De Villa, Postconviction And Everything Else In The World Chris Asplen, Esquire Smith Alling Lane Stetson School of Law January 23, 2006

An Historical Perspective US experience with the abuse of Habeas Corpus Appeals US experience with the abuse of Habeas Corpus Appeals US Anti-Terrorism and Effective Death Penalty Act limited abuses of the appellate process US Anti-Terrorism and Effective Death Penalty Act limited abuses of the appellate process Tremendous opposition by prosecutors to Postconviction DNA applications Tremendous opposition by prosecutors to Postconviction DNA applications Fear of the “floodgates” opening Fear of the “floodgates” opening US DOJ publishes the report “Convicted by Juries Exonerated by Science” US DOJ publishes the report “Convicted by Juries Exonerated by Science” Examines 24 DNA Exonerations Examines 24 DNA Exonerations

An Historical Perspective US Attorney General, Janet Reno orders the establishment of the National Commission on the Future of DNA Evidence US Attorney General, Janet Reno orders the establishment of the National Commission on the Future of DNA Evidence Commission publishes Commission publishes Postconviction DNA: Recommendations for Handling Requests Postconviction DNA: Recommendations for Handling Requests Model legislation for States Model legislation for States Small number of prosecutors implement prosecutor initiated postconviction DNA testing Small number of prosecutors implement prosecutor initiated postconviction DNA testing

An Historical Perspective National District Attorney’s Association officially endorses postconviction DNA testing where appropriate National District Attorney’s Association officially endorses postconviction DNA testing where appropriate US Attorney General, John Ashcroft eliminates prosecutor initiated DNA project US Attorney General, John Ashcroft eliminates prosecutor initiated DNA project President George W. Bush initiates $800,000,000 project and includes some postconviction DNA testing President George W. Bush initiates $800,000,000 project and includes some postconviction DNA testing

An Historical Perspective of the Scientific Issues First there was RFLP First there was RFLP Of limited use for postconviction purposes Of limited use for postconviction purposes Evidence was usually old Evidence was usually old Evidence was usually degraded Evidence was usually degraded Then came PCR ! Then came PCR ! Now, older and more degraded biological material could be analyzed Now, older and more degraded biological material could be analyzed Postconviction testing became relevant Postconviction testing became relevant Then came greater database utilization Then came greater database utilization

So What’s the Big Issue? The value of finality V The exonerative capability of the technology

How Do We Evaluate a Case? What is the Relevancy of the Potential DNA Result? Exclusion = Exoneration Exclusion = Nothing

Reasonable minds can differ on the Relevancy of a Postconviction DNA Result Exclusion = Exoneration Exclusion = Nothing Grey Area where reasonable minds will differ

A Framework for Analysis 1. Category One - Biological evidence was collected and exists and an exclusionary result would constitute an exoneration 2. Category Two - Biological evidence was collected and exists and exclusionary results would support petitioner’s claim – but reasonable persons might disagree if the results were exonerative

5 Categories of Evaluation (continued) 3. Category Three - Biological evidence was collected and exists but favorable tests would be inconclusive 4. Category Four - Biological evidence was never collected or cannot be found or was destroyed or was preserved in a way that permits analysis 5. Category Five - A request for DNA testing is frivolous

What Else is Happening Biogeographical Diversity testing Biogeographical Diversity testing Solving crimes Solving crimes Identifying Bodies Identifying Bodies Physical Characteristic testing Physical Characteristic testing UK Kingdom already using it UK Kingdom already using it The Netherlands has legislated it The Netherlands has legislated it US is researching it US is researching it Faster, Better, Cheaper testing Faster, Better, Cheaper testing Chip technology Chip technology Lab on wheels with satellite link up to database. Lab on wheels with satellite link up to database. SNPs SNPs

What Else is Happening Database Expansion Database Expansion US – Federal law now allows for the the up loading of arrestee profiles US – Federal law now allows for the the up loading of arrestee profiles States will now begin to pass arrestee legislation States will now begin to pass arrestee legislation More states will also expand to most offenses for post conviction More states will also expand to most offenses for post conviction UK Kingdom already databasing all “recordable offenses – forever UK Kingdom already databasing all “recordable offenses – forever Many countries in the process of developing databases Many countries in the process of developing databases China China India India International Connectivity International Connectivity Interpol’s DNA Gateway Interpol’s DNA Gateway Europe’s Schegen Treaty Connectivity scheme Europe’s Schegen Treaty Connectivity scheme Every country has only ever expanded its database Every country has only ever expanded its database

Recognizing the correlation between Databases and Exonerations “The bill will allow us to store, retrieve and use a DNA fingerprinting database of convicts and criminals. It is the need of the hour because the finality of court judgments pertaining to criminal cases is being questioned,“ Seyed Ehtesham Hasnain, Director of CDFD and member-secretary of the DNA Profiling Advisory Council.