DNA and Non-DNA Exonerations: The Barriers to Undoing a Wrongful Conviction
By Sarah Turberville, Senior Counsel, Criminal Justice Program

On Feb. 4, the Georgetown University Law School’s Black Law Students Association and Criminal Law Association presented a panel discussion on use of the death penalty in the U.S. as part of its Wrongful Convictions Film Festival.  The presentation began with a screening of The Trials of Darryl Hunt, a feature documentary about a brutal rape/murder case and a wrongly convicted man, Darryl Hunt, who spent nearly twenty years in prison for a crime he did not commit in North Carolina.  The film, first released in 2006, follows Mr. Hunt, his lawyers, and community activists in their two decade-long odyssey to prove Hunt’s innocence in which state and federal courts continued to rebuff his pleas, despite DNA evidence exonerating him of the crime.  Only when the state agreed to run DNA samples found at the crime scene against a state database, revealing a “cold hit” to the real perpetrator, did the court dismiss all charges against him.

Following the film, I joined a panel that included Richard Dieter of the Death Penalty Information Center, Donna Fessler of the Northern Virginia Capital Defender Office and Annie Bickerton of Drive Change.  In a lively conversation moderated by Georgetown law Professor Anthony Cook, we discussed how and why the film still resonates today.

One of the central concerns presented in Mr. Hunt’s case is the difficulty of undoing errors that occur in the investigation and prosecution of a criminal case after a conviction has been obtained.  In the case of Mr. Hunt, only a near-miraculous match to an existing DNA profile in the state’s database led to his release from prison and ultimate exoneration.  However, as a report issued earlier this week by the National Registry of Exonerations revealed, DNA-based exonerations are on the decline, as biological evidence available in cases today is generally tested before trial.  As a result, DNA exonerations will become fewer and fewer in the coming years.  However, through the use of DNA testing, we now know for certain that our criminal justice system is fallible and makes too many mistakes.  The question remains, how many more wrongfully convicted people languish in prison?  Some of them have been sentenced to death, and especially as some states unfortunately attempt to “speed up the appeals process” in capital cases, the time is running out for these people to demonstrate those mistakes.  Mr. Hunt himself might have run out of time had he been sentenced to death instead of life imprisonment.

In 2013, the U.S. experienced more exonerations—in capital and non-capital cases—than at any time in our history.  And most of those exonerated were released from prison due to non-DNA evidence of innocence.  As DNA is available in only a very small percentage of all criminal cases, the need for law enforcement and prosecutors’ cooperation in investigating whether a conviction is erroneous is critical.   State actors in Mr. Hunt’s case – as in other cases across the country – refused to consider the possibility of error in the face of new evidence seriously undermining the reliability of their investigation of the crime and identified perpetrator.  Some prosecution offices, however, have recently taken the lead in uncovering wrongful conviction.  The increased cooperation of District Attorney offices – like Dallas County DA and TCP’s 2009 Constitutional Champion Award recipient Craig Watkins – supported over 50% of exonerations in 2013.      

For this reason, TCP’s Death Penalty Committee—a bipartisan group comprising both supporters and opponents of capital punishment—recommended in its 2005 report, Mandatory Justice, that prosecutors consent to vacating a conviction when the results of newly-tested evidence are inconsistent with their theory of the case.  If that had occurred in the trials of Darryl Hunt, he would have been exonerated in 1994 – rather than almost a decade later. The Committee also recommended that barriers to procedural limits be lifted when newly discovered, exculpatory evidence is revealed.

Although the Committee’s findings and recommendations have proven remarkably durable since the publication of the report, there have been a number of critical developments.  To keep pace with these developments, new recommendations are currently under review by the Committee in anticipation of its forthcoming report Preventing Irreversible Error.  These new recommendations will augment the previous recommendations relating to the fairer and more accurate administration of the criminal justice system when a life is at stake.

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