DNA, Exoneration and Compensation: A Discussion Robert Siegel leads a roundtable discussion of the legal issues surrounding exoneration, compensation and the use of DNA evidence in criminal cases.

DNA, Exoneration and Compensation: A Discussion

About Peterson's Case

Larry Peterson spent nearly 18 years in prison for the 1987 murder and rape of Jacqueline Harrison, a young mother of two, before DNA evidence set him free.

Throughout the investigation and trial, Peterson maintained his innocence. But witnesses told police that Peterson had confessed to the crime. At his trial, a forensics expert testified that hairs found on the victim's body and on a stick with which she was assaulted "compared" with Peterson's hair. Peterson was convicted and sentenced to 40 years in New Jersey's Trenton State Prison.

In 2003, while still incarcerated, Peterson won the right to DNA testing of evidence in his case. In 2005, on the basis of that DNA testing, a judge overturned Peterson's conviction. Petersen is currently seeking compensation for wrongful incarceration. Under New Jersey law, Peterson may be entitled to up to $20,000 per year for each year he spent in prison, or twice the amount of his income, whichever is greater. The burden of proof is on him to prove his innocence. The state says it will fight his claim.

Larry Peterson's 17-year odyssey through the criminal justice system highlights several legal issues raised when a conviction is overturned.

Peterson spent nine years fighting to get evidence in his case re-examined using DNA testing not available at the time of his trial. His case illustrates the difficulties that convicted criminals face in getting authorities to approve retesting of evidence that may be years or even decades old.

Peterson's current struggle shows that the legal battle does not end with exoneration: He's now suing the state of New Jersey for compensation for wrongful imprisonment. It's not enough that a judge threw out Peterson's conviction; state law requires that he provide "clear and convincing evidence" of his innocence before he receive compensation.

Robert Siegel leads a discussion of these issues. Joining the conversation: professor Karen Daniel, a staff attorney at Northwestern University's Center on Wrongful Convictions; Vanessa Potkin, a lawyer with the Innocence Project, a nonprofit legal clinic that represented Peterson; and Ronald Eisenberg, a deputy district attorney in Philadelphia who handles post-conviction cases.

SIEGEL: Is New Jersey's law regarding exoneration and compensation for people who are wrongly imprisoned typical of other states?

DANIEL: It's fairly typical. In virtually every state, the burden is on the claimant, in some form or another, to prove that he is innocent of the crime. ... In New Jersey, he has to prove it to a court. In other states, he might have to prove it to the governor. But in virtually every state, it's now his burden to prove innocence. It's not enough that the charges have been dropped. It's not even enough that he's found not guilty by a jury. He has to affirmatively prove innocence, and that's difficult to do.

Is the standard in New Jersey of "clear and convincing evidence" tougher than the federal standard of a "preponderance of the evidence"?

DANIEL: It is. Legally, that's a tougher standard than a "preponderance." Probably as a practical matter, it doesn't make that much of a difference. Even when the standard is a "preponderance," it's still very difficult for someone to prove they're innocent. It's difficult to prove that proposition. Even if there's no evidence of their guilt, that's not the same as proving actual innocence.

Vanessa Potkin, you have said that when you represented Larry Peterson, you felt that what he was up against was the reluctance of the prosecutor to drop charges, and that this was typical of the way many prosecutors reacted to the kind of case that you brought.

POTKIN: Unfortunately, this type of denial is all too common. I think that it's very easy — when you have a case where you have just simply a mistake in eyewitness identification — for officials to admit that a mistake has been made. But in cases such as Larry Peterson's, which implicate bad law-enforcement practices, where you have false confessions or witnesses coming forward with false statements, sometimes it's a lot more difficult to get officials to admit that a mistake has been made.

Larry's case is not just about proving that hairs that were attributed to him really didn't come from him. We had affirmative evidence of his innocence through DNA testing of semen from the victim's body, through DNA under her fingernails that matched the semen that didn't belong to Larry. And unfortunately, you know, you take the case of Kirk Bloodsworth from Maryland. He was wrongfully convicted of the rape/murder of a young girl. In the early '90s, he had been sent to death row. In the early '90s, he was exonerated — cleared by DNA testing — and released from prison. Initially, prosecutors said — like they did with Larry Peterson... — they said, "He's guilty. We just don't have enough evidence to convict him, to reconvict him at another trial."

Mr. Eisenberg, you handle post-conviction cases in Philadelphia. How do you approach claims for exoneration and compensation from a prosecutor's standpoint?

EISENBERG: This would be straightforward if we could accept all of these claims at face value. But experience shows that many convicted criminals claim innocence — even request DNA testing — and they're often not telling the truth. I think the most recent publicized example of that was the case of Roger Coleman in Virginia, who was championed by numerous lawyers and organizations, and who was the subject of an extensive media campaign. He had his face on the cover of Time magazine. And for years, it was stated — argued — in the press that Roger Coleman was innocent, and as soon as somebody finally agreed to DNA testing, it would be proven. Eventually the DNA testing was done, and it turned out that Roger Coleman was guilty, proven guilty again, had been guilty all along. That's a tremendous burden for victims.

Why, then, shouldn't prosecutors welcome a prompt DNA test in all these cases, if it's as likely as not that the DNA will confirm the truth of the conviction rather than exonerate?

EISENBERG: I know these DNA stories are powerful, but a crucial part of the story hasn't come out. And that's that DNA often isn't probative of innocence. It's the fact that the DNA stains can survive washings and can be on a piece of material for months that were deposited previously and have nothing to do with the crime at all. The simple fact is that presence is more probative than absence. It tells us a lot more about a case when we find the presence of someone's DNA than when we find the absence of someone's DNA . And that's why DNA has proven so much more powerful in proving guilt than in proving innocence, and why we talk about a couple of hundred cases of DNA exonerations — but there are thousands and thousands of cases of DNA inculpation.

POTKIN: I think that what Mr. Eisenberg is overlooking as just a basic matter is that there have been more than 200 post-conviction DNA exonerations throughout the country. In 37 percent of those cases, not only did DNA exonerate the wrongfully convicted, but it was used to identify the actual perpetrator of the crime. So what he's characterizing as a fishing expedition is actually the fulfillment of justice in these cases — and making sure that people committing violent crimes aren't left on the streets.

Basically, in Larry Peterson's case, it took seven years just to get access to the DNA testing, because you have people expressing the opinion that you just heard: that DNA might be irrelevant. We're talking about, simply, access to DNA testing that, most of the time, will not even cost the state a cent. This is testing that the Innocence Project or the defendant or other people are willing to pay for, simply to get to the truth in a case. Yes, there have been a few hundred exonerations. But you take Philadelphia, for example: We can't even get testing in a lot of cases because we can't find any evidence. It's already been lost or destroyed.

Mr. Eisenberg, can you explain that?

EISENBERG: When these cases arose 20 years ago, sometimes 30 years ago, obviously we didn't have DNA technology. Of course, the system isn't going to be perfectly capable of adjusting itself to new scientific developments — in the same way that, 20 years from now, there may be additional scientific developments. And in some of those cases, we may find out that what we thought were DNA exonerations or convictions were themselves invalid.

But the fact is that prosecutors around the country have actually supported statutes and rules providing for DNA testing, even post-conviction DNA testing. It's just a question of whether we're automatically going to do that in every case.

Why not make it automatic, so you can clear the books of cases that might not be good?

EISENBERG: Because in many cases, the DNA testing isn't really going to be probative. DNA testing is demanded, sometimes it's even performed. But the results don't really tell us that the defendant is actually innocent of the crime.

If somebody does prison time because of a conviction that is later overturned, and upon retrial that person is acquitted, do you think the state owes that person compensation for having spent time in prison for something that, in the end, he or she was not convicted of?

DANIEL: I think the right approach to that sort of case would be to provide compensation for a number of reasons. One, the first conviction, by definition, was a wrongful conviction because there was some error that resulted in a retrial. And having fixed that error, the person was not convicted the second time around. So there was a wrongful conviction; the person shouldn't have been in prison for all those years.

But another, maybe more powerful reason to allow compensation in that case is simply because, by possibly being a little over-inclusive, maybe you're going to sweep in a few people who are not factually innocent. But you are also going to much more quickly and systematically compensate people who are innocent, who are factually innocent and were properly acquitted. The problem we have with our current procedures is that it takes years to get compensation to the people who deserve it, and it's difficult for them to prove what they need to prove. And by the time they get compensation two, three years down the line, it's long past the point when they really needed it, and by then it's possible that their lives have failed. They need the compensation when they walk out the prison door. So I would favor possibly being a little over-inclusive and making it automatic upon acquittal after retrial.

EISENBERG: Compensation is a worthwhile goal. But if we're going to talk about it, I think we need to talk about it in reference to all the victims of the system's mistakes — not just wrongful convictions, but wrongful acquittals and wrongful releases.

Remember: The purpose of the criminal justice system isn't just to protect innocent defendants from conviction; it is to protect innocent citizens from criminals. And every day, people are raped and robbed and murdered by people who've been in the system but who should have been in prison — should have been even executed — but weren't because we messed up somehow. Remember that there is a reason why an acquittal, let alone a non-conviction, isn't in itself legally considered evidence of innocence. And that's not for the state's benefit, that's not for the prosecution's benefit. It's for the defendant's benefit that the standard of proof be set extremely high, so that any doubt goes in his favor in terms of conviction.

POTKIN: But the problem in this country is that we're not compensating victims of wrongful conviction at this point. For example, we have clients in Louisiana. One in particular — a man named Michael Williams — there's no question about his innocence or guilt. The district attorney stood up and apologized.

Williams went to prison at age 16, spent 24 years in prison as the result of a misidentification, came out at age 40, and openly talks about the brutalization he endured as a young man in prison. Under Louisiana's law, he is entitled to at most $150,000 for 24 years of life that he lost. Is that fair compensation? I mean, let's just talk about what we're doing to people who are unquestionably innocent, that everybody acknowledges are innocent — we're still not treating them fairly in this country.

This transcript was edited for clarity.