Jury still out on DNA testing

By Jennifer Autrey and Rebeca Rodriguez

July 3, 2000 Web posted at: 2:01 PM EDT (1801 GMT)

In this story: McGinn case a catalyst "What is the price of justice?" RELATED STORIES

FORT WORTH, Texas (Fort Worth Star Telegram) -- Science has been very good to A.B. Butler Jr., who spent 17 years behind bars for a crime he didn't commit.

Butler was sentenced to 99 years for kidnap and rape after a 25-year-old victim picked him from a police lineup. On probation for a rape, he was called to appear at the station after the woman identified his mug shot in police files.

"I probably looked guilty," he said. "I was the only one there not smiling."

For 13 years, Butler tried to persuade the district attorney's office in Tyler to allow the DNA testing that he knew would clear him, a process that didn't exist when he was convicted in 1983. He also wrote to the 12th District Court of Appeals in Tyler and the Texas Court of Criminal Appeals, the state's highest criminal court.

	More from Fort Worth Star Telegram
	Star-Telegram and other media outlets poll finds most think car talk is risky www.up.downs: DotComGuy marks 6 months of journey in Dallas Home after the storm: Arlington family reclaims house after months of repairs An ailing system: Texas home health care struggles to meet demand July 4th parade to boast new flavors in Arlington

"He was turned down every time," said Randy Schaffer, Butler's Houston attorney.

Not until Schaffer bombarded Smith County District Attorney Jack Skeen with news clippings quoting attorneys from Skeen's office on the merits of DNA testing did the prosecutor relent and support the testing.

The results proved Butler's innocence in the Tyler rape, and Skeen helped him win a pardon from Gov. George W. Bush.

Butler's case illustrates both the promise and the pitfalls of post-conviction DNA testing, which has moved to the front of the debate over the state's criminal justice system, thanks to improved technology and last month's historic reprieve for convicted ax murderer Ricky Nolen McGinn.

DNA testing offers the best chance to definitively resolve questions about guilt. It has freed eight men from Death Row nationwide since 1971, according to the Death Penalty Information Center, a Washington, D.C., group that opposes capital punishment.

But in Texas and 47 other states, the precision of science is blunted by an ad hoc procedure in which decisions to allow new testing are left to the discretion of judges and often require the district attorney's support.

"We need to have a system that is both fairly and equitably applied," said Jeremy Warren, a spokesman for state Sen. Rodney Ellis, D-Houston. "If DNA evidence can prove that someone on death row is there wrongly, we should not hide behind technicalities."

Only New York and Illinois have statutes that set procedures for post-conviction DNA testing. Ellis and Rep. Scott Hochberg, also a Houston Democrat, say they will propose legislation next year that would add Texas to the list.

Their proposals would require trial judges to order DNA testing for inmates in certain narrow circumstances, regardless of how long they've been imprisoned, where they are in the appeals process or how much money they have. Hochberg wants to go further, requiring judges to order a new trial if the DNA results are favorable to the inmate.

No legislation has been drafted, but the propositions have drawn the support of several state appellate attorneys. Reaction elsewhere generally has been more cautious.

Michael McCormick, presiding judge for the Texas Court of Criminal Appeals, said he believes that any judge will authorize testing if available evidence would resolve questions about the case.

"What bothers me is suddenly there's this inherent distrust of the judiciary," said McCormick, a Republican who has served on the court since 1989. "Suddenly, we're blaming everybody we can blame."

Dudley Sharp, death penalty researcher for Justice For All, said the national victims rights group is awaiting more details. Linda Edwards, a spokesman for Bush, said the governor is, too.

Bush raised the issue of legislation after supporting McGinn's reprieve, the first granted since he took office in 1995.

"This case certainly tells me that we need to look very seriously in Texas as to whether or not we need legislation on a number of fronts, with regard to DNA, with regard to the appeals process," Bush said.

Post-conviction DNA testing has become more common thanks to recent improvements that make it possible to obtain results from smaller and smaller pieces of evidence. A trace of blood that was too small to provide conclusive proof even 10 years ago can now determine a person's guilt or innocence.

But DNA evidence is relevant in probably no more than 20 percent of death row cases, said Bill Allison, a private practice attorney in Austin and an adjunct law professor at the University of Texas at Austin School of Law.

"You're going to have some other cases with compelling innocence claims where there is no biological evidence," he said.

Questions are more commonly raised about allegations of unethical or incompetent attorneys, shaky witness testimony and use of jailhouse snitches, defense attorneys said.

"There are many cases where there are lingering doubts of guilt, but where we can't find an answer by putting something into a test tube and shaking it up," said Rob Owen, an Austin appellate attorney.

Ellis was acting governor June 1 when, with Bush's blessing, he granted McGinn a 30-day reprieve for DNA testing.

Ricky Nolen McGinn

McGinn might not be the ideal catalyst for a legislative effort: His case has gone through 17 appellate reviews and he never asked for the improved testing until less than a month before his execution date, in his third petition to the Court of Criminal Appeals.

But his case nevertheless gained national attention, due primarily to Bush's presidential campaign and the involvement of DNA expert Barry Scheck.

Lawyers for McGinn argued that he deserved access to improved DNA testing that was not available when he was sentenced in 1995.

McGinn was convicted for the 1993 sexual assault and murder of his 12-year-old stepdaughter, who was struck in the head several times with an ax. At the time of the trial, less-sophisticated DNA analysis of semen and hair taken from the girl could only determine that McGinn couldn't be excluded as the rapist.

His lawyers argued that more precise testing is available that could prove the semen and hair weren't McGinn's. If they can prove that McGinn didn't commit the assault, he would be removed from death row.

With no automatic process available for testing, McGinn's attorneys filed a motion with state District Judge Stephen Ellis of Brownwood for McGinn's DNA to be retested using the more sophisticated methods.

The judge ruled for McGinn's request, but the 18-member Texas Board of Pardons and Paroles voted 11-7 against a reprieve. McGinn's appeals to the Court of Criminal Appeals were denied, as were his federal petitions before the federal 5th Circuit Court of Appeals and the U.S. Supreme Court.

Ellis granted the reprieve less than a half-hour before the scheduled execution.

"Anytime DNA evidence is deemed to be relevant in the guilt or innocence of a person on death row, we need to use it," Bush said after recommending the reprieve.

When planning their legislation, Ellis and Hochberg sought assistance from Scheck, who helped defend O.J. Simpson and who co-founded the Innocence Project at the Cardozo Law School at Yeshiva University in New York.

Their statutes most likely would resemble the New York and Illinois laws.

In New York, for example, defendants are required to show that if the results of the requested DNA testing had been admitted at trial, the verdict would probably have been more favorable to the defendant. Neither state has a time limit on filing a motion for DNA testing.

In Texas, DNA tests are fair game during the original trial. But after a defendant is sentenced, new evidence that could have affected the outcome of the trial must be produced within 30 days after sentencing.

After that time limit runs out, an inmate can bring up trial errors in a writ of habeas corpus, which orders the government holding someone in custody to justify the detention.

But experts argue over whether trial judges have the authority to order DNA testing for a habeas petition, and many defense attorneys say they've found few judges willing to do so without the consent of the prosecutors.

Rick Wetzel, executive administrator for the Court of Criminal Appeals, said there is no central database that tracks the number of requests for post-conviction DNA testing.

Ellis' legislation will allow DNA testing in cases where the suspect's identity was an issue at trial, Warren said. To ensure that no tampering occurs, the evidence must have been preserved through a chain of custody, he said.

The proposed legislation would apply to all cases, not just capital murder, a crucial inclusion because inmates in non-capital cases aren't entitled to an attorney and must finance their own appeal and DNA testing.

DNA is the acronym for deoxyribonucleic acid, a material in every cell in human bodies, which forms the building block of heredity. It is found in blood, saliva, hair, semen and other bodily material.

The first known instance of DNA testing being used to solve a criminal identification case was in 1986. The process was swiftly admitted to all United States criminal courts.

Because of continuing improvements, any DNA evidence now found at crime scenes is usually enough to test, said Edward Blake, a DNA expert at Forensic Science Associates, a Richland, Calif.-based consulting firm. In some cases, it can say with 99.5 percent accuracy whether someone is guilty or innocent of a crime.

DNA results have led to the withdrawal of more than 60 convictions in such crimes as murder, rape and sodomy, according to a September 1999 study issued by the attorney general's National Commission on the Future of DNA Evidence.

Hochberg said his office estimates that each DNA test would cost between $2,000 and $4,000, an amount he calls inexpensive.

"Obviously, it's not going to apply to many cases, and what is the price of justice?" Hochberg said. "What is the price of having the wrong person behind bars, which implies the right person is still out in the public?"

But even defense attorneys who favor the proposed legislation believe that inmates will try to abuse the law.

Roy Greenwood, an Austin appellate attorney, said he suspects that's what happened in McGinn's case. The re-testing "just slows down the train" for McGinn's execution, Greenwood said.

He predicted that the test will prove that McGinn committed the sexual assault, a result that he said will only make it more difficult for innocent inmates seeking relief.

Richard Alley, McGinn's attorney, realizes the risk. He said he explained to his client that the testing would likely say once and for all whether McGinn is guilty. Other legal and procedural possibilities that could slow his execution would then evaporate.

"It's the ultimate all or nothing," Alley said.

DNA to be retested during Texas killer's stay of execution

AR, Jonesboro, KAIT AR, Little Rock, KATV LA, Lafayette, KATC LA, Monroe, KNOE LA, Shreveport, KSLA OK, Oklahoma City, KOCO OK, Oklahoma City, KOKH OK, Tulsa, KOTV   TX, Abilene, KTXS TX, Amarillo, KFDA TX, Austin, KEYE TX, Austin, KXAN TX, Dallas KTVT TX, Dallas, WFAA TX, Harlingen-Weslaco, KRGV TX, Houston, KHOU TX, Houston, KPRC   TX, Lubbock, KAMC TX, San Antonio, KABB TX, San Antonio, KMOL TX, Tyler, KLTV TX, Waco, KWTX TX, Wichita Falls, KAUZ TX, Wichita Falls, KSWO