MISSISSIPPI LEGISLATURE
2007 Regular Session
To: Judiciary, Division B
By: Senator(s) Albritton
AN ACT TO AUTHORIZE POST-CONVICTION DNA TESTING UPON APPLICATION OF A DEFENDANT; TO CREATE NEW CODE SECTION 99-39-5.1, MISSISSIPPI CODE OF 1972, TO CLARIFY POST-CONVICTION DNA TESTING; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) Upon a written motion by an individual under a sentence of imprisonment or death, the court that entered the judgment of conviction shall order DNA testing of specific evidence if the court finds that all of the following apply:
(a) The applicant asserts, under penalty of perjury, that the applicant is actually innocent of:
(i) The offense for which the applicant is under a sentence of imprisonment or death; or
(ii) Another offense, if:
l. Evidence of offense was admitted in a court proceeding and exoneration of such offense would entitle the applicant to a reduced sentence or new sentencing hearing; and
2. To the extent available, the applicant has exhausted all remedies available under state law for requesting DNA testing of specified evidence relating to the offense.
(b) The specific evidence to be tested was secured in relation to the investigation or prosecution of the offense referenced in the applicant's assertion under paragraph (a).
(c) The specific evidence to be tested:
(i) Was not previously subjected to DNA testing and the applicant did not:
l. Knowingly and voluntarily waive the right to request DNA testing of that evidence in a court proceeding after the effective date of this act; or
2. Knowingly fail to request DNA testing of that evidence in a prior motion for postconviction DNA testing; or
(ii) Was previously subjected to DNA testing and the applicant is requesting DNA testing using a new method or technology that is substantially more probative than the prior DNA testing.
(d) The specific evidence to be tested is in the possession of the state and has 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.
(e) The proposed DNA testing is reasonable in scope, uses scientifically sound methods, and is consistent with accepted forensic practices.
(f) The applicant identifies a theory of defense that:
(i) Is not inconsistent with an affirmative defense presented at trial; and
(ii) Would establish the actual innocence of the applicant of the offense referenced in the applicant's assertion under paragraph (a).
(g) If the applicant was convicted following a trial, the identity of the perpetrator was at issue in the trial.
(h) The proposed DNA testing of the specific evidence may produce new material evidence that would:
(i) Support the theory of defense referenced in paragraph (f); and
(ii) Raise a reasonable probability that the applicant did not commit the offense.
(i) The applicant certifies that the applicant will provide a DNA sample for purposes of comparison.
(j) The motion is made in a timely fashion, subject to the following conditions;
(i) There shall be a rebuttable presumption of timeliness if the motion is made within sixty (60) months of the effective date of this act or within thirty-six (36) months of conviction, whichever comes later. Such presumption may be rebutted upon a showing:
l. That the applicant's motion for a DNA test is based solely upon information used in a previously denied motion; or
2. Clear and convincing evidence that the applicant's filing is done solely to cause delay or harassment.
(ii) There shall be a rebuttable presumption against timeliness for any motion not satisfying subparagraph (i) above. Such presumption may be rebutted upon the court's finding:
1. That the applicant was or is incompetent and such incompetence substantially contributed to the delay in the applicant's motion for a DNA test;
2. The evidence to be tested is newly discovered DNA evidence;
3. That the applicant's motion is not based solely upon the applicant's own assertion of innocence and, after considering all relevant facts and circumstances surrounding the motion, a denial would result in a manifest injustice; or
4. Upon good cause shown.
(2) (a) Upon the receipt of a motion filed under subsection (1), the court shall:
(i) Notify the prosecution; and
(ii) Allow the prosecution a reasonable time period to respond to the motion.
(b) To the extent necessary to carry out proceedings under this section, the court shall direct the state to preserve the specific evidence relating to a motion under subsection (1).
(c) The court may appoint counsel for an indigent applicant under this section.
(3) (a) The court shall direct that any DNA testing ordered under this section be carried out by any qualified laboratory if the court makes all necessary orders to ensure the integrity of the specific evidence and the reliability of the testing process and test results.
(b) The costs of any DNA testing ordered under this section shall be paid:
(i) By the applicant; or
(ii) In the case of an applicant who is indigent, by the state.
(4) In any case in which the applicant is sentenced to death:
(a) Any DNA testing ordered under this section shall be completed not later than sixty (60) days after the date on which the prosecution responds to the motion filed under subsection (1); and
(b) Not later than one hundred twenty (120) days after the date on which the DNA testing ordered under this section is completed, the court shall order any post-testing procedures under subsection (6) or (7), as appropriate.
(5) (a) The results of any DNA testing ordered under this section shall be simultaneously disclosed to the court, the applicant, and the prosecutor.
(b) If the DNA test results obtained under this section exclude the applicant as the source of the DNA evidence, and a comparison of the DNA sample of the applicant does not result in a match between the DNA sample of the applicant and another offense, the Attorney General shall destroy the DNA sample of the applicant and ensure that such information is not retained if there is no other legal authority to retain the DNA sample of the applicant.
(6) (a) If DNA test results obtained under this section are inconclusive, the court may order further testing, if appropriate, or may deny the applicant relief.
(b) If DNA test results obtained under this section show that the applicant was the source of the DNA evidence, the court shall:
(i) Deny the applicant relief; and
(ii) On motion of the state:
l. Make a determination whether the applicant's assertion of actual innocence was false, and, if the court makes such a finding, the court may hold the applicant in contempt; and
2. Assess against the applicant the cost of any DNA testing carried out under this section.
(7) (a) Notwithstanding any law that would bar a motion under this paragraph as untimely, if DNA test results obtained under this section exclude the applicant as the source of the DNA evidence, the applicant may file a motion for a new trial or resentencing, as appropriate. The court shall establish a reasonable schedule for the applicant to file such a motion and for the prosecution to respond to the motion.
(b) The court shall grant the motion of the applicant for a new trial or resentencing, as appropriate, if the DNA test results, when considered with all other evidence in the case (regardless of whether such evidence was introduced at trial), establish by compelling evidence that a new trial would result in an acquittal of:
(i) In the case of a motion for a new trial the offense for which the applicant is under a sentence of imprisonment or death; and
(ii) In the case of a motion for resentencing, another offense, if evidence of such offense was admitted during a sentencing hearing and exoneration of such offense would entitle the applicant to a reduced sentence or a new sentencing proceeding.
(8) (a) Nothing in this section shall affect the circumstances under which a person may obtain DNA testing or post-conviction relief under any other law.
(b) Nothing in this section shall provide a basis for relief in any habeas corpus proceeding.
SECTION 2. The following shall be codified as Section 99-39-5.1, Mississippi Code of 1972:
99-39-5.1. (1) Notwithstanding the time limitations laid out in subsection (2), a prisoner convicted of a felony may file an application under the provisions of this section requesting DNA testing of evidence containing biological material. The application must be signed by the applicant and must allege the following:
(a) That the applicant is factually innocent of the crime for which he was convicted, regardless of whether the applicant pled guilty or nolo contendere; and
(b) That evidence potentially suitable for DNA testing was secured in relation to the offense that is the basis of the challenged conviction, whether or not it was used at trial; and
(c) (i) DNA testing was not performed on the evidence secured in relation to the offense either because DNA testing was not available, or was available but not technologically capable of providing probative results, or for any other reason that was not the fault of the convicted person; or
(ii) Although the evidence was previously subjected to DNA testing, it can now be subjected to newer testing techniques that provide a reasonable likelihood of results that are more accurate and probative than the results of the previous test.
(2) The application shall be filed in the trial court where the applicant was convicted, and shall be served on the Attorney General, the appropriate district attorney, and the law enforcement agency in possession of the evidence. After service of the application, 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 courts.
(3) After service of the motion, the court shall hold a hearing to determine whether:
(a) The evidence still exists and is in a condition making DNA testing possible;
(b) 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 aspect. For purposes of this act, evidence that has been in the custody of law enforcement, other government officials or a public or private hospital shall be presumed to satisfy the chain of custody requirement of this subsection; and
(c) The testing is materially relevant, and may provide significant proof of the convicted person's actual innocence.
(4) If the court finds that all of the above criteria have been met, the court shall order that the requested forensic DNA testing be conducted. A copy of the order shall be served on the Attorney General, the district attorney of the county where the applicant was convicted and the law enforcement agency that 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 finds that the applicant did not satisfy all of the above requirements, it shall dismiss the application. An applicant may appeal the dismissal of the application for DNA testing to the Mississippi Supreme Court.
(5) Testing shall be conducted by a laboratory mutually agreed upon by the applicant and the district attorney. In the event that the two parties cannot agree, the court shall designate a laboratory that is accredited by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) in forensic DNA analysis to perform the tests.
(6) (a) The costs of testing shall be borne by the applicant, unless the applicant is found to be indigent, in which case the costs of testing shall be borne by the state.
(b) There is hereby created in the state treasury a special fund designated as the Indigent Inmates' Post Conviction DNA Testing Fund. The fund shall consist of money specially appropriated by the Legislature that may be reimbursed through grant monies received from United States Department of Justice grants to cover the costs of providing indigent inmates with DNA testing. The fund shall be administered by the Administrative Office of the Courts. The fund shall be segregated from all other funds and shall be used exclusively for the purposes established under the provisions of this section.
(7) The results of the testing shall be forwarded to the applicant, the trial court, and the district attorney. If the results are favorable to the petitioner, the court shall schedule a hearing to determine the appropriate relief to be granted. Based on the results of the testing and any evidence or other matter presented at the hearing, the court shall thereafter enter any order that serves the interests of justice, including any of the following:
(a) An order setting aside or vacating the petitioner's judgment of conviction or judgment of not guilty by reason of insanity;
(b) An order granting the petitioner a new trial or fact-finding hearing;
(c) An order granting the petitioner a new sentencing hearing, commitment hearing or dispositional hearing;
(d) An order discharging the petitioner from custody;
(e) An order specifying the disposition of any evidence that remains after the completion of the testing;
(f) An order granting the petitioner additional discovery on matters related to DNA test results or the conviction or sentence under attack, including, but not limited to, documents pertaining to the original criminal investigation or the identities of other suspects; or
(g) An order directing the state to place any unidentified DNA profile(s) obtained from post-conviction DNA testing into state and/or federal databases.
(8) If the results of the tests are not favorable to the petitioner, the court:
(a) Shall dismiss the petition; and
(b) May make any further orders that are appropriate, including those that:
(i) Provide that the parole board or a probation department be notified of the test results;
(ii) Request that the petitioner's DNA profile be added to the state's convicted offender database.
(8) Filing an application under this section shall not preclude or substitute for an application for post conviction relief based on any other provision of the Uniform Post Conviction Relief Act.
SECTION 3. This act shall take effect and be in force from and after July 1, 2007.