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Join the conversation! There are now 29 comments on this chapter's page 7. …And Then. What are your thoughts?
  1. Pi is as horrified as we might hope in the second panel. Is this reaction typical of prosecutors, in such a situation?

    • Most cops and prosecutors are sane, decent human beings. They’d be just as horrified as anyone else at the wrong person being locked up, leaving the real culprit free to hurt more people.

      There are exceptions. I wish I could say they’re incredibly rare.

    • Wait, Pi (the woman with red hair) wasn’t the prosecutor. The prosecutor was a guy with brown hair. While I get she’s horrified, she had nothing to do with this.

      • I think Ashley is implying that some prosecutors might want to protect the prosecutor’s office from embarassment/lawsuits, and might be more concerned with that than with blatant miscarriage of justices. Even if they weren’t involved in the original case.

        Pi, being pretty awesome, isn’t doing that.

  2. Alexius Wyman says

    What is his DNA supposed to match, exactly? Did the rape—God forbid—result in pregnancy?

      • Before DNA? They wouldn’t have taken a rape kit. If they had had DNA evidence available, it would have come up in the trial.

        Yeah, there’s a kid.

        • Rape kits have been around since 1963. They have varied over the years, but generally include stuff that could later be tested for DNA (fluids, hairs, etc.). DNA analysis got way better in the late ’90s, leading to, among other things, a significant number of exonerations.

          • If it wasn’t for the comment below the pic, I would have thought Pi WAS the kid, considering she’s the least formally person dressed there and they’re talking about DNA tests.

    • Details probably vary from State to State and certainly in other countries, but in the United States most jurisdictions of the police are required to keep in permanent storage evidence from crimes. In this case I would guess that it was either some of her clothing that had traces of semen that was what they tested. In 1985 they would likely only have tested for blood type matching, a quick check online shows that DNA checks were first recognized as valid in 1986-7 but I remember from the 90’s lawyers that would argue the results. In addition the testing methods have kept getting better as time goes on. Residue that was hopelessly contaminated or too small to use in 1987, can often be tested now. One downside of course is that every method destroys the sample tested so if the test comes up as “inconclusive ” it was wasted.

  3. Steve says

    Does the state have to let the wrongfully convicted out? From some admittedly brief checking on line I have found several reference to proof of innocence not being sufficient for relief under habeas corpus.

  4. Those who have been wrongfully convicted MUST be released. They have recourse to file a lawsuit if they are not released promptly upon review of the new evidence submission creating a situation in which it is determined they were wrongfully convicted.
    The references you found were most likely about compensation. Financial relief is by no means a guarantee in a case of wrongful conviction. In general, the people involved in the case, including the prosecutor, were doing the best they could (or at least there is a reasonable doubt they were doing a bad job resulting in the wrongful conviction.) Unless evidence can be provided of wrong-doing, the people and organizations involved were following the law and trying to uphold justice. It would be a breach of justice to carry out a punishment against those people, or against the citizenry in general, for something where, when the case was tried, the technology or methods for obtaining crucial evidence were not available… and in all other aspects the evidence seemed to indicate the wrong person. Note that evidence that clears a person from the crime entirely (they were in a different location or something) is different from evidence that they did not commit an act directly (the may not have been the person who killed X, but they might have still been there and been an accomplice.)
    At least, that is my understanding of what is involved.

    As to the case shown, the evidence does create a reasonable doubt the man involved was the rapist, however other evidence if available may still prove him guilty of other charges. It is possible he is entirely not guilty, but it is equally possible that he had a hand in some criminal action that night (we the audience of the comic lack sufficient evidence to determine that!) It is even possible he held her while the other person raped her, resulting in her asserting that he was the one. Thus a full review of all evidence would be in order at this time, including the DNA evidence that is newly available. Then actions should be taken, depending upon what is revealed.

    • “(or at least there is a reasonable doubt they were doing a bad job resulting in the wrongful conviction.)”

      Hang on! “Reasonable doubt” is the standard of proof for criminal court; compensation for things such as this would most likely happen in /civil/ court, unless I’m mistaken.

      So while you’re right that there will almost always be reasonable doubt to prevent the prosecutor from going to jail for participating in a wrongful conviction, that reasonable doubt does /not/ prevent compensation to the wrongfully convicted; /that/ just requires “more likely than not”, which is a significantly lower standard of proof.

      It’s still by no means guaranteed, but it’s easier than you’re making it out to be.

      • Also, speaking practically, hindsight bias, guilt, and settlements to avoid actually going to court make compensation for wrongful convictions more common than even /that/ makes it out to be.

    • I don’t think that’s the question. I think it’s, “How many people who are in jail are actually innocent?”. I think things like the Innocence Project put the idea that there’s a whole lot of innocent people in jail for crimes they didn’t commit. To be honest, one innocent person in jail is too many, but I’m sure the vast, vast, vast majority of people behind bars actually belong there.

  5. I remember seeing a documentary about that exact same case (few details differ, the guy was first seen next to a cop car). Where the dna was found on a handbag. What was the name of the guy? only remember he was black

  6. Kyle Nilson says

    Sorry for the book, but it’s something I wrote in 2009 that’s relevant to this explicit scenario. I hope the legal situation has improved in the past 5 years.

    Before DNA evidence was available, very few avenues were available to challenge a guilty verdict. Of the first two-hundred to be exonerated by DNA evidence, thirty-two claimed constitutional violations due to innocence, a tactic used unsuccessfully in Herrera v. Collins (Garrett, 2008, p. 112). No petitioner has ever received relief using this constitutional argument of innocence (Garrett, p. 112), though Chief Justice Rehnquist hypothetically argued that a “truly persuasive post-trial demonstration of ‘actual innocence’ would render a defendant’s execution unconstitutional” (Herrera v. Collins, 1993, p. 392). Sixty exonerees attempted to claim that “there was not sufficient evidence presented during their trial to convict them,” an argument introduced in Jackson v. Virginia (Garrett, p. 112). To be successful, these claims must show that, when viewing the evidence in the light most favorable to the prosecution, no rational juror could find that the prosecution proved the essential elements of the crime; only one attempt of those sixty was upheld on appeal (Garrett, p. 112). Despite a large number of procedural claims, only 4% successfully challenged eyewitness testimony, only 8% defeated forensic evidence, exactly one individual obtained a reversal due to informant testimony, and no exonerees were successful in challenging self-confessions, even with evidence of coercion (Garrett, p. 78). A full seventy percent of exonerees with written appellate decisions received no relief of any kind during their post-conviction proceedings; they had their requests and claims dismissed at every stage (Garrett, p. 106).
    Even after testing became possible, obstructions to DNA testing were common as no laws yet existed dictating the rights of convicts (Garrett, 2008, p. 116). Before legislation was enacted, the proper preservation of DNA evidence after trial was uncommon despite its potential as exculpatory evidence (Garrett, p. 117). Twenty of the first two-hundred exonerees brought claims regarding the destruction of evidence after trial, but none obtained a reversal (Garrett, p. 96). Further, the Supreme Court ruled in 1988 that there was no constitutional mandate that DNA evidence must be preserved; “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law” (Arizona v. Youngblood, 1988, p. 51). If DNA evidence was stored properly, courts would routinely deny motions requesting its use (Garrett, p. 117). Sixteen of the first two-hundred exonerees were blocked by judges from testing evidence with new PCR methods, some repeatedly (Garrett, p. 117). Relief from the Supreme Court was also rare, as the court summarily denied thirty petitions for certiorari filed by innocent men (Garrett, p. 95).
    Convicts who managed to prove their innocence with DNA testing still faced difficulties in overturning their guilty verdicts due to resistance within the judicial system. Leonard McSherry, who produced exclusionary RFLP DNA testing evidence before his sentencing, was denied a new trial in 1988; even after confirming his innocence in 1991 with more modern PCR testing, the California appellate court cited “overwhelming” evidence of guilt based on faulty eyewitness testimony (Garrett, 2008, p. 120). It was only after a third test identified the real perpetrator in 2001 that McSherry was exonerated (Garrett, p. 120). Kirk Bloodsworth’s DNA exoneration in 1992, after a conviction in 1985 with five separate eyewitness testimonies and footprint evidence, left prosecutors malcontent and of the opinion that his reversal was a technicality (Goldberg, Neufeld, Scheck, & Morrison, 2005, p. 11). Only a hard hit in the CODIS database a decade later assuaged their objections (Goldberg et al., p. 11). David Goldberg in his amicus brief on behalf of the Innocence Project cited “pockets of resistance” amongst prosecutors as a source of “new procedural barriers to hearings on the significance of exculpatory DNA results” (Goldberg et al., p. 22). The fact that forty-one of the first two-hundred exonerees received a pardon from their state executives “because they lacked any available judicial form for relief despite proving innocence” lends some credence to this theory (Garrett, p. 120).
    Even though forty-six states now have legislation clarifying post-convictional access to DNA evidence and testing, several of these laws have restrictions placed on convicts. A common requirement is the demonstration of materiality, that the evidence obtained would conclusively determine innocence or guilt. The federal statute as well as those of the states of California, Florida, New Hampshire, and South Carolina also require a sworn statement that the applicant is innocent (District Attorney’s Office v. Osborne, 2009, n.p.). Several states require the requested testing to “have been technologically impossible at trial” (District Attorney’s Office v. Osborne, n.p.). Further, other states such as Utah specifically deny applicants who decline DNA testing at trial for tactical reasons, a tactic used by Osborne at his trial (District Attorney’s Office v. Osborne, n.p.). The remaining four states, though they may not have laws regarding access to DNA post-conviction, have case law precedent that governs its acquisition. In Alaska, individuals can challenge their conviction when “there exists evidence of material facts, not presented and heard by the court, that requires vacation of the conviction or sentence in the interest of justice;” defendants are granted additional rights to DNA testing in Alaska if their convictions were based primarily on questionable eyewitness testimony (District Attorney’s Office v. Osborne, n.p.). Given that courts use these restrictions to deny motions requesting DNA testing, convicts are often forced to use existing legal arguments or craft new constitutional claims (Garrett, 2008, p. 117).
    The Supreme Court’s decision in 2009, District Attorney’s Office v. Osborne, further removes convicts’ rights by diminishing their legal standing to sue, by restricting them to legal avenues codified by the legislature, and by denying a federal audience to all arguments except often-unsuccessful habeas corpus claims. More importantly, the Supreme Court stated that it will not consider the constitutionality of DNA testing, as doing so would make the judiciary responsible for policymaking, not the legislature. Osborne was convicted for the 1993 kidnapping, assault, and rape of a woman in Alaska using primitive DNA evidence (District Attorney’s Office v. Osborne, 2009, n.p.). At trial, his lawyer, believing Osborne to be guilty, strategically turned down more advanced RFLP testing as the primitive evidence used by the prosecutor was inclusive to 16% of all African-American individuals (District Attorney’s Office v. Osborne, n.p.). After being turned down for post-conviction RFLP testing by the Alaska Court of Appeals because he waived his right to discovery at trial, Osborne sued in federal court claiming “the due process clause and other constitutional provisions gave him a constitutional right to access the DNA evidence for…STR testing (at his own expense)” (District Attorney’s Office v. Osborne, n.p.). Despite gaining legal relief from the District Court, which concluded that “there does exist, under the unique and specific facts presented, a very limited constitutional right to the testing sought” (as cited in District Attorney’s Office v. Osborne, n.p.), the Supreme Court reversed, stating that “to suddenly constitutionalize this area would short-circuit what has been a prompt and considered legislative response by Congress and the States” (District Attorney’s Office v. Osborne, n.p.).
    The court ruled that, because Osborne had already been found guilty, he “has only a limited liberty interest in postconviction relief” and thus only has legal protections against the most egregious due process violations (District Attorney’s Office v. Osborne, 2009, n.p.). Chief Justice Roberts clarifies these limitations by requiring the relief offered at the state level to “offend some fundamental principle of justice or transgress any recognized principle of fundamental fairness in operation” before consideration will be granted by the Supreme Court (District Attorney’s Office v. Osborne, n.p.). Further, the Supreme Court remanded Osborne for sidestepping the state process to obtain DNA testing, despite Osborne being denied access by the Alaska Court of Appeals; Chief Justice Roberts, considering the strong possibility that Osborne will be denied relief, states “it may be for a perfectly adequate reason, just as the federal statute and all state statutes impose conditions and limits on access to DNA evidence” (District Attorney’s Office v. Osborne, n.p.). If an individual were to exhaust state-provided legal avenues, the Supreme Court ruled that convicts must seek “a writ of habeas corpus…on the grounds that he is in custody in violation of the Constitution” (District Attorney’s Office v. Osborne, n.p.) even though no convicts have ever received relief using such a Herrera-like claim (Garrett, 2008, p. 112). The Supreme Court explicitly overturns the notion of a right to DNA testing, as “establishing a freestanding right to access DNA evidence for testing would force us to act as policymakers;” the court argues that “there is no reason to suppose that [federal courts] would be any better than those of state courts and legislatures, and good reason to suspect the opposite” (District Attorney’s Office v. Osborne, n.p.). Finally, Chief Justice Roberts asks federal courts to presume that state criminal procedures will be adequate to deal with new types of evidence, even if “that system, like any human endeavor, cannot be perfect” (District Attorney’s Office v. Osborne, n.p.).

    Arizona v. Youngblood, 488 U.S. 51 (1988).
    District Attorney’s Office for the Third Judicial District v. Osborne, 577 U.S. ____ (2009).
    Garrett, B. L. (2008). Judging innocence. Columbia Law Review, 108(1), 55-142.
    Goldberg, D., Neufeld, P. J., Scheck, B. C., & Morrison, N. R. (2005). Brief for the innocence project, inc., as amicus curiae supporting petitioner. The Innocence Project, Inc.
    Herrera v. Collins, 506 U.S. 390 (1993).
    Russell, P. J. (2006). iGenetics: A Mendelian approach. San Francisco: Benjamin Cummings.
    Sessions, W. S. (2009, May 27). Letter: DNA testing. The New York Times, p. A26 Retrieved from
    Turman, K. M. (2001). Understanding DNA evidence: A guide for victim service providers. OVC Bulletin. U.S. Department of Justice, Office of Justice Programs, Office for Victims of Crime. Retrieved from

    • Thank you for this. Not only was it fascinating and valuable, but it was a striking reminder to how citations really assert the expertise of the writer. A thousand comments could argue back and forth about “the facts” as vaguely-remembered hearsay, but when I see citations like this, I’m inclined to trust that you have done research and actually know what you’re talking about.

  7. Masterofbones says

    I can’t agree with you due to drug laws. The majority *may* deserve to be there, but even that would be a close thing.

  8. Ann Onymous says

    What if William had been sentenced to death instead of given a life sentence??? An innocent man would have been killed!! :(
    And that’s an argument against the death penalty, folks.

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