Seeking Justice for the Erroneously Convicted: Assessing the First Decade of Compensation Claims under Chapter 258DPosted: January 13, 2016
By the late 1990s and early 2000s, due to increased use of DNA and other scientific evidence, and further scrutiny of eyewitness identification, the number of criminal exonerations in both Massachusetts and the nation grew significantly. As of 2002, over 100 prisoners nationwide were found to be innocent and released after additional scientific testing of evidence; and between 1997 and 2002, six men in Massachusetts were exonerated after new DNA testing proved they were innocent of the crimes for which they had been convicted.[i] As attention on wrongful convictions increased, so did interest in providing exonerated individuals with a means to seek relief redress for time served, erroneously, in prison. As a result, in late 2004, Massachusetts enacted Chapter 258D. See St. 2004, c. 444; G.L. c. 258D.
This legislation was intended, in part, to meet the Commonwealth’s “moral obligation” to compensate those who had been erroneously convicted.[ii] Before Chapter 258D was enacted, Massachusetts had compensated only two exonerated men over the prior half-century, both by special legislative action. In 1958, Santos Rodriguez, who had spent over two years in prison for allegedly killing a woman, received $12,500 after the true killer confessed. Similarly, in 1992, Bobby Joe Leaster, who had served 15 years of a life sentence for murder, received a $500,000 annuity when new eyewitness testimony exonerated him.[iii] In contrast, since the enactment of Chapter 258D, approximately 50 people have sought relief, resulting in the Commonwealth paying over $9 million to nearly two dozen individuals whose convictions had been overturned.
This article examines Chapter 258D’s key provisions and looks back at its first decade, analyzing how well the Act has worked in compensating those who were erroneously convicted, and proposing changes to make the Act more effective.
I. Key Provisions of the Erroneous Conviction Statute
A. To Seek Compensation, a Claimant Must First Be Eligible
Chapter 258D sets forth strict threshold criteria for an individual even to be considered eligible for compensation. A person must have been convicted of a felony and sentenced to not less than one year in a state prison – and served all or part of that sentence. G.L. c. 258D, § 1(C). In addition, the individual must have either received a pardon from the Governor or been granted judicial relief by a state court “on grounds which tend to establish the innocence of the individual.” G.L. c. 258D, § 1(B).[iv] The term “tend to establish” was offered by then-Governor Romney to “limit the class of claimants to those who received judicial relief on grounds that directly implicate innocence.” Guzman v. Commonwealth, 458 Mass. 354, 358-59 (2010). The phrase has been further interpreted to mean “grounds resting upon facts and circumstances probative of the proposition that the claimant did not commit the crime.” Id. at 362 (internal citations and quotations omitted). But such grounds must tend to do more than merely “assist the defendant’s chances of acquittal.” Id. at 360.[v]
In the first appellate decisions interpreting the statute, Guzman and Drumgold v. Commonwealth, 458 Mass. 367 (2010), the claimants’ underlying convictions were overturned on grounds that undoubtedly tended to establish their innocence. In Guzman, the claimant’s defense attorney failed to call two eyewitnesses who would have testified that the claimant was not the person who committed the crime. 458 Mass. at 363-65. In Drumgold, the Commonwealth failed to disclose exculpatory evidence concerning promises and rewards made to a prosecution witness and newly discovered evidence relating to the credibility of a critical eyewitness. 458 Mass. at 372-76.
More recently, though, courts have considered factual scenarios that are less clear cut, such as where claimants’ convictions were reversed simply due to insufficient evidence. In the first instance, Renaud v. Commonwealth, 471 Mass. 315 (2015), the Court agreed with the Commonwealth that convictions reversed for insufficient evidence do not “categorically” equate to actual innocence, but the Court concluded that the absence of certain types of evidence may nonetheless tend to show actual innocence. Id. at 319. Courts must therefore “follow a case-specific, fact-based approach to determine whether judicial relief based on insufficient evidence tends to establish actual innocence in any given case.” Santana v. Commonwealth, 88 Mass. App. Ct. 553, 555 (2015). As it turned out, the courts in Renaud, Santana, and Nguyen v. Commonwealth, 88 Mass. App. Ct. 1111, 2015 WL 6680985 (Nov. 2, 2015) (Rule 1:28 opinion) all held that the claimants were eligible under Chapter 258D. See Renaud, 471 Mass. at 317 (larceny convictions reversed where the evidence consisted largely of only an EBT card bearing the claimant’s name at the crime scene); Santana, 88 Mass. App. Ct. at 555 (drug conviction reversed because the only evidence of constructive possession was claimant’s presence as a passenger in the car where the drugs were discovered); Commonwealth v. Nguyen, 76 Mass. App. Ct. 1137, 2010 WL 2268933, at *3 (June 28, 2010) (Rule 1:28 opinion) (gun conviction reversed because of insufficient evidence that claimant had knowledge that the firearm was in the vehicle where it was found). As a result, the more recent appellate trend in these types of cases has been to hold in favor of claimants’ eligibility.
B. To Receive Compensation, a Claimant Has the Burden To Prove His Actual Innocence
If a claimant meets the eligibility requirements, he will face a trial at which he must, by clear and convincing evidence, prove that he did not commit the crime for which he was originally charged, or any other felony arising out of or reasonably connected to the facts supporting the indictment or complaint, or any lesser-included felony. G.L. c. 258D, § 1(C)(vi).
Chapter 258D, however, also recognizes that an erroneous conviction trial may take place years after the underlying crime occurred. Evidence and testimony may have been lost, forgotten, damaged, or destroyed, all through no fault of any party. Thus, Chapter 258D provides that a court “shall exercise” its discretion “when determining the admissibility and weight of evidence” by considering: “any difficulties of proof caused by the passage of time, the death or unavailability or witnesses, or other factors not caused by the claimant, or those acting on the claimant’s or the commonwealth’s behalf.” Id. § 1(F). Moreover, “[t]he court shall instruct the jury that it may consider the[se] same factors when it weighs the evidence presented at trial.” Id. Chapter 258D thus balances the need for the parties to provide the factfinder with as much evidence concerning the allegations and defenses, while acknowledging the limitations on the reliability of such evidence.
C. Types of Relief Available Under Chapter 258D
A successful claimant can receive four potential types of relief: (1) $500,000[vi]; (2) 50 percent tuition reduction from any public university or college in Massachusetts; (3) services to address physical and emotional deficiencies related to one’s conviction and incarceration; and (4) expungement or sealing of records. G.L. c. 258D, §§ 5, 7. However, one who settles with the Commonwealth, where no judgment is entered in his favor, is ineligible to seek expungement or sealing. See Memo. of Decision and Order, Commonwealth v. Baran, Civil Action No. SUCV2010-00034 (Mass. Super. Dec. 12, 2013). In addition, a claimant is barred from recovering punitive damages, interest, costs, or attorney’s fees. See G.L. c. 258D, § 5(A).
II. Actions Under the Erroneous Conviction Statute
Approximately 50 actions have been filed under Chapter 258D and the vast majority have proceeded along one of two paths: settlement or dismissal due to ineligibility. The initial cases largely concerned convictions that had been reversed well before 2004[vii] because of scientific testing, perjured or manufactured evidence, or faulty eyewitness testimony. Due to the uncontroverted evidence of innocence, those cases often ended in settlements at or near the maximum amount of monetary relief.[viii] The Commonwealth has settled approximately half of all Chapter 258D cases for over $9 million, which cases (except for one) were filed in the statute’s first five years. After 2010, the Commonwealth has settled few cases and none recently. Many of the remaining closed cases were often dismissed as the claimants were ineligible, i.e. their convictions were reversed on grounds that did not tend to establish their innocence, their claims were untimely, or they did not otherwise satisfy the statute’s requirements.
Just three cases have gone to trial, and only one – brought by Ulysses Charles – ended with a verdict for the claimant. But this figure will likely increase in the near future: as of this article’s publication, around a half dozen cases are pending before the Superior Court and at least two others are pending appeal (with respect to claimants’ eligibility). Also, a number of these actions, such as Renaud, Santana, and Nguyen, are unlikely to settle. These cases are largely based on convictions that were reversed due to insufficient evidence, as opposed to newly discovered affirmative evidence of innocence such as DNA evidence, recanted testimony, or police misconduct. Similar circumstances existed in the two other Chapter 258D actions that went to trial, which ended with verdicts in favor of the Commonwealth. Ultimately, with the presently pending Chapter 258D cases, the Commonwealth will likely be more inclined to take its chances at trial (with the attendant cap on damages and unavailability of interest and fees) than settle beforehand, in light of the claimants’ high burden at trial and the lack of clear exonerating evidence.
III. Challenges to Fulfilling Chapter 258D’s Goals, and Potential Solutions
With just over a decade’s worth of experience with Chapter 258D, some challenges to its efficacy have come to light. Certain changes, some small in nature, could greatly improve its workability and help achieve its purpose more fully.
A. Chapter 258D Actions Proceed Slowly, Preventing an Erroneously Convicted Individual From Receiving Timely, Effective Compensation
1. Chapter 258D Actions Are Assigned to the Slowest Schedule in the Superior Court
Because of the pace at which Chapter 258D actions proceed, they place an unnecessary burden on claimants. This is particularly so when one considers that claimants’ cases typically involve considerable investigation and discovery well before any Chapter 258D action is even contemplated. One reason for the slow pace is that Chapter 258D actions, as actions against the Commonwealth, are assigned to the most deliberate schedule, Track A, under current Superior Court Standing Orders. Track A provides for two years of discovery, and targeted resolution in three years. See Superior Court Standing Order 1-88.
As one example, Bernard Baran served approximately 20 years in prison before his conviction was reversed. Commonwealth v. Baran, 74 Mass. App. Ct. 256 (2009). By the time Baran filed his Chapter 258D action in 2010, at least a half dozen substantive and evidentiary proceedings had occurred over the prior two decades. Yet, Baran was forced to proceed via Track A. Ultimately, Baran settled for less than the statutory cap in 2012, instead of waiting – possibly even years longer – for greater compensation and a potential judgment of innocence.
Even where claimants had claims that would otherwise exceed $500,000 in damages, if not for the Chapter 258D cap, due to lengthy incarcerations, and presented uncontroverted evidence of innocence, they have at times faced long delays before receiving compensation. Stephan Cowans, Angel Hernandez, Dennis Maher, Neil Miller, Marvin Mitchell, Anthony Powell, and Eric Sarsfield all had convictions reversed as a result of scientific evidence,[ix] yet each waited from seven months to almost two years after filing their Chapter 258D complaints before settling for the maximum amount of compensation under the statute.
These delays are contrary to the statute’s purpose, particularly when a conviction is reversed as a result of uncontroverted scientific evidence and the claimant’s innocence should not be in question.[x] As a result, Standing Order 1-88 should be amended to allow for Chapter 258D cases to be brought under an accelerated schedule. In the alternative, Chapter 258D should be amended to provide a right to a speedy trial, akin to other civil matters.[xi] Another possible solution is mandatory mediation between a claimant and the Commonwealth in cases where convictions are overturned on the basis of uncontroverted scientific evidence. This final idea finds further support in light of the newly-enacted Chapter 278A, which provides for post-conviction access to DNA testing for convicted individuals asserting their innocence. G.L. c. 278A, et seq.
2. The Commonwealth’s Right to Interlocutory Appeal of Eligibility Determinations
Another cause of significant delay in Chapter 258D actions is the Commonwealth’s right to interlocutory appeal of an adverse decision on the issue of a claimant’s eligibility. The Commonwealth may pursue such an interlocutory appeal pursuant to the doctrine of present execution because Chapter 258D represents a limited waiver of sovereign immunity. See Irwin v. Commonwealth, 465 Mass. 834, 842 (2013). The claimant is then faced with a difficult choice: (a) stay discovery, preserve resources, and wait for a potentially lengthy appeal period to be completed or (b) proceed with discovery, incur expenses, and impose on the claimant’s time and mental health, while running the risk of losing the appeal on the threshold issue of eligibility.[xii]
One possible solution is for the Appeals Court to alter its internal practices, prioritizing Chapter 258D actions when the issue is one of a claimant’s eligibility. The Appeals Court regularly expedites cases involving custody and adoption issues concerning children; the same could be done for Chapter 258D erroneous conviction claims. An alternative would be to amend Chapter 258D to impose a fee-shifting measure for any unsuccessful appeal by the Commonwealth on the issue of eligibility.
B. The Statutory Cap on Monetary Relief Prevents Fair Compensation
After a decade in practice, the Chapter 258D damages cap of $500,000 should be increased or modified. Simply put, an individual who was erroneously convicted and served months, years, or decades in prison is very likely to receive a damages award exponentially lower than one who alleges that the Commonwealth violated his civil rights or discriminated under Chapter 151B, as neither of those claims has a cap on damages.
When the statute was enacted in 2004, capping monetary damages at $500,000 was intended to limit the Commonwealth’s fiscal exposure. This concern, however, is outweighed by the moral imperative of providing individuals the opportunity to be compensated for years lost in wrongful confinement. In the initial years after Chapter 258D’s passage, the Commonwealth settled many claims with people exonerated long before the law’s enactment, resulting in millions of dollars of damages awards. But since 2011, the Commonwealth has paid less than a million dollars in compensation under Chapter 258D to only a few exonerees, and nothing since 2013.
Modifying the damages cap would provide the Commonwealth, courts, and juries with the flexibility to compensate more fairly those individuals most deserving. For example, Angel Hernandez served 13 years before being cleared through DNA evidence. He ultimately received a maximum settlement under the statute; however, that amount equaled only around $38,000 for every year he should not have been in prison.
The Commonwealth need not forgo a cap – other jurisdictions with analogous compensation schemes have more flexible forms of relief, some providing limits based on years of incarceration.[xiii] As a result, claimants could be entitled to a maximum amount of money for every year they erroneously served in prison, for example $100,000 per year, thereby providing greater compensation to those persons who have suffered the greater harm.
The enactment of Chapter 258D filled a critical void – it both acknowledged that mistakes are made in our criminal justice system and that the Commonwealth should compensate the victims of such errors. After a decade in practice, however, Chapter 258D presents certain obstacles for erroneously convicted individuals to receive compensation for the years they were wrongfully imprisoned. Consistent with the statute’s goal to address the Commonwealth’s moral obligation to these individuals, Chapter 258D should be amended to advance its original intent: fairly and efficiently compensating erroneously convicted individuals.
[i] Fisher, Stanley Z., Convictions of Innocent Persons in Massachusetts: An Overview, 12 B.U. Pub. Int. L.J. 1, 72 n.3 (2002).
[ii] See Testimony of Representative Patricia Jehlen (March 19, 2003), available at http://web.archive.org/web/20040807031601/http://www.patjehlen.org/2506testimony.html (last visited January 2, 2016).
[iii] Wisneski, Ashley H., “‘That’s Just Not Right’: Monetary Compensation for the Wrongly Convicted in Massachusetts,” 88 Mass. L. Rev. 138, 139 & nn.20-21 (2004).
[iv] Such relief must have vacated or reversed the conviction and either the indictment or complaint was dismissed (or a nolle prosequi entered) or the individual was found not guilty if a new trial was conducted. G.L. c. 258D, § 1(B)(ii).
[v] The Court in Guzman also provided a non-exhaustive list of procedural, evidentiary, and structural deficiencies that may serve as the basis for the reversal of a defendant’s conviction, but would not satisfy Chapter 258D’s eligibility provision in light of the Governor’s amendment: a violation of a defendant’s Sixth Amendment right to confrontation; a violation of a defendant’s Bruton rights; a prosecutor’s improper closing argument; and an erroneous disallowance of a defendant’s peremptory challenge. Guzman, 458 Mass. at 358 n.6; see Silva-Santiago v. Commonwealth, 85 Mass. App. Ct. 906, 909 (2014); Riley v. Commonwealth, 82 Mass. App. Ct. 209, 215-16 (2012).
[vi] One concern of legislators prior to Chapter 258D’s enactment was the financial burden it might place on the Commonwealth. In the end, the payment of the $500,000 annuity to Leaster in 1992 served as a guidepost for the maximum amount of recovery allowable under the statute. See Note 3 (citing then-Representative Jehlen’s testimony before the House Committee on Public Safety (Mar. 15, 2001)); McCarthy, Brendan, “House passes wrongful conviction bill,” The Boston Globe (Oct. 23, 2003); G.L. c. 258D, § 5.
[viii] This includes the settlements for, among others, Stephen Cowans, the Estate of Louis Greco, Angel Hernandez, Donnell Johnson, Dennis Maher, Neil Miller, Marvin Mitchell, Marlon Passley, Anthony Powell, Guy Randolph, and Eric Sarsfield. See http://www.newenglandinnocence.org/category/exonerees/ (last visited January 2, 2016).
[ix] See Note 8.
[x] Certain legislative sponsors of the original statute anticipated that such cases would be handled promptly. Then-Senator Diane Wilkerson said she “might understand [the Attorney General] scrutinizing a case involving a defendant who was wrongly convicted because of, say, a flawed police investigation” but questioned the delays in compensation for those who filed claims who “were exonerated because of airtight DNA evidence.” Saltzman, Jonathan, “Reilly accused of funds delay for ex-inmates,” The Boston Globe (June 21, 2005).
[xii] The latter is what occurred in Irwin. The Commonwealth appealed the denial of its motion to dismiss in August 2011; the claimant did not agree to a stay pending appeal; the parties engaged in full discovery for nearly two years; and in July 2013, the Supreme Judicial Court dismissed the case due to the claimant’s ineligibility.
[xiii] See, e.g., 28 U.S.C. § 2513(e); Ala. Code §29-2-159; Fla. Stat. § 961.06(e); Minn. Stat. § 611.365; N.C. Gen. Stat. § 148-84; Ohio Rev. Code Ann. § 2743.48(E)(2); Tex. Civ. Prac. & Rem. Code Ann. § 103.052; Vt. Stat. Ann. tit. 13, § 5574(b); Wash. Rev. Code § 4.100.060(1)(d)(5).
David Hartnagel is an attorney at Sheehan Phinney Bass + Green P.A. in Boston where he practices complex commercial and employment litigation for both business and individual clients. Previously, as an Assistant Attorney General, he served as counsel on behalf of the Commonwealth in some of the cases cited in this article.
Preserving Evidence To Convict the Guilty and Protect the Innocent: Massachusetts’ Post-Conviction Access to Forensic and Scientific Analysis ActPosted: September 12, 2012
By David M. Siegel and Gregory I. Massing
Kenneth Waters spent 18 years in Massachusetts state prison for a murder he did not commit. His sister, Betty Anne Waters, put herself through college and law school for the sole purpose of exonerating her brother, a story popularized in the 2010 feature film “Conviction.” The evidence necessary to show Waters’ innocence – Type O blood collected from the crime scene – was not located until 16 years after his conviction.[i]
The Post Conviction Access to Forensic and Scientific Analysis Act (hereinafter, “the Act”) went into effect on May 17, 2012. The Act inserted a new chapter 278A into the Massachusetts General Laws, providing a comprehensive framework for criminal defendants who have been found guilty to gain access to evidence and forensic testing to support a claim of factual innocence. In our article in the Summer 2012 edition of the BBJ, we outlined the new procedure for defendants to seek this access and for judges to evaluate these requests. But what if the evidence needed to support the claim of innocence has been lost, misplaced, discarded, or destroyed?
The Act, for the first time in Massachusetts, mandates state-wide retention and preservation of evidence in criminal cases. To carry out this mandate, the Act gave the Director of the State Police Crime Lab the authority to promulgate regulations for evidence retention. This article outlines these provisions and explores the contours of possible regulation in this area.
I. New Statutory Framework for Evidence Preservation
As Kenneth Waters’s story demonstrates, one of the greatest roadblocks for defendants seeking to prove that they were wrongfully convicted is the difficulty in locating and obtaining access to the biological or physical materials necessary to demonstrate their innocence. This phenomenon is not limited to Massachusetts. For example, the CardozoLawSchool’s Innocence Project, the first in the nation, closed 233 cases without resolution between 2004 and 2008. Of these, 22% were closed because evidence had been lost or destroyed.[ii] Depending on the case, the materials might be evidence (held by the court) or items collected during an investigation but not used, left in police department evidence lockers or discarded once the case was closed.
The Commonwealth has a constitutional obligation to produce exculpatory evidence in criminal cases so that a defendant may inspect and test it.[iii] However, police departments have only limited, specific statutory duties related to particular types of evidence collection. See, e.g., G.L. c. 41, § 97B (requiring municipal police to preserve rape kits). Court clerks have only a general duty to maintain papers filed with them. G.L. c. 221, § 14. Prior to passage of the Act, no single legal authority obligated state actors to preserve materials collected during a criminal investigation.
Massachusetts is not unique in this regard. A 2007 study conducted for the U.S. Department of Justice of 2,250 law enforcement agencies across the country, including police departments, prosecutors’ offices, and government crime labs, found that fewer than half (46%) had a policy for preserving biological material secured in the investigation of an offense in which a defendant was convicted. About half of these policies (51.4%) were established by state law, and most of the rest (42.7%) were set by the agency.[iv] Of the 49 states that have passed legislation providing for post-conviction DNA testing, only slightly more than half included an evidence preservation requirement.[v]
Massachusetts is now one of those states. The Act creates the first statewide statutory duty for governmental entities in possession of materials collected during an investigation that resulted in a criminal conviction to systematically retain those materials for the duration of a convicted defendant’s sentence, including any term of parole or probation. [vi] Specifically, the Act mandates, “Any governmental entity that is in possession of evidence or biological material that is collected for its potential evidentiary value during the investigation of a crime, the prosecution of which results in a conviction, shall retain such evidence or biological material . . . without regard to whether the evidence or biological material was introduced at trial.” Id.
Two aspects of this brief but important provision bear emphasis. First, the term “evidence” is used in its broadest meaning, not limited to exhibits that are formally admitted into evidence. The statute expressly states that evidence or biological material collected for its “potential evidentiary value” in an investigation must be retained, regardless of whether or not it is introduced at trial.
Second, the term “governmental entity,” used to describe those agencies subject to the retention requirement, is defined elsewhere in the Act as “an official body of the commonwealth, or of a county, city or town within the commonwealth.” Id. § 1. Accordingly, state and municipal police departments that collect evidence for investigative purposes, as well as governmental forensic service units like the State Police and Boston Police crime laboratories, are now required by law to retain these materials. By its plain terms, the Act also applies to courts, which clearly satisfy the definitional standard of “official bodies of the commonwealth.” Thus, courts in possession of evidence or biological materials introduced at trial – or even merely marked for identification or used as a chalk – must retain and preserve these materials.
The retention requirement is not absolute. For example, the Act recognizes that evidence seized for investigative purposes or introduced at trial may belong to third parties and may be subject to motions for the return of property. Thus, evidence or biological material “need not be preserved if it is to be returned to a third party.” Id. § 16(a). Likewise, the legislature was cognizant that some materials seized in the course of an investigation – automobiles, for instance – cannot easily be stored indefinitely. Accordingly, governmental entities are excused from retaining objects “of such a size, bulk or physical character as to render retention impracticable.” Id.
The Act is not specific as to the manner in which evidentiary materials in general, or biological materials in particular, must be maintained, except to say that they must be kept “in a manner that is reasonably designed to preserve the evidence and biological material and to prevent its destruction or deterioration.” Id. Rather, the Act delegates to the director of the State Police Crime Lab, in consultation with the Forensic Sciences Advisory Board, the authority to promulgate regulations governing the materials’ retention and preservation. Id. § 16(b).
That Board, established under G.L. c. 6, § 184A, is charged with advising the Secretary of Public Safety and Security “on all aspects of the administration and delivery of criminal forensic sciences in the commonwealth.” Id. The Board is comprised of the undersecretary of public safety for forensic sciences, who serves as chair, the attorney general, the colonel of the state police, the president of the Massachusetts Chiefs of Police Association, the president of the Massachusetts Urban Chiefs Association, the president of the Massachusetts District Attorney’s Association, a district attorney designated by the Massachusetts District Attorney’s Association, and the commissioner of the department of public health or their designees. Id. The composition of the Board is heavily weighted toward prosecutorial and police interests, and does not include any scientists.
In conjunction with its recommendation that the legislature pass the Act, the 2009 report of the Boston Bar Association Task Force to Prevent Wrongful Convictions, Getting It Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts, recommended that the Board should be expanded by adding three laboratory scientists and three members of the bar, representing a broader range of criminal justice and scientific stakeholders. Id. at 48, 50-53 & App. B. Senator Cynthia Creem filed a bill to implement this recommendation, Mass. Senate Bill No. 1204, in January 2011, but the bill has not moved beyond being referred to committee. While the Board’s meetings are open to the public, and recent Board chairs have invited a broad range of stakeholders to attend, regular participation in the Board’s work by scientific professionals requires formal expansion of its membership. The proposed legislation would place the Board’s consultative role with respect to the retention and preservation regulations on a firmer scientific basis.
Lastly, the Act provides criminal and civil immunity for governmental officials and employees acting in good faith to meet its requirements, including, but not limited to, the evidence retention provisions. G.L. c. 278A, § 17(a), (c). Officials who engage in “willful or wanton misconduct or gross negligence” that results in the destruction of evidence, however, may be subject to proceedings for contempt. Id. § 17(b).
II. Regulations To Implement Evidence Preservation
As mentioned above, the Act delegates the responsibility for regulating the retention and preservation of evidence and biological material, “in a manner that is reasonably designed to preserve the evidence and biological material and to prevent its destruction or deterioration,” to the director of the State Police Crime Lab. Id. § 16. The Act gives the director wide berth regarding the content of the regulations, requiring only that the director include “standards for maintaining the integrity of the materials over time” and chain-of-custody procedures: “the designation of officials at each governmental entity with custodial responsibility and requirements for contemporaneously recorded documentation of individuals having and obtaining custody of any evidence or biological material.” Id.
Carrying out this broad mandate presents some obvious challenges. While spelling out best practices for retention and preservation of evidence – for example, the proper packaging of materials, and temperature and humidity levels at which they should optimally be kept – is a relatively straightforward proposition, putting these practices into effect is another matter. Nothing in the Act ensures that police departments, especially in smaller municipalities, will possess the storage space – and, if necessary, refrigerator units – to adhere to best practices. Likewise, regulations can easily require police departments to assign evidence custodians and to maintain careful logs of what materials are being stored, the case or cases they are associated with, when materials are removed, and by whom. Less obvious is whether police departments have the available personnel, records managements systems, and information officers to update and maintain these systems. Academic research recommendations aptly note, “[I]t is imperative that once state statutes are established, there must be adequate agency funding to allow crime laboratories and law enforcement to quickly and efficiently address their policies and procedures to support the statutes.”[vii]
Concerns regarding storage space and funding are especially acute in light of the Act’s requirement that government entities preserve not only “biological material,” but also any “evidence” collected in an investigation. The original versions of the bills filed in the Senate and the House in January 2011, consistent with the BBA Task Force’s recommendation, required only the retention of “biological evidence.” See Mass. Senate Bill No. 753, proposed G.L. c. 278A, § 16(a) (filed Jan. 21, 2011); Mass. House Bill No. 2165 (filed Jan. 20, 2011); Getting It Right, App. A. Limiting the retention requirement to “biological evidence” is consistent with the requirements of the federal Innocence Protection Act. See 18 U.S.C. §3600A.
In the course of enactment, however, the material required to be retained was broadened to include any “evidence or biological material.”[viii] This change may have been due to the legislature’s belief that evidence other than biological material, such as a murder weapon that was never dusted for fingerprints, or an article of clothing potentially carrying microscopic fluids or fibers not previously susceptible to DNA testing, might yield proof of a defendant’s innocence – a belief that is consistent with research recommendations.[ix]
Mandating the retention of only biological materials would have been less onerous for state and local law enforcement agencies, whereas the need to retain all evidence might create financial burdens for police departments in terms of logistics and procuring suitable storage space. The regulations might help alleviate these problems by providing for the sharing of retention responsibilities among forensic laboratories and police departments – so long as responsibility is clearly delineated and strong tracking and security systems are in place. In addition, based on the Act’s exemption for the retention of large items that are impracticable to store, the regulations might include recommendations and methods for storing samples or cuttings of materials that will preserve their potential evidentiary value.[x]
Adhering to best practices for evidence collection, as well as retention, is a critical component of effective evidence preservation, as the evidence retained is only as good as that collected. The statewide regulations must ensure that all evidence and biological material subject to the Act – that is, “collected for its potential evidentiary value” – is carefully identified and promptly logged in, preferably in a centralized record-keeping system. The director of the State Police Crime Lab should examine ways to leverage and strengthen existing Laboratory Information Management Systems (LIMS) and police records management systems to facilitate and expedite this process. Law enforcement training on evidence collection should, at a minimum, include the new requirements for evidence retention created by the Act and any regulations. (For additional recommendations regarding law enforcement training and practices for evidence collection, see Getting It Right at 53-54.)
By creating an obligation for the Commonwealth to retain and preserve material from criminal investigations, Massachusetts’s Post-Conviction Access to Forensic and Scientific Analysis Act provides a tool to help solve future cases, as well as to rectify – and shorten the duration of – miscarriages of justice. This tool is likely to become more powerful as techniques of forensic and scientific analysis improve. Through the intelligent and strategic use of the regulatory authority granted under the Act, the director of the State Police Crime Lab, in conjunction with the Forensic Sciences Advisory Board, can ensure that the law enforcement agencies of the Commonwealth responsibly discharge this duty.
David M. Siegel is a Professor of Law at New England Law | Boston specializing in Criminal Law, Criminal Procedure and Evidence.
Gregory I. Massing is Executive Director of the RappaportCenter for Law and Public Service at SuffolkUniversityLawSchool. He was General Counsel of the Massachusetts Executive Office of Public Safety from 2007 through 2011.
(The authors were members of the Boston Bar Association’s 2008-2009 Task Force to Prevent Wrongful Convictions. The opinions expressed here are those of the authors and do not represent those of the Task Force, its members or the BBA.)
[i] This account of the Waters case is based on the Innocence Project’s profile, www.innocenceproject.org/Content/Kenny_Waters.php.
[ii] Kevin J. Strom, Matthew J. Hickman & Jeri D. Ropero-Miller, Evidence Retention Policies in U.S. Law Enforcement Agencies: Implications for Unsolved Cases and Postconviction DNA Testing, 27 J. Contemp. Crim. Justice 133, 134 (2011) (hereinafter “Evidence Retention Policies”).
[iii] See Commonwealth v. Neal, 392 Mass. 1, 11-12 (1984) (state has duty to produce exculpatory evidence for defendant to inspect and test); Commonwealth v. Woodward, 427 Mass. 659, 679 (1998) (duty extends to those “who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported to his office”).
[iv] See Kevin J. Strom, Jeri Ropero-Miller, Shelton Jones, Nathan Sikes, Mark Pope & Nicole Horstmann, The 2007 Survey of Law Enforcement Forensic Evidence Processing 3-9 to 3-10 (Oct. 2009).
[v] Evidence Retention Policies at 142.
[vi] The Act thus ensures that the Commonwealth complies with federal requirements for incentive grants for post-conviction DNA testing, training of criminal justice personnel, and elimination of testing backlogs. Section 413 of the federal Innocence Protection Act of 2004, P.L. No. 108-405 requires that eligible grant receiving entities (including law enforcement agencies) demonstrate that, for all jurisdictions within their state, retention and preservation of biological materials is done “in a manner comparable to” federal preservation provisions, inserted by section 411 and codified at 18 U.S.C. §3600A.
[vii] Evidence Retention Policies at 144.
[ix] Evidence Retention Policies at 142 (noting potential value of “all forensic evidence including latent prints, trace evidence, and firearms and toolmarks, not just DNA,” for unsolved and postconviction cases).
[x] For additional recommendations regarding how to “maximize the potential to use forensic evidence in the future while minimizing the cost of retention,” see Evidence Retention Policies at 144-45.
A New Tool for Determining Factual Innocence: Massachusetts’ Post-Conviction Access to Forensic and Scientific AnalysisPosted: May 16, 2012
by David M. Siegel and Gregory I. Massing
Angel Hernandez spent thirteen years in Massachusetts prisons for a rape he did not commit. He spent a decade of that time seeking DNA testing of evidence he was told was lost or unavailable, or was not subject to discovery through the procedure he was using, or that he had no right to test, or that he had waived the right to test. He ultimately obtained access to the evidence, and DNA testing fully exonerated him. The ability of a wrongfully convicted criminal defendant to access evidence to prove it, and the obligation of the Commonwealth to keep that evidence, may seem utterly common sense – but they are now the law of the Commonwealth too. On February 17, 2012, Governor Patrick signed the Post-Conviction Access to Forensic and Scientific Analysis Act, 2012 Mass. Acts, c. 38, which provides a statutory right for wrongfully convicted defendants to obtain access scientific and forensic analysis of evidence in their cases. The Act, which becomes effective May 17, 2012, creates a comprehensive framework by which criminal defendants who have been found guilty may gain access to evidence and testing to support a claim that they are factually innocent. The Act also requires for the first time in Massachusetts state-wide retention and preservation of evidence in criminal cases and provides for regulations in this area. Although virtually every other state already provided this type of access, testing, and retention, the Act is among the most comprehensive in the country. The saga of Angel Hernandez should not have to be repeated.
I. Background – the 2008-2009 BBA Task Force on Wrongful Convictions
In December 2009, a Boston Bar Association Task Force to Prevent Wrongful Convictions, composed of twenty-two members drawn from state and local police, prosecutors, public defenders, defense lawyers, forensic scientists and the judiciary released Getting it Right: Improving the Accuracy and Reliability of the Criminal Justice System in Massachusetts. Among the Task Force’s specific recommendations was the following: “The legislature should enact and the Governor should sign into law a statute providing for post-conviction access to and testing of forensic evidence and biological material by defendants who claim factual innocence and for post-conviction retention of biological material.” Id. at 7. The report included a proposed bill as an appendix.
Bills providing for post-conviction forensic testing had been filed in the Massachusetts legislature almost every session following the 1999 Report of the U.S. Attorney General’s National Commission on the Future of DNA Evidence, but had languished in committee. The Task Force’s recommended bill addressed what its members believed had prevented the prior bills’ passage: it provided a simpler, more streamlined procedure that did not attach the outcome of the testing to any legal effect on the underlying conviction. Instead, it allowed only for access and testing. The weight and significance to be attached to the results of the testing would be determined in separate proceedings, alleviating the need for the parties to argue about hypothetical results.
II. Eligibility and Motion
A. Who May Seek Access to Scientific and Forensic Analysis
Anyone convicted of a crime or adjudicated a delinquent in a Massachusetts court may seek access to analysis, § 2(1), whether the conviction or adjudication was by trial, guilty plea or plea of nolo contendere, § 1 (definition of “conviction”), so long as the person is incarcerated in a prison or house of correction, on parole or probation, or has his liberty otherwise restrained due to such conviction, § 2(2), and he asserts that he is factually innocent of the offense. § 2(3). (Citations refer to sections of chapter 278A of the Massachusetts General Laws, added by the Act.) Arguably eligibility to file a motion under chapter 278A would also extend to those whose liberty is restricted by being required to register as a sex offender. See Doe v. Sex Offender Registry Bd., 447 Mass.768, 775 (2006) (“In the context of sex offender registration, an offender’s liberty and privacy interests are constitutionally protected, and deprivation of these interests generally requires procedural due process.”). The right afforded by the Act to seek analysis may not be waived under any conditions, whether in a plea agreement, sentencing, appeal or any correctional status, § 15, but the person seeking access and the Commonwealth are free to agree on other procedures. § 2.
B. How Do Persons Seek Access to Scientific and Forensic Analysis?
A person seeks analysis by filing a motion, in the trial court of the original conviction, with the same case name and docket number as the conviction, § 3(a), a copy of which must also be served on the prosecutor. § 4(a). The Act does not specify what types of forensic or scientific analysis may be available, except that the requested analysis must produce evidence that is admissible in courts of the Commonwealth. § 3(b)(2). It is not limited, for example, toDNA testing.
1. Requirements for Motion for Access to Analysis
Requirements for a motion for access to analysis are in Section 3 of Chapter 278A. The movant must set forth, § 3(b)(1)-(5):
- the type of scientific or forensic analysis sought,
- that the results of such testing or analysis are admissible inMassachusettscourts,
- a description of the evidence to be tested, including its location if known and chain of custody,
- information “demonstrating that the analysis has the potential to result in information that is material to the movant’s identification as the perpetrator of the crime,” and
- information showing that the evidence has not been subjected to the analysis for some reason beyond the movant’s control.
Although the Act does not explicitly state this, the items to be tested need not have been formally offered into, or admitted as, evidence in the case, as the Act specifically provides for access to analysis in cases for which no evidence will have been admitted (guilty or nolo contendere pleas) and of items that are in the possession of third parties, including specifically “items and biological materials.” § 7(c).
2. Required Evidentiary Significance of the Analysis Sought
The probative value of the analysis sought must simply be that it “has the potential to result in information that is material to the movant’s identification as the perpetrator of the crime.” To grant the motion, the Court must find this potential by a preponderance of the evidence. § 7(b)(4). This is a less-demanding standard than the standard for discovery under Rule 30 of the Massachusetts Rules of Criminal Procedure, although it applies only in the limited context of the perpetrator’s identification. Rule 30(c)(4) provides a judge may authorize discovery “where affidavits filed by the moving party establish a prima facie case for relief.” The Supreme Judicial Court has explained, in Commonwealth v. Daniels, 445 Mass. 392, 407 (2005), that the “prima facie case” in this context means a case sufficiently strong to go to the jury:
In requesting such discovery, the defendant must make a sufficient showing that the discovery is reasonably likely to uncover evidence that might warrant granting a new trial. See Reporter’s Notes, supra (“Discovery is appropriate where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he or she is entitled to relief”).
Unlike the standard for discovery under Rule 30(c)(4), a motion under the Act need not show that it is “reasonably likely” to result in information but only that it “has the potential” to do so. The focus of this information, however, must be narrower than that it “might warrant grant of a new trial”; instead it must be “material to the movant’s identification as the perpetrator.”
3. Cause for Seeking Post-Conviction Analysis
A movant must set forth cause for not having previously sought or obtained the requested forensic or scientific analysis. The Act offers six possible grounds (§§ 3(b)(5)(i)-(v)):
- the analysis had not been developed at the time of the conviction,
- results of the analysis were not yet admissible inMassachusettscourts,
- the defense was not aware of the material and had no reason to be aware of it at the time,
- the movant’s lawyer had been ineffective by not seeking analysis,
- the movant had been denied the analysis by the trial court, or
- the “catch-all” that the material was otherwise unavailable to the movant at the time.
To the extent that a movant cannot include any of the information necessary to satisfy the requirements of the Act, the movant must include a description of efforts to obtain the information and can then seek discovery. § 3(c).
The Act makes clear that an otherwise eligible movant may not be denied analysis because he plead guilty or nolo contendere, or because he made or is alleged to have made an incriminating statement. § 3(d). This provision was included in recognition of the fact that in a significant proportion of exonerations, defendants have falsely confessed to crimes they did not commit. A movant must file an affidavit that he is seeking the requested testing because he is factually innocent, that the testing or analysis will support this claim and, if he pled guilty or made an incriminating statement, that his motion is made notwithstanding his having entered the guilty plea and/or made the incriminating statement. Id.
A. Threshold Determination
The Act provides that the trial court shall “expeditiously review” motions to determine whether the movant has satisfied the initial requirements for access to analysis. § 3(e). This threshold determination is not intended to be dispositive but to ensure that sufficient information is provided for the Commonwealth to assess the motion and for the Court to conduct a meaningful hearing. Motions that do not satisfy the initial requirements of Section 3 may be dismissed without prejudice (and without a hearing). Id. At this point, the Court’s determination is simply “whether the motion is sufficient to proceed under this chapter or is dismissed.” Id. The Court must notify the movant and the prosecutor of its threshold decision. Id.
B. Response by Commonwealth
The prosecutor may, but need not, respond to the motion to “assist the court in considering whether the motion meets the requirement under this section.” If the Court finds that the motion satisfies the threshold requirements of Section 3, the prosecutor then has sixty days to respond, which may be enlarged for good cause. § 4(b). This is also an opportunity for the prosecutor to raise “any specific legal or factual objections” to the analysis sought. § 4(c). The prosecutor is required to notify the victim of the filing of a motion for analysis. § 14(a).
C. Appointment of Counsel and Costs
The court may appoint counsel to represent indigent movants in preparing and presenting motions for access. § 5. If analysis is ordered, the costs of analysis are to be paid by the movant if he or she is not indigent (as defined for appointment of counsel purposes), as an extra fee or cost if the movant is indigent, and to the “maximum feasible amount” given the financial resources of the movant “as the court deems equitable” if the movant is indigent but has the ability to pay a reduced fee. § 10(1)-(3).
The Act provides that the Court may authorize discovery, as provided in Rule 30(c)(4) of the Massachusetts Rules of Criminal Procedure, at the request of either party, from either party or any third party. § 7(c). Discovery may be necessary, for example, because the movant lacks information concerning the location, existence or chain of custody of items sought to be analyzed. The prosecutor might seek biological material from the movant (i.e., the defendant’s DNA sample for comparison) or from the victim of the crime – for example, test results that exclude the defendant may not be probative of his innocence if the biological material belongs to the victim. The movant is specifically obligated to cooperate with analysis ordered, including by providing biological samples, and unreasonable failure to do so may result in dismissal of the motion with prejudice. § 8(f).
Note that discovery under the Act, although it uses the mechanism of Rule 30(c)(4), may not be conditioned upon “establishment of a prima facie case.” § 7(c). In other words, substantial, even overwhelming, evidence of guilt, should not impede the movant’s ability to discover information needed for the requested analysis if the analysis has the potential to result in evidence that is material to the moving party’s identification as the perpetrator.
If the movant satisfies the threshold requirements for filing, a hearing is mandatory. § 6(a). The movant must be present for this hearing unless he waives his presence. Id. Contrast this with Rule 30(c)(3) & (6), Massachusetts Rules of Criminal Procedure, which permit a judge to rule on post-conviction motions on affidavits without a hearing or at a hearing without the movant’s presence.
The judge who conducted the trial or accepted the movant’s pleas “shall conduct the hearing if possible.” § 6(b). This parallels the practice under Rule 30 of having the trial judge hear the post-conviction motion in the first instance for reasons of efficiency given familiarity with the case. However, this very familiarity could introduce bias, and thus the Reporter’s Notes to Rule 30 provide that “[r]ecusal of the trial judge should be liberally exercised, particularly where it is requested by the moving party.” A similar risk may exist with motions for access under the Act.
F. Judicial Determination
The judge must permit the requested analysis if he or she concludes that each of the threshold requirements in section 3 has been established by a preponderance of the evidence. § 7(b). That is, the Court must find, under §§ 7(b)(1)-(6):
- the evidence or biological material exists,
- it has been subject “to a chain of custody that is sufficient to establish that it has not deteriorated, been substituted, tampered with, replaced, handled or altered such that the results of the requested analysis would lack any probative value,”
- it has not been subject to the requested analysis for any of the reasons identified as permissible cause,
- the requested analysis has the potential to result in evidence that is material to the moving party’s identification as the perpetrator,”
- the motion’s purpose is not obstruction of justice or delay, and
- the results of the requested analysis are admissible inMassachusettscourts.
The court must state its findings of fact and conclusions of law on the record or issue written findings. § 7(a). An order allowing or denying a motion for analysis is a final appealable order, and the party appealing must do so within thirty days of the order’s entry. § 18. (The appeal provision states that a notice of appeal shall be filed “within 30 days after the entry of the judgment,” although presumably “judgment” refers to the order denying the requested analysis.) If a court allows a motion for analysis, the prosecutor must notify the victims, including anyone who suffered direct or threatened physical, emotional or financial harm, as well as the parent, guardian or representative of such a person if the victim was a minor or has died. § 14(b), § 1 (definition of “victim”).
G. Procedure for Forensic or Scientific Analysis
The judge who allows a motion for analysis also specifies the conditions under which it occurs, including transportation and handling of the evidence or biological material to protect its integrity. § 8(a). The parties may agree on any accredited testing facility, which may be the Massachusetts State Police Crime Laboratory or the Boston Police Crime Laboratory (unless the analysis will exhaust the material and prevent replicate testing). § 8(b). If the parties are unable to agree, the Act sets forth a procedure by which each side provides a list of up to three facilities, from which the court selects one. § 8(c).
Exhaustive testing may not be done except upon a “specific order of the court.” Upon request, the court may order that representatives be permitted to observe exhaustive testing procedures, unless this conflicts with laboratory practices. § 8(e).
The process for obtaining forensic or scientific analysis is intended to illuminate the state of the evidence rather than afford either side adversarial advantage; thus, each side is given equal access to all personnel, documents and reports of the testing facility. § 8(d). Similarly, all results of analyses are simultaneously disclosed to the movant, the prosecutor and the court. § 12(a). If the results are inconclusive, the court may order additional analysis if it concludes the original requirements for testing are still met. § 13. Presumably this will most often turn on whether the additional analysis has the potential to result in evidence material to the movant’s identification as the perpetrator.
The Act improves the accuracy of the criminal justice system in two ways. By establishing a process for defendants who claim wrongful conviction to get testing that can show error in their cases, it enables efficient examination of claims of factual error. This helps ensure past cases have been solved correctly. By creating an obligation for the Commonwealth to retain and preserve material from criminal investigations, it provides a tool to help solve future cases, and prevent future potential errors, as techniques of forensic and scientific analysis improve. This helps ensure future cases will be solved and increases the likelihood they will be solved correctly. In the Fall 2012 edition of the Boston Bar Journal, we will review the state’s retention and preservation obligations, and suggest how policies to implement these obligations might be developed.
Samuel R. Gross et. al., Exonerations in the United States 1989 Through 2003, 95 J. Crim. L. & Criminol. 523, 544 (2005) (15% of exonerations between 1989 and 2003, 51 out of 340, involved false confessions).
David M. Siegel is a Professor of Law at New England Law | Boston specializing in Criminal Law, Criminal Procedure and Evidence.
Gregory I. Massing is Executive Director of the Rappaport Center for Law and Public Service at Suffolk University Law School. He was General Counsel of the Massachusetts Executive Office of Public Safety from 2007 through 2011.
(The authors were members of the Boston Bar Association’s 2008-2009 Task Force to Prevent Wrongful Convictions. The opinions expressed here are those of the authors and do not represent those of the Task Force, its members or the BBA.)