Today, as the Cradle of Liberty becomes the 49th
state in the union to provide post-conviction access to scientific and forensic
testing by right, the Boston Bar Journal publishes an article by Professor David
M. Siegel of New England Law | Boston and Gregory I. Massing,
Executive Director of the Rappaport Center for Law and Public Service, that
spells out exactly how the new law will work.
A
New Tool for Determining Factual Innocence: Massachusetts' Post-Conviction Access to Forensic and Scientific
Analysis
Angel Hernandez spent thirteen years in Massachusetts
prisons for a rape he did not commit. He spent a decade of that time
seeking DNA testing of evidence he was told was lost or unavailable, or was not
subject to discovery through the procedure he was using, or that he had no right
to test, or that he had waived the right to test.[1] He ultimately
obtained access to the evidence, and DNA testing fully exonerated him. The
ability of a wrongfully convicted criminal defendant to access evidence to prove
it, and the obligation of the Commonwealth to keep that evidence, may seem
utterly common sense -- but they are now the law of the Commonwealth
too. On February 17, 2012, Governor Patrick signed the Post-Conviction
Access to Forensic and Scientific Analysis Act, 2012 Mass. Acts, c. 38, which provides a statutory right for wrongfully
convicted defendants to obtain access scientific and forensic analysis of
evidence in their cases. The Act, which becomes effective May 17, 2012,
creates a comprehensive framework by which criminal defendants who have been
found guilty may gain access to evidence and testing to support a claim that
they are factually innocent. The Act also requires for the first time in
Massachusetts state-wide retention and preservation of evidence in criminal
cases and provides for regulations in this area. Although virtually every
other state already provided this type of access, testing, and retention, the
Act is among the most comprehensive in the country. The saga of Angel
Hernandez should not have to be repeated.
I. Background -- the 2008-2009 BBA Task Force on
Wrongful Convictions
In December 2009, a Boston Bar Association Task Force to
Prevent Wrongful Convictions, composed of twenty-two members drawn from state
and local police, prosecutors, public defenders, defense lawyers, forensic
scientists and the judiciary released Getting
it Right: Improving the Accuracy and Reliability of the Criminal Justice System
in Massachusetts. Among the Task Force's
specific recommendations was the following: "The legislature should enact and
the Governor should sign into law a statute providing for post-conviction access
to and testing of forensic evidence and biological material by defendants who
claim factual innocence and for post-conviction retention of biological
material." Id. at 7. The report included a proposed bill as an appendix.
Bills providing for post-conviction forensic testing had
been filed in the Massachusetts legislature almost every session following the
1999 Report of the U.S.
Attorney General's National Commission on the Future of DNA Evidence, but
had languished in committee. The Task Force's recommended bill addressed
what its members believed had prevented the prior bills' passage: it provided a
simpler, more streamlined procedure that did not attach the outcome of the
testing to any legal effect on the underlying conviction. Instead, it
allowed only for access and testing. The weight and significance to be
attached to the results of the testing would be determined in separate
proceedings, alleviating the need for the parties to argue about hypothetical
results.
II. Eligibility and Motion
A. Who May Seek Access
to Scientific and Forensic Analysis (read
more)