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DNA retesting

DNA is unquestionably one of the greatest innovations in the history of crime investigation.  You're certainly not going to get an argument about that from Anthony Johnson.  Last week, the 8th District reversed the denial of his application for DNA testing, and gave him another shot at proving he didn't rob three women back in 2000.

The three women described the robber as wearing a grey and maroon windbreaker and a green polo cap.  The cops found those nearby, and SIU processed the cap and found a hair.  Off to the lab it went, but the DNA test excluded Johnson as a contributor.  Still, the three solid eyewitness ID's were enough to get a conviction.

Johnson's defense was the age-old "somebody else did it."  That somebody else, Johnson claimed, was Frederick Norman, who'd been convicted of committing a spate of robberies at around the same time.  In his motion for new trial in 2002, Johnson even attached an affidavit from Norman saying he was the one who committed the robbery.   That got rejected, as did two applications for DNA testing.  The Innocence Project got involved in 2013, and filed a third application.  That got denied, too, but in State v. Johnson, the 8th reverses.

A DNA test is the gold standard of proof.  Everybody (except juries) knows that eyewitnesses are a crap shoot, fingerprints aren't as solid people used to think, and a lot of ballistics is one step up from voodoo. But if the DNA test says that the chances of somebody else being the perp makes the lottery look like a sure bet, we're done here.  O.J. Simpson is probably the last guy to beat a DNA test. 

Of course, that works the other way around, too:  if it's not your DNA, that raises some questions about your guilt.  For that reason, the Ohio legislature passed RC 2953.47, which allows prison inmates to file post-conviction applications for DNA testing.

But there are requirements.  One section of the statute allows an inmate to get some item tested for DNA if no prior test was taken, and that at the time of trial, and DNA testing was not generally accepted or available.  The other allows retesting if a test was taken, but it wasn't a "prior definitive test."  Under both, though, the defendant has to show that a test would be outcome determinative; that is, "there is a strong possibility that no reasonable factfinder would have found the defendant guilty of that offense."

The second section seems to be the easier fit to Johnson's situation, but the court takes the hard road, and still winds up in the same place.  Johnson did not ask for the hair to be tested for Norman's DNA, and didn't ask for the other clothing to be tested, so he meets the "no prior test" requirement.  And while DNA testing was certainly accepted back in 2000, there have been substantial advances in DNA testing since then.  Y-STR DNA analysis, mini-STR, and touch NDA weren't available back then.  (And no, I don't know what any of that means.  If you came here expecting Bill Nye the Science Guy, I can only imagine your disappointment.

The big argument was over the outcome-determinative requirement, with the State arguing that since the jury had known the hair wasn't Johnson's, it wouldn't matter if the actual owner of hair was identified.  There's a big difference, though, between saying that it's not the defendant's DNA, and saying it's somebody else's, especially here:

$$If Norman's DNA is located on the hat and jacket but Johnson's DNA is not found on the hat and jacket, the DNA evidence along with Norman's confession, would point to Norman as the perpetrator of the crime.

The panel's work on the "outcome determinative" requirement is excellent, but other than that Johnson doesn't plow up any new ground.  Last year, in State v. Noling (discussed here), the Supreme Court reversed the denial of DNA testing to an inmate on death row, observing that the legislature had amended the definition of a definitive test  to include where "because of advances in DNA technology there is a possibility of discovering new biological material from the perpetrator that the prior DNA test may have failed to discover." 

The other interesting aspect of this case is that Johnson was convicted of two other robberies in the same trial as this one.  His application for DNA testing in the other two cases is still pending.  Not sure the Fred Norman thing is going to hold up too well in one of the robberies; the evidence indicates that one was committed by two men.


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