"Failing the DNA Test," Michael Blanding and Lindsay Markel, November 20, 2011, The Boston Globe Magazine
WBUR's Radio Boston hosts talk with Schuster Senior Fellow Michael Blanding about DNA testing for prisoners in Massachusetts
- Post-conviction DNA testing in Massachusetts: "Failing the Test"
- Waiting for DNA: More about Massachusetts prisoners claiming innocence who are featured in the article
- Exonerated by DNA: Massachusetts wrongful convictions overturned
- Background: A primer on the Massachusetts DNA access bill<
- Underlying issue: No law requiring preservation of crime scene evidence
- Digging deeper: What do exonerations teach us about the criminal justice system?
- Non-DNA cases: What happens if there is no DNA to test?
How do wrongful convictions occur?
- Eyewitness misidentification
- Faulty forensics, or bad science
- False confessions
- Informants and "snitches"
- Bad lawyering or representation in court
- Misconduct by prosecutors or law enforcement
Background: A primer on
the Massachusetts long-
proposed DNA access bill
A DNA access bill has been proposed in the Massachusetts state legislature every session since 2003. Yet each time, it has failed to pass. After unanimous passage in the Senate this July, the bill has now gotten further than in any previous version.
That’s in large part because the Boston Bar Association (BBA) brought together the various criminal justice stakeholders to draft a bill that everyone on the committee—from police to prosecutors to defense attorneys—could support.
[Read the full BBA report, and find out who is the list of taskforce members.]
Yet the bill’s passage isn’t a given: It’s waiting for a vote in the House, and meanwhile some of the state’s district attorneys have raised major concerns about it.
Here, a primer on where the bill is now—and how it got there.
The background: Past bills and the BBA
In 2003, New England Law Boston professor David Siegel spearheaded the first attempt to pass a DNA access bill for Massachusetts. That bill, however, included not only a way for inmates to access the evidence for testing, but it also triggered new trials and gave judges sweeping discretion to vacate convictions based on the test results. Some law enforcement officials strongly objected to that version of the bill, because it seemed to some like a back-door effort by defense attorneys to get their clients cleared after fair trials.
“There is tremendous resistance, naturally, on the part of folks within law enforcement to a proposal that, at least in the eyes of some people, is going to turn everything upside down,” said David Meier, former head of the Suffolk County DA’s homicide unit and now a criminal defense attorney, in an interview. Although a DNA access bill was introduced on Beacon Hill every session since 2003, it was always blocked, ignored or stalled.
|Kathy Weinman (right) is former president of the BBA, and is pictured here with Kathleen Joyce, BBA director of government relations. In 2008, Weinman convened a taskforce including law enforcement, prosecutors, and defense attorneys that recommended a DNA access bill for Massachusetts.|
Fast forward to 2008. The new president of the BBA, Kathy Weinman, decided it was time to convene a taskforce to address wrongful convictions in Massachusetts—and to make recommendations for reforms. She tapped David Meier and Marty Murphy, another high-profile former prosecutor-turned-defense attorney to co-chair the effort.
The taskforce made a number of recommendations for criminal justice system reform—and passage of a DNA access bill was one of them. The group unanimously approved every recommended reform, including the DNA access bill it drafted and included as an appendix to its December 2009 report: “Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts.”
But to understand why this bill is different from the others, it’s important to know where it’s coming from. And according to Weinman, it’s coming from all sides of the criminal justice system: law enforcement and defense attorneys alike. That is, people who, on most other criminal justice issues, wouldn’t normally agree. The head of the state crime lab. A trustee of the New England Innocence Project. A first assistant district attorney. The head of Massachusetts indigent defense. The commissioner of the Boston Police Department. They all agreed that Massachusetts should have a DNA access law, Weinman said.
“I really mean it sincerely that having everybody at the table just made the [proposed bill] much better,” said Weinman in an interview at the BBA office in September. “All the recommendations and the report were agreed to by every single member of the task force. There was no dissention at all.”
A major reason for the consensus was that David Siegel and Greg Massing, general counsel for the Executive Office of Public Safety (which oversees law enforcement across Massachusetts) worked together from the start. They stripped out the provisions that linked testing to the possibility of automatic new trials. This streamlined bill would set procedures for accessing evidence for testing—and that’s it. “It’s not about whether or not this person is guilty or not guilty. That’s further down the line,” said Massing in an interview in September. “This [bill is about] whether the person can have access to the evidence to do a test.” Then, attorneys and the courts can assess what the results mean.
Under existing criminal law in Massachusetts, inmates have more liberal access to courts to argue their innocence than inmates in most other states. This is because Rule 30 of the Massachusetts Rules of Criminal Procedure for new trials provides a way for inmates to argue their innocence before the court—no matter how many appeals they may have filed—if based on newly discovered or developed evidence, they can persuade the court that “justice may not have been done.” However, they need to present that evidence in a Rule 30 motion for a new trial, and they can’t get a new trial without evidence from DNA testing, but they can’t get access to evidence for testing without a new trial.
Siegel explains that this catch-22 puts inmates whose trials may have been fair—so they therefore can’t point to a legal problem that entitles them to a new trial—at a disadvantage. Experts like Greg Hampikian, a biology and criminal justice professor at Boise State University and director of the Idaho Innocence Project, say that a number of convictions before the 1990s may have had crime scene evidence that could have been tested for DNA, but routine DNA testing was rare then. And in other cases, Hampikian says, DNA technology is advancing so dramatically every year, some crime scene evidence that would not have yielded results in the past, now can be tested reliably.
Siegel says that the stakeholders supporting the bill through the BBA taskforce reflect an “increasing recognition that the adversarial process, even when it’s done properly, and done according to its rules, can still—in some circumstances—produce factually inaccurate outcomes.” That, he says, is what this bill is designed to address. “It’s about circumstances in which somebody can’t say there was an error in any part of the process, or somebody made a mistake in the process, but [they do say that] the net effect of the process is that they got the wrong person,” and scientific DNA testing of crime scene evidence may provide the proof.
To the State House
After the BBA taskforce published a model post-conviction DNA access bill that would bring Massachusetts in line with 48 other states and the federal government, Sen. Cynthia Creem (D) and Rep. John Fernandes (D) signed on as sponsors. (Rep. Gene O’Flaherty, who co-chairs the Joint Judiciary Committee with Creem, has also played an instrumental role in the bill’s progress.)
A number of interested officials then wrote to those legislators, most expressing general support, and offering some small suggestions they believed would improve the bill. Many of those were made in the current version of the bill.
Read their letters here:
- Massachusetts Attorney General Martha Coakley
- Suffolk County District Attorney Daniel Conley
- Middlesex County District Attorney Gerard Leone
- Executive Director of the Massachusetts Chiefs of Police Association Chief A. Wayne Sampson
Chief Justice of the Superior Court Barbara Rouse also wrote to the legislators, about her concerns that the proposed bill would interfere with the established Rule 30 procedures. However, following an interview with Schuster Institute reporter Michael Blanding, Rouse spoke to the BBA’s Kathy Weinman and David Meier and learned more about the federal funding available to states with DNA access bills. She then emailed Weinman and Meier clarifying her support.
Rouse shared the email below with Blanding:
“I appreciated the opportunity to discuss with each of you the proposed legislation concerning access to forensic and scientific analysis and found our conversations instructive. As you know, at the time I wrote my letter I did not know that the bill was the product of the Boston Bar Association’s remarkable work on wrongful convictions.
"My objectives in writing the letter were to comment on the ramifications of the overlap between the bill and Rule 30 of the Massachusetts Rules of Criminal Procedure and to underscore the importance of establishing procedures governing the retention and preservation of biological material and obtaining funding to support the implementation of such procedures and the creation of adequate facilities at the various governmental entities to ensure the integrity of the evidence indefinitely.
"Most importantly, I did not know, until my conversation with Kathy late Friday, that a statute, as opposed to a rule, was a prerequisite to securing federal monies. That fact alone alters my thinking about the legislation. Unless we have the resources and facilities to preserve the evidence and to prevent its deterioration, the laudable objective of the legislation would be vitiated. Nothing in my letter was intended to impede the passage of legislation that would make more likely the availability of monies to achieve our common goal of broadening access to evidence that is appropriately preserved.
“I trust this clarifies the position of the court but do not hesitate to contact me to discuss the matter further.”
Other criticisms of the bill
“The devil’s in the details, and you know, I think we’ve got the details pretty good at this point,” said Greg Massing, who coauthored the BBA’s model bill with David Siegel, in a September interview. “There’s a real desire from the legislature to make sure the district attorneys are satisfied that this is a responsible bill.”
After we contacted the eleven Massachusetts district attorneys for our Boston Globe Magazine investigation, nine of them met to discuss their position on the bill. Those who met selected their association’s president, Bristol County DA Sam Sutter, to present their views.
“We support fervently the concept of DNA testing to both exonerate the innocent and convict the guilty,” Sutter said in an interview in late October “But we believe there are major flaws with this particular bill. Major flaws.”
In that interview and some follow-up correspondence, Sutter elaborated on his and some of his fellow DAs’ concerns. First, they say, defendants who pleaded guilty after admitting to doing the crime in an extensive colloquy with a judge should not be allowed to access tests under the bill.
However, the Innocence Project, which keeps extensive empirical information about the 280 DNA exonerations, says the evidence shows that innocent people do plead guilty. The Innocence Project found that 23 of those exonerated originally pled guilty—“usually seeking to avoid the potential for a long sentence (or a death sentence) for a crime they didn’t commit.”
Second, Sutter said the nine DAs who met think that convicts whose defense at trial was anything other than mistaken identity should not be able to access DNA testing. (For example, they say, someone who claimed self defense in a murder or consent in a rape shouldn’t get access to DNA tests.)
Finally, Sutter said that the DAs who met expressed concerns about the costs associated with the second major part of the bill, which would require law enforcement to preserve evidence from criminal trials so that it would be available for possible future testing.
[Read more about evidence preservation.]
In general, what troubles the DAs about the bill, Sutter said, is that the lower standard for access would invite a flurry of frivolous requests that would overburden the system.
Yet that flood doesn’t seem to have materialized elsewhere, as state after state has passed similar bills. “I have worked in at least 10 of these states that have laws,” said Greg Hampikian, the Boise State University professor and director of the Idaho Innocence Project. He defies opponents who argue there will be a flood of requests “to give me one example where the laboratories or the prosecutors” in the 48 states that have bills “have said that this is clogging the system, this is making our job difficult, there’s a floodgate. None of that is true, but it is always said.”
What the data show
New York and Ohio can serve as comparisons. New York, which has more than five times as many prisoners as Massachusetts, received just 100 requests in the first seven years after its law was enacted. Ohio, with four times more prisoners than Massachusetts, received 307 requests in its first three years with a statute—and more than 200 of those were denied. Ohio actually had a limited window of time in which inmates could make requests, but after determining that the law didn’t create too much of a financial burden, state legislators did away with the time limits.
[Read David Siegel’s written testimony to the legislature, which includes a cost assessment based on the experiences in other states.]
DAs Conley and Leone, who wrote letters to the legislature supporting of the bills’ concepts, declined follow-up interviews to discuss whether the group meeting they attended with other DAs affected their thinking about the bill. Leone said through a press secretary that his letter was generally consistent with Sutter’s comments.
On the other hand, Conley all but took credit for the bill in remarks to the National District Attorneys Association this October: “We adopted policies for post-conviction DNA analysis that were very open but which many other police and prosecution agencies remain wary of,” he said. “They are now the basis for legislation that would codify Suffolk County’s practices throughout Massachusetts.” (Indeed, five of the nine Massachusetts convictions overturned through DNA were in his county.)
DA Sutter said in his October interview that at that time, the DAs had not contacted legislators to raise their three specific objections. He pointed out that in 2010 the Massachusetts District Attorneys’ Association published a white paper which made public their opinions on a legislative process for DNA testing (go to page 26). That statement, however, was very general, saying the DAs support post-conviction DNA testing if it’s relevant to innocence, and would give “careful consideration” to legislation that would statutorily grant testing access to inmates with meritorious claims.
In a letter to legislators, State Attorney General Martha Coakley suggested measures she believed would improve the bill, including limiting the amount of time the testing process can take (to reduce the strain on victims affected by re-opening a case. None of her suggestions, however, “would be deal breakers” for her support of the bill, she said later in an October interview.
Under which circumstances would testing be done under the bill?
The bill provides that a judge shall order testing if an inmate demonstrates the following by a preponderance of the evidence:
- The evidence exists.
- The evidence has been subjected to an appropriate chain of custody.
- The evidence has not already been subjected to the test which the inmate requests.
- The requested test “has the potential to result in evidence that is material to the moving party’s identification as the perpetrator of the crime.”
- “The purpose of the motion is not the obstruction of justice or delay.”
- The results of the test are admissible in Massachusetts courts.
The future of the bill
Although the Senate unanimously approved the bill, it has been in the House Ways and Means committee for four months without a vote. Despite the broad support represented by the BBA’s task force, the bill’s future is uncertain.
The House has until July 2012 to pass it by a majority vote, or December 2012 to pass it unanimously, the bill’s House cosponsor, Representative John Fernandes, explained.
“I am optimistic it will see the light of day,” he said in September. Until that happens, however, those inmates fighting their way through the tangled DNA access process in Massachusetts will just have to wait.
—Lindsay Markel, November 20, 2011
Last page update: November 18, 2011
© 2011 Schuster Institute for Investigative Journalism at Brandeis University, Waltham, MA. All rights reserved.