The advent of forensic DNA evidence has made possible the prosecution of
many crimes that would otherwise be un-prosecutable or that would have been weak
cases, if prosecuted. At the same time, forensic DNA technology has raised very
substantial concerns about the reliability of evidence previously viewed as the gold
standard in proof Wrongful convictions by the Innocence Project and others have
established that eyewitness misidentifications, false confessions, bad forensics and
mistaken guilty pleas occur. The much lesser known but still very troubling concern
is with the performance of defense counsel in cases in which the prosecution has
forensic DNA evidence. Anecdotal evidence from wrongful convictions suggest that
at least some lawyers are handling cases with DNA evidence or the potential for
DNA evidence so poorly that wrongful convictions are occurring.
This Article examines the intersection of sophisticated forensic DNA tech-
nology and the hands-off Strickland standard captured by an equally sophisticated
decisional architecture. It collects of several layers of empirical evidence: judicial
performance in over 300 ineffective assistance of counsel (IAC) opinions; DNA ex-
onerations in cases in which DNA was used or DNA testing was denied and DNA
cases in which a defendant raised an IAC claim, lost and was later exonerated.
The Article also tracks almost 50 cases in which the prosecution presented DNA
cases which resulted in either a complete dismissal, an acquittal at trial or a very
favorable plea offer.
The conclusion from the varied empirical evidence: judges are very often han-
dling DNA IAC claims poorly. Strickland's decisional architecture is failing. Judges
are over-relying on deference and presumption. They never assess what prevailing
professional norms are for handling DNA cases. Whether through inattentiveness or scientific illiteracy, they are creating an environment in which Strickland's com-
mand to ferret out unjust results is subverted. The Article concludes by offering four
recommendations for improving that poor performance and for a more fundamental
inquiry into the effectiveness of Strickland itself.
