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Eleventh Hour DNA Testing

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There have been a couple of developments in cases where issues of DNA testing have come up after the usual reviews of a case are over.

The U.S. Supreme Court granted a stay of execution pending its consideration of a certiorari petition in the Texas case of Henry Skinner. No dissents are noted. Allan Turner has this story in the Houston Chronicle.

In the Missouri case of Reginald Clemons, there is a different twist. There is a question whether a rape kit was not revealed to the defense until recently. However, Heather Ratcliffe reports in the St. Louis Post-Dispatch that "St. Louis Circuit Attorney Jennifer Joyce said Friday that she can prove the defense had it as early as 1994 and that she has no reason to doubt that it was available prior to the trial in 1993."

And now, for something completely different:

The attorney general's office and [local prosecutor] Joyce are seeking to have the material tested, although the defense is reported to be objecting. Clemons' lawyer has not responded to request for comment, and has not yet filed his position with the court.
Stephen Hawke, an assistant attorney general, wrote in the motion: "Looking around the country, claims of untested DNA material are commonly used by capital offenders in an attempt to obtain a stay of execution." He continued, "Ordering testing to proceed should preempt petitioner's ability to claim an entitlement to a stay of execution."

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Another stay from the "do as I say, not as I do" Supreme Court. First of all, Skinner, through counsel, declined to have this material tested at trial--a smart move, given that the other blood evidence was clearly inculpatory. Second, this innocence claim has been known for years. And it gets filed at a very late date. The Supreme Court should make it clear that it will take a very dim view of these last minute appeals, especially where, as here, the claim is weak. Gamesmanship like this is an affront to the dignity of the State, and it should not be tolerated.

As for Clemons, the existence of a rape kit is interesting. The Kerry sisters (and their cousin) were forced off a bridge into the Mississippi River--perhaps I am mistaken, but it seems unlikely that there would be any biological material left. And if defense counsel is lying, i.e., that it didnt get the material, the sanctions should be stiff. Clemons should have been executed years ago, and it is disgusting that one of his accomplices, Antonio Richardson, escaped the needle because of the Supreme Court's appallingly bad decision in Roper, as case which, coincidentally, involved the pushing of a woman into a river from a bridge.

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