Mandatory DNA Testing
Under New Statute

And Other Criminal Law Updates

Texas recently became one of the few states to enact a statute authorizing post conviction DNA testing. The statute has the potential to benefit a number of individuals who have been incarcerated for substantial periods of time. Generally, the statute will benefit those individuals convicted of offenses such as rape, sexual assault, or murder, in which there was some type of physical evidence which is critical to the issue of guilt innocence. Under the statute, the court is required to appoint counsel.

All the individual must do is advise the court that he wants to file a motion for DNA testing, and that he cannot afford to hire an attorney. If the court determines the defendant is in fact indigent, then he must appoint an attorney. It is important to note that everyone is entitled to the appointment of counsel.

While not everyone will be entitled to DNA testing, everyone is at least entitled to the appointment of an attorney to review the matter. Thus, the court cannot deny a request on the basis that he does not think a DNA test is warranted.

After counsel is appointed, a motion must be submitted to the court. That motion must set forth several things. First, it must establish that the evidence is relevant to the case, and was within the state’s possession during the trial. The motion must also allege that the evidence is still available. Additionally, the motion must allege that the evidence was not subjected to DNA testing either because it was not available, or was not capable of producing results at the time. Testing can also be allowed where recent advancements render it likely that more accurate results can be obtained. The state is granted the opportunity to file a response.

The court is not required to order DNA testing in every case. Instead, testing is authorized only in those cases where the evidence exists, and the chain of custody indicates it has not been altered, substituted, or tampered with. Additionally, the court must find that identity was or is an issue in the case, and that a reasonable probability exists that the person would not have been prosecuted or convicted if favorable results had been obtained. If all those things are found, the court can order DNA testing.

The testing of evidence must be done by the Texas Department of Public Safety, unless both the state and defendant agree to another lab. However, if the test is done by someone other than the DPS, the state is not required to pay for the test.

Once the testing is completed, the trial court must hold a hearing. At that hearing the court must make a finding as to whether the results are favorable. Favorable means that if the results had been available before or during trial it is reasonably probable that the person would not have been prosecuted or convicted. If the court makes those findings, it can also release the person on bail pending further proceedings. The significance of the trial court findings is questionable. Assuming they are favorable, a defendant can proceed in two ways. One is to seek executive clemency, by way of pardon. The other is to file an application for writ of habeas corpus. Under the new statute, the DNA test results will be considered newly discovered evidence, and can be asserted in a subsequent writ application. If a pardon is requested, the rules have not changed. A defendant must still submit letters recommending the pardon from the sheriff, district attorney, and judge. Those recommendations require something in addition to the trial court findings. However, in most cases, it seems that would be the likely course of action, and probably the quickest.

The biggest hurdle most inmates will face is locating evidence to test. Evidence can be located in any number of different places. In some situations it may have been introduced at trial, and would still be in the custody of the official court reporter. In other cases evidence may have been retained by the district attorneys office, or the investigating agency. Often, labs involved in the case will retain evidence. Many times labs will retain samples even if they return evidence to the prosecuting agency. Therefore, it is important to check to see if those samples have been retained. Especially in sexual assault and homicide cases, samples are normally retained for indefinite periods of time. The other problem individuals may encounter is obtaining meaningful test results. The ability to test evidence is often dependent on the experience and knowledge of the person doing the test. In most cases, that is not a problem. However, in older cases, and cases involving difficult evidence, there often may be a difference between labs as to whether they can obtain results. DPS is fairly new to DNA testing, and serious consideration should be given to sending difficult evidence to a more established lab.

The statute offers a potential gold mine for a few individuals who can establish their innocence by scientific means. Already, a number of individuals have been released across the country. That can only be expected to increase, as the number of individuals who can take advantage of testing has now been substantially increased. No longer is DNA testing limited to those who can afford to pay. Now, individuals who have been waiting for such tests can obtain them, and potentially secure their release.

SEARCH AND SEIZURE

In United States v. Osage, 235 F.3d 518 (10th Cir. 2000), the court addressed the scope of a consent to search. The court held that a consent to search does not extend to a container which would have to be destroyed or rendered useless to effect the search. Here, the defendant gave consent to search his luggage. Inside, they found cans labeled "tamales and gravy". Opening those cans, they found narcotics. The Court found the officers exceeded the scope of the consent, which did not extend to destroying items.

HABEAS CORPUS

The supreme court recently resolved a split in authority in Duncan v. Walker, 121 S.Ct. 2120 (6/18/01). The issue was whether a prior federal habeas petition tolled the limitations period. The defendant initially filed a habeas petition before filing in state court. The petition was dismissed and a state petition was filed. Clearly, the filing of a state petition tolls the limitations period. The question is whether the filing of a federal petition did the same. The court held it did not, and therefore the petition was not timely.

Another Habeas decision is Rodriguez v. Mitchell, No. 99-2170 (2nd Cir 6/6/01). There, the defendant filed a federal habeas petition, which was denied. He then filed a motion to vacate the judgement under Rule 60 of Federal Rules of criminal procedure. The issue was whether the Rule 60 motion should be treated as a second or subsequent habeas petition. The court held it should not, which is contrary to decisions from the Fifth, Ninth, and Seventh circuits.

Redmond v. Kingston, 240 F.3d 590 (2001) This is a habeas case, in which the defendant successfully urged the violation of this right to confrontation. The claim was based on the inability to cross examine the complaining witness concerning a prior false allegation of rape she made to get her mother’s attention. Court holds that such evidence provided evidence of a motive in making the allegation, and therefore was relevant to her credibility. The state court ruling denying relief was an unreasonable application of Supreme Court precedent, and relief was granted.

A somewhat troubling case is Malede v. United States No. 96-CF-737 (D.C. Cir 2/22/01) There, a defendant filed a complaint against his lawyer with the bar association. Counsel vehemently denied the allegations, and filed a motion to withdraw alleging he could not longer effectively represent the defendant. That motion was denied, and the lawyer represented the defendant at trial. On appeal, the defendant alleged the court erred in denying the motion without a hearing. Court holds that filing a complaint with a disciplinary authority is not sufficient to create a conflict. Neither was the response of the lawyer, with in the court characterized hostile and contemptuous). No matter what a lawyer feelings toward a client may, the court determined that does not prevent him from providing effective assistance. A defendant must still show how the conflict caused his lawyer to not pursue sure strategy or tactic. The defendant did not do so, and therefore no hearing was necessary.

An important case involving the standard of review in habeas is Washington v. Schriver, No. 00-2195 (2nd Cir 01/05/01). On direct appeal, the state court relied on state law, and affirmed the defendant’s conviction. The question in federal court, was what deference should be given to that determination. The court holds that deferential review is only applicable when the state court discussed or at least cited federal law. Where that is not done, it cannot be said the claim was "adjudicated on the merits" in the state court proceeding. Thus, in that situation, the claims should be reviewed under pre AEDPA standards. The courts are not in agreement on this issue, and the fourth circuit has explicitly rejected it in Bells v. Jarvis.

Another case addressing the standard of review in federal court is Penry v. Johnson 121 S.Ct. 1910 (06/04/01). This was Penry’s second trip before the court. In his first, the court reversed his death sentence and conviction because the jury was not given a means by which to consider evidence of mental retardation and childhood abuse. Penry was tried again, and the same issues were submitted. However, in an attempt to comply with the Penry holding, an additional special issue was also submitted which essentially told the jurors to answer a special issue no if they found mitigating circumstances. Court holds decision was an unreasonable application of Penry, and granted relief, even though every court that had considered the issued had held to the contrary.

An important opinion for inmates challenging parole is Crouch v. Norris No. 00-2415 (8th Cir. 5/1701). There, the defendant filed an unsuccessful attack on his conviction. He was subsequently denied parole, and sought relief. The issue was whether he could bring a second federal habeas petition to challenge his parole. Court holds the AEDPA should not be construed literally, but instead interrupted in light of pre-ADEPA abuse of the writ principals. Here, the parole claims could not have been raised in the first federal petition, because they did not exist. Therefore a second federal petition would not be abusive, and would not be barred under the AEDPA.

The right to be present at a writ hearing was addressed in Oken v. Warden, 233 F.3d 86 (1st Cir. 2000) The court held there is no sixth amendment right to be present at such hearings. Instead, a petitioner is only entitled to fundamental fairness, which is guaranteed by due-process. Due-process was provided in this case by allowing the petitioner to rebut testimony by way of deposition. The petitioner was also allowed to review transcripts of part of the testimony before cross-examination was finished. While the right to be present is important, the court finds that right deserves less weight in a post-conviction context.

An important decision for habeas petitioners is Artuz v. Bennett, 121 S.Ct. 361 (11/07/00). There, the issue was what is a properly filed habeas petition. The government argued that a petition subject to a mandatory procedural bar was not a properly field petition, and therefore did not toll the limitations period. The Court holds that properly filed is nothing more than compliance with the rules governing filing. Thus, as long as a petition is in the proper form, and filed in the appropriate place, the fact that it may be meritless, or subject to dismissal, is not controlling. Limitations will be tolled until the petition is ruled on by court.

A potentially important habeas decisions is Flowers v. Walter, 239 F.3d 1096 (9th Cir. 2001). There the court held that the AEDPA codified the retro-activity approach of Teague v. Lane. That holding is contrary to the decisions from the First, Seventh, Fifth, and Eleventh Circuits. The importance of that holding is that a rule maybe retro-actively applied even if that declaration has not been made by the Supreme Court. The court also noted that the Teague exception for watershed rules of criminal procedure affecting the fairness and accuracy of a criminal proceeding still applies under the ADEPA.

The Supreme Court recently decided two habeas cases. Daniels v. United States, 121 S.Ct. 1578 (04/25/01) and Lackawanna County Pa. District Attorney v.Coss, 121 S.Ct. 1567 (04/25/01) The issue in both cases was whether a defendant in a federal habeas corpus action could challenge a prior conviction used for enhancement. In one case, the defendant was sentenced as an armed career criminal, and sought to attack one of the convictions used to establish that status. In the other case, a prior sentenced was used in sentencing the defendant on a more recent case. In both cases the court held that a defendant cannot challenge convictions in that manner. Once a defendant is no longer in custody, and the time for challenging the convictions has passed, then he cannot belatedly file a claim in a subsequent action. The court does recognize an exception for convictions that are obtained in violation of the right to counsel.

Although not technically a criminal law decision, the decisions in Immigration and Naturalization Services v. St. Cyr, 121 S.Ct. 2271, & Calcano-Martinez v. Immigration and Naturalization Service, 121 S.Ct. 2268 (6/26/01) are important. The court first held that the AEDPA language was not sufficiently clear to eliminate habeas jurisdiction. Therefore, the court had jurisdiction to consider the claims. The next issue was whether certain amendments could be applied retro-actively, since there was language indicating that was their intent. The defendant had a prior conviction, which at the time made him deportable, but deportation was subject to waiver. Subsequent amendments eliminated discretion to grant such a waiver. Court holds that elimination of the waiver provision attached a new disability to a transaction already completed. Waiver was applied with some frequency, and therefore it could be assumed that it was part of the consideration to plead guilty. The court ultimately concluded that the amendments were not sufficiently clear to authorize a retro-active affect.

SENTENCING

A district court in New York previously adopted a policy governing horizontal departures for defendants who were in the highest criminal history category based on prior convictions for less serious street level narcotic sales. In United States v. Mishoe No. 00-1243 (2nd Cir 2/23/01) the court holds such a policy is not proper. However, the court did rule out departures in certain situations. The amount of drugs in prior cases may be irrelevant factor, as is the amount of time served. The main reason for imposing long sentences on those who have committed prior offenses is to achieve the deterrent affect that prior punishment failed to achieve. Where prior sentences were relatively short, that same deterrent affect may be achieved by a less severe sentence. Thus, departures are permissible on such a basis, and must be specifically tied to the facts of the case.

A departure for reduced mental capacity was addressed in United v. Satolsky No. 99-5780 (6th Cir. 12/11/00) There, the defendant sought a departure based on a compulsive gambling disorder. The court noted that the guideline has been amended to cover volitional as well as cognitive impairment, which means that it applies to the inability to control behavior that a defendant may know is wrongful. The court rejected a distinction between the inability to control behavior that constitutes the crime and behavior that motivates a crime. Thus, the defendant could be entitled to a departure based on the fact that his crime of computer fraud was motivated by a need to pay off gambling debts.

A framework for addressing Apprendi claims was set forth in United States v. Candelario No. 99-11443 (11th Cir. 2/05/01). The court held the first determination is whether an objection was made. If there was a proper objection, the issue is reviewed for harmless error. If not, review is for plain error. Under a harmless error analysis, the court looks for evidence which could rationally lead to a contrary finding, or whether evidence of the amount was uncontroverted. Under a plain error analysis, the court essentially makes the same determination. However, the burden of showing harm is on the defendant. Additionally, under a plain error analysis, the court must determine whether the defendant’s substantial rights were affected. That standard of review focuses on whether the drug quantity was contested, and the evidence presented at trial. Thus, where evidence was either over whelming, or not contested, the court will not find plain error. The defendant in this case did not establish plain error, since the only evidence of amount came from a coconspirator, and the jury necessarily had to believe the coconspirator in order to find the defendant guilty.

A significant case for drug defendant’s in federal court is United States v. Scheele, No. 99-30388 (9th Cir. 11/02/00). There, the amount of drugs considered as relevant conduct was challenged. The amounts came from a pre-sentence interview, in which the defendant claimed he had inflated the duration and extent of his prior activity. The court split the difference between the defendant’s statements during the interview, and his statements at sentencing. The court reiterated it’s prior holdings that the due process clause requires a standard of clear and convincing evidence when uncharged conduct has a disproportionate of affect on the length of the sentence (which has not been accepted in other circuits). Where estimates are involved, the court should use extra caution. The court added that the estimate used by the court resulted in a quantity that was barely above the amount that would have led to a lower sentencing range. The court concluded that when the court uses a method that is inherently imprecise, the court should consider the margin of error before fixing the final amount, and err on the side of caution.

The supreme court decided a case involving the review of sentencing proceedings in Buford v. United States, 121 S.Ct. 1276 (3/20/01). The issue was what standard of review should be applied to the determination of whether prior convictions were consolidated for sentencing, and therefore "related" under the guidelines. The defendant argued such review should be de nova, but the court rejected that argument. Instead, the review held should be deferential, since the decision is essentially one based on the facts.

United States v. Davis, 239 F.3d 283 (2nd Cir 2001). In this case the defendant filed a motion to withdraw his plea alleging that his attorney had coerced him into doing so, and threatened to not file pre-trial motions or to investigate if he did not plead. Counsel was asked to address those allegations at the hearing, but opted not to do so. Court holds that a motion to withdraw plea hearing is a critical stage of the prosecution, and therefore requires the effective assistance of counsel. Here, the defendant alleged facts which could create a conflict of interest. In that situation the court should appoint separate counsel to represent defendant at such a hearing.

In Glover v. United States, 121 S.Ct. 696 ( 1/9/01). The Supreme Court clarified the standard for establishing prejudice in a sentencing proceeding. The defendant argued that his lawyer was ineffective for not raising an objection at sentencing, which resulted in an increase in points. The result was a sentencing range that was 6 to 21 months longer than it should have been. The issue before the court was whether that was a sufficient amount of time to establish prejudice. The court held it was, noting that any amount of additional jail time is significant. Thus, where a lawyer fails to make an objection which results in an increase in the offense level, prejudice will be established.

MISCELLANEOUS

An important decision for federal defendants on supervised release is United States v. Garrett No. 00-50303 (9th Cir 6/11/01). The defendant was on supervised release when he committed a state crime. He was subsequently imprisoned on the state case, and no action was taken on his supervised release. When he was released from state custody, a warrant for his supervised release was executed, and he was subsequently revoked. Court holds that there was no problem in that procedure. A defendant is only entitled to a speedy hearing once he is taken into federal custody. The government is free to wait the serve the violation warrant, even though it potentially prevents the defendant from serving the sentences concurrently.

An interesting case involving the voluntariness of a plea is United States v. Abbot No. 00-1325 (2/23/01). The defendant was initially charged with fire arm violations. Based on actions regarding a witness, the defendant as well as his mother was subsequently charged with witness tampering. He entered into a plea to one of the firearms counts, and his mother plead guilty and was placed on probation. When the plea was entered, the court was not advised that there was any link between the two pleas. The court holds that rendered the plea involuntary. Where pleas are linked, there is the possibility that such an arrangement can skew the assessment of risk a defendant considers. The fact that the defendant received the benefit of the bargain does not cure the error.

Depetris v. Kuykendall, 239 F.3d 1057 (9th Cir 2001) After years of being abused and threatened, a defendant shot and killed her husband while he was sleeping. At trial, she claimed imperfect self defense. She attempted to introduce a journal her husband kept, in which he described violent acts against others which she claimed contributed to her fear after she read it. Court holds the exclusion of such evidence violated her right to due process. The journal corroborated her testimony, and was essential to establishing her state of mind. Since her credibility was critical, the court found the error was not harmless.

A much expected case was unfortunately decided unfavorably to prisoners. In Lopez v. Davis, 121 S.Ct. 714 (1/10/01), the Supreme Court addressed the Bureau of Prisons policy, which denied credit for the drug treatment program to persons whose offenses involved possession or carrying firearms. Specifically, credit has been denied to individuals solely on the basis that an adjustment was made in the offense level for possession or presence of a firearm. The court holds the Bureau of Prisons has discretion to determine which prisoners are eligible for the credit, and the question is whether that interpretation is reasonable. Court holds it is, and therefore denies relief.

A successful challenge based on interstate commerce grounds was made in United States Peterson, 236 F.3d 848 (7th Cir. 2001). There, the court held that merely showing that the goods stolen during the robbery had traveled in interstate commerce was not sufficient. Instead, the government must make some showing that the robbery had an impact on interstate commerce. While the showing which must be made is minimal, there still must be some evidence that the robberies effected interstate commerce.

In United States v. Varoudakis, 233 F.3d 113 (1st Cir. 2000) the court found that evidence of a prior act of arson was unfairly prejudicial . The defendant was charged in a conspiracy to burn down his restaurant. The government introduced evidence that approximately 16 months before the defendant had set fire to a leased car, hoping to collect insurance benefits. The court found the evidence was relevant to show the relationship between the defendant and a witness. However, the court found the evidence was overly prejudicial. There was already evidence of a relationship between the defendant and the witness, and the government therefore had little need for it. Because the offenses were similar, there was a likelihood the jury would infer that the defendant committed the offense on trial also, which is nothing more than establishing propensity. In what may be the most significant part of the holding, the Court chastised prosecutors for pushing the limits of admissibility of such evidence, and relied on the rule of harmless error to save the conviction.

The use of video statements of child witnesses was addressed in Schaal v. Gammon, 233 F.3d 1103 (8th Cir. 2000). There, the state was allowed to introduce a video tape interview between a child and a psychologist, pursuant to a state statute which authorized the admission of such statements as long as the child is available to testify. The court held that the ability to call the child did not solve the confrontation problem. The court also noted that the admissibility of such statements depends on whether they have sufficient indications of reliability. The Court found the statement here did not, noting that the defendant was not present, the child was not under oath, there was a prior relationship between the psychologist and the child, and the child’s mother was present.

A potentially important case for convicted sex offenders is Doe v. Otte, 248 F.3d 832 (9th Cir. 2001). The defendant was convicted before Alaska passed a sex offender registration law. That law was made retro-active, and the issue was whether they could do so. The court focused on whether the statute is punitive. If it is, then it cannot be applied retro-actively. Reviewing a number of factors, the court determined that it was. They noted that the registration and notification requirements must be part of the criminal judgement, the offenders identity and location are published on the internet, they are required to register four times a year, and they are required to register for life, regardless of the threat of risk.

An important case for inmates is Shaw v. Murphy, 121 S.Ct. 1475 (04/18/01). A prisoner was disciplined for providing legal advise to another prisoner. He claimed a first amendment right to provide such advice. The court held giving legal advice is not protected conduct under the first amendment. Thus, any restriction need only be reviewed for reasonableness, which looks to whether the regulation is reasonably related to a reasonable purpose. Court finds there was a reasonable purpose here, and therefore there was no problem in restricting the communication.

A district court in Pennsylvania has challenged the logic underlying the prosecution of defendants for the illegal possession of firearms. In United States v. Coward, No. 00-88 (E.D. P.A. 04/10/01) the court recognized the existing body of law, which holds that jurisdiction is establish in such cases if the firearm has traveled in inter-state commerce at any point in the past. The court notes those decisions may be out of step with more recent commerce clause cases. Thus, the court suggest that the firearm must be actually used in interstate commerce and that such use cannot be supplied by a legal fiction.