DNA measure seen as consolation prize

Black Caucus sought execution freeze but calls deal helpful

April 18, 2001|By Sarah Koenig | Sarah Koenig,SUN STAFF

On the last, exhausting day of this year's legislative session, the General Assembly spent much of its energy passing a complicated bill that hadn't gotten much attention during the previous three months.

That's because the legislation, dealing with post-conviction DNA testing, had appeared doomed until Senate President Thomas V. Mike Miller arranged its passage for strategic reasons -- to smooth the inevitable defeat of a death penalty moratorium particularly sought by black legislators.

"This is so proponents will be able to say: `While we didn't get a moratorium, we were able to do something about voter rights and about DNA testing,'" Miller said at the time.

But attorneys now say the new DNA measure, while a good first step, could fail to provide meaningful access to testing and could prove difficult and too expensive for inmates to use.

The Senate deal was this: If proponents eased up on their tenacious fight for a moratorium on state executions, the DNA bill -- stalled in the House Judiciary Committee -- would pass, along with legislation to study whether two-time felons should be allowed to vote.

Both bills were important to the Legislative Black Caucus.

"When [the black senators] realized they couldn't pass the moratorium, they started grasping for straws," said Del. Talmadge Branch, a Baltimore Democrat who heads the caucus. "Senate members saw this as something to walk away with, instead of walking away with nothing. We're happy that we got something."

Sen. Clarence M. Mitchell IV, a Baltimore Democrat and co-sponsor of the DNA measure, said no "deal" was explicit, but that Miller did help pass the DNA bill out of courtesy to black lawmakers.

Although Mitchell acknowledged the DNA bill that passed was not as broad as he and others would have liked, he said, "It's absolutely a victory, because this is just one more tool in doing what the moratorium intended, which is to help people who are innocent or have had their rights abridged."

Miller could have offered nothing. After all, moratorium proponents did not have enough votes to break a filibuster. But by refusing to back down quietly, however, they could have clogged the final day's business and killed some other legislation as a consequence.

Plus, Miller has been taking care to work with the caucus since winter, when some black senators were said to support an effort to oust him as president.

Miller said he did not feel pressure from the black caucus about the moratorium. However, Mitchell said, the 11th-hour DNA deal clearly was made with the caucus in mind, Mitchell said.

"Oh, he can count," Mitchell said, referring to the votes of the chamber's nine black senators, all Democrats.

This session's DNA bill was part of a national push for post-conviction DNA testing that started in the early 1990s, after some death row inmates were freed, thanks to DNA evidence that exonerated them. In Maryland, Prince George's County plans to offer free testing to certain felons, and Montgomery County is exploring a similar idea.

Because the DNA bill was presented to lawmakers in the final, dizzying hours of sine die April 8, not too many legislators had time to figure out exactly what it did.

Del. Lisa A. Gladden, a Baltimore Democrat and public defender, was an exception. "I guess it's better to have something than nothing, but this is a strange-looking something," she said.

The bill requires the court to order DNA testing if an inmate successfully argues certain evidence wasn't tested at the time of trial and could help determine his or her innocence. In addition, it requires state police to preserve evidence containing DNA for three years after a person is sentenced.

The bill only applies to inmates convicted of murder, manslaughter and violent sexual offenses.

The Maryland State's Attorneys Association backed the bill, and so did the Office of the Public Defender. For the first time, they say, convicted felons will have the right to have evidence preserved, to get DNA testing, and to have their cases reopened if the test results suggest their innocence.

Under current law, inmates only have one year in which to ask for a retrial based on new evidence (except for death-row inmates, who can present the court with new evidence at any time). "It certainly represents some opportunities for people to get back into court," said Michele Nethercott, a public defender.

But she, like other attorneys interviewed, said she worries about the bill's fine print, noting, "Ultimately, what emerged from the Senate will throw up procedural barriers."

To get a judge's approval, the petitioner must show that the evidence to be tested has not been mishandled or tampered with -- something beyond an inmate's control. In addition, the petitioner must pay for the DNA analysis, which can cost up to $5,000 per test. The state will reimburse the inmate only if the results are in his or her favor.

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