Rep. Johnny Bell, D-Glasgow, is hoping that persistence pays off when it comes to a bill that he has proposed multiple times in the past and has pre-filed again to expand the availability of post-conviction DNA testing.
The testing, which is currently available only to people sentenced to death for a capital offense, would be expanded to people convicted of capital offenses, Class A and B felonies or offenses designated as violent, according to the legislation.
The bill has been filed three times previously, stalling in different stages of the legislative process but passing in the House of Representatives at least once, Bell said.
“I really don’t know if this time will be different,” he said. “Sometimes you just have to be persistent.”
Opponents of the bill are likely concerned about the new legislation being used to frivolously request DNA tests, Bell said. However, he said he feels that safeguards have been put into place to cut down on the chance of that happening.
“We have built in every safeguard that we can,” Bell said.
The bill states that the court shall order DNA testing and analysis if a reasonable probability exists that the petitioner wouldn’t have been prosecuted if DNA test results were exculpatory, the evidence is in a condition where it can be tested, it was not previously tested and may resolve an issue not resolved by previous testing, and the petitioner is still incarcerated or on parole, probation or conditional discharge for the offense to which the DNA relates.
The court may order DNA testing and analysis if there is a reasonable probability that the verdict or sentence would have been more favorable if testing results had been available or DNA testing could produce exculpatory evidence, and if the other standards for the testing are met, according to the legislation.
Federal funds are available to those who qualify for aid from the Department of Public Advocacy to pay for the testing, though those who don’t qualify and still petition for the testing to be done would be responsible for the cost, Bell said. The tests in capital cases are done without charge to the prosecution or defense.
The Department of Public Advocacy has listed the legislation as one of its legislative priorities for the 2013 session and has agreed to review applications for DNA testing made through the bill if it is approved, according to a newsletter from the department.
Bell said there is no system of justice where mistakes aren’t sometimes made, and there are definitely prisoners in Kentucky who aren’t guilty of the crimes for which they were convicted.
“If there’s a way of us knowing for sure, I think that we should do that,” Bell said.
The number of people to whom the bill would currently apply is limited, he said.
Bell is a defense lawyer, but he said the bill wouldn’t affect him because he doesn’t do post-conviction work.
However, he said the information provided by DNA testing of evidence could be useful to both sides because just as it could potentially exonerate a prisoner, it could also potentially strengthen the case of prosecutors.
“I just think it would be a plus for both prosecutors and defenders,” Bell said.