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: What the Judge Ate for Breakfast

DNA requests aren?t tracked, some lost

By Ron Sylvester

Ronnie Rhodes is one more than a dozen inmates who have filed motions in Sedgwick County District Court since 2001, when Kansas passed a law allowing judges to order DNA testing in old cases.

The Eagle found that prosecutors across the state don?t track such motions, and one case where the request appeared lost for years.

Requests by inmates often are summarily denied on the basis of objections by the prosecution, frequently without the inmate having access to legal counsel.

?Counsel is not required (by law), sadly,? said Michael Whalen, a Wichita attorney who has represented several defendants on appeal.

?The obvious problem is most inmates need representation to see if there is a basis for their request or to at least advocate for their position,? Whalen added.

The Eagle asked for lists of cases where such requests were made from district attorneys offices in Sedgwick, Johnson, Wyandotte and Shawnee Counties. All said they had no method of keeping track of those motions.

The Sedgwick County District Attorney?s office provided a list of five cases in September 2009. A year later, it had identified 18 cases since 2001 where inmates made motions for DNA testing.

Johnson, Wyandotte and Shawnee Counties could not provide a list, saying they had no way to keep track of those cases.

?It?s important that prosecutors take those requests seriously,? said Brandon Garrett, a University of Virginia law professor who has studied cases where inmates have been exonerated through DNA testing. ?It would obviously look terrible for that office if there?s a case that they lost track of and it turns out it was an innocent person, once the DNA results came back in.?

A list of such cases are available in Dallas County, Texas, said District Attorney Craig Watkins, who has established a Convictions Integrity Unit to examine claims of innocence.

?We need to give DA?s the courage to do this,? Watkins said of looking into old cases. ?You?ll get credibility with the public. You?re freeing innocent people. Then at the end of the day, when you do pop a guy and give him a life sentence, it will mean more because you?re doing both things.?

The Sedgwick County District Attorney?s office lost track of one case for nearly three years.

Luke Reed, 56, is serving a life sentence on a 1982 rape and kidnapping conviction. Reed filed a motion for DNA testing on June 8, 2004.

After turning down Reed?s request for an attorney, Judge Greg Waller ordered the district attorney?s office to see whether there was any DNA evidence.

Prosecutors filed no further actions, and the case languished until Jan. 29, 2007, when Reed filed a motion of habeas corpus _ a civil action that challenges an illegal sentence. He attached Waller?s order as an exhibit.

The Sedgwick County District Attorney?s office never responded.

?I cannot tell why there isn?t a formal response to the court order,? said Ann Swegle, deputy district attorney.

On his habeas case, Reed received legal representation from Whalen and the Innocence Project of New York. A search then began to see whether any DNA evidence existed.

By then, Whalen said, no evidence had been preserved.

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Full post as published by What the Judge Ate for Breakfast on February 14, 2011 (boomark / email).