The reliance on science as a cure for injustice

[Tami]

The reliance on science as a cure for injustice
By KIRK MAKIN



It is becoming known as the \'\'CSI effect\'\' -- a syndrome that renders judges, juries and the public incapable of accepting a defendant\'s innocence unless he has DNA on his side.

Coined in honour of a hugely popular television series, CSI: Crime Scene Investigation, the CSI effect may have claimed Steven Truscott as its latest victim earlier this month when he failed to win a new trial.

If so, lawyers say, he was not the first to discover the downside of a revolutionary science. However, they say his case highlights a steadily increasing belief that science, particularly DNA, can correct any miscarriage of justice, and that in its absence, it is unsafe to acquit or exonerate.

\"DNA has become a false panacea,\" veteran defence counsel Steven Skurka said.

\"It has become a legal crutch that we rely on to cure injustice. As a result, anything less than the incontrovertible proof that DNA offers becomes highly questionable, because the bar has been raised so very high.\"

In recognition of that reality, lawyers for Mr. Truscott searched desperately for physical specimens they could analyze in a bid to overturn his 1959 conviction for the murder of Lynne Harper.

\"Because DNA is now the best-known and surest means of exoneration, it has come to be seen as a sort of benchmark for testing wrongful convictions,\" said Phil Campbell, a lawyer representing Mr. Truscott on behalf of the Association in Defence of the Wrongly Convicted.

\"I have had prosecutors say to me, \'After all, this isn\'t a case where innocence can be shown by DNA,\' \" Mr. Campbell said.

Federal Justice Minister Irwin Cotler said in an interview that while many legal subtleties lay behind his decision to refer Mr. Truscott\'s case to the Ontario Court of Appeal, the absence of DNA was significant. \"Yes, I think it\'s arguable and plausible to say that had there been DNA, it would have been different,\" Mr. Cotler said.

According to criminal lawyer Frank Addario, the escalating importance of DNA has also made it easy for governments and police forces to ignore areas that are often at the root of wrongful convictions and cry out for reform, such as faulty police photo lineup procedures and the videotaping of police statements.

\"Almost everyone in the justice system is most comfortable with hard science,\" Mr. Addario said. \"Yet in almost every wrongful conviction proven by science, there are all these other problems lurking.\"

In a new book, The Genetic Imaginary: DNA in the Canadian Criminal Justice System, Carleton University sociology professor Neil Gerlach maintains that public faith in non-scientific evidence was originally rocked by the wrongful convictions of Donald Marshall, Guy Paul Morin and David Milgaard.

\"Science was perceived as having an objectivity and precision that promised to increase the accuracy of judicial and jury decision-making,\" he said. \"Science, in other words, could increase public confidence in the judicial system.\"

Prof. Gerlach said that press coverage of wrongful convictions has played a large role in convincing the public that eyewitness testimony is faulty, jailhouse informants are individuals who will say anything to win favours, and overzealous police and prosecutors are potentially untrustworthy.

At the same time, the author wrote, the \"charisma of genetic science\" has helped blind people to the fact that science can be fallible.

\"In the press coverage, individual subjective interests were seen as intruding on the search for truth -- and DNA testing was represented as immune from this.\"

The unparalleled influence of DNA is also reflected in the record of the New York-based Innocence Project, which has used it to overturn more than 100 serious criminal convictions.

\"What those exonerations should tell us is that the justice system sometimes fails,\" Mr. Campbell said. \"It should make us more open to claims of innocence, and determined to investigate them by whatever means [are] available: DNA when we have it, hard work when we don\'t.\"

One of the few Canadian exonerations that lacked DNA was that of Clayton Johnson, a Nova Scotia man convicted of murdering his wife by throwing her down their basement stairs.

Yet, even there, science played a pivotal role. Mr. Johnson\'s exoneration was rooted in expert witnesses who concluded from the victim\'s injuries, the position of her corpse, and the physical layout of the stairway that she fell by accident.

\"Cases without DNA require the system to examine itself more closely, and to look harder at the quality of the evidence relied on by the jury,\" Mr. Campbell said.

\"What may be creeping in -- and should be resisted -- is the notion that because the optimal means of establishing innocence may, in a particular case, be unavailable, evidence which logically casts grave doubt on a conviction can be ignored.\"

Mr. Skurka said the justice system has to take a deep breath and keep DNA in perspective. \"The harsh reality is that in the vast majority of cases, it is the credibility of witnesses that dictates the result,\" he said.

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