# 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:** 20\ **Page:** 9
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [November 20, 2002, 2:23am UTC](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736/161 "2002-11-20T02:23:08Z")
The word is _exculpatory_ people not “exculpetory.” I hate to be a spelling cop but it was driving me crazy. ---
**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, 2:23am UTC](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736/162 "2002-11-20T02:23:38Z")
By the way . . . > [@](#): > > \*Originally posted by Hamlet \* > In every case I read, the court has considered the evidence as a whole in determining whether DNA testing should be ordered. It’s not “each piece on it’s own test” you seem to make it out to be. Actually, it is precisely that. The court considers all the evidence of guilt, then decides whether the requested testing, on its own, would be capable of overcoming all the other evidence. As I’ve been arguing, the proper inquiry should be whether the evidence is exculpatory or potentially exculpatory at all, not whether it would actually prove the convicted person’s innocence. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [November 20, 2002, 2:29am UTC](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736/163 "2002-11-20T02:29:09Z")
Thanks, Minty, for holding up my side of the argument WAY better than I ever could. I think your last couple of posts illustrate my feelings on this issue perfectly. ---
**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, 2:29am UTC](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736/164 "2002-11-20T02:29:31Z")
With one breath With one flow You will know Synchronicity 🙂 ---
**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, 2:30am UTC](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736/165 "2002-11-20T02:30:32Z")
Dammit, the Police reference was supposed to follow all the “exculpatory” talk. Stupid meth-enhanced hamster. ---
**Author:** ![IzzyR](https://avatars.discourse-cdn.com/v4/letter/i/2acd7d/32.png) [@IzzyR](https://boards.straightdope.com/u/IzzyR)\ **Post date:** [November 20, 2002, 4:35am UTC](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736/166 "2002-11-20T04:35:32Z")
> [@](#): > > \*Originally posted by minty green \* > The court considers all the evidence of guilt, then decides whether the requested testing, on its own, would be capable of overcoming all the other evidence. I agree with you that this is wrong. Can you provide a source to back up this assertion? But even if you are right about this, it merely means that you are right about some bizarre and obscure (has it ever come up?) provision of Texas law. This would not change the larger picture. ---
**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, 4:47am UTC](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736/167 "2002-11-20T04:47:31Z")
The three cases I cited above make it plenty clear that what the court considers (and Texas is not unique in this, AFAIK) when deciding on post-conviction DNA testing is whether the proposed test is capable of demonstrating that the convicted person is actually innocent. None of those cases considers how favorable (but not completely exonerative) DNA results might interact with any other evidence of actual innocence. There’s no consideration given to the possibility that a negative test on the pants could add to the knife wound, the footprint, the eyewitness who says she’s no longer sure, and the 7-11 video. It’s complete exoneration or nothing under the Texas DNA statute (at least as interpreted by the Court of Criminal Appeals, the worst appellate court in the nation). ---
**Author:** ![IzzyR](https://avatars.discourse-cdn.com/v4/letter/i/2acd7d/32.png) [@IzzyR](https://boards.straightdope.com/u/IzzyR)\ **Post date:** [November 20, 2002, 2:15pm UTC](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736/168 "2002-11-20T14:15:11Z")
I haven’t read those cases in full, but from the parts posted by Hamlet, I disagree that these cases make that clear at all. What do you base this on? (IOW, how do you know that they did not consider the possible outcomes of the testing in light of all the evidence). In fact, in those cases, it does not even seem like there _was_ any other evidence being challenged. ---
**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, 2:41pm UTC](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736/169 "2002-11-20T14:41:50Z")
No other evidence _could_ have been presented in those cases, Izzy. They were appeals from Chapter 64 DNA requests, where the sole issue is whether the convicted person is entitled to DNA testing of evidence in the state’s custody. That’s rather different from the habeas corpus proceedings Hamlet and I have been talking about, where all kinds of new evidence may be considered (if you’re lucky, anyway). Nevertheless, here are some quotes. First, from _Dinkins_: > [@](#): > > Article 64.03(a)(2)(A) directs a convicting court to order DNA testing of evidence containing biological material only if a convicted person establishes by a preponderance of the evidence that there is a reasonable probability that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing. From _Kutzner_: > [@](#): > > The resolution of appellant’s claims presented in point of error two requires us to construe the Article 64.03(a)(2)(A) phrase “a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing.” We also decide that this phrase can have different meanings, and is, therefore, ambiguous. It could be interpreted to require a convicted person to show a reasonable probability exists [ur]that favorable DNA results would prove his innocence. It could also be interpreted to require a convicted person only to show a reasonable probability exists that favorable DNA results would result in a different outcome unrelated to the convicted person’s guilt/innocence. . . . [The court then decides on the first option.] Finally, another lovely point form _Patrick_ that shows the basic unfairmess of the procedure: > [@](#): > > The State is no more entitled than a convicted person to an order compelling DNA testing simply because it wants one. Of course, the State could conduct DNA testing of material within the prosecution’s possession without a court order, and under those circumstances, nothing prevents the State and the defendant from agreeing to a DNA test paid for by the defendant. Wanna guess how often the State agrees to DNA testing paid for by the convicted person? ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [November 20, 2002, 2:57pm UTC](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736/170 "2002-11-20T14:57:59Z")
How the fuck am I a sycophant? Because I think **minty** has a point and expresses it well? ooooooo… I am not against the dealth penalty. But I am against a court system that tells someone they can’t have access to evidence to overturn a guilty conviction on the grounds that the accused is guilty. ---
**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, 3:10pm UTC](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736/171 "2002-11-20T15:10:07Z")
Very well said, **erl**. Now quit posting and get back to polishing my shoes. 😛 ---
**Author:** ![IzzyR](https://avatars.discourse-cdn.com/v4/letter/i/2acd7d/32.png) [@IzzyR](https://boards.straightdope.com/u/IzzyR)\ **Post date:** [November 20, 2002, 3:17pm UTC](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736/172 "2002-11-20T15:17:47Z")
> [@](#): > > \*Originally posted by minty green \* > No other evidence _could_ have been presented in those cases, Izzy. They were appeals from Chapter 64 DNA requests, where the sole issue is whether the convicted person is entitled to DNA testing of evidence in the state’s custody. That’s rather different from the habeas corpus proceedings Hamlet and I have been talking about, where all kinds of new evidence may be considered (if you’re lucky, anyway). I don’t understand this. What we are discussing is if the _rules on DNA testing themselves_ allow for the consideration of other evidence, to determine what the impact of the DNA evidence would be in context. If this is the case, then such evidence would be allowed for this reason. You are claiming that this is not the case, but you can’t use this very argument to back up your claim. The same applies to your quoted excerpts. Personally, I’m not sure the language is clear that the DNA evidence must be looked at _on it’s own_. But even if it does imply that, it may be that in those particular cases the defence did not attempt to claim that they had some other new evidence - e.g. witness retraction - that would make the DNA results more significant, and the court did not bother to address that possiblity. **erislover** , I think Hamlet has a point. If you will post to a thread to say nothing but “I think Poster X is just so right!!!” you should live with the label. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [November 20, 2002, 3:45pm UTC](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736/173 "2002-11-20T15:45:15Z")
Yes, master. 😃 **Izzy** , you don’t have to parrot Hamlet like that, you can make your point on your own. 😉 ---
**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, 3:54pm UTC](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736/174 "2002-11-20T15:54:10Z")
You’re asking me to prove a negative, Izzy. Namely, that the court _cannot_ consider the cumulative effect of DNA testing on other evidence. I have cited, discussed, and quoted three leading Texas cases on the topic of post-conviction DNA testing. [ul][_]None of those three cases consider the possibile cumulative effect of DNA plus other exculplatory evidence. [_]_Kutzner_ would have been a particularly good example of how DNA testing could act cumulatively. If the skin taken from under the victim’s fingernails did not match the defendant, that’s persuasive–but rather less than conclusive–evidence the defendant did not attack the victim. Nevertheless, _Kutzner_ gives no indication that the court considered any other exculpatory evidence in denying the DNA test.[_]Two of the cases specifically state that the inquiry is whether the DNA evidence could demonstrate the defendant’s innovence. That’s pretty darned close to “DNA and only DNA evidence.” (Patrick is basically silent on the relevant standards, focused as it is on the jurisdictional questions.)[_]I have not found any Chapter 64 case where the court considered the possible cumulative effect of the requested DNA testing.[/ul]In light of all that, I’m going to go out on a limb here and say that I’ve provided sufficient prrof that the Texas courts do not consider additional exculpatory evidence when determining whether the convicted person is entitled to the requested testing. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [November 20, 2002, 6:30pm UTC](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736/175 "2002-11-20T18:30:14Z")
If the law is how you interpret it, **minty** , you may have a point. I conceded that earlier. And if we assume the facts in your unbelievably outlandish hypothetical, it would be a miscarriage of justice if you weren’t allowed DNA testing on the material. However, I don’t follow how you can say that courts do not consider additional exculpatory evidence when determining whether the convicted person is entitled to the requested testing. 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. 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.” In Dinkins, the Court discussed Dr. Benjamin’s report and stated: “He failed to specifically address the issue of whether at the time of appellant’s trial, the type of DNA testing necessary to test appellant’s jeans was capable of **providing probative results** ” (emphasis mine). They went on to hold that the defendant had failed to provide facts in support of the motion. You can also check out _Rivera v. State_, 2002 WL 31466456, where the appellate court considered a witness recantation, and the credibilty of the defendant’s claim his confession was coerced when determining the DNA testing issue. 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. Hey, if your interpretation of the law is right, you have a point we can agree on. However, I think you’re wrong. And I think the caselaw shows it. And could you keep your cheerleaders on the sidelines? They’re getting in the way. ---
**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, 6:38pm UTC](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736/176 "2002-11-20T18:38:03Z")
No time to respond substantively right now, except one easy point: > [@](#): > > In Dinkins, the Court discussed Dr. Benjamin’s report and stated: “He failed to specifically address the issue of whether at the time of appellant’s trial, the type of DNA testing necessary to test appellant’s jeans was capable of providing probative results” (emphasis mine). They went on to hold that the defendant had failed to provide facts in support of the motion. Um, yeah, great. And why is it that you think this is a legitimate excuse for the court to deny testing now? It WASN’T tested at trial, though arguably might have been. It COULD be tested now. Apparently, the court and the legislature are content to remain blissfully ignorant of any additional evidence because hey, maybe it could have been tested before. Repeat Dr. Seuss chant. ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [November 20, 2002, 6:39pm UTC](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736/177 "2002-11-20T18:39:40Z")
There is only one god he is the sun god RA RA RA ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [November 20, 2002, 6:56pm UTC](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736/178 "2002-11-20T18:56:24Z")
> [@](#): > > \*Originally posted by minty green \* > \*\*Um, yeah, great. And why is it that you think this is a legitimate excuse for the court to deny testing now? It WASN’T tested at trial, though arguably might have been. It COULD be tested now. Apparently, the court and the legislature are content to remain blissfully ignorant of any additional evidence because hey, maybe it could have been tested before. > > Repeat Dr. Seuss chant. \*\* Maybe I’ll do it with puppets too next time. Just to make sure you get it. The point of the quote was to show the Court’s concern that the evidence be probative (hence the emphasis) and not completely exonerating on its own, like you seem to think the courts require. And please, please, please stop with the …misleading… statements. The bloody jeans evidence was tested at trial: > [@](#): > > **Although it is not clear from appellant’s motion to which pair of jeans he is referring, we assume that the pair of jeans at issue is a pair that Richard Reem, a forensic serologist for the FBI, testified about during appellant’s trial. Reem testified that he analyzed a pair of appellant’s bloodstained blue jeans and a blood sample taken from one of appellant’s two murder victims, Katherine Thompson. Dinkins, 849 S.W.2d at 337. Based on the sequence of enzymes in Thompson’s blood sample, Reem determined that the blood on appellant’s pants was consistent with Thompson’s blood type.** It could be tested by better DNA means now, but it was certainly tested, and testified to, at trial. A prior test doesn’t completely forclose the propriety of new testing if the defendant meets the other requirements. And, now we’re back to square one with posters ascribing motives that don’t exist. Classy. Now be a good boy, **eris** and put on your skirt and letter sweater too. It’s time for senior pictures. ---
**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, 7:13pm UTC](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736/179 "2002-11-20T19:13:20Z")
I think you’re missing the point there, Hamlet. When the court said “He failed to specifically address the issue of whether at the time of appellant’s trial, the type of DNA testing necessary to test appellant’s jeans was capable of providing probative results,” it was referring to the following statutory prerequisite: > [@](#): > > (b) The motion may request forensic DNA testing only of evidence . . . that was secured in relation to the offense that is the basis of the challenged conviction and was in the possession of the state during the trial of the offense, but: > > (1) was not previously subjected to DNA testing: > > (A) because DNA testing was: > > (i) not available; or > > (ii) available, but not technologically capable of providing probative results; or > > (B) through no fault of the convicted person, for reasons that are of a nature such that the interests of justice require DNA testing; or > > (2) although previously subjected to DNA testing, can be subjected to testing with newer testing techniques that provide a reasonable likelihood of results that are more accurate and probative than the results of the previous test. If adequate testing was available at the time of trial, the convicted person loses as a matter of law. It doesn’t matter how definitively the requested testing might establish his actual innocence; if he could have tested it at trial, he’s fucked. Only if you pass those criteria do you even get to the consideration of whether the requested testing could establish the defendant’s innocence. ---
**Author:** ![IzzyR](https://avatars.discourse-cdn.com/v4/letter/i/2acd7d/32.png) [@IzzyR](https://boards.straightdope.com/u/IzzyR)\ **Post date:** [November 20, 2002, 7:17pm UTC](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736/180 "2002-11-20T19:17:47Z")
But wouldn’t that apply to _all_ evidence? Can you introduce new evidence after the trial is over if it was freely available during the trial? I thought you could not (& would have to make a case for ineffective counsel to get the verdict overturned on that basis). [Previous page](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736.md?page=8) [Next page](https://boards.straightdope.com/t/why-dont-prosecutors-give-a-shit-what-the-truth-is-death-penalty-dna-rant/136736.md?page=10)