PostConviction DNA Testing Rockne P Harmon Alameda County

Post-Conviction DNA Testing Rockne P. Harmon Alameda County District Attorney’s Office

Rhetoric • Thousands of innocents still in prison • Eyewitnesses unreliable • Innocents executed

Reality • • • 60 -70% incrimination rate Hicks, Cooper, Mc. Ginn San Diego experience Having it both ways- only to exonerate Ohio experience

Which is worse? • A wrongly convicted person in prison – 175, 3. 5 per state, . 30 per state per year(10 yrs. ) • A guilty person wrongly freed • A giulty person is never apprehended

Overview • • Context Agendas Self-promotion Process

Post-conviction testing- Context • 10, 000 inmates claiming innocence • 12 are innocent • 10, 000 unsolved but solvable murders • Victims are dead • Someone committed every one of them

Post-conviction testing- Context • • DNA underused Cold hit rate Unknown follow up on cold hits Priority to post conviction testing

Why Post-conviction Testing? • • • Give another chance? Labs have nothing better to do? Thousands of innocents in jail? Create a new cottage industry? Better feelings about the death penalty? FREEING THE INNOCENT!!!!

Current State of Affairs • “There is a demonstrated need to provide wrongly-convicted offenders with a legal mechanism to obtain post-conviction DNA testing which will demonstrate their innocence. ”

Post-Conviction Testing- Selfpromotion • • • Up for re-election Earlier conviction reversed Few, if any, exonerations No unsolved case commitment When did you ever trust us?

Post-conviction testing- Agendas • Erode support for the death penalty • Undermine forensic science • Special cases– Ben La. Guer – Kevin Cooper

Current State of Affairs • “There is a demonstrated need to provide wrongly-convicted offenders with a legal mechanism to obtain post-conviction DNA testing which will demonstrate their innocence. ” • No time limit • Finality of conviction barely relevant

What is the stated goal? • “Actual Innocence” • Raising some doubt

Post-Conviction Testing- Process

California Statute • Written motion – showing required • ID case • evidence material • Hearing – – access no access “would”, not “could” 10 exonerations • Priority over casework

Confusing Decision

What is the role of fifth Amendment ? • • Actual innocence Attorney’s role Nothing to hide Expect to explain other evidence • Refusal=guilt? • Why? ? ? • Raise doubt • Attorney’s role • Preserve other options – self-defense – competence of counsel – legal errors • Why not? ? ?

Denial of Access to the Evidence • Actual innocence – – – consider all evidence reason to doubt guilt evidence material DNA dispositive denial of access is an acceptable outcome • Raising doubt – no reason to doubt – other evidence irrelevant – assume results helpful – denial of access rare

Consequences of either approach • “Actual Innocence” – fulfill true potential of DNA – eliminate partisanship – allocate resources – may miss an innocent • Raising doubt – free the guilty – ensure contentiousness – make an innocent wait

Consider • Abuses of the process – Joseph Roger O’Dell (Virginia) 117 S. Ct. 631 • Those who reject – Dawi- South Dakota – Kevin Cooper (Ca. )

Who are the real losers? • Admissibility challenges– San Francisco- one year, $100, 000? • Women victims, almost exclusively – Oakland: 200 unsolved homicides of females

Conclusions • Adopt “Actual Innocence” as stated goal • Insulate from the adversary process • Declare same form of DNA admissible without legal challenge • Remove from political process • Include unsolved case needs

The Future