August 20,, 2010
Defendants who seek DNA testing face procedural tests
By ANDREW BERGH
Special to the Journal

A Texas man was recently freed after spending 27 years behind bars for a rape he didn't commit. The key that unlocked his jail cell? DNA testing of the victim's clothing that belatedly excluded him as the rapist.

Given the gross injustice that obviously occurs when an innocent man loses his freedom, one might think DNA testing is readily available for those protesting their innocence. But as shown by State v. Thompson, that's not true at all — and maybe just as well.

One evening in April 1995, J.S. went to a bar in Lynnwood with some of her friends. (To protect the woman's privacy, court documents only use her initials.) At some point, J.S. briefly talked with a man she later identified as Bobby Thompson. Later in the evening, as she was leaving the bar, the man reportedly approached J.S. and told her about an “after-hours party” at a hotel across the street.

Since the ensuing events would probably be R-rated if made into a movie, I'll give you the short version.

According to J.S., when they got to the hotel room, nobody else was there. When she said she wanted to leave, the man responded by physically assaulting J.S., twice causing her to lose consciousness, and by raping her two times. Her last memory before waking up in the hospital? The man trying to drown her in the bathtub.

Shortly before 3 a.m., Lynnwood police arrived at the hotel in response to a domestic violence call. As they walked down the hallway, the officers saw Thompson exit a room with J.S. and push her toward an emergency exit. After J.S. began yelling hysterically that Thompson had beaten and tried to kill her, the cops detained and later arrested him.

The subsequent investigation produced enough physical evidence for a whole CSI episode. Blood was splattered throughout the hotel room, while sperm was found on vaginal swabs taken from J.S. But for unclear reasons, although a blood sample was later obtained from Thompson, no DNA analysis was ever performed. Instead, limited testing of the blood samples only revealed that the blood type matched that of J.S., but not Thompson.

After Thompson was charged with first degree rape, his defense team interviewed J.S., who described her assailant as 5'7” or 5'8”, with light-colored hair and no facial hair. This undoubtedly made Thompson's day, since he was 6'3”, dark-haired, and sported facial hair. But a Snohomish County jury apparently ignored these discrepancies, convicting Thompson in July 1995. (Like a certain Illinois governor who just got tried on corruption charges, Thompson presented no evidence at trial.)

According to a Washington statute, a criminal defendant who seeks DNA testing following his conviction must jump through some hoops.

First of all, the convicted person must satisfy certain “procedural” requirements. These are met by showing, among other things, that DNA testing would provide “significant new information,” and by explaining how the DNA evidence is “material to the identity of the perpetrator.”

But the defendant must also pass a more rigorous “substantive” test. This is satisfied by showing the DNA evidence would demonstrate innocence on a “more probable than not” basis.

Oddly, Thompson waited until 2006 to file a postconviction motion for DNA testing. The trial court denied his request, ruling that the convicted rapist hadn't met the statutory requirements.

At first, Thompson's appeal was put on hold. A stay was necessary, said the appeals court, until our state Supreme Court decided another case involving the DNA testing statute. (This finally happened in 2009.)

Following this long delay, Thompson recently got favorable news.

As for the blood samples, the appeals court agreed with the lower court. Since the blood type only matched the victim's, not Thompson's, the absence of his DNA in the blood sample wouldn't necessarily demonstrate his innocence. Instead, it would just confirm the blood came from J.S.'s injuries, said the court.

But DNA testing of the sperm sample was a different story.

The absence of Thompson's DNA in this sample, said the court, would be “highly probative” of his innocence. This was so because there was no evidence J.S. had intercourse with anyone other than the rapist. So even the “strong eyewitness testimony” would be rebutted, said the court, if DNA results ruled out Thompson as the “sperm donor.”

In short, Thompson will finally get DNA testing.

But frankly, while I'm not rooting against him, I'd be surprised if the DNA results ultimately help his cause. After all, even if J.S.'s identification is shaky given her subsequent statements to the defense, there are still three police officers who will testify that they saw Thompson forcibly exiting the scene of the crime with the victim.

How he explains that away without exculpatory DNA evidence, I know not.