Post Conviction 2009 : Statutes

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>> In 1998 Janet Reno asked the group of scientists and educators, prosecutors,
defense attorneys, law enforcement officials, and a couple of judges to come together
to form the National Commission on the future of DNA evidence.
And I, at the time I had the privilege of serving on the commission
and also chairing the Postconviction Issues Working Group of the commission.
We eventually put together a product to document on postconviction DNA testing
that helped lay the ground work for handling postconviction request for DNA testing
and this was the document that we put together.
This is accessible on DNA.gov.
Before we hear from our speakers, I just wanna exercise a little bit of judicial license here
and recognize the members of the commission who are here today
because they all continue to contribute to this effort.
On the commission, Woody Clarke who is setting right up here, Woody, you wanna stand?
[Chuckles] Who was at the time a prosecutor at San Diego, California
and now he is judge in San Diego, California.
He's gone to the dark side, Woody?
[Laughter] Jeff Thoma who is, was over here, there he's in the back there.
Who at the time was a public defender in Mendocino County, California,
now he's in Solano County, California as-- also as a public defender.
Norman Gahn who's way, way, way there in the back who was a prosecutor in Milwaukee County,
Wisconsin, now is a senior deputy, still in Milwaukee.
And is Barry in here?
Barry Scheck, I think he's working-- oh there he is over there.
Barry was on the commission and he also served with me on the Postconviction Working Group.
A little story about Barry.
Shirley Abrahamson who is the Chief Justice
of the Wisconsin Supreme Court was the head of the commission.
When she approached me and asked if she--
if I would chair the Postconviction Issues Group she said the main challenge you're gonna have is
making sure that Barry doesn't dominate the conversation 'cause Barry is so passionate
about this, and Barry had done, you know, the principal work at Peter Neufeld in this area.
And I gotta tell you Barry was wonderful to work with on our group and we got a lot done.
In addition, there are some people here who were not on the commission but were
on other working groups and I just wanna recognize them.
Cecilia Krauss, one of the real champion scientists from the Palm Beach, our crime lab,
Chris Plourd who is a defense attorney in San Diego, California and is Rock here, Rock Harmon,
who was at the time a prosecutor in Alameda County, California and now is kind
of retired like me but semi-retired.
I also wanna express all of our thanks to Robin Jones who is really, was just wonderful
in managing all of us, keeping us all on task, and doing the heavy lifting for the group
and is Robin in the room right now?
Oh okay, Robin.
[Applause] You gotta stand up.
And she's-- I know she and Chuck Heurich and the other people
from NIJ have been really responsible for putting this together.
But we just heard about the compelling story of Jennifer Thompson-Cannino and Ronald Cotton
and really puts a face on the postconviction DNA testing.
And now we're gonna provide the landscape of what's been done
in legislation around the country.
And also talking about the process of getting the DNA postconviction legislation passed
and I wanna introduce Gabe Oberfield of the Innocence Project in New York.
Gabe is kind a unique in that he not only has a background in the law but also
in investigative journalism and he has worked in policy reform
for the Innocence Project for the last 3 plus years.
And Matt Redle who is the prosecutor attorney in Sheridan County,
Wyoming has been the elected prosecutor for the last 21 plus years and was the deputy prosecutor
for 6 years in what he would call God's Country in Sheridan County, Wyoming.
And Matt's gonna talk to us about the process of enacting postconviction legislation as well
as the hurdles that have been faced in typical legislation, the legislative efforts,
and their statute was just passed last year.
So Gabe.
>> Well thank you and it's a pleasure to be here.
And I look forward to meeting those of you I don't know and it's great
to see so many faces of those I do.
As the judge mentioned, I'm Gabe Oberfield.
I'm here from the Innocence Project in New York.
And I'm going to tell you a bit about postconviction DNA testing statutes.
There are 44 of them in the country and there are particular contours to those statutes
that I wanted to highlight during this presentation.
But before getting there, I just want to give you a little bit of background
on the statutes generally and how we got to a place where we have 44.
At first, for those of you who don't know, the Innocence Project is a national litigation
and public policy organization dedicated to exonerating individuals via the use
of postconviction DNA testing and applying the lessons learned
from the 227 exonerations that now have occurred.
Among those lessons is a recognition that statutory access
to postconviction DNA testing is incredibly important and again
that what's I'm here to talk with you about today.
So why is it so important?
One of the important considerations is its enduring probative value.
And the important additional aspect to consider about that is the value
as technology improves becomes all the clearer.
We've seen changes in the last 5 years, the last 2 years DNA continues to evolve and continues
to able to shed light in ways that other forms of evidence could not.
The certainty and finality that DNA provides is unique and again really gives us a sense
of clarity that we lacked before DNA became a part of our criminal justice system.
All kinds of people are harmed when individuals guilty of crime elude justice and those
who actually were convicted of crimes are incarcerated if they do not commit those crimes,
of course that's an incredible hardship but without using DNA to be able to go back and look
at the potential for a past wrong and trying to shed light on it to bring truth,
there are scores of individuals who are all affected by what is in checked,
isn't tested and otherwise examined.
And we've seen across the country, and I'll tell you a little bit more.
Statutory access has not been something
that has overwhelmed criminal justice systems, in fact quite the opposite.
And the reliability of the mechanism is something that a statute provides.
It gives a clear set of parameters as to how to go about this testing.
So again just a little bit more background, the first statute on the books was New York's
in '94, Illinois followed in '98, and now there are 44,
the most recent among them South Carolina and Wyoming
which we'll hear a little bit about in a moment.
Now, again, as I mentioned I wanna tell you a bit about some
of the specific provisions that comprise the statutes.
Some are present in some of the statutes, others are not but I wanna highlight those that we
at the Innocence Project consider crucially important and give you a little sense as to why.
Categories of petitioners are something to think about.
Making sure that it's not limited to just those who are incarcerated.
There all kinds of people who are affected by a conviction and while those incarcerated
of course comprise a significant portion, also those who are civilly committed, on parole,
probation, sex offender registrations,
and even those who have finished serving their sentences may well benefit
from having the right to file such petition.
The collateral consequences for instance are tremendously dramatic including issues
such as sex offender registries which can incredibly hamper the individual's ability
to move on and really begin a life outside of the walls of prison
for a crime he or she did not commit.
Guilty-- guilty, please excuse me, confessions and admissions and other category.
Innocence Project feels that those who are, you know, who have cases rather
that involved confessions, admissions, or guilty pleas should--
have the same kind of access to postconviction procedures
as those in cases that don't involve it.
You know this is not just fanciful.
In fact, you know, although counterintuitive there are scores
of reasons why individuals confess, admit, or plead guilty to crimes they did not commit.
>> And in fact about 20 percent of those 227 cases involve such circumstances and so,
you know, we humbly ask all of you to open your minds to the possibility that despite the fact
that there are pleas, confession and admissions in the cases, they also can deserve--
can and in fact do deserve further scrutiny in many cases.
Time provision, time limitations, excuse me, and sunset provisions is another area
that I wanted to discuss with you.
There are some statutes that actually place a specific clock when one files
and whether it's months or year, et cetera, but it can be extraordinary difficult sometimes
to get petitions filed under time limitations and by having such limitation,
it prevents the ability to go back and look more fully at the, you know,
real credible claims of innocence that maybe present.
And a very few statutes in fact do have such limitations.
There are still that-- there are still a few rather that linger.
And of course, you know as I was mentioning DNA's power never expires
and so these statutes should not also have such limitations on when one can file.
The same goes for sunset provisions because some statutes are structured to have a said number
of years after which they go off the books.
We think those are mistakes as well for the similar kinds of reasons.
Now preservation of evidence, a number of states have preservation of evidence language imbedded
within their postconviction DNA statutes but it's the only place on those codes
where there is a mandate to preserve biological evidence.
And the problem with this is that there's this unintended window between the time
when an individual is convicted and when that person files a petition,
evidence can be destroyed between conviction and petition and if evidence is only required
to be preserved after the petition is filed.
And of course, if there is no evidence, petitions cannot proceed
and that is the biggest tragedy of all.
Evidence inventory is a related issue.
Evidence is often scattered across the criminal justice system whether in hospitals, courtrooms,
storage facilities, etcetera, and you know without that evidence, again,
there's no way to go forward and proceed on petitions.
And so a number of states have considered this issue and have thought about whether
and rather there are number of provisions that allow for an inventory of evidence,
judicially ordered inventory, essentially to say let's find without there, let's pull it together
and let's have a sense of it because to ask the petitioner to do
that work can often be extraordinary onerous.
Victim notification, there's a question as we were closing the last panel concerning what kind
of knowledge the victim may or may not want to have in the context
of postconviction DNA testing petitions
and something the Innocence Project takes very seriously.
The filing of petition of course, we acknowledge, can bring up all kinds
of painful issues for the victim of a crime.
And we think strongly that testing statutes should include mechanism
for victim notification reactivation of victim services should the victim want to be able
to have such available, and that's a provision that we now have
on our model statute and that we offer to all of you.
We're also working on Innocence networks statement concerning victim issues and concerns.
It's something that the entire Innocence network, the 40 some odd projects
around the country, many of whom are represented in this room and a few abroad as well.
And it will also touch upon these matters.
Testing against crime scene evidence-- testing a crime scene evidence,
excuse me, against existing databases.
If a DNA profile can be developed from biological evidence whether in concert
with the effort to file a petition or otherwise, provision should allow for a comparison
of that evidence to the DNA database, the federal and this system,
if not you know other databases like the state level databases.
And the importance of this is that they can bring about links
that we might not otherwise be aware of.
If the whole point of postconviction DNA testing is to bring truth and light
to what may otherwise have been a shortcoming in terms of accurate information about a crime
and its perpetration, if the evidence can show links to other crimes or to other offenders
within the database, this is important information to know.
Yet a very few states actually affirmatively allow for this.
Expungement of DNA profiles and destruction of DNA samples, another connected issue.
If a petitioner is exonerated, the samples and the profiles should not remain
in state possession because the notion being that the predicate reasons for the obtaining
of the sample and profile no longer exist so, and this is something
that exonerees have had issues with certainly and we speak about it in our model as well.
Appointment of council, a number of states consider appointment for indigent petitioners.
As I mentioned in previous portions of this conversation, it can be very difficult
to file a petition particularly for someone who's filing pro se or otherwise
without specific legal training and we're dealing with some of the biggest issues
that one can contend with, literally the life and liberty of the petitioner.
Of course, you know, we don't want to speak about council in every single circumstance
without considering of course that, you know,
there are important considerations that may well be worthy.
You know when we're talking about, you know, what the threshold measure is to appoint
that council, it's important for if a judge believes it necessary to assign
and this is actually a provision from our model that you see here in the slide.
It's important for there to be right for a judge to consult
with an Innocence Project or another legal clinic.
To the extents there are issues with that appointments, we wanna make sure that, you know,
the importance of the appointment is understood but also buttress with the realities that,
you know, with some additional screening by Innocence Project that can help make sure
that only the most meritorious claims go forward.
But again this is just a suggestion from our model
and states handle this in a variety of ways.
Delineation of response times is another area that is important.
We've seen in a number of cases that have been filed via
or otherwise pursued via postconviction petitions that there's sometimes delays
and you know there are intentional typically, but they lead to a lag in the ability
to really clearly understand the facts of that issue you know and if the whole idea
of the petition is to test evidence, to find out about you know the truth
that that evidence can reveal delays in prosecutorial responses,
delays in judicial responses can slow the process of coming to that truth.
And standards of proof, one other consideration to throw out to all of you, both for permitting
and testing request to go forward and assessing the meeting of a testing result.
According to our model, we think it should be-- you know when there's a reasonable probability
that the petitioner would not have been convicted
or would have received a lesser sentence if favorable results have been attained
through DNA testing at the time of the original prosecution.
There's a variety of ways in which states handle this but we think that this is the fairest.
It's not the job of the petitioner to solve the crime for which he
or she might have been wrongfully convicted.
The question instead is whether the original trial verdict would stand
in light of the new evidence.
So I'm gonna close here but I of course encourage all of you to look to our website
if you'd like to find out more information at the Innocence Project generally and if you'd
like to contact me directly, I'll leave that contact information for all of you.
And I thank you all very much.
[ Applause ]
>> And Matt is gonna talk now about the process of enacting legislation.
After he gets done, I'm probably gonna direct some questions to them and maybe also
to some people in the audience as well if there's time.
Matt. Oh if you do-- when you come up if you have any questions,
please come to the microphones 'cause they're taping here
and they need to be able to hear you.
[ Pause ]
>> Good morning.
On March 13th of 2008, Wyoming became the 43rd state
to enact postconviction DNA testing legislation.
Obviously, we were Johnny-come-latelies to the issue but we've been asked to come here today
and to talk about our experience in legislative process some of the lessons we learned,
the mistakes we made along the way and the work that we have left to do in our state.
[ Pause ]
>> I wanna give you a little context for the legislative environment
in the state particularly as it pertains to postconviction testing.
Unlike the experience in a lot of states, there was a decided lack of urgency felt in the State
of Wyoming surrounding the issue of postconviction DNA testing.
In large part I think because Wyoming has not today experienced an exoneration.
Most prosecutors in the state have never been contacted about a case suspected
of representing a wrongful conviction.
And the few that have have never received a request for access to the evidence for testing.
Our legislature at the same time is what we call a citizen or part-time legislature.
During a 2-year biennium, our legislature meets for a total of 60 days,
if it's a general session for 40 days, if it's a budgetary session for 20 days.
The 2008 session which produced our legislation was a budgetary session
that is a 20-day session.
In addition to the reduced number of days that the bill can receive attention,
the rules require that if you're going
to introduce non-budgetary items during the budgetary session you must receive a two-thirds
vote before it can be considered in either house.
In the run up to the 2007 legislative session,
the session before the legislation was actually passed.
The Rocky Mountain Innocence Center in Salt Lake City through one
of their board members University of Wyoming Law Professor Diane Courselle reached out to members
of the Wyoming legislature hoping
to enact postconviction DNA testing legislation in that 2007 general session.
Professor Courselle and the Innocence Center received advice that there was too little time
to draft legislation for that session to create the necessary interest to obtain sponsors
and the support that would be necessary to bring that about,
and so instead Katie Monroe the director of the Rocky Mountain Innocence Center
and Professor Courselle provided legislators with information regarding the issue
of the DNA exonerations around the country, the need for an enforceable right
to postconviction testing and relief-- and the type of relief that would be appropriate
if the results indicated a wrongful conviction.
And by the end of the 2007 session one legislature
or legislator had developed a passion for the issue and was able
to convince the joint interim judiciary committee
to accept postconviction DNA testing as a topic for interim study.
In our state what that means--
that the termination is significant because only a handful of topics are actually taken
up by the joint interim committees when the legislature is not in session.
What that told us as prosecutors is that it was likely that some type of bill was going
to be pass if not in the 2008 session then certainly by the 2009 session.
Committee bills received significance support within the body of the legislature
because they are, they've been studied over the course of the preceding year,
the language has been vetoed during committee meetings and it's ordinarily presumed
that the bill will enjoy significant support among the members
in both houses represented on that committee.
And if a committee bill is not ready to go forward the practices that it has not filed,
placed on general file in either house until it is ready.
In June of 2007, the state public defender Professor Courselle
and myself testified before the joint committee.
I appeared on behalf of our State Prosecutors Association.
And our testimony was largely informational
and what the issues might be in enacting such legislation.
As prosecutors we were not concerned about the possibility that such a bill would pass.
Our concern was that we expected the bill would pass.
What we wanted was a good bill.
We wanted a good piece of legislation.
In August Professor Courselle, myself,
and Katie Monroe were invited to testify before the committee.
And Katie and I had the opportunity to talk both to the committee but to each other
and during the course of our conversation,
we found a number of things that we were able to agree upon.
And during a break in the testimony, Katie and I discussed the issues and we didn't,
I don't think either one of us was sure the we would be able to come to an agreement
on the different issues that we anticipated would come up
and that we may have disagreement about.
But I think we both kind of took a leap of faith in some respects.
We came back to the committee with a suggestion and that was
that we would form a drafting committee representing the different stakeholders
involved, primarily prosecution, the Innocence community, public defender's office,
and we wanted to include our attorney general's office in the actual drafting.
And that we would draft a proposed legislation for the committee to take a look at.
The committee took us up on that particular offer and we recognized that collaboration
and consensus was gonna be critical if legislation was actually going to be enacted.
The Rocky Mountain Innocence Center
and Professor Courselle participated representing the Innocence community.
There were three of us that were state prosecutors representing the prosecutors
association and also acting as liaisons to the sheriffs' and chiefs' association
and to the victim advocacy community within the state.
The public defender's office participated as did our office of the attorney general.
We prepared a draft and circulated them-- circulated it among the group,
we had some discussions about it, made some changes,
and quite honestly we fairly quickly reached consensus on what provisions ought
to be included in the draft to go to the committee.
It-- the first lesson that I learned is how fragile a consensus can be.
We had reached consensus with all of the participants in the drafting process.
And early on we find out that there was consensus even among our group over one
of the areas that we had previously agreed upon.
>> We had a third party sampling provision in the legislation that provided the opportunity
for defense council or for someone representing a convicted individual seeking postconviction
relief or for the prosecution to obtain third party sampling for elimination inclusion
or for the purpose of putting forward a third party defense in a case.
We had modeled ours on the-- we were sensitive to the fact that this maybe an issue
and we had modeled ours on the ABA standards for DNA evidence, which provided protections
for the third parties by way of notice of application and affidavit the opportunity
for hearing before the order is entered and right to representation of counsel.
As it turned out, two of the members of our consensus were not
that thrilled about that particular option.
The public defender's office was concerned and I thought this made some sense.
They were concerned because we had placed a provision in there
where they would provide counsel if necessary.
And they were concerned regarding creations of conflict of interest within their office.
We thought that there was a mechanism already in place to deal
with that particular issue but that made some sense.
The attorney general's office was concerned about the constitutionality of the issue.
That on still has me somewhat baffled but I learned as a result that's bad on me.
That was my fault because I did not do an adequate job in educating our constituents
within the drafting committee about that, and that was within my parameter.
As a result the first day that it was considered in the senate, the--
and we knew that this was a possibility and had discussed it among the group.
The third party sampling provisions were removed from the legislation.
The provision or the proposal passed on third reading in the senate on a vote of 30 to 0
and was received by the house the next day.
We had already determined that this was not going to be a make or break issue for us.
And from a prosecutor's standpoint we saw this as being more beneficial to the defense
in Innocence community than it was to prosecution
because we believe we had other opportunities and other means
of obtaining those elimination samples.
[ Pause ]
>> On-- it had a fairly smooth pass through the house until we got to the second reading
in the House of Representatives and in the House of Representatives on second reading,
one representative made an amendment on the floor of the house to remove a provision
and that provision we believed affected the overall integrity of the bill.
And from the prosecution's side we believed that it was a make or break issue for us.
As a result of that we notified the, first, the chairman of the Senate
and House Judiciary Committees, we notified prosecution, law enforcement
and the victim's community that we may have to pull support and try to kill the bill.
And Katie and I were attempting to make contact at this time which eventually was facilitated
by the chair of the Senate Judiciary with the representative
to discuss that with Representative Brown.
It passed second reading with the amendment at about 5:30 in the afternoon on one day
and the very next morning came up.
They were coming up on the close of the session and so they were trying to run
through legislation fairly quickly, and so it came up at 7:30 in the morning
and we had not had a chance or been able at least to contact Representative Brown
in the meantime, and so it passed on third reading with this difference.
We were able to contact with the aid of this chair from Senate Judiciary.
We were able to contact Representative Brown and Katie contacted him first,
explained the position of the Innocence community
and the impact they believed it would have upon the legislation from their perspective,
and I contacted Representative Brown after that and explained our position to him.
We both were able to accomplish that by email which was an incredible help
and we learned the value of email in the legislative process because every one
of the representatives and senators in the Wyoming Legislature is sitting there
in committee or outside of committee with their laptops in front of them.
As it turned out, Representative Brown was not intending to do what he did.
It was small politics in a small town way.
What had happened was there had been a case that had garnered some considerable press coverage
within the state of Wyoming in which defense counsel, trial counsel for a defendant happened
to be a member of the public defender's office and a good friend of Representative Brown.
And Representative Brown felt that the state public defender's office had tried
to throw his friend under the bus in postconviction areas and he felt
that this bill encouraged that and encouraged the filing of claims of ineffective assistance
of counsel when what was involved was a tactical decision made by defense counsel.
We explained to him that in fact, this provision recognized that there were tactical decisions
that can be made that would not represent ineffective assistance counsel
and Representative Brown graciously agreed to a parliamentary solution to it that resulted
in the senate version being passed.
The language was restored, and on March 13th it was signed into law by our governor.
The final tallies, the final vote in the senate was 30 to nothing,
in the house 57 ayes, 0 nays and 3 were excused.
The-- some provisions of our legislation allow for any person convicted of a felony.
If testing results would be material to the identity of the perpetrator or an accomplice,
enhancement of a sentence or an aggravator alleged in a capital case,
there has to be a showing that the evidence is still in existence and in a condition
to be reliably tested, and that the evidence has the potential
to produce new non-cumulative evidence of actual innocence.
Cases occurring after 1999 must demonstrate due diligence
or the existence of ineffective assistance.
The burden for obtaining an order for testing is merely prima facie evidence.
It addresses the qualifications of the testing laboratory.
It provides for a right to appoint a counsel for indigent defendants.
The cost of testing are paid by the petitioner unless the petitioner is incarcerated,
is needy and the results support the motion in which case they are paid for by public funds.
>> If the results are inconclusive or consistent with guilt, there is a denial of a motion
for new trial and the results are provided to the parole board.
If the results are consistent with the theory of innocence, the matter is set for hearing
on a motion for a new trial and there is a provision in there for stipulation
of the parties on favorable results for a motion to dismiss the original charge by the state
which results in a vacation of the conviction consistent with the evidence and order
of actual innocence and exoneration to be ordered and an order
of expungement to likewise be ordered.
There is also a right to file for relief under the statute that may not be waived.
So as a condition of a plea agreement, I cannot insist that a defendant waive this right.
On appeal, and it was interesting, this topic came up on the shuttle bus ride out here,
on appeal the appellant rights for an order for testing are only appeal pursuing to a writ
of review, so it's discretionary with our Supreme Court.
If it's on a ruling for the motion for new trial,
that can be directly appealed by either party to our court.
There is one filing of right except
or unless there has been some kind of a Brady violation involved.
And we also included a provision that provides for consensual testing.
The state consent to testing without a motion being filed and if the results are favorable,
the defendant may file for a new trial pursuant to the act.
What we feel we have left to address is a compensation package
in the event we should find someone who was wrongly convicted and we also have agreed
that we will see if we can work through a non-DNA based relief package.
We recognized that as the old saying goes, "the proof of the pudding will be in the tasting."
We've not yet had any case come to the surface yet where a motion has been followed pursuant
to the statute and it will only be when we have those concrete cases in front of our courts
that we'll see if our legislation is performing in the manner in which we hope that it will.
Thank you.
[ Applause ]
>> You know may I just mention that it's been close to a year now since the enactment
of the statute but-- and there haven't been any petitions filed.
Gabe, has there been a flood of litigation in any of the states based on the experience
of the Innocence Projects around the country?
>> Actually no.
As I mentioned in my presentation, it has not been something that we have observed
and in fact we have made, increased around the country and have found that echoed.
The positive postconviction DNA testing statutes does not prove
to be onerous on states of jurisdictions.
The most meritorious claims come to light, and if the idea is
to find the truth behind those claims, the systems need to be in place
but they have not been-- they have not so burdened systems
that the systems can't handle the number of petitions 'cause they have been rather few.
>> Hey Christine, come up to the microphone.
Chris, Chris, go up there with Christine.
I got a question for you guys.
We-- I'm the token judge on another NIJ project that I do with Christine Funk
from Minnesota and Chris Plourd from San Diego.
It's DNA for defense project and, you know, on that line with regarding the--
you know, that there's no flood of litigation, do you guys see--
You know, in Minnesota or California, I know you're working with Innocence Projects
around the country and defense attorneys' problem in a lack of knowledge
in the defense bar and, Woody, I can ask you the same thing since you did a lot of training
with prosecutors in the prosecution bar.
My guess is that a lot of the people in this room who are defense attorneys
and prosecutors are the ones who have been doing this work for a long time
and my impression has been that there's-- with turnover in public defender offices
and in prosecutor offices, that this is just a constant need for education.
Christine?
>> [Inaudible] when Gabe was talking, I was sort of processing this--
In the public defender's office after you try a case and you lose it and it goes up on appeal
and you lose the appeal, it's not uncommon for the lawyer to say to the defendant,
"Well, there's nothing else we can do."
And if a defendant isn't educated enough to know about the Innocence Project,
I was sort of thinking about we have in Minnesota the oldest prison newspaper
in the country and I was thinking, I wonder if the Mirror could run a story for defendants
that are imprisoned to let them know, you know,
educate the defendants about the Innocence Project.
You're right.
Many of our lawyers aren't educated in this.
In fact, Anjali Swenton and I last night were speaking on a top radio show and the person
who was interviewing us was asking us, "Now what's this Innocence Project thing?"
And I was really stunned by that question.
>> Chris, what about you in San Diego?
>> A lot of lawyers don't, you know, they-- once they're done with their case,
they're done with it, and then most of the cases percolate up from the defendants
or the defendants' families and lawyers aren't typically a conduit, but they're the ones
that are probably most knowledgeable about the details of the case,
whether there are some biological evidence available.
I mean, you know, they are always contacting and they're usually very surprised.
You know, oh you're looking into that.
And typically they say, "You know, there was a problem with that case.
I really felt like there was something that went wrong there
and this guy should have been convicted."
And they're, you know, "Oh, I'm glad you're looking into it."
They should be the ones that should be bringing these cases to the forefront
but I think they're-- they under appreciate what-- you know, what is in their caseloads,
their closed caseloads and so forth.
So I think we need to better communicate with those lawyers in that regard.
>> And what do you-- is the same true with prosecutors?
I mean I know APRI, Paula Wolf's [phonetic] here.
They have a great training program DNA for-- through APRI, but you can't reach everybody.
>> Right, I think there's been certainly change over the last 10 years
or more in certainly the attitudes of prosecution agencies and so on.
I agree a great deal with what Gabe said about these cases tend to percolate to the top
but at the same time, and I know our most noted exoneration in our county--
Fred Day [phonetic] who was one of the original 26 cases featured in the book
that Dr. Morgan mentioned, "Convicted By Juries, Exonerated by Science,"
he claimed innocence the entire time but it took 10 years to find a lawyer who really grabbed
onto it and took the steps necessary.
Ultimately, that lawyer who took an interest in the case found out the evidence was
about to be destroyed shortly after that.
And without her taking those steps, Fred Day never would have been exonerated.
So I think it's a lot of things that go on to balance and make this tool known to everyone
and then to be able to use it accordingly.
>> Okay, we got Barry Fisher coming here, want to talk.
>> You're on.
>> Yeah, go.
Go ahead.
>> [Inaudible] In terms of percolation comment, I mean I just wanna be clear that, yes,
while meritorious claims, you know, should always come forward that the whole point
of having statutory provisions in place is to make sure that claims have a way to be heard
and so that the conversation that-- or rather the comments that we just heard, you know,
alluding to 10 years of efforts to try to bring the claims to light won't happen in the future.
>> You know as far as testing goes, one of the things over the years
that I've really appreciated is getting to know some of the people on the laboratories
that do the work where the rubber hits the round.
Barry Fisher is gonna be talking in a second from the LA Sheriff's Crime Lab.
I already introduced Cecilia Krauss, Stephanie [inaudible] from Miami-Dade,
and Dean [inaudible] from Orange County.
They really do the valuable work in this area but go ahead, Barry.
>> This presentation made me think of two points.
One is kind of a little narrow and one is a little broader.
The retention of biological evidence that's required
into these postconviction statutes places a significant burden
and public safety agencies across the country.
We're just constantly building more and more and more deep freezes,
and one thing that the federal government could do, the Department of Justice,
NIJ is to sponsor some more research into looking at storage of DNA evidence,
biological evidence in ways other than just the deep freeze, you know,
after all you always read stories in National Geographic about doing DNA testing
on Egyptian mummies and what not, so--
>> But we need to have something to hang our head on so we don't, you know,
run into legal decisions that seem to require us to store evidence in freezer.
And a more, and a broader basis while this conference is focusing in exclusively,
or almost exclusively on DNA testing, I think that--
and I've made this point often that forensic science provides a whole constellation of tools
and services that can be used in innocence-related processes and rather
than just focusing it on establishing places that Innocence Projects can take evidence
to doing a-- to do DNA testing, now perhaps it ought to be expanded
into the whole range of forensic science testing.
There are-- there's a pretty big discrepancy compared to the forensic science available
to prosecution as opposed to defense.
There's relatively little of that available and this could be the start
of some area that could be looked into that.
So, just couple of things to think about.
>> Yeah, and I think Robin was telling me in 2010
that NIJ's sponsoring a trace evidence pattern, evidence symposium
that kinda goes along that line as well.
Yeah, if you could just introduce yourself for the--
>> My name is Scott Alers [phonetic] I'm with the Office
of State Senator Rodney Ellis in Texas.
We had a recent exoneration in Texas, a guy named Tim Cole who was posthumously exonerated.
He died in prison prior to, you know, being exonerated and he was ultimately exonerated
because the guy who did the crime admitted to it and, you know,
it came to light that he actually did it.
Luckily in his case, the evidence had been preserved.
I think accidentally that his-- the evidence had not been destroyed after his death.
I'm wondering if there are any states out there that have something on the books
where maybe the family could come forward and maybe petition the court to keep evidence
after somebody dies or if there's some other way in which,
you know, that evidence could be retained.
Obviously we don't wanna overburden police departments in retaining this evidence forever,
but I'm just wondering if there's something out there right now that allows for that?
>> Gabe?
>> In truth, I don't know of a specific state with such provisions at least
within the 4 corners of the postconviction testing statutes,
but Scott brings up an excellent point, you know, at the balancing that he raised
because claims certainly can may well be colorable even posthumously.
>> And Ron--
>> Yeah Matt.
>> The point though that Barry brought up earlier is very real.
As I recall, when you were on the commission, Ron, you had the officer involved or in charge
of evidence custody for LA County and so I believe who testified
that they were running a reefer truck every 6 months just to try to keep
up with the biological evidence that they were receiving in that agency,
and that would have been like what, 1999-2000?
>> Right. Yeah, it is an instrument.
>> My name is Josh Marquis.
I'm a district attorney in Oregon and sit on the board of the NDA with Matt Redle.
This question is to Mr. Oberfield but also
to Matt 'cause I don't know if I've ever discussed this.
Since the purpose of DNA testing is to bring truth and light, isn't the best way
to prevent cases like Mr. Cotton's and others to have more extensive pre-conviction testing as--
and rather than simply trying to fix the mistakes afterwards.
And in light of that, why is there this requirement.
I know that the Innocence Project and a number of others requiring the expungement
or the eradication of DNA from those people who either--
potential exonerees who are exonerated or people who are not convicted.
>> Why don't I take the first--
>> Sure.
>> -- part of that?
I don't think that there's any disagreement, Josh, that the best system is one
in which the wrongfully accused are exonerated pretrial.
As a matter of fact, that was one of the-- that was one of the things that I didn't know it
at the time but since, Katie Monroe has told me that when I made
that point before our legislative committee at that hearing on August that she understood
that we might be able to work together because I would point out to you that in the--
in the post conviction arena, that cuts in the way that I think your question is aimed at.
It also implicates other things too.
It means that there's an obligation on us as prosecutors, as the ministers of justice to try
to figure out better ways of handling traditional types of evidence
that had been problematic in this area and figuring out ways
that are more effective in doing our job.
You know things like-- we know about the problem when we heard it this morning and we're reminded
of the problem-- the problems inherent in witness identification.
Things of that nature, we need to figure out how we
and our law enforcement officers can do our jobs better in that respect.
>> And just to-- Yeah, I just wasn't sure it was working.
Just to build off of those comments.
Yes, the best innocence reforms are those that were alluded to in the presentations
that preceded ours of thinking about ways
to make eyewitness identification more reliable, issues with forensic sciences.
Those are-- and thinking about ways to make them all the more reliable.
Those are the kinds of ways that the Innocence Project feels the issue is best approached.
The conversation that we're having right now is about postconviction DNA testing statutes and,
you know, we as an organization, the Innocence Project focus on the exculpatory power of DNA.
You know we are-- we're not a defense organization.
We work specifically to look at cases where new light can be shed via DNA,
and so there is a distinction to be drawn between those issues,
and I just wanted to underscore that.
Yes. Again, the strongest innocence reforms, that ones that get you, if you will,
your most bank for your buck are the ones that we've talked about in, you know, these other--
whether eyewitness identification or forensics or recording of custodial interrogations.
These are conversations that we encourage those to be having in the context of this conference,
but you know again with postconviction DNA testing statutes being the focus.
>> Robin, we have time for 2 more questions?
Okay. Yeah, go ahead.
>> I'm [inaudible] from the National Association of Criminal Defense Lawyers.
It sounded from the Wyoming experience like 2 things came up in the statute
that I wanna ask Gabe to address the national context on, one,
being the idea of third party testing and the other cost.
Because I'd look at the [inaudible] and that was not sort of covered
in the review of the 44 statutes.
So, as sort of the more detailed aspects of the statute, could you address the national context
on those 2 issues and sort of where the debate lies?
>> Would you mind just clarifying the question a little bit?
>> Sure.
>> And what specifically are you--
>> Well, I'm just-- I mean, I'm wondering if-- you know, if you're writing a model statute,
where do you-- where is the sort of guidelines on third party testing and on the cost issue
because I noticed in the Wyoming statute although it sort of went by quickly,
that there is a provision basically that if the DNA evidence does not come
out to support the claim of innocence, the cost goes back to the defense.
>> But our model actually does address these issues.
I didn't specifically raise it during the comments here just because they're--
ultimately we could be here for, you know, 7 hours easy if we wanted to talk about all
of the intricacies of the statutes.
>> But, I think the fairest answer is to say that if both are handled in a variety of ways
by states and so there isn't one particular suggestion to give you, you know,
and I think the statutes has a collective are instructive on the matter and we have language
in our model as well that you know I would encourage you to go back in and reference.
Okay.
>> Ron, if I might--
>> Yeah.
>> To followup on that too with respect to the third party testing piece of our--
of ours that was left out of the enacted statute, the--
we made a conscious decision the-- we were aware of what is in the model act
that the Innocence Project has provided.
We made a conscious decision to pursue the ABA's version of it and the reason we did was
because Wyoming is a red state and that republican thread
through our politics is primarily physically conservative and libertarian in nature
and we believe that there were greater protections afforded for the third party
under the ABA's version than under the Innocence Project's version, and so we went that route.
>> Yeah.
>> I'm Bill [inaudible] from the Alaska Innocence Project and this is for Mr. Redle.
Prior to this process, what was the opinion of the prosecution community on the necessity
and possible benefit of the statute and how was that changed if at all in the process?
>> We weren't sure if there was a necessity for it or not.
We did not have-- there was no-- there were no strong feelings about apposing this.
We felt that it was-- it was probably something that we should have in our state.
We just want to try to make sure that the bill that we had had the measures
of integrity we believe were necessary so that the victims, the courts,
and those who might be wrongfully accused, there would be legitimacy to the process essentially.
>> And has that changed at all, any view for instance?
>> No, but like I said before, the proof of the pudding is gonna be on the tasting.
>> You get the last word.
>> Okay. First let me say I completely agree with Barry Fisher
that this whole discussion opens up opportunities
for how do we store evidence and what should be stored.
In North Carolina-- my name is [inaudible] I'm from North Carolina.
In North Carolina, we've had a statute on book since 2001 for preservation of evidence in cases
and we constantly at the Center for Actual Innocence got cases
where evidence has been destroyed since 2001 because the statute, one,
has considered an unfunded mandate for storage and, two, because there is no consequence
for destruction, premature destruction.
The statute requires notice of destruction to go to the defense attorney of record
and to [inaudible] defense services, and I've been tracking the notices of destruction
for the last 3 years and there's one county in North Carolina
that provides notice of destruction.
So what do you see in the statutes across the country that provides for consequences
for premature destruction of biological evidence
when there's a statutory requirement for preservation?
>> As far as the consequences are concerned, it's not an aspect
that specifically I've tracked across the statutes and actually though there--
I would suggest though that question be tabled where there's going
to be discussion later this afternoon not specifically about statutes, I should caution,
but about preservation of evidence, issues generally connected to storage and the like.
All of which will be, you know, very readily aired there because it really merits more
than just passing moments in that question and answer period.
And so yeah, there is a-- there are different ways in which states think
about preserving evidence within postconviction DNA testing statutes,
other standalone statutes as Chris was referring to.
And so I think in-- I think it's better to hold up on an answer
to that question until that fuller conversation.
>> Yeah, so maybe Chris Plourd, I think you're on that panel.
You take some notes you're going--