EvidenceProf Blog

Project DNA: Hawai'i

Hawai'i

The pertinent portion of Hawai'is postconviction DNA testing statute, Haw. Rev. Stat. § 844D-121, provides in relevant part that:

Notwithstanding any other law or rule of court governing post-conviction relief to the contrary, a person who was convicted of and sentenced for a crime, or acquitted of a crime on the ground of physical or mental disease, disorder, or defect excluding responsibility, may file a motion, at any time, for DNA analysis of any evidence that:

(1) Is in the custody or control of a police department, prosecuting attorney, laboratory, or court;

(2) Is related to the investigation or prosecution that resulted in the judgment of conviction or of acquittal of a crime on the ground of physical or mental disease, disorder, or defect excluding responsibility; and

(3) May contain biological evidence.

So, where does that leave pleading defendants? 

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The Impact of Judge Adkins's Early Retirement on the Adnan Syed Case

It has been announced that Court of Appeals of Maryland Judge Sally Adkins will step down from the bench of October 31, 2018, a year and change before her mandated retirement age of 70 in January 2020. This could have some interesting ramifications for the Adnan Syed case. Let's look at the current seven judge lineup on the Court of Appeals of Maryland:

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Project DNA: Georgia

Georgia

The pertinent portion of Georgia's postconviction DNA testing statute, Ga. Code Ann. § 5-5-41(c)(3)(C) , provides in relevant part that:

(3) The motion shall be verified by the petitioner and shall show or provide the following:....

(C) The identity of the perpetrator was, or should have been, a significant issue in the case.

So, where does that leave pleading defendants? 

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Project DNA: Florida

Florida

The pertinent portions of Florida's postconviction DNA testing statute provide as follows:

Section 925.11(1)(a)(2): A person who has entered a plea of guilty or nolo contendere to a felony prior to July 1, 2006, and has been sentenced by a court established by the laws of this state may petition that court to order the examination of physical evidence collected at the time of the investigation of the crime for which he or she has been sentenced that may contain DNA (deoxyribonucleic acid) and that would exonerate that person.

Section 925.12(1): For defendants who have entered a plea of guilty or nolo contendere to a felony on or after July 1, 2006, a defendant may petition for postsentencing DNA testing under s. 925.11 under the following circumstances:

(a) The facts on which the petition is predicated were unknown to the petitioner or the petitioner’s attorney at the time the plea was entered and could not have been ascertained by the exercise of due diligence; or

(b) The physical evidence for which DNA testing is sought was not disclosed to the defense by the state prior to the entry of the plea by the petitioner.

So, where does that leave pleading defendants?

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Project DNA: Delaware

Delaware

The pertinent portion of Delaware's postconviction DNA testing statute, Del. Code Ann. tit. 11, § 4504(a)(3), provides in relevant part that:

[A] motion may be granted if:....

(3) The movant presents a prima facie case that identity was an issue in the trial.

So, where does that leave pleading defendants?

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Project DNA: Connecticut

Connecticut

The pertinent portion of Connnecticut's postconviction DNA testing statute, Conn. Gen. Stat. Ann. §54-102kk(c)(1), provides in relevant part that:

(c) After notice to the prosecutorial official and a hearing, the court may order DNA testing if it finds that:

(1) A reasonable probability exists that the requested testing will produce DNA results which would have altered the verdict or reduced the petitioner's sentence if the results had been available at the prior proceedings leading to the judgment of conviction.

So, where does that leave pleading defendants?

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Project DNA: Colorado

Colorado

The pertinent portion of California's postconviction DNA testing statute, Cal. Penal Code § 1405(f), provides in relevant part that:

(1) A court shall not order DNA testing unless the petitioner demonstrates by a preponderance of the evidence that:

(a) Favorable results of the DNA testing will demonstrate the petitioner's actual innocence;

(b) A law enforcement agency collected biological evidence pertaining to the offense and retains actual or constructive possession of the evidence that allows for reliable DNA testing;

(c)

(I) Conclusive DNA results were not available prior to the petitioner's conviction; and

(II) The petitioner did not secure DNA testing prior to his or her conviction because DNA testing was not reasonably available or for reasons that constitute justifiable excuse, ineffective assistance of counsel, or excusable neglect; and

(d) The petitioner consents to provide a biological sample for DNA testing.

So, where does that leave pleading defendants?

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Project DNA: California

California

The pertinent portion of California's postconviction DNA testing statute, Cal. Penal Code § 1405(f), provides in relevant part that:

If the court determines that the convicted person has met all of the requirements of subparagraphs (A) to (F), inclusive, of paragraph (1) of subdivision (d), the court may, as it deems necessary, order a hearing on the motion.  The judge who conducted the trial, or accepted the convicted person's plea of guilty or nolo contendere, shall conduct the hearing unless the presiding judge determines that judge is unavailable.  Upon request of either party, the court may order, in the interest of justice, that the convicted person be present at the hearing of the motion.  Either party, upon request, may request an additional 60 days to brief issues raised in subdivision (g).

So, where does that leave pleading defendants?

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Project DNA: Arkansas

Arkansas

The pertinent portion of Arkansas's postconviction DNA testing statute, Ark.Code Ann. § 16-112-202(7), provides in relevant part that:

Except when direct appeal is available, a person convicted of a crime may make a motion for the performance of fingerprinting, forensic deoxyribonucleic acid (DNA) testing, or other tests which may become available through advances in technology to demonstrate the person's actual innocence if:....

(7) The identity of the perpetrator was at issue during the investigation or prosecution of the offense being challenged under § 16-112-201.

So, where does that leave pleading defendants?

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Project DNA: Arizona

Arizona

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?

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Project DNA: Alaska

Alaska

The pertinent portion of Alaska's postconviction DNA testing statute, AK Stat § 12.73.020 provides in relevant part that

The court shall order post-conviction DNA testing of specific evidence if....

(3) the applicant did not admit or concede guilt under oath in an official proceeding for the offense that was the basis of the conviction or a lesser included offense, except that the court, in the interest of justice, may waive this requirement; for the purposes of this paragraph, the entry of a guilty or nolo contendere plea is not an admission or concession of guilt;....

(8) the applicant was convicted after a trial and the identity of the perpetrator was a disputed issue in the trial;

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Introducing Project DNA: a 50 State Survey on Whether Pleading Defendants Can Seek Postconviction DNA Testing

Today, I'm starting a new series of 51 posts that I'm calling "Project DNA." It relates to an article I've been writing titled, "A Right to Prove Innocence After Pleading Guilty." The article addresses the fact that many states have statutes that preclude pleading defendants from seeking postconviction DNA testing.* To set up this series of posts, consider the following hypotheticals:

1. An African-American defendant is charged with sexual assaulting and murdering a brunette woman, convicted after a jury trial, and given a life sentence. Later, the State finds evidence that it had misplaced: four blond hairs with hair follicles recovered from the victim's underwear. The defendant seeks postconviction DNA testing of the hairs.

2. An African-American defendant is charged sexual assaulting and murdering a brunette woman, pleads guilty, and given a life sentence. Later, the State finds evidence that it had misplaced: four blond hairs with hair follicles recovered from the victim's underwear. The defendant seeks postconviction DNA testing of the hairs.

In hypothetical 1, every state and the District of Columbia is going to allow the defendant to seek postconviction DNA testing. Conversely, several states will not allow the defendant in hypothetical 2 to seek DNA testing. This is despite the fact that (1) this country's first DNA exoneration involved a pleading defendant;** and (2)  65 out of 149 DNA and non-DNA exonorees (44%) in 2015 had been convicted after guilty pleas.

In this series of posts, I will look at who can apply for postconviction DNA testing in each of the fifty states and the District of Columbia.

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Court of Appeals of Maryland Grants Cert in the Adnan Syed Case

Today, the Court of Appeals of Maryland granted cert (agreed to hear the appeal(s)) in the Adnan Syed case. So, what does this mean going forward?

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"In the Dark," "Undisclosed," and Brady Violations Connected to Alternate Suspects

The second season of "In the Dark" by APM Reports/Madeleine Baran has been terrific. It covers the case of Curtis Flowers, who has been prosecuted (a record) six times in connection with the shooting deaths of four people inside Tardy Furniture store in downtown Winona, Mississippi. Flowers's first five trials results in hung juries or convictions that were later thrown out due to Constitutional violations. And now, there's reason to believe that Flowers's latest conviction will be reversed based upon evidence discovered by Baran and her team. Interestingly, that evidence is similar to evidence from one of our recent Undisclosed cases being used to fight for a new trial for Willie "Pee Wee" Veasy.

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