The fact is that few defendants are able to utilize DNA to demonstrate their innocence, but Scalia's math assumes that they are nonetheless actually guilty despite the lessons we've learned, or should learn, from DNA exonerations.
Speaking of innocence, the Innocence Project, on its Innocence Blog, asks how many innocent are behind bars and concludes that "there is a consensus that nobody ruly knows how many innocent people are in prison – and we may never know." They also observe:
"The Innocence Project has always said that DNA exonerations are just the tip of the iceberg, since only 5-10% of all criminal cases involve biological evidence that can be subjected to DNA testing (and even in those cases, the evidence is often lost, destroyed or too degraded to yield results in DNA testing). But the 215 wrongful convictions overturned to date by DNA testing illustrate the broader causes of wrongful conviction and show the need for reforms that can prevent injustice."
In other words, we know via DNA exonerations that a significant portion of convicted persons were actually innocent. We also know that between 1 in 10 and 1 in 20 defendants can utilize DNA to demonstrate the falsity of their conviction. While Scalia assumes their guilt, this ignores the lessons that DNA exonerations should teach us about the wrongful conviction rate as a whole.
The Innocence Blog, quoting the New York Times article, also notes conclusions we can draw despite the unavailability of exonerating evidence:
- Black men are more likely to be falsely convicted of rape than are white men, particularly if the victim is white.
- Juveniles are more likely to confess falsely to murder.
- Exonerated defendants are less likely to have serious criminal records.
- People who maintain their innocence are more likely to be innocent.
- The longer it takes to solve a crime, the more likely the defendant is not guilty.
I have a trial coming up involving a juvenile charged with being an accessory to a theft. He "confessed" but I'm still having the trial as he seems to fit into the "confess falsely" group above, given his age and the fact that several of his friends confessed at the same time.
All the other defendants have admitted and I have a feeling the judge thinks of me as a pariah for holding out. But I haven't gotten a chance to speak yet and still think the evidence is weak.
I worry that, just as peer pressure got to the kid, the confession will be too much to overcome, but want to avoid putting another kid into the "falsely convicted" group described above. So, we're not going down without a fight.