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Diane Dimond: Level the Playing Field By Opening DNA Databases to All

The scene: A criminal courtroom anywhere in America.

The players: A judge, a prosecutor, a defense attorney and the accused.

The assumption: That all parties involved enjoy a level playing field toward the twin goals of discovering the truth and finding justice.

The fact: In many criminal cases, the prosecution holds the key to what could be the most important evidence of the trial — DNA. Prosecutors in most states have exclusive access to CODIS, the national database of more than 11 million DNA samples, which is considered to be the gold standard in forensic-based investigations. CODIS is used in two ways — to match a known suspect to a crime or to find an unknown suspect who may have been entered into the system years earlier.

Surely you’ve seen TV cop shows where a lab technician simply punches a bit of information into a computer to try to get a match with DNA gathered from a crime scene. CODIS results are easy to get, remarkably fast and widely considered to be extremely accurate.

So why doesn’t everyone get to have access to the system? Consider that we, the American taxpayers, have annually paid out multimillions of dollars (ever since the DNA Identification Act was passed in 1994) to build this massive database of DNA samples. But if we find ourselves in trouble and our lawyer discovers DNA evidence that needs to be checked out, we’re not allowed access? Does that sound fair to you?

Over the last decade or so, there have been dozens upon dozens of reported cases in which an attorney for a convict — a person who has always maintained his or her innocence — has dug deep into the case file and found untested DNA that could exonerate their client. But often when they return to court to ask for the right to test the new evidence, they are told judges don’t have the power to force prosecutors to retest.

Prosecutors are duty-bound to turn over to the defense all the evidence they have, but sometimes they fail to do so. Sometimes they don’t even realize what their own investigators have missed.

Currently there are only nine states with laws that grant defense attorneys access to DNA databases. I think the rest of the country should join Colorado, Georgia, Illinois, Maryland, Mississippi, New York, North Carolina, Ohio and Texas. That one side gets to keep such important information all to itself is not the level playing field our criminal justice system demands.

Almost every state has a law permitting some post-conviction DNA testing (although the U.S. Supreme Court ruled a few years ago that it is not a constitutional right), but it is done at the discretion of the prosecutor, and they very rarely jump at the chance to reopen a convict’s case.

Each of them most likely would declare that they are in the business of “finding justice,” yet there are cases on record where, to cite just one, a new DNA test showed the semen found in a 16-year-old rape victim did not match the Long Island, N.Y., man convicted of the crime. Well, after the revelation, the prosecutor continued to insist he had convicted the right man and that the girl had engaged in consensual sex earlier in the day. The victim’s mother and best friend swear she was a virgin.

As University of Virginia Law professor Brandon Garrett says, “(Prosecutors) are attached to their convictions, and they don’t want to see their work called into question.” Hey, who wants to take one out of their own win column, right?

Now, look, I’m not naive enough to think that every defense attorney petitioning for a new DNA test will be on the up-and-up. Yes, some might be on a fishing expedition on behalf of their client. But, as with everything in the justice system, standards can be established for retesting and a balance sheet can be kept of offending attorneys. Believe me, none of them want to be reported to their state’s ethics board for reprimand or suspension.

Government and judicial watchdog groups maintain that hundreds and maybe thousands of prisoners could substantiate their innocence if only they could tap the CODIS system. Some of the convicts say they falsely confessed to crimes they did not commit after being deprived of sleep and enduring day-long interrogation sessions. (This happens more often than you think.) Other prisoners maintain they were wrongly convicted and just want a chance to prove it.

Groups like The Innocence Project estimate that in the past 15 years, some 300 prisoners have been given access to DNA databases and won their freedom.

I cannot confirm the 300 figure, but what if someone you loved was unfairly convicted — wouldn’t you want them to have every chance to prove their innocence? It might cost a bit more to fully open the database to both sides, but if it frees innocent people, isn’t it worth it?

It won’t surprise you to learn that the National Association of Criminal Defense Lawyers is all for the idea of opening up the CODIS system. The group’s president, Steven Benjamin, says, “Science doesn’t belong to the government, but they act like it does.”

But guess what? Even the National District Attorneys Association agrees with the idea. NDAA’s executive director, Scott Burns, has said, “It seems like there should be laws for it, and I agree that the defense should be given the information.”

Well, OK then. Let’s start really leveling the playing field, shall we?

Diane Dimond is the author of Cirque Du Salahi: Be Careful Who You Trust. Contact her at .(JavaScript must be enabled to view this email address), follow her on Twitter: @DiDimond, or click here to read previous columns. The opinions expressed are her own.

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