MR. SCHECK: I disagree. Frankly, I think it's a
constitutional problem. No matter what you want to say
about the issue of diligence, you really have to cut to the
chase and ask yourself this question: There is a guy
sitting in jail and the DNA will prove him innocent, and you
want to keep him there for the rest of his life because
you're going to make a ruling that he didn't apply within
somebody's definition of due diligence, and Lord save us
from the definitions of due diligence that I've seen across
the United States and these courts.
You go tell that to Clyde Charles who was told he
didn't have due diligence after seeking a DNA test for nine
years in Angola prison and he was in there for 19 when the
DNA exonerated him in 2 months. You go tell it to some of
these people. I think it's a very, very bad idea for what
is really, given all that we have been talking about, an
extremely small number of cases.
By the time you get to the number of cases where
you are going to meet the standards, where it would be
probative evidence that could prove innocence, and in 75
percent of these cases the evidence has disappeared, you are
talking about total in the United States maybe 100 to 150
cases per year, and individuals can either face death or
There comes a point in time where you just have to
stop listening to the attorney general that is pissed off
about Robert Abadon litigating the Cooper case because it's
just another thing that they want done and say let's do some
justice in America. How many more people do we have to get
out like this? I love you, but I really have no patience
National Commission on the Future of DNA Evidence
P R O C E E D I N G S
Monday, January 17, 2000
Postconviction Working Group Report & Discussion
The Honorable Ron Reinstein
Working Group Chair
11 MR. REINSTEIN: We discussed this at the last
12 Commission meeting. The work group has not met since the
13 last meeting. Based on the discussion that we had,
14 Professor Berger went through it and prepared the draft that
15 is in front of you.
16 The only other thing is Rock's comments this
17 morning regarding the first paragraph. He believes that we
18 shouldn't subvert the orderly process of the legal system.
19 Based upon all of the cases that we have heard
20 about initially, why the Commission was started, and the
21 work of our work group, we felt that a model statute would
22 be beneficial. So we took the lead of Illinois and New
23 York. We are open to any discussion on it.
24 Otherwise, I think from what Chris had mentioned
25 this morning to me, it is up for approval today whether or
1 not the Commission wants to approve a model statute or
2 change the wording again.
3 CHIEF JUSTICE ABRAHAMSON: Norman.
4 MR. GAHN: Ron, when you talk about forensic DNA
5 testing of any evidence, did you talk about any probative
7 MR. REINSTEIN: No.
8 MR. GAHN: I am looking in the third sentence
9 under Request for testing. It says "any evidence." It
10 seems a little broad. I think if we say "any probative
11 evidence." There is a pecking order to the evidence.
12 MR. REINSTEIN: I don't have any problem with that
13 at all.
14 MR. SCHECK: Norm, the reason we phrased it that
15 way is that by definition under mandatory and even
16 discretionary testing it has to be probative evidence,
17 because it has to be biological evidence that can meet the
18 legal standard that it will create a reasonable probability
19 there wouldn't have been a conviction. It has to be very
20 exculpatory. By definition it has to be probative.
21 The reason we didn't use the phrase "any probative
22 evidence" there is, as the rest of this indicates and as the
23 report we just heard indicates, we didn't want to limit it.
24 In other words, we didn't want to say you can only look at a
25 vaginal swab, because it could very well be blood on a
1 silencer of a gun or a stamp. There is no limit these days
2 to what we could do.
3 I think just as a drafting matter we think that
4 refers to probative evidence, but we didn't want to limit
5 its scope. That is the reason behind it.
6 MS. BASHINSKI: I have a question about the
7 definition of exculpatory. I know we all know what we mean.
8 There is very good verbiage in the report about category I
9 cases, and so forth. But we have an Innocence Project type
10 statute in California. I am sitting around the table with
11 six lawyers and I can't even explain to them exactly what
12 the criteria should be, because they aren't used to thinking
13 about the cases in the same way that you are.
14 I am wondering if there is a way to identify. For
15 example, one of the statutes that I'm aware of says
16 something about identity having to be an issue, which is an
17 Illinois statute, I think. So there are two things. One,
18 identity is an issue, and two, the piece of evidence you are
19 looking at would definitively resolve the issue as to
20 whether or not the person was or wasn't the perpetrator. In
21 other words, a more explicit statute about what does this
23 When you just read exculpatory results, obviously
24 if the person were exculpated, they would never have been
25 convicted or prosecuted. The question is how is that
1 defined and is that clear to everybody reading the statute?
2 I may be stating the obvious, but it sure wasn't
3 obvious to this group of people that I was talking to as to
4 under what circumstances is it mandatory.
5 MR. SCHECK: I'll readily concede. When the
6 Illinois statute talks about identity, it also talks about
7 you should get a test if there is non-cumulative evidence of
8 innocence. A test could generate such a result, which is a
9 somewhat lower threshold than this. It has the advantage of
11 I readily concede that it is not evident to many
12 who read this what the difference is between the mandatory
13 testing standard and the court's discretion standard. That
14 has been debated back and forth.
15 If you just look at the mandatory testing
16 standard, I think that is about as clear as you can get in
17 the sense that whatever you are testing, looking at the
18 evidence as a whole there has to be a reasonable probability
19 of a different outcome. That can't be a hard standard to
20 apply, because that is virtually the standard for vacating a
21 conviction with newly discovered evidence in virtually every
23 MS. BASHINSKI: Again, I'm not a lawyer, so I
24 don't know. Looking at how much trouble we had to go to
25 define all this in that postconviction review pamphlet, if
1 you could come up with some way that gets the spirit or
2 intent of that into this legislation, because that document
3 won't be available.
4 MR. SCHECK: Sure it's a available.
5 MS. BASHINSKI: It will be available, but it won't
6 be part of this. It's an independent document which may or
7 may not be referred to by people interpreting a statute like
9 MR. SCHECK: I would imagine actually it would be.
10 If experience serves, NRC I, NRC II, things of this nature
11 are relied upon by the courts. I would even imagine that
12 any legislation that would be written on this subject by a
13 state or federal government would probably want to make
14 reference to our Commission recommendations with respect to
15 the categories of cases. That would be a wise idea.
16 Reasonable lawyers could differ on how you define
17 these standards. I'm not sitting here telling you that this
18 distinction between mandatory testing and court's discretion
19 testing -- we went through a lot of formulations. You could
20 cut that a number of different ways. The basic thrust of
21 this is that there is a category of cases that are probably
22 best embraced by I and II where you should give the inmate a
23 shot to prove innocence with a DNA test.
24 MR. REINSTEIN: I'm really hesitant to over-define
25 legal terms like that, especially when you talk about a
1 model statute. If a state wants to do that, they can do it.
2 If you look at the definition of "reasonable doubt," every
3 state struggles with it; every court struggles with it. I
4 think it is as simple as you can get, and you let the
5 individual states have at it if they want to define these
7 MR. SCHECK: I think it should be clear to anybody
8 who is looking at the legislative history of this that the
9 thrust of this -- I should mention about Rock. We should be
10 clear. The one point he made we talked about, and that is
11 he's saying, well, in many states you don't make a motion
12 based on newly discovered evidence. Technically speaking,
13 that is one that you would make before the appeal is
14 exhausted, and in some states you would have a remedy of
15 habeas postconviction. The time limits on habeas in most
16 jurisdictions are as draconian as the other ones.
17 If you wanted to really make this even more
18 complete in the background, we could talk about the federal
19 postconviction standards, which are one year for everything
20 other than a capital case and six months for a capital case
21 that begins to run on April 26, 1997, and they are over by
22 April 27, 1998.
23 Frankly, if you wanted to talk about the time
24 limits more in the background, it's even worse. Rock, let's
25 just be clear, is against the idea of not putting a time
1 limit on our thing. The committee considered that at great
2 length and we rejected it.
3 MR. REINSTEIN: I honestly didn't understand, at
4 least from Arizona's standpoint, what Rock's argument was,
5 but I guess it has to do with what happened in Virginia and
6 some of the other states.
7 MR. CLARKE: I can embellish on it, if you like.
8 First of all, I think we discussed some of these things at a
9 full Commission meeting. The draft was prior to that. I
10 think that is actually one of the topics we discussed a
11 little bit.
12 It's my strong feeling there has to be some
13 requirement of due diligence. We have encountered it in our
14 own state, not repeatedly, but enough to be concerned, where
15 an individual in fact in his defense holds back. If this
16 were to read literally "at any time" without some qualifier
17 like due diligence, these could run on ad infinitum.
18 MR. SCHECK: We discussed this at great length.
19 There is a requirement here that the evidence has never been
20 previously subjected to DNA testing or was not subjected to
21 testing which is now requested which can resolve an issue.
22 It is clear from the description of it in our report we are
23 only talking about situations where there wasn't a very
24 informative test done the first time.
25 MR. CLARKE: I'm talking about timing of the
2 MR. SCHECK: I thought you were talking about
3 somebody that comes in with more than one request.
4 MR. CLARKE: Not at all. In other words,
5 particularly an individual sentenced to death. It's in his
6 or her interest to wait until the last minute to bring this
7 up without any limitation in terms of diligence. I think
8 there has to be a due diligence requirement, and that may be
9 perfectly legitimately brought up ten years later. Absent
10 that type of showing, there is no limit, and it can be
11 brought on at any time.
12 MR. REINSTEIN: That's what Judge Webster brought
13 up at one of our earliest meetings. We discussed that at
15 MR. SCHECK: We've rejected it for a number of
16 reasons, the so-called latches argument. If you begin to
17 look behind in these things and start saying, well, in this
18 death penalty case was the client who wanted the DNA test
19 being advised by the lawyer not to have the DNA test, for
20 whatever reasons? Or we are dealing with people that are
21 indigent, that are stuck in penitentiaries and may not know,
22 frankly, what is available?
23 One very good example I was mentioning to Rock is
24 Kevin Green. Kevin Green is the marine that was exonerated
25 by the DNA data bank testing of Mike Jacobs. Kevin had at
1 one point attempted to get a DNA test. He hired a lawyer,
2 gave him some money, it never happened, and he basically
3 spent his time trying to stay alive in San Quentin. He was
4 trying literally to stay alive.
5 He's as smart a guy as you will find. He never
6 wrote to the Innocence Project, never wrote to anybody else
7 to pursue it and was lucky that this prosecutor was looking
8 at that serial murderer rapist.
9 I think you have to get a perspective. We are
10 talking here about people, realistically speaking, from 1981
11 or 1982 through 1994, when DNA testing began in earnest on
12 cases of this nature, which I think would be a reasonable
13 date to agree that it became commonplace in appropriate
14 cases. In 75 percent of these cases where you could even
15 come close to meeting the fairly rigorous standard that a
16 test would make a difference in the outcome the evidence
17 samples are lost.
18 So to start litigating over latches in this
19 context and what the reasons for it would be one way or the
20 other is probably a game not worth the candle.
21 CHIEF JUSTICE ABRAHAMSON: Let's let Phil get into
22 the conversation.
23 DR. REILLY: I just have a minor technical
24 drafting question that you can edify me about. Given the
25 fact that it may not be clear what evidence is in the
1 possession of the prosecutor, should a model statute like
2 this specifically include a provision for searching for
3 evidence prior to requesting testing, or is that just
4 assumed and is not an issue?
5 In other words, should it begin by saying that a
6 convicted individual should have the right to request a
7 search prior to the testing?
8 MR. SCHECK: I'd like to see it, but the way we
9 tried to cover it was under the section on preservation
10 order where we indicate when you first come into court and
11 you make a motion that that triggers an obligation not to
12 destroy the evidence and to go look for it.
13 DR. REILLY: I understood that, but I have two
14 small problems with it. One, it seemed to be out of order
15 in the logical sequence of events, and secondly, even with
16 the preservation order, that might be construed to pertain
17 only to that which the prosecution knew was in its
19 I'm talking about misplaced or mislabeled
20 evidence. I would want to bolster for the sake of the
21 applicant the right to search. It seems to me little harm
22 is done in adding that. Maybe it's not necessary. I posed
23 it as a question for that reason.
24 MR. SCHECK: That's a good point.
25 MR. REINSTEIN: Maybe the committee could put
1 comments where it has structure of the statute.
2 DR. REILLY: Often the comments to a statute get
3 lost over the years the statute stays.
4 MR. THOMA: Judge Reinstein, I think he was
5 talking about the order in which that procedure is last. I
6 think it's covered, but I think that point might be well
7 placed within discovery, whether discovery should be there
8 or not or somewhere else.
9 MR. REINSTEIN: The preservation order?
10 MR. THOMA: And discovery.
11 CHIEF JUSTICE ABRAHAMSON: They want, I gather,
12 something that would say the defense can come in and say,
13 what evidence do you have?
14 DR. REILLY: I was trying to give it a little more
15 chance to the applicant to push the system to look a little
16 harder. As time goes by, people change, things get
17 mislabeled or get lost. It seemed to me like the request
18 for an inventory, if you will, should precede the request
19 for the test.
20 MR. REINSTEIN: You are just saying that the
21 defendant could make a request of law enforcement, the
22 court, for --
23 DR. REILLY: A best efforts full inventory of
24 existing evidence.
25 CHIEF JUSTICE ABRAHAMSON: That is subject to DNA
2 DR. REILLY: Right. It was an argument for the
3 sake of completeness.
4 MR. REINSTEIN: Barry, when the Innocence Project
5 does it, you use a search, right?
6 MR. SCHECK: No. What Phil says is important. If
7 you look at our protocols that we gave you, and I think it
8 is even in the recommendations, we have a lot of trouble if
9 we make an application or a request to search and then we
10 can't get an answer. Then somebody orally says, well,
11 that's destroyed. We have forms that say put this in
12 writing, and then they refuse to put it in writing. Then we
13 wind up going to court trying to get them to look.
14 In quite a few of these cases, I think close to 20
15 or so, initially people say we can't find it, and then they
16 find it. That happens repeatedly. Even in the Kevin Green
17 case they couldn't find it. People just move. These cases
18 are 15 or 20 years old. They just move things around, and
19 who wants to bother going to look for it?
20 You're right, basically.
21 DR. REILLY: That's a rare moment.
22 CHIEF JUSTICE ABRAHAMSON: Savor it.
24 MR. THOMA: We have testimony regarding Los
25 Angeles Police Department and their situation with how much
1 evidence they have and where it's kept and how many more
2 trailers or whatever they need.
3 MS. BASHINSKI: Barry, wouldn't you, though, at
4 the same time you are asking for this preservation
5 -- because you don't know at the time you ask for a
6 preservation order what there is to preserve. Could you not
7 then go in at that same time and say preserve it, and, oh by
8 the way, conduct a search? Is that what you are suggesting,
9 adding it to that part?
10 MR. SCHECK: That's what I think Phil is
12 MS. BASHINSKI: I don't think you can do it any
14 MR. SCHECK: Right.
15 MS. BASHINSKI: You have to go to court.
16 MR. SCHECK: You have to make a showing that there
17 is something that you know is out there. In other words,
18 there is a vaginal swab, there is a handkerchief, there's
19 something that, given the record in the case, if it exists
20 it's probative or potentially probative. If you were to
21 redraft this, one would say that you have a right to go to
22 the court for an order for them to look if they refuse, and
23 obviously not destroy it.
24 MR. REINSTEIN: I guess under preservation order
25 you could put search for all evidence in the prosecution's
1 possession and control that could be subjected to DNA
2 testing and it must be preserved during the time of the
3 proceeding and the state shall provide a list of all
4 evidence available for testing.
5 DR. REILLY: For example, it would be very
6 interesting if that list didn't match the original list in
7 the trial.
8 MR. CLARKE: What happens is the evidence gets
10 DR. REILLY: I'm not suggesting nefarious acts.
11 MR. CLARKE: In fact prosecution and law
12 enforcement will have most of it and the court will have
13 some of it.
14 MR. REINSTEIN: Prior to DNA, the prosecution may
15 have used X, Y and Z, but they decided not to use a bed
16 sheet or comforter that there might be biological evidence
17 on. The prosecution just didn't need it.
18 MR. CLARKE: I think it should cover all three,
19 because all three may have the evidence or a portion of it.
20 MR. THOMA: Actually, the U.S. Supreme Court in
21 Callis v. Whitley covered that really well in an area with
22 regard to exculpatory evidence, basically the prosecution
23 and any of its agents, because they realized that exact
24 point that Woody brings up. By its very nature in trial
25 it's going to be separated.
1 MR. SCHECK: Some of it is never going to be used
2 and it goes back to the police lab.
3 MR. CLARKE: I was going to say prosecutors'
4 offices would have the least of that evidence generally.
5 It's going to be law enforcement or the court.
6 MR. SMITH: And the court is not an agent of the
8 CHIEF JUSTICE ABRAHAMSON: I think that if the
9 group wants that kind of inventory provision, it should be
10 put in separately, because it should be on motion that it be
11 done, and at a time. Because otherwise you've got it at the
12 tail end, and I don't know where it fits with your motion
13 for mandatory or discretionary testing. That is one thing.
14 The second thing is we still have, I think, a
15 division of the house on whether there should be any statute
16 of limitations here. That's the "at any time." I hate to
17 mention the word statute of limitations, but that's what it
19 MR. CLARKE: Do we have a division?
20 CHIEF JUSTICE ABRAHAMSON: Is there a division?
21 Woody is not divided, right?
22 MS. BASHINSKI: Again, I'm not an attorney, but
23 because I work for the attorney general's office in
24 California I know there is concern, particularly with regard
25 to the death penalty situation, that there be some time
1 frame prior. For example, if there has been an order for
2 execution, some reasonable time prior to that order that the
3 request has to come and not necessarily at the eve.
4 I don't know how you do that or how you put it in
5 there, but that was definitely a concern expressed by our
6 appellate attorneys.
7 MR. CLARKE: And it becomes more egregious with
8 those cases where either prior DNA or serology has been done
9 so an awareness already exists on the part of both client
10 and appellant counsel that this evidence at least existed
11 and may or may not continue to exist, and it may have
12 probative value.
13 MR. SCHECK: I think we've covered that in terms
14 of prior DNA testing.
15 I know one of the cases that your people are
16 concerned about, but I think this is really a misplaced
17 concern. It's just another example of the depth of the
18 concern about executing people faster and distorting the
19 rest of the criminal justice system.
20 You are going to put statute of limitations into
21 this kind of a thing because there is a fear that some
22 people just prior to execution will give one last request to
23 have another sample tested that could take, if you did it,
24 48 hours, and therefore we are going to spawn a whole series
25 of court challenges by many people who have been
1 incarcerated for decades, who could prove their innocence
2 with samples disappearing. I just don't think this is
3 right. We have too much experience with this.
4 MR. CLARKE: At the same time, the writ of habeas
5 corpus requires that you show due diligence. In ten years
6 there may be diligence. That's not a problem. All that I
7 think should be in there is that the application reflect
8 that the person was diligent. There may be valid excuses
9 for a 15-year delay, but I don't think a defendant should be
10 able to just raise it and then diligence becomes a
11 non-issue. It should be an issue.
12 MR. SCHECK: I disagree. Frankly, I think it's a
13 constitutional problem. No matter what you want to say
14 about the issue of diligence, you really have to cut to the
15 chase and ask yourself this question: There is a guy
16 sitting in jail and the DNA will prove him innocent, and you
17 want to keep him there for the rest of his life because
18 you're going to make a ruling that he didn't apply within
19 somebody's definition of due diligence, and Lord save us
20 from the definitions of due diligence that I've seen across
21 the United States and these courts.
22 You go tell that to Clyde Charles who was told he
23 didn't have due diligence after seeking a DNA test for nine
24 years in Angola prison and he was in there for 19 when the
25 DNA exonerated him in 2 months. You go tell it to some of
1 these people. I think it's a very, very bad idea for what
2 is really, given all that we have been talking about, an
3 extremely small number of cases.
4 By the time you get to the number of cases where
5 you are going to meet the standards, where it would be
6 probative evidence that could prove innocence, and in 75
7 percent of these cases the evidence has disappeared, you are
8 talking about total in the United States maybe 100 to 150
9 cases per year, and individuals can either face death or
10 life imprisonment.
11 There comes a point in time where you just have to
12 stop listening to the attorney general that is pissed off
13 about Robert Abadon litigating the Cooper case because it's
14 just another thing that they want done and say let's do some
15 justice in America. How many more people do we have to get
16 out like this? I love you, but I really have no patience
17 for this.
18 MR. CLARKE: You have a funny way of showing it.
20 MR. REINSTEIN: Our work group discussed this over
21 and over again and this was what we came up with.
22 CHIEF JUSTICE ABRAHAMSON: Jim.
23 MR. CROW: It seems to me as if Phil's point sort
24 of got lost in all of this. I should think the two of you
25 could simply find a clause or whatever that would take care
1 of that point.
2 MR. REINSTEIN: I think there are two issues. One
3 is adding something regarding an inventory and the other one
4 is the statute of limitations.
5 MR. THOMA: I think the inventory search doesn't
6 change the face of what the law is. It should be accounted
7 for, obviously.
8 Madam Chief Justice, I call for a question.
9 MR. CLARKE: I have one more item with regard to
10 the model statute.
11 CHIEF JUSTICE ABRAHAMSON: One of the things I was
12 going to do was suggest that we bring this back, bring in
13 the discovery, what I labeled the discovery issue. This "at
14 any time" is a recurring issue that we have had that has
15 divided the house. At least why don't you all think about,
16 since it is coming back, having alternative provisions
17 relating to the timing? I know there is strong feeling that
18 there not be any "statute of limitations" and then there is
19 strong feeling that there at least be, if not a time period,
20 due diligence.
21 You are going to have this debate in all the
22 states that care to adopt this, and maybe you should just
23 face it and put some commentary on it.
24 MR. REINSTEIN: My concern is not so much for the
25 capital defense. In most of the states, they usually have a
1 lot of attention drawn to them as far as capital litigation
2 goes, but it's the other ones --
3 MR. SCHECK: Texas. Most of the calls I get for
4 tests on the eve of execution come from Texas. Texas and
6 MR. REINSTEIN: What I'm saying, Barry, is that
7 one of the things we talked about in the committee was the
8 person from Mexico who can't speak English, can't read. He
9 got his first shot at a public defender in postconviction
10 relief early on before DNA was in existence, or even if it
11 was, the guy just totally missed it, and then he hears from
12 a cellmate or some counselor at DOC about this DNA thing.
13 He comes in years later, and it wasn't his fault because the
14 guy can't even read. That was the big discussion; it was on
15 those people.
16 CHIEF JUSTICE ABRAHAMSON: Anyway, I want you to
17 think about that. You can put all the arguments pro and con
18 in terms of diligence and the need for lengthy times and no
19 time limits. So we have got those two points.
20 Woody, you've got another point?
21 MR. CLARKE: There are a limited number of cases
22 where there has been secret either DNA or serology testing
23 done, and I think the provision should have a requirement
24 that in those instances, which are not numerous but they are
25 usually in significant cases, that that be revealed in the
1 application for postconviction DNA testing, and discovery
2 provided if it hasn't been previously discovered, which
3 would be the norm when secret testing was done.
4 CHIEF JUSTICE ABRAHAMSON: You want the defendant
5 to reveal his or her secret testing.
6 MR. CLARKE: Correct.
7 MR. SCHECK: That has never been contemplated.
8 The secret testing problem is on the other side. What about
9 the governor of the state of Virginia revealing the fact
10 that a guy was eliminated?
11 One final point on this. We've been through this
12 with the committee. We've only debated this for two and a
13 half years. It's not a committee of defense lawyers; it's a
14 committee of prosecutors and crime lab people and everybody
15 else who have been looking at this. It also is
16 unconstitutional. You might give that some thought.
17 The question I pose to you, Woody. I think the
18 United States Supreme Court, even this one, is going to rule
19 that you can't have the statute of limitations stand in the
20 way of somebody who could prove innocence with a test like
21 this. This issue is going up, because the reality is that
22 the federal habeas corpus limitation is one year. In fact,
23 less than one year. There are lots of people who are coming
24 forward saying, I'd like a DNA test, because they can't even
25 get access to a court in the state.
1 MR. CLARKE: I'm with you on that one, Barry.
2 That's not the contention.
3 MR. SCHECK: That is a contention area.
4 CHIEF JUSTICE ABRAHAMSON: All right, gentlemen.
5 I'm going to ask you to do this. Discovery provision;
6 consider secret testing on both sides.
7 On the time issue, set forth this debate in terms
8 of constitutional as well as policy arguments on both sides,
9 which can be done in your commentary and with alternative
10 provisions. I think that is what our model statute is
12 MR. REINSTEIN: Thank you, Judge. We will see
13 this again.