Learning from Omar: The Case for Public Funding of Postconviction Innocence Defense

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by Sharon L. Beckman

Viewpoint

In 2020, the Boston College Innocence Program secured the exoneration of clients Frances Choy and Ronnie Qualls and the release of a third client pending further litigation. The program has also made significant contributions to law and practice reform efforts. The Boston Bar Journal asked BCIP’s Director, Boston College Law Professor Sharon Beckman, to comment on what is behind the program’s success and to share a lesson learned in her clinic.

About the Boston College Innocence Program

BCIP is an academic and clinical legal educational program at Boston College Law School that allows students and faculty to study the problem of wrongful convictions and work to remedy and prevent these injustices. We investigate and litigate on behalf of wrongfully convicted clients, and we engage in research and advocacy in support of law and policy reform initiatives. Our primary goals are to educate reflective practitioners who use their legal skills to help victims of injustice, and to generate ideas for making the legal system more just. BCIP students work with academics across the university and with a wide range of legal professionals, but they learn the most from our clients: men and women wrongfully convicted in Massachusetts for crimes they did not commit who give us the privilege of being their legal advocates. It is in accompanying them on their quest for justice that we gain insight into how the system has failed them and how it could be reformed. This started with our very first client, Christopher “Omar” Martinez.

Omar’s Ordeal

In 1999, when Omar was 19 years old, his friend Eddy Reynoso was shot to death just inside the door of his Springfield apartment. The prosecution alleged that Omar, who had never been involved with any crime, murdered Eddy because Eddy teased him about a girl. No physical evidence connected Omar with the crime, and witnesses testified that someone else had threatened Eddy just two days before he was killed. Nevertheless, after seven hours of custodial police interrogation, Omar, a Spanish speaker, signed an inculpatory statement typed in English by the police. Several aspects of the statement did not add up, a red flag for false confessions. Notably, the statement set forth a purported conversation between Omar and Eddy right before the shooting that was inconsistent with the earwitness accounts of Eddy’s neighbors who heard the killer speak to Eddy before shooting him to death. The neighbors heard the killer ask “Are you Eddy?,” a question that Omar, who knew Eddy, would not have asked. Defense counsel’s opening statement promised jurors that they would hear from a neighbor who knew Omar and would tell them that the voice he heard at Eddy’s door was not Omar’s; but that man, Wilbert Diaz, did not testify at Omar’s trial. On October 2, 2002, Omar was convicted of second-degree murder and sentenced to life in prison.

In 2004, Omar’s appointed appellate counsel, Chauncey Wood, filed a motion for postconviction relief, along with a motion for funds for an investigator to locate and interview Diaz. The prosecution opposed both motions. The judge who had presided over the trial denied these motions, and the Massachusetts Appeals Court affirmed, deferring to the trial judge’s finding that “the defendant failed to make a prima facie showing that Diaz would provide exculpatory evidence and that there was no reason to believe that Diaz’s testimony would likely have influenced the jury’s conclusion.” Commonwealth v. Ortiz, 67 Mass. App. 349, 354 (2006). Wood argued that, since Diaz told the police he knew Omar, it could be inferred that Diaz would be able to testify that the killer’s voice was not Omar’s. The Appeals Court disagreed, speculating that it was “equally inferable that Diaz, based upon his friendship with the defendant, chose not to tell the police that he recognized the voice as being that of the defendant.” Id. The SJC denied Omar’s application for further appellate review in 2006.

A decade later, after Omar had served 16 years in prison, BCIP joined Wood as pro bono counsel for Omar. Over the next three years, BCIP Supervising Staff Attorney Charlotte Whitmore led a BCIP team that included three law professors, eight law students, two graduate social work students, and several undergraduates who collectively committed thousands of pro bono hours to Omar’s case. Wood and the BCIP legal team investigated, researched, drafted, and litigated a successful motion for postconviction relief for Omar. Lauren Rossman, BC Law ’19 and now a BCIP Staff Attorney, was awarded the SJC’s 2019 Adams Pro Bono Publico Award for her investigative work on Omar’s case. The investigation was aided by funds from a federal grant to the Committee for Public Counsel Services, BCIP, and the New England Innocence Project. It also relied on a grant from “Running for Innocence,” a nonprofit fundraiser established by CPCS Innocence Program Director Lisa Kavanaugh in honor of her client Victor Rosario, who ran long distances on a dirt track at MCI Norfolk before his wrongful convictions were vacated. When Rosario was exonerated after 32 years of imprisonment, he and Kavanaugh ran the 2016 New York Marathon together to raise funds to help other prisoners seeking to prove their innocence.

By 2019, the trial judge had retired, and Omar’s new motion for postconviction relief was assigned to Judge John Ferrara. Commonwealth v. Ortiz, Hampden Superior Court, No. 9979CR02546, slip. op. (May 9, 2019). During an evidentiary hearing that spanned four days, Wilbert Diaz testified that he knew Eddy and Omar from the mini-mart where they all worked part-time. He was very familiar with Omar’s voice. Diaz testified that he did not recognize the voice of the man he heard speaking with Eddy before he was shot, but he was positive it was not Omar’s voice. When he learned Omar had been arrested for Eddy’s murder, Diaz was “shocked.” 

Diaz testified that he moved out of his Springfield apartment shortly after the shooting and settled in Worcester. He met with the trial prosecutor over a year before Omar’s trial, in response to a summons the prosecution sent to his Worcester address. After meeting with Diaz and going over his statement with him, the prosecutor told Diaz he likely would not have to appear as a witness. Although the Commonwealth was under court order to provide defense counsel with the current addresses of those on its witness list, the prosecution listed Diaz as living at his old Springfield address. The prosecutor never provided defense counsel with Diaz’s Worcester address. This nondisclosure explained why Omar’s trial attorney failed to deliver on his promise to the jury: he could not locate Diaz, because he was looking for him in the wrong place.

In vacating Omar’s convictions, Judge Ferrara found that the “most compelling evidence presented” was the “highly credible” testimony of Wilbert Diaz. Contrary to the original trial judge’s assessment that “the absence of Diaz’s testimony did no ‘real harm to the overall defense’ and ‘no real potential tactical disadvantage . . . could have arisen from the failure’ to call Diaz,” 67 Mass. App. Ct at 361, Judge Ferrara found that Diaz’s testimony was “exculpatory and important,” casting real doubt on the justice of Omar’s convictions. On April 23, 2019, Omar, then 39 years old, was released into the arms of his family members, after having served nearly two decades in prison for a crime he did not commit.

The Human Toll of Wrongful Convictions

Rarely is there a single cause of a wrongful conviction. More often, the misconduct or errors of multiple actors interact and cascade into an erroneous result. In Omar’s case, Judge Ferrara found that prosecutorial misconduct and ineffective assistance of defense counsel prevented the jury from hearing Diaz’s exculpatory testimony. He also found that the police had engaged in interrogation techniques known to produce false confessions. Omar’s case is not exceptional: according to the National Registry of Exonerations (NRE), 85% of those wrongfully convicted of murder and exonerated in Massachusetts since 1989 were victims of official misconduct by prosecutors or police. 33% received an inadequate defense. Five Massachusetts exonerees had signed incriminating statements or were alleged by police to have confessed to crimes they did not commit. Some of BCIP’s research and policy work addresses the known causes of wrongful convictions in an effort to prevent them before they occur. Here, however, my focus is on what happened to Omar after his wrongful conviction: we now know that as a result of the denial of Omar’s 2004 motion for investigative funds to find Diaz, Omar spent an extra 15 years in prison for a crime he did not commit.

Omar has the support of a loving family and a social work team headed by Claire Donohue, BC Law’s Director of Interdisciplinary Practice; yet the tragedy of his decades of wrongful imprisonment can never be made right. Imagine if you were wrongfully imprisoned from age 19 to age 39. What would you have suffered? What important relationships and life experiences would you have missed? Now multiply that suffering and loss by 75 — the number of Massachusetts prisoners exonerated since 1989. Collectively, they served over 950 years in prison — an average of almost 13 years each — for crimes they did not commit. While more research is necessary to understand all of the reasons it takes our legal system so long to remedy a wrongful conviction, it is clear that inadequate funding for postconviction indigent defense plays a significant role.

Judicial Discretion Regarding Postconviction Indigent Defense Funding

Mass. R. Crim. P. 30(c)(5) authorizes courts to “exercise discretion” to appoint counsel and “to allow the defendant costs associated with the preparation and presentation of a motion” for postconviction relief. So what went wrong in Omar’s case?  

In affirming the trial judge’s denial of investigative funds to Omar, the Appeals Court cited the Reporter’s Notes to Rule 30(c)(5). The Notes advise judges to “take into account the likelihood that the expenditures will result in the defendant’s being able to present a meritorious ground for a new trial.” Omar’s case illustrates the problem with that predictive enterprise. His motion was denied because he could not prove in advance the very thing he sought funds to investigate: whether Diaz’s testimony could help prove his innocence. Conditioning defense funding on already showing “a meritorious ground for a new trial” creates an untenable “Catch-22” for indigent people, who need public funding for investigation and assistance from experts to discover the facts and science corroborating their innocence claims. In cases like Omar’s, where funds are sought to discover exculpatory information that is not already in the trial record, the suggestion in the Reporter’s Notes that judges should “take into account their familiarity with the original record . . . in declining to appoint counsel” seems more likely to invite confirmation bias than to promote justice.

In Omar’s case, the courts may have also relied to Omar’s detriment on the comments in the Reporter’s Notes that, “unlike a request for costs prior to trial, in the context of a new trial motion there is no reason to deny the Commonwealth an opportunity to participate in a hearing on this type of request to avoid [] prejudice” to the defense, and that “the Commonwealth’s participation in this process will result in a better informed decision.” While opposing Omar’s postconviction motion for funds to locate Diaz, the prosecution never informed the trial judge or the Appeals Court that it knew Diaz’s location, let alone that it had known Diaz’s location before trial and had violated the discovery order to produce it to defense counsel. The prosecution actively impeded Omar’s efforts to secure funds to locate Diaz, while continuing to conceal its own ongoing misconduct. Tragically, the Commonwealth’s participation in Omar’s postconviction funds litigation led to a less informed decision, prolonging the incarceration of an innocent man.

As the source of its guidance on Rule 30(c)(5) motions for funds, the Reporter cites Commonwealth v. Conceicao, 388 Mass. 255 (1983), holding that indigent prisoners have no right to counsel in postconviction proceedings, and dicta in a footnote in Commonwealth v. Davis, 410 Mass. 680, 684 & n. 7 (1991), reasoning that if there is no right to postconviction counsel, then “surely” the Constitution does not require the Commonwealth “to fund postconviction investigations that may reveal exculpatory evidence.” Conceicao denied postconviction counsel to an indigent prisoner convicted solely on the basis of eyewitness identification testimony under circumstances that would not be allowed today. Today, we know that 75% of Massachusetts DNA exonerees were victims of eyewitness misidentification. Social science research about the fallibility of human perception and memory has changed the law, as well as police and trial practices, relating to eyewitness identification testimony. The SJC’s decisions granting postconviction relief under Rule 30(b) now recognize the importance of newly discovered evidence, including forensic and scientific advances, in determining whether “it appears that justice may not have been done.” Conceicao emphasized the “direct costs and serious collateral disadvantages” of appointing counsel in cases where the trial court sees no “need or the likelihood . . . for a constructive contribution by counsel,” without even mentioning that Conceicao had denied any involvement in the crime. Clearly, in 1983, the SJC did not anticipate the important role that factual investigation and scientific expertise would come to play in the Innocence Movement that was yet to come.

Toward Public Funding of Postconviction Innocence Defense

In the context of motions for DNA testing or other forensic or scientific testing of physical evidence, Rule 30(c)’s long delays and impediments led to the enactment of G. L. c. 278A, which authorizes courts to order postconviction forensic or scientific analysis testing for individuals who assert factual innocence of the crimes for which they were convicted. To obtain testing, a person must show, among other elements, that the requested analysis “has the potential to result in evidence that is material to” factual innocence. The SJC has construed G. L. c. 278A liberally in order to achieve its goal of providing increased, expeditious access to scientific or forensic testing that is potentially material to a claim of factual innocence. See, e.g., Commonwealth v. Wade, 467 Mass. 496, 509 (2014).

G. L. c. 278A provides an important investigative path to justice in cases where DNA or other scientific testing of physical evidence could be material to the question of factual innocence, but only 20% of Massachusetts exonerations have been achieved through DNA testing. In the other 80% of Massachusetts exonerations, the convictions were vacated on other grounds, including newly discovered evidence and expert testimony. Omar’s case illustrates why a similar recalibration of the cost-benefit analysis is required for Rule 30(c)(5) motions for postconviction indigent defense funds.

BCIP student Nat Carney, BC Law ’21, wrote an excellent paper last year in my Wrongful Convictions seminar calling for legislation similar to G. L. c. 278A for motions for postconviction defense funds. My former student Samuel Jockel published a paper urging the SJC to reverse Conceicao and recognize a Massachusetts constitutional right to postconviction counsel for prisoners asserting factual innocence. Fulfilling the Promise of Gideon in Massachusetts:  Providing a Post-Conviction Right to Counsel for Prisoners Asserting Innocence, 26 B.U. Pub. Int. L. J. 205 (2017). Their ideas are compelling. Another approach would be for the SJC Standing Advisory Committee on the Rules of Criminal Procedure to undertake a review of Rule 30(c)(5), and the corresponding Reporter’s Notes, in light of lessons learned from the Innocence Movement and Massachusetts exonerations. Whether by legislative or judicial action, Massachusetts must find a way to afford all indigent prisoners who maintain they were wrongfully convicted meaningful access to postconviction legal representation, including funding for investigation and expert consultation. This is a moral duty of the Commonwealth, not something that should depend on private charity or the pro bono efforts of students.

In the meantime, courts ruling on postconviction motions for defense funds should exercise their discretion to grant these motions more liberally, as they do now in the pretrial context and as the text of Rule 30(c)(5) permits them to do. They should allow such motions whenever the investigation or expert consultation has sufficient potential to produce information material to a claim of wrongful conviction such that a similarly situated person with financial resources would expend the funds to pursue it. In considering the cost of such motions, judges should also consider the human and systemic costs of denying indigent persons who maintain their factual innocence the funds necessary to investigate and prove their claims. No one should suffer as Omar did, serving time in prison for a crime they did not commit, merely because they lack the resources to defend themselves.

Sharon L. Beckman is Associate Clinical Professor of Law at Boston College Law School and the Director of the Boston College Innocence Program.  She serves on the SJC Standing Committee on Eyewitness Identification, the Massachusetts Conviction Integrity Working Group, and the CJA Panel of the U.S. Court of Appeals for the First Circuit.  She was a law clerk for (ret.) U.S. Supreme Court Justice Sandra Day O’Connor and for the Hon. Frank Coffin on the U.S. Court of Appeals for the First Circuit.


Preserving Evidence To Convict the Guilty and Protect the Innocent: Massachusetts’ Post-Conviction Access to Forensic and Scientific Analysis Act

By David M. Siegel and Gregory I. Massing

Legal Analysis

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.)

III. Conclusion

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.

[viii] Compare Senate Bill No. 753, the bill as originally filed, with Senate Bill No. 1987, the substitute bill reported out of the Senate Ways and Means Committee.  See Senate Journal July 27, 2011.

[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.