Friday, January 25, 2013

Habeas CODIS

The famous legal concept habeas corpus is Latin for "produce the body". It comes from a time when the State would secret prisoners away without warrant or notification. Only the State knew if it was holding someone incommunicado. A writ of habeas corpus was a demand on the State to produce the prisoner.

I suggest that it is now time for the State to stop holding our country's CODIS system incommunicado.

CODIS stands for Combined DNA Index System. CODIS currently holds DNA profiles from more than 11 million Americans, most of whom have had a run-in with the law. The State is reasonably quick about interrogating the database when it wants to, usually to help solve crimes. When it comes to using the database to investigate possible wrongful convictions, however, the State prefers to hold the database incommunicado.

Only the State can submit DNA samples to CODIS for comparison, and it is loath to do so if the result might be embarrassing. The State therefore restricts access through a complex web of laws, rules, guidelines, court precedent, and sundry hoops. If an inmate dares attempt to jump through all the legal hoops, the State decides whether or not the inmate did no successfully. The State's scoring system is favorably biased towards the hoops.

In CODIS Interruptus, I described my concept of habeas CODIS, though I didn't name it until this post. Below I quote myself, without permission.
My understanding is that every Monday, the entire CODIS DNA profile database is compared against the DNA from new crimes. I argue that every Tuesday, the entire CODIS DNA profile database should be compared against the DNA from cold cases, and that every Wednesday the entire CODIS DNA profile database should be compared against every closed case.
Larry Swearingen, The Most Innocent Man on Death Row has tried on three occasions to have DNA from the evidence in his case profiled and compared against CODIS. In each case, the State refused. Once again, Swearingen has asked that DNA be tested. Once again, the State plans to resist. I quote from the Texas Tribune.
Bill Delmore, an assistant district attorney in Montgomery County, said there was no need for additional review by the Court of Criminal Appeals. He hadn't seen Swearingen’s DNA request, but Delmore said he would probably object to it.
Swearingen asks that the following items be tested.
  • Fingernail scrapings from victim Melissa Trotter
  • The leg from a pair of pantyhose used to strangle her
  • A pair of pantyhose, missing one leg, found in the trash outside Swearingen's apartment
  • Melissa Trotter's clothing
  • Cigarette butts found at the scene.
There is no mention in the article, or other similar articles, about the minute flakes of blood found under one of Trotter's fingernails. Those flakes were tested previously, before Swearingen's trial. The profile was compared against the DNA profile of Melissa Trotter herself, Larry Swearingen, and an individual who had allegedly been harassing Trotter. All three individuals were excluded. I don't believe that blood-flake DNA profile was ever run through CODIS. Even if it was, it should be checked again. And again. And again.

Almost all of the 11 million DNA profiles now in CODIS were added since Swearingen's trial.

Based on my irresistible concept of habeas CODIS, the blood-flake DNA profile would have been compared against the entire CODIS database each week, as it grew from less than 1/2 million profiles at the time of Swearingen's trial to more than 11 million profiles today. I suspect if they had done that, Swearingen would be walking free today, and the State of Texas wouldn't be making such fools of themselves.

While I don't know what's up with the blood flakes, I suspect the State has successfully resisted testing the other DNA evidence because Swearingen could not prove to the State's satisfaction that DNA would be found on that evidence. I'm unfortunately familiar with this issue, since I prepared Preston Hughes' Chapter 64 Motion for DNA Testing. (I prepared the motion because his attorney would not.) I suspect the State refused to test the evidence in Swearingen's case based (at least in part) on the requirements of the ever popular section 64.03(a)(1)(A)(i).
Article 64.03(a)(1)(A)(i) - DNA evidence still exists and is in a condition making DNA testing possible.
See how it works. In order to test for DNA, you have to convince the State (among other things) that DNA exists. The State will concede that DNA exists in most bodily fluids, such as blood or semen, but the State will not concede that there is necessarily DNA under fingernails, or on cigarette butts, or still clinging to clothing after two decades. Not only that, the State won't allow the defendant access to the material to test it himself, at his expense, to prove there is DNA on the evidence. It's theirs. It belongs to them somehow.

Under the legal concept of habeas CODIS, certain to be adopted soon nationwide, such silliness will not be allowed.

As I was writing this post, the Texas Tribune article was updated. I first read the article a week ago within hours of it being published. I reviewed it today, as I was preparing this post. Nothing had changed. I checked it again, before I finished this post, to confirm a point. I found then that the article had been updated.
Update, Friday, Jan. 25, 4:45 p.m.: A week after condemned inmate Larry Swearingen, who is set to be executed Feb. 27, requested DNA testing that he hopes will prove his innocence in the 1998 murder of a Conroe college student, his attorneys and state prosecutors are bickering over how and when the analysis should occur. 
Prosecutors agreed to the testing — a major development following many years of opposition to it — and asked for the evidence to be submitted to a lab and analyzed in an expedited manner. Their hope, they said, is to get the testing done quickly enough to prevent the delay of Swearingen's execution date, the fourth one he has faced since his conviction in 2000.
Read that last sentence again, a little more slowly.