Everett Ruess And The Reliabilty Of DNA Evidence

November 2, 2009

A week or so ago I was listening to an NPR affiliate radio station when the subject of Everett Ruess came up. I knew nothing of the young man or his apparent untimely demise, but his tale intrigued me.  An artist, writer, and naturalist, he disappeared in Utah in 1934, and hasn’t been seen since. It got me thinking about DNA testing again when I heard about the National Geographic announcement in April that his bones had been discovered, and the subsequent revelation that the DNA test results were wrong.

As a criminal defense lawyer, I know how powerful DNA evidence can be. When your client’s DNA is found around a crime scene, it usually means a quick guilty plea and an attempt to limit the severity of the sentence.  The presumption of innocence evaporates.   DNA analysis has also served as a wonderful tool to free those who have been wrongly convicted.  Look no further than Barry Scheck and Peter Neufeld’s Innocence Project. According to their web site, 245 people in the U.S. have been freed by DNA testing.

Still, DNA evidence is far from perfect, and in most cases does not warrant the almost papal infallibility it is accorded by juries. Witness the problems revealed about the FBI lab in the late 1990’s.

It doesn’t look good for defendants who wish to challenge their DNA based convictions in states like Alaska, which is one of just six states without a law granting post-conviction DNA testing.  One man, William Osborne, was convicted of raping and almost killing a prostitute in Anchorage in 1993.   The DNA evidence against him back then was weak, so he asked for new tests with more modern, more accurate procedures.  Seems like a reasonable request, no?  After all, even  today, with more modern technology, mistakes happen. The University of Colorado Forensics Lab still doesn’t know what went wrong during the Everett Ruess test.

Well, according to the U.S. Supreme Court, it doesn’t matter whether or not the test was accurate.  It  ruled in June that criminal defendants have no federal constitutional right of post conviction access to DNA evidence.  In  District Attorney’s Office for the Third Judicial District v. Osborne, the court refused to recognize a “freestanding, substantive due process right to DNA evidence…”

Justice John Paul Steven dissented.  Here is what he had to say:  “When absolute proof of innocence is readily at hand, a State should not shrink from the possibility that error may have occurred.”


{ 1 comment }

Philip Fradkin November 2, 2009 at 7:16 pm

I find this comment fascinating and wish the author would get in touch with me directly. I am writing a biography of Everett Ruess for the University of California Press and watched the discovery of the bones from the very beginning. I was skeptical because the facts, as I knew them, seemed forced. The legal issues you raise are exactly what I have been wondering about, and more references would be gratefully appreciated.

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