NCAPE Training – Fall 2011

Christine Mumma, Executive Director NC Center on Actual Innocence,

www.nccai.org

NC Center on Actual Innocence • 501(c)(3)• Coordinates Innocence Projects ® in N.C. • Over 150 volunteers. • Approximately 750 Claims a Year• 90% Rejected after Initial Review• 58 Active Cases• Criteria

•Complete Actual Innocence of NC Felony•Still Incarcerated, post appeal•New Evidence •No Representation

DNA Exoneration Facts273 DNA Exonerations; 17 from Death Row Average Sentence - 13 YearsLongest Sentence – 35 Years70% Minority15 Convicted after 1998Actual Perpetrator Arrested in 43% of cases.

Over 100 additional crimes committed. 35 States and DC

DNA Exonerations By State AL – 2 IN - 5 MS - 5 SC - 1AZ – 3 KS - 2 MT - 3 TN - 2CA – 9 KY - 1 NC - 7 TX - 43CT – 3 LA - 11 NE - 6 UT - 1DC – 2 MA - 9 NJ - 5 VA – 13 FL – 13 MD - 3 NY - 27 WA - 3GA – 8 MI - 3 OH - 9 WI - 6ID – 1 MN - 1 OK - 10 WV - 6IL – 31 MO - 7 PA - 11 HI - 1

Causation IssuesEyewitness Identification (75%)

At least 40% are cross-race Invalidated “Science” (50%) False Confessions/Admissions (25%) MisconductSnitch Testimony (15%)Ineffective Assistance of Counsel

Tunnelvision Impacts All

Human House of Cards Justice

Jury Laws Judge Defense Counsel Prosecutor

Defense Experts Prosecution Experts Physical Evidence Informants Law Enforcement Defendant Co-defendants Alibi Witnesses Victim

Impacts: Politics, Careers, Reputations, Egos, Money, Life Experiences/Stereotyping

Preservation of EvidenceCold Case ResolutionCurrent Investigations -25% clearedConviction of the True PerpetratorPublic Confidence in Justice SystemQuestions of Innocence Answered

Scope of Preservation: Custodial Agency's Duties

The Crux - N.C.G.S. § 15A-268(a1): a custodial agency must preserve any physical evidence that is reasonably likely to contain any biological evidence collected in the course of a criminal investigation or prosecution.

“Custodial Agency” is the governmental entity in possession of evidence collected as part of a criminal investigation or prosecution.

Scope of Preservation: What is “Biological” Evidence?

N.C. G.S. § 15A-268(a)The contents of a sexual assault examination

kit, orAny item that contains blood, semen, hair,

saliva, skin tissue, fingerprints, or other identifiable human biological material…

…that may be reasonably used to incriminate or exculpate any person in the criminal investigation…

Whether that material is catalogued separately on a slide or swab, in a test tube, or some other similar method, or is present on clothing, ligatures, bedding, other household materials, drinking cups, cigarettes, or any other item of evidence.

Scope of Preservation: Court Designation of Biological Evidence - Three-Part Inquiry

(a3) When physical evidence is offered or admitted into evidence in a criminal proceeding, the judge shall inquire of the State and the Defendant as to:

The identity of the collecting agency, and Whether the physical evidence is likely to contain

biological evidence, and If likely to contain biological evidence, whether that

biological evidence is relevant to establishing the perpetrator’s identity.

The clerk shall return evidence to the collecting agency after the conclusion of their role as custodian.

Scope of Preservation: Custodian’s DutiesOther Requirements of the Custodial Agency:

N.C.G.S. § 15A-268(a1), cont.:Must preserve physical evidence in a manner

reasonably calculated to prevent contamination or degradation of potential biological evidence.

Must subject the physical evidence to a continuous chain of custody.

Must securely retain the evidence, with sufficient official documentation to locate it.

North Carolina SBI Evidence Guide, issued January 2010, must be distributed

Length of Required Preservation: Violent Felonies

(1b): For conviction of any homicide, sex offense, assault, kidnapping, burglary, robbery, arson or burning,

For which a Class B1-E felony punishment is imposed,

The evidence shall be preserved: During the period of incarceration and

mandatory supervised release, including the duration of mandatory sex offender registration Except…

Length of Required Preservation: Violent Felonies – Guilty Plea Exception

EXCEPT in cases where the person convicted entered and was convicted on a plea of guilty, In which case the evidence shall be preserved for the earlier of:Three (3) years from the date of conviction, orDate that the prisoner is released.

Length of Required Preservation: Additional Critical Provisions

(a6)(5): Biological evidence collected as part of a criminal investigation of any homicide or rape, in which no charges are filed, shall be preserved for the period of time that the crime remains unsolved.

Upon written request by the defendant, the custodial agency shall prepare an inventory of biological evidence relevant to the defendant’s case.

Lawful Destruction of Evidence: Balancing Efficiency, Due Process, and Science

N.C.G.S. § 15A-268(b): “The custodial agency required to preserve evidence pursuant to subsection (a1) of this section may dispose of the evidence prior to expiration of the period of time described in subsection (a6) if all of the following conditions are met.”

(b1): The custodial agency must send notice of its intent to destroy the biological evidence to the District Attorney in the county in which the conviction was obtained.

Lawful Destruction: Duties of District Attorney

(b)(2): Upon receiving notice of intent to destroy from the custodial agency, the District Attorney must notify:Any defendant convicted of a felony who is

currently incarcerated in connection with the case,

Any such defendant’s counsel of record for that case, and

The Office of Indigent Defense Services.

Lawful Destruction: Contents of Notice(b)(3): The written notice from the District

Attorney must specify:(a) That the custodial agency will destroy the evidence

collected in connection with the case, unless the agency receives a written request that the evidence not be destroyed,

(b) The address of the custodial agency to send the request,

(c) That the custodial agency must receive the written request within 90 days of the defendant's receipt of the District Attorney’s written notice, and *

(d) That the defendant is requesting preservation for one of three reasons...

* If a response is not received, the agency may proceed with destruction.

Lawful Destruction: Enumerated Reasons for Defendant Opposition to Destruction

(3)(d)(1): The case is currently on appeal.

(3)(d)(2): The case is currently in post-conviction proceedings.

(3)(d)(3): The Defendant will file a Motion for DNA Testing within 180 days of the postmark of his response.

Lawful Destruction: Statutory Requirements to Destroy Evidence

§ 15A-268(c): Superintendent must deliver the written notice to the Defendant, and make a sworn, written certification of delivery.

§ 15A-268(d): If the Defendant makes a written request to preserve the evidence, a hearing is held. The Court may order destruction of the evidence over the Defendant’s objection if it finds by a preponderance that:The evidence has no significant value for biological

analysis, orThe evidence may have biological value, but is of a size,

bulk, physical character as to render retention impracticable, or should be returned to its rightful owner.

Lawful Destruction: Special Rule for Evidence that is Inconvenient to Store

§ 15A-268(e): If evidence is ordered destroyed due to size,

bulk, or physical character or because it should be returned to its rightful owner, the court may order the collecting agency to take reasonable measures to remove or preserve portions of the evidence sufficient for future DNA testing . The Defendant may be given an opportunity to preserve the evidence.

Petition for Testing - N.C.G.S. § 15A-269

A Defendant may move for DNA testing if the evidence is material to defense and related to the investigation if :The evidence was not previously tested, orScientific procedures have improved, and there

is a reasonable probability of a different result

Requires sworn affidavit of innocence.

Consequences for Destruction Without NoticeIf evidence can not be produced, custodian

must provide affidavit of efforts to find it. If evidence was required to be preserved,

court may conduct a hearing to determine if there has been obstruction of justice and contempt.

The court can dismiss charges. Knowing and intentional destruction,

alteration, tampering, concealing shall be punished by Class H if first degree murder and Class I for other felonies.

Records Must Be RetainedN.C.G.S. § 15A-268(h): “All records

documenting the possession, control, storage, and destruction of evidence related to a criminal investigation or prosecution of an offense. . .shall be retained.”

Dwayne Allen Dail

19 years old when arrested20 years old when convicted39 years old when released

6, 725 days in prison

Dwayne Allen Dail

Causation Issues – Dwayne DailMisidentification

Lighting, exposure time, weapon, trauma, age, suggestion

Forensic ScienceMicroscopic Hair Comparison

Tunnel VisionLaw Enforcement, Prosecution, and Defense

Lack of Evidence Tracking

Dwayne Allen Dail v. City of Goldsboro42 U.S.C. § 1983 – A state actor may be liable if the

actor “subjects, or causes to be subjected” an individual “to the deprivation of any rights, privileges, or immunities secured by the Constitution.”

Monell v. Dept. of Social Services of the City of NY, 436 U.S. 658 (1978) – direct liability attaches where “execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may be fairly said to represent official policy, inflicts the injury.”

North Carolina provides a statutory right to post-conviction review of new evidence and to DNA testing. N.C.G.S. § 15A-1415(c), 15A-269

Dwayne Allen Dail v. City of Goldsboro

“Dail has sufficiently alleged that the City of Goldsboro’s evidence retention and request policies and procedures deprived Dail of a constitutionally protected liberty interest to be free from unjustifiable confinement.”

“Dail’s entitlement was logically and necessarily accompanied by an implied right to receive reasonably accurate and truthful information from those State actors who voluntarily responded to Dail’s informal requests for evidence.”

Dwayne Allen Dail v. City of Goldsboro

“Dail has sufficiently alleged that his state-created entitlment under N.C. Gen. Stat. § 15A-1415 (c) was thwarted by Defendant’s evidence retention policies….Due to their deficient evidence retention policies, Defendants misinformed Dail, for at leat 12 years, that the evidence in Dail’s case was unavailable for testing.”

Continuing Areas of ConcernRetroactivity of statutory responsibilities to

ALL evidence in custody, regardless of date of collection.

Responsibility for old evidence rooms.Lack of records or orders of destruction.Repeated searches result in different

outcomes.Closed case CODIS hits.Notices of Intent to Destroy – 43 since 2006,

6 countiesDestruction of evidence after 2001 without

notice.

FactsInnocent People are in Prison Today

Innocent People will Die in PrisonThe chance that an innocent person is convicted can be reduced.

Change is Hard