COP Columns

DNA Testing For Convicted Felons

Makes Sense To Me

Like other states, Virginia has decided to allow felons in jail DNA testing of old evidence which they say will exculpate them. Not everyone seems happy with the idea.

I think these folk are nuts.

It is one thing to favor heavy penalties for, say, murder, arson, rape, looting, and burning. It is another thing entirely to keep men in jail, who may be innocent, just to be hard-nosed or to further political ambition. If the guy didn't do it, I for one want to know it, and I want him sprung.

As a society we pretend, and in a sense have to pretend, that the courts are infallible. They aren't, of course. The guilty do frequently get let loose, and the innocent do sometimes go to jail.

It isn't avoidable, another point that doesn't get mentioned. The only way to imprison all of the guilty is to imprison everyone in the country. The only way to avoid sometimes imprisoning the innocent is never to imprison anyone. How often which happens depends on how much proof you demand and how intelligent, honest, and objective the courts are. But they're going to miss at times no matter what you do.

DNA testing does indeed sometimes demonstrate innocence. A rape victim, perfectly honest, testifies before the advent of DNA testing that she was raped by one man in a dark alley. She thinks, or believes, it was the defendant. All the circumstantial evidence supports her belief. He goes to jail. Years later, DNA testing of old semen stains demonstrates that it wasn't the guy in jail.

He needs to be let out. Sez me, if his argument for testing is plausible -- i.e., there exists something to test, which might be exculpatory -- he ought to get the test. And the original prosecutor in the case should have no say in determining whether the test is authorized.

I am aware that prisoners milk the system, file frivolous appeals, and jerk the courts around because they have nothing else to do. I've been in prisons, and know what fantastic liars most inmates are.

But I am also aware that trials are the intellectual equivalent of professional wrestling, in which both sides try to con the jury. And I am further aware that ambitious and not terribly scrupulous prosecutors don't want the embarrassment of finding, or more correctly having the public find, that they have imprisoned an innocent man. It doesn't help in an election. They don't like backing down. So, often, they don't.

In approving DNA testing, governor James Gilmore of Virginia reportedly was not enthusiastic, because it would weaken the sense of finality enjoyed by families of victims, and result in a flood of new appeals. I understand both considerations. I'm not much of a bleeding heart. I'm for putting career violent criminals away forever. For forcible rape, I'd start at thirty years, no parole -- if the defendant was guilty. If Gilmore is for this, I'll join his campaign staff.

But courts screw up. Juries are human.

It's ugly to watch the courts ruin the innocent. Readers of this column may remember that I have written a time or two about Bruce McLaughlin, convicted of molesting his children in Leesburg. He got thirteen years.

In eight years on the police beat, I've never seen a conviction that stank more. It bothered me at the time. It still does. It's not just me. A couple of nights ago, I ran into Carrie Ellen Gauthier, a young and smart reporter for Leesburg Today. She knows the case inside and out, and came to my conclusion: The conviction stinks. Small town papers don't publish things that upset local officials, so she's hamstrung -- but she's right.

It's not a DNA case. But when you see at first hand a case in which the system has slammed an innocent guy, and would rather leave him in prison than be embarrassed -- well, it gives you another perspective on those who say they're innocent.

Many, perhaps most, prisoners say they're innocent. Most are lying. Most would file frivolous appeals every third day if they could.

A test costs less than feeding a prisoner. How hard would it be for an uninvolved party to decide whether a DNA test might indeed be exculpatory and, if so, make sure that it got done? Should innocent people spend decades in the slam because it would be administratively burdensome to order a test? Or because a prosecutor is worried about his future?

I hope not.

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