by Anne Goldbach and Nathan Tamulis
We are attorneys for the Committee for Public Counsel Services (CPSC). As public defenders who specialize in forensics, we provide help and support to a multitude of criminal defense attorneys from all over the state. Public defenders and private court-appointed attorneys call, visit, or email us with forensics questions in almost any area you can think of where forensics plays a role in criminal cases.
Last August, on a beautiful late summer day, we traveled to Devens, Massachusetts to participate in the five week training of a very large class of new public defenders. Our regular work would be done in the early morning, during breaks, and in the evenings. The day was proceeding well, with sessions on criminal defender practice, the right to counsel, court structure, and client relations. Suddenly, the afternoon was disrupted by an important and startling announcement: Governor Patrick had ordered the immediate closing of the Department of Public Health (DPH) drug lab in Jamaica Plain! Email was pouring in, the story was all over the web, and reporters were clamoring to reach us. It was hard to imagine what sort of problems would justify shutting down the entire lab indefinitely.
We had been on alert about work coming from this drug lab since February, 2012 when we learned that a breach of protocol had occurred in June, 2011. We had already advised the defense bar that it would be unwise to accept at face value assertions made by the DPH and some prosecutors – that there had been only one minor breach of a clerical nature that hadn’t affected the accuracy or integrity of the drug analyses. In short order, we learned that Colonel Alben of the Massachusetts State Police had announced that a chemist involved in testing drugs for thousands of cases from 2003 to early 2012 had breached procedures in the handling of evidence. There was concern that people, many of them CPCS clients, were wrongly convicted on tainted evidence. We were eager to find out what the chemist had done, what other problems existed at that lab, and what the authorities knew that we didn’t yet know.
MELENDEZ-DIAZ & THE NAS REPORT
In the chaotic days that followed, we scrambled to learn more and to advise defense attorneys about how to proceed. In the midst of this, we realized that we were much better equipped to face the challenges of the drug lab scandal than we would have been just four years ago – thanks to a landmark Supreme Court decision and a comprehensive National Academies of Sciences (NAS) Report.
Until 2009, notarized certificates of drug analysis were sufficient to prove that a seized item was a controlled substance. That changed when the Supreme Court handed down the decision Melendez-Diaz v. Massachusetts, which held that pursuant to Crawford v. Washington, certificates of drug analysis were testimonial in nature and drug analysts were necessary witnesses for purposes of the Sixth Amendment. Thus, the Confrontation Clause of the 6th Amendment of the United States Constitution requires that defendants have the ability to confront and cross-examine drug analysts at trial.
This finding was complementary to another watershed moment in 2009 – the publication of the NAS Report, Strengthening Forensic Science in the United States: A Path Forward. The NAS Report made wide-ranging recommendations in important forensics applications. Justice Scalia quoted the NAS Report in Melendez-Diaz: “[f]orensic evidence is not uniquely immune from the risk of manipulation….. A forensic analyst responding to a request from a law enforcement official may feel pressure–or have an incentive–to alter the evidence in a manner favorable to the prosecution. Confrontation is one means of assuring accurate forensic analysis…”
Both Melendez-Diaz and the NAS Report advanced essential elements of our criminal justice system: transparency, accountability and scrutiny. Melendez-Diaz underscored an important principle: the Confrontation Clause protects more than the accused; it requires the system to demonstrate that it is an open and fair one, for every citizen can now see into the police car, into the laboratory, and into the courtroom. Now we had the ability to question previously inscrutable chemists on the stand, and the NAS Report provided guidance for framing and directing our questions. Now defense counsel was better equipped to fulfill the duty of scrutinizing forensic science in criminal cases to assure that it is fair and accurate.
This was to be an era of increased scrutiny of the drug labs, of their analysts, and their procedures, oversight, and documentation. This was to be an era of improved accuracy and reliability in forensic science. Both the NAS Report and Melendez-Diaz recognized that in a vacuum, test results from analytical machinery can seem impeccably objective and unimpeachable. But test results are only as good as the people who prepped the samples, maintained and calibrated the machinery, and utilized scientifically validated procedures to produce the results.
In the wake of the drug lab closure, we understood that the teachings of Melendez-Diaz and the NAS Report would be tremendously useful in fighting for our clients’ rights. Moreover, they would help us learn how a lab scandal of this magnitude could happen.
Guided by these two milestones, defense attorneys recognized the importance of educating themselves in detail about technical aspects of drug analysis. They sought the kind of discovery that would allow them to more closely scrutinize the basis of drug analysis and the people who conducted those analyses. They asked for the written procedures, the documentation of equipment calibrations, and the chain of custody which should follow drug samples from the moment of seizure, through the laboratory, and their return to police custody. They developed detailed cross-examination of the chemists who tested drugs in their clients’ cases.
As packages of discovery were turned over, a much clearer and astonishing picture of the lab started to emerge. There were no written testing procedures, no training records, insufficient documentation, insufficient Quality Control and Assurance, lax supervision, and management woes. The lab was unaccredited and unregulated by any third party organizations. Problems went unaddressed for years. One of these problems was Annie Dookhan.
Annie Dookhan was hired in November of 2003. She began testing in earnest in January of 2004 and quickly took the lead by far in number of samples tested. In 2004 and 2005 she performed three times the number of tests than her average co-worker, some of whom had years of experience. This remarkable level of performance continued through her entire eight year career at the lab. She became a mass spectroscopy chemist and also assumed responsibility for other tasks, including instrument maintenance and Quality Control and Assurance tasks. She carried on, unchecked, until the June 2011 discovery of a “small” breach that ultimately led to the unraveling of the entire laboratory. Some of the most alarming allegations thus far are that she falsified records and purposely contaminated drug samples.
GOING FROM SWIFT JUSTICE TO THE LONG HAUL
Months have passed, and the path to justice for our clients is shaping up to be a long march. The task of identifying the hundreds to thousands of clients who have been affected is ongoing. The drug lab scandal has affected so many people – those who are in custody awaiting trial, those who stand convicted on the basis of potentially tainted evidence and are serving sentences or are on probation and parole, and those who have completed their sentences. On the basis of these tainted cases, people have been held in custody by immigration, or lost their jobs, public housing, drivers’ licenses, or even lost custody of their children. The list goes on and on.
Courts are working to find ways to handle these cases. Motions to withdraw guilty pleas and motions for new trials have been heard and will be heard. In some cases, clients have obtained resolutions by way of pleas to lesser charges and more lenient sentences. Other cases are moving to the Appeals Court and the Supreme Judicial Court as the District Attorneys challenge the authority of specially assigned magistrates and the allowance of some motions. Calls from the defense bar for a unified, systemic solution have gone unanswered to date.
The NAS Report says “…. the quality of forensic practice in most disciplines varies greatly because of the absence of adequate training and continuing education, rigorous mandatory certification and accreditation programs, adherence to robust performance standards, and effective oversight. These shortcomings obviously pose a continuing and serious threat to the quality and credibility of forensic science practice.” These were all serious problems at the DPH Drug lab, issues that allowed misconduct to go uncorrected for years.
As put forth by Melendez-Diaz, the heart of our adversarial system is confrontation and inquiry. The defense bar will continue to ask questions of the analysts to see that justice is done for our clients. Armed with the NAS Report, and a new appreciation for how forensics should properly be viewed by the courts, we will continue to fulfill our role as zealous advocates. Proper advocacy by defense counsel is not only important to the rights of individual defendants but also essential to the proper functioning of our justice system. We will improve the system.
ANNE C. GOLDBACH is the Forensic Services Director for the Committee for Public Counsel Services. In this capacity, she acts as a resource on forensics issues and experts for public defenders and private counsel attorneys across the state.
NATHAN A. TAMULIS is a Forensics Support Attorney with CPCS. He has many years of experience in the laboratory and uses that knowledge to assist defense attorneys with forensic issues.
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.)