It’s shocking to think how many “fool-proof” methods of forensic science have sent innocent people to prison.

Many such convictions have been overturned by DNA evidence, and the “fool-proof” evidence on which conviction was based turns out not to be so reliable after all. The number of false convictions thus exposed is frightening.

But what if only half that equation is obtainable: The old evidence is debunked, but DNA isn’t available to prove innocence conclusively?

State Sen. Bill Stanley, R-Franklin County, has proposed legislation to allow people to ask the Virginia Court of Appeals to overturn their guilty verdict if the form of evidence by which they were convicted has been debunked, or if fresh developments in forensic science might be able to prove innocence.

The bill is long, complicated and filled with conditions, as Mr. Stanley tried to overcome objections made to a similar bill last year by the commonwealth’s prosecutors.

Among the provisions of the bill: Prosecutors could refile charges even if an old conviction were overturned; and the legislation would sunset, getting a try-out period from July 2020 to July 2024.

Nonetheless, the Virginia Association of Commonwealth's Attorneys says it will oppose the legislation again this year.

Michael R. Doucette, the group’s executive director, says the legislation isn’t worded so as to require that old evidence has been discredited or that new evidence is compelling; it only requires that forensic science has changed. That’s not a strict enough standard, he says; instead, it would allow convicted criminals to exploit a loophole.

Certainly, we don’t want criminals slipping through loopholes — or tying up court resources on unworthy cases.

However, prosecutors in general are hardly known for their flexibility toward revising bad law. They fought for years against relaxing Virginia’s infamous 21-day rule, which required new DNA evidence to be presented within 21 days of final sentencing: 22 days, and even the most compelling proof of innocence was no good.

That appalling error eventually was corrected, and perhaps this problem will be, too — and in a way that prevents innocent people from unjustly serving any more time in prison, while at the same time preventing the guilty from escaping justice.

The truth is that many once trusted forms of evidence have been discredited.

In 2016, the Innocence Project at the University of Virginia’s Law School helped free a man who had spent 27 years in prison for a rape he maintains he did not commit. It was one of the cases the group took on because of the forensic tool of hair microscopy, which had been debunked.

Last year, a Portsmouth man was declared innocent of a 1982 rape and murder; he had been convicted partly because of “bite-mark evidence,” which also has proved to be unreliable.

Other forms of “evidence” that have proved to be unreliable include burn patterns in arson cases that supposedly show where a fire started (forensic scientists now know that burn patterns can be more random than previously believed); and cellphone records that allegedly place a user close to the scene of the crime, when in fact cellphone traffic often is rerouted to avoid congestion, causing a call to “ping” on a tower nowhere near the caller’s actual location.

Lawmakers, prosecutors and innocence advocates must work together to take this growing body of knowledge into account, so that people convicted due to unreliable evidence won’t continue to pay for others’ mistakes.


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