Serious flaws uncoverned in state's DNA test program

1/29/2008

COLUMBUS - The state's DNA testing program for inmates seeking to prove their innocence is so flawed that police and courts routinely discard evidence after trials, The Columbus Dispatch reported Sunday.

Judges also ignore DNA testing requests and nearly a third of the denials the paper looked at failed to cite a specific reason, as required by state law.

In other cases, nothing indicates that anyone even read the inmate's request for DNA testing, The Dispatch reported.

Gov. Ted Strickland told the newspaper he is calling for an overhaul that would speed up the review process, open testing to more inmates, and set state standards for preserving evidence.

Nationwide, DNA tests have freed more than 200 inmates, including six from Ohio. Four were done before the state created a formal testing program.

Since then, 313 Ohio inmates have applied but only 14 tests have been done. Evidence has been lost or destroyed in some cases, The Dispatch said.

Ohio lawmakers feared a flood of frivolous prisoner applications when they clamped down on eligibility for the testing program created in 2003.

Unlike 22 other states, Ohio has no law requiring criminal evidence to be catalogued and saved.

"It's a mess and frustrating when you can't keep track of evidence," said Lucas County Prosecutor Julia Bates, whose jurisdiction includes Toledo. "We have 88 counties with sheriff departments, police departments, and dozens of other entities, and everyone does evidence retention differently."

Lost evidence, tardy responses, and unenforced rulings have hampered testing requests made by four death-row inmates, The Dispatch said.

Ohio Supreme Court Chief Justice Thomas Moyer said he's troubled by the findings.

"When we take someone's life or we take their freedom, we want to be certain that we've done everything we can," Chief Justice Moyer said.

Judges can lose track of prisoners' DNA applications or court filings for many reasons, said Mark Schweikert, chief of the Ohio Judicial Conference, a judicial oversight organization.

The inmates often don't have lawyers, and paperwork ends up filed under the original case numbers, which can be decades old and labeled as closed, he said. And the outcome of post-conviction DNA cases isn't among the data judges report to the state Supreme Court.

The newspaper identified 13 cases in which testing hadn't been done more than a year after a judge's order, and some orders were ignored for more than two years.

Ohio Attorney General Marc Dann said he would support a state law requiring that evidence be kept for a certain period of time.

Melinda Elkins, who fought for years to free her former husband, said Ohio's DNA testing program must be fixed.

Clarence Elkins, 45, was convicted in 1999 of killing his mother-in-law and raping his 6-year-old niece in Summit County. A DNA test later cleared him. He was freed from prison in 2005 after serving six years.

"The only way to prove Clarence's innocence was to test the evidence, and people shouldn't have to fight the system as hard as I did to do that," said Melinda Elkins, of the Ohio Innocence Project, a nonprofit legal clinic based at the University of Cincinnati's College of Law.