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77 Fordham L. Rev. 2893 (2008-2009)
The Right Remedy for the Wrongly Convicted: Judicial Sanctions for Destruction of DNA Evidence

handle is hein.journals/flr77 and id is 2907 raw text is: THE RIGHT REMEDY FOR THE WRONGLY
Cynthia E. Jones*
Many state innocence protection statutes give courts the power to impose
appropriate sanctions when biological evidence needed for postconviction
DNA testing is wrongly destroyed by the government. Constitutional claims
based on wrongful evidence destruction are governed by the virtually
insurmountable   bad   faith  standard   articulated  in  Arizona  v.
Youngblood. The wrongful destruction of DNA evidence in contravention
of state innocence protection laws, however, should be governed by the
standards used to adjudicate other access to evidence violations in
criminal cases, including disclosures mandated by the rules of criminal
procedure, the Jencks Act, and Brady v. Maryland. Under the access to
evidence sanctions analysis, courts    must balance    the degree   of
government culpability in the destruction, the degree of prejudice to the
defense, and the strength of the government's case. In applying this
analysis to the wrongful destruction of evidence needed for postconviction
DNA testing, courts should give due weight to the exclusive power of DNA
evidence to discredit other forms of evidence and prove identity to a
scientific certainty. Further, in evaluating the strength of the government's
evidence at trial, courts must carefully scrutinize guilt determinations based
largely or exclusively on evidence that has been the predominate cause of
wrongful convictions, including stranger eyewitness identifications, non-
DNA   forensic  evidence, uncorroborated    confessions, and jailhouse
informant testimony. Applying these critical lessons learned from over 200
exonerations to the sanctions determination, appropriate sanctions for the
* Associate Professor of Law, American University, Washington College of Law; former
Executive Director of the Public Defender Service for the District of Columbia; Vice
President of the Mid-Atlantic Innocence Project Board of Directors; and Vice Chair of the
Board of Trustees for the Public Defender Service for the District of Columbia. I wish to
thank my very dear friend and mentor, Professor Angela J. Davis, for her tremendous
support and guidance. I also want to thank Associate Dean Mark Niles, Professor Adam
Thurschwell, Professor Ira P. Robbins, and Professor Andy Taslitz for their thoughtful
comments on earlier drafts. I would also like to thank my wonderful and resourceful
research assistants for their work: Frank Piggott, Daniele Shiffman, Jackie Bliss, Laurita
Denny, Alex Perlin, B. Cory Schwartz, Rebecca Walters, and Molly Bruder. I am indebted
to Ashley C. Parrish for his contribution of materials on the Lovitt case, and both Judge
Frank E. Schwelb and Judge Gerald Bruce Lee for their thoughts on judicial sanctions. Most
importantly, I owe a great debt of gratitude to Dean Claudio Grossman for his ongoing
support and assistance in advancing my scholarship.


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