ACLU Urges PA Lawmakers to Pass Legislation to Aid Wrongfully Convicted

PHILADELPHIA–The American Civil Liberties Union today urged the Pennsylvania General Assembly to enact legislation that would make it easier for wrongfully convicted individuals to prove their innocence. The ACLU of Pennsylvania called on lawmakers to pass Senate Bill 589, legislation that provides for post-conviction DNA testing.

At a hearing today of the Pennsylvania Senate Judiciary Committee in Harrisburg, Larry Frankel, Executive Director of the ACLU of Pennsylvania, said that the ACLU strongly supports the legislation “”because we believe it will promote justice and fairness in Pennsylvania’s criminal courts.”” He noted that ten other states have already enacted similar legislation.

In his testimony, Frankel reviewed key provisions of the proposed bill and compared them to the provisions of the laws in other states. He also contrasted these provisions to those contained in a model statute proposed one year ago by the United States Department of Justice’s National Commission on the Future of DNA Evidence.

In calling for the passage of the measure, Frankel said that the legislation “”advances justice in a fair and balanced manner. It recognizes that the criminal justice system is not perfect and it allows for scientific evidence to be used to exonerate wrongfully convicted individuals.””

In addition to urging lawmakers to adopt this legislation, the ACLU of Pennsylvania encouraged them to provide the necessary funding so that all defendants, particularly those facing the death penalty, will have competent and experienced attorneys with sufficient resources to mount a meaningful defense.

Frankel’s testimony follows.

TESTIMONY ON POST-CONVICTION DNA TESTING
PRESENTED BY THE AMERICAN CIVIL LIBERTIES UNION
OF PENNSYLVANIA
TO THE PENNSYLVANIA SENATE JUDICIARY COMMITTEE

March 26, 2001

Good morning, Chairman Greenleaf and other members of the Senate Judiciary Committee. My name is Larry Frankel and I am the Executive Director of the American Civil Liberties Union of Pennsylvania. I want to thank you for conducting this hearing on Senate Bill 589 and inviting me to present testimony on the issue of post-conviction DNA testing. I also want to express our sincere appreciation for your introduction of this legislation and to recognize your colleagues on the Senate Judiciary Committee who are cosponsors of this measure.

Senate Bill 589 will make it easier for a wrongfully convicted individual to prove his or her innocence where DNA evidence is available to exonerate him or her. The ACLU strongly supports this legislation because we believe it will promote justice and fairness in Pennsylvania’s criminal courts.

While this legislation is important because it will help a wrongfully convicted individual establish his or her innocence, it does not address the need to insure that all defendants, particularly those in capital cases, have competent, experienced attorneys with sufficient resources to mount a meaningful defense. Yes, making it easier for defendants to obtain DNA testing is a step forward. But, additional steps need to be taken to rectify inequities in our criminal justice system.

I still remember the discussions, in 1995, regarding the development of a DNA databank. At that time the focus was on DNA testing as an effective tool for catching criminals. The ACLU raised the question of whether the Commonwealth would demonstrate a commitment to using DNA to prove innocence as well as guilt. The ACLU is pleased to see that attention is now being given to the use of DNA testing to exonerate wrongly convicted persons. Senate Bill 589 is tangible proof that this new technology can be a tool not just for prosecutors and the police but also for those seeking to correct the mistakes that are inevitably made in criminal trials.

Over the last several months at least ten states (Arizona, California, Delaware, Illinois, Michigan, Minnesota, New York, Oklahoma, Tennessee and Washington) have enacted bills that permit Post-conviction DNA testing under certain circumstances. The Department of Justice’s National Commission on the Future of DNA Evidence has proposed a model statute.

We have reviewed many of those statutes from the other states. It is the ACLU’s conclusion that Senate Bill 589 incorporates some of the best aspects of legislation that has passed in other states. At the same time, it is consistent with Pennsylvania’s existing laws governing Post-conviction proceedings.

Senate Bill 589 is not limited to death penalty cases. In that regard, it is like the legislation that has been enacted in Arizona, California, Illinois and New York. The National Commission on the Future of DNA Evidence’s Model Statute (hereafter “Model Statute”) states “a person who was convicted of and sentenced for a crime may, at any time, file a petition for forensic DNA testing.” The ACLU believes that post-conviction DNA testing should be available to defendants awaiting execution as well as other defendants who have been convicted of a crime. Neither the defendant nor society benefits from keeping a wrongfully convicted individual in prison. We are pleased to see that Senate Bill 589 has not been limited to capital cases.

Senate Bill 589 allows an individual to file a motion for a DNA test whether the evidence was discovered before or after conviction. The motion for testing can be filed if the evidence has not previously been subjected to a test because the technology for testing did not exist at the time of trial or because the defendant’s attorney failed to seek testing or because the court refused counsel’s application for funds to pay for the testing. This standard is more rigorous than the one found in some of the states that have Post-conviction DNA testing and less rigorous than the standard of other states.

The Model Statute would permit the testing of evidence that was not previously tested as well as evidence that “was not subjected to the testing that is now requested which can resolve an issue not resolved by previous testing.” Section 9543.1(a)(2) of Senate Bill 589 appears to be a compromise between the Model Statute and those states that permit testing under more limited circumstances.

Senate Bill 589 permits DNA testing where it may show actual innocence, or, in a capital case, either demonstrate that an aggravating circumstance did not exist or establish a mitigating circumstance. This provision recognizes that a DNA test can be relevant to the issue of what sentence is appropriate and not just the issue of guilt or innocence. In that regard the legislation is similar to what has been enacted in Arizona or California as well as the language of the Model Statute. We think it is entirely appropriate for a court to order a DNA test where that test may produce evidence that undermines the reliability of the verdict or the sentence.

Senate Bill 589 also addresses post-testing procedures. Under Section 9543.1(f)(4) the court shall determine whether the exculpatory evidence would have changed the outcome of the trial. That is the same standard as the one that is already set forth in the Post-Conviction Relief Act (PCRA) 42 Pa.C.S.A. Section 9543(a)(2)(vi). By way of contrast, in Arizona, California and New York, the statute talks about whether there was a reasonable probability that the verdict would have been more favorable to the defendant. The reasonable probability language is also found in the Model Statute. Thus, the proposed language of this bill is consistent with the PCRA but less generous to the defendant than the laws of other states.

In reviewing the laws from other states, I have noticed two provisions that are absent from Senate Bill 589, which could make this a better bill. The California statute specifically calls for the appointment of counsel for a convicted person who brings a motion for post-conviction testing and who is indigent. In fact, the Model Statute states that: “The court may, at any time, during proceedings instituted under this Act, appoint counsel for an indigent petitioner.”

In Pennsylvania a prisoner can have appointed counsel in certain post-conviction proceedings. We think it would be helpful to make it clear that appointment of counsel will be routine where post-conviction DNA testing is being pursued.

The Arizona law contains a very strong provision governing the preservation of evidence: “”If a petition is filed pursuant to this section, the court shall order the state to preserve during the pendency of the proceeding all evidence in the state’s possession or control that could be subjected to deoxyribonucleic acid testing. The state shall prepare an inventory of the evidence and shall submit a copy of the inventory to the defense and the court. If evidence is intentionally destroyed after the court orders its preservation, the court may impose appropriate sanctions, including criminal contempt, for a knowing violation.”” AZ St S. Section 13-420H.

The Model Statute also contains good language regarding the preservation of evidence and the consequences that flow from destruction of evidence. The ACLU recommends that you consider adding such a strong provision to Senate Bill 589 to insure that relevant evidence is not destroyed subsequent to a request for testing. We think that you should consider even stronger language to guard against destruction of any evidence that may currently be in storage so that no defendant loses an opportunity to be exonerated just because the evidence has been destroyed prior to the filing of a petition.

Senate Bill 589 advances justice in a fair and balanced manner. It recognizes that the criminal justice system is not perfect and it allows for scientific evidence to be used to exonerate wrongfully convicted individuals. We look forward to working with you to see that this legislation is enacted and implemented in Pennsylvania.