JUDGE REINSTEIN: Well, there's a couple of things that came up. One is on paragraph one in request for testing. We talked about the problem yesterday regarding institute a proceeding underthis act, and we talked about instead putting file a petition requesting, rather than waiting until the proceeding so that the court could act on it summarily if need be. I think the use of the word proceeding was the hangup there.
I don't know how people feel about whether we should put file a petition under this act or just whether that's surplus and you don't need that.
And then at the end after the word conviction, we talked about adding, And that may contain biological evidence. We had a pretty good consensus on that although it is a very long sentence.
JUSTICE ABRAHAMSON: Does anyone object to including those words? I think that that's what people wanted. Okay.
So the next change was --
JUDGE REINSTEIN: In B. Well, first the original had an a and a b under number one, and you remember we had some discussion of whether those were redundant. Woody was suggesting whether a and b should be reversed. There was a question as to whether we should have an and or an or.
And then this morning Dr. Crow talked to me about -- and it's not up there now because this is with the changes -- where we would have had the wording, If the results of present-day DNA testing had been available at the trial, but instead Woody came up with some language to combine A and B, and it says -- you see it there -- A reasonable probability exists that the testing of the evidence will produce DNA results which would have rendered the Petitioner's verdict or sentence more favorable if the results have been available at the trial leading to the judgment of conviction.
And that eliminates having the and/or, the redundancy issue, but, Dr. Crow, will that answer the present-day issue, because it does come in later on too?
MR. THOMA: I think it takes care of the present-day issue. I think it takes care of the definition of exculpatory evidence. I think it covers every concern we've had.
JUSTICE ABRAHAMSON: Does anyone object to the new language?
(No response.)
JUSTICE ABRAHAMSON: Okay. Then that's all right. We'll take the next --
JUDGE REINSTEIN: The other one was that it's not really a change but it's something we did discuss yesterday, and that's at number four, C4, preservation order. We talked about, When a proceeding is instituted under this act, the court shall order that all evidence. There was an issue yesterday as to whether it should be a shall or a may.
And I know Jeff and I talked about that this morning, and we have had discussion in the past about courts that just don't enter the order.
MR. THOMA: I agree. You're characterizing our conversation exactly correct. Could I go back to B1 again and change -- ask to change one word? If the results had been available at the proceedings leading to the judgment of conviction as opposed to the trial, because certainly we can't limit ourselves strictly to cases in which a trial occurred.
There are a lot of circumstances in which somebody is looking at either walking out the door with a conviction or spending the rest of their life in prison and end up agreeing to walk out and still want that exoneration. So would that be satisfactory if we change it to, At the proceedings leading to the judgment of conviction as opposed to the trial, because I don't think we're trying to limit it to cases in which a trial occurred.
JUDGE REINSTEIN: I think in the postconviction report we talked the possibility of there being a plea proceeding that would still lead to a DNA exoneration.
JUSTICE ABRAHAMSON: What about the sentencing?
MR. THOMA: That would still be right --
JUSTICE ABRAHAMSON: Because a judgment of conviction would be all right? Okay. No problem.
JUDGE REINSTEIN: And then on that preservation order, Woody, I think you were discussing that yesterday, whether it should be a shall or a may.
MR. CLARKE: Right. I think the point that I was trying to make was that in the scenario that you see or any other judge may see where you want to reject a claim as frivolous, that I think there should not be a mandatory duty to preserve in at least those instances. A permissive orderhere would be more consistent with being able to weed out the frivolous claims.
MR. THOMA: Let me remind us of what Barry brought up at the last meeting. I think there are those agencies that might see a petition like this and may actually -- I know it's an incredible minority -- but may seek to destroy or limit access to evidence. While I agree the permissive should be with regard to inventory -- and we talked about language about inventory, and I don't even care whether that's in here or not, because I think a judge can do that on their own without it being in the statute.
I think we need it here that when somebody is rendering a petition pursuant to this act, that at least until such time -- and we're saying only during the pendency of the proceeding, and the judge obviously has the ultimate authority to dismiss the proceeding summarily if it doesn't meet criteria in their mind. It could be a very short time, but during the time that the petition is pending and it has not been dismissed, I think it should be mandatory.
MR. SMITH: But it's comprehensive as well, and the proceeding might be pending in that sense for quite a long time, and evidence no longer needs to be preserved if the evidence which is going to be used in the proceeding has been tested. So --
MR. THOMA: If the proceeding is still pending I think you still need to preserve the evidence, even if it has been tested.
MR. GAHN: But, Jeff, how is a police department -- if this comes to a court, say an inmate sends a petition to the court and the court finds this is frivolous, this isn't going anywhere, how is the police agency who may destroy it ever even going to know about it? I think what Woody's saying is correct.
Do you know what it means to preserve this evidence wherever it may be, whether it's in the court, whether -- this is very, very -- I have tracked down evidence for Barry Scheck that has taken days and days. Sometimes it can be weeks. And what I'm saying is that I don't know how an agency would even know about it if this comes to the judge and the judge rules it, but as long as the judge at some point -- there might be something to this. Now I'm issuing the order. I want this stuff preserved.
But if everyone that comes in, a preservation order comes, it's sometimes -- if you're looking back six, seven, eight -- it's a monumental task.
JUDGE REINSTEIN: Well, when we changed in the first paragraph, Eliminating institute of proceeding to just File a petition requesting, I don't regard the filing of the petition itself meaning that a proceeding has been instituted. A proceeding isn't really instituted until the court has a hearing and effect appoints counsel and the like, because I think you can have summary dismissal of the petition without a proceeding being held.
MR. CLARKE: It's like petitions for habeas corpus.
MR. THOMA: Right. If there's no order to show cause after the petition, then --
MR. GAHN: A point comes when the judge -- I don't want to have to have been too premature that upon just something coming in --
MR. THOMA: I think that's what Ron is intending that there be two different things. This is not just the petition having been presented --
MR. GAHN: Right.
MR. THOMA: -- but the proceedings having been instituted by the judge receiving the petition. They are two different things.
MR. CLARKE: Also, in looking at the comments that's attached to the statute, it appears to put preservation in the discretionary range, looking at page 3, in the middle, Title procedures at the pre-testing phase. In the comments now, not the statute. It talks about, Orders may have to be issued requesting the prosecution to locate evidence that could be subjected to DNA testing, and to preserve any evidence that is found.
So it sounds like in your discussions that it was to be permissive as well.
JUDGE REINSTEIN: It was, and that's one of the things that came up in Arizona when we were introducing the statute is how we could incorporate the comments into the legislation, and the decision was that we couldn't but we would put it in the legislative history.
MR. CLARKE: Comments -- there it is, right in the middle, Orders may have to be issued.
JUDGE REINSTEIN: When we talked about it, we didn't talk in terms of a proceeding being instituted. When a court gets a request, when a prosecuting office gets a request, when a defense office gets a request there's a lot of things that are going to go on before that as far as searching for the evidence and the like. And that once a defendant or defense counsel or something like the innocence project then files a petition on behalf of the defendant and it appears that there are some reasonable grounds for ordering the testing, that that would be in effect instituting the proceeding, as opposed to all the other preliminary work.
So you wouldn't necessarily order the preservation of the evidence until such time as that search occurred.
MR. THOMA: And that's why we changed that first paragraph to begin with from institute a proceeding to file a petition.
JUDGE REINSTEIN: I know what you mean, Norm. It can be taken both ways too, just like we talked about yesterday.
JUSTICE ABRAHAMSON: Structure shows only two parts. The structure of the statute is requests for testing, and the second part is introducing the result in a proceeding, so --
MR. SANDERS: In the spirit of what we're doing, don't we want to provide for close postconviction release, especially if the evidence is trustworthy, so why is it a big deal if we say shall instead of may? I don't understand.

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