BY: The Exoneration Project

Discarded DNA & The Case of Moses-EL

Given the advances of modern science, it seems that it should not be hard to catch most rapists and to prevent the misidentification of most people wrongly accused of sex offenses. And yet, tragically, all too often the DNA testing in rape cases is never done.  This can mean that the wrong man is convicted and that the true offender remains free.

Here’s how it works.  Most rapists leave behind a unique identifier, in the form of their DNA.  When a victim goes to the hospital complaining of having been sexually assaulted, medical professionals complete what are known as “rape kits” to extract and store the offender’s DNA from under the victim’s nails and from any hair, semen, saliva, etc., left behind during the offense.  A DNA match to the evidence left behind provides the means for catching and prosecuting most offenders in stranger-based sex offenses. And for all of the wrongfully convicted sex offenders, DNA testing could exclude them as the offender, exonerating them while identifying the true perpetrators and stopping the real offenders from finding more victims.

Yet , according to the National Institute of Justice, there is currently an estimated backlog of 400,000 untested rape kits nationwide.  That means: crimes unsolved, perpetrators still free, and sometimes, the wrong person incarcerated for the crime.  And not only do hundreds of thousands of rape kits go untested, but in order to hide the backlog or to cover-up where prosecution mistakes have been made, some officials simply throw away the DNA evidence, discarding hope of finding the true perpetrator and vindicating the wrongfully convicted.

Consider, for example, the heart-wrenching story of Clarence Moses-EL. Moses-EL served 28 years of a 48 year sentence for a Denver rape he did not commit.  Mr. Moses-EL always maintained his innocence, and almost two decades into his sentence, he and his fellow inmates raised the $1000 he needed to have the DNA evidence from the crime in his case tested.  The court issued an order to preserve the evidence and test the rape kit.  After the order, the untested rape kit stayed in a police storage locker for four more weeks, clearly labeled “Do Not Destroy.” Then, the evidence was thrown away.  Officials simply threw away the DNA evidence Mr. Moses-EL needed to prove his innocence.

Mr. Moses-EL was thus left with virtually no way to prove that he had been wrongfully convicted.  Stunningly, a court found that the destruction of the evidence from his case, right before DNA testing, was not done in bad faith, and that Mr. Moses-EL was therefore not entitled to a new trial.  He finally won his freedom only because a former neighbor (who was incarcerated for another rape) wrote him a letter admitting to being the true attacker.  The neighbor was actually the first person the victim had named as a possible offender to the police, but it was a domestic violence situation, and she later switched her allegations and said that Mr. Moses-EL’s identity as her attacker came to her “in a dream.”  The true offender’s confession, coupled with the fact that Mr. Moses-EL’s blood type was the wrong type to have been the rapist, ultimately won him his freedom. But not before he served 28 years in prison, while the true offender went on to commit at least one more rape. And, even now, Mr. Moses-EL is waiting to learn whether prosecutors intend to re-try him for the crime.

The wrongfully convicted cannot be left hoping for a confession the true offender.  More funding is needed to test the rape kit backlog, and there need to be mechanisms in place to stop the destruction of DNA evidence.  DNA testing may expensive, but as Clarence Moses-EL illustrates, it’s far too expensive in human costs not to do it.