The fight for post-conviction DNA testing is not yet over: an analysis of the eight remaining "holdout states" and suggestions for strategies to bring vital relief to the wrongfully convicted.

• Author: Steinback, Rachel

1. INTRODUCTION

   On the morning of April 26, 1981, approximately forty-five minutes before sunrise, an intruder entered the apartment of a Caucasian thirty-seven-year-old Dallas woman. (2) Armed with a butcher knife he had taken from her kitchen, the intruder proceeded to the sleeping woman's bedroom. (3) He climbed on top of her, holding the butcher knife over her head. Following a brief struggle, in which the woman's thumb, neck, and backside were slashed, the woman was vaginally raped. (4) The entire incident lasted less than twenty minutes and occurred under a cloak of predawn darkness, the room illuminated only by what the victim described as a "little light" from a window and a digital clock radio. (5)

   In the hours following the rape, the police questioned the victim and took her to the hospital to have the physical evidence of the rape preserved. Due to the darkness of the room when the rape occurred, it was difficult for the victim to give a detailed description of the assailant; ultimately, she described him as a "black male, just kind of average build ... somewhere in his twenties." (6) Further probing yielded the following descriptors: "... wasn't real light skinned," but "couldn't tell if he was 'real dark skinned'"; "he didn't have a real wide nose"; "he had pretty regular [facial] features." (7) When asked to go through a photo array of possible perpetrators, the victim dismissed a photo of a man named Larry Fuller. Nonetheless, in a second photo array shown to the victim days later, another photo of Mr. Fuller was included; he was the only man whose photo appeared in both photo arrays. After considering Mr. Fuller's second photo, the victim identified him as the rapist. (8)

   At the time of the incident, thirty-two-year-old Mr. Fuller was living with his girlfriend and her two young children. (9) He had served two tours of duty in Vietnam, where he received an Air Medal for taking care of his crew, and was honorably discharged in 1971. Prior to being drafted, Mr. Fuller had attended Dallas Baptist College; upon his return, he enrolled in the Dallas Art Institute. In April 1981, Mr. Fuller was pursuing a career in art and had worked in several service jobs. He had no record of sex crimes. (10)

   Four months later--following a two-day trial and a mere thirty-five minutes of jury deliberations--Mr. Fuller was convicted of aggravated rape and sentenced to fifty years in prison. (11) He received the maximum sentence allowed, following the State's argument that he "[could not] be rehabilitated, because the first step to being rehabilitated is to admit that you have made a mistake and that you need help." (12) Mr. Fuller, maintaining his innocence, refused to make such a confession. He was convicted on the basis of the victim' s eyewitness testimony. (13)

   For twenty-five years, Mr. Fuller maintained his innocence. Following his 1999 release on parole, he contacted the Innocence Project for help. Mr. Fuller finally cleared his name on October 31, 2006, his innocence publicly proclaimed by a state judge. With the support of the Innocence Project and local counsel, Mr. Fuller petitioned for access to post-conviction DNA testing--a petition made possible with the enactment of a Texas postconviction DNA testing statute in 2001. (14) While the State opposed his petition, the judge ultimately granted his request, and sophisticated DNA analysis excluded him as the perpetrator of this heinous crime. At age fifty-seven, a victorious Larry Fuller walked out the doors of the 203rd Judicial Courthouse in Dallas, Texas, as a vindicated man. (15)

   Mr. Fuller is one of thirteen people proven innocent by DNA evidence in Dallas County over the last five years. (16) Nationwide, 214 convicted felons have been exonerated by DNA testing. (17) These exonerations are victories for our criminal justice system: they free the innocent, correct miscarriages of justice that undermine public confidence in the criminal justice system, and allow the pursuit of the real perpetrators of these heinous crimes to commence. (18) However, wrongful convictions leave many victims in their wake. Most obviously, they claim years--if not the lives--of the individuals who have been convicted. (19) The average length of time served by individuals who have been exonerated is twelve years. (20) Beyond the burden of time served, once innocence has been established and the innocent victim has been freed, re-entry into society often poses considerable difficulties. (21) A 2002 Associated Press study of exonerated individuals found that their professional and economic successes were often stunted because imprisonment occurred during "critical wage-earning years when careers ... are built"; their marriages were often ruined and family relationships, if not destroyed, became strained; and despite their absolution, opportunities for professional advancement remained elusive. (22) Family members and friends are also victims of wrongful convictions because they suffer as they watch someone they know to be innocent fall prey to a flawed system of "justice." Finally, and most relevant to the public and our law enforcement community, are the men, women and children whose livelihoods are endangered as the true criminals remain at-large, free to strike again.

   DNA evidence is a leading cause of exonerations. (23) However, post-conviction access to DNA testing has not always been available. In 1997, Illinois became the first state in the nation to enact a statute granting convicted felons access to post-conviction DNA testing. (24) Over the past ten years, forty-one other states (25) and the federal government have followed suit. (26) While the individual statutes have varied, their passage provides a crucial means to correct the growing recognition of our criminal justice system's fallibility. Nonetheless, eight states remain seemingly impervious to the groundswell of support for post-conviction DNA testing: Alabama, Alaska, Massachusetts, Mississippi, Oklahoma, South Carolina, South Dakota, and Wyoming.

   There are a variety of factors that have resulted in these states' inability--or unwillingness--to pass post-conviction DNA testing legislation. While there has been a tremendous focus on post-conviction DNA statutes in academic and advocacy literature, no attention has been paid to the holes that remain: those states that have yet to pass specific post-conviction DNA testing statutes. This Comment initiates that avenue of scholarship. Part II of this Comment chronicles the DNA exoneration movement, providing a brief overview of the enactment of state and federal post-conviction DNA testing legislation. Part III discusses the alternative legal avenues that prisoners within these states can explore in attempting to gain post-conviction DNA testing. In so doing, it reveals the severe deficiencies of our federal legal system for handling these state claims and underscores the primary importance of enacting state post-conviction DNA statutes. (27) Part IV identifies the remaining eight states that have failed to pass post-conviction DNA testing statutes, and discusses the legal, political and social obstacles each state has faced in its efforts--some strenuous, some minimal--to enact post-conviction DNA testing legislation. Finally, Part V suggests ways in which these last remaining states may be encouraged to pass statutes guaranteeing access to post-conviction DNA testing--a crucial step in the larger effort to improve our criminal justice system, make our communities safer, correct injustices suffered by innocent victims, and continue in our "vigilant search for truth." (28)

2. BACKGROUND

   1. THE ENACTMENT OF STATE AND FEDERAL STATUTES AUTHORIZING DNA TESTING IN POST-CONVICTION CRIMINAL PROCEEDINGS

      In 1979, an Illinois man named Gary Dotson was convicted of aggravated kidnapping and rape, and was sentenced to twenty-five to fifty years imprisonment. (29) While serving the sixth year of his sentence, the victim recanted her testimony and confessed to having fabricated the entire incident. (30) When Mr. Dotson attempted to vacate his sentence, the trial judge proclaimed the alleged victim more believable in her original claim than in her recantation and denied Mr. Dotson's motion for a new trial. Two years later, after his lawyer was able to secure DNA testing that was not available at the time of trial, the results excluded the possibility that Mr. Dotson could have committed the alleged crime, (31) demonstrating for the first time the value that DNA analysis could provide in correcting a miscarriage of justice. The interest in DNA analysis and the role it could play in law enforcement efforts began to gain momentum. In 1996, the National Institute of Justice released a study which documented twenty-eight cases of wrongfully convicted individuals who had been proclaimed innocent and released from prison on the basis of post-conviction DNA testing. (32) Attorney General Janet Reno responded to the study by creating a National Commission on the Future of DNA Evidence; included as part of this Commission was a Post-Conviction Issues Working Group ("Working Group") which was convened with the goal of creating a list of recommendations for ways in which the wrongfully convicted could secure quick access to relief. After three years of meetings, deliberations, and hearings, the Working Group published a report that synthesized what they had discussed and made recommendations on the future use of DNA testing in post-conviction appeals. (33) While the recommendations had no binding authority on legislatures or law enforcement officials, their impact was quickly felt: whereas prior to its release only two states had passed postconviction DNA testing statutes, (34) eight states enacted post-conviction DNA statutes in 2000 (35) and, to date, a total of forty-two states and the federal government have enacted laws authorizing post-conviction DNA testing. (36)

   2. THE...