Why is MA one of only two states in the country without a law granting prison inmates the right to test DNA evidence?

It’s difficult to reconcile Massachusetts’s progressive reputation with the reality that its lawmakers have steadfastly refused to enact a post-conviction DNA-access law. A bill pushing for timely testing and for preserving evidence for appeals has failed to pass in the Legislature every year since it was first proposed in 2003. Now Massachusetts has achieved a kind of dubious distinction: It’s one of only two states without such a law. (The other, Oklahoma, passed one that expired in 2005.)

With this year’s version of the bill moving along on Beacon Hill, advocates are hoping Massachusetts will finally live up to its national reputation. In the four years that Gretchen Bennett has been executive director of the New England Innocence Project, part of the nationwide Innocence Network, she has watched the number of holdout states drop from six to two. “Everyone from Florida to Alaska teases me,” she says. “People say to me, ‘Don’t y’all have gay marriage?’ I tell them they’re not equatable, but that’s how it plays.”

One major reason Massachusetts doesn’t already have a DNA-access law, experts say, is a feeling among some prosecutors that such a law would needlessly duplicate an already established judicial process, one rare among states. According to Rule 30 of the Massachusetts criminal code, inmates can receive a new trial at any time if they can show that there is new evidence that justice may not have been done.

The problem, says Bennett, is that Massachusetts inmates tying their hopes to DNA evidence are often snared in a maddening Catch-22. They can’t get a new trial without evidence from DNA testing, but they can’t get access to evidence for testing without a new trial. In practice, then, inmates are forced to negotiate with district attorneys’ offices, which have a variety of policies, or to take their chances with a judge. With the decision left to “the discretion of the individual judge or prosecutor,” says Bennett, “everyone is sort of groping in the dark to figure out how to do this and what’s allowed and what isn’t.”

While Bennett says that in most cases inmates are able to get DNA tested, it’s often only after years of jumping through procedural hoops. That’s what happened to Maher.

“Had this law been in place, Dennis Maher would have been exonerated years earlier than he was,” says J.W. Carney, who prosecuted Maher but later supported his bid for innocence. (Carney is now a high-profile defense attorney.) “This innocent man spent years of his life incarcerated after the criminal justice system had the ability to know with 100 percent certainty that it had incarcerated the wrong man.” Barton, the retired judge, asserts Maher’s trials were fair, yet now sees the power of codifying access to DNA testing. “Don’t you think I wish they had a [testing] statute at the time?” he asks. “Of course. Then there would be no question.”

Without one, however, prisoners are no better off today than Maher was two decades ago: They must often depend on the prosecutors and judges who put them in prison to allow DNA tests to go forward.
http://bostonglobe.com/magazine/2011/11/18/failing-dna-test/3pEMcvM5rw6FYLCoprRHLL/story.html