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Habeas Hints: How to Get DNA Testing

This column is intended to provide habeas hints" to prisoners who are considering or handling habeas corpus petitions as their own attorneys (in pro per). The focus of the column is habeas corpus practice under the AEDPA, the 1996 habeas corpus law which now governs habeas corpus practice throughout the U.S.

DNA Testing:
How To Get It And Use It To
Prove Your Innocence

By far the most successful habeas corpus petitions have been those which have relied on DNA testing to show that the person who was convicted could not possibly have committed the crime which landed them in prison. Nevertheless, most convicted prisoners lack the money and/or the legal knowledge to bring favorable DNA evidence to the attention of the courts. Therefore, even though news accounts, TV shows, movies, and plays are now focusing the public's attention on people who have been wrongfully convicted, an unknown number of prisoners whose innocence could be proved through DNA testing remain in prison.
Solving this problem could be easy enough if each state would set up procedures by which prisoners who claim that DNA could prove their innocence could have counsel appointed to bring appropriate claims before the courts. However, despite the budding DNA revolution, many states still don't have laws that provide DNA testing for inmates. Furthermore, in states that do have such legislation, too many prisoners remain ignorant of what to do and how to do it. The purpose of this column is to provide some habeas hints" for prisoners seeking to prove their innocence through DNA testing.

Almost all DNA claims raised on habeas corpus are similar in the sense that they are based on the following common elements: (1) The identity of the perpetrator was the primary issue in the case; (2) The defendant was identified as the perpetrator based on eyewitness identification for which corroboration was either non-existent or inconclusive; (3) The perpetrator left blood, semen, hair, or some other substance capable of being submitted to DNA testing; (4) The evidence per #3 was either not subjected to DNA testing at the time of trial, or the DNA testing that was done was unreliable or inconclusive; (5) The evidence was preserved so that it is available for DNA testing at the present time.
Notwithstanding these common elements of DNA claims in general, DNA testing in a particular post-conviction case will usually have to be pursued on the basis of state law, which varies from state to state. Therefore, I've organized this column as follows: prisoners who were convicted in California courts should review § I, below, to see what to do. Prisoners convicted in other states will first have to find out whether their particular state has any law allowing for DNA testing. (I suggest that prisoners try to do this by getting hold of the Penal Code for their state, looking up DNA" in the index at the back of the code, and then searching for a sub-heading such as convicted felons, post-conviction testing, motions for DNA testing, or habeas corpus.) If a DNA testing statute is located, then proceed to § II, below. If not, then go to § III.

I. California Prisoners

California, the most populous state, has had a DNA testing statute on the books since 2001. Moreover, the current version of § 1405 of the California Penal Code, entitled Motion for DNA testing," is an extremely prisoner-friendly statute, because it provides that a prisoner seeking DNA testing has the automatic right to the appointment of counsel to make the motion a right which kicks in merely upon the filing of a simple written Request" in the sentencing court, which states as follows:
Request For Appointment Of Counsel To Make Motion For Dna Testing, Per Cal. Pen. Code § 1405
(1) I am an indigent prisoner.
(2) I was not the perpetrator of the crime of which I was convicted and sentenced, and DNA testing is relevant to my assertion of innocence.
(3) I have not previously had counsel appointed for me under this section.
I declare under penalty of perjury that the foregoing is true and correct.
All a California prisoner has to do is to sign and date the above Request, file it with the superior court where s/he was convicted, and serve a copy on the County District Attorney and the California Attorney General. Once that is done, the court must appoint counsel to make the motion for DNA testing which will include the specific facts the prisoner will have to show to actually get the DNA testing he seeks. (See: In re Kinnamon (Oct. 2005) 133 Cal.App.4th 316, 34 Cal. Rptr. 802.)

II. Other States Which Have DNA Testing Statutes But No Automatic Right to Counsel

Although I have not personally researched the DNA statutes in the other 49 states, I am fairly sure that the current California procedure is rare, because it provides a right to the appointment of counsel to make a motion for DNA testing without even requiring the prisoner to state the specific facts which would actually entitle the prisoner to DNA testing in a particular case. Furthermore, even though the California court in Kinnamon did hold that counsel had to be appointed solely upon filing the brief Request set forth in § I, that court's opinion virtually begs the California Legislature to amend § 1405 to remove the requirement for appointment of counsel until after a preliminary showing of entitlement to DNA testing is made by the applicant an amendment that, in my opinion, the California Legislature is likely to enact.
Therefore, prisoners in other states which allow for DNA testing but not for appointed counsel, as well as California prisoners who may at some point be faced with a California law that has been amended to require a detailed factual showing before counsel will be appointed, should be prepared to state facts which demonstrate, at a minimum, the five common elements that were listed in third paragraph of the introductory section of this column.

Precisely what else a specific prisoner will have to do to get the benefit of a DNA testing statute will depend on the requirements of the particular state statute being used to obtain DNA testing, and it's best to use a lawyer to comply with these requirements. Therefore, the prisoner should first review his state's DNA statute to determine if it provides for appointment of counsel to make a DNA testing motion. If so, that provision should be complied with to get counsel appointed. If not, the prisoner should consider contacting a lawyer, such as one of the referral attorneys listed by Prison Legal News on a state-by-state basis. If these efforts fail, then the prisoner will have to make the required showing for entitlement to DNA testing in pro per. In that regard, as an aid to prisoners attempting to obtain DNA testing on their own, I have included in section IV of this column a Questionnaire which asks the critical DNA questions, and which the prisoner can use in preparing the specific DNA testing motion that will be required by state law.
States Where There Is Currently No DNA Testing Statute On the Books
Prisoners in states which lack any DNA testing statutes at all will have to fall back on traditional habeas corpus principles to allege a federal constitutional basis for their claim of entitlement to DNA testing. This is certain to be a very difficult task for the average prisoner, so I strongly recommend that the prisoner attempt to obtain legal assistance to the extent it is available. Fortunately, there are organizations which have been set up and funded to provide free legal assistance to prisoners seeking DNA testing, the best of them being the Innocence Project. The central mailing address is: Innocence Project; 100 Fifth Avenue, 3rd Floor; New York, NY 11011. The phone number is 212-364-5340, and the web address is: The Innocence Project now has offices in several states throughout the country, and prisoners who contact the NY office will be routed to a local office if there is one.
Finally, whether prisoners are seeking appointment of counsel, a private lawyer, or proceeding on their own, I suggest that they use the Questionnaire in the following section in order to focus attention on the questions that must be answered and the information that needs to be provided to establish the basic elements of a successful DNA testing request. The prisoner can then use the completed Questionnaire, either in correspondence with prospective attorneys, or as the basic source of the information that is going to be required for any DNA motion that is submitted in pro per.

IV. DNA Questionnaire

Instructions: Answer the following questions truthfully and as thoroughly as possible. Use a separate sheet of paper for your longer answers, referencing them by the letter and number assigned to the corresponding question (e.g. B.1.a, B.2.a, B.2.b, etc.).
I. Name:
II. Prison Number:
III. Mailing Address:
A.Conviction History.
1.Case number:
2.Court where convicted:
3.Crime for which you are serving time:
4.Date sentenced:
5.Length of sentence:
6. Name and address of trial and appellate counsel:
B.Appeal History.
1. Did you appeal your conviction? If so, identify the appellate court, the date of the opinion, and the principal arguments raised on the appeal.
2.Was Identification argued on appeal?
a.If yes, what was the argument and court's reasons for rejecting it?
b.If not, why wasn't identity challenged on appeal?
3.Have you ever sought DNA testing in a previous habeas corpus application?
a.If so, identify the court and the date of the decision in that court.
b.What argument(s) did you make?
c.What were the court's reasons for rejecting your arguments?
C.Reasons for DNA testing in your case.
1.Was identity of the perpetrator a significant issue in your case? Explain.
2.What specific evidence other than eyewitness testimony did the prosecution use at trial to link you to the crime (e.g., ballistics, gunshot residue, fingerprints, admission or confession, etc.)?
3.How did your defense counsel challenge each of items listed in #2?
4. What other arguments that weren't raised at trial could be raised now to challenge the evidence listed in your answer to No. 1?
5.Were there other suspects?
a.If yes, list each suspect with a brief explanation of their initial connection to the crime.
b.On what basis were these suspects excluded by the prosecution?
4.For each eyewitness who testified against you at trial:
a. List their names and a summary of what they testified to.
b. What, if anything, was used to corroborate their testimony?
c.How can their testimony be attacked?
D.DNA testing and availability.

1.Was DNA evidence used to convict you at your trial? If so:
a. What substance was tested?
b.Why are these results unreliable (contamination, tampering, bad test, etc.)?

2.If DNA evidence was not used, what is your understanding of why it wasn't used, and did you gain that understanding from your lawyer or some other source?

3.What is the source of the DNA material that you want to have tested now?
a.Was the material introduced in evidence? Retained by the police? Other?
b.Was this material found directly at the crime scene? Please explain.
c.How long after the crime had occurred was the material discovered?
d.Has DNA testing been performed on this particular sample before? Explain.
e.To your knowledge, where is the sample now?

Kent A. Russell specializes in habeas corpus and post-conviction cases. He is the author of the California Habeas Handbook, which explains habeas corpus and the AEDPA. The latest edition (Ed. 4.04.1, revised in May of 2005) is now shipping, and can be purchased for $29.99 (cost is all-inclusive for prisoners; others pay $5 extra for postage and handling). No particular order form is necessary; just send your check or money order to the Law Offices of Russell and Russell, 2299 Sutter Street, San Francisco, CA 94115.

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