Criminal
Feb. 28, 2006
DNA Should Never Be the Final Word on Innocence or Guilt
Forum Column - By Charles Patterson and Stephen Rohde - Roger Keith Coleman was convicted in 1982 of the rape and murder of his sister-in-law. Despite his pleas of innocence, he was sentenced to death and electrocuted by the state of Virginia on May 20, 1992.
Charles E. Patterson
Stephen F. Rohde
Email: rohdevictr@aol.com
Stephen is a retired civil liberties lawyer and contributor to the Los Angeles Review of Books, is author of American Words for Freedom and Freedom of Assembly.
By Charles Patterson and Stephen Rohde
Roger Keith Coleman was convicted in 1982 of the rape and murder of his sister-in-law. Despite his pleas of innocence, he was sentenced to death and electrocuted by the state of Virginia on May 20, 1992.
In December 2005, outgoing Gov. Mark Warner ordered further DNA testing of a semen sample to determine if the state had executed an innocent man. On Jan. 12, the governor's office announced that the DNA had been matched to Coleman.
The response to that announcement was immediate and overwhelming. Advocates of the death penalty, the media and, most surprisingly, some opponents of the death penalty praised the governor's actions and opined that the result of the tests unequivocally established Coleman's guilt.
Peter Neufeld, co-founder with Barry Scheck of the Innocence Project, commended the governor for his commitment to "learning the truth" and called on other governors to authorize DNA testing "so that we can have the certainty in every case that we now have in Roger Keith Coleman's case." One pro-death-penalty blogger exclaimed: "It makes sure we only execute the really bad people." It was like a collective sigh of relief from all sides: "Well, that execution was justified."
We don't know whether Coleman killed his sister-in-law or not. We weren't there. His lawyers point to a chronology that they argue proves their client could not have been at the scene at the time of the murder. They also claim there was evidence of an unidentified man's semen in the victim, and that the DNA-identification of one of the semen samples as Coleman's was the result of a faulty test.
DNA evidence can certainly be a tool for obtaining a conviction as well as exoneration. Yet it has gained a remarkable reputation in the media and the public as infallible and overwhelming proof - the magic bullet - of guilt or innocence. Geoff Alpert, a criminal justice professor at the University of South Carolina, compared DNA testing to the introduction of computers, calling it "a world-shattering event."
The danger in the unquestioning acceptance of DNA as absolute proof of guilt is the implicit assumption that the results of a DNA test alone are sufficient to identify a murderer beyond a shadow of a doubt and thus justify an execution.
Nothing could be further from the truth.
DNA is nothing more than evidence, which as with all forms of evidence must be evaluated in the context of the circumstances in a case. DNA evidence on cigarettes, soft drink cans or from blood may be innocuous if it belongs to someone in the house; if it could have come from a recent (and innocent) visit or contact; or if it was carried in from the outside by another person. What if the semen in the Coleman case came from prior consensual sex with his sister-in-law - or what if he raped her but did not murder her? Only context can give it meaning. Without that context and a full and fair evaluation of all the evidence, there will certainly come a day when we find a person whose execution was "legitimized" by DNA testing, but who was actually innocent.
The problems with DNA evidence as proof-positive of guilt are numerous. It can be planted as easily as fibers, hair or fingerprints. DNA tests are still complicated, delicate and subject to error. DNA is available in only about 12 percent of the cases on death row, and, consequently, is relevant in only a small minority of death penalty cases. Only 14 of the 122 people who have been exonerated and released from death row around the country had the benefit of DNA testing. Acting as if a DNA match were a conclusive indicator that we had executed the right person conceals other possible defects in that person's prosecution - violations of constitutional rights such as illegal searches, coerced confessions or ineffective assistance of counsel, none of which may point to innocence but surely would call into question death as a penalty.
Indeed, since 1976, capital cases have been divided into the guilt phase and a separate penalty phase. Even if DNA evidence contributes to a guilty verdict, the defendant is still entitled to an error-free penalty phase. Far more defendants found guilty of murder receive life sentences rather than death sentences. So regardless of DNA, errors in the penalty phase can send someone to death row who, with adequate counsel or without prosecutorial misconduct or other mistakes, would have been spared from execution.
Consider, then, one more thing. To judge the propriety of the death penalty on the results of DNA tests ignores or trivializes other questions that surround this controversial issue. The question is not whether we have only executed two innocent people out of one hundred. Sooner or later someone will argue that a 2 percent rate of error is not all that bad, and that a 98 percent success rate is exemplary.
Indeed, the late Ernest van Der Haag, a legendary defender of capital punishment, was fond of arguing that society accepts the deaths of innocent bystanders or civilian casualties in war or deaths on the highway all as part of the price of our complex society. Such an attitude marginalizes and minimizes the fact that the execution of even one innocent person is too much.
Last summer, U.S. Supreme Court Justice John Paul Stevens said DNA evidence has shown "that a substantial number of death sentences have been imposed erroneously." We need to remember that while DNA can rule out a defendant, it cannot alone conclusively prove guilt.
Charles Patterson, a partner with Morrison & Foerster in Los Angeles, represented Manny Babbit, who was executed in California in 1999, and was a member of the clemency team for Clarence Ray Allen. Stephen Rohde, a partner with Rohde & Victoroff in Los Angeles, was part of the clemency team for Stanley "Tookie" Williams.
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