Sunday, November 27, 2011

Post-conviction DNA testing proposal stirs debate among advocates, DAs

Massachusetts lawmakers are currently considering a bill that would grant convicted criminals the right to test DNA evidence that could prove their innocence. But district attorneys in the state have raised specific concerns that, while they support the concept of DNA testing, the bill has major flaws.

The proposed bill was passed unanimously by the state Senate during the summer and is currently pending approval in the House of Representatives.

Massachusetts is one of two states, along with Oklahoma, without a post-conviction DNA testing law. In addition to providing the post-conviction DNA testing, the proposed bill would also require the state to preserve evidence in a trial for the length of the convict’s prison term.

Gretchen Bennett, director of the New England Innocence Project, said the proposed bill would provide clear mechanisms to allow post-conviction DNA evidence testing. Bennett said this is a better alternative to keeping post-conviction DNA testing a decision for judges, who in many cases were the ones to deliberate over the convict’s trial. “The problem is right now we don’t have a process,” Bennett said. “It’s up to individual judges. Instead of judges’ opinion, it should be process. Justice should be evenly administered across the commonwealth. Everyone should know the rules and play by the rules.”

Bennett emphasized that the proposed law would not allow convicts to be exonerated simply based on the DNA testing results and that a DNA test request would not be considered a motion for a new trial. But Bennett said the proposed law could allow the defendants to obtain the test results for use at a potential new trial.

Currently, the ability for prison inmates to have evidence in their trials tested for DNA is governed by Rule 30 of the Massachusetts Rules of Criminal Procedure. Rule 30 allows convicts to argue their innocence in court, despite the number of appeals filed previously, if a judge decides that justice has not been done.

However, Bennett said that in the cases she is advocating for, to prove that justice has not been done, it first requires DNA testing of evidence that prison inmates currently don’t have a right to.

“Our system is obviously fallible, as is every human system,” Bennett said. “Even if it’s a tiny percentage, it’s still a few people, and a few people too many. This (wrongful conviction) could happen to anyone and absolutely ruin their lives. I would not want to spend a day in prison, let alone years.”

District attorneys across the state have said that they support the concept of post-conviction DNA testing.

“We are committed to the imperative and the principle of justice,” said Bristol County District Attorney Samuel Sutter. “And justice mandates that we do everything we can to convict the guilty and exonerate the innocent.”

However, Sutter and other district attorneys have identified several aspects of the currently proposed post-conviction DNA testing bill now on Beacon Hill that they consider major flaws.

Sutter said one major flaw is that the proposed bill allows “virtually unlimited opportunity” to DNA testing for defendants who professed their guilt through an extensive colloquy with a judge during their trial, resulting in lengthy prison sentences.

“To me, that’s not reasonable,” Sutter said.

While there have been 23 post-conviction DNA testing exonerees in other states who pleaded guilty during their case, Sutter said this has never happened in Massachusetts, perhaps because the colloquies are so extensive here.

Sutter added that the only caveat in this situation would be a North Carolina v. Alford plea, which, if made during a trial, allows the defendant to enter a guilty plea (in the hopes of avoiding a harsher sentence) while also maintaining that he did not commit the crime. This type of plea is very rare in Massachusetts because the court wants certainty, Sutter said.

Another flaw Sutter identified is the cost of unlimited motions for post-conviction DNA testing — testing that costs thousands of dollars — and the cost of unlimited preservation of evidence.

Cape Cod and the Islands District Attorney James O’Keefe, who is vice president of the Massachusetts District Attorneys Association, brought up one example in which requests allowed for post-conviction DNA testing in anything except mistaken identity would result in a harmful and counterproductive situation. His example was a conviction for aggravated rape and murder of an elderly woman, with the defendant claiming it was consensual, before later requesting for DNA testing.

O’Keefe said the currently proposed bill does not allow a judge to consider the circumstances of the defendant, while Rule 30 does.

Despite the flaws Sutter pointed out, the Bristol County District Attorney stressed that the basic principal of access to DNA testing to exonerate the innocent is something he and his colleagues completely support.

Original report here

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