DNA Tests for Inmates Debated

Prosecutor Jennifer Joyce knows the horror of imprisoning an innocent man.

She freed a convicted rapist last summer when genetic analysis of old evidence exonerated him after he spent nearly 18 years in prison. She understands the power of such testing to right wrongs.

But Joyce also is convinced that DNA analysis can be abused.

In the last decade, more than 100 inmates across the nation -- including at least 13 on death row -- have been freed after DNA tests cleared them. Sen. Patrick J. Leahy (D-Vt.) plans to introduce a bill in Congress this session that would expand access to such tests.

He wants the federal government to recognize that inmates have a constitutional right to access the biological evidence against them.

That proposition has Joyce up in arms. From her post as circuit attorney of St. Louis, she is waging a passionate -- and for the most part lonely -- battle to restrict rather than broaden inmates’ rights to DNA tests. A few fellow prosecutors back her. Others whisper that she’s crazy to spend so much energy on an issue they view as a nuisance at most.

To Joyce, it is no mere nuisance.

Twice last month, DNA tests at the police crime lab in St. Louis confirmed the guilt of convicted rapists. Two other tests, last year and in 2001, also showed the right men were behind bars for brutal rapes committed a decade or more earlier.

Joyce’s staff spent scores of hours and thousands of dollars on those tests. She personally counseled shaking, sobbing victims who were distraught to learn that their traumas were being aired again.

One victim, she said, became suicidal and then vanished; her family has not heard from her for months. Another, a deaf elderly woman, grew so despondent that her son has not been able to tell her the results of the DNA test. Every time he raises the issue, she squeezes her eyes shut so she will not be able to read his lips.

“She finally seemed to have some peace about the rape, and now she’s gone back to being angry,” the woman’s son said.

DNA tests confirmed that she was raped by Kenneth Charron in 1985, when she was 59. To get that confirmation, however, investigators had to collect a swab of saliva from her so that they could analyze her DNA. They also had to inquire about her sexual past, so they could be sure the semen found in her home was not that of a consensual partner.

The questioning sent the woman into such depression that she’s now on medication. “None of this needed to happen,” her son said.

Joyce agrees. So she is drafting a bill -- apparently the first in the nation -- to deter “frivolous” DNA tests.

She wants inmates to pay for the analysis, which can run up to $2,500, unless they are exonerated. She wants probation and parole boards to consider an inmate’s request for a test as a black mark.

And she wants to use an existing statute barring frivolous lawsuits to add 60 days to an inmate’s sentence if the requested DNA test ends up confirming guilt.

“Maybe we need to go through all this to find the one innocent person out there,” Joyce said. “But when these guys know good and well that they committed the crime, they’re just being sadistic in requesting the tests. We have to have some provision that will make them think twice.”

In the meantime, Joyce is refusing to test DNA from two other old sexual assaults, insisting that the analysis would not prove guilt or innocence, given the circumstances of the cases. Lawyers for the inmates involved are seeking to charge Joyce with contempt of court for withholding the biological evidence. A hearing is scheduled for this month. The circuit attorney refuses to yield.

“I don’t want to set the precedent “ of testing DNA in every case, she said. “We don’t have the resources for that.”

Under Missouri law, a convict can get biological evidence tested at state expense if there is a “reasonable probability” that the results would have affected the case had they been available at trial. California has a similar law. In all, 28 states permit convicts to petition a judge for DNA analysis, although some restrict that right to death row inmates and others require that the prisoner pay for the test.

Even in the states with laws that make it easier for inmates to get tests, there is little evidence that they are demanding DNA tests in droves. Public defenders in California, Illinois, New York and several other states report just a handful of such cases over the last several years.

Many of the inmates who would like to request testing find that the evidence from their case file has long since been destroyed. Judges reject other pleas because DNA analysis would shed little light on a case. And some convicts withdraw their requests when they realize that their DNA will be entered into databanks and compared against biological evidence left at thousands of unsolved crime scenes.

“It’s not a flood of people requesting this,” said Vanessa Potkin, an attorney with the Innocence Project, a nonprofit legal clinic in New York that has led the drive for post-conviction DNA tests.

The Innocence Project screens inmate petitions, selecting only the cases that seem to offer the best shot at exoneration. Still, Potkin said, 60% of the inmates represented by the clinic prove to be guilty when the results come in.

Why they demand DNA tests when they know they committed the crime “would be the subject for a great psychological study,” Potkin said. “Maybe after 15 years of telling everyone you’re innocent, you start to believe yourself.”

Whatever the reason, Joyce and a few other prosecutors argue that such frivolous requests -- even if there are just a dozen a year -- present a major burden.

“If we had unlimited resources, you might say, ‘So, there are a couple hundred more people who want DNA testing. What’s the harm?’ ” said Joshua Marquis, the district attorney in Astoria, Ore.

“But there are 500,000 rape kits [containing evidence] sitting on the shelves of police stations across the country right now, untested because we don’t have the resources.”

DNA labs everywhere are strained to the breaking point; a survey released last month by the U.S. Justice Department found that 81% of crime labs have fallen well behind in their work. The backlog included more than 16,000 criminal cases, which would take about eight months to work through if not a single additional test request came in.

Still, Potkin argues, it is a moral imperative to test DNA if it could prove that an inmate was wrongly convicted. She calls Joyce’s resistance a “violation of due process,” adding that the cases she’s working in St. Louis have taken longer than just about anywhere else.

“We’re not fortunetellers, and neither is she,” Potkin said.

“We don’t know if these guys are innocent. But there’s a scientific test out there that can cut to the truth of the situation. Until we do the test, there’s no way to know.”