DNA - Do Not (bother) Asking?

Today the Oregon Court of Appeals held that a trial judge's denial of a post-conviction request for DNA testing is not an appealable ruling. In 1993 Stressa Johnson pleaded no contest to two counts of Murder and was sentenced to concurrent life sentences. In 2007 he filed a motion with the court seeking to test specific DNA evidence linking him to the murders

Oregon law provides that persons convicted of certain serious person-to-person felonies (Murder, Assault, Robbery etc.) may ask the trial court to test specific pieces of evidence that led to their conviction(s). These motions can be made years after the convictions have otherwise become final. The person making the request must swear that they are actually innocent of the crime(s) for which they have been sentenced and the requested testing must have some possibility of affecting the conviction before the motion may be granted. Assuming the DNA evidence still exists in a reliable form, the legal hurdles to having a judge consider such a motion are not high. However, getting a judge to actually grant the motion might prove more difficult.

In Mr. Johnson's case, he had pleaded "no contest" to the charges and thus could maintain his factual innocence. A plea of no contest is not like a plea of guilty. It is not an admission of guilt but rather an acknowledgment that the government has enough evidence which, if relied upon by a judge or jury, will support a conviction. Rather than risk a presumably harsher sentence after trial, a person may choose not to contest the charges, enter a plea of "no contest" and accept the terms of a plea agreement.

The judge who heard Mr. Johnson's motion for DNA testing ruled that the terms his plea agreement precluded such testing and denied the motion. This result, if accurate is and of itself not troubling. But the Court of Appeals never got to the merits of the question. Rather the Court of Appeals simply held that a ruling on a post-conviction DNA testing motion is just not appealable. Even assuming the correctness of the legal analysis, the ruling is troubling as it now insulates perhaps the last avenue for a wrongfully convicted person to raise their actual innocence in court from any meaningful judicial review.


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