Bill Giving Inmates Right to DNA Tests OKd

First he was shipped off to prison for a rape he swore he didn’t commit. Then Herman Atkins endured an almost greater injustice: a prosecutor’s refusal to allow DNA testing that could have cleared his name.

Eventually, a judge ordered the test that set the Los Angeles man free. But his ordeal lasted 13 years, three months and six days.

State lawmakers Wednesday took steps that they hope will make Herman Atkins the last Californian to endure such a fate. On unanimous votes, the Assembly and Senate approved a bill offering DNA testing to inmates who can prove that it probably would have led to exoneration or a shorter sentence at trial.

If signed by Gov. Gray Davis, the bill would make California only the third state--Illinois and New York are the others--to provide DNA tests to any prisoner meeting certain conditions. Federal legislation with the same purpose has stalled.

Davis has not declared his position on the bill, SB 1342, which has broad support from prosecutors as well as defense attorneys. But in an appearance on ABC-TV’s “Nightline” this summer, the governor said that if a DNA test would resolve a case of questionable guilt, he would order it “in a heartbeat.”

Supporters called the bill one of the most momentous changes in California criminal law in decades. Since 1989, DNA tests have exonerated 72 American prisoners--four from California. Eight of the 72 were on death row; nearly all had exhausted their appeals.

Their freedom was won, in most cases, because persistent relatives and volunteer attorneys persuaded judges and prosecutors that a $4,000 lab test was a worthy investment in pursuit of the truth.

“This bill will mean the difference between life and death and imprisonment versus freedom for dozens, if not hundreds, of California inmates,” said attorney Peter Neufeld of the New York-based Innocence Project, which helped free about half of the 72 wrongfully convicted prisoners.

In about half those cases, prosecutors resisted inmate requests for DNA testing, leading to litigation that sometimes dragged on for years, Neufeld said. The new law would make such fights less likely in California by setting a clear, statewide standard.

The bill also breaks important ground by requiring that bloodstains, semen or other biological evidence be preserved for as long as a convict is imprisoned. The fate of evidence now varies from county to county, and many inmates have been unable to benefit from DNA testing because there is nothing left to test.

“In some states, evidence has been destroyed just before a petition for DNA testing is filed,” said Jeff Thoma, a member of the national Commission on the Future of DNA Evidence. “This law will ensure that crucial items are not just tossed out.”

Analysts say it is unclear how many inmates will petition for DNA tests. In Illinois, fewer than 100 tests have been conducted in the four years since that state passed a similar law.

The California bill’s author, Senate leader John Burton (D-San Francisco), called it one of the most important measures he has carried in his 29 years as a politician. He said it will not only rescue innocent people behind bars but “let police know there’s a guilty person still running around committing the same crimes.”

Criminologists call DNA testing the most significant breakthrough since fingerprinting. It involves isolating “genetic markers” unique to each person and comparing them with evidence found on a victim or at a crime scene. The markers contained in human cells can be lifted from a drop of blood on a windowsill, saliva on cigarette butts, semen, even residue from a sneeze.

As the technology advances and the use of testing spreads, the payoff could be huge, criminologists say. Investigations and trials will be shorter, and the sure-fire nature of the test--allowing a mere splotch of sweat to incriminate a perpetrator--may have a deterrent effect.

The use of DNA to exonerate the condemned--and reveal the fallibility of the criminal justice system--has triggered reverberations across the nation.

In Illinois, Republican Gov. George Ryan imposed a moratorium on executions after 13 inmates--one of them days away from death--were proved innocent. In San Diego County, where two wrongfully convicted men have been freed, prosecutors are reviewing 550 old cases to determine whether a DNA test might be warranted. Other counties have taken similar, though less ambitious, steps.

Mostly, however, DNA has been used not to clear the innocent but to convict the guilty. Samples from convicts are fed into a database used to search for links to unsolved crimes. Tests also can help detectives by excluding those who make bogus confessions.

The potential of DNA testing spawned a flurry of legislation this year. One bill, by Assemblyman Lou Correa (D-Anaheim), removed the six-year statute of limitations on rape cases in which DNA evidence exists. It was signed by Davis.

A third bill, by Assemblyman Mike Machado (D-Linden), was somewhat more controversial and awaits final action by lawmakers today. It would allow police to compare a suspect’s DNA profile with evidence from unsolved crimes.

Current law requires that a person be convicted before his or her DNA sample may be compared, and civil rights advocates say loosening the standard to include suspects is a bad idea. Broadening the definition of who must submit to DNA profiling could lead to abuses, they say, because DNA samples yield such a wide range of genetic information.

A fourth DNA-related measure, by Assembly Minority Leader Scott Baugh (R-Huntington Beach), aims to pay wrongfully convicted inmates $100 a day for each day they were incarcerated. The bill had no opposition and was expected to win approval by today. If signed by Davis, it would replace the current compensation limit of $10,000.

Burton’s bill limits DNA testing to inmates whose identity was or should have been an issue at the time of their conviction.

It also restricts testing to cases in which either the test or the sample material was not available at the time of trial.

*

SETBACK FOR DUMP

The state Senate passed a bill that would block a dump opposed by the Pala Indians. A3