Justice Panel Urges Use of DNA Tests to Clear Convicts

A Justice Department advisory panel on Monday urged federal and state prosecutors to agree to pay for DNA tests that could exonerate convicts, even if the deadline for appeals has passed.

The National Commission on the Future of DNA Evidence also advised police officers collecting such evidence to wear gloves, avoid sneezing on the evidence and keep it in new paper bags or envelopes, not plastic bags.

Plastic bags retain moisture that could damage the cells of tissue containing DNA genetic material.

The commission’s findings are recommendations and have no force of law.

The commission of prosecutors, defense lawyers, judges, police executives, forensic scientists and academics was set up last year at the request of Atty. Gen. Janet Reno.

It issued its first recommendations Monday in two publications: a pamphlet for police officers and a 117-page book for lab directors.

The department plans to distribute the pamphlet to every police officer in America.

In addition to advice on how to avoid contaminating DNA evidence, the pamphlet lists places where such evidence can be found. Among them: hats, dirty laundry, toothpicks, used cigarettes, licked stamps, pillow cases and even baseball bat handles.

“I hope the widespread dissemination of this pamphlet starts us down a path toward eliminating the need for the other publication on how to deal with post-conviction DNA test requests,” Associate Atty. Gen. Ray Fisher said. “By committing ourselves to more accurate and effective investigative processes through the use of DNA technology, we work toward elimination of the real tragedy of wrongful convictions.”

Fisher said the Justice Department knows of 65 people who were wrongly convicted and later exonerated by DNA testing.

“The strong presumption that verdicts are correct, one of the underpinnings of restrictions on post-conviction appeals, has been weakened by the growing number of convictions . . . vacated because of DNA results,” the commission’s book said.

Time limits were imposed on federal and state appeals because, as the memory of witnesses fades, “questions of guilt or innocence become more uncertain with the passage of time,” the panel wrote.

“But the results of DNA testing do not become weaker over time in the manner of testimonial proof,” the panel wrote. In fact, the value of DNA testing has increased because of technological advances.

The commission recommended that requests for DNA tests after conviction be divided into five categories, ranging from those that clearly could exonerate the convict to frivolous requests.

Faced with a request that clearly could exonerate a convict, for example, the prosecutor should join the defense attorney in requesting the tests and pay for them if the convict is cleared, the panel said.

And when the time for appeals based on new evidence has expired, both sides may agree to a “waiver of the time bar” or the judge can make a ruling “to prevent what may be a miscarriage of justice,” the panel wrote.

Only two states, New York and Illinois, have passed laws specifically authorizing late appeals based on DNA tests.