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Following other states' lead, Missouri lawmakers consider funding post-conviction DNA testing

February 22, 2001
By: Matt Williams
State Capital Bureau
Links: SB 29, SB 282

JEFFERSON CITY - A Jefferson City man has a lot to say to Missouri lawmakers about being locked up for a crime he did not commit.

For 16 years, Kevin Lee Green sat in a California prison.

He was held in the 1979 rape and beating of his wife and the murder of their unborn daughter in their Orange County, Calif., home. Green maintained his innocence, but his wife's testimony convicted him in the absence of physical evidence.

Green was saved years later by DNA testing that is standard procedure in criminal cases today, released only days after testing linked a serial killer and not him to the crime.

Green, who now lives in Jefferson City, now urges Missouri lawmakers to follow other states to make post-conviction DNA testing available to Missouri prison inmates.

A bill to do just that has been sponsored by Sen. Larry Rohrbach, R-California. It would require the Highway Patrol to test DNA evidence if a court agrees to a request. The prisoner would have to prove that the test results could make a difference in their case.

DNA testing didn't become widely used in criminal cases until the early '90s, so physical evidence that would have exonerated Green went untested for years. This along with a zealous prosecutor and inexperienced investigators led to his conviction, Green said.

"The things that had to go wrong in order for me to be convicted, all of them went wrong," Green said from his home in Jefferson City.

Green said it was painful to be imprisoned when he knew he was innocent, and frustrating to not be able to prove it.

"The first four or five years I was in prison was pretty much a continuous nightmare," Green said. "Try to talk about it, try to explain it, beg for understanding and absolutely nobody listens who can make a difference about getting you out."

After 16 years in prison, police tested physical evidence in the case and linked it to a serial killer involved in several other murders.

Rohrbach's proposal would allow prisoners in similar situations to have DNA tested against evidence in their case. It seeks to give those convicted before DNA was regularly used a chance to exonerate themselves with modern techniques.

Under the bill, if a judge determines testing could provide exculpatory evidence such as blood stains that could tie someone else to a crime scene, the evidence could be compared with a prisoner's sample to see if its a match.

Rohrbach said the bill has widespread support and many see it as an improvement for the justice system.

"I don't think anybody wants innocent people locked up," Rohrbach said.

There was no testimony against the proposal in recent committee hearings. However, it still faces a lengthy process before it becomes law. A similar plan last year got rolled into a broad crime bill that got snagged on the closing days of the legislative session.

Meanwhile, the Missouri Supreme Court adopted in late February a rule that would allow post-conviction DNA testing under more limited circumstances.

The proposal is estimated to cost around $400,000 a year in testing and storage costs, but even in a tight budget year, Rohrbach said he doesn't see that as an obstacle.

"Justice is a pretty important thing," Rohrbach said. "I wouldn't consider it to be a considerably high price for making sure you have the right folks."

The tests would be performed by the Highway Patrol's crime lab, where samples from investigators all across the state are brought for examination. Using third-generation DNA techniques, the laboratory can extract DNA from minute sources such as cigarette butts, drinking containers and sweaty clothing, as well as blood and semen.

Millions of copies of the genetic material are grown to be tested by a computer. The result is a graph of peaks in 13 specific parts of the genetic code that are unique to every person, except for identical twins, similar to a fingerprint.

The sample can be compared to a nationwide DNA database maintained by the FBI to find a match. Missouri, like many other states, already requires prisoners to submit a sample to be profiled in the system. Many times, physical evidence from unsolved crimes is tested and matched with a prisoner already serving time for other crimes.

Cary Maloney, a supervisor in the lab's DNA Section, said the lab favors comparing prisoners' DNA with physical evidence. He voices concern that some of the practical aspects of the bill could overload the lab with samples.

Currently, local police store physical evidence after it has been tested by the Highway Patrol. Under the bill, the state lab would be responsible with preserving and storing indefinitely any future DNA evidence used in criminal cases. Maloney said this could add up to a big logistical problem for the lab.

"As time goes on, it's going to be a continuing problem." Maloney said. "If you can never destroy evidence and you're always going to be creating, eventually there is going to be a logjam."

The proposal is similar to statutes in place in New York and Illinois, and it is also being considered in dozens of other states, according to Jane Siegel Greene of the Innocence Project.

Founded by Barry Scheck and Peter Neufeld who defended high profile clients like O.J. Simpson, the project has successfully freed more than 40 prisoners who were wrongly convicted. They also lobby for DNA statutes like Missouri's to be implemented.

"Within the next few years, we'll see the vast majority of states will have statutes in place," Greene said.

Getting permission for testing in states without post-conviction testing laws is very difficult, Greene said, because most physical evidence hasn't been preserved by investigators, and limits on appeals keep evidence from consideration.

Green was fortunate evidence in his case was preserved and investigators were eager to determine the real attacker. He now lives here and is rebuilding his life. He speaks to groups around the country about his case and supports Rohrbach's proposal.

"Opening the door of opportunity, any door, to someone in prison is so important and so necessary," Green said.

He said he has faith in the justice system, but that it is in need of repair.

"I just can't imagine that anybody anywhere would say, 'Oh no, these people have had their say in court.'" Green said. "They haven't had their day in court with all the evidence if they're innocent."