Should DAs seek DNA destruction in plea agreement?

by Scott Henson of Grits For Breakfast

Rob Kepple, executive director of the state prosecutors' association, forwards an article from today's Dallas Morning News that apparently examines the case underlying the comment string that inspired this Grits post and another one reacting to prosecutor comments. Wrote Kepple:

Well what do you think? In this context, isn't the DA being pretty reasonable? Look at what the defense attorneys say.....

I responded thusly:

And yet, if the pleas in any of those Dallas cases included such a provision, the poor guys would still be in prison.

I've gone and looked at evidence in dozens of old cases in county courthouses, judges' chambers and occasionally some court reporter's garage in every corner of the state. Lots of evidence is routinely preserved for a long time, and there are strong public policy arguments for doing so. I don't see any harm in preserving DNA evidence, especially in cases where there are co-defendants or the defendant maintains their innocence.

That said, I'll post a link to the article and see what my readers think, since I know folks in your shop care so much about their opinion. ;)

And so I do. The main difference between this and the older Dallas cases is that the DNA evidence has been tested and the defendants' attorneys are privy to the results. But does that resolve all need to retain the evidence? This suspect has two co-defendants. Can one defendant agree to destroy evidence that might affect the other two cases? I'm not a lawyer. I don't know. But it doesn't on its face pass the smell test to me.

MORE: Kepple responded:

You know, you could at this point just concede that it's ok in this circumstance, even though it is not ok in many others. That was kinda the point of this whole discussion to begin with. Of course it wouldn't be a swell idea when the guy is contesting the case...in that situation the guy will be asking for it to be tested...

To which I replied:

Except I don't agree it's necessarily ok in this case. This guy has two co-defendants. Even on your own listserv that aspect was questioned. But then, I'm not a lawyer. I asked my readers and we'll see what they think.

Maybe y'all could admit at this point that the failure to retain old DNA evidence likely has resulted in many undiscovered innocence cases in counties where the evidence was destroyed rather than retained. What do you think? Will you make that public pronouncement?

I think when the evidence has been tested and no other parties have a stake in it, there are circumstances where I'd feel comfortable having it destroyed. But there are no such caveats in the law about what can be agreed to in a plea bargain, and too many DAs frankly have a convict at any cost mentality, which is why Dallas has all these innocent guys getting out of prison now in the first place. So I'm reluctant to grant license to DAs in a capital case, for example, to tell a defendant, "Let me destroy the evidence, or we'll kill you." I'd like to see evidence destruction policies uniform and not dependent on plea agreements.

Or am I missing something?

Read the Dallas News article and my original two posts, then let me know in the comments if this additional information changes your opinion about whether or when prosecutors should seek destruction of DNA evidence as part of plea deals. The more I think about it, I think there needs to be uniform standards established for when to destroy DNA evidence just like with drug evidence. Let me know what you think.

UPDATE: One of TDCAA's lobbyists, Shannon Edmonds, has added this comment to the DA's user forum: "FYI, I have confirmed that a bill or amendment will be proposed during this legislative session that would attempt to prohibit these kinds of plea conditions." So I guess I'm not the only one who thinks such plea conditions are a bad idea.

UPDATE:

One of TDCAA's lobbyists, Shannon Edmonds, has added this comment to the DA's user forum: "FYI, I have confirmed that a bill or amendment will be proposed during this legislative session that would attempt to prohibit these kinds of plea conditions." So I guess I'm not the only one who thinks such plea conditions are a bad idea.