State v. Riofta

¶1¶50 (concurring in dissent) — I write mainly to urge legislative intervention and clarification on an issue that is so central to our criminal justice system. It is both beyond doubt and profoundly disturbing that innocent people are convicted despite truthful witnesses, good law*377yers, good juries, good judges, and fair trials. See generally Sophia S. Chang, Note, Protecting the Innocent: Post-Conviction DNA Exoneration, 36 Hastings Const. L.Q. 285 (2009). Largely based on DNA (deoxyribonucleic acid) evidence, the “Innocence Project” alone has exonerated at least 223 wrongfully convicted men and women, including 17 who had been sentenced to death. Id. at 289.

¶2¶51 I believe — or at least, I hope — that wrongful convictions are extraordinarily rare. But they happen, and because they happen, we should be open to the claim of error. This is especially true as we become increasingly aware of the fallibility of confessions and eyewitness testimony, but still rely so strongly on this evidence in our criminal proceedings. See Steven A. Drizin & Richard A. Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C. L. Rev. 891, 904 (2004); Bernal v. People, 44 P.3d 184, 190 (Colo. 2002).5 The dangers are exacerbated when children are involved, either as the witnesses or the accused. We know now that five boys under intense pressure wrongly confessed to beating and raping a woman in New York City. See Richard A. Leo et al., Bringing Reliability Back In: False Confessions and Legal Safeguards in the Twenty-First Century, 2006 Wis. L. Rev. 479, 480-85 (2006) (discussing the Central Park jogger case). We have reason to believe that, even in our own country and even in our own time, *378men have gone to prison and even death row on the strength of confessions wrought by torture. See John Charles Boger, Foreword: Acts of Capital Clemency: The Words and Deeds of Governor George Ryan, 82 N.C. L. Rev. 1279, 1280 n.10 (2004) (citing Abdon M. Pallasch et al., Gov. Ryan Empties Death Row of All 167, Chi. Sun-Times, Jan. 12, 2003, at 2). Judicial finality is a virtue but a vastly inferior one to actual substantive justice.

¶3¶52 In response to this reality, 45 states have enacted postconviction DNA testing statutes. See Brandon L. Garrett, Claiming Innocence, 92 Minn. L. Rev. 1629, 1676 (2008). While these statutes differ in some areas, all adopt some level of outcome-based restrictions on granting relief. Id.The vast majority (38 of 45) require that anyone requesting DNA testing demonstrate that the test results would be “material” before testing is granted. Id.This materiality standard has been expressed in many states as requiring the petitioner to show “ ‘a reasonable probability exists that the petitioner would not have been convicted if exculpatory results had been obtained through DNA testing.’ ” Id.(quoting as illustrative Ariz. Rev. Stat. Ann. § 13-4240 (2001 & Supp. 2007)).6 The “reasonable probability” standard is a less stringent standard than a “preponderance of the evidence” standard. It has been defined as a “probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 669, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see also State v. Crawford, 159 Wn.2d 86, 104-05, 147 P.3d 1288 (2006) (holding that the reasonable probability standard is less stringent than the standard for newly discovered evidence *379claims). In my view, this materiality standard appropriately balances the desire for finality against the need for accurate results. It is consistent with federal constitutional standards requiring the State to produce evidence “ ‘if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ” Strickler v. Greene, 527 U.S. 263, 280, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999) (quoting United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985) and discussing Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963)).

¶4¶53 Unfortunately, the majority concludes that our legislature intended a higher standard for obtaining DNA testing than is required by most other jurisdictions. It essentially adopts our court rules standard for granting a new trial based on newly discovered evidence — a standard steeped in the doctrine of finality and not an easy standard to meet. But Alexander Riofta has not requested a new trial; he has asked only to obtain evidence that may lead to a request for a new trial. To hold Riofta to the same burden of proof before testing has taken place makes little sense if, assuming favorable test results, he will be required to make the same showing in a subsequent personal restraint petition.

¶5¶54 The standard should allow the petitioner to obtain testing if he can show that favorable test results will later demonstrate innocence on a more probable than not basis.7*380As I read the statute, only after testing has occurred is the petitioner required to show the DNA evidence will actually exonerate him. This interpretation is consistent with the legislature’s desire to broaden the availability of post-conviction DNA testing.

¶6¶55 I would analyze this statute, and this evidence, against the agonizing fact that innocent people are convicted. In my view, if there is any serious reason to believe that some piece of tangible evidence could establish the innocence of the convicted man or woman, that evidence should be tested. As Judge Stephen Reinhardt put it, when there is evidence that could prove a convicted man is actually innocent, “fairness requires that on remand the state come forward with any exculpatory evidence it possesses.” Thomas v. Goldsmith, 979 F.2d 746, 750 (9th Cir. 1992). We should not be afraid to be proved wrong. As a people, as a state, we are better than that. We should apply these rules liberally, and we should order the evidence tested here. I concur in dissent.