DNA tests could be key to freedom for many convicts New type of trial is 'boon' for defense fTC

July 05, 1993|By Deidre Nerreau McCabe and Jay Apperson | Deidre Nerreau McCabe and Jay Apperson,Staff Writers

Experts on DNA testing say the Kirk Noble Bloodsworth saga and others like it may lead to an increasing number of convicted criminals' being exonerated by a technology once considered primarily a tool for the prosecution.

"There could be hundreds or thousands of cases out there," said Barry C. Scheck, co-chairman of the National Association of Criminal Defense Lawyers DNA Task Force and a law professor at New York's Benjamin N. Cardozo School of Law. "Who knows how many convicted people are out there that some piece of evidence could exonerate them?"

Prosecutors have been using DNA samples to link suspects to crime scenes with near certainty since 1988, to the dismay of defense lawyers, who often argue that the tests are not infallible.

But defense lawyers have begun to embrace a new type of test, widely available only within the past couple of years, as the best bet for someone seeking to prove his innocence.

With its ability to analyze even small amounts of evidence, the new test, Polymerase Chain Reaction (PCR-DNA), is "a boon for the defense," said Mark Stolorow, manager of forensic services at Cellmark Diagnostics, a DNA testing lab in Germantown. "In the next five years, you'll probably see hundreds of people let out because of DNA testing."

Not all attorneys are sure the Bloodsworth case will open the floodgates. Many cite problems such as lost or destroyed evidence that might have been used in DNA tests. Also, procedural rules set limits on how or when cases can be reopened.

With those concerns in mind, lawyer Robert E. Morin, upon accepting the Bloodsworth case in 1989, immediately filed motions to preserve evidence.

"I wake up at night thinking about what could have happened if I hadn't filed those motions," he said.

Last week, Mr. Bloodsworth of Cambridge, who had been convictedof murder and rape and had spent two years on death row, walked out of prison after almost nine years, exonerated by a DNA test showing he was not the man who raped and killed a 9-year-old Rosedale girl in 1984. Such testing was not available when Mr. Bloodsworth was convicted in 1985 or in 1987, when an appeals court ordered a second trial.

Few attorneys doubt that DNA will be used increasingly to rule out suspects long before they go to trial.

"I think it will come to the point where it will be mandatory, especially in rape cases, to the benefit of everyone involved in the criminal justice system," said Lonnie Simmons, a West Virginia lawyer who handled a case last year involving a man falsely accused of rape and later exonerated by a DNA test.

FBI statistics show that one-third of the sexual assault cases in which a conclusive DNA result was obtained have cleared the suspect, a far greater percentage than most attorneys would have thought, Mr. Scheck said.

The statistics suggest that before DNA testing became available in 1988, many innocent people arrested may have been tried and even convicted.

More cases to come

Mr. Scheck and his colleagues are looking into 80 to 90 cases across the country, all involving inmates who maintain their innocence and believe DNA analysis might exonerate them. "I think 10 to 15 of those look really promising," he said.

Ten cases nationwide have resulted in the exoneration and release from prison, based on new DNA evidence, of a person convicted of a crime. Mr. Bloodsworth's case is the first in Maryland.

His freedom resulted from the PCR-DNA test, which first was admitted in Maryland courts in April. The test allows smaller and partly degraded samples of DNA to be "amplified," or reconstructed, for testing, said Cellmark's Mr. Stolorow.

Gary Dotson, a Chicago man who served six years in prison for rape based on testimony from his accuser, who later recanted, was the first convict to be freed as a result of PCR-DNA results.

That was in 1989, when the tests weren't widely available because a company known as Forensic Science Associates -- which conducted the tests that freed Mr. Bloodsworth -- owned the patent for the technology, Mr. Stolorow said.

But the company sold its patent about two years ago, and the new owners sell "kits" that make the test more widely available, Mr. Stolorow said.

He said the new test is more conducive to the needs of defense attorneys than those of prosecutors. Prosecutors prefer the older technique, Restriction Fragment Length Polymorphism, which purports to establish with near certainty a link between the suspect and the crime scene evidence.

The PCR-DNA tests divide DNA into 21 groups -- not enough to establish guilt but sufficient to exonerate a wrongly accused suspect.

In cases in Virginia and West Virginia, more traditional DNA tests were first used to weigh convicts' claims of innocence. But the tests were inconclusive, and the convictions were upheld. The defendants were exonerated after they had PCR-DNA tests done.

But even with the availability of PCR-DNA, convicted felons who maintain their innocence face an uphill battle.

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