Long wait for justice with DNA testing

The slow pace of Maryland's effort to examine claims of wrongful convictions

September 12, 2010|By Dan Rodricks

It has been nearly 10 years since Maryland adopted one of the nation's most far-reaching rules for reopening old criminal cases and giving inmates convicted of murder and rape an opportunity to prove their innocence based on DNA evidence.

It has been a year since the National Institute of Justice, in support of expeditious and scientific truth-finding, gave the state a $307,000 Kirk Bloodsworth grant, named after the Maryland man who was the first American sentenced to death and later exonerated by DNA testing.

So what's the score so far? How many cases have been reopened? How many innocents set free?

I turned to Michele Nethercott, who co-directs the Baltimore branch of Barry Scheck's Innocence Project, operated as a partnership of the Maryland Office of the Public Defender and the University of Baltimore law school. Ms. Nethercott's unit received the bulk of the Bloodsworth grant to reopen certain cases, locate evidence and get it tested.

That has turned into a real ordeal, and the result has been about one case resolution per year.

"Since 2002," she says, "the Office of the Public Defender has identified 28 individuals, convicted of rape, for whom DNA testing could have either confirmed guilt or identified someone else as the rapist. In 21 instances, the physical evidence had either been destroyed or could not be located by law enforcement officials. In the remaining seven instances, two test results were inconclusive due to the poor quality of the sample, one exonerated the individual and identified the actual perpetrator through a DNA database hit, and three confirmed guilt."

What about murder cases?

"We searched for evidence on behalf of 11 individuals who had been convicted of murder, three of them rape/murder," she says. "Of the 11 case searches, evidence was located in seven cases. In four of the murder cases, the DNA test results were exculpatory. In the three rape/murder cases, two were exculpatory and one confirmed guilt."

So, in eight years, six people got new trials, two had the charges against them dismissed, and one test led to the identification of the real perpetrator, a rapist. In four other cases, Ms. Nethercott's clients entered into special plea deals because, she says, "they despaired of ever being able to regain their freedom due to the obstinacy and foot dragging of the prosecution."

There are more cases pending.

As might have been expected when the Maryland legislature and the Court of Appeals liberalized the rules for post-conviction testing, hundreds of inmates across the state asked Ms. Nethercott and her limited staff to consider their cases and petition courts for access to evidence. Court rulings have supported the process, with judges admonishing police and prosecutors to dig high and low for evidence from cases that are 20 to 40 years old.

Time looms large here. Most of these cases go back to the pre-DNA testing age, so evidence was either not preserved properly or not preserved at all.

But that's just one of Ms. Nethercott's problems.

Recalcitrant state's attorneys present obstacles, she says, and there have been too many court battles over requests for evidence, particularly in Baltimore. She calls the city State's Attorney's office "the extreme end of obstruction" on post-conviction DNA testing. In 2008, a Circuit Court judge threatened to fine city police and prosecutors for every day they did not comply with her order to search storage facilities for evidence from a 1975 rape case. Ms. Nethercott says some petitions for DNA testing are four or five years old.

"In practice," she adds, "the intent of the Maryland law is frequently undermined by the inability of law enforcement to produce the physical evidence and by the lack of cooperation by prosecutors in responding to the requests. It is a nationwide problem."

It's also a matter of priorities. Politicians, including the governor of Maryland, like to boast of the crime-fighting benefits of an extensive DNA database, so a lot of money and effort have gone into that. Last year, the governor's office says, DNA testing helped police across the state identify and arrest the perpetrators of 103 violent crimes.

Clearly, that's important use of the technology. But so is its application to make sure we've put the right people behind bars. Police and prosecutors should not stand in the way. We can't praise its wonders and use it to lock up criminals, then resist efforts to use DNA technology to overturn wrongful convictions.

Besides, there's always a chance — with the growing DNA database, a growing chance — that police will find the real killer or rapist in the process. According to the Innocence Project, there have been 258 DNA exonerations across the country so far, and test results led police to the real perpetrator in 112 of those cases.

Dan Rodricks' column appears Tuesdays, Thursdays and Sundays. He is the host of Midday on WYPR, 88.1 FM. His e-mail is dan.rodricks@baltsun.com.

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