Alaska is the 48th U.S. state to enact a law granting post-conviction DNA access to prisoners seeking to overturn wrongful convictions. After passing the state’s House and Senate with unanimous support, the measure was signed into law by Gov. Sean Parnell on May 14, 2010. Only Massachusetts and Oklahoma now lack DNA access laws in the USA.
The new Alaska law is the result of years of work by a coalition of advocates, including the Alaska Innocence Project and the Innocence Project. It allows prisoners to apply for DNA testing in cases where it has the potential to prove innocence, and if testing is granted it will be paid for by the state. The new law also requires the state to preserve biological evidence from crime scenes as long as defendant is in prison (or for 50 years in unsolved crimes).
Lawmakers and legal groups are actively seeking post-conviction DNA access legislation in Massachusetts, one of the last two states without such a law. Late last year, the Boston Bar Association released a report calling on the state to pass a law providing DNA access in cases where it can prove innocence. The task force was co-chaired by Martin F. Murphy, a partner at Foley Hoag and David Meier, a partner at Todd & Weld, and appointed by then BBA President Kathy Weinman in the fall of 2008.
“We began with the premise that for every defendant wrongly convicted, a criminal goes free, and society remains at risk while the individual who has escaped the consequences of his actions is free to commit crimes against other victims,” said Murphy. “We took a broad and systematic approach to improving the criminal justice system, and professionals at both ends of the criminal justice spectrum have all come to agree that the reforms we are recommending need to be implemented.”
Underscoring the fact that opportunities for fumbles abound at every step of the criminal justice process, the report contains recommendations for police officers, prosecutors, forensics professionals, and defense attorneys. The report raises the prospect of the perfect storm in which a variety of things can go wrong – starting with the witness identification process, and ending with a defense attorney’s failure to obtain exculpatory evidence.
The report makes three key recommendations:
(1) Enactment of a Massachusetts statute to guarantee post conviction access to DNA testing and to require preservation of biologic forensic evidence. (Massachusetts is one of only 4 states that does not have such a statute, and given the role DNA testing has played in exoneration of innocent but wrongly convicted people, the report says this is critical.)
(2) Expanding the membership and function of the state’s Forensic Science Advisory Board to include scientists and lawyers who are not prosecutors would put Massachusetts ahead of the curve nationally. (The report cites a 2008 study by the National Academy of Sciences raising serious questions about the scientific foundation of significant portions of forensic evidence admitted in courts.)
(3) Videotaping confessions. (Based on a 2004 decision of the Supreme Judicial Court most police departments are now recording confessions of suspects. The number of departments who are doing videotapes rather than just audiotapes is still in the minority. But the experience of those departments who are videotaping demonstrates that the evidence obtained is more effective because there is absolutely no doubt about what is happening, and there is nothing more powerful in a courtroom than a videotaped confession.)
“We believe most of our recommendations are very low cost, or are more about changing and following through on policies than things that require new equipment or larger numbers of police officers or anything along those lines,” said Meier. “Although there are pockets of excellence in Massachusetts with regard to particular policies and practices, both public safety and justice require that we get it right across the board.”