A Quest for Exculpatory DNA Evidence or a Wild-Goose Chase? Expansion of Searches for Lost Evidence Under Horton v. State of Maryland

8/12/2019 A Quest for Exculpatory DNA Evidence or a Wild-Goose Chase? Expansion of Searches for Lost Evidence Under Ho

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A Quest for Exculpatory DNA Evidence or

a Wild-Goose Chase? Expansion ofSearches for Lost Evidence UnderHorton

v. State of Maryland

Nicole Dapcic

I.INTRODUCTION

Evolving Deoxyribonucleic Acid (DNA) testing technology has allowed

numerous languishing cold cases to finally be solved and has, in somecases, also exonerated the wrongly-convicted.1For example, on December14, 1982, a jury convicted eighteen-year-old Marvin Anderson of robbery,

forcible sodomy, abduction, and two counts of rape, resulting in a 210 yearprison sentence.2 The Virginia Bureau of Forensic Science performedconventional scientific blood serum testing3 on the sperm samples takenfrom the victims body.4The results of those tests were inconclusive.5

When modern DNA testing became available, Anderson sought to clearhis name by petitioning for post-conviction DNA testing of the samples.6Although Anderson was told that the rape kit from the case and its contents

were destroyed, the Innocence Project accepted Andersons case.7In 2001,

1. Advancing Justice Through Forensic DNA Technology: Hearing Before the

Subcomm. on Crime, Terrorism, and Homeland Security of the Comm. on the Judiciary ,

H.R., 108th Cong. 2 (2003) (opening statement of Hon. Robert C. Scott, Rep. in Congress

from the State of Virginia, and Chairman of the Subcommittee on Crime, Terrorism, and

Homeland Security), available athttp://purl.access.gpo.gov/GPO/LPS41128.

2. INNOCENCE PROJECT, Know the Cases, Marvin Anderson, http://www.innocence

project.org/Content/Marvin_Anderson.php (last visited Mar. 20, 2011) [hereinafterMarvin

Anderson].

3. R.E. GAENSSLEN, NATL INST. OF JUSTICE (NIJ), SOURCEBOOK IN FORENSIC

SEROLOGY,IMMUNOLOGY,AND BIOCHEMISTRY671 (1983) (describing this antiquated testing

method).

4. See Marvin Anderson, supranote 2.

5. Id.

6. Id.7. INNOCENCE PROJECT,Home, http://www.innocence project.org (last visited Mar.


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78 CRIMINAL AND CIVIL CONFINEMENT [Vol. 37:77

the Innocence Project obtained information that physical evidence from thecase had been located, contrary to laboratory policy, in the notebook of theforensic scientist who performed the 1982 serology tests.8

Though the Attorney for the Commonwealth agreed that DNA testing

should have been conducted on the evidence, the director of the VirginiaDepartment of Criminal Justice Services denied Andersons request for

post-conviction DNA testing because: (1) there was already a large volumeof pending cases, and (2) he wanted to avoid setting unwelcomeprecedent.9The next month, the State of Virginia adopted Virginia Codesection 19.2-327.1,which permits the filing of a [m]otion by a convictedfelon for scientific analysis of . . . previously untested scientificevidence . . . .10The new law officially allowed Anderson to petition forpost-conviction DNA testing.11Though the sample was heavily degraded,test results excluded Anderson as the perpetrator.12 After serving fifteenyears in prison, Anderson was granted a full pardon as a result of the

original forensic scientists happenstance retention of rape kit swabs.13

Unfortunately, in most cases there is no prophetic scientist who, contraryto proper protocol, decides to retain evidence swabs in a notebook.14Likewise, accused persons are rarely lucky enough to encounter a curious

district attorney who decides to save a box of evidence from a courthousedumpster,15 a law student who discovers two boxes of evidence in acourthouse basement after seven years,16 or a prosecutor who decidesarbitrarily to remove the case from a list for which evidence is slated to be

20, 2011) (describing the Innocence Project as a national organization dedicated to

exonerating wrongly convicted people through DNA testing and reforming the criminal

justice system to prevent future injustice.).

8. Marvin Anderson, supranote 2.

9. Id.10. Id.; VA.CODE ANN. 19.2-327.1 (2008).


12. Id.

13. Id.

14. Id.

15. INNOCENCE PROJECT,Know the Cases, Browse the Profiles,http://www.innocence

project.org/know/Browse-Profiles.php (last visited Mar. 20, 2011). Calvin Johnson was

convicted of rape and received a life sentence. Id. During his imprisonment, the

stenographer in charge of record retention was told to throw away the evidence from the

case. Id. A District Attorney noticed the boxes of evidence in a parking lot dumpster

outside the courthouse, and decided they should be preserved.Id.Sixteen years later, DNA

testing of evidence from the rape kit exonerated Johnson.Id.

16. Id. Dennis Maher was sentenced to life in prison for attempted rape and rape

without any physical evidence tying him to the crimes. Id.After more than seven years of

searching, a law student located two boxes of evidence in the basement of the Middlesex

County Courthouse in 2001. DNA testing on this evidence excluded Maher [as the

perpetrator].Id.


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2011] A QUEST FOR EXCULPATORY DNA EVIDENCE 79

destroyed.17

The Innocence Protection Act,18 part of the Justice for All Act,19provides federal funding to states for the general operation of forensiclaboratories and, more specifically, for post-conviction DNA testing.

However, there is great diversity among state laws regarding post-conviction access to modern DNA testing; these laws are knowncollectively as DNA access laws.20Additionally, many states do not havelaws requiring the preservation of evidence so as to provide convictedfelons the opportunity to petition for post-conviction DNA testing, whichcould potentially exonerate them.21

This Note will address the consequences of evidence sought for post-conviction DNA testing when that evidence can neither be found nordeclared definitively destroyed. Additionally, this Note will discuss thegray area of lost evidence: evidence properly slated for disposal under therelevant preservation statute, but which the convicted individual argues stillexists. Such instances expose the gaping cracks through which forensic

evidence can fall under the current patchwork of incongruent DNA accesslaws and evidence preservation laws across the United States. As such,convicted individuals seeking post-conviction relief may be left withoutrecourse because the potentially exculpatory evidence sought for testing isgone. Recent attempts by courts to rectify the lost evidence problemthrough the order of extensive evidence searches are an improper drain onthe criminal justice system and do little to actually address the cause of thelost evidence problem. Nation-wide standardization of evidencepreservation offers a resolution to the issue of lost evidence, but may not beeasily obtainable.

Part II of this Note will relate the history of DNA testing and itsevolution as a forensic tool in the resolution of criminal cases both before

17. Id.Kevin Byrds rape conviction was affirmed on appeal and the evidence from

his case was scheduled to be destroyed. Id.Perhaps by sheer chance, the District Attorney

removed Byrd's case from the list and saved the evidence that ultimately exonerated Byrd in

1997. Id. To this day, the prosecutors are unsure why they chose to retain the semen

sample, and note that it would have been perfectly acceptable, per their guidelines, to have

thrown out this crucial piece of evidence in 1994.Id.

18. 18 U.S.C. 3600 (2006). The Debbie Smith Rape Kit Backlog Reduction Act and

the Kirk Bloodsworth Post-Conviction DNA Testing Grant Program, both incorporated in

the Innocence Protection Act, fund pre-conviction and post-conviction DNA testing. H.R.

REP. NO. 108-711, at 10-12 (2004), available at http://frwebgate.access.gpo.gov/cgi-

bin/getdoc.cgi?Db name=108_cong_reports&docid=f:hr711.108.pdf.

19. 42 U.S.C. 13701 (2006).

20. INNOCENCE PROJECT, Reforms by State, State DNA Access Laws, http://www.

innocenceproject.org/news/LawView2.php (last visited Mar. 20, 2011) [hereinafter DNA

Access Laws].

21. Id.


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and after conviction. A brief overview of the states various DNA accesslaws will be explored in Part III. Part IV will discuss preservation ofevidence laws and the incongruence between these statutes and state DNAaccess laws that create preservation gaps, providing the opportunity for

evidence to become lost. Part V will detail the various ways that evidencebecomes lost and the ramifications, or lack thereof, for the loss of such

evidence. Searches for lost evidence and the recent expansion of suchsearches required by Horton v. State22will also be highlighted in Part V.Part VI will focus on the effects of requiring more expansive search effortsin the context of limited DNA preservation under state law. Part VII willdraw conclusions with regard to expansive lost evidence searches whileproviding an inventory of possible ways to address searches for lostevidence.

II.HISTORY OF DNAAS A FORENSIC EVIDENCE TOOL

DNA was first described by James Watson and Francis Crick in 1953 as

a long molecule composed of only a few simple units . . . . These unitstaken together are nucleotides, which are the raw building blocks ofDNA.23It was concluded that 99.99% of DNA nucleotide sequences areidentical among all people (those sequences for two hands, ten toes, etc.)and 100% of a persons DNA is the same within and throughout a humanbeings body (meaning that DNA found in blood, mucus, sweat, saliva,hair, bone, or teeth will all be the same).24However, 0.01% of DNA differsfrom person to person, and forensic scientists use those few differences toform DNA profiles.25

Older methods of DNA testing were limited in their use because onlysamples in near-pristine condition allowed for successful profiling.26Thisrequisite sample condition was not always achievable due to the unstable

nature of the bodily material from which DNA is extracted.

27

Theunfortunate result was that often testing was restricted to only a single

attempt.28 In response to these difficulties, scientists probed further into

22. 985 A.2d 540 (Md. 2009).

23. AM. PROSECUTORS RESEARCH INST., SPECIAL TOPICS SERIES, FORENSIC DNA

FUNDAMENTALS FOR THE PROSECUTORBE NOT AFRAID 3 (2003) [hereinafter APRI],

available athttp://www.ndaa.org/pdf/forensic_dna_fundamentals.pdf.

24. Id.at 3-4.

25. Id. at 13(relating that forensic analysts compare DNA profiles by examining only

thirteen loci which the international scientific community establishes as suitable).

26. Seeid. at 7.

27. See id. (describing the cumbersome restriction fragment length polymorphism

(RFLP) testing method).

28. See JOHN M. BUTLER, FORENSIC DNA TYPING: BIOLOGY, TECHNOLOGY, BEHIND

STRMARKERS3-5 (2001).


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other testing methods and ultimately developed a method for replicatingDNA from a small pre-existing sample, which allowed for more testingfrom partially-degraded samples without exhausting all of the evidenceduring analysis.29

During this period of transition in DNA testing technology, many caseswere still decided using the more rudimentary testing method thenavailable.30 In many of those cases, suspects were unable to benefit fromthe advancements made in this area of forensic science.31 Modern DNAtesting has exposed the fact that testimony and information used to trydefendants during the period of inferior forensic science may have

contributed to wrongful convictions of innocent people.32

III.DNAACCESS LAWS

A. Limited Accessibility to Last Resort Efforts for Post-ConvictionRelief

Several states suggest that the purpose of post-conviction DNA testing isto provide an avenue for convicted defendants who maintained theirinnocence to test available genetic material capable of producing new anddramatic evidence materially relevant to the question of innocence.33Theplain language of the DNA access laws of several states supports thisinterpretation.34These laws extend access to post-conviction DNA testingonly in instances where the petitioner was convicted following a trial.35Therefore, as a matter of law, defendants who plead guilty may not availthemselves of [DNA access laws]. Those defendants are a separate group

29. APRI,supranote 23, at 7.30. See id.

31. See RICHARD SAFERSTEIN, CRIMINALISTICS: AN INTRODUCTION TO FORENSIC

SCIENCE361-73 (7th ed. 2001) (describing the evolution of DNA typing methods).

32. NATL RESEARCH COUNCIL OF THE NATL ACADS., STRENGTHENING FORENSIC

SCIENCE IN THE UNITED STATES:APATH FORWARD4 (2009).

33. People v. Urioste, 736 N.E.2d 706, 710 (Ill. App. Ct. 2000); see also Smith v.

State, 854 So. 2d 648, 685 (Fla. Dist. Ct. App. 2003) (citing Amendment to Florida Rules of

Criminal Procedure Creating Rule 3.853, 807 So. 2d 633, 634-35 (Fla. 2001)) (The Florida

Supreme Court refused to extend the right to DNA testing to defendants who entered guilty

or nolo contendere pleas.).

34. See People v. O'Connell, 879 N.E.2d 315, 318-19 (Ill. 2007); People v.

Moore, 879 N.E.2d 434, 437 (Ill. App. Ct. 2007) (relying on the rule of statutory

construction for giving effect to legislative intent via the statutory language itself). New

Yorks DNA Access Law twice uses the language trial resulting in the judgment . . . .

Thus, the New York State statute explicitly requires conviction by verdict and judgment

after trial. People v. Byrdsong, 33 A.D.3d 175, 180 (N.Y. App. Div. 2006).

35. O'Connell, 879 N.E.2d at 319.


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who have not contested identity at trial.36Conversely, other states withsimilar DNA access laws interpret limiting post-conviction DNA testing tothose who contested guilt at trial as inconsistent with the purpose of thestatute.37

Likewise, the substantive relief offered by DNA access laws differsgreatly from state to state. Some states provide sweeping relief under DNA

access laws by allowing any convict to petition for DNA testing at any timeafter conviction.38 Other states limit their DNA access laws to certainoffenses or sentences.39Still others limit access to post-conviction DNAtesting by placing an expiration date on the statute that gives convicts thepower to file such petitions.40Some states, such as Michigan, use several ofthese limiting factors simultaneously to further chip away at the class ofconvicted individuals to whom post-conviction DNA testing is accessible.41

B. The Malleable Standard of Review Applicable to Petitions forPost-Conviction DNA Testing

States also differ regarding the burdens statutorily imposed upon theparties regarding petitions for post-conviction DNA testing.42 A post-

36. Id.; seeStewart v. State, 840 So. 2d 438, 438 (Fla. Dist. Ct. App. 2003) (finding

that the statutory language has been triedand found guilty does not permit persons who

pleaded guilty or nolo contendere to seek post-conviction DNA testing), superseded by

statute, FLA.STAT.ANN.925.11(1)(a)(2) (West Supp. 2010) as recognized inLindsey v.

State, 936 So. 2d 1213, 1214 (Fla. Dist. Ct. App. 2006). It has been held that in hybrid

situations that involve an individual originally convicted at trial who later pleaded guilty

after their conviction was reversed, the guilty plea was the ultimate source of the judgment

and therefore such defendants should also be denied post-conviction DNA testing. See, e.g.,

People v. Allen, 47 A.D.3d 543, 544 (N.Y. App. Div. 2008).

37. State v. Winslow, 740 N.W.2d 794, 799 (Neb. 2007) (citing State v. Smith, 119P.3d 679, 683 (Kan. Ct. App. 2005)).

38. See,e.g., N.H.REV.STAT.ANN. 651-D:2 (2007); N.C. GEN.STAT. 15A-267

(2009); N.D.CENT.CODE 29-32.1-15 (2006); TENN.CODE ANN. 40-30-303 (2006).

39. See,e.g., IND.CODE ANN. 35-38-7-1 (LexisNexis 1998 & Supp. 2010); KY.REV.

STAT.ANN 422.285 to .287 (West 2006 & Supp. 2009); VT.STAT.ANN. tit.13, 5561

(2009).

40. See, e.g.,LA.CODE CRIM.PROC.ANN.art. 926.1 A.(1) (Supp. 2010) (providing

that, prior to August 31, 2014, an individual convicted of a felony may petition for post-

conviction DNA testing).

41. See, e.g., MICH. COMP. LAWS ANN. 770.16 (1) (West Supp. 2010) ([A]

defendant convicted of a felony at trial before January 8, 2001 who is serving a prison

sentence for the felony conviction may petition the circuit court to order DNA testing . . .

and for a new trial based on the results of that testing. The petition shall be filed not later

than January 1, 2012.); see OHIO REV. CODE ANN. 2953.72 (C)(1)(b)-(c) (West 2006)

(limiting post-conviction DNA testing to inmates with at least one year remaining on their

sentence and who were sentenced to death for a felony offense).

42. See, e.g., Gwendolyn Carroll, Proven Guilty: An Examination of the Penalty-Free


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conviction relief petitioner does not have an automatic right todiscovery;43 therefore, the decision to authorize discovery during post-conviction relief is a matter left to the courts sound discretion.44 Thisgeneral court discretion to authorize or deny such petitions not only does

little to establish the actual parameters by which these petitions may beevaluated, but, as discussed later in this Note, causes confusion regarding

how discovery of this evidence should be conducted once such a petition isgranted.

Decisions relating to petitions for post-conviction DNA testing haveoffered some guidance as to how courts have previously used the discretion

afforded them in evaluating final efforts for post-conviction relief.45Caselaw agrees that the DNA testing method used must at least satisfy the

Daubert standard for scientific reliability.46Likewise, because convicted

defendants may not obtain reconsideration of their cases whenever somenew technology promises to reveal another angle on the evidence againstthem, it must be shown that a favorable result using the latest scientific

procedures would most likely produce an acquittal in a new trial.

47

Furthermore, prisoners cannot seek discovery at the post-conviction stageif the requested evidence could have been obtained at trial.48

Courts have denied post-conviction DNA testing petitions on thegrounds that the convicted individual did not meet the burden ofestablishing a sufficient chain of custody to offer proof that DNA wascollected from the crime scene, has not been altered, and is in the

World of Post-Conviction DNA Testing, 97 J.CRIM.L.&CRIMINOLOGY665, 668-69 (2007).

43. Miller v. State, 1 So. 3d 1073, 1079 (Ala. Crim. App. 2007) (holding that post-

conviction discovery is not necessary unless protecting a petitioner's substantial rights).

Accord Dumond v. A.L. Lockhart,911 F.2d 104, 107 (8th Cir. 1990).44. Marshall v. State, 976 So. 2d 1071, 1079 (Fla. 2007) (citing State v. Lewis, 656

So. 2d 1248, 1250 (Fla. 1994)); seeLewis, 656 So. 2d at 1249-50 (phrasing the standard for

setting the scope of discovery as whether there is good cause).

45. E.g., Jenner v. Dooley, 590 N.W.2d 463, 472 (S.D. 1999) ([C]ourts have

generally found post-conviction testing most suitable when (a) identity of a single

perpetrator is at issue; (b) evidence against the defendant is so weak as to suggest real doubt

of guilt; (c) the scientific evidence, if any, used to obtain the conviction has been impugned;

and, (d) the nature of the biological evidence makes testing results on the issue of identity

virtually dispositive.).

46. Id.(citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590 & n.9 (1993)).

In a case involving scientific evidence, evidentiary reliabilitywill be based upon scientific

validity. Daubert, 509 U.S. at 590 n.9.

47. Jenner, 590 N.W.2d at 472 (citingDumond, 911 F.2d at 107); Arey v. State, 929

A.2d 501, 505 (Md. 2007) (requiring a showing that a reasonable probability exists that the

DNA testing has the scientific potential to produce exculpatory or mitigating evidence

relevant to a claim of wrongful conviction or sentencing . . . . ).

48. State v. Jackson, 747 N.W.2d 418, 436 (Neb. 2008).


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possession of the proper authorities.49Additionally, it is well establishedthat a petition for post-conviction DNA testing should be denied if itimposes an unreasonable burden on the State50 including, but not limitedto, the imposition of exorbitant costs.51 Once a court finds that the

convicted individual has met this burden, the burden shifts to the state toestablish that it is no longer in possession of the DNA evidence requested if

it seeks to have the court dismiss the post-conviction DNA testing petitionon those grounds.52The shift of the burden from the convicted individual tothe state is logical because the [s]tate gather[s] the evidence and [i]s thecustodian of the evidence.53However, this burden places the state in anawkward position of establishing the DNA samples non-existence. Astates preservation statute which provides for the destruction of evidencecan make this burden almost impossible to satisfy if the proper protocol fordestruction is not followed. As such, this burden highlights how a statesapplicable evidence preservation law becomes critical in the courts

decision to deny or grant a petition for post-conviction DNA testing. Theapplicable evidence preservation statute also impacts the scope of searchesrequired to be conducted by the State in finding or proving the non-existence of the DNA evidence.

IV.PRESERVATION OF POST-CONVICTION EVIDENCE

The array of post-conviction preservation of evidence laws across thenation is as wide and diverse as that for DNA access laws.54 In terms offederal law, the section Preservation of Biological Evidence of theInnocence Protection Act, states: The Government shall preservebiological evidence that was secured in the investigation or prosecution of a

Federal offense, if a defendant is under a sentence of imprisonment forsuch offense.55

Though a few states integrate language regarding evidence preservationdirectly into their DNA access laws,56 most states have a stand-alone

49. People v. Moore, 879 N.E.2d 434, 438 (Ill. App. Ct. 2007) (citing People v.

Johnson, 793 N.E.2d 591, 599 (Ill. 2002)).

50. Jenner, 590 N.W.2d at 472 (citing State v. Fowler, 552 N.W.2d 92, 96 (S.D.

1996)).

51. Id.

52. Arey, 929 A.2d at 507.

53. Blake v. State, 909 A.2d 1020, 1031 (Md. 2006).

54. INNOCENCE PROJECT, National View, States Laws Requiring Preservation of

Evidence, http://www.innocenceproject.org/news/LawView4.php (last visited Mar. 20,

2011) [hereinafter Preservation of Evidence Laws] (displaying a user-friendly mapvisualizing the fragmentation of the states which do and do not have preservation statutes).

55. 18 U.S.C. 3600A(a) (2006).

56. E.g., S.C.CODE ANN. 17-28-70 (1976 & Supp. 2009).


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statute requiring some level of preservation for post-conviction evidence.57Such statutes limit the ability of convicted individuals who have alreadycompletedtheir sentence to exonerate themselves.58

Even the most generous state preservation statutes, such as the

California statute, not only establish that the government entity chargedwith preservation has the discretion to determine the means by which theevidence is retained, so long as it remains in a condition suitable for DNAtesting, but also permit the state to dispose of biological evidence beforethe proscribed period of time has passed under the preservation statute.59Such language typifies circumstances under which a government agency

may give notice and dispose of biological material even though someone isincarcerated in connection with the case.60

Evidence preservation statutes across the country include a plethora ofmandates on when evidence must be preserved as well as on the duration ofpreservation. New Hampshire requires evidence preservation for the longerof five years or the duration of custody, but upon filing of a petition, the

statute allows the court to destroy or otherwise dispose of biologicalmaterial after [five] years even if a person connected with the case is still incustody.61

Arkansas bases its preservation period on the underlying offense, settinga permanent preservation requirement for violent offenses, a twenty-five

57. E.g., NEB.REV.STAT. 29-4125 (2008) (typifying the approach taken by a large

number of states to evidence preservation). The Nebraska statute states:

[s]tate agencies and political subdivisions shall preserve any biological material

secured in connection with a criminal case for such period of time as any person

remains incarcerated in connection with that case. . . . [but] may dispose of

biological material before expiration of the period of time specified . . . if: [t]he

state agency or political subdivision which secured the biological material for usein a criminal case notifies any person who remains incarcerated in connection with

the case, such person's counsel of record, or if there is no counsel of record, the

public defender, if applicable, in the county in which the judgment of conviction

of such person was entered.

Id. 29-4125(1) to (2).

58. INNOCENCE PROJECT,Michigans Post-Conviction DNA Testing Law Set to Expire

if State Senate Doesnt Act, http://www.innocenceproject.org/Content/1622.php (last visited

June 24, 2010) (using the example of those on parole or people who have completed their

sentences [who wish to] file for DNA testing to clear their names (and be removed from

parole or sex offender registries for crimes they did not commit).). In extending its DNA

testing laws sunset provision to 2012, Michigan did not choose to remove the pre-existing

restriction allowing only those serving a prison sentence to get testing as the bill was

proposed to the state legislature.Id.; seeMICH.COMP.LAWS ANN.770.16 (West 2010).

59. See, e.g., CAL.PENAL CODE 1417.9 (West 2000 & Supp. 2010).

60. Opinion of California Attorney General Bill Lockyer, No. 04-405, 88 Op. Cal.

Att'y. Gen. 77 (May 17, 2005), available athttp://ag.ca.gov/opinions/pdfs/04-405.pdf.

61. N.H.REV.STAT.ANN. 651-D:3 (LexisNexis 2010).


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year preservation requirement for sex offenses, and a seven-yearrequirement for any other felony conviction.62 Georgia, apparently lessconcerned with the loss of potentially exculpatory evidence, proscribes aten-year maintenance period for serious violent felon[ies], but

[e]vidence in all other felony and misdemeanor cases may be purgedafter the duration of the criminal trial, unless the punishment involves the

death penalty.63 The destruction of potentially exculpatory evidence isfurther at risk in Washington State, where the sentencing court may orderthe preservation of evidence and specify the period of preservation.64Nineteen states have no laws specifically requiring any preservation ofevidence even though DNA access laws potentially provide for its testing.65

On the chance that a convicted individuals petition for post-convictionDNA testing is granted and the applicable preservation law mandated the

evidence at issue be retained, a larger issue then is whether the evidencestill exists or has been permitted to be destroyed under the relevantpreservation statute. This predicament presents the issue of lost evidence

around which this Note revolves. Although both the standard of reviewcourts must employ in evaluating a post-conviction DNA testing petitionand the burdens held in this process are at best unclear, the possibility that

the evidence sought has been lost obviously provides the convictedindividual with even greater concerns.

V.LOST EVIDENCE

Not all states have protocols to preserve biological evidence for a periodlong enough to give effect to granted petitions for post-conviction DNAtesting because, as previously discussed, some states have providedstatutory authority for the destruction of such evidence after conviction.66The result is the loss of evidence which a convicted individual may claim

as possibly exculpatory. A statutory remedy is provided for the prematureor wrongful post-conviction destruction of evidence.67 However, it is

uncertain what type of a search would satisfy the burden placed upon theState to establish that it no longer possesses the DNA evidence requested

62. ARK.CODE ANN. 12-12-104(b)(2) (2009).

63. GA.CODE ANN. 17-5-56(b) (2008).

64. WASH.REV.CODE ANN. 10.73.170 (West 2009).

65. Preservation of Evidence Laws, supranote 54.

66. Id.;see, e.g.,ARK.CODE ANN. 12-12-104 (2009); CAL.PENAL CODE 1417.9

(West 2000 & Supp. 2010); N.H.REV.STAT.ANN. 651-D:3 (2010).

67. Cynthia E. Jones, Evidence Destroyed,Innocence Lost: The Preservation of

Biological Evidence under Innocence Protection Statutes, 42 AM.CRIM.L.REV. 1239, 1258

(2005) ([I]nnocence protection statutes in eleven jurisdictions create criminal penalties if

evidence is intentionally destroyed in violation of the [applicable preservation] statute or

allow courts to impose appropriate sanctions to remedy the statutory violation.).


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under the applicable DNA preservation statute allowing for the evidencesdestruction. No state or federal statute has effectively addressed instanceswhere, after the relevant preservation period has passed, there is noaffirmative proof of the destruction of the pertinent evidence (typically

resulting from common chain of custody or protocol failures).68

As a result,the procedure for searching for this lostevidence and the consequences of

the loss of such evidence are unclear.

A. Requirements upon States to Establish the Non-Existence ofEvidenceLost Evidence

In Spaziano v. State, Spaziano was convicted twenty-seven years earlierfor rape and aggravated battery.69On appeal, he challenged the denial of anevidentiary hearing on the States compliance with an order granting thepetition for post-conviction DNA testing.70 The State claimed that itattempted to abide by the order requiring DNA testing, but upon searchingfor the evidence sought, found that practically all of the evidence under the

control of the Sheriffs Office had been destroyed decades earlier.71

TheState subsequently filed a notice of compliance which included e-mailsfrom the County Evidence Supervisor and employees of the Sheriffsdepartment to this effect.72

Spaziano argued that the State had not complied with Florida lawregarding evidence preservation and requested a hearing.73 Initially thehearing was denied, however, the denial was vacated74based on precedentwhich firmly established that if a factual dispute existed as to Spazianosmotion for DNA testing, then the trial court should conduct an evidentiaryhearing to resolve it.75However, the court of appeals cautioned that oncethis hearing was provided to Spaziano, case law provides that dismissal ofthe petition for post-conviction DNA testing may be proper if witnesses at

the hearing testified that the evidence no longer existed.

76

Though Spaziano continued to maintain that the State must conductfurther discovery in order to be considered compliant with the courts

68. See,e.g., S.C.CODE ANN. 17-28-70(d) (1976 & Supp. 2009) (coming close to

recognizing this issue in its prescription for a collaborative search effort [i]f no physical

evidence or biological material is discovered.).

69. Spaziano v. State, 879 So. 2d 51, 51 (Fla. Dist. Ct. App. 2004).

70. Id. at 53.

71. Id.

72. Id.

73. Id.

74. Id.at 55.

75. Id.at 53-54 (citing Borland v. State, 848 So. 2d 1288, 1290 (Fla. Dist. Ct. App.

2003)).

76. Id.at 54 (citing King v. State, 808 So. 2d 1237, 1241 (Fla. 2002)).


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order, the court of appeals disagreed.77The court of appeals remanded thecase on the basis of the lack of a hearing with limitations on the scope ofdiscovery and, as such, did not qualify Spazianos claims that the Statesrepresentations of the non-existence of the evidence failed to adequately

describe the efforts made to find the evidence and that the documentsevidencing destruction were illegible.78

In Blake v. State, the court of appeals conceded that the relevant statestatute for petitions for post-conviction DNA testing did not contemplatecircumstances where the evidence has been destroyed . . . or where there isa factual dispute over the existence of DNA testing evidence.79 The

holding in Blake places the burden of proving the non-existence ofevidence sought for post-conviction DNA testing on the government andnotes that it is insufficient to simply state in an affidavit that no [e]vidence

[was] found for [the] case.80

In Arey v. State, Arey petitioned for post-conviction DNA testing of ablood-stained shirt to be entered into evidence, which he believed would

exonerate him of his first-degree murder conviction.

81

However, hispetition was denied by the trial court on the grounds that the requestedevidence no longer exist[ed].82The circuit court based its finding upon theAssistant Public Defenders report that the requested evidence had longbeen destroyed83and an affidavit by a police sergeant employed from thetime of the conviction to the present with the Evidence Control Unit.84Thesergeant in charge of storing evidence for the local police concluded theevidence no longer existed after he had searched for, and could not find, theevidence or the relevant forms that should have been kept on file.85

On appeal, the court took issue with the lower courts hasty dismissal ofthe petition for post-conviction DNA testing based on an affidavit as to thelimited search conducted.86 In finding for the convicted individual, Areyestablished that a court should not conclude that evidence no longer exists

77. Seeid. at 55.

78. Id.

79. Blake v. State, 909 A.2d 1020, 1026 (Md. 2006) (referencing M.D.CODE ANN.,

CRIM. PROC. 8-201(b) (LexisNexis 2001 & Cum. Supp. 2006) (subject to abrogation in

2013)).

80. Id. at 1031 (finding the state could not satisfy its burden via an unsworn,

unverified memorandum.).

81. Arey v. State, 929 A.2d 501, 504-05 (Md. 2007).

82. Id. at 503.

83. Id.at 505.

84. Id. at 506.

85. Id.

86. Id. at 507.


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until the State performs a reasonablesearch for the requested evidence.87The court of appeals required the State to check any place the evidencecould reasonably be found, unless there is a written record that the evidencehad been destroyed in accordance with then existing protocol.88InArey, a

written record of protocol did not exist.89

A recent case,Horton v. State,90highlighted how expansive the breadth

of the required search must be for such lost evidence. The Maryland Courtof Appeals mandated further inquiry into the existence and location of theevidence, expounding broader parameters for the evidence search than hadbeen previously set out by the court inArey.91

Horton required an evidence search be conducted for potential post-conviction DNA testing related to Hortons first degree rape, aggravatedassault, and burglary convictions.92Under Marylands preservation statute,the state is allowed to dispose of DNA evidence before the completion ofthe convicted individuals sentence if the state notifies the convict, theconvicts attorney, and the Public Defenders office, and a timely objection

is not filed.

93

Hortons petition was originally denied by the circuit courtaltogether based on the States contention that it no longer possessed theDNA sought for testing.94The initial search was unsuccessful in producingthe evidence sought for testing, but the scope of the search was successfullychallenged as insufficient.95

In upholding the challenge to the scope of the search, the court ofappeals relied heavily on Blake.96The court was specifically interested inthe States burden to prove the non-existence of the evidence sought and

took heed of the requirement established in Blake for careful[]verifi[cation] that evidence did not or does not still exist.97Likewise, thecourt of appeals in Horton focused on Areys requirement that the state

87. Id. at 508 (replacing the extensive search language inBlake v. State, 909 A.2d

1020 (Md. 2006) with a reasonable standard in light of administrative concerns).

88. Id.

89. Seeid.

90. 985 A.2d 540 (Md. 2009).

91. CompareHorton, 985 A.2d at 548-49, withArey, 929 A.2d at 508 (requiring the

state to establish the proper protocol for handling and destroying evidence between the time

of conviction and the suspected time of destruction and to exhaust a list of locations where

the evidence might be found).

92. Horton, 985 A.2d at 544-45.

93. Id. at 542.

94. Id. at 541.

95. Id. at 548-49.

96. Id.

97. Id. at 542-43 (citing Blake v. State, 909 A.2d 1020, 1028, 1031 (Md. 2006))

(relying on a report from the National Institute of Justice, not common law, in developing

this holding).


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produce the protocol for evidence destruction in place at the time of trial upuntil the time of the petition.98Horton found that this requirement was notmet even though the State offered an affidavit from the hospital verifyingthat it only retained the rape kit for ten years and, as such, no longer had

possession of the material sought.99

Further proving the point, the Statestressed the fact that Horton also deposed the Administrative Director of

the hospital laboratory who stated that he had searched for the evidence,but was unable to locate it.100

Upon Hortons further requests for the search of additional locations andfor further proof of the protocol and policies in place at the time, the State

filed affidavits of a forensic scientist from the county crime lab and from aworker from the Property/Evidence Unit of the police department.101Bothaffidavits described failed efforts to find the evidence. A copy of a notice

from the Evidence Unit of the police department that the evidence wasslated to be destroyed in 1986 was also presented.102 The notice wasaccompanied by a statement from the current Evidence Unit Manager and

the officer who actually signed the notice that it was procedure to destroyevidence after final appeal of non-capital cases, and that a writ of certiorariwas denied in the defendants case in 1986.103The Evidence Unit worker

also included in his affidavit an entry in a database of closed cases listingHortons as one such case in which the evidence had been destroyed.104The Evidence Unit also produced a Form 526 showing receipt of theevidence by the Unit stamped Case Closed.105Additionally, the countycourts file contained copies of letters dated in 1984 notifying theprosecutor and defense counsel that the physical evidence from Hortonscase was available to be picked up and would be destroyed in such amanner as may be appropriate if left unclaimed.106

The circuit court denied the petition for post-conviction DNA testingfinding: that a more than reasonable inquiry had been conducted, thatthere was no good-faith basis for believing the evidence still existed, andthat the petition failed to establish that the evidence had the potential to beexculpatory even if found.107On appeal, Horton successfully argued that

98. Id.at 544 (citing Arey v. State, 929 A.2d 501, 508 (Md. 2007)).

99. Id. at 545, 549.

100. Id. at 545.

101. Id.at 546.

102. Id.

103. Id. at 546-47.

104. Id. at 546.

105. Id. at 547.

106. Id.

107. Id.


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the proof of non-existence offered by the state was insufficient.108Specifically, he argued that the State did not search a few remaining areasof concern and also failed to completely establish destruction protocol orfurnish affirmative proof that the 1986 statutory destruction approval led to

the evidences actual destruction.109

The following section of this Note willdiscuss the faults in Hortons holding based on the aforementioned

grounds.

B. Evaluation ofHortons Expansive Approach to Searches for LostEvidence

The marked incongruence between post-conviction relief involvingDNA testing and evidence preservation laws creates an unfair legalsituation for individuals attempting to challenge their conviction usingDNA testing. A line must be drawn, and, in fact, was in the few relevantcases including Spaziano,110Blake,111 and then Arey,112concerning whatreasonable efforts the State must make to satisfy its burden in conducting a

search for the evidence sought under an order to produce evidence for post-conviction DNA testing. The search found to be inadequate in Hortonshould be considered reasonable enough to enter into the realm ofcompliance with this precedent. As such, the burden should have shifted tothe petitioner, requiring him to produce facts relating to the evidencesexistence so as to rebut the States original position that the evidence wasdestroyed.

Areyfound the list of most likely places113 to search for evidence inthe National Institute of Justices report, entitled Postconviction DNATesting: Recommendations for Handling Requests, helpful in defining a

reasonablesearch.114However, Areywarned not all of these most likelyplaces will always be relevant in a given case.115In Horton, the court of

appeals found that the microbiology department of the hospital was anadditional site which should have been checked underArey.116This search

would supplement previous searches of the cytology and histologydepartments, and arguably would have been appropriate if, as Horton

108. Id. at 548.

109. Id.

110. Spaziano v. State, 879 So. 2d 51, 55 (Fla. Dist. Ct. App. 2004).

111. Blake v. State, 909 A.2d 1020, 1020 (Md. 2005).

112. Arey v. State, 929 A.2d 501, 508 (Md. 2006).

113. Id.; NATL COMMN ON THE FUTURE OF DNAEVIDENCE,NATL INST.OF JUSTICE,

POSTCONVICTION DNA TESTING: RECOMMENDATIONS FOR HANDLING REQUESTS 46 (1999),

available at http://www.ncjrs.gov/pdffiles1/nij/177626.pdf.

114. SeeArey, 929 A.2d at 507-08.

115. Id. at 508 n.7.

116. Horton v. State, 985 A.2d 540, 549 (Md. 2009).


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claimed, a test for sexually transmitted diseases (STDs) was done on thevictim because such a record would have been kept there.117 However,there was nothing on the record in Horton (unlike the case in Arey) tosupport the courts finding of the additional sites relevancy because there

was no evidence providing reason to believe that such an STD test had infact ever been conducted on the victim.118 Furthermore, the discovery

sought was not made relevant simply based on the unsupported theory thatsome unidentified employee might know something about evidence thatmight exist.119

Also, even if the additional location Horton sought to be searched couldarguably be relevant, Areyqualified its requirement that the State checkany place the evidence could reasonablybe found.120Areymodified thereasonableness required of searches when the State offers a written record

stating that the evidence had been destroyed in accordance with thenexisting protocol.121 The State in Horton physically searched numerouslocations, including: the States Attorneys Office, the circuit court, the

crime laboratory databases, and the hospital premises and database.

122

TheState offered two signed affidavits from forensic evidence scientists stating,respectively, that the evidence was never at the county crime lab and was

no longer at the Central Property Unit (CPU) of the county policedepartment.123Then the county crime laboratory was searched along withthe CPUs computer database, but these efforts turned up nothing.124TheCPU was physically searched start[ing] at opposite ends of the storagearea . . . shelf-by-shelf to the other end looking at every box and a free-standing storage area behind the CPU was also searched.125A search of aclosed-case database contained a reference number for the case that waslinked to a letter notifying the CPU that the evidence could be destroyed.126The State then produced court-issued letters warning the parties that the

evidence was to be destroyed in 1984 if it was not picked up.127The letterswere accompanied by a receipt that indicated that CPU officers retrievedthe evidence after the applicable notice period.128Also, through a face-to-

117. Id. at 547, 549.

118. Id.at 554 (Harell, J., dissenting).

119. Id.

120. Arey, 929 A.2d at 508 (emphasis added).

121. Id.

122. Horton, 985 A.2d at 551-53 (Harell, J. dissenting).

123. Id.

124. Id.

125. Id. at 552-53 (quoting Arthur D. Hanopole, the CPU technician).

126. Id.

127. Id. at 553.

128. Id.


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face meeting with the officer who actually signed-off on the destruction ofthe evidence, the current Evidence/Property Unit Manager established thatit was procedure to destroy such evidence after an appeal was perfected.129The fact remains that all of these search efforts well exceeded the standard

for searches as set out in BlakeandArey.130

The State inHortonoffered awritten record that the evidence had been destroyed in accordance with

then existing protocol.131 Therefore, the standard set out in Arey shouldhave prompted the Maryland Court of Appeals to limit the scope of whatadditional search was required of the State in Horton to satisfy thereasonableness requirement.132

Even if it could be argued that Horton somehow still fell short ofdirectly demonstrating the destruction of the evidence so as to limit thescope of what is a reasonable search,133Arey requires that the State

demonstrate either directly or circumstantially, that the requested evidenceno longer exists to satisfy its burden of persuasion.134If the State did notdo so directly, it surely offered an abundance of circumstantial evidence

proving that the evidence sought was no longer in its possession.

135

As aresult, the burden should have shifted to the convicted individual todemonstrate that the evidence actually exist[ed].136

Furthermore, [t]he purpose of postconviction [sic] discovery is to allowa defendant to gather evidence to support a meritorious claim.137Therefore, where discovery requests amount to a fishing expedition in anattempt to create some doubt [as to the] defendants guilt, they areproperly denied.138As previously stated, exorbitant costs resulting from anoverly broad post-conviction discovery request may be an undue burdenproviding grounds for denial, especially if the test results anticipated are

not very likely to produce a favorable outcome for the defendant.139As a

129. Id.

130. Id.at 555.

131. Id.at 552-53; Arey v. State, 929 A.2d 501, 508 (Md. 2006).

132. Horton, 985 A.2d at 552-53 (Harrell, J., dissenting).

133. Id.at 555.

134. Arey, 929 A.2d at 509.

135. Id.

136. Horton, 985 A.2d at 555 (Harrell, J., dissenting);Arey, 929 A.2d at 509.

137. Commonwealth v. Dubois, 883 N.E.2d 276, 285 (Mass. 2008).

138. People v. Olinger, 680 N.E.2d 321, 343 (Ill. 1997); see,e.g., People v. Moore, 879

N.E.2d 434, 438 (Ill. App. Ct. 2007); People v. Jones, 777 N.E.2d 449, 452 (Ill. App. Ct.

2002) (holding defendant failed to meet the chain of custody requirement by merely stating

that he believed the material was in the possession of the proper authorities and had not

been tampered with because he made absolutely no showing as to where [the] items are

now, some almost fourteen years later, nor done anything to establish a chain of custody

from the Chicago Police Department.).

139. See State v. Fowler, 552 N.W.2d 92, 96-97 (S.D. 1996).


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result of these concerns, even when a petition is granted and discovery ispermitted, court[s] may place limitations on the sources and scope.140Accordingly, the court in Hortonshould have held that the State satisfiedits burden of making reasonable efforts to find the evidence sought under

Arey.

VI.DEALING WITH THE EFFECTS OF EXTENDINGTHE SCOPE OF SEARCHES FOR LOST EVIDENCE

The extreme extension of the scope of searches for evidence in thecontext of post-conviction relief in Hortonweakens the standard of reviewto which a petition for re-testing is meant to be subjected. Horton actsunder the guise of supporting procedures to vindicate the substantive rightsauthorized by DNA access laws. However, review of petitions for post-conviction DNA testing involves evaluating the preservation and custodialprotocol for the evidence in the context of assessing the exculpatory valueof the evidence to the defendant.141The grant or denial of a petition for

post-conviction DNA testing, which may trigger a search for evidence, canhinge on these considerations. For instance, courts have denied suchpetitions on the grounds that the convicted individual did not meet itsburden of establishing a sufficient chain of custody to offer proof thatDNA was collected from the crime scene, has not been altered, and is in thepossession of the proper authorities.142Expanding the scope of evidencesearches under Horton actually broadens the substance of these statutes:

Hortons expansion provides convicts access to extensive evidencesearches when the existence, or rather the non-existence, of the evidenceshould have been evaluated at the initial petition hearing as a factor which

could result in the denial of the petition altogether. Instead, under Horton,the proof offered by the State that the evidence sought no longer exists didnot arise as an issue until after the petition was granted, and by then,substantial time, effort, and money had already been spent on a wild-goosechase for the evidence in question.143

As previously mentioned, in situations where a convicted individualuncovers that evidence has been prematurely or otherwise wrongfullydestroyed under the applicable state evidence preservation law, states havedevised a remedy.144Unfortunately, there is no such remedy available toconvicted individuals when evidence is lost, i.e., state statute permitted thedestruction of the evidence sought and the evidence cannot be found but,

140. State v. Lewis, 656 So. 2d 1248, 1250 (Fla. 1994).

141. SeeJones, 777 N.E.2d at 453.

142. Moore, 879 N.E.2d at 438.

143. Horton v. State, 985 A.2d 540, 555 (Md. 2009) (Harrell, J., dissenting) (referring

to such searches as a hunt for the Grail).

144. Jones, supra note 67.


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because of imperfect preservation and destruction protocol, it is difficult tocurrently establish, and therefore remains uncertain, whether actualdestruction of the evidence indeed occurred. This points to legislativeaction regarding evidence preservation as the best way to gain consistency

with regard to lostpossibly exculpatory evidence but this does not endthe discussion.

InDistrict Attorneys Office v. Osborne, the Court decided in a fivefoursplit the question of whether Osborne had a constitutional right to obtainpost-conviction access to state evidence for DNA testing under the DueProcess Clause of the Fourteenth Amendment which would institute a

national standard for the variant DNA access laws across the states.145After Osbornes conviction for kidnapping, assault, and sexual assault wasaffirmed on appeal, he petitioned for post-conviction relief in the form of

DNA testing utilizing a method which, though available at trial, hisattorney chose not to conduct against his wishes.146The Alaska Court ofAppeals rejected Osbornes petition finding that: his attorneys failure to

seek DNA testing was strategic; the test was likely to be inconclusive;evidence of Osbornes guilt was overwhelming; and it appeared thatOsborne had confessed to the crimes as a condition of his parole

application.147

Osborne proceeded to seek post-conviction relief in federal court byasserting a constitutional right to access the DNA evidence for a testingmethod (short-tandem repeat (STR) testing) he claimed was more advancedthan that available at trial.148 The U.S. District Court for the District ofAlaska dismissed Osbornes petition solely on what it viewed as Osbornespremeditated post-conviction attack on his conviction.149In reversing and

remanding, the U.S. Court of Appeals for the Ninth Circuit express[ed] noopinion as to whether Osborne ha[d] been deprived of a federally protectedright.150 On remand, the U.S. District Court for the District of Alaskarecognized a very limited constitutional right to the testing sought incases, such as Osbornes, where the test was unavailable at trial, it could beeffectuated with little cost to the state, and the results were likely to bematerial.151The Court of Appeals for the Ninth Circuit affirmed, relying on

145. Dist. Attorneys Office v. Osborne, 129 S. Ct. 2308, 2312 (2009) (emphasis

added).

146. Id.at 2314.

147. Id.

148. Id.at 2315.

149. Id.

150. Id. (citing Osborne v. Dist. Attorneys Office, 423 F.3d 1050, 1056 (9th Cir.

2005)).

151. Id.(citing Osborne v. Dist. Attorneys Office, 445 F. Supp. 2d 1079, 1081-82 (D.

Alaska 2006)).


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Brady v. Marylands discussion of the defendants constitutional right to beinformed of exculpatory information of which the state has knowledge,152and implying a duty to preserve exculpatory material after conviction.153

Upon the U.S. Supreme Courts grant of certiorari, Osborne arguedfor a

due process right to post-conviction access to the states DNA evidence.154

He did so based on the language of the Due Process Clause stating norshall any State deprive any person of life, liberty, or property, without dueprocess of law,155 and its interpretation as protecting liberty interestsarising both from the Constitution itself, by reason of guarantees implicitin the word liberty, . . . or . . . from an expectation or interest created by

state laws or policies.156The State of Alaska argued that although the statestatute created a liberty interest for convicted individuals to prove theirinnocence after conviction via a fair trial,157 there is no such entitlement

under the Due Process Clause as a criminal convict has beenconstitutionally deprived of his liberty.158

The majority framed the issue as whether Osborne, who admitted guilt

for a parole application hearing, had a constitutional post-conviction libertyinterest that would trigger the Courts determination of what process (interms of DNA access and preservation) was due.159In finding for the Stateof Alaska, the U.S. Supreme Court persistently voiced its aversion tocreating a new due process right and taking over responsibility for refiningit in light of finality, timing, and administrative concerns.160

Alternatively, the dissent framed the issue as whether the state hadarbitrarily denied the convicted individual of his physical liberty in

fundamental violation of due process, likening the majoritys reasoning tothat made in opposition to recognizing the now-venerable right to counselfor indigent defendants.161 The dissent further stressed the action of

152. Id. (citing Brady v. Maryland, 373 U.S. 83, 86 (1963)). This rule stems from the

fundamental right to a fair trial under the Due Process Clauses of the Fifth and Fourteenth

Amendments. United States v. Agurs, 427 U.S. 97, 107 (1976); see also United States v.

Bagley, 473 U.S. 667, 675 (1985) (stating the right to be informed is intended to ensure

that a miscarriage of justice does not occur).

153. Osborne, 129 S. Ct. at 2336 (Stevens, J., dissenting) (emphasis added).

154. Id.at 2312 (majority opinion).

155. U.S.CONST. amend. XIV, 1.

156. Osborne, 129 S. Ct. at 2331 (Stevens, J., dissenting) (citing Wilkinson v. Austin,

545 U.S. 209, 221 (2005)).

157. SeeALASKA STAT. 12.72.010(4) (2008) (amended 2010).

158. Osborne, 129 S. Ct. at 2320 (majority opinion) (quoting Conn. Bd. of Pardons v.

Dumschat, 452 U.S. 458, 464 (1981)).

159. Id. at 2316.

160. Id.at 2323 (focusing on the novelty of DNA access claims).

161. Id.at 2338 (Stevens, J., dissenting).


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various states to create a right to post-conviction DNA access.162This stateaction coupled with the American Bar Association (ABA) ethical rulerequiring disclosure of all exculpatory evidence,163indicates a trend in notonly the legal community but also society in general towards recognition of

such a due process right which serves the overarching interest of justiceand fairness via identifying actual perpetrators.164

Both the majority and dissenting opinions in Osborne agreed that[f]ederal courts may upset a States postconviction [sic] relief proceduresonly if they are fundamentally inadequate to vindicate the substantiverights provided therein.165 The majority opinion addressed the facial

validity of Alaskas DNA Access Law, but Justice Souters dissent,choosing to forgo the issue of a free-standing substantive due process rightto DNA access altogether, found the statutes facial validity could not

rectify the fact that the state demonstrated a combination ofinattentiveness and intransigence in applying its state-created right toaccess DNA evidence which add up to procedural unfairness that violates

the Due Process Clause.

166

The quandary, highlighted by the majority, of how to harness DNAspower to prove innocence without unnecessarily overthrowing theestablished system of criminal justice is patent.167But, when our currentsystem of justice includes DNA access laws for the exoneration of thewrongfully-convicted and punishment of the true perpetrators, those goalsdo not seem adequately vindicated by a procedural system allowing for thedestruction of evidence while an individual is still incarcerated. Theseprotocols deprive those with the potential for obtaining a court order forpost-conviction DNA testing the ability to effectuate that state-created

right.168 A system so conducive to lost evidence truly offends someprinciple of justice so rooted in the traditions and conscience of ourpeople.169

Frustratingly, the expansive evidence searches we are left with donothing to address this lostevidence problem and actually raise the same

162. Id.at 2335.

163. MODEL RULES OF PROFL CONDUCT R. 3.8 (g)-(h) (2009), reprinted in STEPHEN

GILLERS ET AL., REGULATION OF LAWYERS: STATUTES AND STANDARDS 283-84 (2010 ed.

2010).

164. Osborne, 129 S. Ct. at 2337-38 (Stevens, J., dissenting).

165. Id.at 2320 (majority opinion).

166. Id. at 2343 (Souter, J., dissenting).

167. Id. at 2316 (majority opinion).

168. See id. at 2340 (Souter, J., dissenting) (citing Evitts v. Lucey, 469 U.S. 387, 393

(1985)).

169. Id. at 2332 (Stevens, J., dissenting) (citing Medina v. California, 505 U.S. 437,

446 (1992)).


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finality and administrative concerns the U.S. Supreme Court majority in

Osbornehad expressed with regard to the policy decisions necessitated byrecognition of a due process right to DNA access.170 Those policydecisions are admittedly formidable how and how long should evidence

be required to be preserved and retained under any national legislationdevised? What are the feasible limits on the preservation of evidence?

What is the cumulative effect on DNA testing at the trial stage?

A. Logistical Issues with Increasing Evidence Preservation to PreventLost Evidence

Sample deterioration remains a serious issue with regard to lostevidence; the natural process of DNA sample deterioration over timeimposes an inevitable limit on DNA preservation.171 A second issueconcerns the requisite determination that the evidence sought for testinghas not experienced environmental insult, whereby the evidence has beenexposed to temperature, light, humidity, biological, or chemical

contamination, causing degraded fragments to become too small to serveas templates for replication.172 Judges will not necessarily have therequisite level of scientific understanding on which to base decisions as topreservation efficacy, so the court will necessarily rely on experts forstorage protocol and variation amongst retention techniques could makecomparison difficult.173

Another logistical problem with simply increasing evidence preservationis that there is clearly limited funding available and, therefore, limitedspace and technology accessible for evidence preservation. For example,preservation of DNA evidence may be conducted by refrigeration ifnecessary, in order to maintain the integrity of the evidence, and the abilityto conduct forensic and DNA testing.174However, custodial entities may

not [be] required to preserve evidence that is of such a size, bulk, orphysical character as to render retention impracticable.175

170. Id.at 2322-23 (majority opinion).

171. Lawrence Kobilinsky, Recovery and Stability of DNA in Samples of Forensic

Science Significance, 4 FORENSIC SCI.REV. 67, 72-73 (1992).

172. SeeGeorge F. Sensabaugh & Cecilia Von Beroldingen, The Polymerase Chain

Reaction: Application to the Analysis of Biological Evidence, in FORENSIC DNA

TECHNOLOGY63, 75-76 (Mark A. Farley & James J. Harrington eds., 1991).

173. People v. Karpeles, 549 N.Y.S.2d 903, 908 (N.Y. Crim. Ct. 1989).

174. METRO. POLICE OF D.C., SPECIAL ORDER: RECORDS RETENTION AND EVIDENCE

PRESERVATION (MILLICENT ALLEWELT ACT OF 2004) 4, available at http://www.justice

online.org/dcmpd/SO0603.pdf.

175. Id.


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B. Lost Evidence to Spur DNA Testing?

A recent study estimates that there are 389 publicly funded forensiccrime laboratories currently operating in the U.S. that have received

evidence from almost three million criminal cases.176 These laboratories

are staffed by individuals with a wide range of training and expertise. 177Itis also well known that the forensic science community consistently

endures working with a lack of resources, standardization, and funding.178The emergence and evolution of DNA access laws and evidencepreservation laws causes these under-funded and understaffed laboratoriesto be inundated with caseworkresulting in severe backlogs whichthreaten the efficient and timely resolution of these cases.179For example,[t]he National Institute of Justice (NIJ) estimates that the current backlog

of rape and homicide casesaloneis approximately 350,000.180Initialestimates by NIJ set the number of collected, untested convicted offendersamples at between [two hundred thousand] and [three hundred thousand].NIJ also estimates that there are between [five hundred thousand] and [one

million] convicted offender samples, which are required under law but notyet collected.181

C. Increased Use of DNA Testing in Litigation with Increased TrialTimes

Due toHortons undercutting of the standard of review of petitions forpost-conviction DNA testing, incarcerated individuals hold an increased

ability to obtain a search for evidence with less exculpatory potential.Understandably, some sensationalism has attached to cases, such asAnderson, where a convict is exonerated by some small shred of

176. MATTHEW R. DUROSE, U.S. DEPT OF JUSTICE, BUREAU OF JUSTICE STATISTICSBULLETIN:CENSUS OF PUBLICLY FUNDED FORENSIC CRIME LABORATORIES,2005, 3 (2008),

available athttp://bjs.ojp.usdoj.gov/content/pub/pdf/cpffcl05.pdf.

177. Id. at 2 tbl.2.

178. NATL RESEARCH COUNCILOF THENATL ACADS.,supranote 32, at XIX (noting

that funding and staffing problems negatively affect the quality of testing available to the

legal system).

179. Reauthorization and Improvement of DNA Initiatives of the Justice For All Act of

2004: Hearing on the Justice for All Act of 2004 Before the H. Subcomm. on Crime,

Terrorism, and Homeland Security, 110th Cong. 1-2 (2008) (statement of Peter M. Marone,

Chairman, Consortium of Forensic Science Organizations), http://judiciary.house.gov/

hearings/pdf/ Marone080410.pdf [hereinafterImprovement of DNA Initiatives].

180. Press Release, U.S. Dept of Justice, Fact Sheet: The Presidents Initiative to

Advance Justice Through DNA Technology (Mar. 11, 2003) [hereinafter Fact Sheet],

available at http://www.ojp.usdoj.gov/archives/pressreleases/2003/DNA-over.htm. In

response to backlogs, post-conviction testing can be outsourced to private laboratories, but

private testing is very costly.Improvement of DNA Initiatives,supra note 179, at4.

181. Fact Sheet, supranote 180.


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exculpatory evidence after years of incarceration.182 Situations thatreceive far less public attention, but [which] are nonetheless much morecommon . . . are cases where inmates seek post-conviction DNA testing,but the results confirm their guilt. This phenomenon has become so

widespread that it has overwhelmed state prosecutors offices, dramaticallyhampering their ability to process meritorious claims.183Post-conviction

testing confirms the petitioners guilt in almost sixty percent of cases, andthe process from the filing of the petition to completion of the testing maytake several years based on the facts of each case.184Furthermore, a singlesuch unmeritorious petition not only wastes hours of precious prosecutorialtime but puts the victim through the grief and pain of doubting theresolution of [the] ordeal.185

VII. CONCLUSION

Some states offer broadly applicable post-conviction relief availableunder DNA access laws,186 while others place various limits on such

laws,187

and some have no such laws whatsoever.188

State statutes allowingpetitions for post-conviction DNA testing are comparatively new and this isreflected in their varying approaches to testing, particularly regarding theburdens held.189

Even if one successfully petitions to obtain DNA testing, there stillremains the real and serious possibility that the evidence sought to be testedno longer exists. The Innocence Protection Act contains a qualifiedpreservation requirement for federal offenses.190Unfortunately, for all non-federal convictions the approaches taken by the states vary greatly. Theresulting quandary faced by convicted individuals attempting to locatepotentially exculpatory evidence on which to conduct modern post-conviction DNA testing may be that the laws of their state have statutorily

permitted the destruction of that very evidence years earlier and as such,


183. Tonja Jacobi & Gwendolyn Carroll, Acknowledging Guilt: Forcing Self-

Identification in Post-Conviction DNA Testing, 102 NW. U. L. REV. 263, 263-64 (2008)

(describing the administrative drawbacks to DNA Access Laws) (citations omitted).

184. Id. at 270 & n.27.

185. Carroll, supra note 42, at 666-67.

186. See,e.g., N.H.REV. STAT. ANN. 651-D:2 (LexisNexis 2007) (amended 2010);

N.C.GEN.STAT. 15A-267 (2009).

187. See,e.g., LA.CODE CRIM.PROC.ANN.art. 926.1 (2008 & Supp. 2010); VT.STAT.

ANN.tit.13, 5561 (2009).

188. DNA Access Laws, supra note 20. Massachusetts and Oklahoma are the onlystates that have not enacted DNA access laws.Id.

189. Carroll, supra note 42.

190. 18 U.S.C. 3600(b)(2) (2006).


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that evidence is gone forever or is lost in that the evidences destructioncannot be affirmatively established due to flawed destruction protocol.191

The scope of searches for lost evidence has reached its greatestextension in Horton.192 Horton extended the right to pursue post-

conviction testing of DNA evidence by exploiting current evidencepreservation inconsistencies.193 This exploitation allows convictedindividuals to instigate expansive search efforts for evidence in long-decided cases by petitioning to test evidence even when there is a strongindication that such evidence no longer exists due to official destruction.By allowing and requiring such expansive searches, convicts are able to

significantly circumvent the burden that accompanies a petition for post-conviction DNA testing, triggering an order for such a search.The scope ofsearches for potentially exculpatory DNA evidence should incorporate, not

obliterate, the standard of review for post-conviction DNA testing petitions.This requires balancing the suppression of frivolous and extraneoussearches without thwarting reasonable searches on behalf of those with

genuine claims of innocence.Hortons extension of the scope of searches for lost evidence offers noremedy for convicted individuals whose evidence has been lost under theapplicable evidence preservation statute.194In Osborne, the U.S. SupremeCourt feared that by constitutionalizing post-conviction DNA access itwould be forced to take over the issue entirely by itself and preferred toleave in place the current variant and fragmented state DNA access laws ittermed a prompt and considered legislative response rather than fashion ajudicially-created, nation-wide standard.195 As such, the opinion leftunanswered the question of a constitutional obligation to preserve forensic

evidence and, consequentially, also left intact the patch-work system ofstate evidence preservation laws conducive to the lostevidence problem.196

There are legitimate obstacles to the accomplishment of a nation-widestandard for evidence preservation. Adherence to a uniform preservation

system with harmonized, consistent protocol for evidence preservationoffers the only hope for actually addressing the problem of lostevidence. Ifsuch a system were achieved, the wild-goose chase searches improperlysanctioned by cases such asHorton, and their corollarynegative effects onthe judicial system will then necessarily become obsolete.

191. See,e.g., ARK.CODE ANN. 12-12-104 (2009); GA.CODE ANN. 17-5-56 (2008).

192. SeeHorton v. State, 985 A.2d 540, 547-49 (Md. 2009).

193. Id.

194. Id.

195. Dist. Attorneys Office v. Osborne, 129 S. Ct. 2308, 2322 (2009).

196. Id.at 2323.

Documents

A Quest for Exculpatory DNA Evidence or a Wild-Goose Chase? Expansion of Searches for Lost Evidence Under Horton v. State of Maryland