeeper as determining the admissibility of evidence, which can assume the innocents
of those wrongfully accused and deprived of liberty.

Conclusion

Post conviction DNA evidence has benefited society by recognizing the innocent
wrongfully convicted. For example, many inmates wrongfully convicted discovered an
opportunity for both the court systems as well as society too prove their innocents.
However, there are several pending cases, which would also prove likewise, but was
withheld opportunity. One of the problematic-issues the court recognizes as well as the
legal system is the so-called error-rate. If society ever becomes aware of the many
exonerated cases as a result to post conviction DNA evidence society could potentially
develop the lack of trust and faith in its system. Therefore, judges as well as the legal
system rather place cases on hold than too explore for any opportunity. It just goes to
prove how the court and the legal system imprison the innocents.
In fact, all post-convicted exoneerees were convicted prior to any DNA
examination. In addition, well over a million inmates that either served or previously
served had no DNA analysis applied to their case. Several inmates requesting post
convicted DNA evidence review their cases were either denied or place on hold. In some
rare cases their cases was either lost or misallocated through the court system. Poor
handling of legal cases is just another concept how the innocent were wrongfully
convicted.
Furthermore, most judges would only allow DNA evidence to be considered
admissible in court. In other words, not all DNA evidence is admissible. The rationale is
 Prisoning the Innocent 7

for several reasons, such as, poor handling performed by policing and the error rate. In
addition, the court favors as to the certainty of allowability. Does this suggest DNA
forensics can be manipulated to imprison the innocent? Who will speak for the innocent
wrongfully convicted?

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