Post Conviction 2009 : Statutes

Post Conviction 2009 : Statutes

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[ Music ] [ Background Music ]>>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–

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