# Why don't prosecutors give a shit what the truth is? (death penalty/ DNA rant) **URL:** \ **Category:** The BBQ Pit\ **Created:** [November 14, 2002, 4:13pm UTC](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736 "2002-11-14T16:13:57Z")\ **Posts on this page:** 7\ **Page:** 11
**Author:** ![Larry\_Mudd](https://avatars.discourse-cdn.com/v4/letter/l/f14d63/32.png) [@Larry\_Mudd](https://boards.straightdope.com/u/Larry_Mudd)\ **Post date:** [November 20, 2002, 11:35pm UTC](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736/201 "2002-11-20T23:35:19Z")
Please excuse my poorly-worded post. > [@](#): > > the convicted person in a habeas proceeding may indeed present “any new evidence” that tends to establish his innocence, "regardless of its role (or lack of it) in convicting I’m with you there. But how could further DNA testing establish innocence in the cases that have been brought up? It demonstrably does not. So why the controversy? Particularly with regard to Coleman-- even _if_ the rape kit evidence implicated someone else, it wouldn’t undermine the prosecution’s case on its own-- and it appears likely that it would actually reinforce his guilt. I understand where the accusations of suppression of evidence come from, after reading the decision. A number of lame last ditch efforts were made to establish his innocence, and they didn’t pass muster. What’s the significant difference between petitioning for DNA testing when it wouldn’t prove a damn thing either way and demanding another trial because you can prove that the prosecutor wasn’t wearing underwear in court? Irrelevant is irrelevant. Don’t get me wrong, I’m a strong advocate of prisoners’ rights, and have done volunteer work for the [Elizabeth Fry Society](http://www.elizabethfry.com/). I’m not one of your lock-'em-up-and-throw-away-the-key types, but there comes a time when you have to concede that guilt has been established beyond a reasonable doubt. A _reasonable_ doubt. ---
**Author:** ![lucwarm](https://avatars.discourse-cdn.com/v4/letter/l/e19adc/32.png) [@lucwarm](https://boards.straightdope.com/u/lucwarm)\ **Post date:** [November 20, 2002, 11:38pm UTC](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736/202 "2002-11-20T23:38:51Z")
After reading the last couple pages, I tend to agree with those who would put hurdles in the path of a defendant who is seeking to revisit his conviction. The thing is, there’s always some new test or some new piece of evidence that a defendant could come up with to use to argue that he might be able to poke a hole in the prosecution’s case. At some point, any system that includes capital punishment has to say “enough is enough, time for you to fry.” ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 20, 2002, 11:57pm UTC](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736/203 "2002-11-20T23:57:10Z")
Yes, and that time is _after_ they have had the opportunity to perform that test and present the evidence. Believe it or not, there is a finite universe of evidence out there. Particularly in the case of DNA and other forensic evidence, that universe is located almost exclusively in the possession of the courts and the prosecutors. It is unconscionable for them to say “No, you can’t look at that. We think you’re guilty anyway.” **Larry:** > [@](#): > > But how could further DNA testing establish innocence in the cases that have been brought up? It demonstrably does not. So why the controversy? It demonstrably does not by itself. We don’t know what other exculpatory evidence exists out there, and the court certainly didn’t consider any of it (as opposed to just listing it in a general description of the underlying prosecution, which is what Hamlet quoted) in determining whether the defendant is entitled to the DNA testing. It’s merely “Oh, but that can’t conclusively demonstrate you are innocent.” Feh. Though experiment for ya. You’ve been convicted of first degree murder and sentenced to death. There’s an envelope in the evidence locker that the prosecution says you used to mail a ransom note to the victim’s family. You want to DNA test it because you say it’s not your spit on the thing. The state comes back and says hey, even if it’s not Larry’s spit on the envelope, that still won’t demonstrate he didn’t kill the victim. We’ve got all this other evidence he did it, so he’s not entitled to that DNA test. Still comfortable with the rule that tells the convicted person to fuck off and go get fried? ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 21, 2002, 1:31am UTC](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736/204 "2002-11-21T01:31:09Z")
Getting back to Hamlet’s earlier points: > [@](#): > > \*Originally posted by Hamlet \* > In Kutzner, the Court spent pages going into the “new evidence” the defendant presented, including a missing tape recorder, the husband’s car, the toolmark evidence, and Landry’s cooperation. They discussed how the defendant attempted to raise doubt about his guilt by offering the husband or Landry as other people who could have done it. They considered all that other evidence when determining the appropriateness of ordering DNA evidence. I honestly don’t understand why you would suppose the inquiry was as limited as you say it was. I’m afraid you are clearly the person misrepresenting the _Kutzner_ opinion. The court clearly states, in reference to the other “new” evidence asserted, that “The language of Article 64.03(a)(2)(A) and its legislative history also do not contemplate a consideration of appellant’s “new” post-trial information. And, assuming that Article 64.03(a)(2)(A) does permit a consideration of this “new” post-trial information, appellant’s request for DNA testing must still fail.” In other words, the court _cannot_ consider that evidence in deciding the merits of the DNA request. (Heads up, **Izzy**!) The court does go on to disparage the quality of the other asserted new evidence (which is really quite weak), this brief discussion is rather gratuitous in light of the court’s holding that it’s not supposed to consider the extra stuff anyway. It’s really mostly a case of covering themselves against later review by the federal courts, i.e., “Even if we had to consider the extra stuff, we did and we think it’s insufficient, so there.” > [@](#): > > In the concurring opinion of Patrick, Justice Hervey stated: “It is undisputed that the evidence of Mr. Patrick’s guilt is overwhelming. This explains why the convicting court declined to order DNA testing under Chapter 64.” Again, just what I’ve been saying: He’s guilty, so he ain’t entitled to shit. > [@](#): > > In the statute itself, the defendant must show “by a preponderence of the evidence,” which, seems to me, would indicate the defendant would have the opportunity to present potentially exculpatory evidence at the DNA hearing. That simply establishes the defendant’s burden of proof. It doesn’t say anything about what evidence the defendant may present and the court may consider in the Ch. 64 hearing, and the practice of the courts (except possibly _Rivera_, which I have not had the opportunity to read yet) and the holding of _Kutzner_ show that they are not to consider other exculpatory evidence. ---
**Author:** ![IzzyR](https://avatars.discourse-cdn.com/v4/letter/i/2acd7d/32.png) [@IzzyR](https://boards.straightdope.com/u/IzzyR)\ **Post date:** [November 21, 2002, 2:11am UTC](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736/205 "2002-11-21T02:11:06Z")
> [@](#): > > \*Originally posted by minty green \* > The court clearly states, in reference to the other “new” evidence asserted, that “The language of Article 64.03(a)(2)(A) and its legislative history also do not contemplate a consideration of appellant’s “new” post-trial information. And, assuming that Article 64.03(a)(2)(A) does permit a consideration of this “new” post-trial information, appellant’s request for DNA testing must still fail.” In other words, the court _cannot_ consider that evidence in deciding the merits of the DNA request. (Heads up, **Izzy**!) The court does go on to disparage the quality of the other asserted new evidence (which is really quite weak), this brief discussion is rather gratuitous in light of the court’s holding that it’s not supposed to consider the extra stuff anyway. It’s really mostly a case of covering themselves against later review by the federal courts, i.e., “Even if we had to consider the extra stuff, we did and we think it’s insufficient, so there.” If you were to ask this layman, I would say that the plain language means that the issue of whether the other evidence can be considered is _unsettled_ - the language of the law did not “contemplate” i.e. address it, nor did previous judicial rulings. In this case the court declined to settle the matter itself because even if the law does allow it, it would be moot in this case. I’m a bit puzzled by your statement that the court dealt with the possibility to head of a federal challenge - the language clearly states that “assuming that Article 64.03(a)(2)(A) does permit a consideration of this “new” post-trial information”, which implies a possiblity that the state law allows it. But I’m no lawyer, so if you and the other lawyers assert that “does not contemplate” in legalese means “does not permit”, I’ll accept it. Again, if this is the case, I disagree with this provision of Texas state law. But in general the larger point is unchanged. ---
**Author:** ![IzzyR](https://avatars.discourse-cdn.com/v4/letter/i/2acd7d/32.png) [@IzzyR](https://boards.straightdope.com/u/IzzyR)\ **Post date:** [November 21, 2002, 2:29pm UTC](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736/206 "2002-11-21T14:29:16Z")
> [@](#): > > \*Originally posted by IzzyR \* > …I would say that the plain language means that the issue of whether the other evidence can be considered is _unsettled_ - the language of the law did not “contemplate” i.e. address it, nor did previous judicial rulings. Strike “nor did previous judicial rulings”. Replace with “nor did any previous or subsequent laws that may have dealt with the subject”. Sorry. ---
**Author:** ![minty\_green](https://avatars.discourse-cdn.com/v4/letter/m/f6c823/32.png) [@minty\_green](https://boards.straightdope.com/u/minty_green)\ **Post date:** [November 21, 2002, 2:38pm UTC](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736/207 "2002-11-21T14:38:29Z")
When the court says that the statute and the legislative history “do not contemplate a consideration of appellant’s “new” post-trial information,” they’re saying that neither the plain language of the statute nor the legislative history behind the statute permit such extra evidence to be considered in a Ch. 64 hearing. I suppose it’s just ambigous enough that one could read it as leaving the issue undecided–and if I had to brief the issue to another Texas court or the CCA itself, that’s exactly what I’d argue–but even if it’s non-binding dicta, the court’s interpretation of the statute is crystal-clear: No additional evidence is to be considered. I have to admit, I’ll be interested to see if the legislature tidies up anything in the DNA statute when it meets again in a couple months. It is not a well written statute, and there are more than a few unanswered questions about how they wanted it to work. We’ll see. [Previous page](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736.md?page=10)