Late last week, Governor Jerry Brown signed SB 1058 into law. According to a release from the NCIP (Northern California Innocence Project), the bill “will help exonerate innocent men and women who have been wrongfully convicted based on outdated expert testimony. It will help assure people wrongfully convicted based on such testimony can have their conviction overturned when the expert later admits he or she was wrong, or when new science proves the testimony wrong.”
Under current law, a judge was prohibited from considering new testimony, including the most recent forensic evidence in evaluating a person’s claim of innocence. This prohibition applied even if a key expert witness recanted his or her earlier testimony or if it was undermined by new scientific research.
“Unfortunately, there are innocent people currently in prison based on outdated forensic evidence that technological developments have later disproven,” said Linda Starr, NCIP legal director. “SB 1058 is a common sense measure that gives courts the ability to weigh the most current, accurate and reliable forensic evidence in determining whether to overturn a potentially wrongful conviction. Our justice system and the wrongfully convicted deserve nothing less.”
The bill, authored by Senator Mark Leno (San Francisco), enables the judge to rule that a wrongful conviction has occurred “has occurred if expert testimony provided during a trial served as the primary basis for an incarcerated person’s conviction and has subsequently been retracted or disproven by scientific or technological advances.”
“Previously, the law allowed a judge to reconsider a conviction if a key eyewitness recanted his or her testimony, but the same standard did not apply to expert witnesses who depend on new and emerging technologies to make their conclusions,” said Senator Leno, D-San Francisco. “This law clarifies that false evidence provided by such an expert witness may be considered when proving a person’s innocence.”
“Over the last few decades we have witnessed tremendous technological and scientific advances in the field of forensics, many of which have proven older theories incorrect and outdated,” said Linda Starr
According to the California Commission on the Fair Administration of Justice, forensic science testing errors are the second most common reason for the wrongful conviction of innocent men and women in the U.S. SB 1058 allows a judge to look at false expert testimony as a factor when considering an individual’s challenge to his or her incarceration.
Current law allows an incarcerated person to demonstrate that there is a reasonable probability that the trial result would have been different had false evidence not been introduced. However, existing law does not account for expert forensic testimony introduced at trial which is later unsubstantiated or disproved, either by that same expert or the scientific community.
“This bill allows us to fix our mistakes,” said Katherine Williams, legislative advocate for the ACLU of California, which supports SB 1058. “It opens the courthouse doors once more so that innocent people who have been wrongly convicted because of someone else’s error will have a chance to clear their name and regain their freedom.”
Governor Brown also signed SB 980, authored by Senator Ted Lieu, that will improve the process for wrongfully convicted prisoners to obtain DNA testing. It gives prisoners improved access to the physical and biological evidence preserved in their cases and clarifies the procedures for obtaining DNA testing in California.
SB 980 was co-sponsored by NCIP, the California Innocence Project, The Project for the Innocent at Loyola Law School, and the American Civil Liberties Union.
“I want to thank Gov. Brown for his courage in signing legislation that promises to help correct the unspeakable offense of a wrongful conviction of an innocent person,” Lieu, a former Air Force JAG prosecutor who remains a lieutenant colonel in the reserves, said about Senate Bill 980. “Compounding this heinous action is the fact the true perpetrator remains free to prey on all of us.”
Backed by the rights group, Innocence Project, and authored by Lieu, D-Redondo Beach, the measure cites research showing that recent improvements in technology related to DNA, or deoxyribonucleic acid, has led directly to the exonerations of hundreds of innocent people.
Specifically, there have been 311 post-conviction DNA exonerations in the United States since 1989. Exonerations through post-conviction DNA testing have been won in 36 states. Since the year 2000, there have been 244 post-conviction DNA exonerations. DNA is a molecule that encodes the genetic instructions used in the development and functioning of all known living organisms and many viruses.
“These DNA-exoneration cases have provided irrefutable proof that wrongful convictions are not isolated or rare events, but arise from systemic defects that can be precisely identified and addressed,” Lieu said.
Specifically, SB 980 will:
- Clarifies that the standard to get DNA testing (1) does not require a showing that the DNA testing will prove innocence; and (2) in determining whether to grant testing, the court should not decide that the evidence, if exculpatory, would actually require that the person be released from prison.
- Require law enforcement agencies to provide information and/or documentation about the existence of biological evidence, such as whether it has been destroyed or preserved. In addition, the bill would allow courts to order unknown DNA profiles to be run through the FBI’s Combined DNA Index System database to identify the true perpetrator, as long as such a search does not violate state or national rules.
- Extend from 90 days to 180 days the notice period law enforcement agencies must give prior to destroying evidence; and also extend from six months to one year the time allowed for the filing of a request for DNA testing.
“There have been more than 300 people nationwide who were proven innocent through the use of post-conviction DNA testing,” Alex Simpson, associate director of the California Innocence Project, said. “Many of these people served decades in prison for crimes they didn’t commit. SB 980 would help ensure that innocent people get access to evidence that can prove their innocence.”
However, the news was not all good, as Governor Brown vetoed Assemblymember Tom Ammiano’s AB 885, a bill that would have created a modest sanction in the courts for prosecutors who try to win trials by withholding evidence.
“I’m not just disappointed at the Governor’s veto of this bill, I’m angry,” Assemblymember Ammiano, who was honored by the Vanguard last year for his efforts, said in a statement. “We need so much more than this to balance the system and keep the innocent out of prison, as the writers of the Constitution intended. Most prosecutors are honorable, but we’ve seen too many cases where DAs don’t play fair – hiding evidence or releasing it at the last minute.
“I recently met 40-year-old Obie Anthony, who has spent nearly half his life in prison because prosecutors hid evidence that would have pointed to his innocence,” said Assemblymember Ammiano. “A court has now completely exonerated him, but that exoneration has come 20 years too late. We need this bill to stop the few prosecutors whose zeal for convictions lead them to cut corners on justice. We can’t wait decades to free the innocent while the true perpetrators run free. ”
The bill would have allowed judges to inform a jury when a district attorney has been found to have intentionally withheld significant evidence.
Although such non-disclosure of evidence is prohibited under U.S. Supreme Court decisions, the consequences for prosecutors are few and, despite the governor’s assertions in his veto message, rarely used. In Anthony’s case, he was only granted a 24-hour continuance in his trial.
Defendants can use that non-disclosure in appeals, but that can take years. Having this tool available to courts would have meant that all prosecutors would disclose all evidence, and that innocent defendants would have a fair chance to stay out of prison.
“AB 885 could have saved me from spending 17 years in state prison,” said Mr. Anthony, shortly after it passed the Legislature.
Barry Scheck, the co-founder of the Innocence Project, points out that California is the only state in the nation that does not have any sanction for prosecutors.
In an editorial, Assemblymember Ammiano wrote, “Even AB 885 would be more lenient than what others have.”
He added, “It’s this simple: Brown vetoed a bill that would have helped keep innocent people out of prison.”
The Vanguard’s Fourth Annual Dinner and Award Ceremony will focus on Prosecutorial Misconduct on November 15 (for more details click here).
—David M. Greenwald reporting