DNA tests gain ground as legal defense

Even prosecutors are embracing the technology as a protection against wrongful imprisonment.

When Alan Crotzer emerged from a Tampa courthouse last week a free man, he became the fifth person in Florida and the 173rd nationwide to be cleared from a wrongful conviction by DNA testing.

But his exoneration after serving 24 years of a 130-year sentence for a crime he didn't commit is significant for another reason. It marks a possible turning point in how Florida prosecutors and lawmakers approach DNA testing. Prosecutors had fought earlier attempts to use DNA to prove someone's innocence, keeping one man behind bars three years after tests proved he couldn't have committed the crime that sent him to prison on a life sentence. In Mr. Crotzer's case, by contrast, they ultimately filed the legal motion that set him free, once defense lawyers convinced them he was innocent.

"The state has jumped onboard and finally started to realize that we can't just use DNA to convict, we have to also use DNA to free," says Jenny Greenberg, director of the Florida Innocence Initiative and one of Crotzer's lawyers.

Legal analysts say it is part of an evolution taking place across the country in which prosecutors and lawmakers who were once suspicious of the DNA challenges are now increasingly embracing the new technology as a backstop in the criminal justice system.

"There have been some very positive results and legislators have seen the benefits of proving an innocent person innocent," says Blake Harrison, who follows the issue at the National Conference of State Legislatures. "If anything, there is public pressure to expand the use of these types of post-conviction reevaluations because of the obvious public benefit to making sure that you have got the right person."

On Thursday, Arthur Mumphrey of Texas was freed after nearly 20 years in prison after new tests showed his DNA didn't match that found at a 1986 rape scene.

Of the 33 states that have passed laws establishing procedures for DNA testing, 12 have sunset provisions, which offer only limited time for DNA tests in cases where inmates have no more options for appeal. Such provisions were enacted in part out of concern five years ago that state courts might be flooded with appeals calling for expensive tests. But the flood hasn't happened, analysts say. In the meantime, the steady flow of exonerations has resulted in widespread public and political support for DNA testing.

Opponents of sunset provisions say states should never enact a deadline that would prevent innocent people from proving their innocence. Innocence Project lawyers say it often takes months or years to locate evidence, investigate a past crime, and prepare the necessary legal arguments needed to convince a judge that a DNA test should be administered.

When Florida passed its DNA law in 2001, legislators gave potential appellants until 2003 to file a request for testing. That deadline was extended to 2005, and then further extended to July 2006. Now a powerful state senator - and former prosecutor - is pushing for a new DNA law that removes any deadline. In addition, it calls for preservation of evidence for the entire length of someone's incarceration, thus preserving the possibility of future appeals as testing technologies improve.

State officials worry about the possible cost of evidence preservation. But proponents say the bill received unanimous support in its first state Senate committee hearing last week.

"What is driving it is the general public's horror at the difficulties that innocent people have had here in Florida to prove their innocence," says Ms. Greenberg. "Most people in Florida are appalled that innocent people might be in prison and they want something done about it."

The same trend is apparent across the country, says Kathy Swedlow, codirector of the Innocence Project at Thomas Cooley Law School in Lansing, Mich. Ms. Swedlow has studied post-conviction DNA laws nationwide - including laws with sunset provisions. She says many of the laws have expired at least once and been extended for a couple years as lawmakers study the issue. "The fear I had in early 2001 was that the statutes would expire and it would be over," she says. "That is not what we are seeing."

In Michigan, the deadline has been extended from January 2006 to January 2009. Louisiana moved its deadline from August 2005 to August 2007. And New Mexico has pushed its deadline from July 2002 to July 2006.

As more cases work their way through the system, lawmakers and prosecutors are becoming more supportive of the idea that DNA testing can help establish the truth about particular crimes, she says. "These statutes are a win-win. They help us identify finally if people are innocent," she says. "In some instances they help us learn that even with the crude technologies of 20 years ago, that police got the right guy."

Authorities in Virginia took the extraordinary step of conducting DNA testing to determine whether Roger Coleman had been wrongfully executed in 1992 for rape and murder. Death penalty opponents investigated the case and suggested he was innocent. But DNA test results showed he was, in fact, the killer.

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