Monday, January 29, 2007

Science in the Courtroom

An editorial in the New York Times (January 29,2007) stated "Modern DNA testing is steadily uncovering a dark history of justice denied. More than 190 DNA exonerations in 18 years show ever more alarming patterns of citizens, wrongly convicted, suffering in prison. Consider the eight felons finally exonerated through DNA challenges in New York State in just the last 13 months. Or the 12 people who had to fight long and hard to prove their innocence in Dallas County, Tex., alone in the past five years. New York and Texas are, in fact, the leading states in yielding these hard-fought exonerations. This is hardly a credit to their justice systems since the victories are won by dedicated pro bono lawyers, not by state monitors charged with finding injustice." Reading this statement brought back to mind my pro bono representation of Dave Davis from 1988 until 2002. Briefly Davis was accused, tried and convicted of the murder of his wife via the purported injection of the drug succinylcholine, a muscle paralyzing agent used in anesthesia to temporarily paralyze the vocal cords to pass an endotracheal tube so that airway control can be maintained during surgery. The so-called test to prove the presence of the drug in the body of his wife was performed by Robert Forney, a toxicologist at the Medical College of Ohio who lied during his testimony about scientific criticisms of his test. The testing was performed in the early 1980s and has never been replicated since. Tens of thousands of DNA tests were performed before it began to be acknowledged as a legitimate method of detecting the presence of reliable information and the fact that it can now be used to not only convict, but exonerate, is a remarkable feat of science in the courtroom. In Davis' case, there was only one test, the procedure of which has never been replicated, even by its proponent. The test was admitted as evidence during the trial by a judge whose only claim to fame as an officer of the court was his track record for prosecutorial misconduct while working in his pre-judgel days as the local prosecuting attorney. Of course, once Davis was convicted, there was no judge in the Michigan judicial system (they are all elected) who had the guts to stand up and do what was right. Tests similar in nature, purporting to identify succinylcholine in body tissues, have been rejected by other States' courts as unreliable and incapable of doing so. Voting to release a man convicted of murdering his wife was apparently not the politically correct thing for an appellate judge to do in Michigan in the 1990s. Some day, and I hope it is soon, I may be able to convince the governor of Michigan that a major injustice has been committed which harms us all.

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