Make DNA Testing Universal and Repeal the 21-Day Rule

(Published in the Culpeper News, 8 June 00)

I took him four months, but Governor Gilmore has now decided to grant a request for DNA testing that could for the first time release a wrongly convicted Virginian who spent time on death row, namely Earl Washington. At the same time, Texas Governor George W. Bush – whom many accuse of denying DNA testing in cases of dubious guilt and going ahead with executions – has for the first time blocked an execution until testing can be done.

“Any time DNA evidence used in this context can be relevant as to the guilt or innocence of a person on death row we need to use it,” Bush said in a dramatic reversal of position. I would go further: Any time DNA evidence can help show the guilt or innocence of anyone accused of or already convicted of any crime we need to use it.

DNA has freed dozens of people – almost half of whom had to threaten or file lawsuits before they were allowed the testing. DNA has helped convict countless individuals. And DNA has prevented thousands of wrongly suspected people from being brought to trial. These facts suggest to Barry Scheck, Peter Neufeld, and Jim Dwyer, authors of “Actual Innocence,” that thousands of innocent people are in American prisons.

For most convicts there is no biological evidence to test. Occasionally another surprise means of freeing the wrongly convicted arrives, as with the current scandal in Los Angeles where a former police officer has revealed extensive corruption.

But as a general rule it is those with biological evidence who have a rare shot at exoneration. They need to be given this shot. And if the evidence is found to be possibly exculpatory, these people need to be granted either new trials or their freedom.

Then the mistakes that led to their convictions need to be learned from. And the real criminals need to be looked for.

In Virginia, once you’re convicted and 21 days go by, nothing – not conclusive DNA evidence, not a thousand eyewitneses – gives you the right to a new trial. This is the stiffest restriction in any state. Failed attempts to lengthen or eliminate the 21-day rule are an annual event in the General Assembly. Maybe one of these years something will change.

Eric M. Freedman, a lawyer who has been working for Earl Washington for many years, has drawn certain conclusions from the experience. “Virginia has absolutely the worst system in the U.S. for the provision of counsel,” he claims. “At the time Earl was facing execution, it provided no lawyers at all for state habeas corpus. The state habeas corpus petition put together by Washington’s lawyers working pro bono is 1,200 pages. Virginia law expected that this mentally retarded man perform this feat on his own in prison. Issues not raised in state habeas corpus cannot be raised at the federal level.”

Virginia provides poor defendants with lawyers for trials, though it pays these lawyers less for their work than does any other state. When a defendant loses and wants to appeal his case, he is provided a lawyer only for the first appeal, what is called the direct appeal. Until recently there have been no lawyers provided for habeas corpus.

At the time that Freedman was recruited to work on Washington’s case, his New York law firm of Paul, Weiss was working on a class-action suit on behalf of all Virginia death-row inmates to win the right to court-appointed counsel for state habeas corpus. When Freedman heard of Washington, his execution was scheduled for a week away. Freedman said he went without sleep to save him.

The U.S. Supreme Court ruled 5-4 against the plaintiffs in the class-action suit, with Justice Kennedy writing that he could not rule in their favor because no one had yet been denied access to a court. The reason for this is that lawyers have consistently stepped in to do the work for free. Freedman called it a Catch-22. “If someone was denied access, he’d be dead.”

“There are several problems in Virginia,” Freedman concluded. “When it’s a crime with blacks and whites, it’s assumed it has to be a sex crime. There are incompetent lawyers at trial. And there have been no lawyers for habeas corpus.”

Virginia has a higher percentage of people behind bars than 31 other states, 640 for every 100,000 residents. Only Texas has executed more people than Virginia in recent decades.

In 62 cases of innocents freed examined in “Actual Innocence,” 15 involved false confessions, 15 involved false witness testimony, 17 involved bad lawyering, 21 involved defective or fraudulent science, 26 involved prosecutorial misconduct, and 31 involved police misconduct.

As a remedy for false confessions, the authors recommend: “One simple rule: Videotape, or at least audiotape, all interrogations so there is an objective record. Alaska has such legislation, and it has long been the rule in the United Kingdom.”

Such precautions might serve as a check on attitudes like that expressed by U.S. Attorney General Edwin Meese in 1986: “The thing is, you don’t have many suspects who are innocent of a crime. That’s contradictory. If a person is innocent of a crime, then he is not a suspect.”

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