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The New Jersey Supreme Court ruled March 25 that convicts may seek DNA testing even before they exhaust their appeals, thereby potentially cutting years from the time the procedure might otherwise take. Justice James Zazzali, writing for the unanimous court in State v. Hogue, A-111-2001, said that to force the inmate to wait until after his appeal is dismissed “offends basic notions of fairness” and wastes judicial resources. “It is patently unfair to compel an incarcerated defendant to wait perhaps years for access to potentially exculpatory evidence,” Zazzali wrote. Although the legislature enacted a law, effective in January 2002, that gives defendants the right to request DNA testing at the trial level, the ruling in Hogue applies to all inmates convicted before the law went into effect. The justices reversed the Appellate Division’s denial of a partial remand in the case of Harrison Hogue, convicted in 2000 of the stabbing and strangulation death of a Newark, N.J., prostitute, Valerie Wilson. Hogue’s lawyer sought the remand in order to ask the trial court to require the prosecutor to turn over DNA samples collected from the victim. At trial, defense attorney William Fitzsimmons had asked the court to allow typing of Hogue’s blood for comparison with that found under Wilson’s fingernails. Essex County Superior Court Judge Edith Payne ruled that the test results would be inadmissible, since even if Hogue’s blood type did not match that under Wilson’s nails, there was no way to determine whether the blood was Wilson’s. During an autopsy, blood was drawn from the victim but it could not be typed because the medical examiner did not keep it refrigerated, causing it to deteriorate. The state had argued to the justices that requests for testing could only be raised in a petition for post-conviction relief. Deputy Attorney General Johanna Barba said in her brief that allowing a limited remand for DNA sampling would interfere with the state’s interest in preventing litigation from running on in a “disconnected and piecemeal fashion.” On March 25, Zazzali wrote that — to the contrary — the limited remand would avoid “a needless expenditure of judicial resources” and would meet the court’s obligation under R. 1:1-2 to eliminate “unjustifiable expense and delay.” The court found fault with the state’s narrow interpretation of the statutory language as restricting DNA testing to the post-conviction relief phase. The term “post-conviction” in the statute refers to its application to any person convicted of a crime and serving a sentence for imprisonment, they found. “It seems to me the supreme court was appropriately looking not only at justice but also at judicial economy, and felt it didn’t make sense to have the defendant wait years in order to have a DNA test,” says Matawan, N.J., lawyer Maria Noto, the president-elect of the Association of Criminal Defense Lawyers of New Jersey. Assistant Public Defender Dale Jones, whose duties include supervision of DNA testing, says that since enactment of the DNA-testing statute, 13 defendants have applied for post-conviction DNA testing. None have been cleared so far, but many of the cases are still pending, Jones says. The prosecution orders DNA testing in the great majority of cases where biological evidence is likely to shed light, Jones says. The public defender sometimes hires experts to review the prosecution’s tests, which are conducted in a state police lab, he says. The public defender occasionally orders its own tests from private-sector labs if the state has not secured testing or if questions are raised about validity of the state results, he says. The public defender pays about $1,000 for a single-sample DNA test, though costs can escalate when blood at a crime scene is spattered, requiring multiple tests, says Jones. Cost “is a great concern, but I don’t think we’ve ever been put in a position of not doing a test because of cost,” he says. Three people in New Jersey and 125 nationwide have been released after being exonerated by post-conviction DNA tests, according to the Web site of the Innocence Project, a clinic at the Cardozo School of Law in New York.

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