Tag Archives: actual innocence

Maryland v. King: “Quite a Worldview”

Supreme Court watchers took note of an article by an astute reporter on “an irony” in the fact that Justice Kennedy’s opinion for the Court in Maryland v. King cited Actual Innocence, an important book about DNA exonerations. See A Digression on Ellipses, Actual Innocence, and Dr. Mengele, June 13, 2013.

But one of the book’s authors, Peter Neufeld, was “feeling less than honored” by this nod from the Court:

Part of the problem was what he called an irony. [�] In 2009, Justice Kennedy joined the majority opinion in a 5-to-4 decision that said prisoners had no constitutional right to DNA testing that might prove their innocence. Mr. Neufeld, who founded the Innocence Project with Barry Scheck, represented the prisoner on the losing end of that case, District Attorney’s Office v. Osborne.

But last week, Mr. Neufeld said, Justice Kennedy concluded that “it’s O.K. for the state to take DNA, without a warrant, from mere arrestees, who may ultimately have their charges dismissed.” [�] The combination of the two decisions baffled Mr. Neufeld. “That is quite a worldview,” he said of a jurisprudence that allows nonconsensual testing of people presumed innocent but denies voluntary testing to people who insist that they really are innocent.

Adam Liptak, Cited by a Justice, But Feeling Less Than Honored, N.Y. Times, June 11, 2013, at A15.

This juxtaposition of King and Osborne is “quite a worldview,” but it is not an accurate description of the Court’s jurisprudence on DNA evidence. … continued on the FSSL Blog.

Maryland v. King: A Digression on Actual Innocence and Dr. Mengeles

New York Times Supreme Court correspondent Adam Liptak recently tweaked the noses of the justices who upheld the constitutionality of routinely taking DNA from individuals arrested of assault, homicide and burglary. See Cited by a Justice, But Feeling Less Than Honored, N.Y. Times, June 11, 2013, at A15.

The Court’s opinion, penned by Justice Kennedy, enumerated the arguable benefits of routine DNA collection before conviction, concluding with with the observation that “[f]inally, in the interests of justice, the identification of an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned for the same offense.” To support this conclusion, Justice Kennedy added a quotation from the important and gripping book Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly Convicted. As quoted in the justice’s opinion, Barry Sheck, Peter Neufeld, and Jim Dwyer, wrote that: “[P]rompt [DNA] testing . . . would speed up apprehension of criminals before they commit additional crimes, and prevent the grotesque detention of . . . innocent people.”

Mr. Liptak noted that this quotation was not “especially punctilious.” One might think that the problem is that the quotation speaks to preventing erroneous convictions, whereas the sentence it is supposed to support is about “freeing a person wrongfully imprisoned.” (Emphasis added.) But Mr. Liptak’s point, which turns out to be related, is that “[t]hose first three dots covered a lot of ground. They took the place of more than six sentences and suggested a different point than the one the authors were making.”

(Continued on the FSSL Blog).

“Genetic Justice”: Potential and Real

Genetic Justice [1] is a survey of the major criminal procedure issues spawned by DNA evidence. According to the book jacket, the authors “explode the myth that DNA profiling is infallible” with “a thorough discussion,” “a lucid assessment,” and “an inspiring vision.” One astute reviewer describes it as “the single most comprehensive articulation of the civil-liberties concerns associated with law-enforcement DNA databases and should, therefore, serve as a touchstone for debates about the spread of DNA profiling.” [2]

Certainly, parts of the book will inspire debate. Published by a respected academic press, the book invariably presents or reflects the positions of two advocacy groups.The ACLU is a copyright holder, and one of the authors, Tania Simoncelli, was, until recently, employed as science adviser to the group. The other author, Sheldon Krimsky, is a professor of Urban and Environmental Policy and Planning and chairman of the board of the Council for Responsible Genetics. The CRG is “a national bioethics advocacy organization based in Cambridge, Massachusetts.” [3] The book should be read by all who want to see the views of these organizations on the use of DNA evidence in criminal justice.

Whether those positions are convincing is open to debate. Some of the views in Genetic Justice strike me as extreme, and the strength of the book is breadth rather than depth and subtlety in legal and policy analysis. At least, that is my initial impression in scrutinizing the early chapters. Of course, I am a rather critical reader, so, as time permits, I shall post some specifics to support this assessment. Or maybe I shall change my mind as I reach the end.

For the moment, though, I am puzzling over the assertion in Chapter 1 (p. 26) that:

Sample contamination, misinterpretations or mischaracterizations of data, and the reporting of inaccurate or misleading statistics are all sources of human error that can and have occurred in DNA cases, sometimes resulting in the wrongful conviction of an innocent person.

Clearly, all these problems can and do arise with DNA evidence. But how many have caused “the wrongful conviction of an innocent person”? The authors do not offer a single example–at least not in this chapter. Instead, they write about “the potential for error and abuse” as illustrated by “the infamous Houston Police Department Crime Laboratory.” They quote from a report on the laboratory’s dismal practices that refers to “the potential [for] a miscarriage of justice.” However, the quotation mentions no actual wrongful conviction.

I have not read the full 332-page report. The source cited in Genetic Justice (www.hplabinvestigation.org) does not exist. However, the problem is merely typographical — links to the reports that the city commissioned are at www.hpdlabinvestigation.com. A press release on the report from the law firm that undertook it stated that:

135 DNA cases analyzed by the Crime Lab prior to the closure of its historical DNA operation in December 2002. The team identified major problems in 43 — 32% — of these cases, including in the cases of four death row inmates, Franklin Dwayne Alix, Juan Carlos Alvarez, Gilmar Alex Guevara, and Derrick L. Jackson. With HPD’s approval, the independent investigation forwarded information about each of these DNA major issue cases to the Innocence Project network that is exploring what additional steps, if any, should be taken on behalf of these defendants.

That was 2007. Franklin Dwayne Alix was executed in 2010. The other three men, as far as I can tell from web pages, remain in prison. Genetic Justice provides no reason to conclude that a wrongful conviction was established in the other 39 problem cases.

I mention these facts not to claim that DNA evidence is infallible. It is not. The putative myths that the authors labor to refute might be found in the scripts of a few television crime shows, but they already have been “exploded” in newspaper articles, television news, and scholarly writing. Neither is my intent to defend the gross mismanagement of Houston’s police laboratory. However, a book that purports to offer “a thorough discussion” should present at least one example to document its assertion that errors in DNA evidence have caused the convictions of innocent people. A large number of such cases could exist, and it would be surprising if there were absolutely none. But it is important to distinguish between the potential and the real.

Thus, I hope that readers familiar with actual cases of false convictions based on DNA evidence will comment on them here. Near misses also would be of interest. A few instances of incorrect DNA identifications during investigations have been reported in the literature.


1. Sheldon Krimsky & Tanya Simoncelli, Genetic Justice: DNA Databanks, Criminal Investigations, and Civil Liberties, New York, NY: Columbia University Press 2011.

2. Simon A. Cole, DNA Evidence, Am. Scientist, May-June 2011, at 256.

3. Council for Responsible Genetics, Genetic Discrimination: A Position Paper Presented by the Council for Responsible Genetics, 2001.