Jewish World Review June 13, 2000 / 10 Sivan, 5760
http://www.jewishworldreview.com -- IF YOU'VE BEEN FOLLOWING the story about Gov. George Bush granting a 30-day reprieve to death row inmate Ricky Nolen McGinn, you've probably heard the claim about prisoners on death row constantly being "proved innocent" by DNA tests. Indeed, though Ricky had already consumed his "last meal," we are darkly informed, he could be a free man soon.
You find yourself wondering what kind of sick and savage society would run the risk of executing a possibly innocent man. And how is it that poor Ricky ended up on death row in the first place? About 600 words into one of these articles, there finally comes a little paragraph unlocking the puzzle.
The evidence that would tend to favor the jury's conclusion that Ricky raped and murdered his stepdaughter include the fact that Ricky has a history of molesting stepdaughters, the girl was in Ricky's sole care when she was raped and murdered, her bludgeoned body was found a few miles from his home, and her blood was on his shoes, his pants and his car. Oh yes, and the ax that killed her was found in the trunk of Ricky's car.
Usually you have to persevere to about paragraph 18 to get to any of those facts. (The giveaway is that the sentence will begin with something along the lines of: "The prosecutor kept harping about the evidence showing ...")
And then you start to wonder why Ricky's DNA is being tested at all. The answer is: A man already on death row has nothing to lose. His punishment doesn't get any worse if there's a DNA match. But he has a chance that the DNA might not match, even if he did it.
DNA evidence is nothing more than a really good fingerprint. If a defendant's DNA is found at the crime scene, it's usually pretty good evidence that he did it (unless he has another good reason for his blood or semen being at the crime scene). But if it's not there, it doesn't prove he didn't do it. In Ricky's case, only one small piece of the crime scene evidence is being tested: a semen stain and a pubic hair that were found on the girl.
If Ricky didn't act alone, the semen or pubic hair could have come from his accomplice. Even if Ricky did act alone, there is always the possibility that his victim had sex with someone else around the time of the rape (a possibility that is considerably more likely with victims older than 12, but still, it's possible). It is also possible that her underwear somehow picked up a random pubic hair in a public bathroom, in a gym, in the wash or in a pile of clothes.
So Ricky could get lucky.
And if Ricky does get lucky, he will go down in the annals of the anti-death penalty literature -- or "the media" -- as having been "proved innocent." This, despite the fact that he clearly killed the girl (and will remain in prison for that aspect of the crime even if the pubic hair wasn't his) and probably raped her as well. But the jury might not have convicted Ricky on the rape charge had they known that the semen stain or pubic hair was not his. So if the DNA isn't a match, the rape conviction gets wiped away, and Ricky leaves death row.
The jury in Ricky's or any other criminal's case may not have even relied on the blood or semen evidence that is later subjected to DNA testing. Indeed, unless the single fact a jury relied on to convict a defendant was the blood type of the semen or blood left at the scene, there is no reason to believe the jury would have been influenced by the DNA evidence in voting to convict. It is, in fact, extremely unlikely that any jury would put much weight on mere blood-type evidence. Blood-type evidence alone typically narrows the suspect list to about 30 percent of the population.
Even in the case of rape, DNA testing of the semen can establish guilt, but its absence does not necessarily prove innocence. The rapist may not have ejaculated, there may have been multiple rapists, or the victim may not have been fully forthcoming about her sex partners contemporaneous to the rape.
I don't particularly object to DNA tests being used to establish legal innocence by
creating some level of post hoc reasonable doubt. The guilty go free for a lot of reasons, from
exclusionary rules to the beyond-a-reasonable-doubt standard. But it is journalistic
malpractice to claim that Ricky or any other prisoner convicted by a jury of his peers was
later "proved innocent" through DNA
JWR contributor Ann Coulter is the author of High Crimes and Misdemeanors: The Case Against Bill Clinton.
06/09/00: I did not have sexual