Attorney General: Susan O. Storey, Chief Public Defender, Formal Opinion 2006-024, Attorney General State of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

November 9, 2006

Susan O. Storey
Chief Public Defender
Office of Chief Public Defender
30 Trinity Street
Hartford, CT 06106

Dear Attorney Storey:

         

         You have asked for a formal opinion whether the State of Connecticut satisfies the requirements of § 413 of the Justice for All Act of 2004 (the Act).  You ask first, whether the State satisfies Section 413(2)(A) of the Act requiring the provision of post conviction DNA testing, and second, whether the state satisfies Section 413(2)(B) of the Act requiring the preservation of biological evidence secured in relation to the investigation or prosecution of a state offense.

 

          After a review of relevant law and procedures, it is my opinion as Attorney General that Connecticut fully satisfies the requirements of § 413, with regard to both postconviction DNA testing and the preservation of biological evidence.

 

          I note at the outset that Connecticut’s forensic laboratory, the Department of Public Safety Forensic Science Laboratory, is a nationally recognized laboratory formerly headed by Dr. Henry C. Lee.  It has been accredited since February 2001 by the American Society of Crime Laboratory Directors—Laboratory Accreditation Board (ASCLAD-LAB), and currently employs five doctorate level molecular biologists. The DNA section of the lab is audited annually using the DNA Advisory Board Quality Assurance Standards.  See attached website printout for further information.

 

A.        Provision of Postconviction DNA Testing

 

          Connecticut satisfies the requirements of the Justice For All Act of 2004, § 413(2)(A), with respect to postconviction DNA testing.  Specifically, Connecticut satisfies the applicable requirements of § 413(2)(A)(i) in that Conn. Gen. Stat. § 54-102kk ensures a reasonable process for resolving claims of actual innocence based upon DNA evidence.  Conn. Gen. Stat. § 54-102kk, attached, was enacted in 2003 as part of  Public Act 03-242, An Act Concerning the Collection of DNA Samples from Persons Convicted of a Felony, the Preservation and Testing of DNA Evidence and the Review of Wrongful Convictions.

 

          Section 54-102kk is significant in that it provides a process for claims of actual innocence pursued by persons convicted of crimes, “[n]otwithstanding any other provision of law regarding postconviction relief.”  The statute provides that any person convicted of a crime and sentenced to a period of incarceration may at any time during that term of incarceration file a petition with the sentencing court requesting DNA testing of any evidence in the possession of Connecticut’s Division of Criminal Justice, any law enforcement agency, any laboratory or the Superior Court.

 

          Pursuant to Conn. Gen. Stat. § 54-102kk(b)(1), the sentencing court must order DNA testing if it finds after a hearing that:

 

(1)      A reasonable probability exists that the petitioner would not have been prosecuted or convicted if exculpatory results had been obtained through DNA testing;

(2)      The evidence still exists and is capable of being subjected to DNA testing;

(3)      The evidence was not previously tested or the issue not resolved; and

(4)      The purpose of the petition is to demonstrate innocence and not to delay justice.

(emphasis added).

          In addition, the sentencing court may order DNA testing if a reasonable probability exists that the requested testing will produce evidence that would have either altered the verdict or decreased the petitioner’s sentence, and requirements (2) through (4) above are also met.

 

          Section 54-102kk also provides that no petition under this provision may be denied due to the petitioner’s inability to pay for such testing.  Conn. Gen. Stat. § 54-102kk(d).  A petitioner has a right to counsel in a proceeding under § 54-102kk, and if the petitioner cannot afford counsel, counsel shall be appointed for him.  Conn. Gen. Stat. § 54-102kk(e).  There is no time limit to the filing of a petition under this law, other than the requirement that the petitioner continue to be incarcerated.

 

          There is no question that this procedure, in place in Connecticut since 2003, ensures a reasonable process for resolving claims of actual innocence based on DNA evidence.  Indeed, in July of this year, the Connecticut Innocence Project, part of Connecticut’s Public Defender Services of the Office of the Chief Public Defender, successfully sought and obtained a dismissal of the charges against James Calvin Tillman 18 years after his conviction for sexual assault.  Based on advances in DNA technology since the time of his conviction, the Laboratory excluded Mr. Tillman as the contributor of semen found in the victim’s clothing.  The prosecuting Assistant State’s Attorney nolled the charges against Mr. Tillman, and the Court entered a judgment dismissing all charges against him.  This was an important and historic case in Connecticut, invigorating faith in Connecticut’s criminal justice system and the Innocence Project.

 

B.        Preservation of Biological Evidence

 

          Connecticut law and practice collectively provide for the preservation of biological evidence secured in relation to the investigation or prosecution of a criminal offense in a manner consistent with Section 413(2)(B)(i).  Section 413(2)(B)(i) requires of all jurisdictions within the State:

 

 preservation of biological evidence secured in relation to the investigation or prosecution of a state offense under a State statute or State or local rule, regulation, or practice, enacted or adopted before …[October 30, 2004], … in a manner that ensures that reasonable measures are taken by all jurisdictions within the State to preserve such evidence.

 

            1.         Statutory Retention of Court Exhibits

 

          Conn. Gen. Stat. § 51-36, as amended by Public Act 06-152, addresses the preservation of all evidence that has been part of  any court proceeding.  This statute defines “official records of evidence or judicial proceedings” as including:

 

(1)  the court file, that contains the original documents or copies of any original documents that have been removed, (2)  all exhibits from the parties, whether marked for identification or admitted as full exhibits, and (3)  the transcripts of all proceedings held in the matter, including voir dire.

Conn. Gen. Stat. § 51-36(e).

 

          Section 51-36(c)(1) provides that such evidence in any felony case other than a capital felony, including physical evidence that has become part of the court file, be maintained until twenty years from the imposition of a sentence or the expiration of that sentence or sentences, whichever period is longer.  Section 51-36(c)(2) provides that physical evidence that has become an exhibit in a capital felony conviction must be maintained for 75 years after the imposition of the sentence.  Sections 51-36(c)(1) and 51-36(c)(2) of the Connecticut General Statutes were enacted in 1998.

 

          Just this year, Connecticut’s legislature passed Public Act 06-152, which added to Conn. Gen. Stat. § 51-36(c) four new subparts.  The amended language, applicable to felony and capital felony convictions as included in Sections 51-36(c)(1) and (2), states that the length of a sentence in this section includes not only any period of incarceration but any period of parole, special parole or probation and that in the event of multiple charges, the longest applicable retention period applies.  Section 51-36(c)(3) as recently amended provides that in cases in which a person has been acquitted or the case has been dismissed or was not prosecuted, the court may order the destruction of exhibits upon expiration of 90 days from the date of final disposition of the case.  Prior to the exercise of such discretion by the criminal court, the court must send notice to all parties, and any party may request a hearing on the proposed destruction.  In cases in which a person has been found guilty of a misdemeanor or adjudicated as a youthful offender, the period of retention is 10 years from the date of sentencing or the expiration of the sentence, whichever period is longer.

 

          Conn. Gen. Stat. § 51-36, and in particular § 51-36(c), as originally enacted in 1998 and as recently amended in 2006, renders Connecticut in compliance with Section 413(2)(B)(i) with regard to evidence secured in relation to the prosecution of State offenses.  In addition, Connecticut statutory law directs that when property is seized in connection with a criminal arrest or pursuant to a search warrant without an arrest, the law enforcement agency seizing the property must file an inventory of the property seized with the court in the geographical area in which the criminal offense is alleged to have been committed or in which the search warrant was issued.  Conn. Gen. Stat. § 54-36a.   This law enhances the accountability and tracking of evidence, including evidence containing biological samples, that is collected in the course of any investigation either resulting in a prosecution or conducted using a search warrant. 

 

                   2.         Practice Regarding Preservation of Evidence

 

          Attached to this opinion is an Affidavit of Andrew Crumbie, Administrator for the Connecticut State Police, Division of Scientific Services.  Mr. Crumbie is responsible for Connecticut’s three laboratories, the Forensic Science Laboratory, the Computer Crimes Laboratory and the Toxicology Laboratory.  See Crumbie Aff. §3.   Pursuant to Conn. Gen. Stat. § 29-7b, the Forensic Science Laboratory provides analysis of biological evidence for the various law enforcement agencies within the State of Connecticut, and is the sole laboratory providing this service within Connecticut.  Crumbie Aff  § 4.   Mr. Crumbie's Affidavit establishes that the Forensic Laboratory complies with Conn. Gen. Stat. § 51-36 with regard to all physical evidence presented to it for analysis by either Connecticut state or municipal law enforcement agencies.   Crumbie Aff. § 5. Moreover, biological samples presented to the laboratory by law enforcement agencies for analysis even in the absence of a criminal prosecution are maintained indefinitely, Crumbie Aff. §6, rendering Connecticut’s practice with regard to the preservation of biological samples compliant with Section 413(2)(B)(i). 

 

          Mr. Crumbie states that the State Police Forensic Science Laboratory provides annual training to both municipal and state law enforcement officers investigating crimes, and specifically training on the collection and preservation of physical evidence, including biological evidence, that is transmitted to the Forensic Lab for analysis.  Crumbie Aff. § 7.  Attached to Mr. Crumbie’s Affidavit are Guidelines promulgated by the Forensic Science Laboratory for all state and municipal law enforcement agencies within Connecticut, as well as the standard form used to request the examination of physical evidence by all state and municipal law enforcement agencies. These Guidelines set forth the manner in which physical evidence is to be collected, stored, maintained and submitted to the Forensic Laboratory.  Crumbie Aff. § 8.

 

          As stated above, once samples of physical evidence are received for analysis by the Forensic Laboratory, such samples, including samples of biological evidence, are retained by the laboratory indefinitely.  Crumbie Aff. § 9. The Forensic Laboratory does not intend to destroy any samples of biologic evidence in its possession.  Crumbie Aff. §10. When evidence is examined, samples are removed for testing and/or archival purposes.  Crumbie Aff. § 11. Although DNA testing is destructive, physical samples are only wholly consumed if it is determined that the whole sample is necessary in order to generate a useful DNA profile. Crumbie Aff. § 12. In the case of an arrested subject, if it is determined that testing will consume the entire sample, the prosecuting attorney must be contacted prior to testing, and the prosecuting attorney is obligated to notify defense counsel.  Crumbie Aff. § 13.  When an evidentiary sample is large enough to so permit, a sufficient quantity is removed for future testing, and retained at the laboratory indefinitely.  The original evidence submission is then returned to the submitting agency.  Crumbie Aff. § 14.

 

          Connecticut’s State Police adhere to an Administration and Operations Manual.  This manual contains strict requirements for the collection of biological evidence and requires that such evidence be submitted to the Forensic Laboratory with an established chain of custody sequence.  Crumbie Aff. § 15; and see Portions of A&O manual, attached.  Directives on requirements for evidence collection, proper evidence collection methods, Forensic Laboratory duties, crime scene management, the proper method of submitting evidence to the laboratory, and the nature of physiological evidence are all included.  See Portions of A&O manual, attached.  Importantly, the manual makes clear that “The work of the laboratory is not for the benefit of the prosecution or defense in a judicial proceeding, but to use its scientific skills or knowledge to determine facts.”  See A&O § 18.2.3. 

 

          The Administration and Operations Manual does not distinguish between biological evidence collected pursuant to an investigation or a prosecution - - it requires that all such evidence that is collected be submitted to the laboratory for analysis.  Because all such evidence collected by the State Police is presented to the State’s Forensic Science Laboratory, and because that laboratory does not destroy biological samples or evidence submitted to it, Connecticut’s practice ensures that with regard to State Police investigations, reasonable measures are in fact taken--not only with respect to evidence secured in relation to the prosecution of a state offense, but also with regard to evidence secured in relation to the investigation of a State offense.

 

          The same practices are employed by the other police agencies within the State of Connecticut.  The Police Officer Standards and Training Council (hereinafter “POSTC”), is a state agency which trains and accredits Connecticut’s 125 police agencies, including municipal departments and state agencies, enhancing the professionalism of those agencies and effecting consistent practice amongst them.  See attached Mission Statement from POST website.  An Affidavit is attached from Raymond Bouchard, the Director of Basic Training for POSTC, who has worked with POSTC for over two years after retiring from the Enfield, Connecticut, Police Department after 29 years of service at the level of Deputy Chief.  See Bouchard Aff. §§ 2, 3.

 

          Mr. Bouchard states that under the training provided to Connecticut’s police agencies and the practices followed, all biological evidence that is collected is submitted to the Connecticut State Police Forensic Science Laboratory for analysis and retention.  Bouchard Aff. § 4. Such evidence is submitted to the Forensic Science Laboratory, both in cases in which a prosecution results and in cases in which alleged criminal behavior is investigated, regardless of whether an arrest is made.  Bouchard Aff. § 5. Thus, Connecticut’s collection practice ensures that with regard to criminal investigations, reasonable measures are in fact taken, not only with respect to evidence secured in relation to the prosecution of a state offense, but also with regard to evidence secured in relation to the investigation of a State offense.

 

          Based on the foregoing, it is my opinion as Attorney General for the State of Connecticut that Connecticut fully satisfies the requirements of § 413 of the Justice for All Act of 2004, with regard to both postconviction DNA testing and the preservation of biological evidence.

 

          If  I can be of any further assistance, please do not hesitate to contact me.

         Very truly yours,


         RICHARD BLUMENTHAL


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