Kentucky law says in death penalty cases, a judge must order a DNA test "if a reasonable probability exists" the defendant would not have been prosecuted if DNA tests were available. This is often applied after conviction when material for such tests suddenly becomes available..and the state pays for the testing.
But, what about the same situation when someone has been convicted, sentenced to life in prison, and DNA material turns up. Here, Kentucky opposes such testing, even if the defendant pays for the tests.
That doesn't sound fair.
As the Courier-Journal reports, 2 men sentenced to life are asking the Kentucky Supreme Court to permit DNA tests that might clear them. At issue are 2 strands of hair found in the victim's hand. Twenty years ago, DNA tests were not available. Tests available then showed the hairs belong neither to the victim nor to the two men charged...but they were convicted and sentenced to life.
The Attorney-General will argue before the high court that even if new DNA tests rule the two men out, that doesn't mean a third person, unknown, may have been involved rather than exonerating the two men.
Kentucky has the nation's most restrictive laws on post-conviction DNA testing..and General Conway will argue our law prohibits such testing.
He is wrong.
Perhaps not legally, I'll leave that to the justices, but certainly on any basis of fairness and justice---you remember Justice--what our courts are supposed to be about. The majority of recent cases where DNA has cleared people in other states have been about life terms, not death cases. Death is the worse tragedy, but isn't life in prison bad enough, if you're innocent..and, especially if the defendant can pay for the tests shouldn't they get their day in court?
The Attorney-General, on behalf of you and me, because this is now our law, says "No." I hope our high court will find a way around this, and let the new tests go forward. Our law needs to be made less restrictive, and while the Attorney-General, under his oath, may have to uphold it, I'd like to see him argue before the legislature for changes. Recent experiences in many states give him all the precedents he needs.
We may also save a lot of money by releasing two innocent people..the yearly cost of jailing someone is astoundingly high. But much more than that, Kentucky may do justice.
I'm just sayin'...