TRUTH and JUSTICE in Post-Conviction Testing

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TRUTH and JUSTICE in Post-Conviction Testing

• Betty Layne DesPortes
• BENJAMIN DesPORTES, PC
• Richmond, VA

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DEFENSE INTERESTS

• Truth
• Justice

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TRUTH

• Belongs to everyone
• No one should be allowed to own it, hide it, or
  destroy it
• The search for the truth should be a collective
  effort

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SEARCH FOR THE TRUTH

• Find the evidence
• Get the evidence tested
• By a reliable method
• To get results
• To determine the truth
• Collective interest

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JUSTICE

• Prosecution
• Crime lab
• Victims
• Public
• Defense

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All justice is collective

• All liberty is individual
• Calvin Coolidge

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Due Process

• Notice
• Existence of evidence
• Testing
• Access
• Opportunity to be heard
• Opportunity to participate
• Resources
• Independent testing
• Experts

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First, we need a plan . . .

• Need rules, guidelines, and protocols for how the
  case is going to be handled
• Use established protocols
• If cannot use regular case protocols, draft new
  protocols and allow comment
• If people know the plan they will know what you
  are doing

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PROTOCOLS S-T-R-I-C-T

• Selection
• Technology
• Reporting
• Investigation
• Costs
• Time

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SELECTION

• Which cases
• All
• Defense request
• Prosecution request
• Court order
• Screening method
• Court
• Committee
• Lab personnel

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SELECTION VA lessons

• If you say all. . . but you dont mean all. .
  .
• Changing criteria qualifying convictions
• Inaccurate information
• Need to notify defendants and many additional
  issues

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TECHNOLOGY

• Default
• Objections
• New technologies
• Preservation of sample
• Independent testing
• Final decision

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TECHNOLOGY VA lessons

• Outside contractor
• Different casework protocols
• Splitting analysis and reporting duties
• Concerns about consumption

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REPORTING

• Who gets the results and when?
• Prosecution
• Defense
• Defendant
• Victim
• Court
• Public

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REPORTING VA lessons

• No initial plan for issuing reports
• Results to Governor
• New plans for reports
• New plans for distributing reports
• If do not know, cannot ask . . .

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INVESTIGATION

• Who determined the meaning of the results and
  does any further investigation?
• Prosecution
• What if the prosecution declines
• What if the defense wants access to databases

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INVESTIGATION VA lessons

• Not there yet
• Opportunity to design a plan . . .

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COSTS

• Who pays
• Who determines who pays
• Does paying mean you are The Decider
• If the taxpayer is paying, are they entitled to
  an accounting

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COSTS VA lessons

• State and federal money
• 1.4 million state 300 cases (screening and
  testing only?)
• 4.5 million federal 700 cases (testing and
  reporting?)
• Initial estimates too low
• Beneficial to have detailed accounting for future
  projects / testing estimates

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TIME

• Start date
• Completion date
• Causes for delay

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TIME VA lessons

• Announced Dec. 2005
• 1-2 year initial estimate to complete
• rolling process rapid reporting
• November, 2008
• 34 cases have issued (but not distributed)
  reports

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Truth and justice are collective
interestsCollective interests are best served
by collective efforts