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Friday, January 4, 2013

DNA evidence: a two-way street

Posted By on Fri, Jan 4, 2013 at 6:43 AM

One of those interesting convergences of events:

Attorney General Dustin McDaniel announced this week that he'd join other states in asking the U.S. Supreme Court to uphold state laws that allow collection of DNA samples from suspects arrested for violent crime. Arkansas passed the law in 2009. It is being challenged in Maryland as an unconstitutional act to compel production of the evidence from people not convicted of crimes. The states argue it's vital to public safety. From McDaniel's news release:

In their amicus brief, the states argue that use of DNA databases improves the ability of law enforcement agencies to solve crime, while helping to minimize the number of innocent persons being investigated for crimes they did not commit.

I can't argue with the crime solution argument. But there are some complications on that assertion about protecting innocent persons.

See the New York Times today, which reports on a West Virginia inmate who's had a hard time getting access to the state's DNA database that contained information that seems certain to free him.

Arkansas now allows post-conviction DNA testing, but it is not one of nine states that allows criminal defendants access to the DNA database, according to the Times.

“There is incredible exculpatory power in the databases that the government has spent hundreds of millions of dollars on over the years,” said Nina Morrison, a senior lawyer in the case. “But law enforcement runs the databases, and even when you go to court to force their hand, they throw up roadblocks. And judges say they don’t have the power to force them.”

Steven Benjamin, president of the National Association of Criminal Defense Lawyers, said getting access to these databases was a major concern and one that is on the agenda of his group’s winter meeting next month in Washington.

“This is a national problem, a huge and recurring one,” he said. “Juries expect the defense to be able to prove that if your client didn’t do it, who did? Science doesn’t belong to the government, but they act like it does. Unless the defense is given access to this information, the playing field remains uneven in criminal justice.”

Might the attorney general be persuaded to join this side of the DNA issue — on the side of defendants' ability to mount a complete defense — as well as the side of gathering conviction-useful evidence?

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