Yes, DNA technology is amazing. Roughly 99.9 percent of human DNA is identical from person to person; the other 0.1 percent is what distinguishes each of us, and scientists have long sought to pinpoint those differences.
Advancements in DNA testing allow us to identify the source of a genetic profile with unparalleled accuracy and from ever smaller quantities of biological material like blood, semen, hair, saliva, or skin tissue. As a result, the tool has proved the innocence of 375 convicted criminal defendants and led to their exoneration.
But DNA testing is a relatively new phenomenon. The first exoneration based on that technology didn’t occur until 1989. Also, biological evidence suitable for DNA testing is found at the crime scene in only about 10 to 20 percent of cases. When it exists nowadays, this evidence is usually analyzed at the front end of the process to weed out innocent suspects and find the true perpetrator if there’s a match to a profile in a database. In older cases, though, biological evidence may not have gone through any DNA testing, or at least not the most recent, most refined technologies available.
In those older cases, innocent prisoners may try to locate biological evidence gathered at the time of the crime, access it, and submit it for DNA analysis. Even though all fifty states and the federal government have laws that govern how to retrieve and test biological specimens after conviction, the evidence sometimes gets degraded, lost, or destroyed over time. Worse yet, those laws contain procedural obstacles that occasionally keep the silver bullet of DNA lodged in its chamber, unable to right a possible wrong.
The tally of documented DNA exonerations since 1989 therefore represents a thin slice of the population of prisoners who are actually innocent, because so few cases contain biological evidence suitable for DNA analysis, and the ones with testable evidence don’t always bring relief for the wrongfully convicted. A disturbing case from New Jersey shows this phenomenon in action.
The Jersey Shore is known for its surf, boardwalks, and reality television stars. In 1988, one of its resort towns, Long Branch, gained fame for a more ignominious reason. One evening that September, a man grabbed a teenager walking home from her job at a restaurant, raped her, and stole her purse.3 Three days later, the survivor saw a Black man, Dion Harrell, in the parking lot of the same restaurant and thought he resembled her assailant. Harrell protested when the police picked him up, insisting they had the wrong person. He begged the police to let the victim see him so she could get a closer look and clear up the mistake. Procedures like this, called showups, normally happen right after the commission of a crime when the police canvass the area and catch someone who fits the description of the perpetrator. To do a showup days after a crime is unusual (and worrisome) given the vagaries of human memory and the suggestive nature of the procedure. But the police acquiesced to Harrell’s demands. They put him in a room with the victim, and she identified him as her rapist. Authorities in Monmouth County charged Harrell with sexual assault.
The victim repeated her identification of Harrell at trial. DNA testing wasn’t widely available in New Jersey at the time. Instead, standard blood-type analysis remained the norm in the forensics world. An analyst with the state police crime lab testified that blood typing put Harrell within a tiny subset of the male population—just 2 percent—that could have provided the semen in the rape kit.
Harrell took the stand in his defense. He testified that he had been playing basketball on the night of the crime, and had later ridden his bicycle over to a friend’s house. Several witnesses substantiated key portions of his alibi. It wasn’t enough, though, to ward off the combined impact of the victim’s identification and the forensic testimony. A jury convicted Harrell of sexual assault in 1993, and a judge imposed an eight-year sentence.
Harrell remained in prison until his release on parole in 1997. As a condition of his release, he had to register as a sex offender under Megan’s Law, an act named after seven-year-old Megan Kanka, who was raped and killed by a convicted child molester in 1994 after he had moved into her New Jersey neighborhood without anyone being warned about his history. Versions of this law now operate in every state to force people convicted of sex crimes to register with the government. New Jersey mandates publication of an offender’s name, face, and address, as well as information about the crime, on the state’s online database. These conditions not only give the public notice about sex offenders’ whereabouts but also restrict where they can live and with whom. The sex offender law disrupted Harrell’s reentry into society right off the bat because its ban on living near children prevented him from moving in with his sister and nephews as planned. Harrell failed to consistently comply with the registration requirements after that rough start, in part because he refused to admit guilt and brand himself a sex offender. That led to two prison stints over the years. Unable to keep a job because of his sex offender status, Harrell drifted in and out of homelessness when he wasn’t behind bars.
Despite the insecurity of his daily life, Harrell was steadfast in his efforts to prove his innocence. He wrote the Innocence Project in New York City asking for help. With a backlog of ten thousand requests, the Innocence Project didn’t prioritize Harrell’s case, especially after he got paroled. Rather, it simmered on the back burner until the organization investigated the case in 2013 and learned that the forensic analyst had grossly overstated the significance of the serological evidence at Harrell’s trial. Contrary to the analyst’s assertion that 98 percent of the male population could be excluded as the source of the seminal fluid—thereby placing Harrell within a narrow band of possible suspects—the blood-typing evidence didn’t actually rule out anyone.
The Innocence Project set out to locate the biological evidence. Monmouth County prosecutors found the evidence in 2014 but declined to turn it over to the Innocence Project because New Jersey’s postconviction DNA-testing law confined eligibility for relief only to people who were currently incarcerated. It didn’t matter that Harrell had to register as a sex offender, that his liberty was still impaired by the rape conviction. The plain language of the law only granted access to people in custody, and Harrell was not imprisoned at that particular moment. For prosecutors who wanted to adhere to the letter of the law, if not its spirit, that was it. As they declared in opposition to Harrell’s request, “The State believes the conviction is entitled to finality.”
Innocence Project attorney Vanessa Potkin disagreed. A tireless advocate for the wrongfully convicted, Potkin filed a motion for access to the evidence and made a compelling argument as to why denying testing to a man who had spent nearly twenty years on a sex offender registry was unfair. Mere weeks before a judge was slated to decide the motion in 2015, prosecutors reversed course and consented to the tests. Those tests later excluded Harrell as the rapist, and a court tossed out his conviction.
After lobbying from the Innocence Project’s policy team, New Jersey changed its postconviction DNA-testing law. Now someone like Dion Harrell, out from prison but constrained by sex offender registration requirements, may petition for DNA testing. But other states are less magnanimous. Taking a deep dive into the sea of state postconviction DNA-testing laws is not for the faint of heart. It’s disorienting to swim through its reefs and coves, some of which appear situated just to block the innocent from reaching their destination. Others look innocuous at first glance, their dangers only emerging upon inspection.
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