Amicus Curiae Brief — Rodney Reed, Petitioner v. Bryan Goertz
Supreme Court briefJul 7, 2022
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No. 21-442
IN THE
Supreme Court_________
of the United States
RODNEY REED,
Petitioner,
v.
BRYAN GOERTZ,
Respondent.
_________
On Writ of Certiorari to the United States Court of Appeals
for the Fifth Circuit
_________
BRIEF OF AMICI CURIAE EIGHT RETIRED JUDGES
IN SUPPORT OF PETITIONER
_________
JESSICA L. ELLSWORTH
Counsel of Record
JO-ANN TAMILA SAGAR
HOGAN LOVELLS US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5600
jessica.ellsworth@hoganlovells.com
Counsel for Amici Curiae
(i)
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .............................................. iii
STATEMENT OF INTEREST ............................................. 1
SUMMARY OF THE ARGUMENT .................................. 2
ARGUMENT ........................................................................ 3
I. POST-CONVICTION DNA TESTING STATUTES
ARE BASED ON PRINCIPLES OF FAIRNESS AND
ACCURACY THAT ARE FOUNDATIONAL FOR
OUR JUSTICE SYSTEM. ................................................. 3
Post-Conviction DNA Testing Statutes
Reflect our Criminal Justice System’s
Concern for the Wrongfully Convicted.......... 3
State-Created Post-Conviction DNA
Testing Statutes Must Be Fundamentally
Adequate to Vindicate the Substantive
Rights Provided ................................................. 8
II. THE TEXAS COURT OF CRIMINAL APPEALS
GRAFTED NEW REQUIREMENTS ONTO TEXAS’
POST-CONVICTION DNA TESTING STATUTE
THAT PRECLUDE DEFENDANTS FROM
OBTAINING DNA TESTING OF EVIDENCE
THAT, IN THE SAME CONDITION, THE STATE
COULD TEST AND USE ............................................. 10
Texas’s Post-Conviction DNA Testing
Statute Requires Showing a Chain of
(ii)
TABLE OF CONTENTS (CONT’D)
Page
Custody, Not Non-Contamination. .............. 11
In Reed’s Case and Others, The Texas
Court of Criminal Appeals Has
Interpreted Texas’ Post-Conviction
DNA Testing Statute To Require
Showing Non-Contamination. ...................... 15
III. THE TEXAS COURT OF CRIMINAL APPEALS’
DECISION EXEMPLIFIES A FAILURE TO PROVIDE
PROCEDURAL DUE PROCESS TO A DEFENDANT ...... 18
Fair Administration of the Death
Penalty Requires Subjecting Defendants
and the State to the Same Standards
Regarding DNA Evidence .............................. 19
Fair Administration of the Death
Penalty Precludes Denying PostConviction DNA Testing Based On
Factors Within the State’s Sole Control ........ 22
CONCLUSION .................................................................. 25
(iii)
TABLE OF AUTHORITIES
Page(s)
FEDERAL CASES
Arizona v. Youngblood,
488 U.S. 51 (1988) ................................................... 10, 24
Calderon v. Thompson,
523 U.S. 538 (1998) ......................................................... 3
Coffin v. United States,
156 U.S. 432 (1895) ......................................................... 2
District Attorney’s Office for Third Judicial
District v. Osborne,
557 U.S. 52 (2009) .................................................. passim
Douglas v. California,
372 U.S. 353 (1963) ......................................................... 9
Doyle v. Ohio,
426 U.S. 610 (1976) ....................................................... 23
Eddings v. Oklahoma,
455 U.S. 104 (1982) ....................................................... 19
Evitts v. Lucey,
469 U.S. 387 (1985) ......................................................... 9
Griffin v. Illinois,
351 U.S. 12 (1956) ......................................................... 10
Harvey v. Horan,
285 F.3d 298 (4th Cir. 2002) ...................................... 4, 5
(iv)
TABLE OF AUTHORITIES (CONT’D)
Page(s)
Herrera v. Collins,
506 U.S. 390 (1993) ..................................................... 3, 4
Kaufman v. United States,
394 U.S. 217 (1969) ......................................................... 3
M.L.B. v. S.L.J.,
519 U.S. 102 (1996) ......................................................... 9
McKane v. Durston,
153 U.S. 684 (1894) ......................................................... 9
Medina v. California,
505 U.S. 437 (1992) ............................................... 8, 9, 10
Newton v. City of New York,
681 F. Supp. 2d 473 (S.D.N.Y. 2010) .......................... 24
Raley v. Ohio,
360 U.S. 423 (1959) ....................................................... 24
Redden v. Calbone,
223 F. App’x 825 (10th Cir. 2007) ............................... 14
Reed v. Texas,
140 S. Ct. 686 (2020) ..................................................... 16
Santobello v. New York,
404 U.S. 257 (1971) ................................................. 23, 24
(v)
TABLE OF AUTHORITIES (CONT’D)
Page(s)
United States v. Goodrich,
739 F.3d 1091 (8th Cir. 2014) ...................................... 14
United States v. Morrow,
374 F. Supp. 2d 42 (D.D.C. 2005) ............................... 14
United States v. Washington,
11 F.3d 1510 (10th Cir. 1993) ...................................... 14
STATE CASES
Bean v. State,
373 P.3d 372 (Wyo. 2016) ............................................ 14
Commonwealth v. Lyons,
51 N.E.3d 476 (Mass. App. Ct. 2016) ................... 20, 21
Dossett v. State,
216 S.W.3d 7 (Tex. Crim. App. 2006) ........................ 19
Druery v. State,
225 S.W.3d 491 (Tex. Crim. App. 2007) .............. 14, 20
Hernandez v. State,
No. 13-20-00216-CR, 2022 WL 324069 (Tex.
App. Feb. 3, 2022), reh’g denied (Apr. 22,
2022)............................................................................... 18
Lagrone v. State,
942 S.W.2d 602 (Tex. Crim. App. 1997) .................... 14
(vi)
TABLE OF AUTHORITIES (CONT’D)
Page(s)
People v. Johnson,
743 N.E.2d 150 (Ill. App. 2000)............................. 14, 15
People v. Noble,
No. 1-11-3548, 2012 WL 6861355 (Ill. App.
Ct. Dec. 21, 2012) .......................................................... 20
People v. Travis,
329 Ill. App. 3d 280 (2002) .......................................... 20
Reed v. State,
541 S.W.3d 759 (Tex. Crim. App. 2017) ........ 15, 16, 17
State v. Pratt,
842 N.W.2d 800 (Neb. 2014) ....................................... 24
Webb v. State,
No. 13-18-00046-CR, 2019 WL 1561825
(Tex. App. Apr. 11, 2019) ............................................ 18
FEDERAL STATUTE
18 U.S.C. § 3600 (2004) .................................................. 6, 22
STATE STATUTES
42 Pa. Cons. Stat. Ann. § 9543.1 (West 2007) ................... 6
Ala. Code § 15-18-200 (LexisNexis Supp. 2009) .............. 6
Ariz. Rev. Stat. Ann. § 13-4240 (2001) ............................... 6
(vii)
TABLE OF AUTHORITIES (CONT’D)
Page(s)
Ark. Code Ann. § 16-112-202 (2006).................................. 6
Cal. Penal Code § 1405 (West Supp. 2010) ....................... 6
Colo. Rev. Stat. § 18-1-413 (2009) ....................................... 6
Conn. Gen. Stat. § 52-582 (2005) ........................................ 6
D.C. Code §§ 22-4133 to -4135 (Supp. 2009) .................... 6
Del. Code Ann. Title 11, § 4504 (2007) .............................. 6
Fla. Stat. Ann. § 925.11 (West Supp. 2010) ....................... 6
Ga. Code Ann. § 5-5-41 (Supp. 2009) ................................ 6
Haw. Rev. Stat. Ann. § 844D-123 (LexisNexis
2007)................................................................................. 6
Idaho Code Ann. § 19-4902 (2004) .................................... 6
Ill. Comp. Stat. Ann. § 5/116-3 (West 2006)..................... 6
Ind. Code Ann. § 35-38-7-5 (LexisNexis Supp.
2006)................................................................................. 6
Iowa Code Ann. § 81.10 (West Supp. 2008) ..................... 6
Kan. Stat. Ann. § 21-2512 (2007) ........................................ 6
Ky. Rev. Stat. Ann. § 422.285 (LexisNexis
Supp. 2009) ..................................................................... 6
(viii)
TABLE OF AUTHORITIES (CONT’D)
Page(s)
La. Code Crim. Proc. Ann. Article 926.1
(Supp. 2010) .................................................................... 6
Md. Code Ann., Crim. Proc. § 8-201
(LexisNexis Supp. 2009)................................................ 6
Me. Rev. Stat. Ann. Title 15, § 2137 (Supp.
2009)................................................................................. 6
Mich. Comp. Laws Ann. § 770.16 (West Supp.
2009)................................................................................. 6
Minn. Stat. § 590.01 (2008) .................................................. 6
Mo. Ann. Stat. § 547.035 (West 2002) ................................ 6
Mont. Code Ann. § 46-21-110 (2009) ................................. 6
N.C. Gen. Stat. Ann. § 15A-269 (2009) .............................. 6
N.D. Cent. Code § 29-32.1-15 (2006) ................................. 6
N.H. Rev. Stat. Ann. § 651-D:2 (LexisNexis
2007)................................................................................. 6
N.J. Stat. Ann. § 2A:84A-32a (West Supp.
2009)................................................................................. 6
N.M. Stat. Ann. § 31-1A-2 (LexisNexis 2009) .................. 6
N.Y. Crim. Proc. Law .......................................................... 6
(ix)
TABLE OF AUTHORITIES (CONT’D)
Page(s)
N.Y. Crim. Proc. Law § 440.30(1-a) (McKinney
2005)................................................................................. 6
Neb. Rev. Stat. § 29-4120 (2008) ......................................... 6
Nev. Rev. Stat. Ann. § 176.0918 (LexisNexis
2006)................................................................................. 6
Ohio Rev. Code Ann. § 2953.72 (LexisNexis
Supp. 2009) ..................................................................... 6
Or. Rev. Stat. § 138.690 (2007) ............................................ 6
R.I. Gen. Laws § 10-9.1-11 (Supp. 2008)............................ 6
S.C. Code Ann. § 17-28-30 (Supp. 2009) ........................... 6
Tenn. Code Ann. § 40-30-304 (2006) ................................. 6
Tex. Code Crim. Proc. Ann. Article 38.43(b),
(c)(1)-(2) ......................................................................... 23
Tex. Code Crim. Proc. Ann. Article 38.43(d) ................. 25
Tex. Code Crim. Proc. Ann. Article 64.01
(a-1) ................................................................................ 11
Tex. Code Crim. Proc. Articles 64.01-.05 ........................ 11
Tex. Code Crim. Proc. Article 64.03(a)(1)(A)(ii) ..... passim
(x)
TABLE OF AUTHORITIES (CONT’D)
Page(s)
Tex. Crim. Proc. Code Ann. §§ 64.01-64.05
(Vernon 2006 & Supp. 2009)......................................... 6
Texas Code of Criminal Procedure Chapter
38.43 ................................................................... 23, 24, 25
Texas Code of Criminal Procedure Chapter 64...... passim
Utah Code Ann. §§ 78B-9-300 to 78B-9-304
(2008) ............................................................................... 6
Va. Code Ann. § 19.2-327.1 (2008) ..................................... 6
Vt. Stat. Ann. Title 13, § 5561 (2009).................................. 6
W. Va. Code Ann. § 15-2B-14 (LexisNexis
2009)................................................................................. 6
Wash. Rev. Code Ann. § 10.73.170 (West
Supp. 2009) ..................................................................... 6
Wis. Stat. Ann. § 974.07 (West 2007) ................................. 6
Wyo. Stat. Ann. § 7-12-303 (2009) ...................................... 6
RULE
Tex. R. Evid. 901(a) ...................................................... 13, 19
(xi)
TABLE OF AUTHORITIES (CONT’D)
Page(s)
OTHER AUTHORITIES
American Heritage Dictionary of the English
Language (3d ed. 2000) ............................................... 13
Black’s Law Dictionary (6th ed. 2004) ............................ 13
Cynthia E. Jones, Evidence Destroyed, Innocence
Lost: The Preservation of Biological Evidence
Under Innocence Protection Statutes, 42 Am.
Crim. L. Rev. 1239 (2005) .............................................. 7
Department of Justice, Future of Forensic
DNA Testing (2000) ...................................................... 4
JH Dingfelder Stone, Facing the Uncomfortable
Truth: The Illogic of Post-Conviction DNA
Testing for Individuals Who Pleaded Guilty,
45 U.S.F. L. Rev. 47 (2010)............................................. 5
John M. Butler, Forensic DNA Typing (2005) ................ 4
Kathy Swedlow, Don’t Believe Everything You
Read: A Review of Modern “Post-Conviction”
DNA Testing Statutes, 38 Cal. W. L. Rev.
355 (2002) ........................................................................ 7
Kristen McIntyre, A Prisoner’s Right to Access
DNA Evidence to Prove His Innocence: PostOsborne Options, 17 Tex. Wesleyan L. Rev.
565 (2011) ........................................................................ 5
(xii)
TABLE OF AUTHORITIES (CONT’D)
Page(s)
Roland AH van Oorschot et al., Forensic trace
DNA: a review, Investigative Genetics
(2010) ............................................................................... 4
Seth F. Kreimer & David Rudovsky, Double
Helix, Double Bind: Factual Innocence and
Postconviction DNA Testing, 151 U. Pa. L.
Rev. 547 (2002) ............................................................... 5
Webster’s II New College Dictionary (1999) ................. 13
Webster’s Third New Int’l Dictionary (2002) ................ 13
(1)
IN THE
Supreme Court of the United States
_________
No. 21-442
_________
RODNEY REED,
Petitioner,
v.
BRYAN GOERTZ,
Respondent.
_________
On Writ of Certiorari to the United States Court of
Appeals for the Fifth Circuit
_________
BRIEF FOR EIGHT RETIRED JUDGES AS AMICI
CURIAE IN SUPPORT OF PETITIONER
_________
STATEMENT OF INTEREST1
Amici are former judges from the Texas Court of Criminal Appeals and from other state and federal courts
around the country.2 Amici have an interest in ensuring
the integrity of judicial proceedings. It is critically important to the fair administration of the death penalty
and state post-conviction DNA testing statutes that
States be required to provide basic procedural due process in implementing these statutes. Post-conviction
No party or counsel for a party authored this brief in whole or
in part. No party, counsel for a party, or person other than amici curiae or their counsel made any monetary contribution intended to
fund the preparation or submission of this brief. All parties have
consented to this brief’s filing.
1
The individual judges submitting this brief are listed in the Addendum to the brief.
2
(2)
DNA testing statutes seek to further the core value of
protection against wrongful convictions by allowing
convicted persons access to evidence used to convict
them so that that evidence can be DNA tested.
SUMMARY OF THE ARGUMENT
State-created post-conviction DNA testing statutes
must comport with the Constitution’s procedural due
process guarantees. See District Attorney’s Office for Third
Judicial District v. Osborne, 557 U.S. 52, 68–69 (2009). Fairness and truth are the foundation of our criminal justice
system. E.g., Coffin v. United States, 156 U.S. 432, 456
(1895) (holding that it is “better that ten guilty persons
escape than that one innocent suffer” (quoting 2 William
Blackstone, Commentaries *358)). DNA testing carries
out those principles by increasing the accuracy of criminal convictions. See Osborne, 557 U.S. at 62. All fifty states
have enacted post-conviction DNA testing statutes.
These statutes allow the wrongfully convicted to prove
their innocence in an innocence claim or habeas petition.
And, as this Court explained in Osborne, state-created
post-conviction DNA testing statutes must be “fundamentally []adequate to vindicate the substantive rights
provided.” Id. at 69.
The implementation of Texas’s post-conviction DNA
testing statute that underlies the decision below falls
short of that mark. Petitioner Rodney Reed seeks access
to evidence used to convict him in order to conduct DNA
testing on that evidence, using technology that was unavailable in 1996, when the crime at issue occurred. Texas
has enacted a post-conviction DNA testing statute that,
in theory, would allow Reed to test the evidence in his
case. But the Texas trial court denied Reed’s motion for
DNA testing of this evidence, and the Texas Court of
(3)
Criminal Appeals upheld that denial. They did so by
grafting new requirements onto the Texas statute that
preclude a defendant from obtaining DNA testing of evidence that, in the same condition, the State could subject
to DNA testing and use to prosecute a defendant. And
the Texas Court of Criminal Appeals reached that result
even though the State unilaterally controls how the evidence is handled.
ARGUMENT
I. POST-CONVICTION DNA TESTING STATUTES ARE
BASED ON PRINCIPLES OF FAIRNESS AND ACCURACY
THAT ARE FOUNDATIONAL FOR OUR JUSTICE SYSTEM.
Our Nation’s justice system is founded on a longstanding commitment to protecting innocent people’s liberty
and punishing only those who are truly culpable. Postconviction DNA testing statutes are a modern reflection
of those principles. But these statutes can support the
principles of fairness and accuracy only if they are interpreted in a way that is consistent with Due Process.
Post-Conviction DNA Testing Statutes Reflect
our Criminal Justice System’s Concern for the
Wrongfully Convicted.
1. “[T]he central purpose of any system of criminal justice” is not just “to convict the guilty,” but to “free the
innocent.” Herrera v. Collins, 506 U.S. 390, 398 (1993).
Thus, although finality is important, its value is premised on the accuracy of criminal convictions. Compare,
e.g., Calderon v. Thompson, 523 U.S. 538, 555-56 (1998)
(“Finality is essential to both the retributive and the deterrent functions of criminal law.”), with e.g., Kaufman v.
United States, 394 U.S. 217, 228 (1969) (“[C]onventional
notions of finality in litigation have no place where life
or liberty is at stake and infringement of constitutional
(4)
rights is alleged.”). Public confidence in the application
of the death penalty relies “in no small part” on “the
Constitution[’s] * * * unparalleled protections against
convicting the innocent.” Herrera, 506 U.S. at 420 (O’Connor, J., concurring).
2. Because of its accuracy, DNA testing has become an
important tool for our criminal justice system. The current standard for forensic DNA testing is the Short Tandem Repeat (STR) method. Petitioner Rodney Reed
seeks to use the STR method to test the evidence at issue
here. STR testing has “increas[ed] exponentially the reliability of forensic identification over earlier techniques”
and is “qualitatively different from all that proceeded
it.” Harvey v. Horan, 285 F.3d 298, 305 & n.1 (4th Cir.
2002) (Luttig, J., respecting the denial of rehearing en
banc); cf. Herrera, 506 U.S. at 403 (noting that, ordinarily,
“the passage of time only diminishes the reliability of
criminal adjudications”).
There are two primary advantages of STR testing.
First, STR testing can generate results from very small
and highly degraded samples of DNA. Second, STR testing can generate a profile that is effectively unique
among the world’s population; for example, the odds
that two unrelated white Americans would share the
same STR profile are estimated at one in 575 trillion. See
Roland AH van Oorschot et al., Forensic trace DNA: a
review, Investigative Genetics 2–3 (2010);3 Department of
Justice, Future of Forensic DNA Testing 19 (2000); John
M. Butler, Forensic DNA Typing 12, 146 (2005).
Available
at
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3012025/pdf/2041-2223-1-14.pdf.
3
(5)
“[T]here is no technology comparable” to this modern
method “for matching tissues when such evidence is at
issue.” Osborne, 557 U.S. at 62; see also Kristen McIntyre,
A Prisoner’s Right to Access DNA Evidence to Prove His
Innocence: Post-Osborne Options, 17 Tex. Wesleyan L. Rev.
565, 567–68 (2011). These “extra-ordinary scientific
advance[s]” in DNA testing “have the potential in
certain instances to prove beyond all doubt whether the
requesting person in fact committed the crime for which
he was convicted and sentenced.” Harvey, 285 F.3d at 310
(opinion of Luttig, J.).
The availability of DNA testing for convicted defendants bolsters the legitimacy of the criminal justice system
as a whole. See JH Dingfelder Stone, Facing the Uncomfortable Truth: The Illogic of Post-Conviction DNA Testing
for Individuals Who Pleaded Guilty, 45 U.S.F. L. Rev. 47, 53
(2010). “DNA testing has exonerated wrongly convicted
people, and has confirmed the convictions of many others.” Osborne, 557 U.S. at 62. In addition, “DNA exonerations have disclosed deliberate (and in some cases criminal) police and prosecutorial misconduct in obtaining
the tainted convictions.” Seth F. Kreimer & David Rudovsky, Double Helix, Double Bind: Factual Innocence and
Postconviction DNA Testing, 151 U. Pa. L. Rev. 547, 563
(2002). DNA exonerations have also exposed more “systemic flaws in the criminal justice system” like “faulty
eyewitness identifications, false confessions, ineffective
defense counsel, * * * [and] unethical police or prosecutors.” Id.
3. Every state and the federal government has enacted
post-conviction DNA testing statutes to address this advancing technology. The first DNA testing statutes were
enacted in 1994 and 1997 by New York and Illinois, respectively. See Act of Aug. 2, 1994, ch. 737, 1994 N.Y.
(6)
Laws 3709 (codified at N.Y. Crim. Proc. Law Ann. §
440.30(1-a) (West)); Act of May 9, 1997, Pub. Act. No. 90141, 1997 Ill. Laws 2461 (codified at 725 Ill. Comp. Stats.,
ch. 725, § 5/116-3(a) (West)). Other states and the federal
government quickly followed suit.4
The legislative and political discussion surrounding
these statues often focused on the importance of fairness
See Innocence Protection Act, 18 U.S.C.A. § 3600 (2004); Ala.
Code § 15-18-200 (LexisNexis Supp. 2009); Ariz. Rev. Stat. Ann. §134240 (2001); Ark. Code Ann. § 16-112-202 (2006); Cal. Penal Code §
1405 (West Supp. 2010); Colo. Rev. Stat. § 18-1-413 (2009); Conn.
Gen. Stat. § 52-582 (2005); Del. Code Ann. tit. 11, § 4504 (2007); D.C.
Code §§ 22-4133 to -4135 (Supp. 2009); Fla. Stat. Ann. §925.11 (West
Supp. 2010); Ga. Code Ann. § 5-5-41 (Supp. 2009); Haw. Rev. Stat.
Ann. § 844D-123 (LexisNexis 2007); Idaho Code Ann. § 19-4902
(2004); 725 Ill. Comp. Stat. Ann. § 5/116-3 (West 2006); Ind. Code
Ann. § 35-38-7-5 (LexisNexis Supp. 2006); Iowa Code Ann. § 81.10
(West Supp. 2008); Kan. Stat. Ann. § 21-2512 (2007); Ky. Rev. Stat.
Ann. § 422.285 (LexisNexis Supp. 2009); La. Code Crim. Proc. Ann.
art. 926.1 (Supp. 2010); Me. Rev. Stat. Ann. tit. 15, § 2137 (Supp.
2009); Md. Code Ann., Crim. Proc. § 8-201 (LexisNexis Supp. 2009);
Mich. Comp. Laws Ann. § 770.16 (West Supp. 2009); Minn. Stat. §
590.01 (2008); Mo. Ann. Stat. § 547.035 (West 2002); Mont. Code
Ann. § 46-21-110 (2009); Neb. Rev. Stat. § 29-4120 (2008); Nev. Rev.
Stat. Ann. § 176.0918 (LexisNexis 2006); N.H. Rev. Stat. Ann. § 651D:2 (LexisNexis 2007); N.J. Stat. Ann. § 2A:84A-32a (West Supp.
2009); N.M. Stat. Ann. § 31-1A-2 (LexisNexis 2009); N.Y. Crim. Proc.
Law § 440.30(1-a) (McKinney 2005); N.C. Gen. Stat. Ann. § 15A-269
(2009); N.D. Cent. Code § 29-32.1-15 (2006); Ohio Rev. Code Ann. §
2953.72 (LexisNexis Supp. 2009); Or. Rev. Stat. § 138.690 (2007); 42
Pa. Cons. Stat. Ann. § 9543.1 (West 2007); R.I. Gen. Laws § 10-9.1-11
(Supp. 2008); S.C. Code Ann. § 17-28-30 (Supp. 2009); Tenn. Code
Ann. § 40-30-304 (2006); Tex. Crim. Proc. Code Ann. §§ 64.01-64.05
(Vernon 2006 & Supp. 2009); Utah Code Ann. §§ 78B-9-300 to 78B9-304 (2008); Vt. Stat. Ann. tit. 13, § 5561 (2009); Va. Code Ann. §
19.2-327.1 (2008); Wash. Rev. Code Ann. § 10.73.170 (West Supp.
2009); W. Va. Code Ann. § 15-2B-14 (LexisNexis 2009); Wis. Stat.
Ann. § 974.07 (West 2007); Wyo. Stat. Ann. § 7-12-303 (2009).
4
(7)
in the adjudication of criminal cases. The legislative history of Texas’s post-conviction DNA statute, for example, explains that the Texas legislature enacted Chapter
64 of the Texas Code of Criminal Procedure to increase
post-conviction access to DNA testing and remedy inconsistencies in how courts treated requests for DNA
testing. See House Research Org., Bill Analysis, Tex. S.B.
3 (Mar. 21, 2001) (“[C]ourts tend to order testing only in
the rare case in which a prosecutor agrees with an inmate’s request.”).
Although the various DNA testing statutes that have
been enacted differ substantially, see Kathy Swedlow,
Don’t Believe Everything You Read: A Review of Modern
“Post-Conviction” DNA Testing Statutes, 38 Cal. W. L.
Rev. 355, 358-360 (2002), “all of the statutes have some
common provisions,” Cynthia E. Jones, Evidence Destroyed, Innocence Lost: The Preservation of Biological Evidence Under Innocence Protection Statutes, 42 Am. Crim. L.
Rev. 1239, 1239–40 (2005). State DNA testing statutes
tend to create the same procedural right, “permit[ing] a
convicted prisoner to petition the court for DNA testing
of biological evidence in the possession of the government, notwithstanding the expiration of the normal time
period for post-conviction litigation under applicable
court rules and local statutes.” Id. at 1251. These statutes
also tend to have the same types of procedural limitations. For example, “[t]o qualify for DNA testing under
most innocence protection statutes, the prisoner’s petition for testing must” (1) “aver that the identity of the
perpetrator was a disputed issue at trial,” (2) “include a
declaration that there still exists biological evidence that
was collected by the government in the original investigation which has been maintained by the government
with a proper chain of custody,” and (3) “state that DNA
(8)
analysis of the evidence would demonstrate that the
prisoner is actually innocent or would not have been
convicted.” Id. at 1251-52.
State-Created Post-Conviction DNA Testing
Statutes Must Be Fundamentally Adequate to
Vindicate the Substantive Rights Provided.
1. This Court first recognized that state-created postconviction DNA testing statutes must comport with procedural due process requirements in Osborne, 557 U.S. at
69. The defendant there had sued Alaska state officials
in a civil rights action for violating his due process right
to obtain evidence that was used to convict him of certain criminal offenses. He wanted the evidence to perform DNA testing that was unavailable at the time of his
trial. The Osborne Court held that Alaska’s procedures
for post-conviction DNA testing, developed through the
Alaska courts’ interpretation of the state’s constitution
and post-conviction statute, were “not inconsistent with
the ‘traditions and conscience of our people’ or with ‘any
recognized principle of fundamental fairness.’ ” 557 U.S.
at 70 (quoting Medina v. California, 505 U.S. 437, 446, 448
(1992)). Although a petitioner must meet certain eligibility requirements under Alaska law to obtain discovery
and perform DNA testing—namely, the petitioner must
show that the DNA results were not discoverable at trial
and would constitute clear and convincing evidence of
the petitioner’s innocence—those requirements were not
“fundamentally inadequate” to vindicate a prisoner’s
substantive right to post-conviction relief on the basis of
actual innocence. Id. at 69. This Court therefore held
Alaska’s procedures for post-conviction DNA testing to
be consistent with due process.
(9)
But, in holding that Alaska’s procedures were adequate, the Osborne Court provided important guidance
on what procedures for post-conviction DNA testing
would not be consistent with due process: those that are
unfair to defendants. As the Court explained, post-conviction DNA testing statutes, along with related postconviction remedies, create a constitutionally protected
liberty interest that is infringed where “the State’s procedures for post-conviction relief ‘offend[] some principle of justice so rooted in the traditions and conscience
of our people as to be ranked as fundamental,’ or ‘transgresses any recognized principle of fundamental fairness in operation.’” Osborne, 557 U.S. at 69 (quoting Medina, 505 U.S. at 446, 448). State-created post-conviction
DNA testing statutes must be “fundamentally []adequate to vindicate the substantive rights provided.” Id.
2. Like any other process provided by Texas, the State’s
procedures for post-conviction DNA testing must be
“essential[ly] fair[],” even if the proceedings themselves
are not constitutionally mandated. M.L.B. v. S.L.J., 519
U.S. 102, 120 (1996). Of course, a state is under no obligation to provide a prisoner with particular mechanisms
for postconviction relief; this Court has suggested that a
state could even preclude a prisoner from taking a direct
appeal from his conviction. See McKane v. Durston, 153
U.S. 684, 687 (1894). Where a state does create a mechanism for postconviction relief, however, “the procedures
used * * * must comport with the demands of the Due
Process [Clause].” Evitts v. Lucey, 469 U.S. 387, 393
(1985). Thus, relying in part on procedural due process,
this Court has held that a state that provides for a direct
appeal as of right must also afford a criminal defendant
an adequate and effective opportunity to present his
claims. See, e.g., Douglas v. California, 372 U.S. 353, 358
(10)
(1963) (holding that a state must provide for the appointment of counsel on appeal to an indigent defendant);
Griffin v. Illinois, 351 U.S. 12, 20 (1956) (holding that a
state must provide free trial transcripts). Where a state
creates a process for postconviction relief, therefore, the
prisoner has a constitutionally protected liberty interest
in fair access to that process, so as to avoid rendering the
process arbitrary or futile.
For that reason, even if the “fundamental adequacy”
guaranteed by the Due Process Clause and described by
the Osborne Court does not mean that DNA evidence
must be stored indefinitely, see, e.g., Arizona v.
Youngblood, 488 U.S. 51, 57 (1988), or that every prisoner
may access the DNA evidence collected in his case, see
Osborne, 557 U.S. at 68-70, “fundamental adequacy” does
mean at least this much: when state law confers a liberty
interest in proving a prisoner’s innocence with DNA evidence, there must be an adequate system in place for the
prisoner to access that evidence. An adequate system is
one that does not “offend[] some principle of justice so
rooted in the traditions and conscience of our people as
to be ranked as fundamental,” or “transgress[] any recognized principle of fundamental fairness in operation.”
Medina, 505 U.S. at 445, 448 (quotation marks omitted).
II. THE TEXAS COURT OF CRIMINAL APPEALS GRAFTED
NEW REQUIREMENTS ONTO TEXAS’ POSTCONVICTION DNA TESTING STATUTE THAT
PRECLUDE DEFENDANTS FROM OBTAINING DNA
TESTING OF EVIDENCE THAT, IN THE SAME
CONDITION, THE STATE COULD TEST AND USE.
Chapter 64’s chain of custody provision does not expressly require a finding regarding a lack of possible
contamination. The CCA construed Chapter 64,
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however, to impose such a requirement—and then held
that Reed could not meet it because the State had allowed evidence to be touched at trial and had later
stored multiple pieces of evidence together.
Texas’s Post-Conviction DNA Testing Statute
Requires Showing a Chain of Custody, Not
Non-Contamination.
1. Texas’s post-conviction DNA testing scheme is codified at Chapter 64 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. arts. 64.01-.05. Chapter
64 requires, first, that a defendant show that DNA testing could bear on his or her guilt or innocence. In particular, Chapter 64 provides that convicted person may
submit a motion to the convicting court for DNA testing
of evidence “that has a reasonable likelihood of containing biological material,” Tex. Code Crim. Proc. Ann. art.
64.01(a-1), if the evidence was “secured in relation to the
offense” for which the person was convicted and has
been “in the possession of the state during the trial of the
offense,” id. at 64.01(b). And because Chapter 64 is not
providing a do-over for DNA testing, the testing must
be for one of three reasons: (1) the evidence was not previously subjected to DNA testing; (2) the evidence can
be tested using newer techniques with a reasonable likelihood of more accurate or probative results; or (3) the
evidence was previously tested at a lab that has since
been shut down because an audit by the Texas Forensic
Science Commission revealed that the lab had engaged
in “faulty testing practices” during the time the prior test
occurred. Id.
Second, after these pre-conditions establishing that
DNA testing could potentially bear on the defendant’s
guilt or innocence are met, the defendant must show that
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other, additional requirements related to the condition,
authenticity, and probative value of the evidence are also
met. See id. at 64.03(a). Specifically, Chapter 64 provides
that the convicting court may order DNA testing “only”
if the court finds that the evidence “still exists and is in a
condition making DNA testing possible” and “has been
subjected to a chain of custody sufficient to establish that
it has not been substituted, tampered with, replaced, or
altered in any material respect.” Id.
Third and finally, the defendant must show that he is
seeking DNA testing to aid, rather than to undermine,
the criminal justice system. In the statue’s terms, the defendant must “establish[] by a preponderance of the evidence” that “the request for the proposed DNA testing
is not made to unreasonably delay the execution of sentence or administration of justice” and that “the person
would not have been convicted if exculpatory results
had been obtained through DNA testing.” Id. at 64.03(a).
2. Chapter 64’s chain-of-custody requirement is part of
the second group of pre-conditions bearing on the evidence’s authenticity. As noted above, under Chapter 64,
“[a] convicting court may order forensic DNA testing
* * * only if * * * the court finds that * * * the evidence * * *
has been subjected to a chain of custody sufficient to establish that it has not been substituted, tampered with,
replaced, or altered in any material respect.” Id. art.
64.03(a)(1)(A)(ii).
The statute does not explicitly mention the possibility
of contamination. Neither the word “contamination”
nor any synonym thereof appears anywhere in the statute. The concept of contamination generally refers to the
quality or condition of the evidence. “Contamination” can
“soil, stain, corrupt or infect by contact or association,”
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or otherwise “render” an item “unfit for use by the introduction of unwholesome or undesirable elements.”
Webster’s Third New International Dictionary 491
(1993). Chapter 64’s chain-of-custody requirement, by
contrast, uses words referring to the identity of the evidence, not its quality or condition. See Tex. Code Crim.
Proc. art. 64.03(a)(1)(A)(ii) (asking if the evidence has
been “substituted, tampered with, replaced, or altered”).
A “substitute,” for example, is “[o]ne who stands in another’s place,” Black’s Law Dictionary 1470 (6th ed.
2004), that is, “a replacement.” See American Heritage
Dictionary of the English Language 1354 (3d ed. 2000).
And “tampering” is “[t]he act of altering a thing,”
Black’s Law Dictionary 1494 (6th ed. 2004). “Alter,” in
turn, means “to make [an object] different.” See Webster’s II New College Dictionary 33 (1999). In other
words, the text of Chapter 64’s chain-of-custody requirement demonstrates a concern for whether the evidence
is what it purports to be, not what condition the evidence is in.
Nor can Chapter 64’s chain-of-custody requirement be
reasonably read to prohibit a chain-of-custody finding
because of the possibility of contamination. Reading
non-contamination into the chain-of-custody requirement would be inconsistent with the CCA’s interpretation of chain-of-custody requirements in other areas of
Texas criminal law. Texas’s traditional legal standard for
authentication of evidence through chain of custody requires only that a “proponent produce evidence sufficient to support a finding that the item is what the proponent claims it is.” See Tex. R. Evid. 901(a). Indeed, the
CCA has repeatedly held that the risk of contamination
is insufficient to preclude the admission of DNA evidence against a defendant at trial, and does not break the
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chain of custody. See, e.g., Druery v. State, 225 S.W.3d 491,
503-04 (Tex. Crim. App. 2007) (“Absent evidence of tampering or other fraud[,] * * * problems in the chain of custody do not affect the admissibility of the evidence” and
instead “affect the weight that the fact-finder should
give the evidence * * *.”); Lagrone v. State, 942 S.W.2d 602,
617 (Tex. Crim. App. 1997) (“Without evidence of tampering, most questions concerning care and custody of a
substance go to the weight attached, not the admissibility.”).
Reading non-contamination into a chain-of-custody
requirement is also inconsistent with the widespread
understanding across state and federal courts that contamination goes to the weight of the DNA evidence as
opposed to its admissibility. See United States v. Morrow,
374 F. Supp. 2d 42, 46 (D.D.C. 2005) (noting that “the
great weight of legal precedent indicates that possible
contamination issues go towards the weight—rather
than the admissibility—of DNA evidence”); see also, e.g.,
Bean v. State, 373 P.3d 372, 385 (Wyo. 2016) (“[T]he possible contamination or degradation of DNA samples[]
are issues going toward the weight of the evidence rather than admissibility.”); United States v. Goodrich, 739
F.3d 1091, 1098 (8th Cir. 2014) (“The contamination of
the DNA evidence in the collection process and the
weight to give it are questions for the jury to decide.”);
Redden v. Calbone, 223 F. App’x 825, 830 (10th Cir. 2007)
(citation omitted) (“[F]laws in the chain of custody that
might have resulted from the police’s handling of the evidence, such as contamination, ‘go to the weight of the
evidence, but will not preclude admissibility’ if the government lays a proper foundation for the evidence at
trial.” (quoting United States v. Washington, 11 F.3d 1510,
1514 (10th Cir. 1993)); People v. Johnson, 743 N.E.2d 150,
(15)
155 (Ill. App. 2000) (“Issues concerning * * * possible contamination of DNA samples, are matters that go to the
weight of the evidence, not its admissibility.”). Chapter
64’s chain-of-custody requirement, as interpreted by the
CCA, is therefore outside the mainstream.
In Reed’s Case and Others, The Texas Court of
Criminal Appeals Has Interpreted Texas’ PostConviction DNA Testing Statute To Require
Showing Non-Contamination.
1. At an earlier stage of this litigation, Petitioner Rodney Reed sought access, through a motion in state court
under Texas’s Chapter 64, to evidence used to convict
him in order to conduct DNA testing on that evidence.
In denying that motion because of the risk that the State
had contaminated the evidence in Reed’s case, the CCA
effectively wrote a new non-contamination requirement
into Chapter 64’s chain-of-custody requirement, Tex.
Code Crim. Proc. Ann. art. 64.03(a)(i)(A)(ii).
a. On April 23, 1996, the body of Stacey Stites was
found in the brush along a rural road in Bastrop County,
Texas. See Reed v. State, 541 S.W.3d 759, 762 (Tex. Crim.
App. 2017). Investigators determined that Stites was
strangled with her belt, and that her fiancé’s truck was
used to move her body. Id. The State argued that Reed
had abducted, raped and murdered Stites because intact
sperm cells from Reed were recovered from Stites’s
body. Id. Reed, a black man, explained he and Stites, a
white woman, were in a relationship and had consensual intercourse days before the murder, but the State argued that Petitioner’s intact sperm cells conclusively
proved that he raped and killed Stites. Id. at 776. Reed
was convicted in 1998 of Stites’s murder by an all-white
jury and sentenced to death. Id. at 762.
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In the years since his conviction, Reed has gathered a
“considerable body of evidence” undermining the jury’s
verdict. Reed v. Texas, 140 S. Ct. 686, 687 (2020) (statement
of Sotomayor, J., respecting the denial of certiorari). The
medical examiner has recanted his trial testimony regarding the time of Stites’s death and the occurrence of
sexual assault. Id. Forensic pathologists have opined that
Stites was not sexually assaulted, and that Reed’s semen
was likely deposited days before, rather than in conjunction with, Stites’s murder, and that her murder occurred
during the time that Stites’s fiancé, Jimmy Fennell, testified the two were at home together. Id. And Fennell, who
was later incarcerated on unrelated charges, allegedly
told a fellow inmate that his ex-fiancée “had been sleeping around with a black man behind his back,” and so he
“had to kill [his] n***r-loving fiancé[e].” Id. at 688.
b. In 2014, Reed filed a motion, pursuant to Chapter 64,
for DNA testing of the physical evidence in the case. See
Reed v. State, 541 S.W.3d at 764. He sought to have several items tested for DNA evidence, including “items recovered from Stites’s body or her clothing,” “items
found in or near Fennell’s truck,” and “items found near
the victim-recovery scene.” Id. at 764. The hearing on
Reed’s Chapter 64 motion included testimony from a forensic DNA testing expert, who explained that DNA evidence left by the actual killer would likely be found on
the evidence. Id. at 766. The trial court nevertheless denied Reed’s motion. Id. at 726. And the CCA ultimately
affirmed that denial. Id. at 701.
The CCA’s affirmance noted that the State did not dispute several of Chapter 64’s elements, including “that
the items Reed seeks to have tested exist and are in a
condition making DNA testing possible,” and “were either not tested for DNA or could be tested with newer
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technologies providing more accurate and probative results.” Id. at 769. But, with respect to key evidence, such
as the belt used to strangle the victim and her clothing,
the CCA accepted the State’s argument that the statutory
chain of custody element could not be met because of
how the State had handled and stored the evidence. Id.
at 769-70.
In particular, the CCA concluded that certain items
that Reed sought to have tested had been “contaminated, tampered with, or altered,” because the evidence
had been handled without gloves by “attorneys, court
personnel, and possibly the jurors,” and DNA from
those individuals could have been transferred to the evidence as a result. Id. at 769-70. In addition, the various
items of evidence had been stored together, such that
there is “a good chance that [the items in the clerk’s
boxes are] contaminated evidence.” Id. at 770.
The CCA reached this conclusion even though there is
no question that the items of evidence are what they are
purported to be. The belt is the murder weapon, and the
clothing and name tag were taken from Stites’s body. Indeed, the State’s custodian testified that none of these
items had been substituted, replaced, tampered with or
altered. Id. at 767 (“According to Wiley, the exhibits were
maintained under lock and key, and the evidence was
not substituted, replaced, tampered with, or materially
altered while in her care.”).
2. In holding that Chapter 64’s chain-of-custody requirement could not be met because of the risk that the
State had contaminated the evidence in Reed’s case, the
CCA effectively wrote a new non-contamination requirement into Chapter 64’s chain-of-custody requirement. And since in ruling in Reed’s case, Texas courts
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have applied that judicially-created non-contamination
requirement to deny relief in other cases as well. See, e.g.,
Hernandez v. State, No. 13-20-00216-CR, 2022 WL 324069,
at *4 & n.2 (Tex. App. Feb. 3, 2022), reh’g denied (Apr. 22,
2022) (“Here, it is very likely that an exculpatory DNA
result from the golf club was contributed by an innocent
person. * * * The record also indicates the prosecutor, defense counsel, and Moreno handled the golf club without gloves during Hernandez’s trial”); Webb v. State, No.
13-18-00046-CR, 2019 WL 1561825, at *4 (Tex. App. Apr.
11, 2019) (“[A]s in Reed, many people handled the gun
without gloves at trial,” which “support[s] the trial
court’s finding that the gun has not ‘been subjected to a
chain of custody sufficient to establish that it has not
been substituted, tampered with, replaced, or altered in
any material respect.’”).
III. THE TEXAS COURT OF CRIMINAL APPEALS’
DECISION EXEMPLIFIES A FAILURE TO PROVIDE
PROCEDURAL DUE PROCESS TO A DEFENDANT.
The Texas Court of Criminal Appeals’ decision provides a stark example of why the Due Process guarantee
is crucial: While the State’s post-conviction DNA testing
statute theoretically provides Reed and other convicted
persons the right to postconviction DNA testing, convicted persons cannot meaningfully access that right because of a set of impossible-to-meet prerequisites, such
as the chain-of-custody standard as interpreted by the
CCA. The principles of fairness and accuracy underpinning our justice system require more.
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Fair Administration of the Death Penalty
Requires Subjecting Defendants and the State
to the Same Standards Regarding DNA
Evidence.
This Court has long recognized that fairness in the administration of the death penalty should be a guiding
principle. See, e.g., Eddings v. Oklahoma, 455 U.S. 104, 112
(1982) (“[C]apital punishment [must] be imposed fairly,
and with reasonable consistency, or not at all.”). DNA
testing statutes were enacted to allow convicted defendants access to DNA testing of evidence used to convict
them. Nothing about the language of Article
64.03(a)(1)(A)(ii) suggests that movants seeking to test
evidence should face a higher burden than the State. Indeed, every other court that has looked at chain-of-custody requirements in DNA testing statutes has found
that both fundamental fairness and the aims of the statute require a less restrictive interpretation of the chainof-custody requirement than that employed by the CCA.
Nevertheless, that court’s interpretation of Article
64.03(a)(1)(A)(ii) to require no likelihood of contamination imposes a greater burden than that faced by prosecutors seeking to introduce evidence at trial. As noted
above, Texas’s standard for authentication of evidence
through chain of custody requires only that a “proponent * * * produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Tex.
R. Evid. 901(a). This authenticity standard for admitting
DNA evidence to establish guilt is not defeated by possible or even actual contamination. See id.
Texas courts have applied this standard liberally for
prosecutors. In Dossett v. State, 216 S.W.3d 7 (Tex. Crim.
App. 2006), for example, the court rejected a defendant’s
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challenge that the State could not establish chain of custody of DNA evidence because the mere possibility of
contamination or tampering was “insufficient to exclude
the evidence” on chain-of-custody grounds even where
a 20-year-old rape kit had grown fungus, mold, and bacteria and contained other unidentifiable DNA. Id. at 20–
22; see also Druery, 225 S.W.3d at 503–04 (“[a]bsent evidence of tampering or other fraud[,] * * * problems in the
chain of custody do not affect the admissibility of evidence” but rather go to the weight of the evidence). This
is undoubtedly a lower chain-of-custody standard than
the bar the CCA has set for convicted persons seeking
DNA testing under Chapter 64.
Courts in other states have looked at chain-of-custody
requirements containing language nearly identical to
Article 64.03(a)(1)(A)(ii) and concluded that there
should not be a higher burden regarding chain of custody for defendants who want to DNA test evidence
than for prosecutors who introduced the same type of
evidence at trial. See, e.g., People v. Travis, 329 Ill. App. 3d
280, 285 (2002) (“It asks too much to require petitioning
defendant in these cases to plead and prove proper chain
of custody at the outset, for the evidence at issue will undoubtedly have been within the safekeeping of the State,
not the defendant.”); People v. Noble, No. 1-11-3548, 2012
WL 6861355, at *4 (Ill. App. Ct. Dec. 21, 2012) (“An allegation that the evidence to be tested had been in the continuous possession of the police or some other State
agency is facially sufficient regarding the chain-of-custody requirement, and a defendant cannot be expected
to prove at the outset a proper chain of custody because
the evidence at issue will typically have been within the
State’s possession.”); Commonwealth v. Lyons, 51 N.E.3d
476, 484 (Mass. App. Ct. 2016) (allowing a petitioner to
(21)
obtain discovery regarding the condition and chain of
custody of evidence she sought tested because she met
her burden of showing evidence was potentially material).
Courts that have looked squarely at this question have
found that interpretations of a chain-of-custody requirement that place a heavier burden on convicted defendant than on prosecutors unfairly restrict convicted defendants’ rights to obtain DNA testing. In United States
v. Fasano, for example, the Fifth Circuit rejected an interpretation of the chain of custody requirements of the federal Innocence Protection Act (IPA) that would have
made the chain-of-custody requirement for DNA testing
purposes was “narrower than that demanded for the admission of evidence at trial.” 577 F.3d 572, 576 (5th Cir.
2009). The Fifth Circuit rejected that interpretation because it did “not read the statute to impose a more exacting standard for a showing of the chain of custody in a
proceeding under the Innocence Act than would be demanded in a trial itself.” Id. “Indeed,” in the Fifth Circuit’s view, “there is argument with some purchase, that
the trial standard is itself too exacting for an inquiry into
whether tests should be ordered.” Id. The Fifth Circuit
went on to discuss the circumstances of the evidence in
question, noting that the lack of evidence of chain of custody should not inure to the detriment of the convicted.
It explained: “we cannot place upon the defendant the
burden of proving its history while it is held in government custody.” Id. at 577.
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The language of the Texas statute tracks the IPA’s
chain-of-custody provision almost exactly,5 and as with
the federal statute, interpreting that provision in a way
that places a higher burden on the defendant than the
State faced at trial “would create an entrance gate so difficult to enter as to frustrate the core objective of the statute.” Id. For post-conviction DNA testing statutes to promote—rather than undermine—the principles of fairness and accuracy that undergird our criminal justice
system, they must be interpreted to further the aims of
the statutes and to allow defendants to effectively have
access to evidence used to convict them. A fundamentally adequate system cannot prevent convicted defendants with no control over evidence in a state’s possession
from testing that evidence because of an unduly restrictive reading of the chain-of-custody requirement.
Fair Administration of the Death Penalty
Precludes Denying Post-Conviction DNA
Testing Based On Factors Within the State’s
Sole Control.
The process afforded convicted persons under Chapter
64, as interpreted by the CCA, is also fundamentally unfair because the State has physical control over the evidence and effectively controls whether a prisoner can
later meet the chain-of-custody requirement. As part of
investigating a crime, the State generally collects evidence and maintains custody of that evidence. In Texas,
as in many states, the State has an obligation to preserve
The IPA’s chain-of-custody provision requires that the evidence
be in the State’s possession and have been “subject to a chain of custody and retained under conditions sufficient to ensure that such
evidence has not been substituted, contaminated, tampered with,
replaced, or altered in any respect material to the proposed DNA
testing.” 18 U.S.C. § 3600(a)(4).
5
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evidence long after a crime has occurred or a conviction
has been obtained: The law enforcement agency, prosecutor’s office, court, public hospital, or crime laboratory
charged with the collection storage, preservation, analysis, or retrieval of biological evidence must retain and
preserve biological evidence for at least 40 years if the
crime is unsolved or, in a capital case, until the defendant is executed, dies, or is released on parole. Tex. Code
Crim. Proc. Ann. art. 38.43(b), (c)(1)-(2).
Thus, the State maintains physical custody of the biological evidence and can control who has access to it and
where and how it is stored. The statute governing
preservation of evidence in Texas—Chapter 38.43 of the
Texas Code of Criminal Procedure—does not specify
where this evidence is to be stored, at what temperature,
how it is preserved, or who has access to it. Indeed,
Chapter 38.43 provides no precise guidance about how
to fulfill the State’s preservation obligation. As happened here, the preserved evidence could be handled by
others or could be stored with other evidence while the
government has physical custody of the evidence and
the exclusive ability to control how it is treated. The
State’s actions alone will therefore determine whether
the evidence a convicted person wants tested through
Chapter 64’s procedures will meet the chain of custody
requirement. With this power, Texas could effectively
prevent any—or all—convicted persons from ever obtaining postconviction DNA testing.
Yet the due process clause requires states to honor the
promises that they make in their dealings with criminal
defendants. See, e.g., Doyle v. Ohio, 426 U.S. 610 (1976)
(state, having assured defendant that his silence will not
be used against him, may not use a defendant’s post-arrest silence to impeach his trial testimony); Santobello v.
(24)
New York, 404 U.S. 257 (1971) (state bound by promise
made during plea negotiations not to make sentence recommendation after guilty plea entered); Raley v. Ohio,
360 U.S. 423, 473 (1959) (state may not prosecute for contempt after assuring defendants they could refuse to answer questions on grounds of self-incrimination).
In Chapter 64, Texas has made a promise that prisoners can have access to evidence for DNA testing by
showing chain of custody—and the CCA has broken
that promise by imposing a novel requirement that is impossible to meet. It is fundamentally unfair to require a
perfect record for post-conviction testing when the government retains custody of the evidence at issue. See, e.g.,
Newton v. City of New York, 681 F. Supp. 2d 473, 491
(S.D.N.Y. 2010) (movant need not show evidence of bad
faith when the City misplaced evidence because “due
process rights have been violated if attempts to locate
the evidence are frustrated due to a poor or non-existent
evidence management system”); State v. Pratt, 842
N.W.2d 800, 811 (Neb. 2014) (“If we were to interpret the
physical integrity prong as demanding that the biological evidence was secured in a way likely to avoid accidental contamination with extraneous DNA from epithelial cells, then the express purposes of the Act would
be undermined.”).
What is more, there is no remedy for convicted persons
when evidence in Texas’s custody is mishandled. Chapter 38.43 does not provide any remedy when the State’s
actions render the evidence contaminated. And this
Court’s precedent in Arizona v. Youngblood suggests that
little relief would be constitutionally required. 488 U.S.
at 56–57 (finding that failure to preserve evidence does
not establish a substantive due process violation unless
the defendant can show bad faith by the government in
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destroying the evidence and the exculpatory value of the
evidence was apparent before the evidence was destroyed). Finally, Chapter 38.43 even allows Texas to destroy evidence as long as the State provides notice to the
defendant and the convicting court. Tex. Code Crim.
Proc. Ann. art. 38.43(d).
In short, the State has exclusive control over the evidence and nearly unchecked power to render it contaminated. A fundamentally adequate system cannot prevent convicted defendants with no control over evidence
in a State’s possession from testing that evidence based
on the State’s own errors in storing that evidence.
CONCLUSION
For the foregoing reasons, as well as those in Petitioner’s brief, the judgment of the court of appeals
should be reversed.
Respectfully submitted,
JESSICA L. ELLSWORTH
Counsel of Record
JO-ANN TAMILA SAGAR
HOGAN LOVELLS US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5600
jessica.ellsworth@hoganlovells.com
Counsel for Amici Curiae
JULY 2022
ADDENDUM
Add-1
ADDENDUM
AMICI CURIAE RETIRED JUDGES
Charles F. Baird
Judge, 299th Criminal District Court, Travis County,
Texas (2007-2011); Judge, Texas Court of Criminal Appeals (1991-1999).
Oliver E. Diaz, Jr.
Justice, Mississippi Supreme Court (2000-2008); Judge,
Mississippi Court of Appeals (1994-2000).
Timothy Lewis
Judge, United States Court of Appeals for the Third
Circuit (1992-1999).
Justice, Mississippi Supreme Court (2000-2008); Judge,
Mississippi Court of Appeals (1994-2000).
Nan R. Nolan
Magistrate Judge, United States District Court for the
Northern District of Illinois (1998-2012).
Michol O’Connor
Justice, Texas First Court of Appeals (1989-2000).
Stephen M. Orlofsky
Judge, United States District Court for the District of
New Jersey (1996-2003); Magistrate Judge, United States
District Court for the District of New Jersey (1976-1980).
Sol Wachtler
Judge, New York Court of Appeals (1972-1992); Judge,
New York State Supreme Court (1968-1972).
Warren D. Wolfson
Justice, Illinois Court of Appeals (1994-2006); Judge,
Cook County Circuit Court, Illinois (1975-1994).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.