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Univ. of San Diego School of Law

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Tuesday, June 17, 2008

State needs to preserve trial evidence

The defense said it wanted to do more extensive testing than that performed by the prosecution.

It couldn't. The blood evidence had already been discarded by doctors at the Medical University of South Carolina. It had been stored for about two years but was trashed because the medical school needed the storage space.

No one knows if the conviction of Wesley Smith in his homicide-by-child-abuse trial would have been affected had the tests been performed. No one knows if it would have proved the defense's contention that maybe Smith's 4-month-old baby's 17 fractured ribs resulted from a rare disease that causes brittle bones. MUSC said the baby likely didn't have the disease, but it didn't test for it.

No one knows if it would have made the prosecution's argument stronger. If the defense tests came back negative, that would have eliminated one of the defense's key assumptions, making things easier for the jury to maybe find Smith guilty of homicide by child abuse instead of having to settle for a last-minute aiding and abetting charge.

At least one juror said she needed more information, saying she didn't feel good about the process.

She was left with too many "ifs" and "maybes."

And part of the reason is that South Carolina has yet to pass a preservation of evidence law, something the Innocence Project says is vital to making our criminal justice system more just.

Such a law has been considered this legislative session but is lost somewhere in the abyss of a House committee in Columbia. It's part of a bill that would allow DNA samples to be taken from those arrested for certain crimes and tested to prove innocence or guilt.

But this isn't a sexy law, not like a "Jessica's Law," in which advocates rely on the emotional tug that comes with the murder of a child.

The public instantly sees the value in that. It's harder to get worked up over something as bland as preserving evidence. I didn't even realize my native state lacked such a law until I researched the details of my oldest brother's murder conviction. That evidence had been discarded.

But a lack of such a law in South Carolina is wrong on multiple levels. The state generally doesn't uphold a defendant's right to a speedy trial, which is why Smith remained in prison for four years before being convicted, which is why MUSC felt it was OK to throw away key evidence.

Why should we be proud of a justice system which relies on a process that isn't all that just? [Mark Godsey]

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