Representatives in Salem introduced a bill this week that re-writes Oregon’s post-conviction DNA testing law.
Oregon, like most states, allows people who say they have been wrongfully convicted to request DNA testing of evidence that might prove their innocence.
But defense attorneys say the state’s DNA law is confusing and almost impossible for inmates to use. In the 14 years it has been in effect, just two defendants have successfully convinced judges to order DNA testing in their cases based on the statute.
Advocates say the law sets a high bar for who can access testing. A person seeking the testing has to first show a judge that the DNA on a specific piece of evidence will conclusively prove their innocence.
“It essentially puts the burden on the defendant to solve the crime, before the testing is even granted,” says Aliza Kaplan, Co-founder of the Oregon Innocence Project.
Kaplan has helped draft a revision that was introduced in the House. It is sponsored by two key players on justice issues, Jennifer Williamson, Vice-Chair of the Judiciary Committee in the House, and Floyd Prozanski, Senate Judiciary Committee Chair.
Representative Williamson said the legislature set too high of a bar in the original law.
“We created a system in 2001 that was stacked against people who wanted to have their DNA tested,” she said.
The new bill, HB 3206, relaxes the standard that triggers post-conviction testing. It requires a person to present a theory of defense supported by DNA evidence, and prove that a favorable DNA result would lead to finding that person would not have been convicted if the testing had been done before their trial.
The Oregon District Attorney’s Association has yet to take a position on the law, but is reviewing it this week, according to the group’s director, Doug Harcleroad.
Williamson and Kaplan say HB 2306 removes several other barriers to testing. It expands the category of wrongfully convicted people who can request DNA testing to try to clear their names even if they have finished serving a sentence. Currently, only people convicted of murder or sex crimes can seek testing if they’re no longer in prison.
“They have right to clear their name, even if they’re not incarcerated,” Williamson says.
Further changes clarify that people seeking the testing are entitled to a lawyer to help them prepare a request for testing, and that requires judges who reject motions for DNA testing to state their reasons for doing so.
“We have no idea how many motions have been filed and how many have been rejected, because there’s nothing in the law that requires a court to say, here’s why we are denying your motion,” Kaplan says.
While there is no official count of how many people claiming innocence have been denied DNA testing by the courts in Oregon, at least 18 people have asked the state’s Office of Public Defense Services to help them file appeals.
Erik Blumenthal, a Deputy Defender with the OPDS, is tracking those cases. “These are people who’ve attempted to get testing and were denied,” he said.
Blumenthal says inmates often try to file motions seeking DNA testing without the help of a lawyer, and he suspects most cases are getting shut down at the preliminary level.
Since 1991, 10 people in Oregon have been exonerated, according to a national registry of cases created by the University of Michigan Law School.
The reasons for those exonerations include perjury, misleading forensic evidence, mistaken witness identifications, and, in the case of Lisa Roberts, new DNA testing. However, the testing in Roberts’ case was ordered in response to a habeas corpus petition, and not through Oregon’s post-conviction DNA testing law.