The author of a bill designed to allow prison inmates to have evidence in their cases DNA tested said Wednesday the goal is to eliminate the high bar those defendants must currently pass to obtain post-conviction tests.
Assemblyman Justin Watkins, D-Las Vegas, told the Judiciary Committee current law requires defendants to prove the evidence is material to their case and has a strong possibility of proving the conviction would be reversed or at least modified.
Assembly Bill 268 would eliminate those requirements and have a judge order the testing done — if the inmate can pay for the tests.
But spokesmen for the state’s prosecutors said the bill would “open the flood gates” to already overloaded testing labs and possibly delay critical tests for high profile cases and the testing of backlogged rape kits.
“What’s wrong with finding out the truth?” asked Assemblyman Elliot Anderson, D-Las Vegas. “Our justice system is supposed to be about doing justice.”
Watkins said if the testing finds one innocent person out of a thousand, “it’s worth doing.”
They were supported by Assemblyman Ira Hansen, R-Sparks:“I hate the concept of somebody being incarcerated or convicted who is not guilty of a crime.”
He asked how many Nevada cases there have been and was told in Washoe County, only the case of Cathy Woods who served some 30 years for the killing of Michelle Mitchell in the 1970s before DNA testing cleared her.
He admitted one of the issues raised by prosecutors is whether it’s constitutional to allow inmates who can afford testing an easier standard than those who are indigent. That issue was also raised by Chuck Callaway, representing Las Vegas Metro, who said he believes the state Supreme Court would rule it unconstitutional, effectively requiring the state to pay for the tests in all cases and costing the state money.
But Watkins said he has been advised by legislative counsel it should withstand a constitutional challenge.
“It provides access to the petitioner that the other side, the prosecution, has had all along,” he said. “The reality is the access to the DNA is now equal. One side has to get court approval, the other doesn’t.”
But Jennifer Noble representing the District Attorneys Association said in Washoe County where she handles appellate cases, the defense has access to DNA just like the prosecution. She said the DAs object because, “it removes all discretion away from the court.”
“There needs to be a standard and some sort of vetting process by the court,” she said.
But inmate advocate Tonya Brown said far too often the district courts in this state simply deny petitions for DNA analysis. She also said inmates should be able to send samples to out-of-state labs because they don’t trust the in-state laboratories in Reno and Las Vegas.
But Lisa Smith-Roam of the Washoe crime lab said those fears are groundless because, “We don’t know what results we’re going to get when we test them. Our results are what they are.”
She added those private labs would have to be certified and accredited to make the process valid. She and prosecutors including Noble and Callaway said there would also have to be strict control over the chain of custody of any evidence sent to a private lab.
Judiciary Chairman Steve Yeager, D-Las Vegas, said he’s hopeful the bill can be modified to cure the objections by the state’s DAs and be approved. Watkins said he would continue to work with all parties to make the bill workable.
The committee took no action on the measure.