Wednesday, July 18, 2018
The pertinent portion of Arizona's postconviction DNA testing statute, § 13-4240(C)(1)(a) & (b), provides in relevant part that:
After notice to the prosecutor and an opportunity to respond, the court may order deoxyribonucleic acid testing if the court finds that all of the following apply:
1. A reasonable probability exists that either:
(a) The petitioner's verdict or sentence would have been more favorable if the results of deoxyribonucleic acid testing had been available at the trial leading to the judgment of conviction.
(b) Deoxyribonucleic acid testing will produce exculpatory evidence.
So, where does that leave pleading defendants?
Obviously, subsection (a) refers to a trial, and similar statutes have been read to preclude pleading defendants from seeking postconviction DNA testing. But what about subsection (b)? In Will the Truth Set Them Free? No, but the Lab Might: Statutory. Responses to Advancements in DNA Technology, 44. ARIZ.L.REV. 467, 492 (Summer 2002), Diana L. Kanon wrote that
Perhaps prong 1(b) of subsection C envisions a scenario where a defendant was convicted after a plea bargain or a plea of nolo contendre but where DNA testing has the probability of exculpating him of the crime.
That seems like a plausible interpretation of Arizona's postconviction statute that protects pleading defendants, but so far, no Arizona court has been asked to resolve this issue.
Notably, Arizona's postconviction statute that allows for petitions for writs of actual innocence based on non-DNA evidence is more explicit. It states that
Any person who pled guilty or no contest, admitted a probation violation, or whose probation was automatically violated based upon a plea of guilty or no contest shall have the right to file a post-conviction relief proceeding.
Therefore, if a defendant who pleads guilty to murder secures the confession of an alternate suspect, it is clear that he could bring a petition for writ of actual innocence. But if that same defendant seeks DNA testing of crime scene evidence that was missing at the time of his plea, it is unclear whether he would be allowed to pursue such testing.