Thursday, October 4, 2018
The pertinent portion of Utah's postconviction DNA testing statute, Utah Code Ann. § 78-35a-301(2)(c), states that:
(2) A person convicted of a felony offense may at any time file a petition for postconviction DNA testing in the trial court that entered the judgment of conviction against him if the person asserts his actual innocence under oath and the petition alleges:
(c) the person identifies the specific evidence to be tested and states a theory of defense, not inconsistent with theories previously asserted at trial, that the requested DNA testing would support.
So, where does that leave pleading defendants?
Given that Utah's statute requires a petitioner to establish a theory "not inconsistent with theories previously asserted at trial," it seems highly likely that Utah would not allow pleading defendants to seek postconviction DNA testing.
Interestingly, Utah's actual innocence statute (based on non-DNA evidence) states that “[i]f the conviction for which the petitioner asserts factual innocence was based upon a plea of guilty, the petition shall contain the specific nature and content of the evidence that establishes factual innocence.”
Kevin Peterson was able to use this Utah law to prove his actual innocence despite his guilty plea. Peterson had been accused of sexually abusing his son and eventually entered into a plea agreement, which stated in pertinent part, “I did not sexually abuse [my son]. However, after being fully advised as to the consequences of my decision by my attorney, I want to plead guilty to the second-degree felony.” After Peterson was convicted, his son recanted. Peterson’s attorneys also retained two experts who reviewed the medical examination of Peterson’s son and concluded that there was no evidence of sexual abuse. Based on this new evidence, Peterson filed a petition for a writ of actual innocence; the State did not oppose it. Peterson was released twelve years after being arrested.