Post-Conviction DNA Testing Procedures Act waiting for Senate approval in South Carolina

The Post-Conviction DNA Testing Procedure Act would allow access to evidence and the right to apply for DNA testing in certain cases. Laws such as this, that are already in effect in all but six other states, are essential for providing a final avenue of relief for persons who have been wrongfully convicted.
A Washington Post article highlights some of the emerging uses of DNA as a law enforcement tool. During the investigation of the recent highly publicized BTK (bind torture kill) case, the police had a suspect and needed a DNA sample, so they obtained DNA from Dennis Rader’s daughter’s five-year old pap-smear on her university campus. The DNA matched, tying Rader to the case. The analysis of DNA taken from relatives is only one example of the new frontiers being explored in the use of DNA as a law enforcement tool.
In S.C., DNA is collected from persons who are convicted of crimes, and persons who are on probation are required to submit DNA samples as well. Probationers are required to pay a fee to have a DNA sample taken from them. There is a growing cry to require all persons who are arrested to submit a DNA sample, regardless of whether they are convicted of anything. I imagine by the time my son, who is 18 months old, begins elementary school, they will be requiring him to submit a DNA sample and fingerprints before he enrolls in classes.
While many are cheering the increased collection of DNA samples from the masses to assist in finding and punishing suspected criminals, there is still resistance to the flip side of this coin, the use of DNA to find and free the wrongfully convicted. It is a fact that people are wrongfully convicted in our system. Innocent persons are convicted after trials and, believe it or not, innocent persons are pressured to plead guilty by their own defense attorneys. To date, The Innocence Project has been instrumental in the exonerations of 216 wrongfully convicted persons through DNA testing.


South Carolina is one of only seven states (South Carolina, Alabama, Alaska, Massachusetts, Mississippi, Oklahoma, and South Dakota) that do not have a law providing for DNA testing for convicted persons. However, a bill introduced by Senator Gerald Malloy would give convicted persons greater access to evidence and the right to apply for DNA testing in certain cases.
An article in The State newspaper highlights two solicitor’s offices that have consented to post-conviction DNA testing in specific cases, although there is no law requiring such testing. According to The State, the 15th Circuit Solicitor’s Office (Horry and Georgetown Counties) consented to testing in the case of Jonathan Smith, who is 41 years old, has been locked up for 24 years and is eligible for parole in May.
The only South Carolinian I am aware of that has been exonerated is Perry Mitchell, who, 10 years ago, was exonerated of rape charges after he had served nearly half of a 30 year sentence.
The time and place to prevent wrongful convictions is during the investigation by law enforcement, when the investigation is thorough and professional. It is when the prosecutors are reviewing the strength of their evidence and making ethical and informed charging decisions. It is when defense counsel is preparing for trial, knowing that there is a real possibility that their client is not guilty. It is when the jury retires to the jury room, hopefully with a real understanding of how our justice system works, what reasonable doubt is, and why that standard is so important. But, because the system can and does break down at any of these stages, this law, if it will provide access to evidence and DNA testing at least in some cases, is absolutely necessary.
I encourage our legislators and those with a voice to make this law a reality in South Carolina.

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