TOPEKA — Members of a task force developing protocol for newly discovered DNA evidence in closed cases is backing a recommendation laying out a process to ensure defense counsel is made aware when a match is found in DNA registries.
Following an August meeting of the Alvin Sykes Cold Case Task Force to discuss possible avenues to address this, a contingent of prosecuting and defense attorneys provided a recommendation for sharing information on hits in CODIS, or the Combined DNA Index System. The suggestion would reinforce the ethical duty of the prosecuting agency to turn this information over to the defense once an investigation, if needed, is completed.
Any investigation must be completed within a reasonable amount of time. The information can be provided to the defense counsel of record immediately if there is no need for an investigation.
Public defenders have expressed concern that an inconsistent approach to DNA sharing among investigating law enforcement agencies or prosecutors could deny defendants the evidence necessary to prove their innocence. Without legal safeguards, they argued, there is considerable risk that exculpatory information is not shared.
“We wanted to at least allow some time for the agency to investigate on their own,” said Alice Craig, a task force member with the University of Kansas Project for Innocence and Post-Conviction Remedies. “That said, we also believe that once that investigation is complete, that information needs to be turned over to counsel regardless of what was determined in the investigation so that counsel of record could look at it and evaluate it.”
The task force recommendations will be included in a report to the Legislature. The task force also is recommending an ongoing educational program to boost knowledge of the Kansas Bureau of Investigation’s Laboratory Information Management System, through which information on DNA matches is available.
While task force members were able to come to a consensus to approve a rough draft of the recommendation, to be refined in the final report, some expressed a desire to see more concrete assurances.
Reid Nelson, a capital appeals defender at the Kansas Board of Indigent Defense Services, was concerned with loose language in the recommendation that could imply the information can be turned over on a discretionary basis. He suggested the task force take the route of drafting or recommending legislation placing this requirement into state statute.
“If we want this to be uniformly implemented in a permanent way, it seems like a statute is by far the best way to make that happen,” Nelson said. “The statutes, for those of us that practice, are the how-to manuals. We all open the statute to see how we should proceed.”
Rep. John Carmichael, a Wichita Democrat and attorney, questioned how long a reasonable amount of time would be before the information is conveyed to the defense counsel. He acknowledged the need for time to investigate the new DNA match but said without some sort of time requirement, cases could fall through the cracks.
“How long a time is necessary or is allowed because I know in a busy lawyer’s office sometimes things come in and you have to prioritize and so six months later, a year later, you might get to a report like this,” Carmichael said. “I don’t want somebody sitting in jail for years because a prosecutor somewhere has not gotten around to notifying defense counsel.”
Carmichael agreed to support the recommendation if a minority report was included emphasizing he, Nelson and others preferred and recommended a legislative path.
Justin Edwards, a deputy district attorney in Sedgwick County representing the Kansas County and District Attorney Association, maintained the ethical obligation to disclose any new information should dispel any concerns.
“I think it’s a good thing that we remind our prosecutors of this obligation, but to create a new statutory obligation under discovery, I think you’re going to lose the support of prosecutors for this language,” Edwards said.
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