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The Unfair Use of DNA Booking the Code
Indicting DNA
by ELAINE CASSEL

Not content to solve the crimes being perpetrated in the here and now, New York City prosecutors announced that they will begin seeking indictments against DNA sequences found at crime scenes. Then, using tens of thousands of DNA samples taken from convicted felons, police will try to match the DNA of the convicts with DNA evidence taken from victims or crime scenes.

The stautute of limitations–the time within which felony prosecutions must be brought–is 10 years in New York. By seeking grand jury indictments against DNA, the statute of limitations will be "tolled," or stopped.

At this moment in history, people tend to think of DNA evidence as infallible. Like the fingerprints of yesterday, which current scientific evidence is proving to be less than the unassailable proof jurors have been led to believe it is, there is DNA evidence and there is DNA evidence. The "proof" that is DNA depends on the quality of the sample and the expertise–and honesty–of the scientists performing the analysis. Last year we learned of at least two state forensic examiners who testified falsely about DNA analyses (saying there was a match when they knew there was none) or who conducted and interpreted DNA analyses without the requisite degree of skill and training. Innocent people were convicted based on their flawed testimony. Some may have been executed.

But there is a bigger problem with this plan. There is a reason for statutes of limitations. The longer a case goes without being heard, the less likely victims and witnesses will have an accurate recall of alleged crimes. Memories will also have faded for the accused and their burden of producing evidence to disprove their guilt (I hope none of my readers persist in believing in the presumption of innocence) will be insurmountable. How well do you remember what you did on any day or night 10 years ago? Actually, the case could be brought to trial 20, 30, 40 years from now under the prosecutor’s plans.

Lawrence S. Goldman, the past president of the National Association of Criminal Defense Lawyers, said that with the passage of time, it becomes harder and harder to defend against criminal cases. "It is extremely difficult to defend a crime after many years," he said. "I would rather the city spend its efforts on people who are sitting in prison and make sure the DNA matches," he said.

Why is it that it is so hard to get a DNA test for a man on death row and so easy to get an indictment of a DNA sample? Because the American system of criminal injustice is far more interested in convicting someone– guilty or not–than in sparing the life of one person wrongfully convicted.

The criminal system is already a disgrace in its politically correct promotion of victim’s "rights" at the expense of defendants’ Constitutional guarantees and fairness. The Supreme Court has said repeatedly that it does not care that innocent people may be convicted. But that does not mean that states need to follow that despicable principle.

Some day, some state could do the right thing. It is not likely to be New York.

ELAINE CASSEL practices law in Virginia and the District of Columbia, teachers law and psychology, and follows the Bush regime’s dismantling of the Constitution at Civil Liberties Watch. She can be reached at: ecassel1@cox.net