Fordham Law Review Volume 77 Issue 6 Article 2 2009 The Right Remedy for the Wrongly Convicted: Judicial Sanction for Destruction of DNA Evidence Cynthia E. Jones Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Cynthia E. Jones, The Right Remedy for the Wrongly Convicted: Judicial Sanction for Destruction of DNA Evidence, 77 Fordham L. Rev. 2893 (2009). Available at: https://ir.lawnet.fordham.edu/flr/vol77/iss6/2 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. The Right Remedy for the Wrongly Convicted: Judicial Sanction for Destruction of DNA Evidence Cover Page Footnote Associate Professor of Law, American University, Washington College of Law; former Executive Director of the Public Defender Service for the District of Columbia; Vice President of the Mid-Atlantic Innocence Project Board of Directors; and Vice Chair of the Board of Trustees for the Public Defender Service for the District of Columbia. I wish to thank my very dear friend and mentor, Professor Angela J. Davis, for her tremendous support and guidance. I also want to thank Associate Dean Mark Niles, Professor Adam Thurschwell, Professor Ira P. Robbins, and Professor Andy Taslitz for their thoughtful comments on earlier drafts. I would also like to thank my wonderful and resourceful research assistants for their work: Frank Piggott, Daniele Shiffman, Jackie Bliss, Laurita Denny, Alex Perlin, B. Cory Schwartz, Rebecca Walters, and Molly Bruder. I am indebted to Ashley C. Parrish for his contribution of materials on the Lovitt case, and both Judge Frank E. Schwelb and Judge Gerald Bruce Lee for their thoughts on judicial sanctions. Most importantly, I owe a great debt of gratitude to Dean Claudio Grossman for his ongoing support and assistance in advancing my scholarship. This article is available in Fordham Law Review: https://ir.lawnet.fordham.edu/flr/vol77/iss6/2 THE RIGHT REMEDY FOR THE WRONGLY CONVICTED: JUDICIAL SANCTIONS FOR DESTRUCTION OF DNA EVIDENCE Cynthia E. Jones* Many state innocence protection statutes give courts the power to impose appropriatesanctions when biological evidence needed for postconviction DNA testing is wrongly destroyed by the government. Constitutionalclaims based on wrongful evidence destruction are governed by the virtually insurmountable "bad faith" standard articulated in Arizona v. Youngblood. The wrongful destruction of DNA evidence in contravention of state innocence protection laws, however, should be governed by the standards used to adjudicate other "access to evidence" violations in criminal cases, including disclosures mandated by the rules of criminal procedure, the Jencks Act, and Brady v. Maryland. Under the "access to evidence" sanctions analysis, courts must balance the degree of government culpability in the destruction, the degree of prejudice to the defense, and the strength of the government's case. In applying this analysis to the wrongful destruction of evidence needed for postconviction DNA testing, courts should give due weight to the exclusive power of DNA evidence to discredit other forms of evidence and prove identity to a scientific certainty. Further,in evaluating the strength of the government's evidence at trial,courts must carefully scrutinize guilt determinationsbased largely or exclusively on evidence that has been the predominate cause of wrongful convictions, including stranger eyewitness identifications, non- DNA forensic evidence, uncorroborated confessions, and jailhouse informant testimony. Applying these criticallessons learnedfrom over 200 exonerations to the sanctions determination, appropriatesanctions for the * Associate Professor of Law, American University, Washington College of Law; former Executive Director of the Public Defender Service for the District of Columbia; Vice President of the Mid-Atlantic Innocence Project Board of Directors; and Vice Chair of the Board of Trustees for the Public Defender Service for the District of Columbia. I wish to thank my very dear friend and mentor, Professor Angela J. Davis, for her tremendous support and guidance. I also want to thank Associate Dean Mark Niles, Professor Adam Thurschwell, Professor Ira P. Robbins, and Professor Andy Taslitz for their thoughtful comments on earlier drafts. I would also like to thank my wonderful and resourceful research assistants for their work: Frank Piggott, Daniele Shiffman, Jackie Bliss, Laurita Denny, Alex Perlin, B. Cory Schwartz, Rebecca Walters, and Molly Bruder. I am indebted to Ashley C. Parrish for his contribution of materials on the Lovitt case, and both Judge Frank E. Schwelb and Judge Gerald Bruce Lee for their thoughts on judicial sanctions. Most importantly, I owe a great debt of gratitude to Dean Claudio Grossman for his ongoing support and assistance in advancing my scholarship. 2893 2894 FORDHAM LAWREVIEW [Vol. 77 wrongful destruction of DNA evidence include a sentence reduction, a new trial, or dismissal. TABLE OF CONTENTS IN TRODU CTION ........................................................................................ 2894 I. THE ACCESS TO EVIDENCE DOCTRINE ................................................ 2899 A. CriminalDiscovery: Rule 16 of the FederalRules of Criminal Procedure.............................................................. 2907 B . The Jencks A ct ........................................................................ 2909 C . The Brady D octrine................................................................ 2913 II. FROM ACCESS TO EVIDENCE TO INNOCENCE PROTECTION ............... 2917 A. Circumstances Surroundingthe Destruction of Evidence ...... 2918 B. Prejudice Resultingfrom Destruction of Evidence ................ 2925 C. An Assessment of the Strength of the Government's Case ..... 2927 1. Eyewitness Identifications ............................................... 2929 2. Forensic Science Errors ................................................... 2932 3. Jailhouse Informant Testimony ........................................ 2936 4. False Confessions ............................................................. 2937 D . Sum m ary................................................................................. 2940 III. FROM ACCESS TO EVIDENCE TO THE CASE OF ROBIN LOVITT ....... 2940 A . The F acts ................................................................................2940 B. Access to Evidence Analysis ................................................... 2943 IV . APPROPRIATE SANCTIONS ................................................................ 2944 A . Sentence Reduction ................................................................ 2946 B . N ew Trial................................................................................ 2948 C. Vacating the Sentence/Dismissal............................................ 2949 C ON CLU SION ........................................................................................... 2954 INTRODUCTION Robin Lovitt was convicted of murder, sentenced to death, and scheduled to be executed on November 30, 2005.1 Mr. Lovitt would have had the dubious distinction of being the one thousandth condemned prisoner executed in the United States under the modem death penalty. 2 On the eve of Lovitt's scheduled execution, Virginia Governor Mark Warner commuted Lovitt's death sentence to a sentence of life in prison without the 1. See Lovitt v. True (Lovitt II1), 330 F. Supp. 2d 603, 606 (E.D. Va. 2004); Press Release, Death Penalty Info. Ctr., U.S. Death Penalty Continues Steady Decline as 1000th Execution Approaches 3 (Nov. 9, 2005), available at http://www.deathpenaltyinfo.org/ documents/DPIC 1000thPR.pdf. 2. Press Release, Death Penalty Info. Ctr., supra note 1, at 3. 2009] SANCTIONS FOR DESTRUCTION OF EVIDENCE 2895 possibility of parole. 3 Now Robin Lovitt will spend every day of his life in prison for a murder that he may have been able to prove he did not commit. We will never know for sure whether Mr. Lovitt is guilty because the only piece of credible evidence that could have established the true identity of the killer-blood left on the murder weapon-was destroyed before it could 4 be subjected to definitive DNA testing. Following his conviction and death sentence, Lovitt was entitled under the Virginia innocence protection statute to challenge his conviction by having the biological evidence in his case retested using more advanced forensic testing than was available at the time of his trial. 5 While Mr. Lovitt's case was pending before the U.S. Supreme Court, the state trial court clerk's office intentionally destroyed all of the biological evidence needed for DNA testing "to create additional [storage] space" 6 in the courthouse evidence storage room. Moreover, the destruction was unlawful under a newly enacted Virginia statute that expressly requires preservation of biological evidence in death penalty cases until after the prisoner is executed. 7 Although this new law was enacted nearly three weeks before the Lovitt evidence was destroyed, 8 the court clerk responsible for the evidence destruction claimed that he was simply not aware of the new law at the time he arranged for the evidence to be destroyed.9 While Lovitt was harmed by the evidence destruction, incredibly,