Where DNA Doesn't Count

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CRIMINAL JUSTICE FEBRUARY 8, 2013

Where DNA Doesn't Count Will Kentucky finally give non-death row prisoners the right to test old evidence?

William Virgil is serving a 70-year sentence in a Kentucky jail for the 1987 rape and murder of a 54-year-old nurse. At 60 years old, he will never again see the world outside prison—unless a judge intervenes. In May 2011, a Campbell Circuit Judge did just that, granting Virgil a DNA test after the Kentucky Innocence Project took up his case and found a rape kit, hairs, and bloody shoes from the case that were long thought to be destroyed. But three months later, the judge reversed his decision. Kentucky law grants only death row inmates the right to a DNA test on evidence in their cases, the judge said. A 70-year sentence isn't enough to allow an individual access to the evidence used to convict him.

Kentucky has the most restrictive DNA-testing law in the country, granting only death row inmates the right to test evidence for DNA in their cases. (Oklahoma has no DNA testing law at all.) Kentucky legislators have tried to change the law before, but their efforts have always died in committee. On Friday, they will try again to expand post-conviction DNA testing for all violent offenders, giving thousands of prisoners an opportunity to prove their innocence. And there's reason to hope it may finally succeed: John Schickel, a conservative Republican State Senator who has served as a cop, prison jailer, and U.S. marshal, is one of its sponsors.

"I favor the death penalty and stiff sentences for people convicted of crimes, and I helped write the Kentucky jail standards," says Schickel. He is simultaneously co-sponsoring a bill to make sentences lengthier for crimes related to heroin. And yet, if the DNA-testing bill he co-sponsored becomes law, Virgil will be granted the DNA test that could grant him freedom—and Schickel will be the man most responsible for that.

As someone who has worked in the country's prison system in one form or another for 30 years, Schickel is a believer in its effectiveness and fairness. "We have the best criminal justice system in the history of mankind," he says. "But mistakes do happen and we have an obligation to correct them." International non-governmental organizations and human rights groups would dispute Schickel's praise for America's prison system: In late January, Human Rights Watch condemned the United States in its 2013 World Report, summarizing that, "The enormous prison population in the United States partly reflects harsh sentencing practices contrary to international law." But it is precisely Schickel's hard line that gives him the credibility to reform Kentucky's prison system without eliciting charges of being soft on crime. 

Right now, if you're in a Kentucky jail on an erroneous conviction of armed robbery or rape, your only hope is that a judge will decide to agree to grant you the DNA test that could set you free. It does not matter that a jailhouse informant who testified that Virgil had confessed to him was later proven in appeals to have lied on the witness stand about being in the same cell as Virgil. Never mind that Virgil's ex-girlfriend, who testified against him, was later revealed to be mentally ill, or that the physical evidence used against him was not even tested for blood type, let alone DNA.

"It knocked out of the wind of me, because I was looking forward to something good finally happening to me," says Virgil about the judge's reversed decision, speaking over the phone from Kentucky State Reformatory. "But I have to be positive, because anything negative can be harmful in this environment, stressful as it is." 

Under the proposed law, Virgil wouldn't have to depend on the whims of a single judge. But the bill wouldn't help everyone. Drug offenders are exempt, to allay fears that the courts would be jammed with petitions for DNA tests. Given that in 2010, 25 percent of Kentucky inmates were imprisoned for drug convictions, this is not a small exclusion. Schickel says it was the price he had to pay. "We crafted this bill in way so that it would do the most good and actually have a chance to being passed," he says. "I didn't want perfect to be the enemy of the good."

Kentucky's current DNA law almost kept Kerry Porter imprisoned. "I almost didn't make it," he says. Porter was serving a 60 year-sentence in Eastern Kentucky Correctional Complex for murder. He wouldn't have been eligible for parole until 2040. But the KIP reviewed his case in 1996, and got a judge to agree to give a test. Getting a pro-test decision for those not on death row is extremely rare, but the judge had little choice after even attorney who had convicted Porter said he had made a mistake. The test showed that DNA left at the crime scene belonged to another man. 

As a result of that and other exculpatory evidence, Porter left prison in December 2011 after almost 15 years behind bars. "I spent 15 years reading that law, he says. "The only way I made it was that both the prosecutor and defense entered an agreement, so the judge agreed." Porter is now trying to enter school to become a paralegal. "I know some people in jail, innocent like me, that I have to go back and help out," he says. Schickel doesn't think there are many innocent people in jail, but he thinks we need to make sure: "The only thing everyone in the system has—prosecutors, judges, defenders, all of us—is an interest in justice. This is a matter of simple fairness." 

Jordan Michael Smith is a contributing writer at Salon and the Christian Science Monitor

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posted in: kentucky, crime, dna

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