A Quest for Exculpatory DNA Evidence or a Wild-Goose Chase? Expansion of Searches for Lost Evidence Under Horton 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 some cases, also exonerated the wrongly-convicted.1 For example, on December 14, 1982, a jury convicted eighteen-year-old Marvin Anderson of robbery, forcible sodomy, abduction, and two counts of rape, resulting in a 210 year prison sentence.2 The Virginia Bureau of Forensic Science performed conventional scientific blood serum testing3 on the sperm samples taken from the victims body.4 The results of those tests were inconclusive.5 When modern DNA testing became available, Anderson sought to clear his name by petitioning for post-conviction DNA testing of the samples.6 Although Anderson was told that the rape kit from the case and its contents were destroyed, the Innocence Project accepted Andersons case.7 In 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 at http://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) [hereinafter Marvin Anderson]. 3. R.E. GAENSSLEN, NATL INST. OF JUSTICE (NIJ), SOURCEBOOK IN FORENSIC SEROLOGY, IMMUNOLOGY, AND BIOCHEMISTRY 671 (1983) (describing this antiquated testing method). 4. See Marvin Anderson, supra note 2. 5. Id. 6. Id. 7. INNOCENCE PROJECT, Home, http://www.innocence project.org (last visited Mar.

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the Innocence Project obtained information that physical evidence from the case had been located, contrary to laboratory policy, in the notebook of the forensic 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 Virginia Department of Criminal Justice Services denied Andersons request for post-conviction DNA testing because: (1) there was already a large volume of pending cases, and (2) he wanted to avoid setting unwelcome precedent.9 The next month, the State of Virginia adopted Virginia Code section 19.2-327.1, which permits the filing of a [m]otion by a convicted felon for scientific analysis of . . . previously untested scientific evidence . . . .10 The new law officially allowed Anderson to petition for post-conviction DNA testing.11 Though the sample was heavily degraded, test results excluded Anderson as the perpetrator.12 After serving fifteen years 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, contrary to proper protocol, decides to retain evidence swabs in a notebook.14 Likewise, accused persons are rarely lucky enough to encounter a curious district attorney who decides to save a box of evidence from a courthouse dumpster,15 a law student who discovers two boxes of evidence in a courthouse basement after seven years,16 or a prosecutor who decides arbitrarily 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, supra note 2. 9. Id. 10. Id.; VA. CODE ANN. 19.2-327.1 (2008). 11. Marvin Anderson, supra note 2. 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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destroyed.17 The Innocence Protection Act,18 part of the Justice for All Act,19 provides federal funding to states for the general operation of forensic laboratories and, more specifically, for post-conviction DNA testing. However, there is great diversity among state laws regarding postconviction access to modern DNA testing; these laws are known collectively as DNA access laws.20 Additionally, many states do not have laws requiring the preservation of evidence so as to provide convicted felons the opportunity to petition for post-conviction DNA testing, which could potentially exonerate them.21 This Note will address the consequences of evidence sought for postconviction DNA testing when that evidence can neither be found nor declared definitively destroyed. Additionally, this Note will discuss the gray area of lost evidence: evidence properly slated for disposal under the relevant preservation statute, but which the convicted individual argues still exists. Such instances expose the gaping cracks through which forensic evidence can fall under the current patchwork of incongruent DNA access laws and evidence preservation laws across the United States. As such, convicted individuals seeking post-conviction relief may be left without recourse because the potentially exculpatory evidence sought for testing is gone. Recent attempts by courts to rectify the lost evidence problem through the order of extensive evidence searches are an improper drain on the criminal justice system and do little to actually address the cause of the lost evidence problem. Nation-wide standardization of evidence preservation offers a resolution to the issue of lost evidence, but may not be easily obtainable. Part II of this Note will relate the history of DNA testing and its evolution 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/cgibin/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 access laws will be explored in Part III. Part IV will discuss preservation of evidence laws and the incongruence between these statutes and state DNA access laws that create preservation gaps, providing the opportunity for evidence to become lost. Part V will detail the various ways that evidence becomes lost and the ramifications, or lack thereof, for the loss of such evidence. Searches for lost evidence and the recent expansion of such searches required by Horton v. State22 will also be highlighted in Part V. Part VI will focus on the effects of requiring more expansive search efforts in the context of limited DNA preservation under state law. Part VII will draw conclusions with regard to expansive lost evidence searches while providing an inventory of possible ways to address searches for lost evidence. II. HISTORY OF DNA AS 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 units taken together are nucleotides, which are the raw building blocks of DNA.23 It was concluded that 99.99% of DNA nucleotide sequences are identical among all people (those sequences for two hands, ten toes, etc.) and 100% of a persons DNA is the same within and throughout a human beings body (meaning that DNA found in blood, mucus, sweat, saliva, hair, bone, or teeth will all be the same).24 However, 0.01% of DNA differs from person to person, and forensic scientists use those few differences to form DNA profiles.25 Older methods of DNA testing were limited in their use because only samples in near-pristine condition allowed for successful profiling.26 This requisite sample condition was not always achievable due to the unstable nature of the bodily material from which DNA is extracted.27 The unfortunate result was that often testing was restricted to only a single attempt.28 In response to these difficulties, scientists probed further into

985 A.2d 540 (Md. 2009). AM. PROSECUTORS RESEARCH INST., SPECIAL TOPICS SERIES, FORENSIC DNA FUNDAMENTALS FOR THE PROSECUTORBE NOT AFRAID 3 (2003) [hereinafter APRI], available at http://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. See id. 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 STR MARKERS 3-5 (2001).

22. 23.

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other testing methods and ultimately developed a method for replicating DNA from a small pre-existing sample, which allowed for more testing from partially-degraded samples without exhausting all of the evidence during analysis.29 During this period of transition in DNA testing technology, many cases were still decided using the more rudimentary testing method then available.30 In many of those cases, suspects were unable to benefit from the advancements made in this area of forensic science.31 Modern DNA testing has exposed the fact that testimony and information used to try defendants during the period of inferior forensic science may have contributed to wrongful convictions of innocent people.32 III. DNA ACCESS LAWS A. Limited Accessibility to Last Resort Efforts for Post-Conviction Relief Several states suggest that the purpose of post-conviction DNA testing is to provide an avenue for convicted defendants who maintained their innocence to test available genetic material capable of producing new and dramatic evidence materially relevant to the question of innocence.33 The plain language of the DNA access laws of several states supports this interpretation.34 These laws extend access to post-conviction DNA testing only in instances where the petitioner was convicted following a trial.35 Therefore, as a matter of law, defendants who plead guilty may not avail themselves of [DNA access laws]. Those defendants are a separate group

APRI, supra note 23, at 7. See id. See RICHARD SAFERSTEIN, CRIMINALISTICS: AN INTRODUCTION TO FORENSIC SCIENCE 361-73 (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: A PATH FORWARD 4 (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.

29. 30. 31.

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who have not contested identity at trial.36 Conversely, other states with similar DNA access laws interpret limiting post-conviction DNA testing to those who contested guilt at trial as inconsistent with the purpose of the statute.37 Likewise, the substantive relief offered by DNA access laws differs greatly from state to state. Some states provide sweeping relief under DNA access laws by allowing any convict to petition for DNA testing at any time after conviction.38 Other states limit their DNA access laws to certain offenses or sentences.39 Still others limit access to post-conviction DNA testing by placing an expiration date on the statute that gives convicts the power to file such petitions.40 Some states, such as Michigan, use several of these limiting factors simultaneously to further chip away at the class of convicted individuals to whom post-conviction DNA testing is accessible.41 B. The Malleable Standard of Review Applicable to Petitions for Post-Conviction DNA Testing States also differ regarding the burdens statutorily imposed upon the parties regarding petitions for post-conviction DNA testing.42 A post-

36. Id.; see Stewart v. State, 840 So. 2d 438, 438 (Fla. Dist. Ct. App. 2003) (finding that the statutory language has been tried and 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 in Lindsey 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, 119 P.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 postconviction 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 to discovery;43 therefore, the decision to authorize discovery during postconviction relief is a matter left to the courts sound discretion.44 This general court discretion to authorize or deny such petitions not only does little to establish the actual parameters by which these petitions may be evaluated, but, as discussed later in this Note, causes confusion regarding how discovery of this evidence should be conducted once such a petition is granted. Decisions relating to petitions for post-conviction DNA testing have offered some guidance as to how courts have previously used the discretion afforded them in evaluating final efforts for post-conviction relief.45 Case law agrees that the DNA testing method used must at least satisfy the Daubert standard for scientific reliability.46 Likewise, because convicted defendants may not obtain reconsideration of their cases whenever some new technology promises to reveal another angle on the evidence against them, 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 stage if the requested evidence could have been obtained at trial.48 Courts have denied post-conviction DNA testing petitions on the grounds that the convicted individual did not meet the burden of establishing a sufficient chain of custody to offer proof that DNA was collected from the crime scene, has not been altered, and is in the

World of Post-Conviction DNA Testing, 97 J. CRIM. L. & CRIMINOLOGY 665, 668-69 (2007). 43. Miller v. State, 1 So. 3d 1073, 1079 (Ala. Crim. App. 2007) (holding that postconviction 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)); see Lewis, 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 reliability will be based upon scientific validity. Daubert, 509 U.S. at 590 n.9. 47. Jenner, 590 N.W.2d at 472 (citing Dumond, 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.49 Additionally, it is well established that a petition for post-conviction DNA testing should be denied if it imposes an unreasonable burden on the State50 including, but not limited to, the imposition of exorbitant costs.51 Once a court finds that the convicted individual has met this burden, the burden shifts to the state to establish 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 petition on those grounds.52 The shift of the burden from the convicted individual to the state is logical because the [s]tate gather[s] the evidence and [i]s the custodian of the evidence.53 However, this burden places the state in an awkward position of establishing the DNA samples non-existence. A states preservation statute which provides for the destruction of evidence can make this burden almost impossible to satisfy if the proper protocol for destruction is not followed. As such, this burden highlights how a states applicable evidence preservation law becomes critical in the courts decision to deny or grant a petition for post-conviction DNA testing. The applicable evidence preservation statute also impacts the scope of searches required to be conducted by the State in finding or proving the nonexistence of the DNA evidence. IV. PRESERVATION OF POST-CONVICTION EVIDENCE The array of post-conviction preservation of evidence laws across the nation is as wide and diverse as that for DNA access laws.54 In terms of federal law, the section Preservation of Biological Evidence of the Innocence Protection Act, states: The Government shall preserve biological evidence that was secured in the investigation or prosecution of a Federal offense, if a defendant is under a sentence of imprisonment for such offense.55 Though a few states integrate language regarding evidence preservation directly 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 map visualizing 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.57 Such statutes limit the ability of convicted individuals who have already completed their sentence to exonerate themselves.58 Even the most generous state preservation statutes, such as the California statute, not only establish that the government entity charged with preservation has the discretion to determine the means by which the evidence is retained, so long as it remains in a condition suitable for DNA testing, but also permit the state to dispose of biological evidence before the proscribed period of time has passed under the preservation statute.59 Such language typifies circumstances under which a government agency may give notice and dispose of biological material even though someone is incarcerated in connection with the case.60 Evidence preservation statutes across the country include a plethora of mandates on when evidence must be preserved as well as on the duration of preservation. New Hampshire requires evidence preservation for the longer of five years or the duration of custody, but upon filing of a petition, the statute allows the court to destroy or otherwise dispose of biological material after [five] years even if a person connected with the case is still in custody.61 Arkansas bases its preservation period on the underlying offense, setting a 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 use in 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.; see MICH. 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 at http://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-year requirement for any other felony conviction.62 Georgia, apparently less concerned with the loss of potentially exculpatory evidence, proscribes a ten-year maintenance period for serious violent felon[ies], but [e]vidence in all other felony and misdemeanor cases may be purged after the duration of the criminal trial, unless the punishment involves the death penalty.63 The destruction of potentially exculpatory evidence is further at risk in Washington State, where the sentencing court may order the preservation of evidence and specify the period of preservation.64 Nineteen states have no laws specifically requiring any preservation of evidence even though DNA access laws potentially provide for its testing.65 On the chance that a convicted individuals petition for post-conviction DNA testing is granted and the applicable preservation law mandated the evidence at issue be retained, a larger issue then is whether the evidence still exists or has been permitted to be destroyed under the relevant preservation statute. This predicament presents the issue of lost evidence around which this Note revolves. Although both the standard of review courts must employ in evaluating a post-conviction DNA testing petition and the burdens held in this process are at best unclear, the possibility that the evidence sought has been lost obviously provides the convicted individual with even greater concerns. V. LOST EVIDENCE Not all states have protocols to preserve biological evidence for a period long enough to give effect to granted petitions for post-conviction DNA testing because, as previously discussed, some states have provided statutory authority for the destruction of such evidence after conviction.66 The result is the loss of evidence which a convicted individual may claim as possibly exculpatory. A statutory remedy is provided for the premature or wrongful post-conviction destruction of evidence.67 However, it is uncertain what type of a search would satisfy the burden placed upon the State to establish that it no longer possesses the DNA evidence requested

ARK. CODE ANN. 12-12-104(b)(2) (2009). GA. CODE ANN. 17-5-56(b) (2008). WASH. REV. CODE ANN. 10.73.170 (West 2009). Preservation of Evidence Laws, supra note 54. 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.).

62. 63. 64. 65. 66.

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under the applicable DNA preservation statute allowing for the evidences destruction. No state or federal statute has effectively addressed instances where, after the relevant preservation period has passed, there is no affirmative 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 lost evidence and the consequences of the loss of such evidence are unclear. A. Requirements upon States to Establish the Non-Existence of EvidenceLost Evidence In Spaziano v. State, Spaziano was convicted twenty-seven years earlier for rape and aggravated battery.69 On appeal, he challenged the denial of an evidentiary hearing on the States compliance with an order granting the petition for post-conviction DNA testing.70 The State claimed that it attempted to abide by the order requiring DNA testing, but upon searching for the evidence sought, found that practically all of the evidence under the control of the Sheriffs Office had been destroyed decades earlier.71 The State subsequently filed a notice of compliance which included e-mails from the County Evidence Supervisor and employees of the Sheriffs department to this effect.72 Spaziano argued that the State had not complied with Florida law regarding evidence preservation and requested a hearing.73 Initially the hearing was denied, however, the denial was vacated74 based on precedent which firmly established that if a factual dispute existed as to Spazianos motion for DNA testing, then the trial court should conduct an evidentiary hearing to resolve it.75 However, the court of appeals cautioned that once this hearing was provided to Spaziano, case law provides that dismissal of the 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 conduct further 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.77 The court of appeals remanded the case on the basis of the lack of a hearing with limitations on the scope of discovery and, as such, did not qualify Spazianos claims that the States representations of the non-existence of the evidence failed to adequately describe the efforts made to find the evidence and that the documents evidencing destruction were illegible.78 In Blake v. State, the court of appeals conceded that the relevant state statute for petitions for post-conviction DNA testing did not contemplate circumstances where the evidence has been destroyed . . . or where there is a factual dispute over the existence of DNA testing evidence.79 The holding in Blake places the burden of proving the non-existence of evidence sought for post-conviction DNA testing on the government and notes 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 a blood-stained shirt to be entered into evidence, which he believed would exonerate him of his first-degree murder conviction.81 However, his petition was denied by the trial court on the grounds that the requested evidence no longer exist[ed].82 The circuit court based its finding upon the Assistant Public Defenders report that the requested evidence had long been destroyed83 and an affidavit by a police sergeant employed from the time of the conviction to the present with the Evidence Control Unit.84 The sergeant in charge of storing evidence for the local police concluded the evidence no longer existed after he had searched for, and could not find, the evidence or the relevant forms that should have been kept on file.85 On appeal, the court took issue with the lower courts hasty dismissal of the petition for post-conviction DNA testing based on an affidavit as to the limited search conducted.86 In finding for the convicted individual, Arey established that a court should not conclude that evidence no longer exists

See id. at 55. Id. 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.

77. 78. 79.

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until the State performs a reasonable search for the requested evidence.87 The court of appeals required the State to check any place the evidence could reasonably be found, unless there is a written record that the evidence had been destroyed in accordance with then existing protocol.88 In Arey, a written record of protocol did not exist.89 A recent case, Horton v. State,90 highlighted how expansive the breadth of the required search must be for such lost evidence. The Maryland Court of Appeals mandated further inquiry into the existence and location of the evidence, expounding broader parameters for the evidence search than had been previously set out by the court in Arey.91 Horton required an evidence search be conducted for potential postconviction DNA testing related to Hortons first degree rape, aggravated assault, and burglary convictions.92 Under Marylands preservation statute, the state is allowed to dispose of DNA evidence before the completion of the convicted individuals sentence if the state notifies the convict, the convicts attorney, and the Public Defenders office, and a timely objection is not filed.93 Hortons petition was originally denied by the circuit court altogether based on the States contention that it no longer possessed the DNA sought for testing.94 The initial search was unsuccessful in producing the evidence sought for testing, but the scope of the search was successfully challenged as insufficient.95 In upholding the challenge to the scope of the search, the court of appeals relied heavily on Blake.96 The court was specifically interested in the 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.97 Likewise, the court of appeals in Horton focused on Areys requirement that the state
87. Id. at 508 (replacing the extensive search language in Blake v. State, 909 A.2d 1020 (Md. 2006) with a reasonable standard in light of administrative concerns). 88. Id. 89. See id. 90. 985 A.2d 540 (Md. 2009). 91. Compare Horton, 985 A.2d at 548-49, with Arey, 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 up until the time of the petition.98 Horton found that this requirement was not met even though the State offered an affidavit from the hospital verifying that 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 State stressed 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 and for 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 a worker from the Property/Evidence Unit of the police department.101 Both affidavits described failed efforts to find the evidence. A copy of a notice from the Evidence Unit of the police department that the evidence was slated to be destroyed in 1986 was also presented.102 The notice was accompanied by a statement from the current Evidence Unit Manager and the officer who actually signed the notice that it was procedure to destroy evidence after final appeal of non-capital cases, and that a writ of certiorari was denied in the defendants case in 1986.103 The Evidence Unit worker also included in his affidavit an entry in a database of closed cases listing Hortons as one such case in which the evidence had been destroyed.104 The Evidence Unit also produced a Form 526 showing receipt of the evidence by the Unit stamped Case Closed.105 Additionally, the county courts file contained copies of letters dated in 1984 notifying the prosecutor and defense counsel that the physical evidence from Hortons case was available to be picked up and would be destroyed in such a manner as may be appropriate if left unclaimed.106 The circuit court denied the petition for post-conviction DNA testing finding: that a more than reasonable inquiry had been conducted, that there was no good-faith basis for believing the evidence still existed, and that the petition failed to establish that the evidence had the potential to be exculpatory even if found.107 On appeal, Horton successfully argued that

98. 99. 100. 101. 102. 103. 104. 105. 106. 107.

Id. at 544 (citing Arey v. State, 929 A.2d 501, 508 (Md. 2007)). Id. at 545, 549. Id. at 545. Id. at 546. Id. Id. at 546-47. Id. at 546. Id. at 547. Id. Id.

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the proof of non-existence offered by the state was insufficient.108 Specifically, he argued that the State did not search a few remaining areas of concern and also failed to completely establish destruction protocol or furnish affirmative proof that the 1986 statutory destruction approval led to the evidences actual destruction.109 The following section of this Note will discuss the faults in Hortons holding based on the aforementioned grounds. B. Evaluation of Hortons Expansive Approach to Searches for Lost Evidence The marked incongruence between post-conviction relief involving DNA testing and evidence preservation laws creates an unfair legal situation for individuals attempting to challenge their conviction using DNA testing. A line must be drawn, and, in fact, was in the few relevant cases including Spaziano,110 Blake,111 and then Arey,112 concerning what reasonable efforts the State must make to satisfy its burden in conducting a search for the evidence sought under an order to produce evidence for postconviction DNA testing. The search found to be inadequate in Horton should be considered reasonable enough to enter into the realm of compliance with this precedent. As such, the burden should have shifted to the petitioner, requiring him to produce facts relating to the evidences existence so as to rebut the States original position that the evidence was destroyed. Arey found the list of most likely places113 to search for evidence in the National Institute of Justices report, entitled Postconviction DNA Testing: Recommendations for Handling Requests, helpful in defining a reasonable search.114 However, Arey warned not all of these most likely places will always be relevant in a given case.115 In Horton, the court of appeals found that the microbiology department of the hospital was an additional site which should have been checked under Arey.116 This search would supplement previous searches of the cytology and histology departments, and arguably would have been appropriate if, as Horton

Id. at 548. Id. Spaziano v. State, 879 So. 2d 51, 55 (Fla. Dist. Ct. App. 2004). Blake v. State, 909 A.2d 1020, 1020 (Md. 2005). Arey v. State, 929 A.2d 501, 508 (Md. 2006). Id.; NATL COMMN ON THE FUTURE OF DNA EVIDENCE, NATL INST. OF JUSTICE, POSTCONVICTION DNA TESTING: RECOMMENDATIONS FOR HANDLING REQUESTS 46 (1999), available at http://www.ncjrs.gov/pdffiles1/nij/177626.pdf. 114. See Arey, 929 A.2d at 507-08. 115. Id. at 508 n.7. 116. Horton v. State, 985 A.2d 540, 549 (Md. 2009).

108. 109. 110. 111. 112. 113.

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claimed, a test for sexually transmitted diseases (STDs) was done on the victim because such a record would have been kept there.117 However, there was nothing on the record in Horton (unlike the case in Arey) to support the courts finding of the additional sites relevancy because there was no evidence providing reason to believe that such an STD test had in fact ever been conducted on the victim.118 Furthermore, the discovery sought was not made relevant simply based on the unsupported theory that some unidentified employee might know something about evidence that might exist.119 Also, even if the additional location Horton sought to be searched could arguably be relevant, Arey qualified its requirement that the State check any place the evidence could reasonably be found.120 Arey modified the reasonableness required of searches when the State offers a written record stating that the evidence had been destroyed in accordance with then existing protocol.121 The State in Horton physically searched numerous locations, including: the States Attorneys Office, the circuit court, the crime laboratory databases, and the hospital premises and database.122 The State 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 police department.123 Then the county crime laboratory was searched along with the CPUs computer database, but these efforts turned up nothing.124 The CPU was physically searched start[ing] at opposite ends of the storage area . . . shelf-by-shelf to the other end looking at every box and a freestanding storage area behind the CPU was also searched.125 A search of a closed-case database contained a reference number for the case that was linked to a letter notifying the CPU that the evidence could be destroyed.126 The State then produced court-issued letters warning the parties that the evidence was to be destroyed in 1984 if it was not picked up.127 The letters were accompanied by a receipt that indicated that CPU officers retrieved the evidence after the applicable notice period.128 Also, through a face-to-

117. 118. 119. 120. 121. 122. 123. 124. 125. 126. 127. 128.

Id. at 547, 549. Id. at 554 (Harell, J., dissenting). Id. Arey, 929 A.2d at 508 (emphasis added). Id. Horton, 985 A.2d at 551-53 (Harell, J. dissenting). Id. Id. Id. at 552-53 (quoting Arthur D. Hanopole, the CPU technician). Id. Id. at 553. Id.

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face meeting with the officer who actually signed-off on the destruction of the evidence, the current Evidence/Property Unit Manager established that it was procedure to destroy such evidence after an appeal was perfected.129 The fact remains that all of these search efforts well exceeded the standard for searches as set out in Blake and Arey.130 The State in Horton offered a written record that the evidence had been destroyed in accordance with then existing protocol.131 Therefore, the standard set out in Arey should have prompted the Maryland Court of Appeals to limit the scope of what additional search was required of the State in Horton to satisfy the reasonableness requirement.132 Even if it could be argued that Horton somehow still fell short of directly demonstrating the destruction of the evidence so as to limit the scope of what is a reasonable search,133 Arey requires that the State demonstrate either directly or circumstantially, that the requested evidence no longer exists to satisfy its burden of persuasion.134 If the State did not do so directly, it surely offered an abundance of circumstantial evidence proving that the evidence sought was no longer in its possession.135 As a result, the burden should have shifted to the convicted individual to demonstrate that the evidence actually exist[ed].136 Furthermore, [t]he purpose of postconviction [sic] discovery is to allow a defendant to gather evidence to support a meritorious claim.137 Therefore, where discovery requests amount to a fishing expedition in an attempt to create some doubt [as to the] defendants guilt, they are properly denied.138 As previously stated, exorbitant costs resulting from an overly broad post-conviction discovery request may be an undue burden providing grounds for denial, especially if the test results anticipated are not very likely to produce a favorable outcome for the defendant.139 As a

Id. Id. at 555. Id. at 552-53; Arey v. State, 929 A.2d 501, 508 (Md. 2006). Horton, 985 A.2d at 552-53 (Harrell, J., dissenting). Id. at 555. Arey, 929 A.2d at 509. Id. Horton, 985 A.2d at 555 (Harrell, J., dissenting); Arey, 929 A.2d at 509. Commonwealth v. Dubois, 883 N.E.2d 276, 285 (Mass. 2008). 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).

129. 130. 131. 132. 133. 134. 135. 136. 137. 138.

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result of these concerns, even when a petition is granted and discovery is permitted, court[s] may place limitations on the sources and scope.140 Accordingly, the court in Horton should have held that the State satisfied its burden of making reasonable efforts to find the evidence sought under Arey. VI. DEALING WITH THE EFFECTS OF EXTENDING THE SCOPE OF SEARCHES FOR LOST EVIDENCE The extreme extension of the scope of searches for evidence in the context of post-conviction relief in Horton weakens the standard of review to which a petition for re-testing is meant to be subjected. Horton acts under the guise of supporting procedures to vindicate the substantive rights authorized by DNA access laws. However, review of petitions for postconviction DNA testing involves evaluating the preservation and custodial protocol for the evidence in the context of assessing the exculpatory value of the evidence to the defendant.141 The grant or denial of a petition for post-conviction DNA testing, which may trigger a search for evidence, can hinge on these considerations. For instance, courts have denied such petitions on the grounds that the convicted individual did not meet its burden of establishing a sufficient chain of custody to offer proof that DNA was collected from the crime scene, has not been altered, and is in the possession of the proper authorities.142 Expanding the scope of evidence searches under Horton actually broadens the substance of these statutes: Hortons expansion provides convicts access to extensive evidence searches when the existence, or rather the non-existence, of the evidence should 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 did not 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-goose chase for the evidence in question.143 As previously mentioned, in situations where a convicted individual uncovers that evidence has been prematurely or otherwise wrongfully destroyed under the applicable state evidence preservation law, states have devised a remedy.144 Unfortunately, there is no such remedy available to convicted individuals when evidence is lost, i.e., state statute permitted the destruction of the evidence sought and the evidence cannot be found but,
State v. Lewis, 656 So. 2d 1248, 1250 (Fla. 1994). See Jones, 777 N.E.2d at 453. Moore, 879 N.E.2d at 438. 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.
140. 141. 142. 143.

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because of imperfect preservation and destruction protocol, it is difficult to currently establish, and therefore remains uncertain, whether actual destruction of the evidence indeed occurred. This points to legislative action regarding evidence preservation as the best way to gain consistency with regard to lost possibly exculpatory evidence but this does not end the discussion. In District Attorneys Office v. Osborne, the Court decided in a fivefour split the question of whether Osborne had a constitutional right to obtain post-conviction access to state evidence for DNA testing under the Due Process Clause of the Fourteenth Amendment which would institute a national standard for the variant DNA access laws across the states.145 After Osbornes conviction for kidnapping, assault, and sexual assault was affirmed on appeal, he petitioned for post-conviction relief in the form of DNA testing utilizing a method which, though available at trial, his attorney chose not to conduct against his wishes.146 The Alaska Court of Appeals 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 that Osborne had confessed to the crimes as a condition of his parole application.147 Osborne proceeded to seek post-conviction relief in federal court by asserting a constitutional right to access the DNA evidence for a testing method (short-tandem repeat (STR) testing) he claimed was more advanced than that available at trial.148 The U.S. District Court for the District of Alaska dismissed Osbornes petition solely on what it viewed as Osbornes premeditated post-conviction attack on his conviction.149 In reversing and remanding, the U.S. Court of Appeals for the Ninth Circuit express[ed] no opinion as to whether Osborne ha[d] been deprived of a federally protected right.150 On remand, the U.S. District Court for the District of Alaska recognized a very limited constitutional right to the testing sought in cases, such as Osbornes, where the test was unavailable at trial, it could be effectuated with little cost to the state, and the results were likely to be material.151 The 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 be informed of exculpatory information of which the state has knowledge,152 and implying a duty to preserve exculpatory material after conviction.153 Upon the U.S. Supreme Courts grant of certiorari, Osborne argued for 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 nor shall any State deprive any person of life, liberty, or property, without due process of law,155 and its interpretation as protecting liberty interests arising both from the Constitution itself, by reason of guarantees implicit in the word liberty, . . . or . . . from an expectation or interest created by state laws or policies.156 The State of Alaska argued that although the state statute created a liberty interest for convicted individuals to prove their innocence after conviction via a fair trial,157 there is no such entitlement under the Due Process Clause as a criminal convict has been constitutionally 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 liberty interest that would trigger the Courts determination of what process (in terms of DNA access and preservation) was due.159 In finding for the State of Alaska, the U.S. Supreme Court persistently voiced its aversion to creating a new due process right and taking over responsibility for refining it in light of finality, timing, and administrative concerns.160 Alternatively, the dissent framed the issue as whether the state had arbitrarily denied the convicted individual of his physical liberty in fundamental violation of due process, likening the majoritys reasoning to that made in opposition to recognizing the now-venerable right to counsel for 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. See ALASKA 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.162 This state action coupled with the American Bar Association (ABA) ethical rule requiring disclosure of all exculpatory evidence,163 indicates a trend in not only the legal community but also society in general towards recognition of such a due process right which serves the overarching interest of justice and 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 procedures only if they are fundamentally inadequate to vindicate the substantive rights 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 right to DNA access altogether, found the statutes facial validity could not rectify the fact that the state demonstrated a combination of inattentiveness and intransigence in applying its state-created right to access 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 DNAs power to prove innocence without unnecessarily overthrowing the established system of criminal justice is patent.167 But, when our current system of justice includes DNA access laws for the exoneration of the wrongfully-convicted and punishment of the true perpetrators, those goals do not seem adequately vindicated by a procedural system allowing for the destruction of evidence while an individual is still incarcerated. These protocols deprive those with the potential for obtaining a court order for post-conviction DNA testing the ability to effectuate that state-created right.168 A system so conducive to lost evidence truly offends some principle of justice so rooted in the traditions and conscience of our people.169 Frustratingly, the expansive evidence searches we are left with do nothing to address this lost evidence problem and actually raise the same

162. 163.

GILLERS 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)).

Id. at 2335. MODEL RULES OF PROFL CONDUCT R. 3.8 (g)-(h) (2009), reprinted in STEPHEN ET AL., REGULATION OF LAWYERS: STATUTES AND STANDARDS 283-84 (2010 ed.

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finality and administrative concerns the U.S. Supreme Court majority in Osborne had expressed with regard to the policy decisions necessitated by recognition of a due process right to DNA access.170 Those policy decisions are admittedly formidable how and how long should evidence be required to be preserved and retained under any national legislation devised? 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 Prevent Lost Evidence Sample deterioration remains a serious issue with regard to lost evidence; the natural process of DNA sample deterioration over time imposes an inevitable limit on DNA preservation.171 A second issue concerns the requisite determination that the evidence sought for testing has not experienced environmental insult, whereby the evidence has been exposed to temperature, light, humidity, biological, or chemical contamination, causing degraded fragments to become too small to serve as templates for replication.172 Judges will not necessarily have the requisite level of scientific understanding on which to base decisions as to preservation efficacy, so the court will necessarily rely on experts for storage protocol and variation amongst retention techniques could make comparison difficult.173 Another logistical problem with simply increasing evidence preservation is that there is clearly limited funding available and, therefore, limited space and technology accessible for evidence preservation. For example, preservation of DNA evidence may be conducted by refrigeration if necessary, in order to maintain the integrity of the evidence, and the ability to conduct forensic and DNA testing.174 However, custodial entities may not [be] required to preserve evidence that is of such a size, bulk, or physical character as to render retention impracticable.175

Id. at 2322-23 (majority opinion). Lawrence Kobilinsky, Recovery and Stability of DNA in Samples of Forensic Science Significance, 4 FORENSIC SCI. REV. 67, 72-73 (1992). 172. See George F. Sensabaugh & Cecilia Von Beroldingen, The Polymerase Chain Reaction: Application to the Analysis of Biological Evidence, in FORENSIC DNA TECHNOLOGY 63, 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.

170. 171.

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B. Lost Evidence to Spur DNA Testing? A recent study estimates that there are 389 publicly funded forensic crime 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.177 It is also well known that the forensic science community consistently endures working with a lack of resources, standardization, and funding.178 The emergence and evolution of DNA access laws and evidence preservation laws causes these under-funded and understaffed laboratories to be inundated with caseworkresulting in severe backlogs which threaten the efficient and timely resolution of these cases.179 For example, [t]he National Institute of Justice (NIJ) estimates that the current backlog of rape and homicide casesaloneis approximately 350,000.180 Initial estimates by NIJ set the number of collected, untested convicted offender samples 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 not yet collected.181 C. Increased Use of DNA Testing in Litigation with Increased Trial Times Due to Hortons undercutting of the standard of review of petitions for post-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 as Anderson, where a convict is exonerated by some small shred of
176. MATTHEW R. DUROSE, U.S. DEPT OF JUSTICE, BUREAU OF JUSTICE STATISTICS BULLETIN: CENSUS OF PUBLICLY FUNDED FORENSIC CRIME LABORATORIES, 2005, 3 (2008), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/cpffcl05.pdf. 177. Id. at 2 tbl.2. 178. NATL RESEARCH COUNCIL OF THE NATL ACADS., supra note 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 [hereinafter Improvement 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, at 4. 181. Fact Sheet, supra note 180.

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exculpatory evidence after years of incarceration.182 Situations that receive far less public attention, but [which] are nonetheless much more common . . . 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, dramatically hampering their ability to process meritorious claims.183 Post-conviction testing confirms the petitioners guilt in almost sixty percent of cases, and the process from the filing of the petition to completion of the testing may take several years based on the facts of each case.184 Furthermore, a single such unmeritorious petition not only wastes hours of precious prosecutorial time but puts the victim through the grief and pain of doubting the resolution of [the] ordeal.185 VII. CONCLUSION Some states offer broadly applicable post-conviction relief available under DNA access laws,186 while others place various limits on such laws,187 and some have no such laws whatsoever.188 State statutes allowing petitions for post-conviction DNA testing are comparatively new and this is reflected in their varying approaches to testing, particularly regarding the burdens held.189 Even if one successfully petitions to obtain DNA testing, there still remains the real and serious possibility that the evidence sought to be tested no longer exists. The Innocence Protection Act contains a qualified preservation requirement for federal offenses.190 Unfortunately, for all nonfederal convictions the approaches taken by the states vary greatly. The resulting quandary faced by convicted individuals attempting to locate potentially exculpatory evidence on which to conduct modern postconviction DNA testing may be that the laws of their state have statutorily permitted the destruction of that very evidence years earlier and as such,

Marvin Anderson, supra note 2. Tonja Jacobi & Gwendolyn Carroll, Acknowledging Guilt: Forcing SelfIdentification 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 only states that have not enacted DNA access laws. Id. 189. Carroll, supra note 42. 190. 18 U.S.C. 3600(b)(2) (2006).

182. 183.

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that evidence is gone forever or is lost in that the evidences destruction cannot be affirmatively established due to flawed destruction protocol.191 The scope of searches for lost evidence has reached its greatest extension in Horton.192 Horton extended the right to pursue postconviction testing of DNA evidence by exploiting current evidence preservation inconsistencies.193 This exploitation allows convicted individuals to instigate expansive search efforts for evidence in longdecided cases by petitioning to test evidence even when there is a strong indication 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 postconviction DNA testing, triggering an order for such a search. The scope of searches 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 extraneous searches without thwarting reasonable searches on behalf of those with genuine claims of innocence. Hortons extension of the scope of searches for lost evidence offers no remedy for convicted individuals whose evidence has been lost under the applicable evidence preservation statute.194 In Osborne, the U.S. Supreme Court feared that by constitutionalizing post-conviction DNA access it would be forced to take over the issue entirely by itself and preferred to leave in place the current variant and fragmented state DNA access laws it termed a prompt and considered legislative response rather than fashion a judicially-created, nation-wide standard.195 As such, the opinion left unanswered the question of a constitutional obligation to preserve forensic evidence and, consequentially, also left intact the patch-work system of state evidence preservation laws conducive to the lost evidence problem.196 There are legitimate obstacles to the accomplishment of a nation-wide standard for evidence preservation. Adherence to a uniform preservation system with harmonized, consistent protocol for evidence preservation offers the only hope for actually addressing the problem of lost evidence. If such a system were achieved, the wild-goose chase searches improperly sanctioned by cases such as Horton, and their corollary negative effects on the judicial system will then necessarily become obsolete.

191. 192. 193. 194. 195. 196.

See, e.g., ARK. CODE ANN. 12-12-104 (2009); GA. CODE ANN. 17-5-56 (2008). See Horton v. State, 985 A.2d 540, 547-49 (Md. 2009). Id. Id. Dist. Attorneys Office v. Osborne, 129 S. Ct. 2308, 2322 (2009). Id. at 2323.