Tuesday, October 16, 2018
The pertinent portion of West Virginia's postconviction DNA testing statute, W. Va. Code, § 15-2B-14(c)(1)(E), states that after a petition for postconviction DNA testing is filed
(e) The court, in its discretion, may order a hearing on the motion. The motion shall be heard by the judge who conducted the trial or accepted the convicted person's plea, 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.
So, where does that leave pleading defendants?
As the language of the statute notes, the petition for postconviction DNA testing "shall be heard by the judge who conducted the trial or accepted the convicted person's plea." Therefore, West Virginia clearly allows pleading defendants to seek postconviction DNA testing.