|BILL AS PASSED BY SENATE||2007-2008|
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 qualifying 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) As used in this section, “person convicted of a qualifying crime” means a person convicted of:
(1) one of the following crimes as defined in this title:
(A) arson causing death, § 501;
(B) assault and robbery with a dangerous weapon, § 608(b);
(C) assault and robbery causing bodily injury, § 608(c);
(D) aggravated assault, § 1024;
(E) murder, § 2301;
(F) manslaughter, § 2304;
(G) kidnapping, § 2405;
(H) unlawful restraint, §§ 2406 and 2407;
(I) maiming, § 2701;
(J) sexual assault, § 3252(a)(1) or (a)(2);
(K) aggravated sexual assault, § 3253;
(L) burglary into an occupied dwelling, § 1201(c); or
(M) lewd and lascivious conduct with a child, § 2602; or
(2) any crime not listed in subdivision (b)(1) of this section, if the petition is filed within 30 months after the conviction becomes final, the person presents specific facts demonstrating that DNA evidence will provide substantial evidence of the person’s innocence, and the court finds that the interests of justice would be served by permitting the petition.
(c) The petition shall be filed in the superior court of the county where the conviction was imposed, and shall not be heard by the judge who presided when the original sentence was imposed. 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.
(d) The court shall schedule a hearing on the petition within 90 days after it is filed unless the court dismisses the petition pursuant to subsection (e) of this section. Time limits under this subsection may be extended for good cause shown or by consent of the parties.
(e) 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 defender general. 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 BIOLOGICAL EVIDENCE; POLICIES
The department of public safety shall disseminate policies regarding the collection and preservation of biological evidence to all state and local law enforcement agencies on or before July 1, 2007. Law enforcement agencies shall adhere to the policies distributed pursuant to this section.
§ 5565. ORDER; NECESSARY FINDINGS; 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.
(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.
(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 order entered on the petition may be appealed to the Vermont supreme court pursuant to the Rules of Appellate Procedure.
§ 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 defender general 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 as soon as practicable 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;
(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.
(c) An order issued under this section may be appealed to the Vermont supreme court pursuant to the Rules of Appellate Procedure.
§ 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. Compensation for Wrongful Convictions
§ 5571. RIGHT OF ACTION; PROCEDURE
(a) A person convicted and imprisoned for a crime which the person did not commit shall have a cause of action for damages against the state.
(b) An action brought under this subchapter shall be filed in Washington County superior court. Notice of the action shall be served upon the attorney general.
(c) The Vermont Rules of Civil Procedure shall apply to actions brought under this subchapter, and the plaintiff shall have a right to trial by jury. The Vermont Rules of Appellate Procedure shall apply to appeals from orders and judgments issued under this subchapter.
(d) The attorney general may consider, adjust, determine, and settle any claim for damages brought against the state of Vermont under this subchapter.
§ 5572. COMPLAINT
(a) A complaint filed under this subchapter shall be supported by facts and shall allege that:
(1) the complainant has been convicted of a crime, been sentenced to a term of imprisonment, and served all or any part of the sentence; and
(2) the complainant’s actual innocence has been established by DNA evidence which resulted in the person’s conviction being reversed or vacated, the information or indictment being dismissed, the granting of a pardon, or an acquittal after a second or subsequent trial or through some other means.
(b) The court may dismiss the complaint, upon its own motion or upon motion of the state, if it determines that the complaint does not state a claim for which relief may be granted.
§ 5573. BURDEN OF PROOF; JUDGMENT; DAMAGES
(a) A claimant shall be entitled to judgment in an action under this subchapter if the claimant establishes each of the following by a preponderance of the evidence:
(1) The complainant was convicted of a crime, was sentenced to a term of imprisonment, and served all or any part of the sentence.
(2)(A) The complainant’s conviction was reversed or vacated, the complainant’s indictment or information was dismissed, or the complainant received an acquittal after a second or subsequent trial; or
(B) The complainant was pardoned for the crime for which he or she was sentenced.
(3) DNA evidence establishes that the complainant did not commit the crime for which he or she was sentenced.
(4) The complainant did not fabricate evidence or commit or suborn perjury during any proceedings related to the crime with which he or she was charged.
(b) A claimant awarded judgment in an action under this subchapter shall be entitled to $50,000.00 in damages for each year the claimant was incarcerated, adjusted proportionally for partial years served. The damage award may also include:
(1) Economic damages, including lost wages and costs incurred by the claimant for his or her criminal defense and for efforts to prove his or her innocence.
(2) Up to ten years of physical and mental health care through the state employees’ health care system, offset by any amount provided through the claimant’s employers during that time period.
(3) Compensation for any reasonable reintegrative services and mental and physical health care costs incurred by the claimant for the time period between his or her release from mistaken incarceration and the date of the award.
(4) Reasonable attorney’s fees and costs for the action brought under this subchapter.
(c) Damages awarded under this section:
(1) shall not be subject to any state taxes, except for the portion of the judgment awarded as attorney’s fees; and
(2) shall not be offset by any services awarded to the claimant pursuant to this section or by any expenses incurred by the state or any political subdivision of the state, including expenses incurred to secure or maintain the claimant’s custody or to feed, clothe, or provide medical services for the claimant.
(d) The claimant’s acceptance of a damages award, compromise, or settlement as a result of a claim under this subchapter shall be in writing and, except when procured by fraud, shall be final and conclusive on the claimant, and constitute a complete release by the claimant of any claim against the state and a complete bar to any action by the claimant against the state with respect to the same subject matter.
§ 5574. PAYMENT
(a) Any award made or compromise or settlement against the state of Vermont agreed upon by the attorney general in response to an action brought under this subchapter shall be paid by the state treasurer out of the treasury, and the emergency board shall reimburse the state treasurer therefor from time to time.
(b) If the state elects to self‑insure for liability as defined in section 5601 of Title 12, any award, compromise, or settlement against the state of Vermont agreed to by the attorney general shall be paid by the treasurer from the liability self-insurance fund.
(c) To the extent that an award, settlement, or compromise is covered by a policy of liability insurance, payment will be governed by the terms of the policy.
§ 5575. LIMITATIONS
(a) Except as provided in subsection (b) of this section, an action for wrongful conviction under this subchapter shall be commenced within three years after the person’s actual innocence is established by the person’s conviction being reversed or vacated, the indictment being dismissed, the granting of a pardon or an acquittal after a second or subsequent trial or through some other means.
(b)(1) If the state challenges the establishment of the actual innocence of a person entitled to bring an action under this subchapter, the limitations period shall not commence until the challenge is finally resolved.
(2) If a cause of action under this subchapter accrues before the effective date of this chapter, the action shall be commenced within three years after the effective date.
(3) If a person entitled to bring an action under this subchapter is not provided the notice required by section 5586 of this title, the person shall have an additional year within which to bring the action.
§ 5576. NOTICE OF RIGHT OF ACTION
(a) A copy of this subchapter shall be provided to a person by a court:
(1) issuing judicial relief establishing the person’s actual innocence through vacating or reversing the person’s conviction, dismissing the information or indictment, or entering judgment on an acquittal after a second or subsequent trial or through some other means; and
(2) receiving notice of a pardon.
(b)(1) A person receiving a copy of this subchapter pursuant to subdivision (a)(1) of this section shall be required to acknowledge its receipt in writing on a form established by the court administrator. The acknowledgement shall be entered on the docket by the court and shall be admissible in an action filed under this subchapter.
(2) A person receiving a copy of this subchapter pursuant to subdivision (a)(2) of this section shall be required to acknowledge its receipt in writing on a form established by the parole board. The acknowledgement shall be retained on file by the parole board as part of its official records and shall be admissible in an action filed under this subchapter.
(c) The administrative judge and the court administrator shall make reasonable attempts to provide notice of this subchapter to persons whose actual innocence was determined by judicial relief issued consistent with subdivision (a)(1) of this section prior to the effective date of this act.
Sec. 2. PRESERVATION OF EVIDENCE STUDY COMMITTEE
(a) A committee is established for the purpose of studying issues related to the preservation of evidence in criminal cases.
(b) The committee shall consist of the following members:
(1) one member appointed by the executive director of the department of state’s attorneys and sheriffs, who shall be the chair of the committee;
(2) one district court clerk appointed by the court administrator;
(3) one member appointed by the attorney general;
(4) one member appointed by the Vermont police association;
(5) a state trooper appointed by the state police bargaining unit of the Vermont state employees’ association;
(6) one member appointed by the commissioner of public safety;
(7) the executive director of the Vermont crime lab or designee;
(8) the defender general;
(9) one member appointed by the defender general; and
(10) a staff public defender appointed by the defender general.
(c) The committee shall consider the following:
(1) Current statewide policies regarding the preservation of evidence in criminal cases, and whether a statewide policy should be adopted;
(2) Current policies in local jurisdictions regarding the preservation of evidence in criminal cases, and whether these policies are consistent with one another and with relevant statewide policies;
(3) Best practices regarding the preservation of evidence in criminal cases;
(4) The appropriate duration for preservation of evidence, with specific consideration of whether evidence should be preserved while a convicted person is incarcerated or while the person is under other forms of state supervision;
(5) Whether and how advances in DNA testing technology should effect policies concerning preservation of evidence;
(6) Whether current facilities provide enough space to preserve the evidence that needs to be preserved; and
(7) Whether there should be one central, statewide repository for evidence collected in criminal cases.
(d) The committee shall have the assistance and cooperation of all state and local agencies and departments. The committee shall consult with the Innocence Project and with crime victims’ organizations, and may consult with the senate and house committees on judiciary. The department of public safety shall provide professional and administrative support for the committee.
(e) The committee shall report its findings and recommendations, including proposals for legislative action, to the senate and house committees on judiciary no later than December 15, 2007 whereupon the committee shall cease to exist.
The Vermont General Assembly
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