DNA Deadline

October 9, 2008

Detroit Metro Times- Detroit, MI

Requests for DNA testing from about 150 Michigan prisoners crowd Donna McKneelen's office at the Innocence Project at Cooley Law School in Lansing, where she's co-director.

She wonders if she'll have time to usher petitions for testing — which could prove some of the inmates were wrongfully convicted — through the court system in the next three months. The deadline looms because Michigan's law allowing post-conviction testing of DNA evidence expires in December.

Earlier this year, the Michigan House passed a bill to extend the measure to 2012, but that legislation is stalled in the state Senate. If it's not passed by the session's end in December, prisoners' ability to use testing to prove their innocence is gone.

"This is the last opportunity for these inmates," McKneelen says. "There's no process left. If they don't file under this statute there is no other avenue for them to get DNA testing."

Wayne Kuipers (R-Holland) chairs the Senate Judiciary Committee, which the bill must pass to reach the full chamber. He did not return several telephone calls and e-mails seeking comment.

Three Michigan men have been exonerated by DNA testing: Eddie Joe Lloyd, was released in 2001 after the national Innocence Project in New York handled his case, and Ken Wyniemko and Nathaniel Hatchett left prison in 2003 and in April, respectively, after Cooley attorneys requested testing that proved their innocence.

Michigan's exonerations are among 220 the Innocence Project reports nationwide. "DNA is a credible, powerful scientific tool," says Marla Mitchell-Cichon, co-director of the Cooley project with McKneelen. "Its use in post-conviction cases should continue."

In 2000, the Michigan Legislature passed the law allowing DNA testing in cases where evidence existed, hadn't been analyzed before trial and could exonerate the convicted person. It became effective Jan. 1, 2001 but was limited to eight years.

Lawmakers enacted the deadline because they were worried about flooding the courts with requests and figured that eight years was enough time to process cases in the pre-DNA era. But the Cooley project — Michigan's only organization dedicated to such work — hasn't been able to complete investigations into the 3,500 requests they've received. Some 150 requests are yet to be vetted.

The research is lengthy, McKneelen says, because while the law allows evidence to be tested, there is no requirement police or prosecutors automatically provide that evidence. So McKneelen and the students must first determine if evidence even exists; that can take months of Freedom of Information Act requests or negotiations with police departments.

"Some departments are absolutely wonderful. They're organized. There are records for everything. They're cooperative. But unfortunately that's not the case in all counties. There are some counties that are far more difficult than others," she says.

Since 2001, the Cooley team has submitted 13 cases for screening, including Hatchett's and Wyniemko's. Some other tests proved guilt or were inconclusive. Results in at least four cases are due in the next several months.

Now, the December deadline for post-conviction testing in Michigan has McKneelen worried about those last 150 requests.

"We really are up against trying to determine whether to file all the cases we have remaining, even those cases that we've not completed the investigation in," she says. "We don't file frivolous claims. That's why we still need the statute."

Scientific improvements also have increased the possibility of testing in old cases. If samples were small or contained more than one person's DNA, earlier tests could have been inconclusive, but today's technology could yield a result.

"We can now go back and ask for further testing and we could get a result. We have this constantly changing technology," McKneelen says.

Rep. Paul Condino (D-Southfield), chair of the House Judiciary Committee, says he's optimistic that after the November election, the Legislature will resume work on the DNA bill and other measures. "I remain convinced that they will move the bill during the lame duck session," he says.

McKneelen says enacting the testing law is a matter of public safety. "Unless the state Senate makes this bill a priority," she says, "innocent people will remain in prison while the actual perpetrators of crime remain at large."