In re Wiley, 2012 VT 76.
One of the main beneficiaries of DNA science in the last 30 years has been the criminal justice system. As the testing becomes better, more widely available, and more reliable, the question of whodunit is more and more likely to have a solution.
The effectiveness of DNA evidence has not only been a prospective boon to current defendants, but it has proven to be a holy grail for those who claimed to be wrongly convicted and seek exoneration. One need only quickly browse the Innocent Project and other, similar organizations to see that DNA testing of old evidence is a vital method of correcting flawed verdicts.
As a result of such work, many states, including Vermont, have adopted Innocence Protection Acts (IPA) designed to provide convicted felons with access to DNA testing. The balancing act here lies between giving convicts meaningful access to DNA (and potentially exoneration) and not merely making this another wild goose chase for inmates that have no chance at proving their innocence but have every incentive for requesting such procedures.
In other words, the IPA is intended to give inmates a legitimate chance to prove their innocence without bogging down the system with meritless issues.
Today’s case tests the threshold of the IPA and rules on what types of situations are eligible for the IPA’s DNA testing.
Defendant was convicted in 2005 of raping his under-aged stepdaughter several times on the step-daughter’s bed. In addition to the step-daughter’s testimony, the police found a set of semen stains on her sheets that DNA testing linked to the Defendant. The State also brought forward several witnesses that corroborated the details of the victim’s testimony and a sanitary napkin found near the bed that also supported the victim’s testimony.
At trial and since then, Defendant has denied the charges levied against him and sought to refute the victim’s testimony. In his defense, Defendant claimed that the semen stains on the bed came from an incident where he had sex on the victim’s bed with his wife, the victim’s mother.
At trial, the mother offered testimony of this nature, but there was evidence at the time that Defendant urged the mother to testify about this sexual encounter when she did not remember having such an encounter on her daughter’s bed. The jury did not believe mother’s testimony and Defendant was convicted. Mother has since recanted her testimony and no longer support’s Defendant’s attempt at exoneration.
This brings us to the issue of the present case. Defendant seeks DNA testing on a few skin flakes that were collected from the bed but were not definitively linked to anyone. Defendant argues that if these flakes are given the full DNA testing, they will prove to be from the mother, which would confirm Defendant’s story.
The problem here is two-fold. First, mother’s DNA was never tested. Testing the skin samples will determine their DNA, but they will not link to the mother unless her DNA is tested.
Second, and seemingly more fatal to Defendant’s case, is that even if the skin samples proved to be from the mother, it does not necessarily prove Defendant’s innocence. It is not a zero-sum game. The conclusion that Defendant may have had sex with both the victim and the mother on the same bed is just as likely to follow from a testing result that linked the skin samples to the mother.
In this case, the trial court denied Defendant’s motion on the second basis for lack of probability.
On appeal, the SCOV does not get the issue of probability. Instead, it focuses its brief decision on the issue of whether the IPA allows for DNA testing when such testing necessarily requires a new DNA sample. The SCOV rules that the IPA is explicitly limited to existing samples and cannot compel DNA testing that would require the state to obtain new DNA samples from a non-party.
For the SCOV this is a simple matter of statutory interpretation. The IPA is written so that it only compels the testing of existing samples. Normally, such testing would be done to prove that the Defendant was not connected to the biological evidence on which the conviction was based. Call it not-my-semen-testing.
In this case, though, Defendant wants DNA to confirm that he was at the scene of the crime—just with someone else. But the testing would require a new sample from a non-party, which the IPA was not intended to compel. So Defendant’s situation essentially falls outside of the purpose and scope of the IPA, and the relief sought is unavailable.
That’s all. The SCOV ignores the Defendant’s request to analyze the probability that this evidence would have altered the outcome of his case. It also makes a brief ruling on the arguments that there is a constitutional need to obtain additional DNA evidence. The SCOV rules that such rights to compel evidence are limited to the time before a verdict and are unavailable to a party as a matter of law for post-conviction relief. The reasoning is short and blunt.
Of course, the SCOV’s decision leaves more questions than it answers. As the SCOV admits, the IPA is a relatively new and untested law in Vermont. In many ways, today’s case appears to be a situation where the SCOV is unwilling to break new ground or offer specific guidance because of the facts. They say that bad facts make bad cases, which make bad law. And the SCOV seems to be cognizant that it could go farther on the facts of today’s case, but it would risk creating a precedent that would frustrate the purpose of the law under a set of more favorable or complicated facts.
This is the dilemma of the SCOV. How far should it rule in a particular case? Today, the answer would appear to be not far at all.