CONGRESS BEGAN HEARINGS last week about reforming capital punishment and the pending “Innocence Protection” legislation. Witnesses testifying at Judiciary Committee Chairman Senator Leahy”s (D.VT.) hearing included Barry Scheck, whose Innocence Project has exonerated convicted persons by DNA testing. This is the same Barry Scheck who questioned the admissibility of the DNA evidence during the O.J. trial and helped acquit his client.
How is it that DNA evidence is not sufficient to convict someone, yet sufficient to
When Scheck was representing O.J., he not did question DNA evidence per se; what he questioned was the purity of the particular DNA evidence used during the OJ trial. He questioned the chain of custody procedures and the possibility that the evidence was contaminated. However, while exonerating people in various cases across the nation, not once has the purity of the DNA evidence used by Scheck ever been questioned.
What is interesting is that according to, Joshua Marquis, a District Attorney in the state of Washington, “Prosecutors across America spent the entire 1980s …to get DNA evidence accepted as scientific under the federal Daubert standard.” While, according to Marquis, defense attorneys like Scheck attempted to prevent it.
What is even more interesting is that Marquis claims that Scheck uses one California DNA lab. While the scientific expertise of this lab is unquestioned, the fact is that the lab is invested in Scheck's program. Its objectivity may be questionable. Objectivity has been a factor in excluding scientific evidence derived from law enforcement laboratories. Curiously objectivity is never an issue expressed by prosecutors or jurists when it is derived from defense attorney sources. Should not objectivity be a factor during the exoneration proceedings--much as it was during the OJ proceedings?
Marquis indicates that Scheck has objected to expanding DNA banks by taking samples from people convicted of varying levels of crime, and Scheck insists that DNA samples taken for the purposes of exoneration be eliminated. He has a valid reason for concern. One of Scheck’s clients who was exonerated was later convicted of a similar crime using the very same DNA evidence.
During the Leahy hearings, Illinois State Attorney Paul Logli reiterated Marquis’ claim that prosecutors have always wanted DNA evidence admitted. Logli said that prosecutors are the only attorneys in a proceeding who try to seek the truth rather than be a pure advocate.
However, I am not sure that the truth was something that was being sought by the Leahy committee. Nine people participated in the proceedings. Of the nine, three were capital punishment abolitionists: Scheck, Senator Feingold, and Professor Liebman of Columbia University, whose study condemned the use of capital punishment. Three people: Senators Specter and Leahy and Professor Larry Yackle seemed to want less capital punishment cases-and were vehemently critical of the one panel member who advocated capital punishment, George Mason University law professor William Otis. Only two people, Otis and Alabama Senator Jeffrey Sessions, were capital punishment advocates.
Otis, in his statement, said that the committee should ensure that they “protect the innocent.” He said that innocent people are killed all the time because of the legalities that limit the use of capital punishment. He called the current trend by those who oppose capital punishment “stealth abolition.” Otis went on to state that since one in ten murderers have a prior murder conviction and there are thirty-seven hundred people awaiting execution, then approximately three hundred innocent people have unnecessarily been killed.
No one responded to Otis assertions. However, he was criticized for some of his remarks. Specifically they criticized Otis’ use of “stealth abolition” and his criticism of Liebman’s study.
One of the perks for my membership in the American Society of Criminology (ASC) is that I receive the journal Criminology. The 2001 address of the ASC President concerned his study of wrongfully convicted persons. C. Ronald Huff published a study that there have been innocent people convicted of crimes. Of course, one of the first things Professor Huff mentioned is that “it is not possible to know with certainty what proportions of convictions are erroneous.” Huff then proceeds to present his findings as if he knows with certainty how many innocent people are convicted. Huff, using his certain uncertainty, issued a public policy statement to abolish capital punishment. Huff wants to substitute sentences of 20 years or 30 years or life without parole.
Unfortunately, like many abolitionists, Huff never takes into consideration how many innocent people those serving life sentences for murder have killed. Does Huff believe the lives of prison guards and others are acceptable sacrifices for his social engineering? I have attempted to fund a study to determine how many homicides convicted murderers commit. No one is interested.
I am not suggesting that Leahy’s committee or legislation is without merit. I do not believe anyone wants to execute an innocent person. That would be horrendous. However, I do not want a guilty person not executed or exonerated to murder again. That is horrendous as well.
To date there has been no proof that an innocent person has been executed. However, there is ample proof of guilty people murdering again. Indeed, it is almost routine. This is the greater risk.
According to a study by an Emory University professor each execution saves eighteen lives. And, according to Professor Otis, several hundred people have been murdered needlessly because of governmental acquittal. If eighteen lives are saved for each execution than the three thousand who have not been executed represent fifty four thousand lives at risk.
It is unfortunate that Leahy and other committee members criticized Professor Otis. He was the only person there who articulated the need to protect all innocent people.