Justice undeterred: a call for Massachusetts legislation on post-conviction DNA access.

• Author: Lazazzero, Joseph

[Petitioner] can obtain relief only if that determination was contrary to, or an unreasonable application of, "clearly established Federal law, as determined by the Supreme Court of the United States." It most assuredly was not. This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is "actually" innocent. (1)

1. INTRODUCTION

   The development of DNA technology and its subsequent use in the criminal justice system has changed criminal procedure in American law. (2) DNA evidence serves as a powerful identification tool for the prosecution and the defense, both during and after trial. (3) A number of groups, such as the innocence Project, have also used DNA testing to free wrongfully convicted persons. (4) Prosecutors and victims' rights groups, however, point out that allowing more post-conviction DNA tests could clog the appellate courts and erode the finality of decisions. (5)

   The Supreme Court recently addressed the availability of post-conviction DNA testing for prisoners in District Attorney's Office v. Osborne (6) Reversing a decision of the Ninth Circuit Court of Appeals, the Supreme Court held the United States Constitution does not afford prisoners access to post-conviction DNA testing. (7) in its reasoning, the court stressed that a jury had already convicted the appellant after a fair and impartial trial, and Alaskan courts provide adequate access to post-conviction DNA testing. (8) in addition, the court reasoned the judiciary should not preempt the state legislatures' standards for post-conviction DNA access. (9)

   Most states have already followed the Supreme Court's suggestion in Osborne and enacted statutes regulating post-conviction motions for DNA testing. (10) Massachusetts is one of two states that still have no such law. (11) The Massachusetts legislature has previously been unsuccessful in its attempts to pass a DNA access statute. (12) Currently, prisoners in Massachusetts must rely on Rule 30 of the Massachusetts Rules of Criminal Procedure, a general post-conviction discovery motion that applies to nearly all post-trial appeals. (13) While Massachusetts courts have attempted to establish standards for post-conviction DNA access, the lack of legislative action on the issue still leaves questions regarding time limitations, the prima facie burden for evidence preservation and production, and general practicality issues. (14)

   This Note argues that the Massachusetts legislature should enact a post-conviction DNA access statute by focusing on various approaches of other state courts and legislatures in recognizing a statutory right to post-conviction DNA testing. The goal of this Note is not to assess the constitutional and due process rights of access to DNA evidence, but instead to provide effective and pragmatic policy reasons for a Massachusetts statute. Part II.A provides an overview of federal legislation and case law on post-conviction DNA access. (15) Part II.B discusses how Massachusetts prisoners currently appeal for post-conviction DNA testing. (16) Part II.C studies Massachusetts case law, which has interpreted and applied Rule 30, specifically in motions for post-conviction DNA access. (17) Part II.D focuses on the statutory and case law approaches of the state of New York. (18) Part II.E discusses the statutory requirements needed for post-conviction DNA access under Maine law, as well as Maine's recently amended DNA access statute. (19) Finally, Part III suggests the approach the Massachusetts legislature should take in developing a post-conviction DNA statute, incorporating successful aspects of federal, Maine, and New York legislation on post-conviction DNA access. (20)

2. HISTORY

   With advancements in DNA identification technology came new requests for post-conviction access in both state and federal courts. (21) New York was one of the first states to pass specific post-conviction DNA access legislation. (22) Maine also passed legislation for DNA access, and recently amended its post-conviction statute to make it easier to gain access to DNA evidence. (23) In response to the growing trend among state legislatures, Congress passed the Innocence Protection Act, which affords post-conviction DNA access within the federal court system. (24) Despite federal and state support for post-conviction DNA access, Massachusetts remains one of the few states without such a law, and instead relies on general rules of post-conviction discovery and relief procedures for those seeking post-conviction DNA access. (25)

   1. Overview of Federal DNA Access

      In 2004, the United States Congress passed the Innocence Protection Act, affording post-conviction DNA testing for certain individuals. (26) In order for a person to qualify under the Innocence Protection Act, a court must have convicted and incarcerated the person for committing a federal offense. (27) Alternatively, persons convicted of state offenses can qualify for relief if evidence of the state offense is introduced during a federal sentencing hearing, and the petitioner has exhausted all state procedures, but no adequate remedy exists under state law. (28) In addition, the identity of the perpetrator must have been at issue at the trial that resulted in the petitioner's conviction. (29) Finally, applicants must submit a signed affidavit under the penalties of perjury swearing that they are innocent of their convicted crimes. (30)

      The Innocence Protection Act also sets a number of requirements for the type of evidence an applicant may test after conviction. (31) The evidence must have not been previously tested, or if it was, new technology must now be available to perform a different test on the forensic material. (32) Applicants must also show they did not "knowingly and voluntarily" waive testing at the original trial or in a previous motion for post-conviction DNA testing. (33) Furthermore, failure to request DNA testing of that evidence in a prior motion constitutes a waiver. (34) The law also requires that the evidence in question be material and "raise a reasonable probability that the applicant did not commit the offense." (35) In order to avoid inconsistent defense strategies, the newly tested evidence must remain consistent with the same theory of defense presented at trial. (36) Finally, the evidence must be in the government's possession and have a chain of custody demonstrating that the evidence remains free of tampering or contamination. (37) Applicants pay for the testing, unless they are indigent, in which case the government pays. (38)

      Along with requirements as to the type of evidence that may be tested, the Innocence Protection Act also imposes timing constraints. (39) The federal statute first mandates that all motions for further testing be "timely." (40) The motion is presumed timely if filed within three years of the applicant's conviction, which may be rebutted if the applicant has been denied DNA access on the same evidence or upon evidence that the defendant's motive for the motion is delay or harassment. (41) A presumption against timeliness exists if the applicant does not file within the three-year window, but a showing of the applicant's incompetence, newly discovered evidence, or any "good cause" can also rebut this. (42)

      Courts have also examined whether the federal constitution itself affords post-conviction DNA access. (43) The United States Supreme Court recently analyzed post-conviction DNA access for state convicts in District Attorney's Office v. Osborne (44) The case involved a defendant (Osborne) petitioning the United States Supreme Court after the Alaska Court of Appeals denied his motion for DNA testing. (45) The Supreme Court first considered whether Alaska's lack of a statute affording post-conviction DNA testing violated Osborne's procedural due process rights. (46) Holding Osborne's procedural due process rights were not violated, the Court stressed that a convicted person has less liberty interests than an innocent person, and federal courts may only interfere with a state's post-conviction procedures when they are "fundamentally inadequate." (47) The Court reasoned that Alaska's post-conviction procedures were adequate in part because of the similarities between Alaska's requirements and the federal government's standards under the Innocence Protection Act. (48)

      Secondly, the Court rejected Osborne's substantive due process claim in part by focusing on the importance of allowing state governments to address the issues of DNA evidence and post-conviction access. (49) The Court argued that recognizing a constitutional right to DNA testing for convicted persons would lead to a "myriad of other issues" that would clog the federal courts, as well as jeopardize the constitutionality of those post-conviction statutes already adopted in a majority of states. (50) As a result, the Court ultimately held that the issue of post-conviction DNA testing is one best left to state legislatures. (51)

   2. Rule 30 of Massachusetts Rules of Criminal Procedure

      Rule 30 of the Massachusetts Rules of Criminal Procedure establishes the state's legal standards for post-conviction motions. (52) In its most basic application, Rule 30 empowers a judge to "grant a new trial at any time if it appears that justice may not have been done." (53) The original trial judge entertains the motion, and barring any constitutional violation, decides the matter within reasonable discretion. (54) originally, defendants filing a post-conviction motion under Rule 30 had to do so within one year of the trial's conclusion, but a 1964 amendment allows the court to consider a Rule 30 motion at any time. (55) In addition, defendants can use a Rule 30 motion as a way to invalidate a previous guilty plea or admission to sufficient facts. (56)

      Newly discovered evidence, such as new DNA test results, is one of the...