Saturday, September 1, 2018
The pertinent portion of Nebraska's postconviction DNA testing statute, Nebraska Revised Statute 29-4120(5), states that
Upon consideration of affidavits or after a hearing, the court shall order DNA testing pursuant to a motion filed under subsection (1) of this section upon a determination that (a)(i) the biological material was not previously subjected to DNA testing or (ii) the biological material was tested previously, but current technology could provide a reasonable likelihood of more accurate and probative results, (b) the biological material has been retained under circumstances likely to safeguard the integrity of its original physical composition, and (c) such testing may produce noncumulative, exculpatory evidence relevant to the claim that the person was wrongfully convicted or sentenced.
So, where does that leave pleading defendants?
In the 1980s, three men and three women (the “Beatrice Six”) were charged in connection with the rape and murder of 68-year-old Helen Wilson in Beatrice, Nebraska. Joseph White was convicted after a trial, and the other five defendants, including Thomas Winslow, entered guilty or “no contest” pleas.
Decades later, Winslow moved for DNA testing on semen from the crime scene, and the district court denied his motion, concluding “that Winslow had waived his right to DNA testing because of his plea of no contest.” On appeal, the Supreme Court of Nebraska noted that its postconviction DNA testing statute allows for a court to authorize DNA testing after making “a determination that such testing was effectively not available at the time of trial.” The court noted the similarity between this language and the language in the New York statute but ultimately did “not read this reference to limit the scope of the relief granted under the DNA Testing Act to persons convicted after a trial.”As a result, in late 2007, Winslow got DNA testing on the semen. It came back as a match for Bruce Allen Smith, “a leading suspect in the days after the murder” who was not a member of the “Beatrice Six.” White’s conviction was subsequently vacated, and the governor pardoned Winslow and the other members of the “Beatrice Six.”