Michigan’s Post-Conviction DNA Testing Law Set to Expire if State Senate Doesn’t Act

After January 1, prisoners will have no chance to prove innocence through DNA testing unless Senate acts now to pass bill



(LANSING, MI; September 26, 2008) — Unless the Michigan State Senate acts quickly, innocent prisoners across the state may lose their last chance for freedom, the Cooley Law School Innocence Project said today.

For months, the State Senate has failed to advance a bill that would extend a sunset provision in the state’s law allowing post-conviction access to DNA testing for prisoners seeking to prove their innocence. The current law expires on January 1, 2009, meaning that anyone intending to file a petition for post-conviction DNA testing must do so by that date.  The Michigan House recently passed HB 5089, extending this sunset provision to 2012, but the legislation is languishing in the Senate with only a few sessions left to act on it before the end of the year.

“Unless the State Senate makes this bill a priority, innocent people will remain in prison while actual perpetrators of crime remain at large,” said Professor Donna McKneelen, Co-Director of the Cooley Innocence Project, which investigates wrongful conviction cases across Michigan. “There is no reason to put an arbitrary expiration date on a law that can resolve claims of innocence, particularly when our office continues to receive new cases every day.”

The Cooley Innocence Project is currently investigating dozens of wrongful conviction cases, and there is no way these cases will be ready to file by the January 1 deadline. New cases that continue coming to the Cooley Innocence Project can take months or years to investigate.  Furthermore, DNA testing technology is improving by leaps and bounds. Sophisticated new methods of DNA testing can yield results where older DNA testing could not – but that technology can not be put to use if the DNA testing law expires.

Nationwide, 43 states and the District of Columbia have laws granting post-conviction access to DNA testing.  Only eight of those 43 states have sunset provisions in their DNA testing laws.  These provisions are often intended to create finality—but there is no finality when an innocent person remains in prison while the actual perpetrator remains free to commit more crimes.

“There’s a clear trend nationally to grant access to DNA testing that can prove innocence and to make sure testing is available without unreasonable conditions or time limits,” said Barry Scheck, Co-Director of the Innocence Project, the national organization affiliated with Cardozo School of Law that uses DNA testing to exonerate innocent people and pursues reforms to prevent future injustice. “Nobody will benefit by the State Senate allowing Michigan’s law to expire. Passing this bill will protect the innocent, help apprehend the guilty and restore public confidence in the state’s criminal justice system.”

The importance of Michigan’s DNA testing law is underscored by two wrongful convictions that were overturned in the state since the statute went into effect. In April, Nathaniel Hatchett was exonerated after spending 10 years in prison for a rape he didn’t commit. In the original trial, DNA testing on semen from the rape kit excluded Hatchett and the rape victim’s husband. The prosecution never informed the defense of the husband’s exclusion; instead, prosecutors argued that the semen from the rape kit could have come from the husband, leading to Hatchett’s conviction. Eight years later, the Cooley Innocence Project took his case and, thanks to Michigan’s DNA testing law, was able to conduct further DNA tests that exonerated him. In 2003, Kenneth Wyniemko was exonerated by DNA testing after serving nine years in prison for a rape he didn’t commit. If it hadn’t been for the statute, both of these men might still be in prison.

The pending legislation also makes several other important improvements to Michigan’s current DNA testing law.

The new bill:

• Removes a restriction allowing only those serving a prison sentence to get testing, so that people on parole or people who have completed their sentences may file for DNA testing to clear their names (and be removed from parole or sex offender registries for crimes they did not commit).

• Allows access to DNA testing for those who have pled guilty. Of the 220 wrongful convictions overturned by DNA testing nationwide, 25% of those resulted from false admissions.

• Clarifies that prosecutors can order retesting in a case only if the sample of evidence is large enough for additional testing to be conducted. (Currently, the law requires retesting without recognizing that the biological evidence sample is sometimes so small that only one round of testing can be conducted.)

Nationwide, 221 people have been exonerated through DNA testing after serving years or decades in prison for crimes they did not commit.  The Thomas M. Cooley Law School Innocence Project was founded in January 2001. The mission of the Project is to identify, obtain legal assistance for, and secure the release of persons who are wrongfully imprisoned for crimes they did not commit.