krystalrcapasso@gmail.com
(202) 838-7017

Articles

The Fox Guards the Henhouse: Arbitrary and Inadequate State Statutes Governing Access to DNA Testing for the Wrongfully Convicted

Introduction

Deoxyribonucleic acid (DNA) has been at the forefront of exonerations of the wrongfully convicted for decades now.  However, current arbitrary and inadequate procedures for requesting DNA testing for post-conviction prisoners lead to factually innocent persons spending significantly more time confined or time spent outside of confinement as wrongfully convicted persons.  These processes create a scenario whereby the very states who wrongfully convicted these individuals have statutorily mandated themselves as the gatekeepers to DNA testing and ultimate exoneration.  This system stacks the deck entirely against the wrongfully convicted and in the interests of justice must be changed.

Arbitrary and Inadequate Procedures of Requesting DNA Testing

In the words of Justin Brooks, the Director of the California Innocence Project, “the extraordinary precision of DNA testing has erased any doubt that people are sometimes wrongfully convicted.  Since its first appearance in criminal courts in the 1980’s, this testing has been used to convict the guilty and exonerate the innocent.”[1]  However, while this statement is true, the state-created roadblocks for the wrongfully convicted to obtain DNA testing are abundant.  All fifty states have post-conviction DNA testing access statutes in some capacity, but their scope and substance as well as procedures differ.[2]  The vast majority of jurisdictions require the wrongfully convicted to make a formal request for the testing, and typically do not test all relevant evidence on their own.  This in and of itself is fundamentally flawed since it does not protect wrongfully convicted persons who, for whatever reason, do not request testing.  And this is just one of the many flaws of these statutes.  While it is much too large of an undertaking for purposes of this paper to address every individual state’s DNA laws, there are several common yet egregious issues that help to create this situation where the states have unfettered power over the wrongfully convicted.

  • Several States do not Permit Access to DNA Testing if the Defendant Originally Pled Guilty or Confessed to the Crime[3]

At first glance, this may not appear to be a major concern, but the numbers and the facts tell a different story.  Approximately thirty percent of the wrongful convictions in the United States proven by DNA involved a false confession, admission, or guilty plea.[4]  Therefore, there are potentially thousands of wrongfully convicted individuals in this country who are unable to prove their innocence as a result of this particular statutory bar for DNA testing.  Although proponents argue the intent of this rule might have been to prevent backlog throughout the criminal justice system, as science and research develops, the result has been to create an arbitrary bar for those individuals who may have been victims of their own false confession or other admission.  In practice, it supports the plainly simple presumption that if you confess or plead guilty to a crime then you must have committed it.  However, after the thorough research and hard work of organizations like the Innocence Project, and defense attorneys throughout the country, we are now familiar with the fact that innocent people frequently confess and admit to crimes they did not commit.  In fact, approximately thirty percent of the wrongful convictions in the United States proven by DNA involved a false confession, admission, or guilty plea[5].  Given the information we have at this stage, states which have rules such as this barring those individuals from requesting a DNA test in their case based solely on the fact that they have pled guilty is overly broad at best, and can result in innocent persons remaining in prison.

States denying access to DNA testing for these individuals is all the more egregious when you consider the most common reasons for why false confessions occur.  Most, in fact, are attributed to external influences by law enforcement.[6]  Typically, a particular suspect’s personality traits, intelligence, age, and other factors, will have an effect on the likelihood and possibility of a false confession.  However, three sequential errors generally occur when the result is a false confession: misclassification; coercion; and contamination.[7]

Misclassification refers to when investigators erroneously decide that an innocent person is guilty.[8]  As noted by Dr. Richard A. Leo and Dr. Deborah Davis, both false confessions experts and leaders in the field, “the path to false confession begins, as it must, when police target an innocent suspect…Once specific suspects are targeted, police interviews and interrogations are thereafter guided by the presumption of guilt.” [9]  Therefore, the moment the decision is made to interrogate an individual is made is incredibly significant.  This is true because once law enforcement decides that they have the right suspect, not only will their questioning of the individual be based on this premise, but likely the entirety of the investigation.  Why police presume a particular individual committed an offense might be a separate topic, and entirely deserving of a different paper, but science and research in this area has shown that this initial misclassification by the government is the first step to a false confession.

The second step in police-induced false confessions is generally the coercion error.  Upon identifying the guilty party in their minds, investigators then subject the innocent person to “accusatorial interrogation.”[10]  This is typically done through psychological interrogation techniques such as promises of leniency or threats of harsher treatment.[11]  These threats and promises are then “repeated, developed, and elaborated” throughout the interrogation.[12]  The other form of psychological coercion used during interrogations results from suspects believing they have no choice but to comply with the interrogators and ultimately confess.[13]  Again, the characteristics of the suspect have an effect on this technique; however, investigators should be responsible for knowing when factors such as age, mental capacity, etc., will cause the suspect to be more vulnerable to falsely confessing.  It is a relief and victory for justice that things like the Reid Technique are being re-evaluated due to their high danger of eliciting false confessions, but law enforcement need better training and must work to reduce their susceptibility to influences like confirmation bias.

The third issue associated with false confessions is contamination error.[14]  The contamination error refers to the actions of investigators after a suspect’s initial admission.  After the suspect states they committed the offense, investigators involved in false confessions then influence and shape the narrative into a detailed account that they hope will result in a conviction.[15]  Lowery v. County of Riley[16], perfectly exemplifies this.  Lowery was convicted of raping an elderly woman, but he was later exonerated by DNA.  During the investigation, after police were able to obtain an initial admission to the crime, they provided the defendant important, nonpublic details to the crime as he continued his confession.[17]  Ultimately this resulted in a much more detailed and credible confession.

Regarding guilty pleas, there are several reasons why accused persons plead guilty to crimes they did not commit.  For example, some defendants will do so as an agreement to reduce the severity of charges, as an agreement to reduce the maximum sentence, or simply because their trial defense attorney told them it was the best thing to do under the circumstances.  Furthermore, the decision to plead guilty is intrinsically related to false confessions.  When accused persons confess, a guilty plea typically follows.  There may be preliminary motions to have the confessions ruled inadmissible, but if those fail it is rare for those cases to go to trial.

A recent famous example of an innocent person pleading guilty is Brian Banks.  In 2002, 17-year-old Brian was one of the top high school football recruits in the country when he was wrongfully accused of rape by Wanetta Gibson, a classmate.[18]  Brian was facing 41 years-to-life in prison, and agreed to plead guilty instead of risking trial, in exchange for a sentence of no more than 7 years confinement.[19]  Meanwhile, Ms. Gibson went on to sue the school district resulting in a settlement of 1.5 million dollars.[20]  About a decade after his guilty plea, the complainant recanted her statements and admitted she lied about the encounter with Mr. Banks.[21]  After a thorough investigation and representation by the California Innocence Project, the Los Angeles Superior Court reversed the conviction on May 24, 2012.[22]

There are thousands of studies and decades of research that deal with the science of false confessions, but the main takeaways are that false confessions exist, they account for close to a third of DNA exonerations, and, accordingly, state statutes which serve to obstruct access to DNA testing based on the presence of a false confession or guilty plea are illogical and inconsistent with reality.  Furthermore, these statutes are all the more egregious since the vast majority of false confessions and cases where an innocent person pleads guilty, are the result of the manner in which an interrogation was conducted by law enforcement officials.

  • Many State Statutes Create Time Limits as to How Long Individuals Have to Request DNA Testing Based on a Claim of Innocence[23]

Time limits on how long wrongfully convicted persons have to request DNA testing based on a claim of innocence are common within the various state statutes, and serve as yet another arbitrary roadblock to proving innocence.  The common reason cited for the timelines is “finality.”[24]  And this refers to finality for the criminal justice system, finality for the prosecutors, finality for the victims, and finality for the victims’ families.  This motive, however, is inherently flawed because when the wrong person is convicted of the crime, there is no finality for anyone.  In the wrongful conviction framework, an innocent person was punished and the guilty party is free.  Furthermore, constant technological advancements in DNA testing make these statutes highly prejudicial and outdated since our DNA testing capabilities have clearly advanced over time, and the capabilities of old procedures which existed at the time such statutes were enacted pale in comparison to current testing.  For example, in the 1980s, a blood or semen sample the size of a quarter was required for accurate testing.[25]  By the 1990s, this shrunk to the size of a dime.[26]  Currently, due to the creation of touch DNA testing, technology has advanced to a point where no visible amount of semen or blood is required in order to accurately conduct a DNA test.  Rather, touch DNA only requires seven to eight cells from the outermost layer of skin to accurately test.[27]  Touch DNA is at the forefront of DNA based exonerations and was famously used to clear the family of JonBenet Ramsey.[28]  Now consider again the implication of these state statutes that create a time limit for testing.  In many cases of wrongful conviction, there is no blood or semen of the offender present and therefore, under the older technologies, there was nothing to test.  Now, individuals can request that the collected evidence be tested for touch DNA in order to prove their innocence.  However, knowing all of this, the United States Supreme Court in D.A.’s Office v. Osborne, stated, “the availability of technologies not available at the time of trial cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt.”[29]  This analysis misses the mark and seems to be a veiled concern of the “floodgates opening” to frivolous claims.  It is not an issue of all convictions being in doubt, but if someone’s innocence can be proven by simply performing DNA testing and running the results of that testing through the available databases, all parties involved have strong reasons for doing so.  Although the government’s interest may sometimes be in preserving resources, a prosecution office also has an interest in arresting and prosecuting the person who actually committing the crime, thereby ensuring justice has been served.  Thus, when a genuine issue of innocence has been raised, all parties have an interest in pursuing true finality, which can sometimes be obtained by performing DNA testing that either was not available or was not performed at the time of the prosecution of the case.  In cases like this, it is possible that an innocent person can be exonerated, the real offender can be caught or identified, and everyone can experience true finality, not just the false appearance of it.

  • Many state statutes lack adequate safeguards for DNA preservation and create unnecessary timelines for destruction of evidence[30]

While the policies of not allowing testing when there is a confession or guilty plea and creating time limits for requests for testing are both illogical and arbitrary, it is a moot point if there is no evidence to test.  However, these state statutes disregard constant technological advancements and the significant time periods these exonerations typically take, and allow the destruction of potentially invaluable evidence.  As noted by Larry Youngblood, an exoneree convicted in 1985 and not proven innocent until DNA testing in 2000, “if you destroy the evidence, you don’t have a chance.  You could die.”[31]  The most egregious part of these statutes is the justification for them.  Evidence that may provide the basis for exoneration or proof of innocence is often destroyed simply due to lack space and storage costs, and an irresponsible view that simply because something cannot be tested under current technology, evidence should be discarded.[32]  The importance of technological advancements is described above, but regarding costs and space, consider the following facts on fiscal concerns.  The average cost to house one prisoner in the United States, including wrongfully convicted prisoners, is between $20,000 – $40,000 per year.[33]  Research is unavailable regarding how much it would cost to maintain all evidence indefinitely, but certainly an increase in time and some standardization is appropriate.  If necessary, perhaps time limits should be based on severity of the crime.  The fact is that these statutes have a profound effect on lives and in some cases are the difference between life and death.   Indeed, the ABA recognizes this and has endorsed draft legislation to help ensure that material evidence is preserved until post-conviction review is completed.[34]  This should be the minimum requirement.  Even so, there would still be justification to even lengthen the time requirements for preservation of evidence considering the profound impact of wrongful convictions, and the fact that we now know the conviction and imprisonment of the innocent occurs more frequently than we once thought.

  • Many state statutes do not allow people to appeal denied requests for DNA testing[35]

Many of the reasons for why this obstacle to DNA testing is illogical are discussed above, but all of this essentially results from two major issues: (1) courts do not always get it right the first time, and (2) things change over time.

First, the fact that courts do not always get the correct result on each and every issue presented to them the first time a case passes through the system is not a new idea or novel issue within the criminal justice system.  However, there is a significant difference between pre-trial and post-conviction litigation of motions and issues in a case.  For example, if a judge rules that a particular piece of evidence is inadmissible in a criminal case, there are multiple avenues to directly appeal the ruling and even collaterally appeal with a writ of habeas.  However, several states have determined that denials of DNA testing are not subject to the same or similar recourse by the defense.

Aside from the fact that sometimes these rulings are simply incorrect, there is also the issue of things changing in a case. New evidence may be discovered, or there may be an improvement in the technology of testing that did not exist at the time of initial request, or evidence of Ineffective Assistance of Counsel may arise years after a conviction.  All of these scenarios and others have happened before and will happen again.  But most importantly is the arbitrary nature of this rule.  There is no logical explanation as to why states enact these types of barriers which prevent the appeal of DNA testing requests.  Some argue that, without it, the floodgates would be open to repeated frivolous requests, but no facts are offered to support this proposition.[36]  At the very most, if there is a genuine concern of frivolous claims, these states should simply enact a rule that requires an adequate justification to be articulated for the appeal, which can be handled by the courts.

  • Several State Statutes Prevent Persons who are no Longer in Prison from Seeking DNA Testing of Evidence[37]

If someone is convicted of a crime they did not commit, justice has not been served, regardless of the sentence imposed.  Whether a person was convicted of first degree murder and is facing the death penalty, or if they were convicted of sexual assault and received an eight year sentence, does not matter for purposes of innocence.  The wrongfully convicted person who is no longer in prison still has a conviction on their record along with the attendant consequences that follow it.  Additionally, they may still be wrongfully on probation for the offense, or in the case of a sex offense, may be a registered offender, civilly committed for sex offender treatment for any length of time, and/or suffer the consequences of residency restrictions and other issues associated with the status of being labeled a sex offender.  Furthermore, without the exoneration, there is no compensation for the wrongful conviction.  On average, a wrongfully convicted person spends fourteen years in prison.[38]  Those are years that were wrongfully taken away from these individuals that they can never get back.  Additionally, these are not just typical years during imprisonment.  They are dangerous, highly stressful, and agonizing.  However, these issues and difficulties do not end with their release.  Typically, they leave prison with, “no money, housing, transportation, health services, or insurance.”[39]  There is an obligation to provide both monetary compensation and social services in order to attempt to make wrongfully convicted persons as close to whole as possible.  Many states recognize this obligation and have created statutes in order to address this issue.  Whether these statutes are adequate is a different question, but wrongfully convicted persons do not reach that point without first proving their innocence.  Denying persons the ability to prove their innocence simply because they finished serving wrongfully awarded confinement is disgraceful and serves no logical purpose.

  • Some State Statutes Prohibit Testing for Individuals Whose Trial Attorneys did not Request Testing[40]

The fact that a trial attorney failed to request DNA testing should have no bearing on whether to approve testing in a post-conviction setting for a few reasons.    Ironically, although it may bar innocent persons from the testing needed to prove their innocence, the failure to request testing may not be enough to meet the Strickland test for purposes of ineffective assistance of counsel either.[41]  Although today one might argue that there is no imaginable rationale for a trial attorney to not request exculpatory evidence which would serve to prove their client’s innocence, depending on the circumstances of the case, it is hard to put this bright-line rule in the context of ever evolving technologies.  The technologies available to test much of the evidence did not exist until recently, so this begs the question of what exactly the trial attorney would have been required to ask for ten, fifteen, or even twenty years ago.  Even today though, it is difficult for a defense attorney to know that requesting testing, whether it is initial or additional testing, is truly the right thing to do for his/her client in a particular case during the course of pre-trial litigation.

Ultimately, this type of regulation or statute might trigger a strange inquiry in a particular case, requesting more information from a defense attorney about technology that was not available at the time of the litigation, or causing attorneys to defend themselves on the grounds that they were not sure DNA testing was in their clients’ best interests.  This latter explanation could certainly present itself in cases where the factual information available to the defense attorney at the time of litigation was either not entirely developed or did not appear very exculpatory of the client.  In either scenario, it is unfair and unreasonable to require the trial defense attorney to request the testing at the time of litigation, or else bar it later when a bona fide claim of innocence is made.

  • Some State Statutes will only Provide Testing for Certain Crimes or for Individuals Sentenced to Death[42]

This issue of states only granting testing for certain types of crimes or when a death sentence is given was briefly discussed and ultimately it is simply another illogical and arbitrary rules that harm the innocent and benefit the real offenders.  There are different levels of criminality and with the higher levels typically come larger sentences.  However, just because someone is wrongfully convicted of a lower level offense does not mean they are not irreparably harmed the same as someone who is wrongfully convicted of a more serious offense.  Of course, the stakes might be higher and the sentence harsher in the case of the more serious offenses, but the wrong is the same for those wrongfully convicted of lower level offenses.

Often ignored or understated, lower level wrongful convictions carry with them consequences beyond prison time or a death sentence.  For example, the conviction alone and its effect on future employment, education, housing, etc. can be devastating to the convicted person. Second, there are the life altering effects, both physical and mental, that any amount of prison time has on someone, especially someone who has to do that time in prison knowing they did not commit the crime.

Furthermore, in some instances, the wrongfully convicted have to register as sex offenders for the rest of their lives and have their photo posted online along with personally identifying information, their address, and a statement of the offense of which they were convicted, sometimes suffering the consequences of residency restrictions imposed by a jurisdiction in which they live.  They become a yellow or red dot on a screen for their neighbors to look at and fear.  These consequences are severe and to arbitrarily deny these individuals their right to vindication and any method of recourse is unjust.   That said, this practice has withstood past challenges.  For example in State v. Salas, the Kansas Supreme Court rejected an equal protection challenge to that state’s DNA statute which restricted testing to premeditated first degree murder.[43]

The Consequences of these Stringent State Statutes Carry On Into Federal Court

Absent any other legal issues with their trials, many of the wrongfully convicted find themselves in a situation where all of their direct appeals are exhausted and no relief has is granted.  The final avenue for these unfortunate people is a writ of habeas corpus.  Often called “The Great Writ,” it originates from Article 1, Section 9 of the Constitution, and serves as an avenue to attack a state conviction in federal court.  The traditional options for habeas relief were ineffective assistance of counsel, false evidence, and new evidence.  However, in Herrera v. Collins[44], the United States Supreme Court’s held the that a claim of actual innocence carried with in a high threshold to be overcome by the petitioner who was convicted at trial, and noted that such claims which brought forth new evidence must be accompanied by some independent constitutional violation.[45]  Habeas relief was also dealt a severe blow in the 1996 Anti-Terrorism and Effective Death Penalty Act (AEDPA), which created a statute of limitations of one year to file a habeas writ from the date of exhaustion of direct appeals, and dramatically increased the deference given to state court decisions.[46]  There is an exception to this time limit, but this requires extraordinary circumstances justifying the delay and diligence in bringing the habeas claim after the discovery of new evidence.[47]  This exception was expanded in 2013, when the United States Supreme Court in McQuiggan v. Perkins, found “actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar…or…expiration of the statute of limitations.”[48]  McGuiggan v. Perkins held that the statute of limitations of the AEDPA was overcome by the petitioner establishing actual innocence.[49]  Moreover, the Court determined that diligence on the part of the petitioner was merely a consideration in the overall analysis.[50]  Finally, the Court held that a petitioner must, for purposes of an actual innocence claim, allege and prove that it is more likely than not that no reasonable juror would have convicted in light of the new evidence.[51]

Unfortunately though, the truth is that without procedures allowing for DNA testing, there might not be any relief under habeas.  As discussed above, there are several ways in which states have created obstacles for wrongfully convicted persons from obtaining DNA testing.  If these individuals cannot gain access to the testing procedures themselves, then sadly, no new evidence may be found at all in these cases.  At the end of the denial of all of their direct appeals, without any new evidence, false evidence, or ineffective assistance of counsel, the habeas door will close on them.  This leaves these unfortunate individuals with no avenues for relief other than ineffective assistance of counsel or a showing that false evidence was what led to their convictions, which may simply not be present in their cases.   It is naïve to believe that this class of individuals does not exist and further to believe that our nation has not in fact executed factually innocent people.

Conclusion and the Way Forward

There have been some significant improvements over the past several years regarding access to DNA testing.  For example, the vast majority of states now have some kind of access statute, and the 2004 the Justice For All Act (JFAA)[52] creates financial incentives to states to allow permanent post-conviction DNA testing access to certain qualifying defendants.[53]  These improvements, however, must go further.  As discussed, there are several very apparent flaws in these statutes with no logical motivation, or an obsolete rationale.  The easy answer is for all states to halt the common practices described, but without any real incentive outside of altruism, this will not happen.  Therefore, the only practical solution is federal regulation.  If a federal statute is passed which standardizes DNA testing access throughout the states and prohibits all of these practices then real change will occur.  The Innocence Protection Act of 2004 did create a standard for inmates getting DNA testing, but unfortunately it only applies to federal prisoners.[54]  As it stands now, the states have all the power.  And not only do they have the power, but they are inherently conflicted from the capability to hold this power.  The states are the very ones who convicted these individuals and they have very real incentives to defend these convictions.  From the government point of view, no good comes from a state admitting they convicted the wrong person.  It opens elected officials up to public scrutiny, and also makes the states vulnerable to law suits.  Allowing the very states that convicted the innocent to create individual statutes in their own self-interests is an incredible conflict of interest.

As discussed, the major arguments against more liberal access to DNA testing are finality, and the thought that the floodgates would open to frivolous claims.  First, regarding finality, there is no finality when the wrong person is convicted of the crime.  Southwestern Law School professor Myrna S. Raeder summed this up effectively in her article, Post-Conviction Claims of Innocence, saying, “Wrongful convictions cast doubt on the reliability and fairness of the criminal justice system, and expose public safety failures because perpetrators, who include serial rapists and murderers, remain at large to pursue new victims.  Thus, all of us, not just wrongfully convicted defendants, are harmed by these systemic breakdowns.”[55]  When the wrong person is convicted there is no finality for the victims, no finality for the victims’ families, no legitimate finality for the state, and most importantly no finality for innocent.

Concerning the argument that more liberal access to DNA testing would open the floodgates to frivolous claims, this is another failing argument.  It is often argued, but never supported, and is at best an unfounded assumption with no quantitative data to back it up.  The reason there is no evidence to support it is because it is used to block the creation of system whereby this type of data would become available.  In other words, a state could not know that more liberal DNA testing laws would result in a mass of frivolous claims if more liberal DNA testing laws never existed.  In fact, it seems that the Innocence Protection Act anticipated this as a possibility, and as an easy fix, the drafters simply required that petitioners make their claims of innocence under the penalty of perjury, and that they could be prosecuted for false claims.[56]

The only valid concern to more liberal standardization to DNA testing is the idea that not all requests are equal.  If these arbitrary barriers within the various state statutes are removed and replaced with a federal statute that applies the states, more DNA testing will likely occur since requests that would previously be denied under the old laws would now be processed.  Therefore, there must be some method in place to divide the claims based on their importance.  This does not mean that all claims will not be processed, just that the more important claims be processed first.  Minnesota Law professor Brandon Garrett suggests this kind of system in his article, Claiming Innocence.[57]  Professor Garrett believes the claims should be assessed and categorized according to their probative value into three groups: substantial claims of innocence; outcome-determinative claims of innocence; and indeterminate cases.[58]  Substantial claims of innocence are those that “overwhelmingly” demonstrate innocence.[59]  Outcome-determinative claims of innocence are those that show it is more likely than not that a new jury would acquit based on new DNA evidence.[60]  Finally, indeterminate claims are those where any new DNA evidence would have limited probative value in proving innocence.[61]  While this may not be a perfect system and will no doubt experience some initial growing pains, it is a significantly more fair and just system than exists now.

Our criminal justice system along with our scientific technology has come a long way throughout the history of this country.  We are to a point where, in all but the rarest of cases, innocent people should not be convicted of crimes they did not commit when exculpatory DNA testing is available, and certainly should not remain incarcerated if they have already been convicted.  Reform should continue, especially as new technology and research develops and becomes available which touches upon these issues.

 

End Notes

[1] Justin Brooks, Wrongful Convictions 339 (2011).

[2] Innocence Project, Access to Post-Conviction DNA Testing, (last visited Apr. 28, 2017), https://www.innocenceproject.org/access-post-conviction-dna-testing/.

[3] Id.

[4] Id.

[5] Id.

[6] Justin Brooks, Wrongful Convictions 249 (2011).

[7] Richard A. Leo, False Confession: Causes, Consequences, and Implications, 37 The Journal of the American Academy of Psychiatry and the Law, 332 (2009), available at http://jaapl.org/content/37/3/332.

[8] Id.

[9] Deborah Davis & Richard A. Leo, Strategies for Preventing False Confessions and Their Consequences, IN Practical Psychology For Forensic Investigations And Prosecutions, ch. 7 (Mark R. Kebbell & Graham M. Davies, eds. 2006).

 

[10] Richard A. Leo, False Confession: Causes, Consequences, and Implications, 37 The Journal of the American Academy of Psychiatry and the Law, 332 (2009), available at http://jaapl.org/content/37/3/332.

[11] Id.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] 522 F.3d 1086 (10th Cir. Kan. 2008).

[17] Id. at 1089-90.

[18] California Innocence Project, Brian Banks, at https://californiainnocenceproject.org/read-their-stories/brian-banks/.

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Sue Russell, The Right and Privilege of Post-Conviction DNA Testing, Pacific Standard, Oct. 4, 2012, available at https://psmag.com/the-right-and-privilege-of-post-conviction-dna-testing-56c74a778631.

[24] Id.

[25] What is Touch DNA?, Scientific American, (last visited Apr. 28 2017), https://www.scientificamerican.com/article/experts-touch-dna-jonbenet-ramsey/.

[26] Id.

[27] Id.

[28] Id.

[29] 557 U.S. 52, 62 (2009).

[30] Innocence Project, Access to Post-Conviction DNA Testing, (last visited Apr. 28, 2017), https://www.innocenceproject.org/access-post-conviction-dna-testing/.

[31] Sue Russell, The Right and Privilege of Post-Conviction DNA Testing, Pacific Standard, Oct. 4, 2012, available at https://psmag.com/the-right-and-privilege-of-post-conviction-dna-testing-56c74a778631.

[32] Id.

[33] J. Hirby, What is the Average Cost to House Inmates in Prison, The Law Dictionary, (last visited Apr. 28, 2017) http://thelawdictionary.org/article/what-is-the-average-cost-to-house-inmates-in-prison/.

[34] Myrna S. Raeder, Post Conviction Claims of Innocence, American Bar Association, 24 Criminal Justice, (Fall 2009), available at www.americanbar.org.

[35] Innocence Project, Access to Post-Conviction DNA Testing, (last visited Apr. 28, 2017), https://www.innocenceproject.org/access-post-conviction-dna-testing/.

[36] Sue Russell, The Right and Privilege of Post-Conviction DNA Testing, Pacific Standard, Oct. 4, 2012, available at https://psmag.com/the-right-and-privilege-of-post-conviction-dna-testing-56c74a778631.

[37] Innocence Project, Access to Post-Conviction DNA Testing, (last visited Apr. 28, 2017), https://www.innocenceproject.org/access-post-conviction-dna-testing/.

[38] Innocence Project, Compensating the Wrongfully Convicted, (last visited Apr 28, 2017), https://www.innocenceproject.org/compensating-wrongly-convicted/.

[39] Id.

[40] Myrna S. Raeder, Post Conviction Claims of Innocence, American Bar Association, 24 Criminal Justice, (Fall 2009), available at www.americanbar.org.

[41] Strickland v. Washington, 466 U.S. 668 (1984).

[42] Myrna S. Raeder, Post Conviction Claims of Innocence, American Bar Association, 24 Criminal Justice, (Fall 2009), available at www.americanbar.org.

[43] 210 P.3d 635 (Kan. 2009).

[44] 506 U.S. 390 (1993).

[45] Id. at 400.

[46] 104 P.L. 132

[47] Id.

[48] 133 S.Ct. 1924, 1928 (2013).

[49] Id.

[50] Id at 1935-36.

[51] Id at 1935 (citing Schlup v. Delo 513 U.S. 298, 327 (1995)).

[52] JUSTICE FOR ALL ACT OF 2004, 150 Cong Rec H 8179.

[53] Innocence Project, Compensating the Wrongfully Convicted, (last visited Apr 28, 2017), https://www.innocenceproject.org/compensating-wrongly-convicted/.

[54] 18 USCS §3600.

[55] Myrna S. Raeder, Post Conviction Claims of Innocence, American Bar Association, 24 Criminal Justice, (Fall 2009), available at www.americanbar.org.

[56] 18 USCS §3600.

[57] Brandon L. Garrett, Claiming Innocence, 92 Minn. L. Rev. 1629 (2008), available at http://www.minnesotalawreview.org/wp-content/uploads/2011/08/Garrett_FinalPDF.pdf

[58] Id at 1633.

[59] Id 1647-50.

[60] Id 1650.

[61] Id. at 1650-51.