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Post-Conviction DNA Testing in Massachusetts

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By Michael Blanding and Lindsay Markel, The Schuster Institute for Investigative Journalism

The Boston Globe Magazine's cover story for Sunday, November 20, 2011, is a Schuster Institute investigation of a longstanding problem facing Massachusetts inmates who claim innocence: No legal right or even a specific legal procedure to test DNA evidence that might help prove their innocence.


Nationwide, DNA tests have helped exonerate 280 innocent men and women. Since the first DNA exoneration 22 years ago in 1989, 49 states have passed laws granting inmates the right to test DNA evidence. Oklahoma passed one, but let it expire, leaving Oklahoma and Massachusetts as the only two outliers in the nation.

It's not for lack of trying that Massachusetts offers no legal access to DNA testing for inmates. A bill has been proposed every legislative session since 2003, always with the same result: No DNA access law.

The case of Massachusetts's Anthony Powell, wrongfully convicted and exonerated because of DNA tests, reflects a troublesome national concern: When the wrong people are convicted of heinous crimes, the guilty are free to reoffend. While Powell was in prison for rape for 12 years, the actual perpetrator raped more women.

According to the Innocence Project's most recent review of the first 273 DNA exonerations:
In nearly half (46%) of the first 273 DNA exonerations, post-conviction DNA tests revealed the true perpetrator of the crime.

While the wrong person was incarcerated, the real perpetrators remained free to commit a minimum of 114 additional violent crimes, including:

• 65 rapes
• 30 murders
• 19 other violent crimes.

Once again, lawmakers on Beacon Hill today stand at the crossroads of deciding whether Massachusetts prisoners should be given a statutory right to DNA testing.

The Boston Bar Association (BBA) convened a "who's who" of criminal justice, and everyone on the panel--from prosecutors to the head of the state crime lab--agreed: Massachusetts should pass this bill.

The BBA-recommended bill is essentially the one before the Massachusetts legislature now. The Senate voted unanimously in its favor. Now it sits in the House, where it appears there's been little movement.

Excerpt from "Failing the Test":

"Dennis, put on Channel 4. Put on Channel 4!"

The year was 1993, and Dennis Maher was returning to his cellblock after a shift at the Bridgewater Massachusetts Treatment Center staff grill. He was nine years into serving a life sentence for two rapes and a sexual assault. Like many convicts, Maher had long professed his innocence, but something was different this time: His fellow inmates - and even some of the guards - actually believed him. So now they were shouting across the cellblock, telling him he had to turn on Donahue.

Maher switched on the television to see a New York lawyer named Barry Scheck, who was using something called DNA testing to perform miracles - prove convicts innocent of the crimes they were doing time for. Scheck had set up the Innocence Project just the year before, and he'd already helped free several wrongly convicted men. Finally, Maher had something to pin his hopes to. DNA would be his best chance to clear his name. After all, nothing else was working.

Maher wrote to the Innocence Project to say he, too, had been wrongly convicted.

To learn more about this issue

• Read "Failing the Test," The Boston Globe Magazine, Sunday, November 20, by the Schuster Institute's Michael Blanding and Lindsay Markel. (Subscription required.)

• Listen to WGBH's "Morning Edition," Monday, November 21, 7:00-9:00 a.m. (ET), when Phillip Martin will report on the issues raised by the Schuster Institute investigation and interview key players.

• Visit the Schuster Institute for Investigative Journalism's website for a reading guide to "Failing the Test." Learn more about the men named in the article who are waiting for tests. Learn about those in Massachusetts who have already been exonerated through DNA testing. Learn more about the importance of evidence preservation, and why it is crucial in a system that claims to seek justice for all.

Schuster Institute for Investigative Journalism