IAPE Evidence Blog

Tar­geted News Ser­vice
BYLINE: Tar­geted News Service

Wis­con­sin

Offend­ers No Longer in Cus­tody Or on Super­vi­sion Must Sub­mit Spec­i­mens Attor­ney Gen­eral Van Hollen Advises

The Wis­con­sin Attor­ney Gen­eral issued the fol­low­ing news release:

Attor­ney Gen­eral J.B. Van Hollen sent a let­ter today to Richard Raemisch, Sec­re­tary of the Wis­con­sin Depart­ment of Cor­rec­tions, explain­ing the legal oblig­a­tions of con­victed offend­ers to sub­mit DNA for inclu­sion in the databank.

The let­ter also dis­cussed options for obtain­ing DNA from those who are no longer in DOC cus­tody or on DOC super­vi­sion and rec­om­mends statu­tory changes to strengthen the law gov­ern­ing DNA submissions.

Con­clu­sions of the let­ter include:

* The oblig­a­tion to sub­mit a bio­log­i­cal spec­i­men does not expire. Even if the Depart­ment of Cor­rec­tions did not take a sam­ple when an offender was in prison or require the sub­mis­sion of a sam­ple when the offender was on super­vi­sion, offend­ers ordered or under a statu­tory require­ment to sub­mit a sam­ple are under a legal duty to pro­vide a
sam­ple at the office of the county sheriff.

* If the offender is not under DOC con­trol, DOC may attempt to secure an offender’s vol­un­tary com­pli­ance by direct­ing the offender to the county sher­iff for sub­mis­sion of a bio­log­i­cal specimen.

* The inten­tional fail­ure to pro­vide a bio­log­i­cal spec­i­men con­sti­tutes a mis­de­meanor. See Wis. Stat. 165.765. Because this crime is a con­tin­u­ing offense, the statute of lim­i­ta­tions should not impede pros­e­cu­tions of offend­ers pre­vi­ously required to sub­mit a bio­log­i­cal spec­i­men but who have failed to do so.

* DOC may com­pel the pro­duc­tion of DNA from an offender while the offender is in DOC cus­tody or under DOC super­vi­sion for an offense giv­ing rise to a duty to sub­mit a bio­log­i­cal spec­i­men, and may also use appro­pri­ate sanc­tions for the ongo­ing fail­ure to sub­mit DNA if the offender is on pro­ba­tion for an offense that does not inde­pen­dently give rise to the oblig­a­tion to sub­mit DNA.

Van Hollen’s let­ter noted that the col­lec­tion of a bio­log­i­cal spec­i­men is best per­formed at the onset, when an offender is in Depart­ment of Cor­rec­tions’ cus­tody or under its super­vi­sion for an offense that gives rise to the oblig­a­tion to pro­vide it. At that point, Van Hollen writes, the State’s author­ity to com­pel the sub­mis­sion of a bio­log­i­cal spec­i­men is most effec­tive. When the offender is no longer on super­vi­sion and has failed to sub­mit DNA, the state’s options are more lim­ited. Encour­ag­ing vol­un­tary coop­er­a­tion is appro­pri­ate, Van Hollen concludes.

Absent vol­un­tary coop­er­a­tion, the state may crim­i­nally pros­e­cute offend­ers or seek a con­tempt sanc­tion. Nei­ther option nec­es­sar­ily results in the pro­duc­tion of a sam­ple and both are poten­tially resource-intensive. Van Hollen stated that it would be desir­able for the law to cre­ate a non-criminal mech­a­nism to obtain an order to com­pel DNA sub­mis­sions with­out the need for fur­ther crim­i­nal process. He has been work­ing on these pro­posed changes that would revise and strengthen Wis­con­sin law relat­ing to the col­lec­tion of DNA.

A copy of the let­ter may be found at:

http://www.doj.state.wi.us/news/files/RaemischLetter2-25 – 10.pdf.

Addi­tional Background

The Depart­ment of Jus­tice oper­ates the state’s crime lab­o­ra­to­ries, which includes the State’s DNA data bank.

Cer­tain con­victed offend­ers, such as those in prison for a felony on or after Jan­u­ary 1, 2000, are required by statute or court order to sub­mit DNA sam­ples to the state crime lab­o­ra­to­ries for inclu­sion in the DNA data bank. Bio­log­i­cal spec­i­mens of offend­ers are taken by the Depart­ment of Cor­rec­tions or a county sher­iff. Spec­i­mens are gen­er­ally obtained through a buc­cal swab. Those sam­ples are then sent to the state crime lab­o­ra­to­ries, where a pro­file is gen­er­ated (gen­er­ally through a con­tract lab), the work is reviewed, and then the pro­file is uploaded into the DNA con­victed offender data bank. Pro­files con­tained in a foren­sic data­base (com­prised of DNA from crime scenes) and pro­files gen­er­ated from indi­vid­ual case inves­ti­ga­tions are com­pared against the pro­files in the DNA data bank. A “hit” to the con­victed offender data bank links the case with the con­victed offender, and thus the data bank is a pow­er­ful tool to iden­tify suspects.

Con­tact: William A. Cosh, 608/266‑1221

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Inter­na­tional Asso­ci­a­tion for Prop­erty and Evi­dence
“Law Enforce­ment Serv­ing the Needs of Law Enforce­ment“
www.IAPE.org

The Inter­na­tional Her­ald Tri­bune
BYLINE: ROBBIE BROWN

Raleigh, NC

Inno­cence inquiry panel in North Car­olina faults evi­dence and testimony

Act­ing at the rec­om­men­da­tion of a spe­cial state inno­cence com­mis­sion — the only one of its kind in the United States — a panel of North Car­olina judges has ruled that a man was wrong­fully con­victed of mur­der­ing a pros­ti­tute in 1991 and freed him after 16 years in prison.

The three-judge panel found ”clear and con­vinc­ing evi­dence” Wednes­day that the man, Gre­gory F. Tay­lor, was inno­cent and had been con­victed based on flawed evi­dence and unre­li­able testimony.

It was the first case won by the com­mis­sion, which was estab­lished in 2006 after a wave of embar­rass­ing wrong­ful con­vic­tions in North Carolina.

Cel­e­brat­ing with friends and fam­ily over a shrimp salad at a cafe in down­town Raleigh, Mr. Tay­lor said he was still in shock after ”6,149 days in prison.”

”This morn­ing, I was lay­ing in a jail cell with a crazy per­son bang­ing on the wall next to me,” he said. ”Now I’m sit­ting at a fancy Ital­ian restau­rant talk­ing on a cellphone.”

After the ver­dict, the Wake County dis­trict attor­ney, C. Colon Willoughby Jr., apol­o­gized to Mr. Taylor.

”I told him I’m very sorry he was con­victed,” Mr. Willoughby told The Asso­ci­ated Press. ”I wish we had had all of this evi­dence in 1991.”

The eight-member North Car­olina Inno­cence Inquiry Com­mis­sion con­sid­ers claims of inno­cence from con­victs or any­one else with per­ti­nent infor­ma­tion. It has reviewed hun­dreds of claims by pris­on­ers and brought only three to a hear­ing. If the com­mis­sion agrees that a claim has merit, it refers cases to a three-judge panel, which has hap­pened only once except for Mr. Taylor’s case, and the argu­ment in the other case was rejected.

In most U.S. states, con­vic­tions are usu­ally over­turned only by gov­er­nors and par­don boards, or occa­sion­ally by judi­cial review. Inmate advo­cates used the rul­ing for Mr. Tay­lor to renew their call for other states to cre­ate com­mis­sions to inves­ti­gate claims of inno­cence, even years after ordi­nary statutes of lim­i­ta­tion have expired.

”North Carolina’s com­mis­sion is an impor­tant model for the adju­di­ca­tion of inno­cence claims,” said Barry C. Scheck, direc­tor of the Inno­cence Project in New York. ”In the Amer­i­can court sys­tem, there are nor­mally pro­ce­dural bars that get in the way of lit­i­gat­ing whether some­one is inno­cent or not.”

Much atten­tion in Amer­ica has been focused on using DNA to over­turn wrong­ful con­vic­tions, said Stephen B. Bright, direc­tor of the South­ern Cen­ter for Human Rights in Atlanta. But 90 per­cent of crim­i­nal cases, like Mr. Taylor’s, do not involve any DNA evidence.

Mr. Tay­lor, 47, has always main­tained that he did not mur­der Jacquetta Thomas, whose bat­tered body was dis­cov­ered in a cul-de-sac in Raleigh. He tes­ti­fied that he found the body while tak­ing drugs with a friend but did not report it to the police.

Defense lawyers argued that pros­e­cu­tors mis­rep­re­sented evi­dence against Mr. Tay­lor, who was sen­tenced to life in prison in 1993. They said that stains on his truck turned out to not have been human blood, and that wit­nesses were later proved to have described sce­nar­ios that could not have happened.

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Inter­na­tional Asso­ci­a­tion for Prop­erty and Evi­dence
“Law Enforce­ment Serv­ing the Needs of Law Enforce­ment“
www.IAPE.org

ajc.com, AJC/Opinion
Link to Article

Georga & Tennessee

By Michael Berry and Joan Berry

In 2004, just days before Christ­mas, we received a phone call that no par­ent should ever have to receive. Our lit­tle girl, Joh­nia, had been bru­tally stabbed by a rob­ber in her apart­ment. Joh­nia, a grad­u­ate stu­dent at the Uni­ver­sity of Ten­nessee, was alive when law enforce­ment arrived on the scene. But while we hur­ried from our home in Geor­gia to the hos­pi­tal, our daugh­ter died.

The anguish we went through is beyond words. We grieved while the sheriff’s depart­ment inter­viewed more than 1,000 peo­ple and sub­mit­ted more than 400 DNA sam­ples from sus­pects. Time con­tin­ued to pass — and we received no clo­sure. It was not until three years after our daughter’s mur­der that her killer was caught. He had been con­victed on an unre­lated crime and his DNA matched the DNA that was found in Johnia’s apart­ment. While await­ing trial, her killer took his own life.

We knew that her killer could have been brought to jus­tice ear­lier had he pro­vided his DNA upon his arrest rather than his con­vic­tion. Hav­ing had that sam­ple ear­lier would have saved law enforce­ment pre­cious inves­ti­ga­tion time and would have lim­ited our three years of know­ing that the man who killed our daugh­ter was on the loose and pos­si­bly destroy­ing the lives of others.

We turned our grief into action and we began to research what other states were doing around DNA col­lec­tion — and we began to work for change. In 2007, the Ten­nessee Leg­is­la­ture passed the Joh­nia Berry Act — a bill allow­ing for the col­lec­tion of DNA (via cheek swab) from felony arrestees at the same time they give their fin­ger­prints and mug shots.

And now, with the help of state Rep. Rob Teil­het (D-Smyrna) and a num­ber of other bipar­ti­san spon­sors, we are work­ing to pass the Joh­nia Berry Act in our state of Georgia.

Some, includ­ing colum­nist Bob Barr, argue against this life-saving leg­is­la­tion, say­ing that it raises con­sti­tu­tional con­cerns, that it only “might” help law enforce­ment, and that Georgia’s data­base is already suf­fi­cient. We could not dis­agree more.

Twenty-one other states have passed this leg­is­la­tion and it is pend­ing in 15 oth­ers. Chal­lenges to the statute have lost and the Vir­ginia Supreme Court has ruled that the col­lec­tion of DNA upon felony arrest is, indeed, constitutional.

Empir­i­cal data from stud­ies con­ducted in Chicago, Den­ver, Mass­a­chu­setts, Cal­i­for­nia, Indi­ana and more have soundly proven that this mea­sure will actu­ally pre­vent crime from hap­pen­ing, ensure that the right per­son is held account­able (dimin­ish­ing the effect of bias), free the inno­cent, and save money in the long run.

Cur­rently, Geor­gia col­lects DNA from only those con­victed of cer­tain felonies — not all of them. Our GBI crime lab, while run by ded­i­cated indi­vid­u­als, is under­funded and severely lack­ing when com­pared to other states. Law enforce­ment deserves every tool avail­able to them to keep us safe.

We invite crit­ics to sit down with us, as Rep. Teil­het has, hear our story, and then con­sider whether or not pol­i­tics is involved in this life-saving bill.

House Bill 1033, the Joh­nia Berry Act, is essen­tial, life-saving leg­is­la­tion. Every vic­tim of a crime is a per­son who’s life is per­ma­nently changed or ended. And every vic­tim has a mother and a father and other loved ones. We pray that other par­ents will never have to live through what we have, and that every child has a chance at a full life with­out crime. We pray that any fam­ily who loses a loved one will be able to rely on this leg­is­la­tion to assist with clo­sure and bring the cor­rect per­pe­tra­tor to jus­tice. The Joh­nia Berry Act is the begin­ning to the answer of our prayers.

Michael and Joan Berry, par­ents of Joh­nia Berry, live in Lawrenceville.

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Inter­na­tional Asso­ci­a­tion for Prop­erty and Evi­dence
“Law Enforce­ment Serv­ing the Needs of Law Enforce­ment“
www.IAPE.org