By Rachael Wallace
The Washington State legislative session ended last month, with many issues tackled but some left untouched. The Innocence Project Northwest, operating out of the University of Washington School of Law, worked tirelessly on a biological material retention bill that eventually died in the House of Representatives.
The bill initially placed an 18-month moratorium on the destruction of biological evidence in felony cases. It also created a work group to recommend permanent, statewide standards for preserving biological material. Currently, Washington State has no policy on the preservation of biological material. In the House, Rep. Tina Orwall from Des Moines sponsored the bill. The Senate bill was sponsored by Sen. Jeannie Darneille from Tacoma.
Increasingly in the last 10 years, DNA analysis has been used to convict criminals and to free the wrongfully convicted. Innocence projects have expanded throughout the nation as DNA analysis becomes more reliable and less expensive to use in post-conviction review. In Washington last year, Jeramie Davis was released from a 40-year sentence on a murder he did not commit. In that case, the Spokane police asked that an unidentified DNA profile on the homicide weapon and in the victim’s car be uploaded to the Combined DNA Index System (CODIS), a federal database of DNA profiles. The database came back with a match to another person, Julio Davila, whose fingerprints were also found at the crime scene.
According to the Department of Justice, developing tools to conduct DNA analysis quickly is “vital to the goal of improving the timely analysis of DNA samples.” To achieve these goals, the Department of Justice is focusing research over the next several years on advanced applications of various DNA analysis methods, the expansion of better methods to test degraded, old, or compromised DNA samples, and the development of technologies that will permit better separation of traces of male sexual assailant DNA from female victims. But, as the Department of Justice points out, the development of these tools cannot help people unless evidence is tested and retained.
According to the Innocence Project, only 17 states lack preservation guidelines. With seven exonerations in the last year alone, Washington is quickly becoming a top state for exonerating the wrongfully convicted. Whether that rising number points to an increasing problem or an attainable solution in the state is unclear. What is clear is that Washington’s lack of preservation policy can potentially harm innocent people. When evidence is lost, destroyed, mislabeled, or contaminated, the guiltless cannot prove their innocence and the real perpetrator cannot be caught.
Despite lacking a statewide preservation policy, Washington is one of 49 states that passed a post-conviction DNA testing statute, allowing some convicted people access to potentially exonerating DNA evidence. However, as David Siegel of the New England Innocence Project says, “Of the 49 states that have passed legislation providing for post-conviction DNA testing, only slightly more than half included an evidence preservation requirement.”
The current procedure for those looking to preserve possibly exonerating biological material is burdensome and complicated, especially for those representing themselves pro se. Next session, the Washington legislature will take on retention policies again, hopefully with better results.
Washington Journal of Law, Technology & Arts 