“Follow the Science”…But Not if it’s DNA Testing?
Over and over these last several months of the Year of the Pandemic, members of the political Establishment have repeated the demand that the federal government and public health officials must “Follow the science!” One of the foremost criticisms of the Trump Administration that his opponents pounded during the 2020 election cycle is best summed up in the following article’s headline: “Trump ‘Doesn’t Believe in Science,’ Incapable of Empathy: Rep. Karen Bass,” ABC News/MSN News (July 22, 2020).
Yet, in states with Democratic Governors, such as Pennsylvania (Gov. Tom Wolf — (D)), why is there no comparable push to compel the state judiciary to “follow the science” by mandating DNA testing for defendants who are relying on science to defend against criminal charges? Crime scene evidence sits in lockers in police stations or district attorneys’ offices, or in state labs, while defendants spend years in prison asking for access to it.
The judiciary has erected numerous barriers to the use of basic DNA testing in criminal trials. Judges are gatekeepers, demanding that defendants must first prove that the testing will demonstrate “actual innocence,” before they have even done the test. Rather than “following the science,” the public is expected to treat jury decisions as gospel. Yet, these jury decisions were rendered without DNA evidence, and in some instances when DNA science was still disputed. DNA testing is now so run of the mill, most Americans would be surprised that there is such a high threshold among the judiciary to access it.
In the last few years, the nation is supposedly reexamining (or “re-imagining”) criminal justice — but not the pronouncement of state and federal judges? In Sept. 1999, Attorney General Janet Reno penned a statement in a report by the U.S. Department of Justice’s National Institute of Justice (NIJ), “Postconviction DNA Testing: Recommendations for Handling Requests,” in which she recounted:
In 1996 the National Institute of Justice (NIJ) issued [a]research report, . . . [telling] the stories of 28 men whose innocence was proven by applying DNA technology to evidence after they were convicted and sent to prison. They had, however, served an average of 7 years in prison. [By Sept. 1999], more than 40 other similar cases have been identified.
We have made little progress since. In fiscal year 2020, the “Postconviction Testing of DNA Evidence” program moved from the NIJ to the Bureau of Justice Assistance. Despite relentless demands at televised national press conferences for the federal administration to “follow the science,” there was scarce commentary about the forensic program’s operation by the mainstream media. Journalists instead focused almost exclusively on arguing that science must (only?) dictate exponentially expanding state control over citizens’ freedoms, including the ability to even leave one’s home. No mention of science serving as an instrument for securing anyone’s freedom, not even from prison.
A Parallel
Honing in on current cases at the state local level (rather than the federal circuit), the following article discusses a criminal case from Pennsylvania, in which a “resident who spent nearly 17 years in prison will appeal a decision made by a senior judge to deny testing of DNA evidence collected at the scene of a 30-year-old homicide case. . . . Lycoming County Senior Judge Dudley Anderson denied the request by Scott Schaeffer, 54, to test DNA on 12 items collected at the 1986 homicide scene of Rickey Wolfe. Wolfe, 30, of Mifflinburg, was discovered beaten to death near a boat launch in Montandon and Schaeffer, through his attorney Joel Wiest, said some evidence was never tested.”
- SEE: Sunbury Man Denied DNA Tests in 1986 Homicide; Will Appeal, The Daily Item (Dec. 22, 2020)
According to the article, the reason that the Pennsylvania court refused DNA testing is because the defendant, after having already spent 16 years in prison, had accepted a plea deal in 2004 — in exchange for his release and return to his family. The court thus ruled that since he had not raised the DNA testing as a legal argument at that time, he forfeited his right to know the truth. But, why?
How little does it cost to perform a DNA test? Clearly it is not the actual monetary price that is at issue. The judiciary is placing a premium on finality of its own judicial process, regardless of actual truth or scientific inquiry. The “truth seeking function” is subordinated to judicial will.
The article proceeds to identify that even the murder victim’s son, “Tim Wolfe, of Lewisburg, said he was also saddened by the ruling. ‘I would like to know who I have to talk to [in order] to get the case back in front of someone who can do something,’ Wolfe said. ‘“’I was never contacted by anyone to talk to me. I am happy [Schaeffer] is appealing, and I want this all over for my family and Scott’s family. He has the black mark on his record, and I want that gone. I wish I could petition someone for him.’”
As President Donald Trump considers, and as the Democratic Party and media pundits critique, his constitutional pardon power, perhaps one area where he can have tremendous impact is by exonerating defendants who have been denied the opportunity for scientific analysis to contribute to outcomes. Since pardons can be conditional, he could limit release on the candidate successfully passing the long requested DNA test.
The upshot: all Democrat Party Governors have the same power in each of their respective states. Pardon power allows the executive branch the discretion to transcend limitations imposed by a judiciary that is more concerned about protecting the legitimacy of the democratic system’s decision-making (such as a jury’s certified final verdict), rather than the integrity of the fact finders, such as the police or prosecutors, or the fate of the accused individual upon whom the outcome lands. How is it possible that during an era when the public, especially voters in Democrat states, contend that historical police practices evidence glaring omissions, inconsistencies, and misconduct over decades, scientific evidence confiscated by the police is nonetheless absolutely shielded from scrutiny, including scientific analysis? In our data ravenous society, why no premium on prosecutorial certainty?
The Collateral Consequences Resource Center publishes a review of state practices for pardoning criminal convictions for each of the 50 U.S. jurisdictions, Puerto Rico and the Virgin Islands. The tracker is called the “Restoration of Rights Project.” Yet, when analyzing a subsection of Democratic “blue” states (below), the results counterintuitively refuse to heed the dominant narrative that it is the American “Left” that pursues criminal justice reform or exhibits the spirit of rehabilitative justice.
California: Under the most recent governors, a regular pardoning practice has been reestablished after a decade of neglect, but no data is available on the grant rate (measured by number of certificates received).
Hawaii: The pardon process is regular, but pardons have been infrequent in recent years.
Maine: Pardons have been infrequent and the process irregular in recent years.
Maryland: Pardoning varies with the administration: the current governor (Larry Hogan) has issued no pardons.
Massachusetts: Pardons have been infrequent since 1990; only six since 2002 (by Gov. Patrick), and none by Governor Baker after five years in office.
Michigan: Post-sentence pardons have been infrequent in recent years despite hundreds of applications received every year.
Minnesota: The pardon process is regular, but grants are issued sparingly (about 10–20 each year, or about 1/3 of those whose cases are heard).
New Hampshire: Pardons are rare: while the governor receives several dozen applications each year, only three pardons have been granted since 1996.
New Jersey: Pardons are infrequent and the process irregular: recent governors have granted relatively few pardons, and generally only at end of their terms.
New Mexico: Pardons have been infrequent under recent governors. Gov. Lujan Grisham signaled a new approach to executive clemency with the issuance of guidelines calling for a “holistic” approach, but she had issued no grants by March 2020.
Oregon: Pardons have been infrequent under recent governors.
There is simply no indication that science informs or guides any review for clemency, including state mandated analysis of DNA or rape test kits. Despite political rhetoric about “healing” the historical injustices of the American judicial system, especially during a combative election season, neither exoneration nor science appears to be as grave a priority when their absence affects the predominantly poor underclass who comprise the criminally convicted — especially after the votes have already been tallied.
SEE FOR MORE REFERENCE: Below are some additional articles from earlier in the Pandemic Year that exhorted the same rallying cry, eventually expanding the public’s new discourse about the political ascendancy of scientific inquiry beyond medical health, and allowing its scope to broaden into other realms of policy-making, such as homelessness.
- Follow the Science? It’s Not that Easy When Deciding When — or If — to Reopen Schools, Chicago Sun Times (Dec. 23, 2020)
- To End Homelessness, Follow the Science, The Hill (Oct. 23, 2020)
- Follow the Science, PolicyNetwork.org (May 26, 2020)
- In a Polarized World, What Does “Follow the Science” Mean?, Christian Science Monitor (Aug. 12, 2020):
EXCERPT: “Even the word ‘science’ has been politicized. It’s very sad,” says Dr. [John] Ioannidis, . . . a highly cited professor of medicine, epidemiology, and population health at Stanford University in California. [He] observ[ed] that in the current environment, scientific conclusions are used to shame, smear, and “cancel” the opposite view. “I think it’s very unfortunate to use science as a silencer of dissent.”
The average citizen, he adds, is filtering COVID-19 debates through their belief systems, media sources, and political ideology, which can leave science at a disadvantage in the public square. “Science hasn’t been trained to deal with these kinds of powerful companions that are far more vocal and better armed to penetrate into social discourse,” says Dr. Ioannidis. . . .
“If you have more of a populist type of worldview, where you are concerned that elites and scientists and officials act in their own interests first, it becomes very easy to make assumptions that they are doing something to control the population,” says Prof. Asheley Landrum, a psychologist at Texas Tech University who specializes in science communication.
- What Does It Really Mean to “Follow the Science”? (Opinion), The Telegraph (April 27, 2020):
EXCERPT: Last week, doctors Dan Erickson and Artin Massihi of Bakersfield, California, gave a press conference in which they made some startling claims. They took the test result data we currently have and extrapolated it out across the population. From this they concluded that the number of infected is probably in the millions, which is alarming, but it puts the total number of deaths in perspective: it could mean that the mortality rate for Covid-19 is as low as about 0.1 per cent.
- Scientific Integrity in Public Policy, American Chemical Society’s “Public Policy Statement (2020–2023)”
EXCERPT: Legislative bodies should make use of transparent science, technology and policy analyses performed by qualified professionals in creating effective legislation.
Legislative committees should seek direct testimony from diverse technical experts on scientific and policy issues
Legislative hearings about the science used to inform the crafting of laws and regulatory decisions should be encouraged, because this open dialog will provide the best basis to identify the nature and certainty of knowledge about technical issues.
Post originally published on https://www.3PMonline.com, Third Party Mechanic (Dec. 27, 2020)
