Robert Nelson was freed from prison last month, after serving years for a rape he maintained he didn’t commit. After testing his DNA, the Kansas City Police Department’s crime lab determined that DNA tests excluded Nelson from the evidence recovered from the rape, according to the Associated Press.
Nelson had been convicted 25 years earlier, but the DNA testing wasn’t available then. When DNA testing did become available, defendants were not made aware of new technology, or offered testing. Nelson first sought to have his DNA tested in 2009, but a judge rejected his motion because he did not meet statutory criteria. Nelson tried again two years later with no success. Acting on his own, from his prison cell, without a lawyer, Nelson did not have the legal wherewithal to file the motion himself.
In late 2011, court clerk Sharon Snyder did something that made all the difference. She gave Nelson’s sister a copy of a similar motion filed in another case. Using that motion as a reference, Nelson succeeded in securing DNA testing on his third try, in February 2012. Only then was he assigned a lawyer. And more than a year later, that DNA test secured Nelson’s freedom.
Days later, Snyder was fired for violating court rules about assisting a party in a case. As Conor Friedersdorf points out in the Atlantic, Snyder emerged relatively unscathed, retaining her pension and having planned to retire soon anyway.
But the real travesty is that, had Snyder not violated rules and risked her termination, Nelson might have never been exonerated. There are several reasons for this. One is that he had scant access to a lawyer until he successfully made a motion on his own that he was not equipped to make, with no guidance or even template for moving forward. Another is that many prosecutors are vigorous opponents to testing that could provide definitive, scientific evidence about a case. DNA evidence exonerating one person is not only evidence that person is innocent; it is also evidence that the real perpetrator may still be at large. The third, glaring, hallmark of injustice is that defendants do not have a right to test their own DNA, even at their own expense. All of this means that inmates are remaining in jail unnecessarily — and death row inmates remain on death row, even as new evidence continues to emerge about the significant flaws in several other types of forensic evidence.
The U.S. Supreme Court ruled last term that states may keep searchable databases with DNA of those arrested but not convicted, for use by prosecutors. Whether or not this is a violation of Fourth Amendment, the most lamentable element of this decision is that law enforcers now have more access to suspects’ DNA than defendants have to their own.
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