By Stacey Patton

On June 18, the United States Supreme Court ruled that convicts cannot access DNA evidence to try to prove their innocence. Stacey Patton, Senior Editor of TheDefendersOnline, talked with Peter Neufeld, Co-Director of The Innocence Project, a national litigation and public policy organization dedicated to exonerating wrongfully convicted people through DNA testing and reforming the criminal justice system to prevent further injustice.

LDF: The Supreme Court recently voted 5-4 denying convicts the right to obtain post-conviction access to state’s evidence for DNA testing. What is the meaning of this decision?

Neufeld: The Supreme Court didn’t completely close the door to the possibility that there is a right to access to DNA testing under the U.S. Constitution. In fact, the ruling said that prisoners do have what’s called a “liberty interest” in securing access to DNA testing that could prove their innocence. This is part of the test to determine whether there’s a constitutional right. But, ultimately, the Court found that William Osborne’s constitutional rights had not been violated – claiming that Alaska has proper procedures in place for prisoners to seek access to DNA testing.

Obviously, we disagree and I argued on behalf of Osborne that Alaska improperly prevented him from getting DNA testing. Alaska is one of just three states with no law on the books granting post-conviction DNA testing (the other two are Massachusetts and Oklahoma), and it’s the only state in the nation with no known case of a prisoner getting DNA testing, either through a court order or the consent of a prosecutor.

The bottom line is that this decision means people who are denied DNA testing by prosecutors or state courts will have a very difficult time taking their cases into federal court.

LDF: What are the broader implications of the Court’s decision?  Who does this decision affect?

Neufeld: Because Alaska is such an outlier, we said from the beginning that this case would have a very limited impact. Nationwide, 240 people have been exonerated through post-conviction DNA testing. Fewer than a dozen of  those people got DNA testing through federal courts. The majority got DNA testing because a prosecutor consented to testing or a state court ordered it. That will continue to happen.

The decision affects a small number of people, but it affects them deeply. For those who are denied DNA testing, either because they are in a state without a DNA testing statute or because they are denied testing in state court, going to federal court will be very difficult. As a result, there are innocent people who will languish in prison-and possibly die in prison-unable to prove their innocence.

LDF: Does the Court’s decision significantly narrow the opportunity those incarcerated have of proving their innocence?

Neufeld: For the small number of people who would rely on federal court to get access to DNA testing, the decision may be devastating. In that respect, this decision is a call to action for all of us to pass legislation granting DNA testing in the three states with no laws on the books and improve the existing laws in other states. We also need to continue working with prosecutors so that they will agree to testing when they’re asked-without having to go to court first.

LDF: The New York Times reported recently that prosecutors are blocking DNA testing in a number of Innocence Project cases. Do you find that prosecutors’ resistance to DNA testing has increased or decreased since you started doing this work?

Neufeld: When we started the Innocence Project at Cardozo School of Law in 1992, some prosecutors didn’t know what we were talking about when we asked them to agree to DNA testing for people who had been convicted years earlier. Today, everyone knows that DNA testing has exonerated innocent people over and over again. Even the Supreme Court, in this ruling, recognized the power of DNA to prove innocence or confirm guilt.

More and more, prosecutors agree to DNA testing when we ask. They see that consenting to DNA testing can prove guilt or innocence, and it can resolve longstanding claims of innocence. That said, we still see pockets of resistance. There are still prosecutors around the country who block our efforts to get DNA testing because they think the evidence against our clients was overwhelming or because they think the finality of a conviction is more important than making sure the right person was convicted.

We also see more resistance from prosecutors in cases that are more complicated. Prosecutors routinely consent to DNA testing in single-perpetrator rape cases, but they still sometimes oppose testing in cases with multiple perpetrators or cases where we want to test multiple pieces of evidence.

LDF: What is the process of proving innocence? What is The Innocence Project’s criteria for taking on cases?  How much does it cost?

Neufeld: The Innocence Project takes cases where post-conviction DNA testing could prove innocence. Our mandate sounds simple, but it can be quite complicated. We receive several thousand requests for assistance every year, and we thoroughly evaluate each one before deciding whether we can take it. Our intake and evaluation staff reviews the entire record of the case and conducts extensive research to determine whether DNA
testing can be conducted and, if so, whether favorable results would prove innocence. Often, the intake and evaluation process can take months or years.

Once we take a case, we begin searching for the evidence and working with local prosecutors to secure DNA testing. Five years ago, we formed an independent nonprofit organization but we are still affiliated with
Cardozo School of Law, which means we operate a clinic where Cardozo students draft motions and conduct research on cases under the supervision of our seven staff attorneys. We represent all of our clients pro bono and cover all the costs of our cases. DNA testing alone costs several thousand dollars, and some cases require multiple rounds of testing.

LDF: How many people in prison today are either innocent or wrongly convicted?  What does the Court’s decision mean for them?

Neufeld: Nobody knows how many innocent people are in prison. Researchers estimate that between 2.3% and 5% of all prisoners are innocent. There are more than 2 million people in prison in the U.S. Even if just 1% of them are innocent, that would mean that 20,000 innocent men and women are in prison.

We know that the DNA cases we handle are just a tiny fraction of the innocent people in prison, since experts estimate that DNA testing is possible in just 5-10% of all criminal cases. Even among those cases, biological evidence is often lost, destroyed or degraded, so DNA testing cannot exonerate people.

It’s extremely difficult to introduce evidence of innocence after someone has been convicted. Because DNA has the unique power to prove guilt or innocence conclusively, courts and legislatures often treat it differently. The decision in the Osborne case will make it extremely difficult for people to seek DNA testing in federal court, but it will not affect the vast majority of prisoners’ efforts to get testing, since they secure testing in state court or through the consent of a prosecutor.

LDF: What does this recent ruling say about the quality of justice in the United States?

Neufeld: DNA exonerations show us how the system is failing, and how it can be fixed. This ruling says that the finality trumps innocence-that it’s more important to let convictions stand than to make sure they’re correct. That’s deeply troubling. There’s a growing recognition nationwide that our criminal justice system is seriously flawed and needs to be improved, and I think this decision actually underscores the problems in our justice system.

LDF: Of the more than 200 defendants exonerated by The Innocence Project, how many have been African-American or Latino?

Neufeld: Fully 70% of the people who have been exonerated through DNA testing nationwide.

LDF: Can one draw any meaning out of these numbers and what they say about racial disparities in the criminal justice system?

Neufeld: In many ways, the numbers speak for themselves. It’s impossible to look at the racial breakdown of the people who have been exonerated through DNA testing and not see that our criminal justice system disproportionately impacts people of color. Digging deeper, most of the DNA exonerations are people of color who were wrongfully convicted of sexually assaulting white people. Two-thirds of the exoneration cases are cross-race sexual assaults, while the Department of Justice says that less than 15% of all rapes are cross-race. There’s a long history of the American criminal justice system treating the rape of a white woman by a black man as a particularly vile crime. One consequence of treating such crimes with particular zeal is that people of color will be wrongfully convicted more frequently.

The DNA exoneration cases also illustrate the intersection of race and class. In case after case, defendants could not afford top-quality lawyers to challenge prosecutors who often over-stepped the line to secure a conviction – and in the vast majority of cases, the defendants were people of color. Years later, when they are exonerated through DNA testing, they are released without adequate financial compensation and little or no services from the state.

LDF: Alaska, Massachusetts and Oklahoma do not have laws providing post-conviction DNA testing.  Why?  Do you believe this recent ruling will provoke these states to reconsider?

Neufeld: It’s taken us 15 years to pass laws granting post-conviction DNA testing in 47 states. Some states resist because they think it will cost too much money, or it will lead to a flood of appeals, or crime victims will be traumatized when cases are re-opened-even though none of those things happens. Providing access to DNA testing strengthens public confidence in the criminal justice system and helps police, prosecutors, defendants and victims.

This ruling has reignited efforts to pass laws in Alaska, Massachusetts and Oklahoma and to improve laws in other states where they are inadequate (in Alabama and Kentucky, for example, where only people convicted in capital cases can get DNA testing). People who want to get involved can go to www.innocenceproject.org/signup to receive action alerts on these legislative efforts as they’re happening.

Stacey Patton is Senior Editor of TheDefendersOnline, and the NAACP Legal and Educational Defense Fund Inc