Testimony of Ed Marsico Dauphin County District Attorney Legislative Chair, Pennsylvania District Attorneys Association Robert Falin Deputy District Attorney, Appeals Unit Montgomery County District Attorney’s Office Susan Moyer Assistant District Attorney, Appeals Unit Lancaster County District Attorney’s Office Before the Senate Judiciary Committee Public Hearing to Examine DNA Testing and Post-Conviction Relief

Harrisburg, PA

Good morning Chairmen Greenleaf and Leach, and members of the Senate Judiciary Committee. My name is Ed Marsico, and I am the Legislative Chair for the Pennsylvania District Attorneys Association and District Attorney of Dauphin County. I am joined today by Bob Falin and Sue Moyer, who respectively head the appeals divisions in the Montgomery County and Lancaster County District Attorneys’ Offices. Thank you for the opportunity to speak with you regarding proposed statutory changes that expand the ability of convicted offenders to seek appellate relief.

The Pennsylvania District Attorneys Association is committed to protecting the integrity of the criminal justice system. Our goal is to protect the innocent, convict the guilty, and ensure justice for the victims of crime. That is why, for instance, we have an active Best Practices Committee. We have put together best practice reports for photo identification procedures and officer-involved shooting investigations, and we are currently working on best practices related to recorded confessions.

As drafted, the two pieces of legislation, while well-intentioned, cause us some concern. I would like for the three of us to outline and discuss the specific objections so that as we move forward, we can continue to engage in conversations about where we can agree, what needs further study and refinement, and what may frankly not be workable.

At the outset, we have to keep in mind that the changes to the statutes would apply to every criminal case, not just the ones handled by the Innocence Project. We must, therefore, look at the changes not just from the lens of how they would apply to the Innocence Project, which is certainly more focused and deliberate than many other appellate defense attorneys.

The first proposed piece of legislation would amend our state Post Conviction Relief Act (PCRA). By way of background, under current law, anyone convicted of an offense has the opportunity to challenge the conviction on appeal. Such challenges are typically to the sufficiency or weight of the evidence or to evidentiary rulings made by the trial court. Offenders are then statutorily provided an opportunity to file second and subsequent appeals under the PCRA. The PCRA and applicable caselaw outline the types of claims that can be raised in this second round of appeals. Currently, an individual has one year from the date that the original appeal concludes to bring a claim under the PCRA.

There is an exception to the one-year limit, however, which is the subject of Senator Greenleaf’s legislation. The exception currently provides that if there is (1) after-discovered evidence; (2) governmental interference; or (3) a new constitutional rule, then the defendant has 60 days to file a brand new PCRA petition. The legislation would extend the 60 day time limit to 1 year. It is worth noting that as long as a basic petition is filed within that 60 day window, the petition can be amended freely—meaning as often as the defendant wants—regardless of the significance of the amendments. Brand new claims and brand new theories unrelated to the underlying claims and theories can be added to the original PCRA petition. What this all means is that the 60-day limit is not in practice a hard and fast deadline.

With that said, we do not oppose extending the 60-day limit. Our preference is to triple the time limit to 180 days. Our reasoning is that some defendants will simply wait until the last possible day to file a petition, and delays are not helpful in the appellate process. Moreover, there needs to be finality in the system for everyone, including victims. The current time limit balances the need for finality with the recognition that new claims may develop, and tripling it would not upset that balance. These parameters make it clear that these additional claims must be raised at the first possible opportunity. Further amplification of the claims can easily be made by amending the original petition, as well.

With that said, this is a discussion we would like to continue, because we know the motivation behind this legislation is simply to try to do the right thing. We recommend that as we work on determining the appropriate increased length, we also consider two additions that would help mitigate any unintended consequences and help minimize some of the sloppiness and gamesmanship that some defendants employ. First, we believe that language should be added requiring a verification statement from any witness who has evidence giving rise to any of these exceptions; the verification should include all of the facts and circumstances he or she knows that are related to the claim. Right now, we often receive a barebones summary statement from the defense counsel or the defense counsel’s investigator. Without detailed and appropriate information submitted by the person claiming to know important facts, we are left without much to go on. Having more information only helps us assess the merits of the claim and at the same time would help weed out any frivolous petitions that have no factual basis.

Second, if we are going to extend the 60-day deadline, we should consider putting some reasonable limits on the free amendment process under the PCRA. We believe that with more time to file a petition claiming any of the PCRA exceptions, like after-discovered evidence, offenders will have sufficient time to identify the claims they want to make. If they need to expand on their claim and bring new facts in, by all means they should. But they should not be able to bring in brand new claims, years later, wholly separate from the ones set forth in the underlying petition. Indeed, this change would put us in line with the federal post-conviction structure.

The legislation would also remove the supervision requirement for the PCRA. Under current law, the PCRA is limited to those individuals who are currently serving a sentence or are under supervision by the parole or probation department. By its very nature, the PCRA was designed for a limited group of people, in limited circumstances. This change would unnecessarily remove that requirement, and we are concerned about the burden this influx will place on the system. This would allow any person who has ever been convicted to file—and continue to file—a PCRA petition. Even if the petition is frivolous, the Commonwealth is required to respond to the petition and the court must make a determination. This takes time and money and will create a backlog that will prevent those with meritorious claims from achieving speedy resolutions.

The second piece of proposed legislation would make many significant changes to Pennsylvania’s post-conviction DNA testing statute. DNA testing is an important and powerful forensic tool. Using DNA to help convict the guilty and make sure we do not incarcerate the innocent is critical.

At the same time, we need to be sure that in making changes to the statute we do not allow the guilty to exploit the system and that we do not incentivize defendants to avoid seeking pre-trial DNA testing. To the contrary, we want to make sure the system encourages pre-trial DNA testing, preventing the situation where that person goes to jail in the first place.

As we begin to analyze this legislation, we believe it is essential to consider including provisions that will make it easier to obtain pre-trial DNA testing. The more we do upfront, the more we will ensure that the right people are incarcerated. In cases where there is untested DNA at the time of trial, we recommend language requiring the court to colloquy the defendant and defense counsel regarding their decision not to seek DNA testing so that their reasons for not seeking the pre-trial DNA testing are on the record. This suggestion is certainly not the only way we can encourage more pre-trial DNA testing, but we believe it is a necessary first step for consideration.

In looking at the proposed language, there are several concepts we have to keep in mind. While DNA testing is an incredible tool, it is not the only evidence presented in any case. The presence of DNA on a piece of evidence is not dispositive of guilt. Nor is the lack of DNA on a piece of evidence dispositive of innocence. Rather than authorizing the testing of every single piece of evidence in every case—which could produce results not relevant in the context of other evidence in the case and at the same time bog down the entire system including testing labs, courts, and district attorneys’ offices—we must look carefully at the connection between the evidence to be tested and whether the testing has the potential to identify the perpetrator.

Here is an example: A person is stabbed in a hotel room. There is eyewitness testimony that the defendant was present at the scene; his DNA is found under the victim’s nails; and the victim identifies the defendant. Should the defendant be able to ask, well after conviction, for a DNA test of the carpet or drapes? What relevance would those results have? Even if someone else’s DNA is found on those items, they would not exclude the defendant as the perpetrator. They would only demonstrate that other people had been in the hotel room at other periods of time. But the bill as a whole may very well authorize a court to order DNA testing under this kind of scenario.

The salient question, therefore, is how do we ensure access to DNA testing in legitimate cases while preventing frivolous petitions and abuse of the system? What are the factors you should consider? An examination of the laws of other states reveals the following as key questions to consider:

• Who can file a petition?
• When can an individual file a petition?
• Was the identity of the perpetrator an issue in the case?
• What does the petitioner have to establish to obtain testing? A statement of innocence? An explanation as to why DNA testing of this piece of evidence could demonstrate that they were not the perpetrator?
• Did they previously have the opportunity to obtain testing? If yes, did they previously seek testing? What were the results?
• Was the testing they are seeking available at the time of trial? If not, will this new technology provide a result that is more probative of the identity of the perpetrator?
• Will the testing of this item identify the perpetrator? Is this theory supported by the other evidence in the record?
• Is the testing method scientifically accepted?
• What is the standard a judge should use to determine whether to grant testing?

Pennsylvania’s current post-conviction DNA statute has one of the most liberal pleading standards in the country. An individual is only required to plead a “prima facie” case of actual innocence. This means that a petitioner’s mere assertion that he or she did not commit the crime is all that is needed in the pleadings, since the assertions in the petition must be accepted as true under this standard. Most other states, as well as the federal government, have higher standards. Pennsylvania’s liberal pleading standard is appropriately balanced by the narrow categories of evidence that may be tested.

This legislation might disrupt that balancing act and could create a number of new problems. Most significant, the language may discourage pre-trial DNA testing in the first place. If anyone can obtain post-conviction DNA testing, without sufficient restrictions, it would make all the sense in the world to a guilty defendant to hold off on seeking DNA testing until sometime after conviction. The chances are more likely in those instances that witnesses will be less willing to testify and memories will have faded. This is one important reason that providing the proper balance when it comes to DNA testing is critical in ensuring the integrity of the criminal justice system.

Consider that current law only allows testing of evidence if the technology did not exist at the time of trial or if DNA testing was not sought in a case whose judgment was rendered before January 1, 1995. This bill expands testing to any evidence that was not previously tested, regardless of why it was not tested. Without language restricting post-conviction testing of evidence that was available for testing pre-trial, similar to that which exists in the federal system, guilty defendants could be incentivized to seek testing only after the case has gone stale in the hopes that inconclusive results could win them a new trial. If one pleads guilty (and if this bill’s provisions permitting post-conviction DNA testing in guilty plea cases pass), there is no record to rely upon, meaning there would be no prior testimony to introduce at a new trial and an even greater incentive to refuse pre-trial testing. Under the language of the bill, this testing would be available regardless of the fact that the individindividual deliberately and strategically chose not to seek it during the pre-trial process.

This bill would also significantly expand the number of people that can apply for testing, and the categories of available testing, without a proportionate change to our pleading requirements. The bill would remove the requirement that a person seeking post-conviction DNA testing be incarcerated or under supervision, meaning any person who has ever been convicted of a crime, at any time, can apply for testing. We are concerned that this provision is too broad and covers too many crimes; as a result, even the labs themselves would be saddled with testing requests in cases where testing is not appropriate, which could lead to delays in cases where testing should occur. We cannot say with certainty that it will open the floodgates to new claims, but that is an issue we are studying.

The legislation also removes the prohibition against seeking post-conviction DNA testing if the petitioner pled guilty. We do not object to this concept, but in order to ensure the prioritization of the most serious cases for which testing is appropriate we suggest post-conviction DNA testing in these situations be permitted only for major crimes, like murders and felony sex crimes. Consideration should be given to heightened standards in these cases.

Another provision provides that petitioners can apply for testing simply by asserting that “newer” technology exists and “may provide more accurate and probative results.” This language is overly broad. Technology changes every day. Yet not every change is relevant nor would yield pertinent results. Unless the language is appropriately focused and tightly drafted, some defendants could request testing and retesting of evidence over and over. Something that is “more accurate and probative” may still not be determinative or even helpful to the issue of the identity of the perpetrator or may ultimately be merely cumulative. Again, these sets of concerns go to the balance that is necessary in crafting an appropriate piece of legislation.

At a minimum, language must connect the potential new testing to identifying the true perpetrator. Many other state statutes, as well as the federal statute, phrase this language in a more specific way. Some of these provisions require the petitioner to show that the proposed test has the scientific potential to produce new, noncumulative evidence. Additionally, and perhaps more importantly, the petitioner must show that the evidence is materially relevant to proving his or her actual innocence.

There is another provision that provides a definition for the phrase “exculpatory results.” The definition would mean that a DNA test is exculpatory if it identifies a known person or an unknown person, regardless of the circumstances. This issue is important because current law requires that when a court considers whether to grant a petition to seek DNA testing, the court must assume that the testing authorized will yield “exculpatory results.” Under the definition in the bill, a DNA match of an unknown or known individual in room used by the public (such as a public bathroom) would necessarily be “exculpatory” even if that result does not point to another person as the perpetrator. Indeed, examining what is exculpatory is extraordinarily fact specific. But the proposed definition does not permit any factual analysis to occur. The analysis employed by our Superior Court in these circumstances requires that the trial court conduct a review of the trial record and only then determine whether, if the requested DNA testing is completed, there is a reasonable possibility that any exculpatory evidence produced would in fact prove the applicant’s actual innocence.

Finally, this bill would impose onerous, logistical burdens on the Commonwealth that are disproportionate to the initial burden placed on the petitioner. Once a petition is filed under this bill, the Commonwealth is required to prepare an inventory of “all evidence and traces of evidence related to a case,” including a list of all locations searched, all forensic testing previously done, and the names of the individuals who conducted the testing.

This would create significant problems for us. Creating an inventory like this is extremely time consuming. If the Commonwealth is required to perform this function every time a petition is filed—regardless of whether the person meets the requirements in the statute or has a serious claim—legitimate petitions from individuals who deserve testing will be drowned in the system. A bad actor could cause significant resource problems for a district attorney’s office by simply filing a garden variety petition just for the sake of causing resource problems. Ordering this type of inventory is more appropriately left to the discretion of the judge, as he or she is in a position to evaluate the individual’s claim, pleadings, and whether such an inventory is even necessary.

As we continue our work on this legislation, we have two specific statutory recommendations for consideration to further ensure fairness in the process of post-conviction DNA testing. We have discussed the first one earlier: ensuring and encouraging more pre-trial DNA testing. Second, DNA testing should be conducted by any of our three public labs, assuming they have the technology capable of conducting the test. And the cost should not be paid for by either litigant because having private labs conduct testing paid for by either litigant creates an appearance of bias. Finally, whenever a DNA sample is being tested by a lab, the lab should direct any and all communications to both parties, simultaneously.

Chairman Greenleaf, thank you for the opportunity to testify here today. We have tried to highlight our concerns in a constructive manner that provides some guidance about our discussions moving forward.