Gradually, resistance to postconviction DNA testing is abating, as prisoners who maintain their innocence are granted new hearings or exonerated because advances in forensic and DNA testing can now back up their claims.
Arkansas is about to have its first such case – and it's a big, high-profile one.
The case of the so-called West Memphis Three – a cause célèbre for 17 years, ever since three teens were convicted of murdering three young boys – is heading back to court, upon order of the Arkansas Supreme Court.
For Arkansas, it's the first test of the language of an amended 2005 statute, which not only granted postconviction access to DNA testing for people who claim innocence, but also opened the door for consideration of any evidence that presents a reasonable probability that the person making the motion "did not commit the offense." The amended statute also allows the prosecution to introduce additional evidence.
The state Supreme Court's decision early this month doesn't mean the three prisoners – Damien Echols, who sits on death row, Jason Baldwin, and Jesse Misskelley Jr. – are innocent. It doesn't necessarily mean they'll get a new trial. But it does mean that a lower court judge must hold a hearing to consider evidence that may cast doubt on their guilt.
When the case was tried in 1993, forensic DNA evidence was introduced, but the defense argued that it was tainted or crudely tested. None of it, however, linked the West Memphis Three to the crime. More recent tests on forensic evidence from the case have turned up various strands of DNA, but none that matched any of the West Memphis Three.
"This case is unique in that the DNA doesn't exonerate the West Memphis Three but provides more evidence toward possible innocence," says Felicia Epps, a professor at the William H. Bowen School of Law at the University of Arkansas at Little Rock. "It could be enough for a trial judge to say that there is enough compelling evidence that would result in an acquittal."
Arkansas has never exonerated a prisoner on the basis of DNA evidence or, as in the West Memphis Three case, the lack of it, according to the Innocence Project, a national organization dedicated to exonerating wrongfully convicted people through DNA testing and reform of the criminal justice system.
It's already happened, though, in 34 other states, where 261 people have been exonerated through DNA evidence since 1989.
Forty-eight states have DNA laws similar to the one Arkansas enacted in 2005. Alaska passed a DNA access law earlier this year. Only Oklahoma and Massachusetts do not have laws that allow for postconviction DNA testing.
In Massachusetts, prosecutors have fought such legislation, arguing that DNA requests should be considered on a case-by-case basis. A new law would overload the legal system and state crime labs, opponents say.
Last year, however, the Boston Bar Association called for such a law to be enacted after a 20-person task force created a road map to reduce wrongful convictions.
"It's quite common in our experience to find prosecutors who stonewall the most persuasive evidence and cling to a conviction," says Rob Warden, executive director for Northwestern University's Center on Wrongful Convictions. "Once you have been convicted of a crime, the standard of proof is infinitely higher to acquit you than it was to convict you in the first place."
Groups like Northwestern's and the Innocence Project have cast a spotlight on efforts to reform the judicial system. Earlier this year, members of Congress introduced bipartisan legislation to create a commission to study the causes of wrongful convictions and to recommend strategies for reshaping the criminal justice system. There is a similar bill in the US Senate. The American Bar Association is also pushing for reform.
According to the website False Confessions, police-induced false confessions are among the leading causes of wrongful convictions, especially in murder cases.
In the West Memphis Three case, Mr. Misskelley, who was later diagnosed as mentally handicapped, confessed to the crime and accused Mr. Echols and Mr. Baldwin. He later recanted that confession.
A similar high-profile case has been made into the feature film "Conviction," about Betty Anne Waters, whose brother Kenny was convicted of murdering a Massachusetts woman in 1980. In a quest to prove her brother's innocence, Ms. Waters attended law school and fought to win his release after 18 years in prison.
Retrials can be complex and costly, say legal experts, for both the state and the defendant. A judge will likely hear the West Memphis Three evidentiary hearing early next year and decide if new trials should be granted. The state attorney general's office will have to defend the convictions.
The West Memphis Three case has attracted high-profile attention over the past 17 years. HBO has produced two documentaries about it. Pearl Jam singer Eddie Vedder has been lobbying for a new trial since 1994, and actor Johnny Depp is a West Memphis Three advocate. He appeared in Little Rock this summer for a benefit concert along with Vedder and Dixie Chicks singer Natalie Maines.
The recent Arkansas Supreme Court ruling could open the door for similar cases, but defendants, especially the 42 on the state's death row, will need lawyers, DNA testing, and money for both. Not every case is fortunate enough to have celebrity backing that helps to pay for new hearings, says Ms. Epps.
"People in prison who don't have celebrity connections and money don't have a prayer," she says. "If they hadn't had that documentary at the first, it would be over. The West Memphis Three would be just more people in prison claiming they didn't do it."