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  • WisBar News
    October
    18
    2013

    DNA Testing After Conviction: Supreme Court May Decide Who Pays

    Joe Forward
    Legal Writer

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    Oct. 18, 2013 – Convicted of felony murder and sentenced to 60 years in prison, Charles Hennings maintains his innocence. And he wants taxpayers to pay for a DNA test that might prove someone else committed the crime for which he’s doing time.

    Recently, a state appeals court asked the Wisconsin Supreme Court to decide if state law requires the state to pay for postconviction DNA testing, or if Henning must pay.

    The appeals court, in its certification, said resolution of the case “will have statewide impact on the courts, law enforcement, criminal defendants, crime victims, and potentially, a significant effect on the functioning of the State Crime Laboratory.”

    Under Wis. Stat. section 974.07(2), those convicted of crimes can make motions for DNA testing of evidence that is relevant to the crime and was never tested before, or was never tested with scientific techniques that are now available.

    Defendants can pay for this testing. But if they want the testing done at public expense, they must satisfy stiffer requirements, under prior case law interpreting the statute.

    That is, the defendant must show a reasonable probability that such DNA testing would have cleared the defendant if the tests were available before conviction.

    The circuit court ruled that Hennings failed to demonstrate that DNA testing of evidence uncovered at the murder crime scene would be exculpatory. Hennings appealed.

    According to the certification, Hennings argues that state law “requires the court to presume that the DNA testing results will be exculpatory and then to assess whether such presumed exculpatory results would lead to a reasonable probability that he would not have been prosecuted or convicted.” The state argues against that presumption.

    In his brief, an assistant attorney general said: “If the court must presume to be ‘exculpatory’ any piece of evidence obtained by police from a crime scene that is arguably ‘relevant to the investigation or prosecution’ and might have someone’s DNA on it, there is no practical limit to mandatory postconviction testing at public expense.”

    In essence, the state says that a ruling in favor of Henning could mandate DNA testing, at public expense, in nearly all cases involving evidence that is relevant.

    “We acknowledge that the State’s and the circuit court’s warnings of unreasonably high numbers of motions for ultimately unfounded DNA testing at public expense are mere assertions,” the state appeals court wrote in its certification to the supreme court.

    “Nevertheless, if the State and the circuit court are correct, then the prospect of such a significant statewide impact warrants guidance from the Wisconsin Supreme Court.”