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Jewish World Review April 24, 2001 / 2 Iyar, 5761

Dan K. Thomasson

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Consumer Reports

The right to DNA testing -- FINALLY a federal judge has had the good sense to give those convicted of rape and other violent crimes and who still protest their innocence an opportunity to prove it. His is a landmark ruling that most prosecutors clearly find unwelcome. If allowed to stand, it would greatly expand due process to keep up with the technology of the 21st century.

State and federal prosecutors long have been reluctant to reopen cases or permit inmates access to evidence that might prove they are innocent despite the recognized reliability of DNA testing that so far has exonerated 80 people nationwide.

This was the situation with Fairfax County, Va., commonwealth's attorney Robert Horan, who has stubbornly refused appeals to give a convicted rapist, James Harvey, access to evidence he and his lawyers contend might overturn his 1990 conviction. Horan contends there were three men involved in the incident and that even if the convict's DNA didn't show up, it didn't mean he wasn't a participant in the rape and sodomy. But Harvey's attorneys argue that the test could be decisive if the laboratory identified DNA from two men neither of whom was their client.

In a decision that is believed to be the first of its kind in the country, U.S. District Judge Albert Bryan came down on Harvey's side, ruling that felons have a constitutional right to DNA testing and ordering Horan to permit the test. He said that Horan has violated Harvey's civil rights by denying him access to evidence that might clear him.

"Denying the plaintiff access to potentially powerful exculpatory evidence would result in a miscarriage of justice," Bryan stated in his opinion on April 16 that probably will open the way for an eventual Supreme Court decision on this controversial issue.

Even Bryan acknowledges that his ruling takes due process into another dimension, but he said that "due process is not a technical conception with a fixed concept unrelated to time, place and circumstances. It is flexible and calls for such procedural protections as the particular situation demands."

Prosecutors, however, argue not unpredictably that courts will be inundated with frivolous appeals if the ruling is allowed to stand and time and money will be expended needlessly. In about one half of the cases where there is post-conviction DNA testing, the guilt of the convict is confirmed.

But there are serious questions that require answering here. What about the other half? Should the test be denied if there is a reasonable chance of freeing even one person who is not guilty. Is not the cost and the possible damage to the reputation of a prosecutor a small price to pay for true justice?

Prosecutors at all levels have shown themselves not only fallible but reluctant to concede that fallibility - that they may have made a mistake, that an innocent person just might have been wronged. They almost always oppose reopening a conviction no matter how compelling the evidence. Freeing wrongly prosecuted convicts, some from death row, almost has become a cottage industry as civil rights groups and even college students have used improved forensic techniques and dogged determination to win out over the intransigence of the criminal justice system.

The very nature of the prosecutor's job encourages practices that frequently are incompatible with the constitutional rights of defendants. The pay for assistant prosecutors is low, the hours long and the workload overwhelming. Most of the jobs are filled by youngsters whose zeal is governed by hopes of fame and fortune in higher legal or political echelons or by older, less talented lawyers who have become cynical and uncaring. Winning, not justice, too often is the watchword.

Despite the increased ability to pinpoint the guilty or innocent through scientific means, Congress also has shown reluctance to assure that every defendant or convict alike has the right to the latest forensic techniques unavailable when they were convicted or overlooked in sloppy defense work. A bill to guarantee all inmates access to DNA testing that could exonerate them has been introduced by Sen. Patrick J. Leahy, D-Vt., but is not expected to pass this year.

Ultimately, it will be up to the Supreme Court to decide this issue, which seems so vital to a truly just system. Of course there are expenses, financially and in terms of the anguish that some victims may face if cases are reopened among others. But Judge Bryan clearly believes these aren't sufficient to deny a person freedom if there is any chance that he or she has been wrongly incarcerated. He has had the courage to say so and he is right.

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04/20/01: The world closes in
04/13/01: Is election reform finally dead?
04/11/01: Rather tarring makes all journalists stink
04/06/01: Bad news about the news business
03/30/01: Lieberman plots his future
03/23/01: When appointing federal judges, records unblemished by brilliance, accomplishment or the evidence of independent thought are rewarded
03/21/01: On campaign finance reform, is something better than nothing?
03/19/01: Will Gore get another shot?
03/13/01: Bashing business not Bush's style
03/13/01: The senior Bush's unseemly job
02/27/01: Is that J. Edgar Hoover turning in his grave?
02/23/01: Goodbye to the SATs --- and good riddance!
02/20/01: How gullible does Clinton think we are?
02/16/01: Milking nonsense for all its worth
02/13/01: The need for a one-armed economist
02/09/01: Move over, Bonnie and Clyde

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