Tag Archives: post conviction

Access to DNA Bill to Gov’s Desk

Wednesday was an eventful day on the House floor.  Early Tuesday evening, the BBA was notified that the Access to DNA bill (S 1987) would be taken up by the full House the very next day.  As we reported in Issue Spot last summer, the Senate unanimously passed the bill in July.  With yesterday’s passage in the House, the bill is now on its way to Governor Patrick’s desk.

Before the DNA bill was taken up, House Speaker Robert DeLeo gave his annual address to the full House (read text or watch video).  The Speaker used the opportunity to outline his agenda for the remainder of the session.  Shortly after the Speaker made his remarks, House Chairman of the Judiciary Committee Eugene O’Flaherty introduced the DNA bill.  Chairman O’Flaherty, who in past sessions actually sponsored the DNA bill, has always been a strong advocate of this legislation.  Chairman O’Flaherty described the legislation as “monumental,” and went on to say that “what is in front of you today is a piece of legislation all of us can be very proud of.”

O’Flaherty then introduced his Vice-Chairman, John Fernandes, who sponsored the bill this session in the House.  He described the story of Kenneth Waters who spent 18 years in jail for a crime he did not commit and then outlined the provisions of the bill.  Representative Fernandes noted that this bill has been around for several legislative sessions but it was the BBA’s Task Force (Issue Spot wrote about them here) that was able to carve out the objections and create a bill that was acceptable to everyone.  S 1987 has the support of the Massachusetts Attorney General, the Massachusetts Chiefs of Police Association and most of the District Attorneys.

As with any new legislation, people want to know “what’s it going to cost?”  Fortunately, this bill will cost the state very little.  The bill requires that any individual filing a motion for testing bear the cost – to the extent they are able to – and there is federal funding through the Department of Justice that specifically off-sets the costs of post-conviction DNA testing.

Rep. Fernandes said that whatever the members’ doubts have been about costs or impact, it has to be overcome by our obligation to get it right.  He gave a few quick stats:

  • There have been over 280 cases across the US in which post-conviction access to DNA testing has led to releases or reversals of decisions – some of which have led to the conviction of the actual perpetrator.
  • 17 cases involved persons on death row.
  • The average length of time served by those wrongfully convicted is 13 years.

Rep. Fernandes concluded by saying, “We hold freedom highest among the rights that we cherish.  One day, one week, one year, is too long for anybody [who is wrongfully convicted] to be held in prison.”

Following the remarks on the House floor, the DNA bill passed unanimously.  Since there were no changes from the version the Senate passed this summer, the bill goes directly to the Governor’s desk and he has 10 days to sign it.  Assuming the Governor signs it – and indications we have suggest he will – the legislation will become law after 90 days.

– Kathleen Joyce
Director of Government Relations
Boston Bar Association
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A Race to Avoid Being Dead Last: MA Needs Access to DNA Now

In less than two weeks, the Judiciary Committee will be holding a public hearing on the BBA’s bill on access to DNA evidence.  Sponsored by Senator Cynthia Creem and Representative John Fernandes, S 753 and H 2165 are on the June 8th agenda in Gardner Auditorium.  Massachusetts likes to think of itself as cutting edge and as an innovator of ideas and practices.  But the sad truth is that Massachusetts is one of only two states that does not guarantee access to DNA testing.  Oklahoma is the other.

The hearing is just the next step in a process that began in the fall of 2008 when then BBA President Kathy Weinman formed a task force to study reforms needed in Massachusetts to reduce the risk of convicting innocent people.   After fourteen months of work, the Task Force released its report titled Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts.  Guiding the work of this Task Force was the understanding that for every person wrongfully convicted, a criminal is free to commit more crimes.

This Report, an impressive achievement, did not just sit on a shelf gathering dust after it was published.  Instead it has been a critical part of the conversations we’ve had with members of the legislature and our partners in public safety.  We’ve discussed the process that led to the Report and described how it’s more than just undoing a wrongful conviction, but bringing justice to victims by convicting the guilty.  In all of our meetings there has been a shared understanding of the importance of having a statute like this in Massachusetts.  Often we’ve been met with enthusiasm to help get this done in Massachusetts, and also questions as to why this hasn’t been done before.

An access to DNA statute is important because it is not uncommon for a person to exhaust all possible appeals without being allowed access to DNA evidence from the case.  Sometimes the DNA evidence that was available at the time of the defendant’s trial was never tested or the methods of DNA testing used at the time of the trial were inexact, yielding unreliable results.

In practice, Massachusetts does much of what this bill proposes.  In many cases, access to DNA is granted to the defendant.  The Massachusetts State Police Crime Lab maintains all DNA evidence indefinitely and their facilities meet the highest standards of the field.  To his credit, Suffolk County District Attorney Dan Conley has been doing this for years.  The problem is that none of this is required by law.

Massachusetts has to pass this bill now.  The Oklahoma Bar Association passed a resolution last September establishing a commission to address the reliability and accuracy of convictions in their state.  This comes two years after we created our Task Force and nearly one year after Getting it Right was released.  Massachusetts could end up being the only state in the country without post-conviction access to DNA.  Wouldn’t that be embarrassing?

-Kathleen Joyce

Government Relations Director

BostonBar Association

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The BBA’s Getting it Right

Many people view the legislative system as being highly mechanical due to the complexity of the rules, laws, and procedures that govern it; however, the process really begins in a very basic way.  Each law starts as an idea which can come from anyone: an individual or group of citizens, a legislator or legislative committee, the executive or judicial branch, or a lobbyist.

Every year, thousands of ideas are heard before the Massachusetts Legislature, but very few are actually incorporated into law.  So, what about a bill determines its success?  Or conversely, what sends a bill into an endless loop of study sessions and delays?

Any good proposal starts off as a simple bill.  You need to find good powerful sponsors who care about it and will try to present the bill early.  You need grassroots support and you need an early and aggressive education campaign.

Many things go into crafting a simple bill that legislators will want to sponsor.  Simple bills are ideas that seek to improve upon a current law or solve a problem in the current law.  Part of the BBA’s role in this process is to bring together the experts on a particular topic.  One of the ways that the BBA assembles experts is in the formation of a task force to study a topic and to issue recommendations for improvement.

Take, for example, the BBA’s Task Force to Improve the Accuracy and Reliability of the Criminal Justice System.  Formed in September 2008 by then-President Kathy Weinman, the Task Force constituted the broadest group of criminal justice participants ever assembled by a Bar organization to address wrongful convictions.  Under the leadership of its co-chairs David Meier and Martin Murphy, the task force sought to develop recommendations that would increase the accuracy and reliability of the criminal justice system.

The Task Force released its report, Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts, in December 2009 at a press conference held at the BBA.  Members of the task force fielded questions from the media and participated in interviews with outlets such as the Boston Globe and Neighborhood Network News.

The report makes three recommendations in the area of forensic science:

(1)   enactment of a Massachusetts statute to guarantee post-conviction access to DNA testing and to require preservation of biological forensic evidence.

(2)   expanding the membership and function of the state’s Forensic Science Advisory Board to include scientists and lawyers who are not prosecutors.

(3)   create protocols and training in best practices for evidence collection, processing and retention.

While the release of the report marked the culmination of the Task Force’s work, the lobbying efforts were only just underway.  Members of the Task Force met with the chairs of the Joint Committee on the Judiciary, answering their questions and garnering their support.

But there is more work to be done because, in recent years, similar bills dealing with forensic evidence issues have stalled in the legislature.  This work will include partnering with the New England Innocence Project, along with the Committee for Public Counsel Services and the American Civil Liberties Union, both of which have filed similar proposals.

The energy around the Task Force’s work still continues.  Last month, the BBA hosted a program that featured an engaging panel discussion regarding wrongful convictions and ways to improve upon the Commonwealth’s criminal justice system.  The panel included Jennifer Thompson-Cannino, Chairman Eugene O’Flaherty, Honorable Margaret Hinkle of the Superior Court Administrative Office, Robert Merner (formerly of the Boston Police Department), Joseph Savage Jr, Martin Murphy, and David Meier.

The BBA thanks the Task Force for its tireless efforts, and is pushing for this good idea to be passed.

– Kathleen M. Joyce

Government Relations Director

Boston Bar Association

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