Bill Text: MS SB2891 | 2010 | Regular Session | Introduced
Bill Title: DNA testing; revise in context of post-conviction relief.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2010-02-02 - Died In Committee [SB2891 Detail]
Download: Mississippi-2010-SB2891-Introduced.html
MISSISSIPPI LEGISLATURE
2010 Regular Session
To: Judiciary, Division B
By: Senator(s) Tollison
Senate Bill 2891
AN ACT TO AMEND SECTION 99-49-1, MISSISSIPPI CODE OF 1972, TO REVISE POST-CONVICTION DNA TESTING OF PRISONERS, CREATE A SHORT TITLE AND STATEMENT OF PURPOSE THEREFOR, AND TO REVISE DEFINITIONS; TO CREATE NEW SECTION 99-49-101, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR FILING OF A MOTION FOR POST-CONVICTION DNA TESTING; TO CREATE NEW SECTIONS 99-49-103 AND 99-49-105, MISSISSIPPI CODE OF 1972, TO IMPOSE CERTAIN REQUIREMENTS ON THE FILING OF SUCH A MOTION; TO CREATE NEW SECTION 99-49-107, MISSISSIPPI CODE OF 1972, TO SPECIFY THE CIRCUMSTANCES UNDER WHICH SUCH A MOTION MAY BE FILED; TO CREATE NEW SECTION 99-49-109, MISSISSIPPI CODE OF 1972, TO PROHIBIT FILING OF SUCH A MOTION IN CERTAIN CASES; TO CREATE NEW SECTION 99-49-111, MISSISSIPPI CODE OF 1972, TO PROVIDE THE PROCEDURE FOR CONSIDERATION OF A MOTION UNDER THE ACT; TO CREATE NEW SECTION 99-49-113, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT FILING OF A MOTION UNDER THE ACT CONSTITUTES CONSENT FOR OBTAINING A DNA SAMPLE WHICH MAY BE ENTERED INTO DATABASES; CONSTITUTES WAIVER OF ANY STATUTE OF LIMITATIONS ON ANY ADDITIONAL CRIMES IN WHICH THE MOVANT MAY BE IMPLICATED BY THE ANALYSIS OF HIS DNA; AND TO SPECIFY IN WHAT WAS TEST RESULTS SHALL BE DISSEMINATED; TO CREATE NEW SECTION 99-49-115, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR THE PAYMENT OF COSTS; TO AMEND SECTIONS 99-39-5, 99-39-7, 99-39-9, 99-39-11 AND 99-39-23, MISSISSIPPI CODE OF 1972, TO CONFORM; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
ARTICLE 1.
SECTION 1. Section 99-49-1, Mississippi Code of 1972, is amended as follows:
99-49-1. (1) Legislative intent. The Legislature finds that:
(a) The value of properly preserved biological evidence has been enhanced by the discovery of modern DNA testing methods, which, coupled with a comprehensive system of DNA databases that store crime scene and offender profiles, allow law enforcement to improve its crime-solving potential;
(b) Tapping the potential of preserved biological evidence requires the proper identification, collection, preservation, storage, cataloguing and organization of such evidence;
(c) Law enforcement agencies indicate that "cold" case investigations are hindered by an inability to access biological evidence that was collected in connection with criminal investigations;
(d) Innocent people mistakenly convicted of the serious crimes for which biological evidence is probative cannot prove their innocence if such evidence is not accessible for testing in appropriate circumstances;
(e) It is well established that the failure to update policies regarding the preservation of evidence squanders valuable law enforcement resources, manpower hours and storage space; and
(f) Simple but crucial enhancements to protocols for properly preserving biological evidence can solve old crimes, enhance public safety and settle claims of innocence.
(2) Definitions. For the purposes of this chapter:
(a) "Biological evidence" means the * * * blood, bone, semen, hair, saliva, * * * tissue, tissue cells, or other bodily substances from which DNA marker groupings may be obtained. * * * This includes material that is catalogued separately * * * on a slide, swab or in a test tube, or that is present on * * * other items.
(b) "DNA" means deoxyribonucleic acid.
(c) "Custodian of evidence" means an agency or political subdivision of the state that possesses and is responsible for the control of biological evidence during a criminal investigation or proceeding. This includes, but is not limited to, a law enforcement agency, a prosecutor's office or a court clerk.
(d) "Custody" means the state of being actually incarcerated * * * in the custody of the Department of Corrections. It does not include, for example, a person on intensive supervision, house arrest, probation, parole, earned-release supervision, post-release supervision or suspended sentence.
(e) "Profile" means a unique identifier of an individual, derived from DNA.
(f) "Serious crime" means a crime for which the potential maximum sentence is death or imprisonment for twenty (20) or more years. A potential or actual enhancement of a sentence is not to be considered in determining the potential maximum sentence whether a crime is a serious crime.
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(3) Preservation of evidence procedures. (a) The custodian of evidence shall preserve all biological evidence:
(i) That is secured in relation to an investigation or prosecution of a serious crime for the period of time that the serious crime remains unsolved; or
(ii) That is secured in relation to an investigation or prosecution of a serious crime for the period of time that the prisoner convicted of that serious crime remains in custody.
(b) * * * Notwithstanding the provisions of paragraph (a), the custodian of evidence may petition the circuit court in which the serious crime was tried to dispose of biological evidence secured in relation to the investigation or conviction of the serious crime even when the serious crime has not been solved or when the prisoner is still is custody, if the custodian of evidence serves a copy of the petition to dispose of biological evidence on the prisoner, on any counsel of record for the prisoner, on the district attorney of the county of conviction, and on the Mississippi Attorney General. The custodian of the evidence may dispose of the biological evidence ninety (90) days after filing the petition unless the custodian of evidence receives at least one (1) of the following:
(i) A court order preventing the disposal of the biological evidence;
(ii) A notice from the prisoner to preserve the biological evidence stating the defendant's intention to file a timely and otherwise procedurally viable motion for post-conviction DNA testing under this chapter within ninety (90) days of the date of the notice; or
(iii) An objection to the disposal of the biological evidence from the district attorney of the county of conviction or from the Mississippi Attorney General.
(c) If the prisoner sends a notice to the custodian of evidence pursuant to subsection (b)(ii) but fails to file a timely and otherwise procedurally viable motion for post-conviction DNA testing within the prescribed ninety (90) days, the custodian of evidence may proceed to dispose of the biological evidence unless the custodian received a court order or an objection pursuant to subsection (3)(b)(i) or (iii).
(d) The custodian of evidence shall retain biological evidence in the amount and manner sufficient to develop a DNA profile * * *. The custodian of evidence shall not be required to preserve physical evidence that is of such a size, bulk or physical character as to render retention impracticable. When such retention is impracticable, the custodian of evidence shall remove and preserve portions of the material evidence likely to contain biological evidence related to the offense, in a quantity sufficient to permit future DNA testing, before returning or disposing of the physical evidence.
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(e) In all cases involving a serious crime, the custodian of evidence shall cooperate with a prisoner who is attempting to determine whether biological evidence exists in relation to the prisoner's case in order to file a motion for post-conviction DNA testing pursuant to the Mississippi Uniform Post-Conviction DNA Testing Act.
(f) A custodian of evidence who willfully and maliciously destroys, alters, conceals or tampers with biological evidence that is required to be preserved pursuant to this section, with the intent to impair the integrity of the biological evidence or to prevent the biological evidence from being subjected to DNA testing, may be subject to sanctions imposed by the court of conviction.
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ARTICLE 3.
SECTION 2. The following shall be codified as Section 99-49-101.
99-49-101. (1) Short title. This article shall be known and may be cited as the "Mississippi Post-Conviction DNA Testing Act."
(2) Purpose. The purpose of this article is to provide an exclusive and uniform mechanism for a prisoner who has been convicted of a serious crime, whose judgment of conviction and sentence has been affirmed on appeal, who is in custody, and who makes a claim of actual innocence to move the Supreme Court of this state for permission to seek DNA testing of biological evidence that has been retained in his case.
SECTION 3. The following shall be codified as Section 99-49-103.
99-49-103. (1) Any prisoner in custody pursuant to a sentence resulting from the conviction of a serious crime in a court of this state may file a motion in compliance with this section for post-conviction DNA testing of biological evidence. The motion shall be filed in the Supreme Court of Mississippi, shall be verified by the oath of the movant, shall name the State of Mississippi as the respondent, and shall contain all of the following:
(a) The identity of the proceedings in which the movant was convicted and sentenced;
(b) The date of the entry of the judgment of conviction and sentence;
(c) The date of the filing of the mandate after affirmance on appeal of the movant's judgment of conviction and sentence by the Mississippi Supreme Court or the Mississippi Court of Appeals;
(d) The identity of any previous proceedings in state or federal courts in which the movant attempted to secure relief from the movant's judgment of conviction and sentence;
(e) The movant's separate, sworn declarations, made under penalty of perjury, that:
(i) The movant is currently in custody pursuant to a sentence resulting from the conviction by jury, or judge at a bench trial, of a serious crime in a court of this state;
(ii) The movant is actually innocent of the serious crime of which he was convicted and for which he was sentenced;
(iii) The identity of the perpetrator was the predominant issue at the movant's trial;
(iv) There exists specifically identified biological evidence secured in relation to the investigation or prosecution attendant to the movant's conviction, which has not been previously tested;
(v) The chain of custody of the biological evidence proposed to be tested will establish that the evidence has not been tampered with, replaced, or altered in any material respect;
(vi) Testing will demonstrate by a reasonable probability that the movant would not have been convicted if the test results had been obtained through DNA testing at the time of the original prosecution;
(vii) The request for post-conviction DNA testing is not made to delay execution of judgment or the administration of justice, but to establish the movant's actual innocence;
(viii) The movant has read and specifically acknowledges his understanding of Section 99-49-117; and
(f) A showing that the motion is timely filed pursuant to Section 99-49-107;
(g) Any other supporting pleadings and documentation that the Mississippi Supreme Court by rule may require.
SECTION 4. The following shall be codified as Section 99-49-105, Mississippi Code of 1972:
99-49-105. (1) A motion filed pursuant to the provisions of this chapter shall be limited to the request for post-conviction DNA testing as it relates to a single judgment of conviction and sentence.
(2) The movant shall serve an executed copy of the motion with all attachments upon the Mississippi Attorney General simultaneously with the filing of the motion in the Mississippi Supreme Court.
SECTION 5. The following shall be codified as Section 99-49-107, Mississippi Code of 1972:
99-49-107. (1) A motion for post-conviction DNA testing shall be made within one (1) year of the later of:
(a) July 1, 2010; or
(b) The date of the filing of the mandate after affirmance of movant's judgment of conviction and sentence on appeal to the Mississippi Supreme Court.
(2) A movant may be excepted from the three-year statute of limitation by showing by clear and convincing evidence the following:
(a) That he has met all of the requirements of the motion listed in Section 99-49-103; and
(b) (i) That based on reliable principles and methods, the scientific community has recognized an advancement in forensic DNA testing such that DNA testing would provide a significant likelihood of more probative results than those available within the original time limitation; or
(ii) That the specifically identified biological evidence was not known to the movant and through due diligence could not have become known to the movant before the expiration of the one-year statute of limitations.
(3) A claim of exception under subsection (2)(b)(ii) shall be accompanied by the movant's affidavit, made under penalty of perjury, detailing the circumstances surrounding the discovery of the new evidence.
(4) (a) Any request for DNA testing made pursuant to the exception of subsection (2)(b)(i) of this section shall be made within an objectively reasonable period of time.
(b) Any request for DNA testing made pursuant to the exception of subsection 2(b)(ii) shall be made within one (1) year of the date of the discovery of the biological evidence.
SECTION 6. The following shall be codified as Section 99-49-109, Mississippi Code of 1972:
99-49-109. Notwithstanding Section 99-49-3(1)(e)(iv), the movant may request the Supreme Court of Mississippi for retesting of biological evidence, within the mandated time limit, under the following circumstances:
(a) Where the previous result did not incriminate the movant; and
(b) Where additional DNA testing would provide a significant likelihood of more probative results than the previous test.
SECTION 7. The following shall be codified as Section 99-49-111, Mississippi Code of 1972:
99-49-111. Failure by a movant to request DNA testing of biological evidence before conviction when the existence of the biological evidence capable of such testing was known to the movant, or through due diligence should have been known to the movant, shall constitute a waiver of the right to request post-conviction DNA testing under this chapter.
SECTION 8. The following shall be codified as Section 99-49-113, Mississippi Code of 1972:
99-49-113. (1) Upon receiving a motion for post-conviction DNA testing, the Mississippi Supreme Court shall examine the motion and any other files or records in its possession from the underlying case or cases that it deems appropriate.
(2) Unless it appears from the face of the motion and the prior record or records that the claim presented by the movant is timely under Section 99-49-107, that it has not been waived under Section 99-49-111, and that it fully complies with all of the requirements of Section 99-49-103, the Supreme Court shall by appropriate order deny the motion.
(3) The Attorney General shall not be required to respond to the motion unless ordered to do so by the Supreme Court, but the Supreme Court shall request a response from the Attorney General before granting the motion. The Attorney General shall be given at least fourteen (14) days within which to respond to the motion.
(4) The Supreme Court, upon satisfaction that the movant has shown his entitlement to relief under this chapter by clear and convincing evidence, is authorized to grant the motion for post-conviction DNA testing. The Supreme Court's order granting the testing shall require that copies of the test result be sent to the Supreme Court, to the Mississippi Attorney General, to the district attorney in the county of the underlying prosecution, and to the movant. The order shall also contain such other instructions as the Supreme Court deems appropriate.
(5) The denial of a motion for post-conviction DNA testing under this chapter is a final judgment and shall be a bar to a second or successive motion under this chapter. Excepted from this prohibition is a motion in which the movant can show by clear and convincing evidence that, based on reliable principles and methods, they scientific community has recognized an advancement in forensic DNA testing such that DNA testing would provide a significant likelihood of more probative results than those available when the movant's original motion was filed. Any second or successive motion for post-conviction DNA testing under this provision shall be made within an objectively reasonable period of time.
(6) The grant of a motion for post-conviction DNA testing under this article shall be a bar to a second or successive motion under this article. Excepted from this bar are those cases in which the movant can show that the former DNA testing was inconclusive and that, based on reliable principles and methods, the scientific community has recognized an advancement in forensic DNA testing such that future DNA testing would provide a significant likelihood of more probative results than those available at the time of the original testing.
SECTION 9. The following shall be codified as Section 99-49-115, Mississippi Code of 1972:
99-49-115. (1) The filing of a motion for post-conviction DNA testing under this chapter constitutes the movant's consent to provide samples of body fluids or cells for use in the DNA testing.
(2) The data from any DNA samples or test results obtained as a result of a motion filed pursuant to this chapter may be entered into law enforcement DNA databases and shall be exempt from any order of expunction.
(3) The filing of a motion for post-conviction DNA testing under this chapter constitutes the movant's waiver of any statute of limitations in all jurisdictions as to any felony offense the movant has committed which is identified through DNA database comparison.
(4) If the result of any post-conviction DNA testing is not favorable to the movant, the Attorney General shall forward a copy of the test result, together with the movant's motion for post-conviction DNA testing and its attachments, to the Department of Corrections for inclusion in the movant's inmate master file.
(5) The Attorney General shall notify the appropriate district attorney if the result of any post-conviction DNA testing confirms the movant's guilt of the serious crime for which the movant is incarcerated for consideration of perjury charges.
SECTION 10. The following shall be codified as Section 99-49-117, Mississippi Code of 1972:
99-49-117. (1) The movant who files a motion for post-conviction DNA testing under this chapter shall bear the cost of the testing unless the movant is determined by a court of competent jurisdiction to be indigent, in which event the cost of such testing shall be borne by the state.
(2) Should the result of the DNA testing be unfavorable to the movant, however, the Supreme Court shall order the movant to reimburse the state for the cost of the testing.
SECTION 11. Section 99-39-5, Mississippi Code of 1972, is amended as follows:
99-39-5. (1) Any prisoner in custody under sentence of a court of record of the State of Mississippi * * * may file a motion to vacate, set aside or correct the judgment or sentence, * * * or a motion for an out-of-time appeal if the prisoner claims:
(a) That the conviction or the sentence was imposed in violation of the Constitution of the United States or the Constitution or laws of Mississippi;
(b) That the trial court was without jurisdiction to impose sentence;
(c) That the statute under which the conviction and/or sentence was obtained is unconstitutional;
(d) That the sentence exceeds the maximum authorized by law;
(e) That there exists evidence of material facts, not previously presented and heard, that requires vacation of the conviction or sentence in the interest of justice;
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(f) * * * That his plea was made involuntarily;
(g) That his sentence has expired; his probation, parole or conditional release unlawfully revoked; or he is otherwise unlawfully held in custody;
(h) That he is entitled to an out-of-time appeal; or
(i) That the conviction or sentence is otherwise subject to collateral attack upon any grounds of alleged error heretofore available under any common law, statutory or other writ, motion, petition, proceeding or remedy.
(2) A motion for relief under this article shall be made within three (3) years after the time in which the prisoner's direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after entry of the judgment of conviction. Excepted from this three-year statute of limitations are those cases in which the prisoner can demonstrate * * * that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence * * *.
* * * Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are filings for post-conviction relief in capital cases which shall be made within one (1) year after conviction.
(3) This motion is not a substitute for, nor does it affect, any remedy incident to the proceeding in the trial court, or direct review of the conviction or sentence.
(4) Proceedings under this article shall be subject to the provisions of Section 99-19-42.
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SECTION 12. Section 99-39-7, Mississippi Code of 1972, is amended as follows:
99-39-7. The motion under this article shall be filed as an original civil action in the trial court, except in cases in which the prisoner's conviction and sentence have been appealed to the Supreme Court of Mississippi and there affirmed or the appeal dismissed. Where the conviction and sentence have been affirmed on appeal or the appeal has been dismissed, the motion under this article shall not be filed in the trial court until the motion shall have first been presented to a quorum of the Justices of the Supreme Court of Mississippi, convened for said purpose either in termtime or in vacation, and an order granted allowing the filing of such motion in the trial court. The procedure governing applications to the Supreme Court for leave to file a motion under this article shall be as provided in Section 99-39-27.
SECTION 13. Section 99-39-9, Mississippi Code of 1972, is amended as follows:
99-39-9. (1) A motion under this article shall name the State of Mississippi as respondent and shall contain all of the following:
(a) The identity of the proceedings in which the prisoner was convicted.
(b) The date of the entry of the judgment of conviction and sentence of which complaint is made.
(c) A concise statement of the claims or grounds upon which the motion is based.
(d) A separate statement of the specific facts which are within the personal knowledge of the prisoner and which shall be sworn to by the prisoner * * *.
(e) A specific statement of the facts which are not within the prisoner's personal knowledge. The motion shall state how or by whom said facts will be proven. Affidavits of the witnesses who will testify and copies of documents or records that will be offered shall be attached to the motion. The affidavits of other persons and the copies of documents and records may be excused upon a showing, which shall be specifically detailed in the motion, of good cause why they cannot be obtained. This showing shall state what the prisoner has done to attempt to obtain the affidavits, records and documents, the production of which he requests the court to excuse.
(f) The identity of any previous proceedings in federal or state courts that the prisoner may have taken to secure relief from his conviction and sentence.
(2) A motion shall be limited to the assertion of a claim for relief against one (1) judgment only. If a prisoner desires to attack the validity of other judgments under which he is in custody, he shall do so by separate motions.
(3) The motion shall be verified by the oath of the prisoner.
(4) If the motion received by the clerk does not substantially comply with the requirements of this section, it shall be returned to the prisoner if a judge of the court so directs, together with a statement of the reason for its return. The clerk shall retain a copy of the motion so returned.
(5) The prisoner shall deliver or serve a copy of the motion, together with a notice of its filing, on the state. The filing of the motion shall not require an answer or other motion unless so ordered by the court under Section 99-39-11(3).
SECTION 14. Section 99-39-11, Mississippi Code of 1972, is amended as follows:
99-39-11. (1) The original motion, together with all the files, records, transcripts and correspondence relating to the judgment under attack, shall be examined promptly by the judge to whom it is assigned.
(2) If it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the prisoner to be notified.
(3) If the motion is not dismissed under subsection (2) of this section, the judge shall order the state to file an answer or other pleading within the period of time fixed by the court or to take such other action as the judge deems appropriate * * *.
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(4) This section shall not be applicable where an application for leave to proceed is granted by the Supreme Court under Section 99-39-27.
(5) Proceedings under this section shall be subject to the provisions of Section 99-19-42.
SECTION 15. Section 99-39-23, Mississippi Code of 1972, is amended as follows:
99-39-23. (1) If an evidentiary hearing is required, the judge may appoint counsel for a prisoner who qualifies for the appointment of counsel under Section 99-15-15.
(2) The hearing shall be conducted as promptly as practicable, having regard for the need of counsel for both parties for adequate time for investigation and preparation.
(3) The parties shall be entitled to subpoena witnesses and compel their attendance, including, but not being limited to, subpoenas duces tecum.
(4) The court may receive proof by affidavits, depositions, oral testimony or other evidence and may order the prisoner brought before it for the hearing.
(5) If the court finds in favor of the prisoner, it shall enter an appropriate order with respect to the conviction or sentence under attack, and any supplementary orders as to rearraignment, retrial, custody, bail, discharge, correction of sentence or other matters that may be necessary and proper. The court shall make specific findings of fact, and state expressly its conclusions of law, relating to each issue presented.
(6) The order as provided in subsection (5) of this section or any order dismissing the prisoner's motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article. Excepted from this prohibition is a motion filed under Section 99-19-57(2), raising the issue of the convict's supervening mental illness before the execution of a sentence of death. A dismissal or denial of a motion relating to mental illness under Section 99-19-57(2) shall be res judicata on the issue and shall likewise bar any second or successive motions on the issue. Likewise excepted from this prohibition are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States that would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that, if it had been introduced at trial, * * * would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. * * *
(7) No relief shall be granted under this article unless the prisoner proves by a preponderance of the evidence that he is entitled to the relief.
(8) Proceedings under this section shall be subject to the provisions of Section 99-19-42.
(9) In cases resulting in a sentence of death and upon a determination of indigence, appointment of post-conviction counsel shall be made by the Office of Capital Post-Conviction Counsel upon order entered by the Supreme Court promptly upon announcement of the decision on direct appeal affirming the sentence of death. The order shall direct the trial court to immediately determine indigence and whether the inmate will accept counsel.
SECTION 16. The codifier is directed that Section 99-49-1, Mississippi Code of 1972, shall constitute Article 1, and that Sections 99-49-101 through 99-49-117, Mississippi Code of 1972 shall constitute Article 3 of Title 99, Chapter, 49, Mississippi Code of 1972.
SECTION 17. This act shall take effect and be in force from and after July 1, 2010.
