Birmingham Weekly

October 9, 2008

Injustice system
Alabama convicts lack access to DNA testing

By: Madison Underwood

Imagine for a moment that you are an inmate, and you were wrongly convicted. You’ve been sentenced to 50 years in an Alabama prison and there’s one piece of DNA-testable material sitting in an evidence locker in some Alabama courthouse that could finally and definitively prove your innocence. All you have to do is have it tested, and you could be set free.

Good luck. You’re going to need it.

The reality is that the state of Alabama is one of only seven states that lack a procedure for post-conviction DNA testing. This means that if someone who’s been convicted of a crime claims innocence, he has no guaranteed right in Alabama to have the DNA testing done that might prove his claim.

At issue is Alabama’s Rule 32, which grants an inmate a new trial if, among other things, new evidence arises. That’s great if someone confessed to the crime you are incarcerated for, but it doesn’t help in this case.

“You can’t allege that if you give me a DNA test it’ll prove that I’m innocent,” explains Roger C. Appell, a Birmingham attorney. Appell represented brothers Dale and Ronnie Mahan, who are the only Alabamians ever exonerated through post-conviction DNA testing.

The existence of material with DNA on it is not evidence in itself. The material has to be tested first, and the results must prove that the petitioner is innocent.
“That’s what we did in the Mahan case,” Appell says. “You have to have the horse before the cart. You can’t allege something without the proof.”

The strange case of the Mahan brothers

Dale and Ronnie Mahan were convicted in 1986 for a rape and abduction that happened three years previously. After an anonymous tip led police to the brothers, they were identified by the victim in a photo lineup.

Initially, the brothers were represented by Bessemer attorney Dan King. King filed a motion for DNA testing during the appeals process, but the judge never ruled on the motion. King later had to leave the case when he became a circuit court judge. At that point, King asked Appell to take it over.

“I went to go see them, I talked to the Mahan brothers, and they assured me that they were innocent,” Appell says. Appell pushed the motion for DNA testing forward, and the Mahan brothers got lucky — Bessemer district attorney Arthur Greene did not object to the testing. As a result, the test was performed and it showed that the Mahan brothers were not the perpetrators.

With the results of the test in hand, Appell filed for a new trial under Rule 32, based on newly discovered evidence. That motion was granted, but the victim still insisted that it was the Mahan brothers.

“They found that they had a hair that initially could not be subjected to DNA testing because it didn’t have a root to it,” Appell explains. “But they took that hair and they did mitochondrial DNA testing, which was a newer type of DNA testing. When that test came back, it also determined that it wasn’t the Mahan brothers.”
In 1998, after two DNA tests and more than 11 years in prison, the state dropped the charges and the Mahan brothers were finally freed.

But Greene’s decision not to object to the DNA test is a rarity. In fact, he’s the only district attorney in Alabama that has withheld objection to a post-conviction DNA test. There are several good reasons to oppose post-conviction DNA testing — it might be considered a waste of taxpayer money if the material being tested is degraded, or if there’s unassailable evidence (such as a video of the crime) that proves guilt. But it is also possible that a district attorney might not want to appear “soft on crime,” though Appell has no stomach for that kind of injustice.

“The function of the district attorney is to seek the truth, not to convict innocent people,” Appel says. “I would think that the DA would want to go to sleep every night thinking that every one of his convictions was righteous.

“You have to commend someone like Arthur Greene for taking a right stand, doing the right thing,” Appel says. “But I can’t for the life of me understand why anyone would oppose a DNA test. Not only could it exonerate the defendant but it could solidify the state’s case. It’s not that complicated, it’s not that expensive, and it would have been done if it had been available at the time.”

Courts at the root of the problem

Had Greene objected to the test, it is likely that things would have turned out very differently.

According to Clayton Tartt, a student at Jones School of Law at Faulkner University in Montgomery, the Alabama Court of Criminal Appeals has affirmed lower-court denials of all post-conviction DNA testing requests. Tartt, a Montgomery resident, spent his summer working for the Georgia Innocence Project in Atlanta, which helps convicts with claims of innocence get DNA testing. He has authored an article on Alabama’s post-conviction DNA testing process that is set to be published in Jones’ Law Review.

Tartt says in his article that when the Alabama Court of Criminal Appeals has upheld denials of motions for DNA testing, it has cited time restrictions (convicts must file a motion within six months after the discovery of new evidence) and the lack of any procedure to handle such requests.

“The Alabama Court of Criminal Appeals takes the approach that its hands are tied,” Tartt says. “By simply stating that the legislature has not passed a statute to give inmates access to testing, the court passes the blame to someone else.
“The court also points its finger at the Alabama Supreme Court for not setting up procedures for testing.”

The criminal appeals court could set up a procedure itself, but Tartt suggests the judges might be afraid of being labeled as activists, legislating from the bench. Alabama’s legislature could institute a procedure as well, but a bill submitted to the oft-embattled state senate by Sen. Rodger Smitherman was indefinitely postponed in May.

Georgia Innocence Project offers hope

Despite the many roadblocks to justice in Alabama, several organizations offer hope to the wrongly convicted. One of those organizations is the Georgia Innocence Project (GIP).

“The advent of DNA technology has just changed the landscape,” says Lisa George, who serves as communications director for the project. GIP has helped free seven wrongly convicted persons in Georgia.

In July 2007, GIP began accepting inquiries from Alabamians. Alabama’s inmates were not served by a regional innocence project until that time.

“We sent information out about how inmates with claims of innocence could write us to all the prison libraries in Alabama,” George says. “And the prison system was extremely gracious in posting that in the prison library. In addition, this summer we sent letters – and I think it was approximately 200 letters – to Alabama inmates (the ones we could easily find in the computer) that had been convicted of rape.” George indicated that GIP had received responses from many Alabama inmates.

There is a post-conviction DNA testing statute on Georgia’s books that makes GIP’s job comparatively easy. Generally speaking, as long as the evidence has not been lost or tampered with, and the results of the test may prove the defendant innocent, the state of Georgia will conduct and pay for a DNA test. The Georgia Board of Investigations performs the DNA tests in their recently upgraded forensic labs.

George describes Alabama’s current system as a catch-22. “The problem is getting permission from the court to test,” she says. “There is no mechanism in Alabama for post-conviction DNA testing. Off the top of one’s head, an attorney would say Rule 32, that’s new evidence. And I’m not an attorney, but the way I understand it, Rule 32 reads that you have to have new evidence to get a Rule 32 ruling, and you don’t know whether it’s new evidence until you get the results of the test.”

Until the Alabama legislature passes a new law, or the Alabama Supreme Court or Court of Criminal Appeals sets up a procedure for post-conviction DNA testing, George and GIP will have to hope for district attorneys like Arthur Greene.

“We are convinced that there is at least one innocent man sitting in prison in Alabama,” George says. “And hopefully that’s a case we could prove with DNA evidence.”

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