House Bill 836

AN ACT TO PROVIDE THAT PERSONS CONVICTED OF FELONIES MAY FILE AN APPLICATION FOR DNA TESTING; TO PROVIDE FOR THE ADMINISTRATION OF TESTING; TO PROVIDE FOR SERVICE OF THE APPLICATION UPON PROSECUTORS AND LAW ENFORCEMENT AGENCIES; TO PROVIDE FOR STORAGE OF DNA PROFILES WITH THE MISSISSIPPI CRIME LABORATORY; TO PROVIDE FOR PROCEDURES REGARDING TESTING; TO CREATE A SPECIAL FUND FOR TESTING; TO AMEND SECTIONS 45-33-37, 99-39-23 AND 99-39-27, MISSISSIPPI CODE OF 1972, IN CONFORMITY TO THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. (1) (a) Prior to August 31, 2005, a person convicted of a felony may file an application under the provisions of this section for post-conviction relief requesting DNA testing of an unknown sample secured in relation to the offense for which he was convicted. On or after August 31, 2005, a petitioner may request DNA testing under the rules for filing an application for post-conviction relief.

(b) Notwithstanding the provisions of subsection (1)(a), in cases in which the defendant has been sentenced to death prior to the effective date of this act, the application for DNA testing under the provisions of this section may be filed at any time.

(2) An application filed under the provisions of this article shall comply with the provisions of this act and shall allege all of the following:

(a) A factual explanation of why there is an articulable doubt, based on competent evidence whether or not introduced at trial, as to the guilt of the petitioner in that DNA testing will resolve the doubt and establish the innocence of the petitioner.

(b) The factual circumstances establishing the timeliness of the application.

(d) That the applicant is factually innocent of the crime for which he was convicted, in the form of an affidavit signed by the petitioner under penalty of perjury.

(3) In addition to any other reason established by legislation or jurisprudence, and whether based on the petition and answer or after contradictory hearing, the court shall dismiss any application filed pursuant to this section unless it finds all of the following:

(a) There is an articulable doubt based on competent evidence, whether or not introduced at trial, as to the guilt of the petitioner and there is a reasonable likelihood that the requested DNA testing will resolve the doubt and establish the innocence of the petitioner. In making this finding the court shall evaluate and consider the evidentiary importance of the DNA sample to be tested.

(b) The application has been timely filed.

(4) Relief under this section shall not be granted when the court finds that there is a substantial question as to the integrity of the evidence to be tested.

(5) Relief under this section shall not be granted solely because there is evidence currently available for DNA testing but the testing was not available or was not done at the time of the conviction.

(6) Once an application has been filed and the court determines the location of the evidence sought to be tested, the court shall serve a copy of the application on the district attorney and the law enforcement agency which has possession of the evidence to be tested, including, but not limited to, sheriffs, the Department of Public Safety, local police agencies, and crime laboratories. If the court grants relief under this section and orders DNA testing the court shall also issue such orders as are appropriate to obtain the necessary samples to be tested and to protect their integrity. The testing shall be conducted by a laboratory mutually agreed upon by the district attorney and the petitioner. If the parties cannot agree, the court shall designate a laboratory to perform the tests which is accredited by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) in forensic DNA analysis.

(7) If the court orders the testing performed at a private laboratory, the district attorney shall have the right to withhold a sufficient portion of any unknown sample for purposes of his independent testing. Under such circumstances, the petitioner shall submit DNA samples to the district attorney for purposes of comparison with the unknown sample retained by the district attorney. A laboratory selected to perform the analysis shall, if possible, retain and maintain the integrity of a sufficient portion of the unknown sample for replicate testing. If after initial examination of the evidence, but before actual testing, the laboratory decides that there is insufficient evidentially significant material for replicate tests, then it shall notify the district attorney in writing of its finding. If the petitioner and district attorney cannot agree, the court shall determine which laboratory as required by subsection (6) of this section is best suited to conduct the testing and shall fashion its order to allow the laboratory conducting the tests to consume the entirety of the unknown sample for testing purposes if necessary.

(8) (a) The results of the DNA testing ordered under this section shall be filed by the laboratory with the court and served upon the petitioner and the district attorney. The court may, in its discretion, order production of the underlying facts or data and laboratory notes.

(b) After service of the application on the district attorney and the law enforcement agency in possession of the evidence, no evidence shall be destroyed that is relevant to a case in which an application for DNA testing has been filed until the case has been finally resolved by the court.

(c) After service of the application on the district attorney and the law enforcement agency in possession of the evidence, the clerks of court of each county and all law enforcement agencies, including, but not limited to, district attorneys, sheriffs, the Department of Public Safety, local police agencies, and crime laboratories shall preserve until August 31, 2005, all items of evidence in their possession which are known to contain biological material that can be subjected to DNA testing, in all cases that, as of August 15, 2001, have been concluded by a verdict of guilty or a plea of guilty.

(d) In all cases in which the defendant has been sentenced to death prior to the effective date of this act, the clerks of court of each county and all law enforcement agencies, including, but not limited to, district attorneys, sheriffs, the Department of Public Safety, local police agencies, and crime laboratories shall preserve, until the execution of sentence is completed, all items of evidence in their possession which are known to contain biological material that can be subjected to DNA testing.

(e) Notwithstanding the provisions of paragraphs (c) and (d) of this subsection, after service of the application on the district attorney and the law enforcement agency in possession of the evidence, the clerks of court of each county and all law enforcement agencies, including, but not limited to, district attorneys, sheriffs, the Department of Public Safety, local police agencies, and crime laboratories may forward for proper storage and preservation all items of evidence described in paragraph (c) to a laboratory accredited in forensic DNA analysis by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB).

(f) Except in the case of willful or wanton misconduct or gross negligence, no clerk of court or law enforcement officer or law enforcement agency, including, but not limited to, any district attorney, sheriff, the Department of Public Safety, local police agency, or crime laboratory which is responsible for the storage or preservation of any item of evidence in compliance with the requirements of paragraph (c)(3) shall be held civilly or criminally liable for the unavailability or deterioration of any such evidence to the extent that adequate or proper testing cannot be performed on the evidence.

(9) The DNA profile of the petitioner obtained under this section shall be sent by the district attorney to the Mississippi Crime Laboratory for inclusion in the State DNA database established pursuant to Section 45-33-37. The petitioner may seek removal of his DNA record.

(10) The petitioner, in addition to other service requirements, shall mail a copy of the application requesting DNA testing to the Department of Public Safety. If the court grants relief under this section, the court shall mail a copy of the order to the Department of Public Safety. The Department of Public Safety shall keep a copy of all records set to them pursuant to this subsection and report to the Legislature before January 1, 2003, on the number of petitions filed and the number of orders granting relief.

(11) There is hereby created in the State Treasury a special fund designated as the DNA Testing Post-Conviction Relief for Indigents. The fund shall consist of money specially appropriated by the Legislature. Any monies in the fund at the end of a fiscal year shall not lapse into the General Fund but shall remain in the fund and all interest accrued shall remain in the fund. No other public money may be used to pay for the DNA testing authorized under the provisions of this section. The fund shall be administered by the Department of Public Safety. The fund shall be segregated from all other funds and shall be used exclusively for the purposes established under the provisions of this section. If the court finds that a petitioner is indigent, the fund shall pay for the testing as authorized in the court order.

SECTION 2. Section 45-33-37, Mississippi Code of 1972, is amended as follows:

45-33-37. (1) The Mississippi Crime Laboratory shall develop a plan for and establish a deoxyribonucleic acid (DNA) identification system. In implementing the plan, the Mississippi Crime Laboratory shall purchase the appropriate equipment. The DNA identification system as established herein shall be compatible with that utilized by the Federal Bureau of Investigation.

(2) From and after January 1, 1996, every individual convicted of a sex offense or in the custody of the Mississippi Department of Corrections for a sex offense as defined in Section 45-33-23 shall submit a biological sample for purposes of DNA identification analysis before release from or transfer to a state correctional facility or county jail or other detention facility.

(3) From and after January 1, 1996, any person having a duty to register under Section 45-33-25 for whom a DNA analysis is not already on file shall submit a biological sample for purposes of DNA identification analysis within five (5) working days after registration.

(4) The Mississippi Crime Laboratory shall store DNA profiles obtained under the provisions of Section 1 of House Bill No. , 2002 Regular Session.

SECTION 3. Section 99-39-23, Mississippi Code of 1972, is amended as follows:

99-39-23. (1) If an evidentiary hearing is required the judge may appoint counsel for a petitioner who qualifies for the appointment of counsel under Section 99-15-15, Mississippi Code of 1972.

(2) The hearing shall be conducted as promptly as practicable, having regard for the need of counsel for both parties for adequate time for investigation and preparation.

(3) The parties shall be entitled to subpoena witnesses and compel their attendance, including, but not being limited to, subpoenas duces tecum.

(4) The court may receive proof by affidavits, depositions, oral testimony or other evidence and may order the prisoner brought before it for the hearing.

(5) If the court finds in favor of the prisoner, it shall enter an appropriate order with respect to the conviction or sentence under attack, and any supplementary orders as to rearraignment, retrial, custody, bail, discharge, correction of sentence, relief sought under Section 1 of House Bill No. , 2002 Regular Session, or other matters that may be necessary and proper. The court shall make specific findings of fact, and state expressly its conclusions of law, relating to each issue presented.

(6) The order as provided in subsection (5) of this section or any order dismissing the prisoner's motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article. Excepted from this prohibition is a motion filed pursuant to Section 99-19-57(2), Mississippi Code of 1972, raising the issue of the convict's supervening insanity prior to the execution of a sentence of death. A dismissal or denial of a motion relating to insanity under Section 99-19-57(2), Mississippi Code of 1972, shall be res judicata on the issue and shall likewise bar any second or successive motions on the issue. Likewise excepted from this prohibition are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.

(7) No relief shall be granted under this article unless the prisoner proves by a preponderance of the evidence that he is entitled to such.

(8) Proceedings under this section shall be subject to the provisions of Section 99-19-42.

(9) In cases resulting in a sentence of death and upon a determination of indigence, appointment of post-conviction counsel shall be made by the Office of Capital Post-Conviction Counsel upon order entered by the Supreme Court promptly upon announcement of the decision on direct appeal affirming the sentence of death. The order shall direct the trial court to immediately determine indigence and whether the inmate will accept counsel.

SECTION 4. Section 99-39-27, Mississippi Code of 1972, is amended as follows:

99-39-27. (1) The application for leave to proceed in the trial court filed with the Supreme Court under Section 99-39-7 shall name the State of Mississippi as the respondent.

(2) The application shall contain the original and two (2) executed copies of the motion proposed to be filed in the trial court together with such other supporting pleadings and documentation as the Supreme Court by rule may require.

(3) The prisoner shall serve an executed copy of the application upon the Attorney General simultaneously with the filing of the application with the court.

(4) The original motion, together with all files, records, transcripts and correspondence relating to the judgment under attack, shall promptly be examined by the court.

(5) Unless it appears from the face of the application, motion, exhibits and the prior record that the claims presented by such are not procedurally barred under Section 99-39-21 and that they further present a substantial showing of the denial of a state or federal right, the court shall by appropriate order deny the application. The court may, in its discretion, require the Attorney General upon sufficient notice to respond to the application.

(6) The court upon satisfaction of the standards set forth in this article is empowered to grant the application.

(7) In granting the application the court, in its discretion, may:

(a) Where sufficient facts exist from the face of the application, motion, exhibits, the prior record and the state's response, together with any exhibits submitted therewith, DNA testing pursuant to Section 1 of House Bill No. , 2002 Regular Session, or upon stipulation of the parties, grant or deny any or all relief requested in the attached motion.

(b) Allow the filing of the motion in the trial court for further proceedings under Sections 99-39-13 through 99-39-23.

(8) No application or relief shall be granted without the Attorney General being given at least five (5) days to respond.

(9) The dismissal or denial of an application under this section is a final judgment and shall be a bar to a second or successive application under this article. Excepted from this prohibition is an application filed pursuant to Section 99-19-57(2), Mississippi Code of 1972, raising the issue of the convict's supervening insanity prior to the execution of a sentence of death. A dismissal or denial of an application relating to insanity under Section 99-19-57(2), Mississippi Code of 1972, shall be res judicata on the issue and shall likewise bar any second or successive applications on the issue. Likewise excepted from this prohibition are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Likewise exempted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.

(10) Proceedings under this section shall be subject to the provisions of Section 99-19-42.

(11) Post-conviction proceedings wherein the defendant is under sentence of death shall be governed by rules established by the Supreme Court as well as the provisions of this section.

SECTION 5. This act shall take effect and be in force from and after July 1, 2002.