Cruel Catch 22: When You're Out of Prison, You're Denied the DNA Test that Could Prove Your Innocence

Human Rights

It is not enough for Dion Harrell to simply be out of prison after serving time for a rape he is adamant he did not commit. He wants his name cleared and off the sex offender registry list, and is certain that the DNA evidence will affirm his innocence. But in a nightmarish Catch-22, the New Jersey man, who was released nearly 20 years ago after serving half of his eight-year sentence, doesn’t have the right to challenge the DNA kit that lead to his conviction because he is not currently in prison, The Marshall Project reports.

In 1988, a 17-year-old girl accused Dion Harrell of raping her on her way home from work. After spotting Harrell three days after the attack in the parking lot of the McDonald’s where she worked, she called the cops and he was arrested. She claimed Harrell was the man who attacked her. He was convicted of second degree sexual assault in 1992 and sentenced to 8 years in prison; he served half of that time. Harrell was placed on the sex offender registry after parole and under community supervision for the rest of his life.

The Innocence Project petitioned the Superior Court of New Jersey, in Monmouth County, to test the contents of the rape kit again so that it could be analyzed with technology that was not available during Harrell’s trial.

Christopher Gramiccioni, Monmouth County Prosecutor, initially refused. Unless someone is currently serving time, New Jersey law states that the person does not have the right to access post-conviction DNA testing.

“Defendant’s sexual assault conviction is 22 years old,” Gramiccioni wrote in January. “The State believes the conviction is entitled to finality.

Thirteen other states have similar laws which specify that only those who are serving time have a right to post-conviction testing. But lawmakers and defense attorneys are calling for these somewhat arbitrary  laws to be changed because it hampers the rights of defendants to challenge their convictions if they believe they were wrongfully imprisoned, and new technology may make it possible that more will be exonerated. Montana signed a new law extending DNA testing to inmates who are free. Now, New Jersey, Oregon and Rhode Island are considering a similar law.

“Because [Harrell] has been released from prison he no longer has the right to demand testing of evidence that might clear his name – and possibly identify the true perpetrator,” said New Jersey state Assemblyman Declan O’Scanlon, one of the bill’s co-sponsors, in a statement. “That is an awful contradiction that our laws present to prosecutors.”

Swayed by local coverage of Harrell’s story, prosecutor Gramiccioni relented in February, though he stopped short of agreeing the law should be rethought. “While Dion Harrell was released from prison more than a decade ago and is no longer serving a term of imprisonment, it is nonetheless in the interest of justice to consent to Mr. Harrell's motion for post-conviction DNA testing due to the unique facts and circumstances of his particular conviction,” Gramiccioni said in a statement, according to The Marshall Project.

Harrell’s test results are pending.

Those in favor of changing laws so that former inmates released from prison can have access to post-conviction testing say that people like Harrell who were convicted decades ago need access to new technology that can possibly prove their innocence.

“[The law] has to be clear...You cannot just rely on the goodwill of prosecutors,” said Innocence Project senior staff attorney Vanessa Potkin, who is representing Harrell, told The Marshall Project. “The people who really need DNA testing to prove innocence are people convicted in the 70s, 80s, and early 90s, before the current DNA technology existed.”

In Harrell’s case, the sole physical evidence used to convict him was a blood type of the semen recovered after the assault. It matched his own as well as the victim’s. This information was not presented to the jury in Harrell’s trial. It was only in 1999 and 2006 that the two kinds of DNA tests that could identify a perpetrator in the case became available in New Jersey. This, of course, came years after Harrell was released.

Prosecutors, however, claim that courts can be overburdened if testing is expanded to inmates who are not serving time.

But post-conviction tests requested by the Innocence Project clearly suggest that laws should give people like Harrell a chance: Roughly 42 percent of the post-conviction DNA tests confirmed guilt, 43 percent proved the defendant’s innocence, and 15 percent were inconclusive.

Harrell requested the Innocence Project’s help in 2002 but they could not get to his case until more than a decade later because of a backlog of cases. Right now, Innocence Project is evaluating 6,000 to 8,000 cases. While he waited, Harrell struggled to find work because of his conviction and was homeless for some time.

He is currently unemployed.


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