It is hard to precisely gauge how many wrongful convictions would be identified by reforms guaranteeing the review and disclosure of CODIS hits that emerge post-conviction. Because police and prosecutors do not currently have such policies in effect, and because the CODIS hit reports themselves are only accessible to law enforcement, there is very little data to work from. But a grant-funded program in Georgia—the only one of its kind to date—provides the best insight we have, and indicates that adopting good policies nationwide would generate 10–15 exonerations annually, a figure that further confirms the urgent need for action.
In 2014, the Georgia Bureau of Investigation (GBI), Prosecuting Attorneys’ Council of Georgia (PAC) (an independent statewide prosecuting body in Georgia), and Georgia Innocence Project (GIP) collaborated on an NIJ-grant funded project to review old CODIS hits. The project is the only one of its kind to date.
As part of the project, the GBI generated a list of all CODIS hits in Georgia from 2007–2014 (about 2,700 in total) and provided them to PAC. PAC reviewed these hits and for each one determined (1) whether a person had been convicted of a crime in relation to the case; and (2) if so, whether the CODIS hit pointed to the person convicted. From the 2,700 hits reviewed, PAC identified 43 hits where a person had been convicted of a crime but the CODIS hit pointed to somebody else, and sent those 43 CODIS hit reports to GIP. GIP then reviewed the 43 cases to identify any that were truly exculpatory.
While many of the hits, though pointing to someone else and important to disclose, did not suggest innocence (such as a cigarette butt found outside a bar where a fight had taken place), others had significant exculpatory value. Indeed, though the project’s funding period ended before all 43 cases could be investigated, one of the hits that was reviewed enabled the exoneration of an innocent man: Michael Googe. Though the CODIS hit in Googe’s case had been provided to police and prosecutors years before, no action had been taken, and its exculpatory potential—though clear on its face—was only acted upon as a result of this project.
The Georgia grant-funded project not only confirms that reviews of CODIS hits can bring to light exculpatory evidence that was previously ignored by police and prosecutors, it also provides the best estimate for how often this is likely to happen if proper review processes were to be adopted nationwide.
While a limited sample, Georgia’s grant project provides the best data available about the exculpatory potential of CODIS hits. Specifically, the data from Georgia suggests that 1.6% (43 out of 2,700) of CODIS hits involve a conviction, but point to someone other than the person convicted. The data also indicates that 1 in every 2,700 CODIS hits (approximately 0.04%) proves the innocence of a person who has been convicted—exculpatory information that is currently going ignored.
While this is a relatively small percentage, the absolute number is significant because of the huge number of CODIS hits that take place annually. While the FBI does not report the number of new CODIS hits each year, extrapolating from data from individual states suggests there are likely around 36,000 CODIS hits each year annually. This CODIS hit rate has increased substantially in recent years, as use of the CODIS program has increased and states have made efforts to address the sexual assault kit backlog.
This suggests that each year there are over 14 CODIS hits that prove a person’s innocence but were overlooked or ignored by police. By adopting policies to review all CODIS hits, and properly investigate any that are potentially exculpatory—as Georgia’s grant-funded project did—we can ensure those 14 CODIS hits are properly acted upon, and that the people whose innocence they reveal are released from prison.
These 10–15 cases per year in many ways represent the lowest hanging fruit of wrongful convictions. Most wrongful convictions take years and millions of dollars to correct. Lawyers struggle to get old DNA tested, and in many cases grapple with the reality that no DNA evidence exists in the case, or if it did it was lost or destroyed. With an exculpatory CODIS hit, the story is very different. The DNA evidence has already been tested, and a match has actually been identified. After all this work has already been done, we must ensure our policies do not lose this evidence at the very last step.