Thursday, August 13, 2020

Who Should Have Access to DNA Evidence?

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Michael Whyte
Crime Scene Officer and Fingerprint Expert with over 12 years experience in Crime Scene Investigation and Latent Print Analysis. The opinions or assertions contained on this site are the private views of the author and are not to be construed as those of any professional organisation or policing body.
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Next week, the West Virginia Supreme Court will hear a case in which 30 former prosecutors from around the country have taken the unusual step of siding with the defense. It’s a battle over a DNA test, and whether prosecutors must turn the results over to a defendant when they point to his innocence — even if he has made the decision to plead guilty.

In December 2001, a 19-year-old man named Joseph Buffey was arrested for breaking into three businesses in Clarksburg, Va. Questioned by the police, Buffey admitted to the break-ins. Then the police started asking him about a far more serious crime, which took place the morning after: the robbery and rape of an 83-year-old widow who lived less than half a mile from the Salvation Army store that was one of Buffey’s break-ins.

The victim was the mother of a police officer, and when she described the attack to the police, she said she’d noted details so that she could tell her son. She described the attacker’s clothing and the knife and flashlight he carried. The lower half of his face was covered by a bandanna, but she saw his bare white legs.

Because Buffey (who is white) had been in the vicinity causing trouble, the police interrogated him for nine hours about the robbery and rape, without giving him food. Then they turned on a tape recorder. At that point, at 3:25 a.m., Buffey said he “broke into this old lady’s house.” The detectives pressed him for details relating to the crime, like where in the house it took place, which Buffey either didn’t supply or got wrong. Minutes after Buffey’s admission, one investigator asked, “What are you scared of?”

“You really want to know the truth?” Buffey said. “I didn’t do it.” He told the police he “made up a story” because they were “breathing down my neck, telling me I did it.”

The detectives thought he was lying. Two friends he committed the break-ins with implicated him in the rape. Buffey was appointed a lawyer, Thomas Dyer, who asked prosecutors about the DNA testing that the West Virginia State Police Forensic Laboratory was conducting on the rape kit collected from the victim. Buffey told Dyer the test results would clear him.

Over the following months, Dyer called repeatedly to ask about the test results, and was told there was no report from the lab. In the meantime, the prosecutors made a plea offer: If Buffey pleaded guilty to the rape and the robbery, they would drop the other charges against him, mostly related to the break-ins. Dyer told Buffey that given his youth, he had a good chance of serving only 15 years in prison.

The prosecutors said the plea offer would expire at the final plea hearing. Up to that day, in May 2002, prosecutors said they still did not have the DNA results. Buffey pleaded guilty to the rape and robbery, saying under oath that he committed the crimes. People in Clarksburg — a small town of just 16,000 people — were still reeling from the heinous attack, and instead of the 15 years his lawyer predicted, Buffey was sentenced to 70 to 110 years.

In November 2002, Buffey filed a petition from prison, arguing that he was coerced into making a false confession and asking for the DNA results. He finally received the report from the state forensics lab — and it said he was not the source of the male DNA in the seminal fluid taken from the victim. (The lab report found trace amounts of DNA from another male, but they were later determined to be too minute to have come from the rape; they could conceivably have come from another man who previously had sex with the rapist, or from a woman who had sex with another man before having sex with the rapist.) What’s more, the DNA report was completed six weeks before the court accepted Buffey’s guilty plea, even though the prosecution never turned it over to his lawyer.

Did Buffey have a right to see the DNA results before he entered his plea, as he will argue to the West Virginia Supreme Court? Prosecutors will argue to the West Virginia Supreme Court that he didn’t — because Buffey voluntarily pleaded guilty knowing the DNA test was underway, he could not fault the state for withholding the results. The question in general is, surprisingly, not one the courts have settled.

If the case had gone to trial, the answer would have been straightforward. In the 1963 case Brady v. Maryland, one of the most influential of its time, the U.S. Supreme Court held that before a trial, prosecutors must turn over information that could help a defendant prove his innocence. “Particularly in the state system, the prosecutor has more resources than the defense,” explains Paul Schechtman, a former Manhattan and federal prosecutor. “On those occasions when you find something that suggests the defendant didn’t do it, if you suppress it, you’ve suppressed justice.”

But the Supreme Court has never ruled on whether prosecutors must turn over evidence that could establish a defendant’s innocence before he or she accepts a plea offer. And in that regard, Buffey’s position is hardly unusual. Today, more than 95 percent of cases end in pleas rather than trials, a rate that has risen significantly since the onset of tougher sentencing and larger criminal dockets in the 1980s. Trials increase the workload for judges and prosecutors, and so a defendant who is convicted at trial often faces what’s known as a “trial penalty” — a far harsher sentence than the plea offer.

As a result, as the Supreme Court said in 2012, plea bargaining “is not some adjunct to the criminal-justice system, it is the criminal-justice system.” About 10 percent of the 1,800 or so exonerations that have taken place since 1989 involve defendants who pleaded guilty, according to the Innocence Project. That’s true for both DNA exonerations and other kinds of cases.

David Romano, the assistant prosecuting attorney, doesn’t think Buffey falsely confessed. “He told three officers he was in that house,” he told me over the phone. False confessions “only happen when someone is of low intelligence or something else has overcome their will.” In fact, while low I.Q. is one contributing factor in false confessions, there are many more, according to the University of Virginia law professor Brandon Garrett, author of “Convicting the Innocent: Where Criminal Prosecutions Go Wrong.” “Many false confessions involve people who are vulnerable because they are mentally ill, or juveniles, but in many other cases people have no limitations like that,” Garrett said. “They’re just worn down by the questioning, and they thought they could clear up the misunderstanding once they get out of the interrogation room.”

It’s exceedingly difficult to walk back a confession, as Buffey discovered. At a 2004 hearing following his petition, prosecutors argued that the DNA results were “inconclusive” as to Buffey’s guilt, because of the trace DNA from the second male. Ronald Perry, one of the two friends arrested with Buffey for the break-ins, testified that Buffey told him he and a cousin had taken turns holding the victim down and raping her. This contradicted the victim’s own statements; she had never mentioned a second perpetrator to the police, and when asked by a nurse who examined her whether there was more than one assailant, she said no. (At the time of his testimony, Perry asked the prosecutor for help getting his sentence reduced based on the assistance he provided in Buffey’s case. The second friend who initially implicated Buffey in the rape later recanted.) Still, the judge ruled against Buffey.

In 2010, the Innocence Project and a West Virginia lawyer, Allan Karlin, began representing Buffey and retested the DNA. The results were “profoundly exculpatory,” as a brief filed on Buffey’s behalf by Schechtman and signed by 30 other former prosecutors puts it. Then in 2012, after an 18-month battle, the organization won a court order to run the DNA from the rape through Codis, the national criminal-justice database. The search produced a match: The source of the DNA was a man named Adam Bowers. At the time of the rape, Bowers was 16 and lived a few blocks from the victim. He’d also been accused or trying to rape another woman in October 2001, and he was in prison for a home-invasion burglary.

Bowers was charged last year with the 14-year-old rape and robbery for which Buffey was convicted, and was found guilty last May. This did not convince the Clarksburg prosecutors, or the judge who accepted Buffey’s plea, that he was innocent. After Bowers was identified, prosecutors began arguing that Bowers and Buffey committed the crime together, communicating through hand gestures and whispers so the victim wouldn’t know there were two assailants.. Buffey’s DNA was not found because he wore a condom, the prosecutors conjectured. “I don’t think the DNA evidence points away from him,” Romano said. (The victim cannot be asked about this new theory because she now suffers from dementia.)

Most courts that have considered the question of whether defendants must have access to DNA evidence before pleading have agreed that they should, but not all of them have. The U.S. Court of Appeals for the Fifth Circuit has repeatedly ruled that “a guilty plea waives the right” to claim that your right to exculpatory evidence has been violated.

But the standard isn’t necessarily just whether a plea is voluntary. It’s also whether the plea is “valid and accurate,” the Supreme Court of Nevada wrote in 2012. Ensuring that prosecutors tell defendants about evidence that points to their innocence — as DNA results so clearly can — is an “added safeguard,” the Nevada court continued, that “comports with the prosecution’s ‘special role . … in the search for truth.’ ” The pressure to plead guilty runs too high to make do without it.

Source: NY Times

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