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Reginald Clemons, DNA, and Taking the Fifth

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Chris King has this story in the St. Louis American on a hearing in the controversial Reginald Clemons case.  The murder in this case was committed in 1991.  New DNA testing with more advanced techniques is consistent with guilt, although less than conclusive.

The new DNA profiles conform to the state's case that Robin Kerry and Julie Kerry endured a group rape on the bridge. DNA with female characteristics extracted from the condom matches DNA with female characteristics extracted from Gray's boxers and pants, according to Stacey Bolinger, DNA analyst for the Missouri Highway Patrol. And according to Kim Gorman, DNA analyst for Paternity Testing Corp. in Columbia, this female DNA is 99.99 percent ("and really many more 9s than that") more likely to be a daughter of the Kerry girls' parents than a random person, according to comparisons to the parents' DNA profiles.

The DNA on both [codefendant Marlin] Gray's shorts and pants was subjected to a process that separates out sperm cells, enabling a separation of male DNA profiles. The male DNA on his shorts contains a mixture of at least two individuals, Bolinger said, and neither Gray nor Clemons could be eliminated from a possible match, based on a comparison to their DNA profiles. She said the male DNA on Gray's pants contains a mixture of at least three individuals, and Gray, Clemons and their codefendant Antonio Richardson could not be eliminated from a possible match.

And then there is this:

On Wednesday, Clemons refused to answer 29 questions from the state on grounds his answer could incriminate him. Initially, he pled the 5th Amendment 32 times, but after Judge Michael Manners encouraged him to meet with counsel to rethink his decision, Clemons answered three of those questions.

Regardless of whether such refusal to answer can be considered as legal evidence (and personally I don't think we need to extend Griffin v. California, 380 U.S. 609 (1965) to habeas proceedings), we can certainly consider it in public policy debates.  If Reginald Clemons were an innocent man wrongly convicted, he would be eager to tell the whole truth.

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The self-incrimination privilege should be deemed waived in these sorts of proceedings.

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