Although the fruits of genomics have yet to materialize for curing diseases, the science community does have a better understanding of how complex diseases and evolution work. In addition, genomics has a useful by-product, a tool used by forensic detectives. Using PCR, a fast and inexpensive technology for making copies of DNA, extremely small samples from blood stains, semen, hair follicles, saliva, and skin are used for DNA evidence.
Craig Venter estimates a 99.5 percent similarity between humans in the roughly 3 billion base pairs of our genomes. This means approximately fifteen million nucleotide differences make each one of us unique. Among these differences are repeated DNA sequences in our non-coding DNA. In 1984, Alec Jeffreys discovered minisatellite DNA located near genes by accident. These short repeats (ex. CACACA) are distinctive and are used by the police and FBI for forensic identification purposes.
All fifty states have laws requiring the registration of DNA of individuals convicted of felony sex offenses and other violent crimes in CODIS, a national FBI computerized DNA database. Law enforcement officials use this DNA database when biological evidence is recovered from crime scenes. DNA fingerprinting does not prove guilt or innocence, and unlike our fingerprints, it does not provide individual matches; rather it states a statistical probability in the range of one in several billion.
Although similar to fingerprints, civil libertarians claim the DNA database violates privacy rights. As a result, six states currently do not have statutes allowing post-conviction DNA access to DNA evidence.
Frivolous Law Suits or Due Process?
In 1992, Barry Scheck and Peter Neufeld founded the Innocence Project at the Benjamin N. Cardozo School of Law at Yeshiva University to assist prisoners who could be proven innocent through DNA testing. To date, 240 people in the United States have been exonerated by DNA evidence, including 17 who served time on death row. They served an average of 12 years in prison before release.
In 1990, a judge found James Harvey guilty of rape and sodomy and sentenced him to twenty-five years in prison. Harvey claimed he was innocent, but DNA testing was not available at the time of the trial. Later, Harvey’s lead attorney Peter Neufeld asked the Fairfax County, Virginia prosecutor Robert Horan to allow defense attorneys to test DNA collected from the crime scene, which he declined.
District judge Albert Bryan ruled Harvey and other convicted felons have a constitutional right to DNA testing. Horan violated Harvey’s civil rights and due process with the omission of potential evidence for his defense. As a result, the court ordered the Division of Forensic Science to conduct testing. The lab results eventually confirmed Harvey was guilty.
The government has an interest in not wasting taxpayer’s money on frivolous law suits while simultaneously having an interest in due process. In 2004, Congress passed the Innocence Protection Act as part of the Justice for All Act which provides post-conviction DNA testing in certain federal cases, requires the preservation of biological evidence, and allocates funds to pay for DNA testing.
Recently, lawyers with the Innocence Project represented William Osborne who was convicted of the kidnapping and sexual assault of an Anchorage, Alaska prostitute in 1993, and then sentenced to twenty years in prison. He was released after 14 years and later arrested for home invasion, and is currently serving time for both crimes.
At the time of the trial, evidence from semen in a condom found at the crime scene determined that Osborne remained a suspect, but the sample could also belong to roughly 15 percent of African Americans. Osborne and his attorney did have a chance for more extensive testing at his trial. On June 18, The New York Times reported that Osborne’s lawyer declined to pursue the most advanced DNA testing available at the time of the trial for fear, she acknowledged later, that it would prove his guilt.
Alaska is one of the six states that currently do not have a statute allowing post-conviction DNA access to DNA evidence. Osborne’s lawyer later filed a suit in federal court seeking an updated DNA analysis of the evidence and even offered to pay for it. However, the State of Alaska opposed the motion on the grounds that the evidence would not prove his innocence. The case went to the Circuit Court of Appeals and the ruling favored Osborne this time.
In a reversal, the Supreme Court ruled this week in a 5-4 decision that prisoners do not have a constitutional right to DNA testing in trials that could provide evidence of innocence or guilt. The court further stated that Osborne and his attorney should have claimed the right to DNA access at the trial, not on appeal.
The Supreme Court’s decision was an act of judicial restraint which limits their power and relies on precedent as opposed to judicial activism. Similar to death penalty statutes, the court deferred the decision to the state legislatures to determine how prisoners get access to DNA evidence.
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