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Study says widen access to DNA tests

Change may uncover wrongful convictions

By Jonathan Saltzman
Globe Staff / December 16, 2009

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Massachusetts should join almost every other state in the country by passing a law to give convicted prisoners access to DNA evidence that could prove their innocence, according to a new study of ways to prevent and uncover wrongful convictions.

The Bay State is one of only four states without a law allowing prisoners to have DNA tests performed on evidence that remains in police files. In June, the US Supreme Court said such individuals have no constitutional right to biological evidence for testing, but the court pointed out that most states already allow the testing.

Because Massachusetts is not among those states, it is often up to each district attorney whether convicts get to test evidence. In Plymouth County, a convicted murderer has been fighting prosecutors for nearly a decade to get access to DNA evidence and has filed a suit in federal court.

The study - which was made by a Boston Bar Association committee of current and former prosecutors, high-ranking police officials, defense lawyers, and a former judge - proposes a bill that the panel says would ensure that inmates “who claim they are factually innocent could file a motion to identify the evidence in their case and obtain its postconviction testing.’’ The bill would also require the evidence to be preserved.

The 116-page report, which was obtained by the Globe and will be made public today, makes numerous other recommendations to prevent wrongful convictions.

Those recommendations include requiring police investigators to videotape interviews with suspects in custody in serious crimes and to audiotape interviews with witnesses, with the individuals’ consent. Some police departments have routinely conducted taping, although investigators were initially skeptical suspects would agree to it.

The report also urges police departments to follow the lead of Boston in updating procedures for eyewitness identification of suspects. Misidentification is widely believed to be the main cause of wrongful convictions.

“Adopting the report’s recommendations would substantially reduce the risk of convicting the innocent while the guilty go free,’’ Kathy B. Weinmen, the former president of the bar association who appointed the committee, said in the report.

The two cochairmen of the committee are well-known former prosecutors, David E. Meier and Martin F. Murphy.

Meier knows all too well about wrongful convictions. As head of the homicide unit of the Suffolk district attorney’s office from 1996 to 2008, he had to inform judges that prosecutors had wrongfully persuaded juries to convict eight murder defendants who were ultimately freed.

“The wrongful conviction of an innocent defendant strikes at the foundation of the criminal justice system,’’ he said in an interview. “It impacts everyone: the defendant, the victim and the victim’s family, the integrity of the system, and, perhaps most importantly, the public’s confidence in our system of justice.’’

Since 1982, at least 23 defendants wrongfully convicted in Massachusetts have been freed from prison, according to the New England Innocence Project, which specializes in using DNA testing to reopen cases.

Perhaps the committee’s most notable recommendation is for Massachusetts to join 46 other states that have passed laws allowing convicts to have DNA tests performed on evidence that may prove their innocence. The other states without DNA-testing statutes are Alabama, Alaska, and Oklahoma.

A number of prison inmates in Massachusetts, particularly in Suffolk County, have obtained access to DNA evidence that resulted in exonerations.

But Meier and Murphy, a former high-ranking prosecutor in the US attorney’s office in Massachusetts and in Middlesex County, said the practice varies widely, depending on the district attorney’s office. In Plymouth County, for example, Robert Wade was convicted in 1997 of aggravated rape and felony murder in an attack on an elderly woman who suffered from Alzheimer’s disease at a Lakeville farm where he worked.

Wade contends that semen found on the woman’s clothes did not belong to him, although a relative of the victim found both Wade and the woman nude in his cabin. Rudimentary biological testing done before the trial said the genetic material could have come from Wade but also from someone else, said his appellate lawyer, Janet H. Pumphrey of Lenox. But Plymouth District Attorney Timothy J. Cruz has opposed requests for DNA testing.

“The district attorney’s office has in its possession evidence that could exonerate him and won’t let him have access to it,’’ said Pumphrey, who has filed suit in US District Court in Boston accusing prosecutors of violating Wade’s due process rights.

In an interview Monday, Cruz said proponents of a DNA-testing law are “trying to create some constitutional right to examine any piece of evidence at any time.’’

He said he does not oppose reexamining bona fide evidence that could prove someone’s innocence. But, he said, he objects to requests to reexamine evidence “ad nauseum,’’ adding that “at some point, there must be some finality for victims.’’

State Senator Cynthia Stone Creem, cochairwoman of the Legislature’s Joint Committee on the Judiciary, said that she has filed DNA-testing legislation three times since 2005 but that it has encountered resistance at least partly from lawmakers concerned about being seen as soft on crime. She said she hoped the report by the bar association committee will boost chances of passing the legislation.

Among the other members of the bar association committee are Boston Police Commissioner Edward F. Davis; William J. Leahy, chief counsel of the public defender agency; Joseph F. Savage Jr., a defense lawyer and chairman of the New England Innocence Project; and Christopher J. Armstrong, retired chief justice of the state Appeals Court.

Jonathan Saltzman can be reached at jsaltzman@globe.com