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Vanderbilt Law Review Volume 55 Issue 3 Article 4 4-2002 Assessing the Risk of Executing the Innocent: A Case for Allowing Access to Physical Evidence for Posthumous DNA Testing Anne-Marie Moyes Follow this and additional works at: https://scholarship.law.vanderbilt.edu/vlr Part of the First Amendment Commons Recommended Citation Anne-Marie Moyes, Assessing the Risk of Executing the Innocent: A Case for Allowing Access to Physical Evidence for Posthumous DNA Testing, 55 Vanderbilt Law Review 953 (2019) Available at: https://scholarship.law.vanderbilt.edu/vlr/vol55/iss3/4 This Note is brought to you for free and open access by Scholarship@Vanderbilt Law. It has been accepted for inclusion in Vanderbilt Law Review by an authorized editor of Scholarship@Vanderbilt Law. For more information, please contact [email protected]. NOTES Assessing the Risk of Executing the Innocent: A Case for Allowing Access to Physical Evidence for Posthumous DNA Testing I. INTRODUCTION .................................................................... 954 II. THE CURRENT LANDSCAPE: THE INADEQUACY OF EXISTING LEGAL THEORIES ................................................................. 961 A. The Common Law Right of Access and State Open R ecords Statutes ...................................................... 961 1. B ackground ................................................... 962 2. A Virginia Case: Roger Keith Coleman ........ 964 3. A Georgia Case: Ellis Wayne Felker ............ 968 4. A Viable Theory for Obtaining Access to Physical Evidence? .................... .. .... .... ..... .... 970 B. The First Amendment: Freedom of the Press .......... 973 1. B ackground ................................................... 973 a. Press Access to Government Institutions-Jailsand Prisons ........ 974 b. Press Access to Judicial Proceed- ings .................................................... 975 c. Press Access to Court Documents ...... 975 2. The Coleman Case: Press Access to Physical Evidence Under the First Amendment ........ 976 3. An Implausible Basis for Media Access ....... 977 C. Unique State Claims ................................................ 979 1. Virginia: A Trial Court's Discretion to Donate Evidence to a Charity ................................... 980 2. Texas: Access Premised on Potential Suit Against the Actual Perpetrator(s) ................ 982 D. Negotiations with the State ..................................... 984 953 954 VANDERBILT LAWREVIEW [Vol. 55:953 III. POLICY ARGUMENTS IN FAVOR OF ALLOWING POSTHUMOUS DNA TESTING ..................................... 986 A. The Spirit of Open Government Records: An Informed Electorate Means a More Effective Democracy ........ 986 B. The Relevance of Posthumous DNA Testing to an Informed Policy Debate About the Death Penalty ... 987 C. Forcing a More Honest Dialogue About Criminal Justice R eform ......................................................... 990 1. The Unique Opportunity Afforded By D N A .............................................................. 990 2. Overcoming Resistance to Reform ............... 992 D. Addressing Policy Arguments Against Allowing Posthumous DNA Testing ........................................ 994 IV. THE NEED FOR LEGISLATION MANDATING ACCESS TO DNA E VID EN CE ............................................................................ 996 V . C ONCLUSION ........................................................................ 998 I. INTRODUCTION On February 5, 1985, Helen Schartner was raped and mur- dered on her way home from a bar in Virginia Beach.1 Joseph O'Dell was at the same bar that night, and fellow patrons claim he left the bar shortly after Schartner departed. 2 Several hours later, O'Dell was seen entering a convenience store with blood on his hands, face, and clothes. 3 O'Dell's estranged girlfriend-who had previ- ously falsely accused O'Dell of other murders-read about Schart- ner's murder and called the police to report that O'Dell had left some bloody clothes in her garage. 4 The police arrested O'Dell and charged him with the rape and murder of Schartner. 5 He was tried, found guilty, and sentenced to death. 6 O'Dell's 1986 conviction rested primarily on the testimony of a state forensic expert who claimed that the blood on O'Dell's shirt and jacket was "consistent" with that of Schartner's. 7 Because DNA 1. Afraid of a Shadow of a Doubt, WASH. POST, May 7, 2000, at B8; Roger Parloff, Gone but Not Forgotten, AM. LAW, Jan.-Feb. 1999, at 5. 2. John C. Tucker, A Look at Executions; What's Wrong with Making Sure?, WASH. POST, July 20, 1997, at C3 (noting that witnesses said that O'Dell and Shartner left within fifteen to thirty minutes of one another). 3. Afraid of a Shadow of a Doubt, supra note 1. 4. Id. 5. Id. 6. Id. 7. Id. 2002] EXECUTING THE INNOCENT 955 testing was not widely available in the mid-eighties when O'Dell was tried,8 the expert relied solely upon a rudimentary blood analy- sis, which compared proteins and enzymes. 9 O'Dell consistently maintained his innocence, claiming that on the night of the murder he had gotten into a fistfight after leav- ing the bar, 10 and the blood on his clothing came from this fight, rather than from any assault upon Schartner." DNA tests per- formed on O'Dell's shirt in 1990-four years after his conviction- proved that the blood on his shirt did not come from Schartner. 12 The tests were inconclusive with respect to the blood on O'Dell's jacket. 13 While his case was on appeal, O'Dell gathered additional evidence of his innocence. At trial, the state had presented the tes- timony of Steven Watson, a jailhouse informant who claimed that O'Dell confessed to Schartner's rape and murder while the two shared a jail cell. 14 In 1996, Watson gave a statement under oath in which he admitted that his trial testimony was false and that O'Dell had, in fact, never confessed to him.15 In 1997, O'Dell requested that additional DNA tests be per- formed on semen samples recovered from the victim. 16 Earlier at- tempts to test this evidence had been unsuccessful; however, recent advances in DNA technology now made it possible to perform DNA 1 7 testing on the small amount of genetic material in the sample. 8. Id. 9. Id. 10. Tucker, supra note 2 (explaining that other witnesses confirmed O'Dell's story that he had gotten into a bar fight at another tavern that night). 11. Id. 12. Id. The test showed that the blood on O'Dell's shirt was neither the victim's blood nor his own. Id. "That proof both undermined a major part of the state's case and supported O'Dell's claim that the blood had come from an incident unconnected to the murder." Id. 13. See Petition for Appeal at 9 n.6, Roman Catholic Diocese v. Fruit (Va. 1999) (No. 99- 1834) [hereinafter Petition for Appeal]. On the basis of the test results, both a defense expert and an expert for the Commonwealth concluded that DNA testing of the jacket sample was "inconclu- sive." Id. An additional expert for the Commonwealth testified, however, that "by analyzing [the private lab's] results under the Virginia state crime lab's 'match window'-which [is] 35% larger than the match window [of the private lab]"-he was able to conclude that the blood on the jacket was "consistent" with that of the victim. Id. 14. Id. at 3. 15. Id. Of all the wrongful convictions exposed through DNA testing by the Cardozo Law School's Innocence Project, jailhouse snitches played an integral role in twenty-one of these cases. BARRY SCHECK ET AL., ACTUAL INNOCENCE: FIVE DAYS TO EXECUTION AND OTHER DISPATCHES FROM THE WRONGLY CONVICTED 156 (2000). Of the cases that the Innocence Project investigated, none of the jailhouse snitches ever admitted to having fabricated their stories. See id. 16. See Petition for Appeal, supra note 13, at 3. 17. Id. At the time of the earlier unsuccessful tests, the lab was using a method of DNA testing called RFLP (restriction fragment length polymorphism), which requires a substantial 956 VANDERBILT LAWREVIEW [Vol. 55:953 These additional DNA tests, O'Dell argued, would provide him with an opportunity to prove his innocence conclusively.18 The state at- torney general, the governor, and the state and federal courts all refused to permit the testing. 19 As a result, Joseph O'Dell was exe- cuted on July 23, 1997.20 Convinced that O'Dell was wrongly executed, a team of law- yers, religious leaders, and death penalty opponents sought access to the body fluid evidence, so that DNA testing could finally be per- formed. 21 It was too late to spare O'Dell's life, his advocates admit- ted, 22 but not too late to expose the faulty system that had allowed his execution. 23 The Roman Catholic Diocese of Richmond and the Louisiana Crisis Assistance Center jointly filed suit in the Circuit Court of the City of Virginia Beach asking the court to donate the samples to them for testing.24 The Diocese's claim relied on both the common law right of access to judicial records 25 and a Virginia stat- ute that gives trial court judges discretion to donate evidence in criminal cases to charitable organizations upon completion of all 26 proceedings. The Commonwealth "vehemently opposed the petition" and asked the court instead for permission to destroy the evidence. 27 The Commonwealth warned that if the test results showed O'Dell's amount of DNA. Record of Hearing Before Circuit Court Judge Edward Hanson, Jr. (June 15, 1998) at 44-45, Roman Catholic Diocese v. Fruit (Va. Cir. Ct. of Virginia Beach 1998) (No. CL 98- 122) [hereinafter Record of Fruit Hearing]. An improved method of testing was subsequently invented-the PCR (polymerase chain reaction) test-which enables the testing of much smaller genetic samples. Id. at 45. 18. Afraid of a Shadow of a Doubt, supra note 1. 19. Petition for Appeal, supra note 13, at 3. 20. Id. at 1. 21. Petition for Donation of Certain Items Used as Evidence Against Joseph Roger O'Dell at Trial, and Motion for Temporary Injunction at 1-2, Roman Catholic Diocese v. Fruit (Va. Cir. Ct. of Virginia Beach 1998) (No.

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