States Continue to Oppose DNA Testing in Death Penalty Appeals, Attorneys Ask Why Don’t They Want to Learn the Truth?

The last three men sched­uled for exe­cu­tion in Georgia said they did not com­mit the killing and that DNA test­ing that was not avail­able at the time of tri­al could prove it. In two of the cas­es, vic­tim fam­i­ly mem­bers sup­port­ed the request for test­ing. Prosecutors opposed the requests, and the courts refused to allow the test­ing. Two of the three men were exe­cut­ed, with doubts still swirling as to their guilt. 

Shawn Nolan, a fed­er­al defend­er who rep­re­sent­ed Georgia pris­on­er Ray ​“Jeff” Cromartie, summed up the sen­ti­ments of the pris­on­ers, fam­i­lies, and defense attor­neys in these cas­es. ​“I’d like to know what the state is so scared of,” he said. ​“Why are they afraid of the truth? This is sad and so disturbing.”

“We have the capa­bil­i­ty of test­ing a wide range of foren­sic evi­dence that we couldn’t test in the past,” said Death Penalty Information Center Executive Director Robert Dunham. ​“It is a pow­er­ful tool to get to the truth and to get impor­tant answers as to whether the crim­i­nal legal sys­tem has been reli­ably apply­ing the death penalty.” 

And yet, at a time in which few­er than half of Americans now believe the death penal­ty is fair­ly applied, pros­e­cu­tors across the coun­try are aggres­sive­ly oppos­ing post-con­vic­tion DNA test­ing and state courts have declined to allow it. What appears to some to be a will­ful indif­fer­ence to the truth may be con­tribut­ing to declin­ing pub­lic con­fi­dence in the pun­ish­ment, as evi­dence mounts that states may be exe­cut­ing innocent prisoners.

Tennessee exe­cut­ed Sedley Alley in 2006 after deny­ing him DNA test­ing that might have estab­lished his inno­cence. The state courts lat­er acknowl­edged that test­ing should have been per­mit­ted. After new evi­dence emerged point­ing to a ser­i­al killer as the pos­si­ble per­pe­tra­tor, Alley’s estate, with the assis­tance of the Innocence Project, request­ed posthu­mous test­ing. Prosecutors opposed the test­ing, and a state tri­al court denied the estate’s request. 

In April 2017, Arkansas exe­cut­ed Ledell Lee dur­ing an unprece­dent­ed rush to exe­cute eight pris­on­ers over an eleven-day peri­od before its exe­cu­tion drugs expired. Lee had long main­tained his inno­cence, but in the days lead­ing up to his exe­cu­tion, the Arkansas courts denied his requests to test avail­able DNA and fin­ger­print evi­dence that he said could prove his inno­cence. After a con­tin­u­ing inves­ti­ga­tion by the ACLU and the Innocence Project uncov­ered major prob­lems with the foren­sic evi­dence in Lee’s case, his fam­i­ly sued to obtain posthu­mous test­ing. Again, pros­e­cu­tors opposed the request. However, the Jacksonville, Arkansas, city coun­cil vot­ed 6 – 0 to release the evi­dence to allow the test­ing to take place. 

Jacksonville Mayor Bob Johnson said, ​“I look at it this way. If a gen­tle­man was put to death and should­n’t have been, that means there’s a mur­der­er loose some­where in Jacksonville or Arkansas or [the U.S.] and they need to be brought to jus­tice.” He called the council’s deci­sion ​“the right move.”

In December 2019, the Arkansas Supreme Court denied DNA test­ing for Stacey Johnson, who had received a stay in April 2017 to allow the state courts to con­sid­er his test­ing request. Dissenting from the court’s rul­ing, Justice Josephine Hart ques­tioned whether ​“those oppos­ing Johnson’s pro­posed test­ing are sim­ply anx­ious about what it could pos­si­bly reveal — that anoth­er con­vic­tion of a black man in the 1990s was attrib­ut­able to inves­tiga­tive fail­ures and bias, and not to actu­al guilt.” DNA test­ing, she wrote, ​“could pro­vide the answers this case is miss­ing, but the major­i­ty will not allow it. I do not see the sense in this deci­sion. We should wel­come such an oppor­tu­ni­ty for the truth, whether to flush it out for the first time or to elim­i­nate the doubts present­ly sur­round­ing this con­vic­tion. The fact that we are instead reject­ing that oppor­tu­ni­ty leaves me trou­bled. What are we so afraid of?”

In 2018, a Tampa Bay Times inves­ti­ga­tion found that Florida courts had refused death-row pris­on­ers access to DNA test­ing at least sev­en­ty times, deny­ing 19 men – eight of whom have been exe­cut­ed – any test­ing at all and pre­vent­ing nine oth­ers from obtain­ing test­ing of addi­tion­al evi­dence or more advanced DNA test­ing after ini­tial tests had been incon­clu­sive. Courts have also denied DNA test­ing in oth­er cas­es in which con­demned pris­on­ers have pre­sent­ed sub­stan­tial claims of innocence.

In response to the futile attempts to obtain new DNA test­ing for Tommy Zeigler — who has main­tained his inno­cence through­out the more than four decades he has been on death row — Republican State Representative Jamie Grant has pro­posed a bill that would broad­en access to DNA test­ing. Grant said he hopes the change ​“leads us to a place as a soci­ety and a cul­ture that increas­es the cred­i­bil­i­ty of a con­vic­tion or helps us dis­cov­er that the wrong per­son is in prison.” Earlier test­ing in Zeigler’s case showed that the victim’s blood was not present on the shirt Zeigler was wear­ing the night of the crime, a fact that foren­sic experts said indi­cat­ed Zeigler could not have been the per­pe­tra­tor. Now, he is seek­ing test­ing of fin­ger­nail scrap­ings from the vic­tim and blood from other clothing. 

Georgia’s denial of three sep­a­rate requests for DNA test­ing in such a short peri­od of time has shone a spot­light on the state’s exe­cu­tion prac­tices. Cromartie was exe­cut­ed in November 2019, after Georgia courts reject­ed his request for DNA test­ing of the gun used in the mur­der. Cromartie alleged that the test­ing would have shown that he had not han­dled the gun and would have iden­ti­fied the actu­al trig­ger­per­son. The victim’s daugh­ter, Elizabeth Legette, had writ­ten to the Georgia Supreme Court express­ing her sup­port for DNA test­ing, call­ing the state’s plan to exe­cute Cromartie with­out test­ing ​“sense­less” and ​“wrong.”

Just two months lat­er, Jimmy Meders was denied a sim­i­lar request for DNA test­ing of a gun, which he said would have dis­proven the tes­ti­mo­ny of his co-defen­dants and shown that the prosecution’s star wit­ness was the actu­al killer. The co-defen­dants claimed that Meders had shot a store clerk and had been the only per­son who han­dled the mur­der weapon. Meders was grant­ed clemen­cy on the strength of jury affi­davits say­ing that, even based on the prosecution’s the­o­ry, they would have spared his life if they had been giv­en the option of sen­tenc­ing him to life with­out parole. However, his DNA request has still not been granted.

Donnie Lance, the next per­son sched­uled for exe­cu­tion in Georgia, was also denied DNA test­ing. Lance main­tained his inno­cence in the mur­der of his ex-wife and her boyfriend. His chil­dren, who were also the chil­dren of the vic­tim, asked the state to grant the request. ​“It’s just mind-bog­gling that we have this evi­dence, but the state of Georgia is not will­ing to tru­ly try to find out if this man is inno­cent before they kill him,” Lance’s son, Jessie, said. Donnie Lance was exe­cut­ed on January 29, 2020. Former Georgia Governor Roy Barnes said that dur­ing his tenure, he instruct­ed the Board of Pardons and Paroles to per­mit requests for DNA test­ing. ​“I was not going to take the risk of an inno­cent man being exe­cut­ed,” he said. ​“Even one mis­take in a death case can­not be tol­er­at­ed. There have just been too many cas­es where years lat­er DNA exonerated someone.”