Prosecutors Deny Defense Attorneys Access to National DNA Database, Leaving Innocent in Prison

By Matt Clarke

DNA testing has become a well-recognized and powerful method for freeing prisoners wrongly convicted of crimes they did not commit. But its full potential is not being realized because some prosecutors resist giving defense attorneys access to the national DNA database, leaving the innocent in prison.

Joseph A. Buffey, a West Virginia state prisoner, was 19 when he was arrested for robbing and raping the 83-year-old mother of a police officer. He had been burglarizing a nearby Salvation Army building, but despite having confessed to the rape and robbery has claimed innocence for over a decade.

Buffey said he confessed at the insistence of his attorney who told him he would get a light sentence. Instead, he was sentenced to 70 years in prison.

Buffey got the Innocence Project interested in his case. They discovered that there was DNA collected from the crime scene, but it took another 18 months of litigation to get the DNA tested against the Combined DNA Index System (CODIS), the national DNA database. That test showed that DNA from the crime scene matched another man's DNA, not Buffey's.

The delaying tactics by the state in Buffey's case are typical of what is happening nationwide.

"There is incredible exculpatory power in the databases that the government has spent hundreds of millions of dollars on over the years," said senior Innocence Project lawyer Nina Morrison, who is working on Buffey's case. "But law enforcement runs the databases, and even when you go to court to force their hand, they throw up roadblocks. And judges say they don't have the power to force them."

"This is a national problem, a huge and recurring one," said Steven Benjamin, president of the National Association of Criminal Defense Lawyers. "Juries expect you to be able to prove that if your client didn't do it, who did? Science doesn’t belong to the government, but they act like it does. Unless the defense is given access to this information, the playing field remains uneven in criminal justice."

Most states have laws permitting post-conviction DNA testing, but only those in Colorado, Georgia, Illinois, Maryland, Mississippi, New York, North Carolina, Ohio, and Texas give defendants’ access to CODIS. Many legal experts, including some prosecutors, believe that defense attorneys’ access to CODIS should be expanded.

"You'd think there would be a federal rule or a statute in every state creating the clear obligation to do a CODIS search in any case where the defense wants it," opined University of Virginia law professor Brandon L. Garrett.

Meanwhile, although the victim in Buffey's case said there was a single attacker, the prosecutor is maintaining that he still must be guilty.

"Raping an 83-year-old lady is about as bad as it gets. Why would someone plead guilty and say they were sorry several months later if they really had no participation in it? The fact that someone else's DNA has been identified only tells us that someone else took part. Buffey could have penetrated without ejaculation," said assistant prosecutor David J. Romano.

But one could also see the man whose DNA was identified, another state prisoner with a history of attacking women, as a potential witness. It would be simple enough to ask him if Buffey took part in the crime. Either way, Buffey might have been spared 18-plus extra months of wrongful imprisonment if Romano had allowed him timely access to CODIS instead of trying to "save the conviction" using improbable pet theories.

Source: The New York Times

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