Inmates Win on DNA Tests - New Law Sets Right to Procedure

By Dennis Love

SACRAMENTO -- The way Herman Atkins sees it, he wouldn't have spent more than a decade in a California prison if a bill signed into law Thursday by Gov. Gray Davis already had been on the books.

Atkins, convicted of a 1986 rape and robbery in Southern California but exonerated earlier this year by DNA testing, said Davis' signature on legislation that allows imprisoned felons to request DNA testing to prove their innocence "gets the ball rolling for justice."

"This means that innocent people will no longer be at the mercy of a district attorney who won't allow DNA testing," said Atkins, who fought for years for such a test but was blocked by a prosecutor.

A judge finally ordered the test. Semen samples taken from the victim's sweater showed Atkins could not have committed the crime, and he was freed from Ironwood State Prison after 13 years, three months and six days.

The Democratic governor's approval of SB 1342, offered by Sen. John Burton, D-San Francisco, makes California the sixth state to provide DNA tests to prisoners meeting certain conditions.

Davis on Thursday signed two other DNA-related bills: AB 2814, by Assemblyman Michael Machado, D-Linden, which allows police to compare a suspect's DNA profile with evidence from unsolved crimes; and SB 1818, sponsored by Sen. Jackie Speier, D-Daly City, which creates a new DNA database for missing-persons cases.

"These new laws allow law enforcement to use the latest scientific technologies to prove the guilt of criminals and solve crimes," Davis said. "DNA testing will assure to all that the guilty are truly guilty and the innocent truly innocent."

Supporters called the Burton bill one of the most significant changes in California criminal law in decades.

Since 1989, DNA tests have exonerated 73 American prisoners - four from California, according to information provided by the Innocence Project, founded by Barry Scheck and Peter Neufeld, members of O.J. Simpson's so-called "dream team" of defense attorneys. Eight of those prisoners were on death row and nearly all had exhausted their appeals.

In about half of the 73 cases, prosecutors resisted inmate requests for DNA testing, leading to prolonged litigation. The new law would make such court battles less likely by setting a statewide legal standard.

The bill also provides that bloodstains, semen or other biological evidence be preserved for as long as a convict is imprisoned. The fate of evidence currently depends on local policy, and many prisoners have been unable to benefit from DNA analysis because evidence has been destroyed.

Combined with Davis' recent signing of a bill sponsored by Assemblyman Lou Correa, D-Anaheim, which eliminates the current six-year statute of limitations on rape cases where DNA evidence is available, the legislation signed Thursday virtually revamps the investigation and prosecution of rape cases in California, supporters said.

"Mistakes can be made," said Karen Pomer of Los Angeles, founder of the Rainbow Sisters Project, an organization of rape victims that lobbied for the legislation. "What good does it do crime victims and the broader community if the innocent remain in prison while the real perpetrators are free?"

The DNA testing bill was the result of months of negotiations among Burton, Attorney General Bill Lockyer and law enforcement officials.

Lobbyists for groups such as the California State Sheriffs' Association initially argued that the law would result in the court system being flooded with frivolous requests for DNA testing from inmates.

The bill was changed to ensure that inmates could request the test only if a positive result would have affected the original verdict, and that the courts must determine that the request is not a delaying tactic.

The law also stipulates that the inmate must bear the cost of the DNA test, usually about $4,000.

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