FOR IMMEDIATE RELEASE: 5/17/2012

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New Tool for Determining Innocence Takes Effect Today

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)

The Boston Bar Association is a non-profit, voluntary membership organization of 11,000 attorneys drawn from private practice, corporations, government agencies, legal aid organizations, the courts, and law schools. It traces its origins to meetings convened by John Adams, the lawyer who provided pro bono representation to the British soldiers prosecuted for the Boston Massacre and went on to become the second president of the United States.