Wrongfully exonerated? Report claims ‘DNA activism’ contaminates post-conviction investigations

In the post-conviction proceedings focusing on the rape of Penny Ann Beernsten four years earlier, the absence of Avery’s DNA was construed as proof of innocence. ‘But what if the DNA was not deposited during the initial attack,’ Collins & Jarvis inquired. ‘After all, Penny Ann Beernsten had been strangled and slipped into unconsciousness. What if Avery was, in fact, the initial attacker but failed to ejaculate? What if he then invited an accomplice to sexually assault Beernsten while she was unconscious — just like he allegedly did in the Teresa Halbach murder?’” –Crime Lab Report

When Peter Neufeld, a co-founder of the Innocence Project in New York, was interviewed in a 2003 University of California television broadcast, he told the interviewer that working toward post-conviction exonerations “kept him going” because he hoped to reeducate people about how criminal justice unfolds in the United States.

“The real thing is a desire to see things change,” he said.

Neufeld and a large contingent of Innocence Project colleagues have assisted in hundreds of post-conviction exonerations nationwide, mostly through the use of DNA testing. That means they repeatedly proved in a court of law that certain criminal convictions were faulty — that people had been confined to prison or death row for crimes they did not commit.

But in an article, “Contextual Contamination of Forensic Evidence by Post-Conviction Litigators,” (PDF) released by the Institute for the Advancement of Criminal Justice journal last month, Jay Jarvis, and his colleague, John Collins, call the “desire to see things change” a form of  “DNA activism.” They say it creates a “dangerous contextual bias” that pollutes the minds of litigators and journalists investigating possible wrongful convictions.

Going further, they imply that criminals are being wrongfully exonerated.

As their “gotcha” case, Jarvis and Collins write about Steven Avery, convicted in 1985 of brutally attacking and attempting to rape a woman who had been jogging near a beach in Two Rivers, Wis.

In 2003, Avery became the first person exonerated by the Wisconsin Innocence Project after DNA tests proved he was not present at the crime scene.

But in 2007, Avery was charged and convicted of an unrelated murder and sentenced to life in prison without the possibility of parole. In the murder, Avery bound and gagged his female victim, and then invited his nephew to rape her before Avery killed her.

Based on the murder, Jarvis and Collins concoct a hypothesis that Avery was wrongfully exonerated for the 1985 rape.

“What if the DNA was not deposited during the initial attack?” they conclude. “After all, [the victim] had been strangled and slipped into unconsciousness. What if Avery was, in fact, the initial attacker but failed to ejaculate?”

It’s a compelling theory — like something you’d see in a prime time cop show. What if, out of nowhere, Avery invited an accomplice who was both out of sight before and after the victim blacked out to ejaculate at the scene?

Unfortunately it’s preposterous.

“First, there was no semen at all in this case; this was an attempted murder and attempted sexual assault, with no ejaculation by anyone,” wrote Keith A. Findley, co-director of the Wisconsin Innocence Project in a letter to the Innocence Network last week. The letter was signed by Penny Beerntsen, the victim of the 1985 attempted rape. “The exculpatory DNA evidence was from a pubic hair found in Beerntsen’s pubic hair combings. Collins & Jarvis’s speculation cannot even begin to explain why an invisible attacker would have joined Avery during the short time that Beerntsen was unconscious, and only leave his pubic hair on her without ejaculating.”

Ridiculous misunderstandings aside, Jarvis and Collins intend to argue that crime labs are just fine the way they are, and that when people like Peter Neufeld and his Innocence Project colleagues advocate for change, they are politicians, not scientists, so they should keep their mouths shut about wanting to initiate standards for forensic testing.

Nevermind that because numerous convictions have been overturned after disproving junk forensic science, both the National Academies of Science and the Innocence Project have advocated for a “national forensic science agency with comparable authority to the Food and Drug Administration.”

And nevermind also that real people, with real wrongful exoneration cases, have been freed after in-depth post-conviction investigations have proven using DNA testing that real people did not commit the crimes for which they were incarcerated.

It’s happened in my home town in the cases of Thomas Doswell and Drew Whitley. It’s happened in hundreds of cases investigated and litigated by the Innocence Project. And yet another example surfaced just yesterday when Freddie Peacock of Rochester, NY, was finally exonerated for a 1976 rape he didn’t commit.

Without “DNA advocacy,” most of these exonerated folks would remain in prison for crimes they didn’t commit.

Jarvis and Collins are quick to “recognize the overwhelming value of the innocence network and its focus on correcting the human tragedy of wrongful convictions,” but how can they then insist that proposed institutional changes to prevent future wrongful convictions are “dangerous”?

Wrongful convictions don’t occur in a vacuum. And so when individual or institutional problems are identified through post-conviction investigations, shouldn’t those problems be addressed — and, if possible, amended — in a public forum?

If Peter Neufeld wants to argue for change, he should be allowed to.

Looking at it any other way would be dangerous.