A Life or Death Gamble: When the Stakes Are Capital Punishment, How Much Evidence Is Enough? as the Pace of Executions Grows, Prisoners in Most States Go through the Courts without Access to DNA Tests, the Modern Equivalent of Fingerprints. A New Debate about the Fairness of a Death Sentence
You would think that if technology is available to prove absolute guilt or innocence, prosecutors and politicians would all be quick to embrace it, if only to sleep easier at night.
You would be wrong.
In recent years, DNA testing has freed 72 inmates from prison --eight from death row. Each year brings new advances that expand the universe of cases where DNA analysis can help. But the political and legal systems are just now waking up to the potential of this rapidly improving technology. Only two states --Illinois and New York --give inmates the right to use the latest DNA testing. Bills to do the same nationally are still languishing.
And the machinery of death grinds on. In Texas next week Ricky McGinn is scheduled to be executed by lethal injection for the 1993 rape and murder of his 12-year-old stepdaughter. Absent an unlikely delay, he will die without the benefit of the latest genomic and mitochondrial DNA tests, which for a few thousand dollars could irrefutably prove his guilt --or point to another assailant. McGinn has received poor legal counsel; it took until last week before the trial court in Brown County, Texas, received a request that a pubic hair found inside the victim --and a possible semen stain --be tested. In an appeals system that makes it difficult to introduce new evidence --even in a capital case --his odds of a reprieve are low. McGinn is just one of thousands of prisoners pushed through the system without the modern-day equivalent of fingerprints. The vast majority are probably guilty. But why settle for "probably" when a definitive answer is at hand?
Prosecutors are beginning to ask that question, but their old habits die hard. Until now, most have allowed post-trial DNA testing only under threat of litigation. Even after innocence is proved with 1 billion:1 certainty, some prosecutors cling to their previous theories of guilt. In the Roy Criner case in Texas and several others where DNA tests of semen have ruled out the inmate convicted of rape, prosecutors still refuse to free them. They hypothesize that while the victim had another man's semen inside her, she was still raped by the man they convicted. (This is now known as the "unindicted co-ejaculator" theory.) "I don't think prosecutors are maliciously trying to keep the innocent behind bars," says Larry Marshall of the Center on Wrongful Convictions at the Northwestern University School of Law. "But they've become psychologically wedded to guilt. It's tunnel vision."
There are signs the climate may be changing. For the first time in a generation, the death penalty, legal in 38 states, is on the defensive --mostly abroad, but increasingly at home, too. The New Hampshire Legislature voted last week to become the first state to abolish the practice since the Supreme Court allowed its reinstatement in 1976 (although Democratic Gov. Jeanne Shaheen vetoed the bill). An important new book, "Actual Innocence," by Barry Scheck, Peter Neufeld and Jim Dwyer, and a searing PBS "Frontline" documentary about the Criner case, "The Case for Innocence" (to be rebroadcast June 6), are helping explain that gross injustice is not as rare as many Americans would like to believe.
The turning point may have come in January, when GOP Gov. George Ryan of Illinois imposed a moratorium on executions after 13 inmates --one of whom came within two days of being executed --were proved innocent. All told, 87 death-row inmates have been released from prison since 1973. As the pace of executions accelerates, so do the odds of grievous and irreversible error.
But they don't believe that in Texas, the capital of capital punishment. Barring last-minute stays, McGinn will be the 219th Texan put to death since 1982 and the fifth in just two weeks. Nineteen more Texas executions are scheduled between now and Election Day. Texas has executed nearly three times as many inmates as the next state, Virginia (with 76 executions). …