WASHINGTON - Attorney General Eric Holder has ordered a review of a little-known Bush administration policy requiring some defendants to waive their right to DNA testing even though that right is guaranteed in a landmark federal law, officials said.
The practice of using DNA waivers began several years ago as a response to the Innocence Protection Act of 2004, which allowed federal inmates to seek postconviction DNA tests to prove their innocence.
More than 240 people wrongly convicted in state courts have been exonerated by such tests, including 17 on death row.
The waivers, which apply only to federal courts, bar defendants from ever requesting DNA testing, even if new evidence emerges.
They are required only for people who have admitted their guilt in court.
Prosecutors who use them, including some of the nation’s most prominent US attorneys, say people who have admitted guilt should not be able to file frivolous petitions for testing.
Defense lawyers who have worked on DNA appeals strongly oppose the waivers, saying that innocent people sometimes plead guilty - mainly to get lighter sentences - and that denying them the ability to prove their innocence violates a fundamental right. One quarter of the 243 people exonerated by DNA had falsely confessed to crimes they didn’t commit, and 16 of them pleaded guilty.
“It’s a mean-spirited policy. Truth, ascertained by science, should trump the finality of a conviction,’’ said Peter Neufeld, co-director of the New York-based Innocence Project. He said the waivers are effectively “gutting the impact’’ of the 2004 law because 97 percent of federal convictions result from guilty pleas.
Prosecutors say the wave of DNA exonerations has little impact in federal court because all those found to be innocent were state prisoners. DNA evidence is used far more frequently in state courts. But DNA specialists say that is about to change because more sophisticated testing will soon bring biological evidence into federal courtrooms for a wider variety of crimes.
