In the comments to Murphy’s Law of Investigation we had a little discussion of what a lawyer should do when his client maintains his factual innocence, and he discovers that there is evidence that, if analyzed, could either confirm that factual innocence or conclusively disprove it.
Renaissance man Joel “JDog” Rosenberg wrote of a hypothetical rape kit with untested DNA:
If you open Schroedinger’s rape kit, you’re pretty sure that either a: he walks, or b: it’s over, ’cause he’s going to be convicted. There is no reverse Brady obligation; you don’t have to point out to the prosecutor that there’s this untested rape kit, that you think he or she overlooked. Since you decide that this is a decision you have to run past your client, he says, hey, I didn’t do it, but I trust you to do the right thing for me.
Isn’t there at least an argument that you leave it alone, at least until the jury comes back?
Now, in a post on his Waco criminal law blog, Waco criminal-defense lawyer Walter Reaves describes his handling of such a situation (textbook handling, in my view), and the unfortunate outcome for his client — “He continued to insist he was innocent, and we sent the evidence off to be tested. It came back today, and sure enough, there is now no doubt whatsoever that he’s guilty” — and asks, “How can someone convince himself that he is not guilty?”