"No tradition is more firmly established in our system of law than assuring to the greatest extent that its inevitable errors are made in favor of the guilty rather than against the innocent."
That was the message from a US federal appeals court whose first-of-its-kind ruling (PDF) Friday opens the floodgates for criminals to demand fresh DNA testing if they were convicted by inconclusive or outdated DNA testing.
The legal flap—brought by a Montana man convicted of sexually abusing a 14-year-old girl in 2006—concerns the Innocence Project Act of 2004 (PDF). The measure, hailed by the defense bar, gave criminals three years to seek DNA testing of evidence after their conviction. Under that law, the three-year statute of limitations may be extended if a convict can demonstrate that there is "newly discovered DNA" evidence.
The 9th US Circuit Court of Appeals, ruling in favor of Bill Watson's bid for renewed testing of the victims' underwear and other evidence, said advancements in DNA testing amounted to newly discovered DNA. The court said it did not matter if it was the same DNA evidence taken from the crime scene or if the testing was sought seven years after the conviction.
"Doubtless many people possessed radium before Marie Curie discovered its properties, and uranium was used to make yellow glass for centuries before anyone else discovered other uses for it," Judge Andrew Kleinfeld wrote for the three-member panel.
Watson, sentenced to 14 years, was convicted after DNA testing of the victim's underwear and vagina was inconclusive. There was not enough semen present to identify the culprit, the court said. The conviction rested largely on the victim's brother's testimony, which was contradictory at best, the appeals court ruled.
The defendant claims he is innocent of raping the girl who is named in court papers as J.M.B and says modern DNA tests would prove his innocence.
The appeals court agreed that new tests should be done, and it based its ruling in part on an affidavit from a scientist.
The court wrote that Greg Hampikian, a biology professor at Boise State, says:
... new DNA testing of the underwear "would now allow identification not only of the contributor of the tiny amount of semen in the underwear, but also of even tiny amounts of DNA from skin cells of anyone who had physical contact with the inside of J.M.B.’s vagina and even, from his hands, contact with her clothing. Scientists call this “touch” DNA testing, that is examining the DNA of someone who merely touched something with his skin, testing not possible when Watson was tried.
Here is Hampikian's full affidavit (PDF) in the case that explains his scientific analysis.
A lower court had denied Watson's request to have the underwear, vaginal swabs, and the victim's outer clothing tested because that evidence was all available at the time of the trial and not considered newly discovered DNA evidence.
Betsy Griffing, of the Montana Innocence Project, said the court's ruling was "big" and opens the door to DNA testing to an untold number of convicts.
Unless the decision is affirmed by the Supreme Court, the outcome does not rule the day across the nation. The San Francisco-based 9th US Circuit Court of Appeals' decisions are only binding in Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington state.
The government has declined comment.
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