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BILL AS INTRODUCED 2007-2008

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S.6

Introduced by Senator Sears of Bennington District, Senator Campbell of Windsor District, Senator Collins of Franklin District, Senator Condos of Chittenden District, Senator Cummings of Washington District, Senator Hartwell of Bennington District, Senator Snelling of Chittenden District and Senator White of Windham District

Referred to Committee on

Date:

Subject:  Criminal procedures; innocence protection

Statement of purpose:  This bill proposes to establish innocence protection measures to protect against wrongful criminal convictions.  The bill contains the following provisions:

(1)  The bill allows a person convicted of a crime to file a petition requesting forensic DNA testing of any evidence which may contain biological evidence that was obtained during the investigation or prosecution of the crime.

(2)  The bill creates a forensic laboratory oversight commission to oversee and investigate independently the department of public safety’s forensic laboratory.


AN ACT RELATING TO PREVENTING CONVICTION OF INNOCENT PERSONS

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  13 V.S.A. chapter 182 is added to read:

CHAPTER 182.  INNOCENCE PROTECTION

Subchapter 1.  Postconviction DNA Testing

§ 5561.  PETITION FOR POSTCONVICTION DNA TESTING

(a)  A person convicted of a crime may at any time file a petition requesting forensic DNA testing of any evidence which may contain biological evidence that was obtained during the investigation or prosecution of the crime.  The petition shall contain facts showing that DNA testing may be material to the petitioner’s claim of wrongful conviction.

(b)  The petition shall be filed in the district court where the conviction was obtained.  The court shall provide copies of the petition to the attorney general and to the state’s attorney in the district where the conviction was obtained, and the state shall file a response within 30 days after it receives the petition.

(c)  The court shall schedule a hearing on the petition within 90 days after it is filed.  Time limits under this subchapter may be extended for good cause shown.

(d)  The court may dismiss the petition if it determines that:

(1)  the petition, response, files, and records conclusively establish that the petitioner is entitled to no relief; or

(2)  the petition was not made to demonstrate innocence or the appropriateness of a lesser sentence and will unreasonably delay the execution of sentence or administration of justice.     

§ 5562.  ASSIGNMENT OF COUNSEL

The court may appoint counsel if the petitioner is unable financially to employ counsel and may order that all necessary costs and expenses incident to the matter, including but not limited to court costs, stenographic services, printing, and reasonable compensation for legal services, be paid by the state from the appropriation to the court where the sentence was imposed.  On appeal, the supreme court may make a similar order.

§ 5563.  DISCOVERY

The court may make the following discovery orders at any time after a petition has been filed under this subchapter:

(1)  The court may order the state to locate and provide the petitioner with any documents, notes, logs, or reports relating to items of physical evidence collected in connection with the case or to help the petitioner locate items of biological evidence that the state contends have been lost or destroyed.  The court may further order the state to take reasonable measures to locate biological evidence that may be in its custody or to help the petitioner locate evidence that may be in the custody of a public or private hospital, public or private laboratory, or other facility.

(2)  If evidence has previously been subjected to DNA testing, the court may order production of laboratory reports prepared in connection with the testing and may order production of the underlying data and the laboratory notes.

(3)  If any DNA or other biological evidence testing was previously conducted by either the prosecution or the defense without knowledge of the other party, the court may order that the previous testing be disclosed.

(4)  If the court orders DNA testing under this subchapter, the court shall order the production of any laboratory reports prepared in connection with the testing and may order production of the underlying data, bench notes, or other laboratory notes.

(5)  The results of any postconviction DNA testing conducted pursuant to this subchapter shall be disclosed to the state, the department of corrections, the parole board, the petitioner, and the court.

§ 5564.  PRESERVATION OF EVIDENCE

(a)(1)  Notwithstanding any other provision of law, any item of physical evidence containing biological material that is secured in connection with a criminal case shall be retained by the government entity having custody of the evidence for the period of time that any person remains incarcerated, on probation or parole, civilly committed, or subject to registration as a sex offender in connection with the case.

(2)  This section shall apply whether or not a petition for postconviction DNA testing is filed under this subchapter.

(3)  If a petition is filed under this subchapter:

(A)  this section shall apply until proceedings on the petition are concluded;

(B)  the state shall prepare an inventory of the evidence related to the case and submit a copy of the inventory to the petitioner and the court.

(4)  If evidence is intentionally destroyed after a petition is filed under this subchapter, the court may impose on the responsible party any penalty provided by law.

(b)  For purposes of this section, “biological evidence” means:

(1)  any item that contains blood, semen, hair, saliva, skin tissue, or other identifiable biological material, whether that material is catalogued separately, as in a test tube or on a slide or swab, or whether the material is present on other evidence such as clothing, ligatures, drinking cups, cigarettes, bedding, or other household material; or

(2)  the contents of a sexual assault examination kit.

§ 5565.  ORDER; CONFIDENTIALITY

(a)  The court shall grant the petition and order DNA testing if it makes all of the following findings:

(1)  A reasonable probability exists that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through DNA testing at the time of the original prosecution.

(2)  One or more of the items of evidence that the petitioner seeks to have tested is still in existence.

(3)  The evidence to be tested was obtained in connection with the offense that is the basis of the challenged conviction and:

(A)  was not previously subjected to DNA testing; or

(B)  although previously subjected to DNA testing, can be subjected to additional DNA testing that provides a reasonable likelihood of more probative results.

(4)(A)(i)  The chain of custody of the evidence to be tested establishes that the evidence has not been tampered with, replaced, or altered in any material respect; or

(ii)  If the chain of custody does not establish the integrity of the evidence, the testing itself has the potential to establish the integrity of the evidence.

(B)  For purposes of this subchapter, evidence that has been in the custody of a law enforcement agency, a governmental body, or a public or private hospital shall be presumed to satisfy the chain-of-custody requirement of this subdivision, absent specific evidence of material tampering, replacement, or alteration.

(b)  The court may designate in its order:

(1)  the type of DNA analysis to be used;

(2)  the testing procedures to be followed;

(3)  the preservation of some portion of the sample for replicating the testing;

(4)  additional DNA testing, if the results of the initial testing are inconclusive or otherwise merit additional scientific analysis; or

(5)  the collection and DNA testing of elimination samples from third parties.

(c)  DNA profile information from biological samples taken from any person pursuant to a petition under this subchapter shall be confidential and shall be exempt from any law requiring disclosure of information to the public.

§ 5566.  APPEALS

An appeal may be taken to the supreme court from the order entered on the petition.

§ 5567.  CHOICE OF LABORATORY; PAYMENT

(a)  If the court orders DNA testing under this subchapter, the testing shall be conducted at a facility mutually agreed upon by the petitioner and the state and approved by the court.  If the parties are unable to agree, the court shall designate the testing facility and provide the parties with a reasonable opportunity to be heard on the issue.

(b)  The court shall impose reasonable conditions on the testing to protect the parties’ interests in the integrity of the evidence and the testing process.

(c)(1)  The state shall bear the costs of testing performed at the state crime laboratory.

(2)  Except as provided in subdivision (3) of this subsection, the court may require the petitioner or the state, or both to pay for testing performed at a private laboratory.

(3)  If the state crime laboratory does not have the ability or resources to conduct the type of DNA testing to be performed, the state shall bear the costs of testing at a private laboratory which does have such capabilities or resources.

§ 5568.  PROCEDURE AFTER TEST RESULTS OBTAINED

(a)  If the results of forensic DNA testing ordered under this subchapter are favorable to the petitioner, the court shall schedule a hearing within five days after the results are received to determine the appropriate relief to be granted.  The petitioner and the state shall be permitted to submit motions and be heard at the hearing.

(b)  At or subsequent to the hearing, the court may issue an order directing one or more of the following:

(1)  setting aside or vacating the petitioner’s judgment of conviction, judgment of not guilty by reason of mental disease or defect, or adjudication of delinquency;

(2)  granting the petitioner a new trial or fact-finding hearing;

(3)  granting the petitioner a new sentencing hearing, commitment hearing, or dispositional hearing;

(4)  discharging the petitioner from custody;

(5)  specifying the disposition of any evidence that remains after the completion of the testing;

(6)  granting the petitioner additional discovery on matters related to DNA test results or the conviction or sentence under attack, including documents pertaining to the original criminal investigation and the identities of other suspects; or

(7)  directing the state to place any unidentified DNA profiles obtained from postconviction DNA testing into a state or a federal database, or both.

§ 5569.  SUCCESSIVE PETITIONS

(a)  The court shall not be required to entertain a second or successive petition for similar relief on behalf of the same petitioner unless it appears the petition will be assisted by the availability of more advanced DNA technology.

(b)  The court may entertain a second or successive petition if it determines that doing so would serve the interests of justice.

Subchapter 2.  Forensic Laboratory Oversight Commission

§ 5571.  FORENSIC LABORATORY OVERSIGHT COMMISSION

(a)  There is created the forensic laboratory oversight commission.  The commission shall comprise the following members:

(1)  one member appointed by the governor;

(2)  one member of the senate appointed by the committee on committees;

(3)  one member of the house of representatives appointed by the speaker of the house of representatives;

(4)  one member who has expertise in the field of forensic science appointed by the attorney general;

(5)  one member appointed by the board of trustees of the

University of Vermont who is a faculty member of the medical school and who specializes in clinical laboratory medicine;
(6)  one member appointed by the president of Vermont Law School who is a faculty or staff member and who specializes in criminal justice;
(7)  one member appointed by the executive director of 
the department of state’s attorneys and sheriffs; and
(8)  one member appointed by the defender general.
(b)  Each member of the commission shall serve for a two-year term.  
The governor shall designate a member to serve as chair of the commission.
(c)  The commission shall:  
(1)  develop and implement:  
(A)  an accreditation process for all laboratories, facilities, or entities that conduct forensic analyses; and
(B)  a reporting system through which accredited laboratories, facilities, or entities report professional negligence or misconduct;
(2)  require all laboratories, facilities, or entities that conduct forensic analyses to:
(A)  become accredited by the commission; and
(B)  report professional negligence or misconduct to the commission; and
(3)  investigate, in a timely manner, any allegation of professional negligence or misconduct that would substantially affect the integrity of the results of a forensic analysis conducted by an accredited laboratory, facility, or entity.
(d)  An investigation under subdivision (c)(3) of this section: 
(1)  shall include the preparation of a written report that identifies and describes the methods and procedures used to identify:
(A)  the alleged negligence or misconduct;
(B)  whether negligence or misconduct occurred; 
(C)  any corrective action required of the laboratory, facility, or entity; and
(2)  may include one or more of the following:  
(A)  retrospective reexaminations of other forensic analyses conducted by the laboratory, facility, or entity that may involve the same kind of negligence or misconduct; and
(B)  follow-up evaluations of the laboratory, facility, or entity to review:
(i)  the implementation of any corrective action required under subdivision (1)(C) of this subsection; or
(ii)  the conclusion of any retrospective reexamination under subdivision (A) of this subdivision (2).
(e)  The commission by contract may delegate the duties described by subdivisions (c)(1) and (3) of this section to any person the commission determines to be qualified to assume those duties.
(f)  As part of the accreditation process developed and implemented under subdivision (c)(1) of this section, the commission may:
(1)  establish minimum accreditation standards and mandatory training requirements for individuals employed by a laboratory, a facility, or an entity that conducts forensic analyses;
(2)  validate or approve specific forensic methods or methodologies; and
(3)  establish procedures, policies, and practices to improve the quality of forensic analyses conducted in this state.
(g)  The commission may require that a laboratory, a facility, or an entity required to be accredited under this section pay any costs incurred to ensure compliance with this section.
(h)  The commission shall make all accreditation reviews conducted under subdivision (c)(2) of this section and investigation reports completed under subdivision (d)(1) available to the public.  A report completed under subdivision (d)(1) of this section, in a subsequent civil or criminal proceeding, shall not be prima facie evidence of the information or findings contained in the report.
(i)  A member of the commission is entitled to reimbursement for travel expenses at the rate per mile determined by the federal Office of   Government-wide Policy and published in the Federal Register.
(j)  The commission shall submit any report received under subdivision (c)(2) of this section and any report prepared under subdivision (d)(1) to the governor, clerk of the house of representatives, and secretary of the senate not later than December 1 of each even-numbered year.

(k)  In this section, “forensic analysis” means a medical, chemical, toxicological, ballistic, or other expert examination or test performed on physical evidence, including DNA evidence, for the purpose of determining the connection of the evidence to a criminal action. 



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us