Why don't prosecutors give a shit what the truth is? (death penalty/ DNA rant)

[Shodan]

Bricker -

If there are over seven hundred people with beyond-a-reasonable-doubt guilty verdicts, subsequently exonerated by DNA evidence, do you contend that only they were wrongfully convicted?

Reread the post. 712 is the total number of executions in the US since the Supreme Court re-instated the death penalty.

The number of people executed in the US since re-instatement of the DP, who were exonerated by DNA testing, is zero.

All of the executed were guilty. That is my contention, based on the fact that their guilt was established beyond any reasonable doubt, and that the appeals process failed to refute that.

If you are contending that any or all of them were innocent, let’s see your evidence.

The OP is a case in point. Coleman’s guilt was established beyond a reasonable doubt. After his guilt was established, new evidence (in the form of DNA testing available at the time) was examined. It made it still clearer that he was guilty. Some of the cites presented on this thread referred to him as if he were innocent. No credible evidence of such an assumption exists.

Exoneration of those who were not executed is proof that the appeals process is working.

If you are arguing against the death penalty because one of the 712 were actually innocent, let’s see why you think he was. The prosecution met its burden of proof, and the appeals process was unable to refute that, or even to raise reasonable doubt.

The ball is in your court.

In other words, you’re convinced that no innocent person has ever been executed, despite the fact that many innocent people were convicted and sentenced to death.

Because of the fact that the truly innocent had their sentences overturned on appeal.

What about cases in which there was no DNA evidence to begin with?

Coleman’s was such a case. He was convicted with no DNA testing done. After his conviction, the appeals process included DNA testing, and his guilt was re-affirmed. Coleman was guilty. More DNA testing, if it is correctly done and the results not misrepresented, would be further proof of this.

What’s the basis for your belief that the system failed only in the cases we’ve discovered?

All the evidence presented at trial which established guilt beyond a reasonable doubt, and which survived the appeals process.

Regards,
Shodan

[Bricker]

Shodan:

The thirteenth stroke of a clock is not only wrong itself, but casts grave doubt upon the accuracy of the preceeding twelve.

Let’s consider two hypothetical cases, both capital murder cases with eyewitness testimony, with convictions obtained in 1985.

One of the cases also involved blood, with was matched to the accused’s blood type. The other case did not involve any genetic forensic evidence.

Now we fast-forward to 1995. The appeals process permits the blood convict to petition for DNA testing. The DNA test exonerates him, and he is released.

The second case, however, has no genetic evidence. You are convinced that this means he’s actually guilty, and in support of this, you point to the trial and appeals, which established guilt beyond a reasonable doubt.

But the blood case also had that, and yet the accused was ultimately found innocent – because his case had, by luck, a way to test for DNA.

Now, for any given case, I agree that the odds are high that the verdict represents actual guilt. But given that we know at least some cases were wrongly decided, what is the basis for your confidence that all cases that were wrongly decided have now been discovered, or that only cases with genetic material were wrongly decided?

You are suggesting that EVERY SINGLE CASE not involving genetic material was correctly decided. I’m suggesting that defies statistics and common sense.

What’s the basis for your belief that the system failed only in the cases we’ve discovered?

All the evidence presented at trial which established guilt beyond a reasonable doubt, and which survived the appeals process.

But that was true for the people that were ultimately released, too – before they perfected yet another appeal, and had DNA tested. Their cases were distinguishable because they had genetic material to test – do you believe ONLY THOSE cases were wrong?

• Rick

[minty_green]

*Originally posted by Shodan *
All of the executed were guilty. That is my contention, based on the fact that their guilt was established beyond any reasonable doubt, and that the appeals process failed to refute that.

That’s one of the dumbest arguments I’ve ever heard. The appeals process is not designed to “refute” a goddamn thing. It exists simply to determine whether (a) legal errors occurred, and (b) whether the evidence as presented was sufficient for a reasonable jury to conclude that the accused was guilty. Once those two, extremely limited inquiries are complete, the appeals court’s task is finished. They don’t let you do new DNA tests, they don’t consider new evidence, they don’t even allow the accused to conduct new examinations of existing evidence. There is basically no legal mechanism in existence to determine whether a person is actually innocent once that person has been convicted.

A lack of evidence achieved only through closing one’s eyes is not evidence of anything, except astounding ignorance.

[Hamlet]

*Originally posted by minty green *
** They don’t let you do new DNA tests, they don’t consider new evidence, they don’t even allow the accused to conduct new examinations of existing evidence. There is basically no legal mechanism in existence to determine whether a person is actually innocent once that person has been convicted.

A lack of evidence achieved only through closing one’s eyes is not evidence of anything, except astounding ignorance. **

Maybe we’re just arguing semantics, but the “appellate process” includes post-conviction petitions and federal habeus, both of which allow for argument regarding newly discovered evidence and actual innocence. For example, in the Coleman case, he was allowed, during the “appellate process” to have the evidence DNA tested by the PCR method back in the early 90’s. He was allowed to raise issues of actual innocence, and his “newly discovered evidence” were discussed in the appellate courts.

If you are simply referring to the original appeal, yes, most of them concern themselves with whether the defendant got a fair trial. But Coleman, and most everyone else, still have their claims of actual innocence considered by the appellate courts. To say these things aren’t considered by appellate courts, or in post conviction petition hearings is misleading.

[minty_green]

No, it’s not just semantics. The procedural barriers I describe very often apply to habeas corpus proceedings as well, and are backed up by all kinds of difficult or impossible to overcome presumptions in favor of the conviction. When the court presumes the acccused is guilty, you’d better hope the judge or judges are feeling generous, because they can always hide behind the presumption in denying further inquiry into the accused’s guilt or innocence. Witness the Texas Court of Criminal Appeals decision I described earlier, which basically says that a convicted person has to prove that the DNA test results would be capable of completely exonerating him before he can obtain DNA testing.

[Hamlet]

Well, no shit there is a presumption that the guy is guilty on the appellate level. He was fucking convicted after all.

[Caffeine.addict]

Originally posted by zwalddOK, I may be wrong here, but during a trial, doesn’t it happen that the prosecutor sidebars with the judge and says ‘This witness has no bearing on this case’. Or ‘that evidence is not relevant’. Or maybe the defending attorney makes a statement that impugns the character of a state witness and the prosecutor objects? And the judge has to decide if the law allows the evidence the prosecutor is objecting to to be suppressed or not? Or is it only the defense attorney that objects and sidebars to block testimony and evidence.

Both sides are permitted to object to a witness. Oftentimes it is because what the witness has to say may not be relevant to the matter at hand. As to whether you can attack the character of the witness, you can just so long as it is with regards to whether they are lying or not. This is very different from saying that prosecutors are suppressing evidence.

[Shodan]

There is basically no legal mechanism in existence to determine whether a person is actually innocent once that person has been convicted.

IANAL, but this statement is obviously false. What about all the people already cited who were released from death row after DNA exonerated them?

You do your case no good at all with these kinds of exaggerations.

Regards,
Shodan

[minty_green]

*Originally posted by Hamlet *
**Well, no shit there is a presumption that the guy is guilty on the appellate level. He was fucking convicted after all. **

Hey, thanks for the info. I had no idea. :rolleyes:

If, however, you read my post again, you will not that I’m complaining about using that presumption as a basis to prevent further investigation of innocence claims. When the courts won’t even let you investigate or present new evidence, they make it impossible to overcome the presumption.

Attorney: Your honor, we would like to perform DNA testing on the bloody handkerchief to determine whether the blood matches the petitioner’s.

Court: Denied. The petitioner is presumed guilty, and somebody else’s DNA would not conclusively prove his innocence.

[minty_green]

*Originally posted by Shodan *
IANAL, but this statement is obviously false. What about all the people already cited who were released from death row after DNA exonerated them?

Very, very few have been released by the courts on grounds of actual innocence. More often, the court finds legal errors or police/prosecutorial misconduct that requires a retrial, and the prosecutors decline to pursue it further. In such circumstances, an actually innocent person is released not because of his innocence, but for legal reasons

The standard for review of an actual innocence claim is extremely high: If this evidence had been presented at trial, could a reasonable jury still have convicted the defendant. Basically, that requires evidence so strong, so indisputable, so unimpeachable, that it negates all contrary evidence and leaves no unanswered questions. That’s not a failsafe way of preventing people who are truly innocent from slipping into the execution chamber–especially when the system also effectively prevents many claims of actual innocence from being adequately investigated.

[Bricker]

What minty green’s hypothetical colloquy highlights is a major burden for an accused to overcome, under certain circumstances.

If the original theory of the cases made the blood a collateral issue, then I can see the denial of testing. For example, if the bloody handkerchief was found at the crime scene, and the blood type matched both the victim’s and the accused, the prosecution probably didn’t argue too strongly that it was a key piece of evidence.

But if the prosecution’s case depended on the blood at trial, it has always seem perverted that, on appeal (PCR appeal, not direct, Hamlet) the Commonwealth can now argue that even if the blood doesn’t match, it’s not probative. They used the matching blood to sell the jury – they should be forced to adopt that same theory of the case on appeal.

I wouldn’t have described the appellate prcess as completely without an avenue to explore actual innocence… but as I complained earlier, there are plenty of ways to procedurally default on an issue at trial, such that it can never be considered on appeal. Certainly the appeals process is much less concerned about fact, and far more focused on error, than the trial stage.

However, Shodan, you rightly characterize minty green’s sweeping generalization as such, seemingly without recalling your own sweeping generalization above that not one innocent person could possibly ever have been executed.

Pot? Hi, it’s Kettle here. You’re black.

• Rick

[Hamlet]

The Texas statute says:

**
(a) A convicting court may order forensic DNA testing under this chapter only if:

(1) the court finds that:

(A) the evidence:

(i) still exists and is in a condition making DNA testing possible; and
(ii) has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with, replaced, or altered in any material respect; and

(B) identity was or is an issue in the case; and

(2) the convicted person establishes by a preponderance of the evidence that:
(A) a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing; and
(B) the request for the proposed DNA testing is not made to unreasonably delay the execution of sentence or administration of justice.

**

The Defendant only has to show by a preponderance of the evidence that “a reasonable probability exists that the person would not have been convicted if exculpatory results had been obtained through DNA testing.” Kutzner, 75 S.W.3d 427. The defendant does not have to show that he is innocent, but only that, if the tests were exculpatory, he wouldn’t have been convicted. The legislature intended to release innocent persons, not allow defendant’s to “muddy the waters.”

To expand your example:

Attorney: Your honor, we would like to perform DNA testing on the bloody handkerchief to determine whether the blood matches the petitioner’s.

Court: How about you show me how the DNA testing, if it comes back with exculpatory results, would help exonerate your client?

Attorney: Well, let me get back to you.

[Hamlet]

Bricker, I agree that it is a much tougher call when the handkerchief in question was used by the State in proving its case. Although we are now far afield from the OP, I would also agree that some of the procedural bars on appeal may have unfortunate results. However, I think that in a vast majority of the cases, a defendant who is not guilty but stands convicted, will have his arguments heard at some point. Especially in death penalty cases. But none of that changes minty’s misleading statements regarding what is considered on appealls.

[minty_green]

On November 9, 2001, the convicting court conducted a hearing on appellant’s Chapter 64 [DNA] motion. In support of his motion, appellant introduced a report from Dr. Robert Benjamin, an associate professor of biological sciences at the University of North Texas. In his report, Dr. Benjamin explained that a number of items exist for which DNA testing “should still be possible and for which successful typing would provide probative information with regard to [appellant’s] case.” These items are a bloody dish rag, unidentified “assorted swabs,” bloody eyeglasses, three carpet samples, and appellant’s pants. Appellant also argued that since he satisfied the requirements of Article 64.01, n3 the court [*641] should order DNA testing. Appellant explained that once he obtained the test results, he would then be able to determine whether he could argue to the court that he met the requirements of Article 64.03(a)(2)(A). The convicting court denied appellant’s motion. . . .

Appellant has failed to meet the requirements of Article 64.01. . . . While in his report Dr. Benjamin made general statements about the type of DNA testing that was available at the time of appellant’s trial, 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. . . .

Appellant further claims that the convicting court erred in requiring him to show that a reasonable probability exists that he would not have been prosecuted if exculpatory results had been obtained through DNA testing. Specifically, appellant argues that “an interpretive analysis of [Article 64.03(a)(2)(A)] lends more credence to the idea that a convicted person should be allowed the testing before required to make this argument [or] an assumption that the State would be fair and not prosecute a defendant in light of exculpatory evidence… .”

Appellant ignores the plain language of Article 64.03. 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. A trial court is never required to grant a convicted person’s request for testing absent such a showing.

Because appellant has failed to satisfy the requirements of Chapter 64, we hold that the convicting court did not erroneously deny his request for DNA testing. Accordingly, the judgment of the convicting court is affirmed.

Dinkins v. State, 84 S.W.3d 639 (Tex. Crim App. 2002). End result: Fuck you, you don’t get to test shit. Prepare to fry.

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 that favorable DNA results would prove his innocence. n20 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 legislative history of Chapter 64 makes it very clear that the Legislature intended the foregoing language from Article 64.03(a)(2)(A) to mean a reasonable probability exists that exculpatory DNA tests will prove a convicted person’s innocence. This does not, as some opponents of Chapter 64 suggest, require convicted persons to prove their innocence before a convicting court may order DNA testing under Article 64.03. It merely requires convicted persons to show a reasonable probability exists that exculpatory DNA tests would prove their innocence.

Kutzner v. State, 75 S.W.3d 427. End result: Fuck you, we don’t care what the evidence might show. Prepare to fry.

Patrick (hereinafter referred to as “applicant”) was convicted of capital murder and sentenced to death. We affirmed his conviction on direct appeal and denied relief on his application for writ of habeas corpus. Applicant subsequently applied under Chapter 64 for DNA testing of spermatozoa samples. These samples were in the possession of the District Attorney’s office. The trial court conducted a hearing on the motion on August 31, 2001 and issued its order on September 21, 2001. In its order, the trial court found that “the defendant has failed to establish by a preponderance of the evidence that there exists a reasonable probability that the defendant would not have been prosecuted or convicted if exculpatory results would have been obtained through DNA testing of the spermatozoa samples.” As a result, the trial court stated in its order that “The Court therefore denies the defendant’s request for DNA testing of the spermatozoa samples at State expense under Chapter 64 of the Code of Criminal Procedure.” Nevertheless, because applicant represented that he was willing to pay for the testing, the trial court ordered testing at applicant’s expense. Although there is overwhelming evidence that applicant murdered Mrs. Redd, Applicant wants the testing, he argues, because he cannot remember the murder. Applicant’s attorney concedes that, “We all know what the results are likely to be,” and that the test, “is unlikely to help [his] client.” . . .

The State is entitled to a writ of mandamus from this Court ordering the trial court to vacate its order.

State v. Patrick, 2002 Tex. Crim. App. LEXIS 148 (Tex. Crim. App. Sept. 11, 2002). End result: Fuck you, we don’t care what the evidence might show. Prepare to fry.

Shall I go on?

[erislover]

These are the kind of things, minty, I wish spam mails were made of. Everyone should read these decisions (with links!).

Gawd…

[Hamlet]

Please, do go on. But, if I could be so bold, perhaps you could include the parts of the opinions where the appellate court actually explains it’s position.

Dinkins:

Check out Dinkins v. State, 894 S.W.2d 330 (1995) where they lay out the case against the defendant. It’s pretty overwhelming. And the parts of the DNA testing appellate opinion that you left out include

** First, it should be noted that we are not entirely
clear as to what evidence appellant wants tested. While in his original motion he requested testing of a pair of
jeans, the report by Dr. Benjamin, which was submitted by appellant in support of his motion, also listed a
number of other items. Appellant has never explained the discrepancy between his original motion and Dr.
Benjamin’s report.
Moreover, although in his motion appellant claimed that the jeans were never submitted for DNA testing and
that means of testing that were available during his trial are now outdated, he did not provide statements of
fact in support of these claims. Dr. Benjamin’s report likewise failed to provide facts in support of appellant’s
claims. …

While in his report Dr. Benjamin made general statements about the type of DNA testing that was available at
the time of appellant’s trial, 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.
Because appellant has failed to provide facts in support of his motion, we cannot say that the convicting court
erroneously determined that appellant failed to show the existence of evidence containing biological material
that should be subjected to DNA testing.

**

Reading both opinions, one can surmise that the jeans Dinkins wanted tested were those that the police recovered in the search of his home. If the blood stains were the victims, fine. If they weren’t, big effin’ deal. It in no way indicates that Dinkins didn’t shoot these two people in cold blood. I could find no mention of anything else in the report of Dr. Benjamin that were tied to the case. Finally, the appellate court said the defense had not presented enough facts in support of the motion. If he has them, he can get them to it. But his pleadings were severely lacking.

I’ll check out the other two and get back to you.

[Hamlet]

Kutzner:

*It will be helpful to an understanding of our disposition of these points to set out the evidence presented at
appellant’s trial. Appellant was convicted in September 1997 of a capital murder that was committed in
January 1996. See 436 Kutzner, 994 S.W.2d at 182-84. Identity was the main contested issue at
appellant’s 1997 trial. See id. The evidence from appellant’s trial showed that the victim’s body was discovered
in her real estate business office. See id. The victim’s wrists were bound with red electrical wire. The victim’s
neck and ankles were bound with plastic tie wraps. See id. A computer keyboard and a videocassette
recorder were missing from the victim’s office. See id.
Police seized red electrical wire from appellant’s home and from appellant’s repossessed truck. This red
electrical wire bore the same manufacturer’s number as that on the red electrical wire which bound the
victim’s wrists. See id. Evidence was presented at trial that this wire was manufactured in New York and
was not common in the area where the offense occurred. See id.
The police also seized plastic tie wraps from appellant’s driveway, from his garage and from his repossessed
truck. See id. These tie wraps were similar to those found around the victim’s neck and ankles. See id. An
FBI toolmark examiner determined that the tie wraps around the victim’s neck and ankles had been cut with
tin snips that were recovered from appellant’s repossessed truck. See id.
The police seized the victim’s videocassette recorder from the residence of a person named Roy Landry who
had known appellant for many years and who had worked for appellant in appellant’s air conditioning repair
business. See id. Landry testified at appellant’s trial that he received the videocassette recorder and the
victim’s computer keyboard from appellant. See id. Landry testified that appellant subsequently retrieved the
computer keyboard. See id. Another witness testified that appellant brought her the computer keyboard. See
id. Another witness testified that appellant stated to him several times that tie wraps would be good things to
use to kill someone. See id. The State also introduced into evidence a note that was found in the victim’s real
estate office. This note was in the victim’s handwriting and it contained appellant’s alias, appellant’s wife’s
nickname, appellant’s phone number, appellant’s street address and a reference to two big dogs. The evidence
showed that appellant owned two big dogs. During the punishment phase of appellant’s trial, the State
presented evidence that, about two and a half weeks before this offense, appellant murdered another woman
under circumstances strikingly similar to those present in this case. See id.
Appellant was also convicted and sentenced to death for this other murder, and we affirmed this conviction
and sentence on direct appeal in an unpublished opinion. See Kutzner v. State, slip op. at 33 (Tex.Cr.App.
No. 72,805, delivered January 13, 1999) (nonpublished) (“Kutzner II”). Overwhelming circumstantial evidence
establishes appellant’s guilt in Kutzner II. See Kutzner II, slip op. at 2-7. Among other things, the evidence
from Kutzner II shows that the victim’s legs, neck and wrists were bound with plastic tie wraps similar to the
ones used in this case. See Kutzner II, slip op. at 3.

Once again, you cite a case where the evidence against the defendant was overwhelming, and the DNA testing requested would have little to no effect on the outcome of the case. As was argued:

*n light of the overwhelming evidence of Appellant’s guilt, DNA results from the victim’s fingernail scrapings
would only be significant if Appellant’s DNA were found since an accidental scratch could put someone else’s
DNA under the victim’s fingernails. DNA results from the hairs found would also only be significant if a
match were made to Appellant because the hairs were found in a common area of a real estate office and
anyone’s hair could be on the floor.

Again, the DNA testing would NOT be exculpatory.

I found myself agreeing more with the concurring opinion, where Justices Keasler and Keller stated:

That phrase, to me, unambiguously requires the convicted person to show that he would not have been prosecuted or convicted. Nothing in the plain language of the statute refers to actual innocence

However, even these Justices admit that

Kutzner fails to show a reasonable probability that he would not have been prosecuted or convicted even if exculpatory results were obtained through DNA testing."

Next stop, Patrick

[Hamlet]

The Patrick case you cite is even more laughable.

From the opinion:

Although there is overwhelming evidence that applicant murdered Mrs. Redd, Applicant wants the testing, he argues, because he cannot remember the murder. Applicant’s attorney concedes that, “We all know what the results are likely to be,” and that the test, "is unlikely to help [his] client."

Here’s a quick summary of the evidence against Patrick:

**Applicant and real-party-in-interest, Jesse Joe Patrick, was convicted of capital murder for the
burglary-murder of Mrs. Nina Redd, an eighty-year old widow. The evidence at trial showed that the victim’s
“[t]hroat had been slashed, she had several fractured ribs, and there were bruises to her head, arms, chest,
legs, and vaginal canal.” [FN24] Extensive evidence linked applicant to the crime. Investigators matched
applicant’s palm print to a palm print taken from the victim’s forced-open bathroom window. They found a
rock stained with the victim’s blood in applicant’s yard, just two houses away from the victim’s home. Inside
applicant’s home, they found his sock, also stained with Mrs. Redd’s blood. Hair samples found at the scene
were consistent with applicant’s hair; applicant’s teeth marks matched those on the victim’s arm; and the knife
used to kill Mrs. Redd was identified as appellee’s. Furthermore, money was taken from Mrs. Redd’s home
and evidence showed that appellee had bought a car for $850 cash on the day of the murder. When he was
arrested in Mississippi, appellee gave three different and inconsistent explanations for how he obtained the
money that he used to buy the car and leave the state. [FN25] He also gave a written confession stating that
he tried to have sexual intercourse with the victim before killing her but could not get an erection. [FN26]
Additionally, the medical examiner found spermatozoa in the victim’s vaginal canal. Apparently, no DNA
testing of that material was made before trial. It is the DNA testing of this evidence that is the subject of the
present mandamus action.

**

and even more damning:

She [lower court judge] found that appellee had failed to prove that “a reasonable probability exists that the person would not have been prosecuted or convicted if exculpatory results had been
obtained through DNA testing.” No one quarrels with this ruling.

Once again, you cite a case where the defendant is clearly guilty, and the DNA testing would have little or no influence on the case.

There are some standards, as I posted earlier, before courts will allow defendants to conduct DNA testing. I agree with the concurring opinion in Kutzner that perhaps the standard as interepreted is a bit too high, but you gotta get me better cases to convince me that there is any injustice being done in these cases.

[minty_green]

Spare me. I cited and quoted those opinions because they demonstrate the extreme difficulty involved in obtaining post-conviction access and testing of evidence. All you’re doing is showing that the defendants didn’t meet their burden to obtain such access and testing. My point is that the burden is too damn high.

erl, I’ll try to pull the cases off the TCCA web site later, if you’d like.

[Hamlet]

eris, Like you, I wish everyone would read these opinions, in their entirety. Maybe then we could discuss it logically.