I am trying to set up a guilty plea in a capital murder case for life w/o parole.

I'd like to have the defendant waive any further DNA testing. Has anyone done this with success? Can anyone think of a problem with this sort of waiver?

Just be sure to couch whatever you draft in terms of CCP 1.14 and it becomes hard to argue that the defendant can't have waived it.

I prefer John's approach. It has a final result and that is what you are seeking. Anything else can always be assailed at a later time.

JAS

Hey pal, I'm busy working here.

Include a waiver of the right to contest destruction of the DNA evidence and then, immediately after the plea, give notice of destruction under CCP Art. 38.43.

Of course, this all assumes we will, in fact, destroy the evidence. We NEVER seem to do that here. . . . Thanks all.

I just realized that my CM defendant has 2 codefendants who have the right to have the same evidence preserved.

I guess multiple waivers would be in order, but is it fair to condition a plea on the actions of a codefendant? I can see down the road, "I never WANTED to waive that right, it's just that I was pressured by my codefendant. And I'm really innocent and if you hadn't destroyed the evidence, I'd be a free man" . . . blah blah blah. It seems weird to tie the guilty pleas all together like that. And dangerous.

Once again, you've made the top ten of Grist for Breakfast, your fan club.

Here's a link to the Grits for Breakfast blog that has a link to this forum: http://gritsforbreakfast.blogspot.com/2007/02/destruction-of-dna-evidence-thwarts.html

I have three comments on this blog thread, in descending order of importance.

First, there is an anonymous posting in which the poster is identifying himself as Judge Ron Chapman. Judge Chapman is a retired Dallas County judge, who has been an assigned judge as recently as October 2006, and is a respected jurist. The statement that John Bradley should be "investigated by the Legislature and the State Bar" is an entirely inappropriate comment, which a judge would not make. Retired judges who accept assignments are subject to the Texas Code of Judicial Conduct and, as such, would not cast doubt on their impartiality by making such comments in public. (See, e.g., Tex. Code Jud. Cond., canon 4(a)(1); canon 3(b)(10); canon 6(f)). I believe I will file a criminal complaint in Travis County, where the blog's creator is located, as I believe that someone is stealing Judge Chapman's identity and/or impersonating a public servant.

Second, this blog string is a good example of a non-attorney misunderstanding general principles of how the law works: here, settlement negotiations. I now practice exclusively civil law, and am always struck by the similarities between the settlement process in civil law and the plea process in criminal law. For example, I just tried a year-long civil case regarding a piece of commercial property my client has leased for twelve years. I was able to prevent a summary judgment (quick disposition by the judge, without a jury trial) three times, and won a unanimous jury verdict in a companion eviction trial. But, ultimately, we lost in district court on who would get to keep the property under a contract between the landlord and my client. The district court ordered my client to vacate within thirty days and to pay a substantial amount of money. Seems bad, right? Not really, for settlement purposes. Even as the losing defendant, we had several good legal points to raise on appeal. Filing an appeal and posting a minimal bond would have allowed my client to stay on the property for at least another eighteen months, probably more, which is exactly what the landlord did not want. Even in losing, the defendant had a strong bargaining position: the right to an appeal that would tie things up for a very long time. That has enormous settlement value, and allowed me to negotiate an additional seven months on the property for my client at substantially reduced rent, in exchange for waiving all appellate rights.

It's no different when a criminal defendant is negotiating a plea bargain with the State. I do not know the facts of the case John Bradley is talking about here, but the State could have the defendant in a very bad position on guilt/innoncence-- the proverbial bus full of nuns saw him do it, or he videotaped it himself (like that seventeen-year-old rapist in Georgia). But, the Defendant holds bargaining power in how much money and effort he makes the State expend on appeal, and how much pain he causes the victim's family as he strings the process out for decades. The criminal defendant uses this power in negotiating a plea with the State: "Hey, I'll plead guilty and waive my right to further appeal and DNA testing, in exchange for the State not seeking the death penalty and letting me live." The criminal law explicitly authorizes a defendant to make such a a deal, and gives the State permission to destroy biological evidence, because the point is moot due to the plea bargain. This is a negotiated settlement position that any litigator would understand.

It takes effort to explain this to a non-attorney in a way that is comprehensible, but not overly bogged down in details. It is disappointing that an educated segment of the population-- namely, professional writers-- do not make an effort to educate their audience. For this reason, the media are rapidly losing credibility, much as attorneys have lost prestige and honor in the eyes of the general public.

Third, I like grits. A lot. With butter and bacon. Mmmmm! The fact that the blog in question grossly mischaracterizes nuances of settlement law AND is named "Grits for Breakfast?" That is reprehensible.

Despite the overreaction by posters on other websites, prosecutors should not be fearful of following the law. Article 2.21 of the CCP provides for a simple method for disposing of evidence after a conviction is final. Article 38.43, CCP, provides an even more specific process when the evidence involves evidence that could potentially be tested for DNA.

In both cases, destruction of the evidence is lawful. If we did not have such laws, we would have warehouses full of useless evidence.

If a defendant pleads guilty and voluntarily confesses, surely it is reasonable to relieve the state of the ongoing duty to store the evidence for decades. Such a plea occurs only after the state and defendant have taken whatever opportunities they desire to test the physical evidence.

To accomplish such evidence destruction, article 38.23, simply requires the prosecutor or clerk to provide notice to the defendant. If the defendant does not object (thereby waiving his right to preserve the evidence), then it may be destroyed once the time periods designated have passed.

Presumably, the defendant and his attorney have had an opportunity to make decisions on whether they wanted DNA testing done before the plea.

None of this involves a death penalty case. It only involves cases in which the defendant has accepted responsibility, taken all the opportunities he needs to test the evidence, and has agreed that further storage of the evidence in unnecessary.

Final note: the value of this website is the ability of prosecutors to exchange thought and ideas. That value is diminished by the unrestrained and uneducated accusations of others who seek to make political points. But, that should not discourage lawyers from continuing to exchange information -- information that surely even outside posters would agree is available by virtue of the application of the First Amendment to all persons, even prosecutors.

Readers: I am both amused and chagrined at how our friends in the civil libertarian camp are so anxious to pounce on this legal discussion as some sort of evidence of prosecutors with evil intentions.

DNA testing which was not done years ago has led to some folks being released from prison. That's good stuff. Now today in court, if there is any evidence that needs testing to see if DNA will exonerate the defendant, does anyone think that it is not being done? Do the commentators on the Grits web site mentioned above think that the defense attorneys in the case in question forgot to ask to do DNA testing, but someone will remember to do it 20 years from now? Gee, could there possibly be more to the story, or other issues at play here that deserve some intellectually honest discussion?

And have any of our Grits friends talked to Kim or any of the defense attorneys on the case, to judge the appropriateness of the destruction of evidence in that case? (which, by the way, I see Kim determined not to seek.) I think we all know the answer to that.

I must have missed it, but I didn't see anything in the post about how a prosecutor wanted to destroy evidence because the person might be innocent...nor anyone talking about such an idea. Of course the law allows for the destruction of evidence in the proper case after the case is resolved. Why wouldn't it? So why shouldn't a prosecutor be allowed to ask other prosecutors about how that should properly be done?

As an organization that supports public servants, our prosecutors, we have always taken the position that our hosted legal discussions don't need to be secret affairs. We still believe that, notwithstanding the disappointing reactions of others. Kinda embarassing for them, actually, that we are the ones carrying the First Amendment banner here....

My message to the posters on Grits: Rather than try to take every word we say and twist it to fit some pre-conceived notions you are straining to validate, why not be a little more open-minded? Why not try to follow and understand the legal issues discussed?

Any complaints? Feel free to call me at 474-2436.

Thanks, Rob Kepple, Executive Director

FYI, I have confirmed that a bill or amendment will be proposed during this legislative session that would attempt to prohibit these kinds of plea conditions.

Consider that more proof of the global reach of TDCAA's user forums, I guess!

[yes, my tongue was planted firmly in cheek when I wrote that ...]

DNA is focus of plea deal

Murder suspect may forgo future testing to avoid death penalty

09:03 AM CST on Thursday, March 1, 2007

By ROBERT THARP / The Dallas Morning News
rtharp@dallasnews.com

At a time when the careful preservation of DNA evidence is credited
with helping free a dozen Dallas County men from wrongful convictions,
prosecutors asked a capital murder suspect to agree to destroy DNA
evidence in his case as a condition of a plea bargain.

Under the agreement, the man would plead guilty to life without parole
and in exchange avoid a death penalty trial. As part of the deal, the
defendant either would agree to waive future DNA challenges or agree to
have the existing DNA evidence destroyed.

Officials with the district attorney's office say the deal is an
extraordinary and isolated case. District Attorney Craig Watkins said
his office's stance on this case does not affect his vocal position
supporting the ability of convicts to get DNA tests because the
evidence against Paul Emilien is so overwhelming.

Mr. Emilien is charged with the October 2005 robbery and slaying of
19-year-old Anthony Flanery, a clerk at a Lancaster 7-Eleven store.

"It has nothing to do with innocence. The guy's guilty," Mr. Watkins
said. "We have him on video, and we've already done a DNA test. If the
victims are willing to forgo the death penalty, we're going to do
whatever we can to keep this from hanging over their heads in the
future."

DNA tests that have already been conducted and other evidence link the
man to the slaying, and Assistant District Attorney Eric Mountin said
prosecutors are only trying to prevent a frivolous appeal years from
now.

"As far as I'm concerned, I'm very comfortable and confident that the
position I'm taking is not only justified but is the right thing to
do," Mr. Mountin said. "I don't think it's an illegitimate use of a
waiver under these circumstances."

Mr. Emilien's fingerprints were recovered on the store's cash register,
and the store's surveillance camera captured his image during the
robbery. The video shows a person firing at Mr. Flanery as he opens the
cash register. Mr. Emilien and two co-defendants also gave statements
to police about the robbery. And DNA evidence links Mr. Emilien to the
scene.

Mr. Mountin said the district attorney's office is trying to be
respectful of the wishes of Mr. Flanery's family, who have agreed to
avoid a death penalty trial if Mr. Emilien is sentenced to life in
prison without the possibility of parole.

Mr. Emilien's attorneys have seen all the evidence against their
client, and that's why they approached prosecutors with the plea deal,
Mr. Mountin said.

"There's no secrets," he said. "It's not like I'm keeping something
back from the defense. That's why the defense wants to plead, because
there is so much evidence."

Ed King, one of Mr. Emilien's three attorneys, said DNA evidence in his
client's case does not play the same kind of role as DNA evidence in a
sexual assault case, where the identification of someone else's DNA can
prove that someone else committed the crime.

In Mr. Emilien's case, dried blood found on Mr. Emilien's clothing has
been linked to the victim.

"It's not giving up anything," Mr. King said.

The possibility that the plea deal might require that DNA evidence be
destroyed became a hot topic among the legal community after a Dallas
County prosecutor asked for advice on how to structure such a deal on
an Internet user group for Texas prosecutors.

State law allows such plea deal agreements, although it is ultimately
up to the judge presiding over the case whether to accept the terms of
the deal, said University of Texas law professor George Dix.

If the deal is accepted, Mr. Emilien would be the first person in
Dallas County to be sentenced to life without parole.

Since 2001, 12 Dallas County men have had their felony convictions
overturned after obtaining DNA tests that were not available at the
time of their convictions. The law that allows for post-conviction
testing hinges on authorities being able to find DNA evidence from the
old cases.

The majority of the recent exonerations involved convictions from the
1980s in which DNA testing was either not available or the testing
procedures were not as accurate as they are today.

Robert Kepple, executive director of the Texas District and County
Attorneys Association, said prosecutors today make sure DNA testing is
made available to defendants. Dallas County has had more DNA
exonerations than any other jurisdiction in the United States, and Mr.
Kepple said prosecutors are "painfully aware of what's going on and the
[aspersions] cast upon their office as a result."

"Today is much different than 10 to 15 years ago," he said.


"http://www.dallasnews.com/sharedcontent/dws/news/city/dallas/stories/DN-dnadeal_01met.ART0.West.Edition1.4416dc9.html"