De Villa, Postconviction And Everything Else In The World

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

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

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

4. An Historical Perspective • National District Attorney’s Association officially endorses postconviction DNA testing where appropriate • 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

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

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

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

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

9. A Framework for Analysis • Category One - Biological evidence was collected and exists and an exclusionary result would constitute an exoneration • 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

10. 5 Categories of Evaluation(continued) • Category Three - Biological evidence was collected and exists but favorable tests would be inconclusive • Category Four - Biological evidence was never collected or cannot be found or was destroyed or was preserved in a way that permits analysis • Category Five - A request for DNA testing is frivolous

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

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

13. 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.