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Rogue Cops in Philly?

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Who Is "Big Tobacco" Now?

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Schooling Brits on The Patriot

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Tired Feminist Claims

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Talking Crazy

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Liberal Second Thoughts

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Jane Austen & the First Gen Y

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Hillary's Real Threat

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Payback Time For Bill

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Clintonian Dedication to Privacy

7/18/00 10:20 a.m.
More Much Ado About Nothing
DNA tests offer no magic for those on Death Row.

By Robert V. Pambianco, Chief Policy Counsel for the Washington Legal Foundation

ast week's big capital-punishment news story didn't get anywhere near the media attention that Gary Graham's execution received. Which was not surprising, since last week's news put the lie to the drumbeat of activist/media hysteria about DNA evidence.

People were shocked, shocked to learn last week that DNA testing in the case of convicted Texas murderer/rapist Ricky McGinn did not help his case one bit. Surprise, surprise, the DNA tooth fairy does not exist.

Mr. McGinn's case initially was the subject of a blizzard of media attention, which climaxed when Texas Governor George W. Bush postponed his scheduled execution so that additional DNA testing could be performed. The tests were specifically aimed at addressing the prisoner's conviction for raping his victim — his 12-year-old stepdaughter — since the rape conviction constituted the requisite aggravating factor for a death sentence. (A murder conviction alone is insufficient.)

This clearly was not the "correct" outcome. According to the DNA story line, DNA evidence operates as some sort of magic powder that will exonerate death-row prisoners and highlight the flaws inherent in capital punishment. Not so.

The reality is that DNA evidence is rarely a friend of murderers or criminal defendants generally. As every law student learns, the defense lawyer's role in criminal trials is to keep evidence away from the jury. Since prosecutors are not in the business of trying to convict the innocent, evidence that is collected in the course of a criminal investigation is often quite damning to the defendant. Thus, as on Law & Order, the district attorneys labor to convince judges to admit evidence, while the defense attorneys argue for excluding it — an obvious point, to be sure, but one swept under the rug in much of the news coverage of capital punishment. Once having failed to exclude inculpatory evidence, the defense then seeks to raise doubts about the evidence presented by the government.

In murder cases, the defense is not often concerned with proving things. After all, the defense is under no obligation to prove anything; they do not have to offer any evidence or witnesses and can simply argue that the government has failed to meet its burden. Their job is to undermine the prosecution's case. That is, the defense is all about raising "reasonable doubt" (see O.J. Simpson trial) in the minds of a jury. It is not enough for the prosecution to convince the jury that the defendant probably committed the crime.

Likewise, in death-row appeals, the prisoner wants to somehow convince a court that something, e.g., poor lawyering or a confusing jury instruction, prevented the jury from making such a doubt-free determination. In other words, they want to sow just enough doubt to make a court think twice. DNA evidence, where it exists, does not sow doubt; it inserts certainty. Perhaps it will show that somebody else committed the crime; more likely, it will cement the prisoner's guilt. That kind of proof is not helpful if you are a defense lawyer; an appeals court is going to be much less impressed with arguments about problems at the trial if the court knows that DNA evidence has incontrovertibly confirmed the sentence.

Alas, the DNA issue — as a prop for the anti-death- penalty community — does not have long to live. That is because it is only a question in older cases that were concluded prior to the widespread use of DNA technology. In the not-too-distant future — about seven years — those cases will have been concluded one way or the other, and there will be no question of: "if only they had done a DNA test."

Until then, such evidence, if available, should be used where needed to confirm the guilt of those convicted. Where there is actually some genuine issue of innocence — as opposed to an attempt to stall the imposition of justice — it should be made available to those who seek it. Many probably will not do so, since it may tend to seal their fate.

The Wall Street Journal reported on July 12 that Mr. McGinn is the fourth Texas death-row prisoner in the past three years to have his conviction supported by a post-conviction DNA test ordered prior to a scheduled execution. The other three have been executed.

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