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Postconviction DNA Testing: An International Impact

Tue, 04/01/2008 - 4:00am
Chris Asplen

To point out the obviousthe application of DNA technology to postconviction appeals has compelled more than a few changes to the U.S. criminal justice system. Seven years ago, only two states allowed for the possibility of applying newly discovered DNA evidence to appellate cases. Today, the vast majority of states recognize the power of DNA to determine actual innocence years after other forensic evidence has proven flawed. DNA’s impact on statutes of limitation for postconviction cases has led prosecutors to demand a similar change in the statutes that limit the amount of time available to charge cases. Numerous states have instituted commissions to examine the nature, extent, and preventability of wrongful convictions. The National Academy of Sciences and the National Institute of Justice have both established study groups that examine the quality of forensic evidence in the wake of wrongful convictionsconvictions based on evidence less compelling and less accurate than DNA. Postconvic-tion DNA testing has also charged the debate over capital punishment. Moratoriums on executions in Illinois and New Jersey, as well as debates in eleven state legislatures throughout the country recognize the power of DNA to identify critical flaws in the criminal justice system.

Importantly though, the impact of DNA’s ability to prove actual innocence in the face of a previous and valid conviction, has been recognized elsewhere in the world. This is true even in countries where DNA technology is not yet firmly established as an effective crime fighting tool complete with extensive databases.

India, for example, has recognized the impact of DNA-based exonerations as it moves toward passing legislation to establish an offender database. In remarks advocating for the passage of database laws, Dr. Seyed Hasnain, Director of the Center for DNA Fingerprinting and Diagnostics, and Member Secretary of the Indian DNA Profiling Advisory Council, stated, “The bill will allow us to store, retrieve, and use a DNA fingerprinting database of convicts and criminals. It is the need of the hour because the finality of court judgments pertaining to criminal cases is being questioned.”

Fewer places, however, better illustrate the international impact of forensic DNA testing than the Philippines. I met Dr. Cora de Ungria in Zagreb, Croatia, at an international genetics meeting in 2002. She introduced herself as being from the Philippines and as having been awarded a several hundred thousand Euro grant for, of all things, postconviction DNA analysis. She had seen my presentation, which included postcoviction analysis, but she had also read the materials developed by the National Commission on the Future of DNA Evidence. I was shocked. While the postconviction application of DNA technology was becoming an acceptable use of the technology in the United States, Canada, and the United Kingdom, postconviction DNA testing was a relatively limited phenomenon.

Dr. de Ungria asked if I would agree to review some of the cases that she and her team at the University of the Philippines were considering for postconviction DNA analysis. They had developed a protocol for screening cases that included extensive interviews of death-row inmates in prisons, review of previous evidence, and analysis assistance by members of the Philippine Free Legal Assistance Group. Given the experience and work of the National Commission, Dr. de Ungria asked if I too would review the cases they had preliminarily selected. I happily agreed.

Ray De Villa was arrested on January 9, 1995 and charged with the rape of his 13-year-old niece. Upon conviction, he was sentenced to death, but that sentence was later reduced to life in prison. Appellate decisions simply affirmed the trial court’s decision and refused to order DNA testing. However, a review of the transcript and judge’s findings showed that the sole determining evidence relied on by the judge was the birth of a child, purportedly conceived by nature of the assault. This verdict was upheld in spite of evidence presented by the defense that the 76-year-old suffered a physical condition, making intercourse physically impossible. And, while certainly not dispositive of the issue, this was also a case in which the victim did not report the assault until confronted by her mother that the girl appeared to be gaining significant weight. Given the Court’s sole reliance on the birth of the child as the dispositive evidence of assault, this was clearly a case in which, if DNA paternity testing were performed and excluded the petitioner, that result would in fact be exonerative.

Similar to the experience of many petitioners in the U.S., one of the most difficult aspects of pursuing DNA analysis in a postconviction context in the Philippines, was the task of gaining access to the court to request testing. Given the final nature of De Villa’s sentence, there was no appellate mechanism for such analysis. De Villa’s lawyers were refused entry into the court process to even ask for permission to perform testing. They could not even get permission to get a sample of the petitioner’s blood for profiling. As such, Dr. de Ungria and her team were forced to rely on their own ingenuity, the support of their lawyers, and the strength of their scientific expertise.

The child’s family had refused to provide a sample of the child’s blood or saliva. Also, the prison refused to allow a sample to be taken from De Villa. Devising a well-supervised “spitting game” to get a saliva sample from the child at issue, the team was able to get a both a sample from the child, as well as samples from four other related children. The samples were preserved and stored in a manner that made the identity of the donors unknown to laboratory staff. A sample of the petitioner’s blood was also obtained, albeit without the assistance of the prison staff.

Subsequent analysis, based on the pertinent genetic markers, showed that De Villa could not have fathered any of the children whose samples were tested. In other words, the sole basis of the judge’s decision had been completely refuted by DNA analysis. However, De Villa’s team of lawyers and scientists still faced a barrier to entry into the appellate system.

Ultimately, De Villa’s attorneys sent a request for conditional parole to the President of the Philippines. Included in the packet forwarded to the President were the results of the DNA analysis performed by Dr. de Ungria and her team. That parole was subsequently granted.

Since Dr. de Ungria’s work, the Philippine Parliament has introduced DNA database legislation and the Supreme Court has issued rules for the admission of DNA profiling results in court. Perhaps more significant, however, is the fact that prior to the De Villa case, the Philippines had the largest number of death-qualifying offenses in the world. Earlier this year, President Arroyo officially signed into law legislation banning the death penalty altogether.

Chris Asplen is a former Assistant United States Attorney and local prosecutor specializing in the prosecution of sex crime and child abuse. He was also formerly the Executive Director of the National Commission on the Future of DNA Evidence for the U.S. Department of Justice and Director of the DNA Unit for the National District Attorneys Association. Currently, he consults with local, state, and foreign governments and law enforcement agencies on the use of forensic DNA technology. He is also a member of the Crime Victim Bar Association.

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