The Richmond Register

February 7, 2013

Post-conviction DNA testing passes first hurdle

By Ronnie Ellis
CNHI News Service

FRANKFORT — The Senate Judiciary Committee on Thursday sent a bill to the Senate floor which would make post-conviction DNA testing available to felons,  at least those who didn’t plead guilty or accept an Alford Plea (declining to admit guilt but conceding enough evidence exists for a conviction).

Senate Bill 23 is sponsored by Sen. John Schickel, R-Union, who was stunned last summer to learn such testing is now available in Kentucky only to those on death row.

Nationwide, a growing number of convicts in prison have successfully proven their innocence through DNA testing of evidence at the crime scene, in some cases because the testing didn’t exist at the time of the crime.

According to Joe Blaney of the Innocence Project, a national organization affiliated with the Benjamin Cardoza School of Law, Yeshiva University in New York, 302 people serving felony prison time have been proven innocent using DNA testing.

Half of those investigations, Blaney told the Judiciary Committee, also determined the real perpetrators, some of whom had continued to commit crimes while the innocent person was in jail.

But in Kentucky the procedure was only available to those on death row.

Schickel, a former law enforcement officer, said he had a hard time believing that when he first found out. So he filed Senate Bill 23 to change it.

“This bill, to me, is a matter of justice,” Schickel told the committee. He quoted founding father John Adams who said it is better a guilty person go free than for an innocent one to be imprisoned.

The committee approved a committee substitute which amended the bill to exclude those who pleaded guilty or took an Alford Plea, at the request of prosecutors.

Former Judge Tom Wine said the change isn’t necessary, that there are circumstances in which an innocent person may plead guilty, fearing a longer sentence if he doesn’t. And in the end, Wine said, getting innocent people out of jail will only benefit the judicial system, including prosecutors.

Schickel said after the meeting he would prefer the original bill, without the substitute amendment, but even the amended version represents a major improvement over the current law. He and Warren County Commonwealth Attorney Chris Cohron pointed out that those excluded had admitted to their crimes.

Sen. Robin Webb, D-Grayson, an attorney who often represents defendants in criminal proceedings, objected to the change, especially the exclusion of those who take an Alford Plea.

“In my mind someone making an Alford Plea is maintaining innocence,” she said.

An Alford Plea allows a defendant to avoid pleading guilty while recognizing the weight of the evidence is likely enough to convict him. Usually in such cases, an Alford Plea has been negotiated in return for a lighter sentence.

Blaney said the investigations by the Innocence Project found around 10 percent of guilty pleas were made by innocent defendants – for a variety of reasons but usually to avoid a longer sentence they see as inevitable in spite of their innocence.

Sen. Jerry Rhoads, D-Madisonville, also an attorney, suggested changing the language to allow judges to exercise their discretion when reviewing requests for DNA testing by those who previously pleaded guilty or took an Alford Plea.

But the substitute passed, with even Webb and Rhoads voting in favor because, they said, the bill still represents an improvement over current law.

Webb said she hopes the bill will be amended when it gets to the Democratic House and even Schickel said that wouldn’t displease him.

Ed Monahan, the state’s chief Public Advocate, said the bill “marks important progress but it would be improved if it allowed people who plead guilty to have the same right.

“Everyone knows there are innocent people who plead guilty,” Monahan.

Ronnie Ellis writes for CNHI News Service and is based in Frankfort. Reach him at rellis@cnhi.com. Follow CNHI News Service stories on Twitter at www.twitter.com/cnhifrankfort.