While Eilmes says he readily agreed to the new tests, convicts in other cases have faced much more resistance.
In a third case being led by the UW's McMurtrie and her team of post-conviction sleuths, inmate Alexander Nam Riofta is seeking a DNA test to prove his innocence (or confirm his guilt) in a 2000 first-degree assault case linked to the 1998 massacre at a Vietnamese karaoke bar in Tacoma, the Trang Dai, which left five dead and six wounded. Riofta, then a teenager, was friends with some of the accused killers, and was found to have shot at—but missed—the brother of a witness who'd agreed to testify.
Brian Smale
Bradford, shown outside the Yakima County Jail, confessed to rape eight hours after his interrogation began.
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McMurtrie is pushing to have DNA testing done on a white hat that witnesses say flew off the head of the shooter as he fled the scene. She suspects someone else's DNA could turn up, casting doubt that Riofta was the gunman. A lower court denied a motion to test the hat. Now the case is before the state Supreme Court, where a ruling, expected soon, could significantly expand, or limit, felons' access to post-conviction DNA tests.
At a high court hearing on Riofta in October, justices were asked to answer a narrow question—can a convicted felon request DNA testing of evidence (in this case, the hat) that was presented but not tested during a trial? Current law indicates it had to be tested back then or not at all. McMurtrie made a more expansive argument, maintaining that the intent of the law is to allow testing whenever there's a reasonable chance it can change the outcome.
Several justices seemed worried about a wholesale opening of the DNA floodgates. Make it easy and "everybody will want to do this," said Justice Barbara Madsen. "Shouldn't we have a higher standard, something really significant, to tell us we're probably going to get the result that could change the outcome?" she asked, wondering how to define the law's intent and set more specific requirements for testing. For example, if someone came forward with the name of the real shooter, that would justify testing, she said.
"We're not asking that his conviction be overturned," McMurtrie stressed to the justices. (There are, however, arguable doubts about eyewitness testimony and a photomontage used to ID Riofta that could become appeals issues should the DNA outcome be favorable.) If the inmate and others like him could be allowed to test, McMurtrie suggested, justice would prosper and the state could benefit directly: The hat could lead to a DNA match with a felon in the crime lab data bank. Additionally, the test could affirm Riofta's guilt in a way a jury trial couldn't.
Michelle Luna-Green, representing the state, suggested Riofta was just another guilty man trying to get out of prison. He was fishing for evidence without a legal basis, she said. The law was intended for those "very real" situations when a person could be innocent.
Justice Richard Sanders described a long-shot scenario, but one in which a prisoner nonetheless might be exonerated. It wouldn't cost the state much to do the test. "Would you just say no?" he asked Luna-Green.
That's in fact what prosecutors did in the Riofta case, she said. Authorities felt "the DNA would not prove, on a more-probable-than-not basis, actual innocence." Even if it was not his DNA on that hat, Riofta still could have been at the scene, she said—an argument similar to that being made in the Bradford case.
All right, said Sanders, but what if, in the testing process, another felon's DNA is matched to the cap?
"The state's not going to accept hypothetical situations from convicted aggravated murderers" such as Riofta, Luna-Green responded.
Officials nationwide take a similar position. A 2005 investigation by the Pittsburgh Post-Gazette found U.S. prosecutors regularly oppose DNA tests unless the lab profilings conclusively prove "actual innocence." Prosecutors thus become judges under those circumstances, making unilateral decisions on whether or not DNA will be tested, and have a vested interest in not being reversed.
McBride, of the Washington prosecutors' association, thinks his members should have more latitude than the defense to assess the worthiness of DNA tests. "It does the criminal justice professionals as well asjurors a disservice to imply that they cannot judge the meaning and implications from DNA, either its presence or absence," he says.
But as the Bradford reversal suggests, meanings and implications may best be explored through a robust adversarial debate. It's a decade later, and prosecutors have yet to substantiate that they have their man.
randerson@seattleweekly.com
