EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, October 5, 2018

Project DNA: Vermont

Vermont

The pertinent portion of Vermont's postconviction DNA testing statute, 13 V.S.A. § 5561(c)(1), states that

The petition [for postconviction DNA testing] shall be filed in the superior court of the county where the conviction was imposed, and shall not be heard by a judge who presided over the trial, sentencing, or any motion hearing related to evidence to be admitted at the trial.

So, where does that leave pleading defendants? 

As noted, the statute states that the petition for postconviction DNA testing "shall not be heard by a judge who presided over the trial, sentencing, or any motion hearing related to evidence to be admitted at the trial." The multiple references to a trial make it seem likely that Vermont would not allow pleading defendants to seek postconviction DNA testing. That said, I'm not aware of any Vermont case law on the subject.

-CM

https://lawprofessors.typepad.com/evidenceprof/2018/10/vermont-the-pertinent-portion-of-vermonts-postconviction-dna-testing-statute-13-vsa-5561c1-states-that-the-pe.html

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Comments

You may already be aware of this but since the statute was dated 2010, I thought I would add that Vermont Senator Leahy co-authored a bill to aid post-conviction DNA testing. https://www.congress.gov/bill/114th-congress/senate-bill/2577

"Senator Leahy has long worked to eliminate wrongful convictions and improve the quality of indigent defense, through measures such as the Innocence Protection Act and the Gideon’s Promise Act. The Innocence Protection Act includes the Kirk Bloodsworth Post-Conviction DNA Testing Grant Program, which provides assistance to State and local law enforcement officials to ensure they have the necessary tools to find and convict criminals, while improving access to DNA testing for the wrongly convicted." https://www.leahy.senate.gov/issues/criminal-justice

Posted by: Debra Fulton | Oct 6, 2018 5:16:18 AM

Actually, 13 V.S.A. § 5561(e) states that "[n]o person shall file a petition requesting forensic DNA testing pursuant to this chapter if the person's conviction resulted from a plea agreement until after July 1, 2008."

Posted by: Josh Stern | Oct 8, 2018 11:46:42 AM

Debra: Thanks.

Josh: How do you read that? That pleading defendants can seek testing if their pleas occurred before or after 7/1/2008?

Posted by: Colin Miller | Oct 9, 2018 1:40:07 PM

My reading is that the cutoff is for the filing of petitions, not the time of the plea. Otherwise, there's no reason to have the word “until.” If the intent was to prevent petitions based on plea agreements entered into after 7/1/2008, the statute could simply have said “no person shall file a petition requesting forensic DNA testing pursuant to this chapter if the person's conviction resulted from a plea agreement after July 1, 2008 (or for clarity, “entered into after July 1, 2008”). Likewise, if the intent was to bar petitions based on earlier plea agreements, the statute could have said “no person shall file a petition requesting forensic DNA testing pursuant to this chapter if the person's conviction resulted from a plea agreement entered into before July 1, 2008.” The word “until” here serves to modify the verb phrase “file a petition.” Thus, as far as I can tell, after July 1, 2008, pleading defendants can seek forensic testing no matter when they entered into their plea. Maybe the legislature was concerned about the courts having to handle a flood of petitions (given, as you noted, that the vast majority of convictions are from plea agreements) before they were given time to prepare?

It does seem to me, though, that the statute clearly allows for pleading defendants generally to seek relief. The section you quoted probably contains the references to a trial not because that is a prerequisite for relief, but because that section is dealing specifically with disqualification of judges and is not setting limits for permissible petitions. A judge is more likely biased if they presided over a trial, contested sentencing or motion hearing than if they simply accepted a change of plea. Other than the time limit, the only general prerequisites for a petition are that a person be convicted of a qualifying crime (and there’s no distinction between conviction with or without trial) and that the petitioner certify their actual innocence and the facts in the petition, and allege facts showing that testing may be material to their claim of innocence. Just because they pled guilty, doesn’t mean they can’t claim innocence now.

Posted by: Josh Stern | Oct 16, 2018 9:42:02 AM

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