Wednesday, January 23, 2008

Panel backs DNA evidence bill


Star-Tribune capital bureau

CHEYENNE -- A legislative panel Tuesday threw its support behind a bill that would allow Wyoming courts to consider new DNA evidence in old criminal cases.

Wyoming is among a handful of states that don't allow prisoners to challenge their convictions with genetic evidence after the regular appeals process has expired.

DNA evidence has helped free more than 200 prisoners nationwide since the science first emerged as a feature of criminal trials and appeals in the 1990s.

If the bill becomes law, Wyoming prisoners would be allowed to petition courts to consider DNA evidence and ask for new trials. If the verdict at retrial is not guilty, or if the prosecutor declines to pursue a retrial, the prisoner would have the right to petition the court to declare a finding of “actual innocence.”

The difference between a “not guilty” verdict and a declaration of innocence could be an important distinction as the released prisoner works to piece his or her life back together, officials said.

The bill also includes a provision that would allow the courts to order DNA testing of individuals who are not suspects in a crime, known as third-party testing. That section of the bill raised some eyebrows when the committee earlier discussed the bill because of privacy concerns. It didn't receive the same attention Tuesday.

The third-party testing provision was originally included as a means for prosecutors to eliminate suspects. But Natrona County District Attorney Mike Blonigen, president of the Wyoming Prosecutors Association, told the committee that it would also provide defendants with more leverage to obtain DNA tests that might help their cases.

Under the provision, those ordered to submit to third-party DNA testing would have the right to challenge the order at a hearing, and they would have the right to have a lawyer represent them.

Lawmakers and lawyers who helped draft the bill said they expect few DNA exonerations in Wyoming. Only a small number of current Wyoming prisoners would qualify to have DNA evidence considered in their cases, and a only a fraction of those might be set free, experts said.

That's partly a function of the state's small prison population and the lack of rampant problems in the state criminal justice system.

“We do not expect a flood of petitions, but we want to have a remedy available should one of these occur,” Blonigen said.

Current state law offers several ways to void a criminal conviction, such a governor's pardon and regular appeals, but most carry time limits, and few allow for new DNA evidence to be considered.

The legislation would allow for a new trial if the judge has sufficient reason to think DNA evidence might prove a prisoner's innocence. The prisoner would carry the burden of proof.

The bill does not address cases where non-DNA evidence might prove innocence. Current state law does not allow consideration of new evidence of any type once a conviction is more than two years old.

Some experts believe that the number of cases where non-DNA evidence might prove innocence is even greater than those involving DNA.

The bill also does not address restitution for those who win their freedom. That topic could be addressed by future legislatures, officials said.

In the Utah Legislature, where work on a similar bill is under way, the state Senate unanimously approved legislation Tuesday that would provide freed prisoners with an annual salary for every year they spent behind bars, The Associated Press reported. The amount of money would be the tied to the average Utah salary, which is now about $35,000 a year.

Rep. Edward Buchanan, R-Torrington, co-chairman of the Joint Interim Judiciary Committee, said he prefers a slightly different scenario in Wyoming, as the federal government might be able to tax compensation based on lost wages.

Buchanan, who earlier voiced concern that the bill might not be ready in time for the February budget session, said Tuesday that he is pleased with the draft legislation.

“We are very excited that the bill has the unanimous support of the Joint Judiciary Committee, and we are convinced that it will fare well this session,” added Katie Monroe, director of the Rock Mountain Innocence Center in Utah, a nonprofit organization established to seek freedom for the wrongly convicted in the West. Monroe helped draft the bill.

Also helping craft the legislation were Wyoming prosecutors, public defenders, the state attorney general's office and a University of Wyoming Law School professor.

The bill will need support from two-thirds of the House or Senate to be introduced during a budget session.

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