Vermont to Allow Prisoners to Request DNA Testing

    Feb. 22, 2007
    Rutland Herald
    By Louis Porter

    MONTPELIER — The Senate is expected to take up a bill allowing prisoners to request testing of DNA evidence.

    In a unanimous preliminary vote, the Senate Judiciary Committee approved the bill, based in part on the work of the Innocence Project, based in New York City, on Wednesday. The committee is expected to give formal approval Friday, and the bill would then move on to the full Senate.

    "I think this is one of the most important bills which will come out of the Judiciary Committee, or any committee, in this building this year," said Sen. Richard Sears, D-Bennington. Having said that "I hope it is never used," Sears added.

    If someone in Vermont is wrongfully convicted of a crime "we owe it to them" to have a system in place through which they can be exonerated, Sears said.

    A majority of states already have a similar law, legislators said.

    One of the most compelling pieces of testimony the committee heard was from Dennis Maher, who spent 19 years in prison after being convicted of rape and other charges from an attack in Lowell, Mass. Maher continued proclaiming his innocence throughout his prison sentence, until his conviction was overturned in 2003.

    If it becomes law, the bill would establish a system through which someone convicted of a crime could request DNA testing of evidence. After a hearing, a superior court judge in the district in which the person was convicted would hear the case, although the judge who presided over the original case would be excluded.

    One of the difficulties in working on the bill was trying to figure out what evidence should be kept and for how long. The desire to ensure that wrongly convicted prisoners have access to evidence that could clear their names had to be balanced against the massive amount of evidence that might have to be stored for decades in some circumstances, officials and experts said.

    "There have been some horrific scenes I have been at over the years that without careful study, could result in carpet, flooring, walls and ceilings having to be disassembled and stored for the next 80 years," said Commissioner of Public Safety Kerry Sleeper.

    Eventually, the committee settled on letting the law move forward, with the Department of Public Safety establishing guidelines for the preservation of evidence. At the same time, a commission will study what procedures the state should establish over the long term for the preservation of such evidence, Sears said.

    Knowing how long such evidence needs to be kept can be difficult. For instance, in a more recent case in Texas, a man convicted of a sex crime involving a child was listed on a sex offender registry for a decade after serving his sentence before DNA evidence proved his innocence, said Stephen Saloom, policy director of the Innocence Project.

    "The 10 years on parole and as a registered sex offender was a tremendous burden on this innocent man," Saloom said. If the evidence in that case had been discarded after conviction, or even after his release from prison, he would not have been exonerated.

    There has yet to be a case in Vermont of a conviction being overturned through DNA evidence, Sleeper said.

    "Vermont should be proud it has a good system," Sleeper said. But "we need to plan ahead for the future" as more evidence gets gathered and saved and new techniques allow it to be used better.

    "Everyone who has gone into that committee room wants the same thing, that no innocent person is ever convicted," Sleeper added.

    "Vermont may well be more just than many other states," Saloom said. "But no one is claiming that it is perfect."

    Matthew Valerio, the state's defender general, said the state's DNA gathering and analysis system is fairly new and convictions have been overturned based on other evidence in the state.

    "I have personally had cases where after the fact people have been exonerated," he said. And DNA evidence discovered during investigations have proven suspects innocent, he added.

    "Our DNA system has only recently gotten to the level where we can test very small samples," he said.

    Eric Buel, director of the state's forensic laboratory, said that use of DNA as evidence began in Vermont in the early 1990s, but the process of analyzing those samples was very slow at first.

    Ideally DNA evidence will be used before convictions, not afterward, Buel said.

    "I would like to see the science get to a point where in 99 percent of the cases where DNA can play a role, it is played up front," Buel said.

    And there have been cases in the past in the state of police planting evidence, Sears said.

    "It is not without precedence in this state that people have been wrongly convicted," Sears said.

    The bill would also provide for someone whose conviction has been overturned to be paid up to $50,000 a year for their time in prison, Sears said.

    Often those incorrectly convicted and sentenced are released with even less than those who serve out their full terms, Sears said.

    And there is another important aspect to the bill, Sears added.

    "If someone has been wrongly convicted it means the truly guilty person is out there," he said.



National Association of Criminal Defense Lawyers (NACDL)
1660 L St., NW, 12th Floor, Washington, DC 20036
(202) 872-8600 • Fax (202) 872-8690 • assist@nacdl.org