Mimesis Law
19 January 2021

Fear Of Knowing: Why Not Test The DNA?

September 28, 2016 (Fault Lines) — I was standing at the podium in federal court arguing about the constitutionality of a provision of Ohio’s law on post-conviction DNA testing.

It’s not available for everyone.  You have to convince a judge to allow it, and there are standards, hoops to be jumped through, things to be shown.  It’s not enough to say, “Please.”  It’s not enough to raise the cash to do the testing so that the state won’t have to pay.  It’s tougher than that.  But it’s sometimes possible.

My client figured there was at least a chance that the DNA testing would show him to be innocent.  Which would be enough, if the judge bought it.  He didn’t, which meant an appeal.  In the ordinary case, the intermediate appellate court would hear the appeal.  Whoever lost there – client or state – could try to convince the Ohio Supreme Court to hear the appeal.

This wasn’t the ordinary case, though.  It was a capital case.  Which meant my client didn’t have a right to an appeal.  He couldn’t go to the court of appeals.  He had to go the Ohio Supreme Court and ask for permission to appeal.  He got less process, less procedural protection because he was not just convicted.  He was condemned.

And so I was standing at the podium in federal court arguing about the constitutionality of that provision of Ohio’s law on post-conviction DNA testing.

Sitting at the other side’s counsel table was an assistant attorney general who was going to argue that the double standard was just hunky dory.

Of course, none of this had to happen.  The prosecutor could have voluntarily turned the stuff over for testing.  When we got to federal court, the AG could have conceded the point.  Or turned the stuff over for testing.  But there we were.

I was standing at the podium in federal court arguing about the constitutionality of that provision of Ohio’s law on post-conviction DNA testing.

And I turned from the judge and looked at the assistant attorney general who was sitting at the other side’s counsel table.  And I said, “Look, we can simplify this now, just get it over with.”


Except decorum, so I didn’t really shout, and I restrained the urge to say “fucking.”

Frankly, there’s a boatload of stuff out there they refuse to test.  Not just in capital cases.  And not just in Ohio.  And I’ve been asking the same question for years.


Here’s what happens if you do.  There are three possibilities.

  1. It shows the guy is innocent.
  2. It shows the guy is guilty just like the jury said.
  3. It doesn’t show much of anything.

Oh, and

  1. It points to the actual bad guy – someone different.

And from that?

  • Door Number 1 means you let an innocent guy out of prison and go looking for the real bad guy.
  • Door Number 2 means you end the fussing about how he’s innocent and got railroaded.  Everyone can go on KNOWING HOW WELL THE SYSTEM WORKED.
  • Door Number 3 means we’re where we were before.
  • Door Number 4 means that maybe the crime gets properly solved.

Which of these should we fear learning?  Which are we better off not knowing?  Which leaves us worse off than we were?  Which thwarts justice (whatever that is)?

And yet.

Because the truth is that we should want to know.  We should demand to know.  ASAP.  Because if it’s wrong . . . .

Danny Brown spent 19 years in prison for the murder of Bobbie Russell before the DNA got tested.  Danny didn’t kill her.  Sherman Preston did.  Which was clear when the DNA test revealed, to the surprise of nobody who knew what Preston was doing back then, that it was he.

Danny got out, but the prosecutors won’t admit that he’s innocent.   They don’t think he is.  DNA be damned.  Still, he’s out, even if his name isn’t cleared.

Tim Cole wasn’t so lucky.  He died in prison in Texas in 1999.  He’d been there for some 14 years, convicted of the rape and robbery of a fellow student at Texas Tech.  Years later, and years after the actual rapist confessed, they finally tested the DNA.  Ooops.

Frank Lee Smith died of cancer on death row in Florida January 30, 2000.  He’d been there since his 1986 conviction for rape and murder.  On December 15, 2000, just less than 11 months after he died, the DNA came back and exonerated him.  And identified the true killer and rapist.

Nathaniel Epps was 66 when he died this month from liver cancer.  He was in prison, serving a 153 year sentence for the brutal rape and beating of a woman in Norfolk, Va.  His brother-in-law, Percell Warren, was serving 160 for the same crimes when he died in 2012.  They were convicted in 1996 based on questionable eyewitness ID and seriously questionable overheard confessions.  The DNA tests were done in 2013.  Warren was excluded.  No evidence that Epps was involved.

But there’s some third person’s DNA.

Inquiring minds want to know.  Those minds do not include the prosecutors in Virginia.  They say it’s all moot since Epps and Warren are dead.  And besides, DNA be damned.  The guys are guilty.  Because.

So there I was, standing at the podium in federal court arguing about the constitutionality of a provision of Ohio’s law on post-conviction DNA testing.

And I turned to the assistant attorney general sitting at the table for opposing counsel and asked.


Though I didn’t shout and didn’t say fucking in federal court.  And the assistant attorney general waved the question away.  And the DNA didn’t get tested – still hasn’t been – and the client was executed.

And the DNA still hasn’t been tested because what’s the point of finding out that, however remote the possibility, they may have killed the wrong guy.

And so the prosecutors hem and haw and dissemble and say no.  We’re not gonna do it.  Not gonna test the DNA.

And really, there’s only one possible reason why.


And, maybe more to the point, they don’t want the rest of us to know that the Emperor has no clothes.

5 Comments on this post.

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  • Eliot J CLingman
    28 September 2016 at 2:32 pm - Reply

    Perhaps its even more banal than “THEY DON’T WANT TO KNOW THAT THEY MAY HAVE FUCKED UP”. Perhaps the artificial common law style of “reasoning” has made them stupid… they perceive no principles of justice, only rules and distinctions which can be manipulated.

  • Jeff Gamso
    28 September 2016 at 2:59 pm - Reply

    At some level it’s always about winning. But there’s also a commitment to believing your own bullshit (a variation on confirmation bias). And really, who would want to learn that he’s responsible for putting a wholly innocent person in prison – perhaps on death row – while leaving some truly bad guy free to do more bad stuff. It’s much easier to self-deceive if you keep the possibility of error under wraps.

    That much said, the system thrives on fostering a belief in its near infallibility. If we test everything, we run the risk of discovering that the whole thing is a house of cards and having it implode.

  • Pedantic grammar police
    28 September 2016 at 6:38 pm - Reply

    If high quality DNA testing was part of the process, then people would trust it more. The problem is that government products are rarely high quality.

    • Jeff Gamso
      28 September 2016 at 8:54 pm - Reply

      Like all bits of evidence, DNA is deemed totally reliable when it accuses. It’s understood to be misleading or irrelevant when it tends to clear.

  • zoe
    1 October 2016 at 2:36 pm - Reply

    Not to be a stickler, but the picture used in the overhead appears to be a coomaisse blue stained PROTEIN electrophoresis gel, not a DNA gel (which typically have black bands that are more evenly weighted).

    Still, point taken.

    And maybe dropping the F-Bomb in court would jar prosecutors out of their audacious ignorance and willful blindness. It sure would add a new level of zealous representation.