Expert from O.J. trial urges DNA use

Erin Neff

Tuesday, March 19, 2002 | 11:23 a.m.

The nation's leading DNA law expert told a legislative panel Monday that Nevada should institute post-conviction DNA testing in cases in which defendants maintain their innocence.

"If a DNA test could raise a reasonable probability that somebody had been wrongfully convicted, then the tests advance the notion of justice," said Barry C. Scheck, the DNA expert for the defense in the O.J. Simpson trial and a professor at the Benjamin Cardozo School of Law at Yeshiva University in New York.

Scheck testified via videoconference to the legislative committee studying the death penalty. The committee, which will recommend action to the 2003 Legislature, focused Monday on the role of DNA in possibly exonerating innocent people convicted in death penalty cases.

A bill mandating DNA testing in capital cases died in the 2001 Legislature.

DNA evidence often is not admitted in capital cases of poor defendants, because it is expensive and their attorneys may not have experience in its use in trial.

"Even if the testing proves the defendant is guilty, there is closure," said Scheck, who in 1992 co-founded the nonprofit legal clinic the Innocence Project, which provides pro bono work for inmates who say DNA testing could free them from prison.

Scheck provided the committee with sample legislation to create post-conviction DNA testing. Such a law would allow inmates to request DNA testing if they can show there is a "reasonable probability" of their innocence.

In Nevada DNA samples are required of those convicted of sex offenses, sex crimes involving children and second stalking offenses, according to the Legislative Counsel Bureau. Fourteen states require all felons to submit a DNA sample, but Nevada is not among them, the bureau's Nick Anthony testified.

Federal Public Defender Michael Pescetta, whose clients include several Nevada Death Row inmates, said he thought Scheck's proposed legislation created a legal standard that was too high to make a difference.

Pescetta said that instead of requiring DNA testing in cases with a "reasonable probability" of a person's innocence, the state should simply require the testing for all felons.

Scheck said if the state passes a DNA testing law, it would be wise to appropriate money to a law school or journalism school to research the cases when they are requested.

The California Legislature gave $800,000 to law schools for such "Innocence Projects" when it authorized post-conviction DNA testing.

Scheck warned against passing a post-conviction DNA test law without providing funds for outside investigation.

Prosecutor time, he said, is better spent examining old unsolved crimes to determine whether DNA samples or new technology could help solve cold cases.

State Sen. Joe Neal, D-North Las Vegas, asked Scheck if DNA technology is 100 percent accurate.

"There are still some problems with sample handling errors," Scheck said. "But compared with most other kinds of clinical tests, it is very reliable. Nothing is perfect."

But most questions from the panel seemed to focus as much on how to institute a DNA testing law as to whether to do so. Legislators asked about oversight of DNA labs and control of the samples.

Scheck suggested Nevada create an oversight board, similar to a commission in New York state, to review all DNA testing labs.

But Linda Errichetto, Metro Police's director of laboratory services, said Nevada's small population makes such a board unnecessary.

"For two labs in the whole state, that oversight is unneeded," agreed Capt. Don Means, director of the Washoe County Crime Lab.

Both Pescetta and Scheck testified that DNA testing should be handled outside the prosecutor's office.

"I believe very strongly that forensic science should be a wholly independent force beholden neither to the prosecutors or the defense counsel," Scheck said.

Sen. Mark James, R-Las Vegas, said access to the testing and samples was the key issue in his mind. If prosecutors are given the job of collecting and storing samples, he asked, "Isn't that like the fox guarding the hen house?"