DNA Access Laws – A Step in the Right Direction

As a criminal defense attorney who often finds himself in court challenging DNA test results offered into evidence by the government, I enthusiastically applaud the Massachusetts House of Representatives unanimous decision to pass Senate Bill S.197 which allows potentially innocent prison inmates post-conviction access to DNA evidence and testing.  Amazingly, until last week, Massachusetts was one of only two states in America not to pass a similar bill, despite DNA test findings that have resulted in reversals of convictions in 280 individual cases nationwide.  Related studies establish that the average period served in these wrongful convictions was 13 ½ years.  Once the Governor signs the bill into law, Oklahoma will be the sole remaining state to deny its inmates access to such critical and potentially life-saving relief.  Under the new law, the incarcerated petitioner must make a threshold showing that DNA evidence could result in an acquittal. He must also show that the evidence is reliable and still available and will have a "material effect on the outcome of the case".  Because of this, it will now be incumbent on state officials to properly preserve and catalogue biological evidence for as long as the affected individual remains incarcerated and/or experiences the consequences of a wrongful conviction.

Although I have argued in the past  to juries that, amongst various other susceptibilities, DNA evidence is not infallible and can be subject to contamination, mishandling, and even manipulation (and can easily be planted or transferred), there is no doubt it can be a powerful tool in establishing the identity of the actual perpetrator of a given crime. That’s why I agree with observers who have already noted that passage of the legislation is actually a boon on both sides of the proverbial aisle in that it may not only exonerate an innocent party, but (in many instances)  may prove the identity of the one who is guilty. Still, it will be fascinating to watch how the roles become reversed when prosecutors who routinely urge the "shut-down" reliability of such evidence will now feel compelled to take an opposite tack in opposing defense -counsels’ post-conviction DNA access motions.  Such contortions will only go so far given that "what is deemed good for the Goose" in these cases, will plainly now be "Good for the Gander".  Moreover, it is indisputable that science and related technologies are changing so rapidly in the associated field of DNA testing and forensic sciences that there is no question that techniques and procedures that might not have been available to the wrongfully convicted at the time a case was decided will, of a certainty, become available in the future.  Also, from a defense perspective,  no DNA access bill is complete or comprehensive enough if, at the same time, it all but requires an inmate to either fully prove his innocence or implicate another identifiable individual (in many instances neither can be done) before it is granted,  or if it precludes access to those who have knowingly and voluntarily pled guilty (11 of the cohort  exonerated by DNA evidence actually pled guilty to the crime charged),  or if it prevents the inmate an opportunity to appeal the denial of his motion , or even if it allows him to remain incarcerated and his petition undecided for weeks, months,  and years  after it has been filed, all of which are deficiencies common to many of the nation’s current DNA access laws.

Massachusetts’ new DNA Access Law isn’t immune from criticism, either, but at first blush appears to include all the essential elements of a common-sense bill designed to accommodate the best interests of justice. While it may not be enough to "level the playing field" in an arena where the level of justice received far too often seems dependent on the size of one’s wallet, I’m sure it feels like steps are finally being taken in the right direction for the wrongfully convicted. In a game of chance that sometimes comes down to narrowest of margins, the majority of us on the defense side call that progress.