I'm aware of at least two jurisdictions having problems with the procedures employed by the Actual Innocence Project (Barry Scheck's organization) during post-conviction DNA testing. In our case, the Project worked with the trial judge to obtain DNA testing of the State's evidence. On obtaining the test results, and having avoided the threshhold requirements of Ch. 64 to obtain results, the defense invoked Ch. 64 to obtain a subsequent writ. By order of the trial court, we were kept in the dark until the subsequent application for a writ (based on the new results) was sought. Let me know if this has happened to you or if you have any suggestions for handling this behavior.

Nobody wants an innocent person to stay in jail so why worry? If they send it to an independant lab then the state doesn't even pay for the test. Is there a chain of custody problem?

Is this different than other annoying ex parte stuff?

What happened to art. 64.02(1) requiring notice to the state? This just smells really bad.

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Originally posted by AlexLayman:
Nobody wants an innocent person to stay in jail so why worry? If they send it to an independant lab then the state doesn't even pay for the test. Is there a chain of custody problem?

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Part of the adversarial system is keeping the other side honest. If only one side is in there telling a lab what to test and how to test it, they can affect the outcome of the testing. The Legislature enacted a process for post-conviction DNA testing and we should use it. If the other side wants to avoid that, and avoid talking to us, they have something to hide.

Kevin:
We have always advocated Ch. 64 controlled. Improper liberties are being taken with 11.071 under the argument that "the ends justify the means."

AlexLayman:
What happens when the defense performs surreptitious testing and obtains unfavorable results? Under their practice, they have no duty to share the information with the State or the Court. How is justice served then?

[This message was edited by John Stride on 11-06-06 at .]

I thought State v. Patrick, 86 S.W.3d 592, expressly forbids trial courts from allowing post-conviction DNA testing outside the framework of article 64.01.

In that case, the Court of Criminal Appeals ruled that the trial court had no jurisdiction to allow private post-conviction DNA testing.

I have not seen any cases from the CCA backtracking from that position.

AlexLayman--
I guarantee you if the State did the same thing and it was discovered, not just the defense bar but everyone who is anti-government would be having a field day. Why is this different? Why shouldn't results that CONFIRM a verdict be discovered just as the ones that are inconclusive or disprove them are (because you know, if the defense secretively tested the DNA and it confirmed the verdict, they would SHUT UP about it)? Wouldn't that give more people faith in the system to find out that yes, the vast majority of jury verdicts are correct? There are rules to guide fairness in the system, even occasionally granting the State a right or two. It would be nice if once in a while the State got some good press on correctly convicting the thousands of dangerous people that we work so hard to get off your streets, rather than being lambasted in the handful of cases that get overturned.

Steve,
We also thought Patrick was crystal clear. We relied on it in our mandamus in Blair last week. The CCA denied the petition w/o written order. When it comes to writs, it seems, the CCA is less than consistent. I believe that stronger, clearer post-conviction statutes are required or just throw them out altogether. The current stuff is simply too wishy-washy.

Why wouldn't it be good for the State to use the new testing technology to verify old convictions? (Assuming the process of testing doesn't destroy the evidence)

Also didn't the Houston lab re-test dozens of cases a few years back just to double-check the results after some sub-par work was discovered?

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if the defense secretively tested the DNA and it confirmed the verdict, they would SHUT UP about it

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I assumed that if the judge ordered the test then the results would automatically be part of the public record. Certainly if the results are secret then it changes my thinking.