No. 17-1093

IN THE

Supreme Court of the United States_________

RODNEY REED,Petitioner,

v.

THE STATE OF TEXAS,Respondent.

_________

On Petition for a Writ of Certiorari to theCourt of Criminal Appeals of Texas

_________

BRIEF OF AMICI CURIAE13 RETIRED JUDGES

IN SUPPORT OF PETITIONER_________

JESSICA L. ELLSWORTH

Counsel of RecordSARAH C. MARBERG

JENNIFER A. FLEURY

SARAH BENOWICH

ANTONIO M. ELIAS

LAURA N. FERGUSON

HOGAN LOVELLS US LLP555 Thirteenth St., N.W.Washington, D.C. 20004(202) 637-5600jessica.ellsworth@hoganlovells.com

Counsel for Amici Curiae

TABLE OF CONTENTSPage

(i)

TABLE OF AUTHORITIES..............................iii

STATEMENT OF INTEREST..........................1

INTRODUCTION AND SUMMARY OFARGUMENT ................................................3

ARGUMENT .....................................................4

I. POST-CONVICTION DNATESTING STATUTES ARE BASEDON TRADITIONAL NOTIONS OFFAIRNESS AND ACCURACYINHERENT IN OUR JUSTICESYSTEM. ...............................................4

II. THE DECISION BELOWEXEMPLIFIES A FAILURE TOPROVIDE PROCEDURAL DUEPROCESS TO A DEFENDANT............9

A. Texas’s Post-Conviction DNATesting Statute RequiresShowing Chain Of Custody, NotNon-Contamination........................9

B. Fair Administration Of TheDeath Penalty RequiresSubjecting Defendants And TheState To The Same StandardsRegarding DNA Evidence. .............12

ii

C. Fair Administration of the DeathPenalty Precludes Denying Post-Conviction DNA Testing BasedOn Factors Within The State’sUnilateral Control. .........................16

III. STATE COURTS NEEDGUIDANCE AS TO WHATPROCEDURAL DUE PROCESSREQUIRES WITH RESPECT TOPOST-CONVICTION DNATESTING STATUTES. .........................20

CONCLUSION ..................................................25

iii

TABLE OF AUTHORITIESPage(s)

CASES:

Arizona v. Youngblood,488 U.S. 51 (1988) .............................................18

Coffin v. United States,156 U.S. 432 (1895) .............................................3

Coker v. Georgia,433 U.S. 584 (1977) .............................................8

Commonwaealth v. Lyons,51 N.E.3d 476 (Mass. App. Ct.2016) ..................................................................14

Cooper v. Oklahoma,517 U.S. 348 (1996) ...........................................23

Deck v. Missouri,544 U.S. 622 (2005) ...........................................24

District Attorney’s Office for ThirdJudicial District v. Osborne,557 U.S. 52 (2009) ..................................... passim

Dossett v. State,216 S.W.3d 7 (Tex. Crim. App.2006) ............................................................13, 14

Druery v. State,225 S.W.3d 491 (Tex. Crim. App.2007) ..................................................................13

Eddings v. Oklahoma,455 U.S. 104 (1982) ...........................................12

Ex Parte Elizondo,947 S.W.2d 202 (Tex. Crim. App.1996) ....................................................................8

Herrera v. Collins,506 U.S. 390 (1991) .............................................7

iv

TABLE OF AUTHORITIES—ContinuedPage(s)

Holmes v. Honorable Court of Appealsfor the Third Dist.,885 S.W.2d 389 (Tex. Crim. App.1994) ....................................................................8

In re Davis,130 S. Ct. 1 (2009) ...............................................7

In re Winship,397 U.S. 358 (1970) (Harlan, J.,concurring)...........................................................5

Lovitt v. Warden,585 S.E.2d 801 (Va. 2003).................................19

Medina v. California,505 U.S. 437 (1992) ...........................................23

Nelson v. Colorado,137 S. Ct. 1249 (2017) .......................................22

Newton v. City of New York,681 F. Supp. 2d 473 (S.D.N.Y.2010) ..................................................................18

Newton v. City of New York,779 F.3d 140 (2d Cir. 2015)...............................16

Patterson v. New York,432 U.S. 197 (1977) ...........................................23

People v. Noble,No. 1-11-3548, 2012 WL 6861355(Ill. App. Ct. Dec. 21, 2012)...............................14

People v. Perez,59 N.E.3d 891 (Ill. App. Ct. 2016)...............14, 15

People v. Travis,329 Ill. App. 3d 280 (2002)................................14

Schlup v. Delo,513 U.S. 298 (1995) .............................................4

State v. Pratt,842 N.W.2d 800 (Neb. 2014) .............................18

v

TABLE OF AUTHORITIES—ContinuedPage(s)

United States v. Fasano,577 F.3d 572 (5th Cir. 2009) .................15, 16, 18

STATUTES:

18 U.S.C. § 3600(a)(4).............................................15Act of Aug. 2, 1994, ch. 737, 1994 N.Y.

Laws 3709 (codified at N.Y. Crim.Proc. Law Ann. § 440.30(1-a)(West))..................................................................6

Act of May 9, 1997, Pub. Act. No. 90-141, 1997 Ill. Laws 2461 (codifiedat 725 Ill. Comp. Stats., ch. 725,§ 5/116-3(a) (West)) .............................................6

Alaska Stat. § 12.72.020(b)(2) ................................21Alaska Stat. § 12.72.010(4) ....................................21Ala. Code § 15-18-200(d).........................................20Ala. Code § 15-18-200(f)(1)(b).................................20Tex. Code Crim. Proc. Ann. art. 38.43 ...................17Tex. Code Crim. Proc. Ann. art.

38.43(b) ..............................................................17Tex. Code Crim. Proc. Ann. art.

38.43(c)(1) ..........................................................17Tex. Code Crim. Proc. Ann. art.

38.43(c)(2) ..........................................................17Tex. Code Crim. Proc. Ann. art.

38.43(d) ..............................................................19Tex. Code Crim. Proc. Ann. art.

38.43(i) .................................................................6Tex. Code Crim. Proc. Ann. art.

64.01(a-1) .............................................................9Tex. Code Crim. Proc. Ann. art.

64.01(b) ..........................................................9, 10

vi

TABLE OF AUTHORITIES—ContinuedPage(s)

Tex. Code Crim. Proc. Ann. art.64.03(a) ........................................................10, 11

Tex. Code Crim. Proc. Ann. art.64.03(a)(i)(A)(ii) .....................................11, 12, 13

Va. Code Ann. § 19.2-270.4:1(E) (2008) .................19

RULE:

Tex. R. Evid. 901(a) ................................................13

LEGISLATIVE MATERIAL:

House Research Org., Bill Analysis,Tex. S.B. 3 (Mar. 21, 2001) ...........................7, 11

OTHER AUTHORITIES:

2 William Blackstone, Commentaries .....................3Justin Brooks & Alexander Simpson,

Blood Sugar Sex Magik: A Reviewof Postconviction DNA TestingStatutes and LegislativeRecommendations, 59 Drake. L.Rev. 799 (2011) ..................................................19

Exonerate the Innocent, InnocenceProject ..................................................................6

Daryl E. Harris, By Any MeansNecessary: Evaluating theEffectiveness of Texas’ DNA TestingLaw in the Adjudication of Free-Standing Claims of ActualInnocence, 6 Scholar 121(2003)...........................8

vii

TABLE OF AUTHORITIES—ContinuedPage(s)

Cynthia E. Jones, Evidence Destroyed,Innocence Lost: The Preservation ofBiological Evidence UnderInnocence Protection Statutes, 42Am. Crim. L. Rev. 1239 (2005) ...........................6

Paige Kaneb, Innocence Presumed: ANew Analysis of Innocence As AConstitutional Claim, 50 Cal. W. L.Rev. 171 (2014) ....................................................7

John M. Leventhal, A Survey ofFederal and State Courts'Approaches to a ConstitutionalRight of Actual Innocence: Is Therea Need for a State ConstitutionalRight in New York in the Aftermathof CPL § 440.10(G-1)?, 76 Alb. L.Rev. 1453 (2013) ..................................................7

Kristen McIntyre, A Prisoner’s Rightto Access DNA Evidence to ProveHis Innocence: Post-OsborneOptions, 17 Tex. Wesleyan L. Rev.565 (2011) ............................................................5

JH Dingfelder Stone, Facing theUncomfortable Truth: The Illogic ofPost-Conviction DNA Testing forIndividuals Who Pleaded Guilty,45 U.S.F. L. Rev. 47 (2010) .................................6

Roland AH van Oorschot et al.,Forensic trace DNA: a review,Investigative Genetics (2010) .............................5

IN THE

Supreme Court of the United States_________

No. 17-1093_________

RODNEY REED,Petitioner,

v.

THE STATE OF TEXAS,Respondent.

_________

BRIEF OF AMICI CURIAE13 RETIRED JUDGES

IN SUPPORT OF PETITIONER_________

STATEMENT OF INTEREST1

Petitioner Rodney Reed seeks access to evidenceused to convict him in order to conduct DNA testingon that evidence—testing that was unavailable in1996 when the crime at issue occurred. This testingwill either show that Petitioner’s DNA is on thecrime scene evidence, consistent with the State’stheory of the crime, or that someone else’s DNA is onthat evidence, consistent with Petitioner’s claim that

1 No party or counsel for a party authored this brief in wholeor in part. No party, counsel for a party, or person other thanthe amicus curiae, its members or its counsel made a monetarycontribution intended to fund the preparation or submission ofthis brief. Counsel of record received timely notice of the intentto file this brief under Rule 37.2(a), and all parties have giventheir consent to the filing of this brief.

2

he was wrongly convicted. The only way to knowwhether the State or Petitioner is correct is to allowPetitioner to conduct the testing that he seeks toconduct at his own expense.

Texas has created a post-conviction DNA testingstatute that, in theory, would allow such testing tooccur. But the Texas trial court denied Petitioner’smotion for DNA testing of this evidence, and theTexas Court of Criminal Appeals upheld that denial.They did so by grafting new requirements onto theTexas statute that preclude a defendant fromobtaining DNA testing of evidence that, in the samecondition, the State could subject to DNA testing anduse to prosecute a defendant and even though theState unilaterally controls how the evidence ishandled.

Amici are former judges from around the countrywith a vested interest in ensuring the integrity ofjudicial proceedings.2 It is critically important to thefair administration of the death penalty and statepost-conviction DNA testing statutes that States berequired to provide basic procedural due process inimplementing these statutes. These statutes seek tofurther the core value of protection against wrongfulconvictions by allowing convicted persons access toevidence used to convict them so that that evidencecan be DNA tested. The Texas Court of CriminalAppeals’ decision guts that core value. This petitionpresents a question left open in District Attorney’sOffice for Third Judicial District v. Osborne, 557 U.S.52, 69 (2009)—when do the procedures employed by

2 The individual judges submitting this brief are listed inthe Addendum to the brief.

3

a State to limit a defendant’s access to DNA testingfail to comport with procedural due process.

The hundreds of exonerations based on DNAevidence provide convincing proof that innocentindividuals are sometimes convicted. Every Statenow has a post-conviction DNA testing statute, andit is imperative that those statutes be implementedin a fair way that ensures procedural due process.Amici feel compelled to file this brief because theybelieve strongly that the Court needs to provideguidance on what procedural due process means inthe context of post-conviction DNA testing statutes.

INTRODUCTIONAND SUMMARY OF ARGUMENT

Notions of fairness and truth have long served asthe foundations of our justice system. E.g., Coffin v.United States, 156 U.S. 432, 456 (1895) (holding thatit is “better that ten guilty persons escape than thatone innocent suffer” (quoting 2 William Blackstone,Commentaries *358)). DNA testing increases theaccuracy of convictions and ensures those principlescontinue to play a central role in our justice system.See Osborne, 557 U.S. at 62. To that end, all fiftystates have enacted post-conviction DNA testingstatutes intended to further truth and fairness incriminal convictions. These statutes allow thewrongfully convicted to prove their innocence in aninnocence claim or habeas petition.

State-created post-conviction DNA testing statutesmust comport with procedural due process, as thisCourt held in Osborne. Id. at 68–69. The case belowexemplifies post-conviction DNA testing proceduresthat are fundamentally unfair. The Texas Court ofCriminal Appeals imposed on Petitioner a chain of

4

custody requirement far more burdensome than therequirement that governs whether prosecutors canintroduce evidence at trial. And making mattersworse, Texas unilaterally controls the evidence—i.e.how it is stored and who has access to it—such thatit is the State’s actions that determine whether aconvicted person can meet the chain of custodyrequirement. In both of these respects, Texas hasrendered illusory procedural due process in theapplication of its DNA testing statute.

This Court declined to provide specific guidanceabout the procedural due process right surroundingpost-conviction DNA testing in Osborne, but suchguidance is sorely needed. This Court has providedjust this type of guidance in other cases, and itshould do so here as well. That would help ensurethat application of these statutes furthers theprinciples of truth and fairness underlying ourjustice system.

ARGUMENT

I. POST-CONVICTION DNA TESTINGSTATUTES ARE BASED ON TRADITIONALNOTIONS OF FAIRNESS AND ACCURACYINHERENT IN OUR JUSTICE SYSTEM.

Our Nation’s justice system is founded on alongstanding commitment to protecting innocentpeople’s liberty and only punishing those trulyculpable. As this Court has noted time and again,the law reflects our society’s long-held belief that it isparamount to ensure the innocent are not wrongfullyconvicted. See Schlup v. Delo, 513 U.S. 298, 320(1995) (“[C]oncern about the injustice that resultsfrom the conviction of an innocent person has longbeen at the core of our criminal justice system” and

5

is reflected in the “fundamental value determinationof our society that it is far worse to convict aninnocent man than to let a guilty man go free.”(quoting In re Winship, 397 U.S. 358, 372 (1970)(Harlan, J., concurring)). This deeply embeddedprinciple is more than a testament to the nation’svalues in justice; it is also a means to foster faith inthe judicial system.

Post-conviction DNA testing statutes, like Chapter64 of the Texas Code of Criminal Procedure, are amodern embodiment of this principle. Modern DNAtesting provides more accurate evidence than anyprior technique. Osborne, 557 U.S. at 62. Astechnology has advanced, the ability of DNA testingto exonerate the innocent has increasedexponentially. Today, for example, it is possible toobtain DNA even from fingerprints left at a crimescene and to test that DNA for comparisons. SeeRoland AH van Oorschot et al., Forensic trace DNA:a review, Investigative Genetics 2–3 (2010).3 As thisCourt has stated, “there is no technology comparableto DNA testing for matching tissues when suchevidence is at issue.” Osborne, 557 U.S. at 62; seealso Kristen McIntyre, A Prisoner’s Right to AccessDNA Evidence to Prove His Innocence: Post-OsborneOptions, 17 Tex. Wesleyan L. Rev. 565, 567–68(2011).

To date, 354 innocent people have been freed aswrongfully convicted as a result of DNA testing, and152 true perpetrators have been identified.

3 Available athttps://www.ncbi.nlm.nih.gov/pmc/articles/PMC3012025/pdf/2041-2223-1-14.pdf.

6

Exonerate the Innocent, Innocence Project. 4 Theavailability of DNA testing for convicted defendantsthus enhances the finality of convictions and thelegitimacy and accuracy of the criminal justicesystem as a whole. JH Dingfelder Stone, Facing theUncomfortable Truth: The Illogic of Post-ConvictionDNA Testing for Individuals Who Pleaded Guilty, 45U.S.F. L. Rev. 47, 53 (2010).

The first DNA testing statutes were enacted in1994 and 1997 by New York and Illinois,respectively. See Act of Aug. 2, 1994, ch. 737, 1994N.Y. Laws 3709 (codified at N.Y. Crim. Proc. LawAnn. § 440.30(1-a) (West)); Act of May 9, 1997, Pub.Act. No. 90-141, 1997 Ill. Laws 2461 (codified at 725Ill. Comp. Stats., ch. 725, § 5/116-3(a) (West)). Sincethen, every other state and the federal governmenthas enacted post-conviction DNA testing statutes toaddress this advancing technology. The environmentin which these statutes were enacted is telling.Texas politicians, for example, envisioned that DNAtesting would be an integral tool in the efficient andfair adjudication of criminal cases even before theimplementation of Texas’s post-conviction DNAtesting statute. Cynthia E. Jones, EvidenceDestroyed, Innocence Lost: The Preservation ofBiological Evidence Under Innocence ProtectionStatutes, 42 Am. Crim. L. Rev. 1239, 1239–40 (2005).The State must now DNA test evidence in capitalcases. Tex. Code Crim. Proc. Ann. art. 38.43(i).Chapter 64 was enacted to provide a definitive rightto access forensic DNA testing and to remedy

4 Available at https://www.innocenceproject.org/exonerate/(last visited Mar. 5, 2018).

7

existing inconsistencies in access to that tool. SeeHouse Research Org., Bill Analysis, Tex. S.B. 3 (Mar.21, 2001) (“[C]ourts tend to order testing only in therare case in which a prosecutor agrees with aninmate’s request.”).

Post-conviction DNA testing statutes are not endsin themselves, but a means by which convictedpersons may develop claims for actual innocence.Every state has developed procedures that are atleast ostensibly intended to allow incarceratedindividuals to pursue claims of actual innocence bypresenting newly discovered evidence. See John M.Leventhal, A Survey of Federal and State Courts'Approaches to a Constitutional Right of ActualInnocence: Is There a Need for a State ConstitutionalRight in New York in the Aftermath of CPL§ 440.10(G-1)?, 76 Alb. L. Rev. 1453, 1472–74 (2013).And courts have increasingly adopted theories ofhabeas relief that acknowledge that theincarceration of the innocent offends basic principlesof justice fundamental to our society.

This Court has recognized that actual innocenceclaims are also potentially cognizable in habeasthrough constitutional claims. See In re Davis, 557U.S. 952 (2009); Herrera v. Collins, 506 U.S. 390(1993). And for good reason: Punishing the innocent“makes no measurable contribution to the acceptablegoals of punishment.” Paige Kaneb, InnocencePresumed: A New Analysis of Innocence As AConstitutional Claim, 50 Cal. W. L. Rev. 171, 212(2014). Moreover, wrongful incarceration of theinnocent constitutes “purposeless and needlessimposition of pain and suffering” that is grossly outof proportion to the severity of the crime—or lackthereof. Coker v. Georgia, 433 U.S. 584, 592 (1977).

8

Courts in Texas and other states have followed thisCourt’s lead in acknowledging the availability ofhabeas relief to protect the factually innocent. See,e.g., Holmes v. Honorable Ct. of Appeals for the ThirdDist., 885 S.W.2d 389 (Tex. Crim. App. 1994); ExParte Elizondo, 947 S.W.2d 202 (Tex. Crim. App.1996). Today, courts have recognized habeas claimspremised on actual innocence theories based onnewly discovered evidence, jurisdictional defects, andfundamental trial defects such as constitutionallyineffective assistance of counsel. See Daryl E.Harris, By Any Means Necessary: Evaluating theEffectiveness of Texas’ DNA Testing Law in theAdjudication of Free-Standing Claims of ActualInnocence, 6 Scholar 121, 127-28 (2003).

Of course, an innocence claim and the post-conviction DNA testing that would support it gohand-in-hand. A convicted person cannotmeaningfully pursue an innocence claim withoutbeing able to access crime-scene evidence forpurposes of conducting the DNA testingcontemplated by post-conviction DNA testingstatutes. In Osborne, this Court held that state-created post-conviction DNA testing statutes must be“fundamentally []adequate to vindicate thesubstantive rights provided” but declined to specifywhat minimum due process requires in this context.557 U.S. at 69. Absent this Court’s guidance on thatissue, meaningful access to post-conviction DNAtesting often remains restricted. As explained below,the Texas Court of Criminal Appeals has interpretedChapter 64 to impose an enhanced chain-of-custodyrequirement, even though defendants have nocontrol over the chain of custody, and to precludedefendants from obtaining DNA testing, even though

9

prosecutors can use testing conducted under thesame facts to seek a conviction. It is time for thisCourt to provide further guidance, as it has in othercontexts, about what procedural due processrequires.

II. THE DECISION BELOW EXEMPLIFIES AFAILURE TO PROVIDE PROCEDURALDUE PROCESS TO A DEFENDANT.

The Texas Court of Criminal Appeals’ decisionprovides a stark example of why guidance from thisCourt is crucial: While the State’s post-convictionDNA testing statute theoretically provides Petitionerand other convicted persons the right to post-conviction DNA testing, in practical and technicalterms, convicted persons cannot meaningfully accessthat right because of a set of impossible-to-meetprerequisites, such as the chain-of-custody standard.Fair administration of the death penalty and theprinciples of fairness and truth underpinning ourjustice system require more.

A. Texas’s Post-Conviction DNA TestingStatute Requires Showing Chain OfCustody, Not Non-Contamination.

Chapter 64 provides for post-conviction DNAtesting. A convicted person may submit a motion tothe convicting court for DNA testing of evidence“that has a reasonable likelihood of containingbiological material,” Tex. Code Crim. Proc. Ann. art.64.01(a-1), if the evidence was “secured in relation tothe offense” for which the person was convicted andhas been “in the possession of the state during thetrial of the offense,” id. at 64.01(b). Because Chapter64 is not providing a do-over for DNA testing, thetesting must be for one of three reasons: (1) the

10

evidence was not previously subjected to DNAtesting; (2) the evidence can be tested using newertechniques with a reasonable likelihood of moreaccurate or probative results; or (3) the evidence waspreviously tested at a lab that has since been shutdown because an audit by the Texas Forensic ScienceCommission revealed that the lab had engaged in“faulty testing practices” during the time the priortest occurred. Id.

Once these conditions are met, a convicted personmay obtain DNA testing if the court finds that otherrequirements related to the condition, authenticity,and probativeness of the evidence are met. See id. at64.03(a). Specifically, Chapter 64 provides that theconvicting court may order DNA testing “only” if:

(1) the court finds that:

(A) the evidence:

(i) still exists and is ina condition making DNA testingpossible; and

(ii) has been subjectedto a chain of custody sufficientto establish that it has not beensubstituted, tampered with,replaced, or altered in anymaterial respect;

(B) there is a reasonablelikelihood that the evidencecontains biological materialsuitable for DNA testing; and

(C) identity was or is an issue inthe case; and

11

(2) the convicted person establishesby a preponderance of the evidencethat:

(A) the person would not havebeen convicted if exculpatoryresults had been obtainedthrough DNA testing; and

(B) the request for the proposedDNA testing is not made tounreasonably delay theexecution of sentence oradministration of justice.

Id.

The Texas legislature enacted Chapter 64 in 2001to increase post-conviction access to DNA testing andremedy inconsistencies in how courts treatedrequests for DNA testing. See House Research Org.,Bill Analysis, Tex. S.B. 3 (Mar. 21, 2001). WhileChapter 64 imposes a series of substantial hurdlesthat convicted persons must overcome before a Texascourt will order testing, this case shows that theCourt of Criminal Appeals has improperlyinterpreted Chapter 64 to make those requirementseven more demanding.

In the decision below, the court effectively wrote anew non-contamination requirement into Chapter64’s chain-of-custody requirement, Tex. Code Crim.Proc. Ann. Art. 64.03(a)(i)(A)(ii). The Court ofCriminal Appeals affirmed the trial judge’sconclusion that certain items Petitioner sought tohave tested had been “contaminated, tampered with,or altered.” App.-17a. According to the trial judge,this contamination occurred because the evidencehad been handled without gloves by “attorneys, court

12

personnel, and possibly the jurors,” and DNA fromthose individuals could have been transferred to theevidence as a result. App.-19a-20a. In addition, thevarious items of evidence had been comingled, suchthat there is “a good chance that [the items in theclerk’s boxes are] contaminated evidence.” App.-19a.The notion of “contamination” appears nowhere inthe statute. By grafting a new non-contaminationrequirement onto the statute, the Court of CriminalAppeals hampered the fair administration of thedeath penalty.

B. Fair Administration Of The DeathPenalty Requires Subjecting DefendantsAnd The State To The Same StandardsRegarding DNA Evidence.

This Court has long recognized that fairness in theadministration of the death penalty should be aguiding principle. See, e.g., Eddings v. Oklahoma,455 U.S. 104, 112 (1982) (“[C]apital punishment[must] be imposed fairly, and with reasonableconsistency, or not at all.”). DNA testing statuteswere enacted to allow convicted defendants access toDNA testing of evidence used to convict them.Nothing about the language of Article64.03(a)(1)(A)(ii) suggests that movants seeking totest evidence should face a higher burden than theState. Indeed, every other court that has looked atchain-of-custody requirements in DNA testingstatutes has found that both fundamental fairnessand the aims of the statute require a less restrictiveinterpretation of the chain-of-custody requirementthan that employed by the Court of CriminalAppeals.

13

Nevertheless, that court’s interpretation of Article64.03(a)(1)(A)(ii) to require no likelihood ofcontamination imposes a greater burden than thatfaced by prosecutors seeking to introduce evidence attrial. Texas’s standard for authentication of evidencethrough chain of custody only requires that a“proponent . . . produce evidence sufficient to supporta finding that the item is what the proponent claimsit is.” Tex. R. Evid. 901(a). This authenticitystandard for admitting DNA evidence to establishguilt is not defeated by possible or even actualcontamination. See id. Texas courts have appliedthis standard liberally for prosecutors. In Dossett v.State, 216 S.W.3d 7 (Tex. Crim. App. 2006), forexample, the court rejected a defendant’s challengethat the State could not establish chain of custody ofDNA evidence because the mere possibility ofcontamination or tampering was “insufficient toexclude the evidence” on chain-of-custody groundseven where a 20-year-old rape kit had grown fungus,mold, and bacteria and contained otherunidentifiable DNA. Id. at 20–22; see also Druery v.State, 225 S.W.3d 491, 503–04 (Tex. Crim. App.2007) (“[a]bsent evidence of tampering or otherfraud[,] . . . problems in the chain of custody do notaffect the admissibility of evidence” but rather go tothe weight of the evidence). This is undoubtedly alower chain-of-custody standard than what the Courtof Criminal Appeals imposed on convicted personsseeking DNA testing under Chapter 64.

Courts in other states have looked at chain-of-custody requirements containing language nearlyidentical to Article 64.03(a)(1)(A)(ii) and concludedthat there should not be a higher burden regardingchain of custody for defendants who want to DNA

14

test evidence than for prosecutors who introducedthe same type of evidence at trial. See, e.g., People v.Travis, 329 Ill. App. 3d 280, 285 (2002) (“It asks toomuch to require petitioning defendant in these casesto plead and prove proper chain of custody at theoutset, for the evidence at issue will undoubtedlyhave been within the safekeeping of the State, notthe defendant.”); People v. Noble, No. 1-11-3548, 2012WL 6861355, at *4 (Ill. App. Ct. Dec. 21, 2012) (“Anallegation that the evidence to be tested had been inthe continuous possession of the police or some otherState agency is facially sufficient regarding thechain-of-custody requirement, and a defendantcannot be expected to prove at the outset a properchain of custody because the evidence at issue willtypically have been within the State’s possession.”);Commonwealth v. Lyons, 51 N.E.3d 476, 484 (Mass.App. Ct. 2016) (allowing a petitioner to obtaindiscovery regarding the condition and chain ofcustody of evidence she sought tested because shemet her burden of showing evidence was potentiallymaterial).

Courts that have looked squarely at this questionhave found that interpretations of the chain-of-custody requirement that place unfair burdens onconvicted defendants, as compared to prosecutors,unfairly restrict convicted defendants’ rights toobtain DNA testing. In People v. Perez, the evidencethat the defendant wished to have tested “wasadmitted as evidence at trial and had thuspresumably remained in the possession and controlof the State.” 59 N.E.3d 891, 897 (Ill. App. Ct. 2016).The court thus concluded that “[t]o require defendantto provide any more specific information than this,information he would not be privy to, would render it

15

nearly impossible for a defendant to ever obtainforensic testing.” Id.

In United States v. Fasano, the defendant arguedon appeal that “the district court erred in findingthat he failed to meet the chain of custodyrequirements” of the federal Innocence ProtectionAct (IPA). 577 F.3d 572, 575 (5th Cir. 2009). TheIPA’s chain-of-custody provision required that theevidence be in the State’s possession and have been“subject to a chain of custody and retained underconditions sufficient to ensure that such evidence hasnot been substituted, contaminated, tampered with,replaced, or altered in any respect material to theproposed DNA testing.” 18 U.S.C. § 3600(a)(4). Thedistrict court in Fasano held that the chain-of-custody requirement for DNA testing purposes was“narrower than that demanded for the admission ofevidence at trial.” Fasano, 577 F.3d at 576. TheFifth Circuit rejected that interpretation:

We do not read the statute to imposea more exacting standard for ashowing of the chain of custody in aproceeding under the Innocence Actthan would be demanded in a trialitself. Indeed there is argument withsome purchase, that the trialstandard is itself too exacting for aninquiry into whether tests should beordered.

Id. The Fifth Circuit went on to discuss thecircumstances of the evidence in question, notingthat the lack of evidence of chain of custody shouldnot inure to the detriment of the convicted. TheFifth Circuit explained: “we cannot place upon the

16

defendant the burden of proving its history while itis held in government custody.” Id. at 577. Thelanguage of the Texas statute tracks the IPA’s chain-of-custody provision almost exactly, and as with thefederal statute, interpreting that provision in a waythat places a higher burden on the defendant thanthe State faced at trial “would create an entrancegate so difficult to enter as to frustrate the coreobjective of the statute.” Id.

If DNA testing statutes are going to havesustained, meaningful effects on our justice system,they have to be interpreted to further the aims of thestatutes and to allow defendants to effectively haveaccess to evidence used to convict them. Whendiscussing these statutes, courts have alsorepeatedly recognized the need for “a fundamentallyadequate system for permitting defendants to accessevidence.” Newton v. City of New York, 779 F.3d 140,152 (2d Cir. 2015). A fundamentally adequatesystem cannot prevent convicted defendants with nocontrol over evidence in a state’s possession fromtesting that evidence because of an unduly restrictivereading of the chain-of-custody requirement.

C. Fair Administration Of The DeathPenalty Precludes Denying Post-Conviction DNA Testing Based OnFactors Within The State’s UnilateralControl.

The process afforded convicted persons underChapter 64, as unilaterally modified by the Court ofCriminal Appeals, is also fundamentally unfairbecause the government has physical control overthe evidence and can effectively control whether thechain-of-custody requirement can be met. As part of

17

the investigation of a crime, the governmentgenerally collects evidence and maintains custody ofthat evidence. And in many states, the governmenthas an obligation to preserve evidence long after acrime has occurred or a conviction has been obtained.In Texas, the law enforcement agency, prosecutor’soffice, court, public hospital, or crime laboratorycharged with the collection storage, preservation,analysis, or retrieval of biological evidence mustretain and preserve biological evidence for at least 40years if the crime is unsolved or, in a capital case,until the defendant is executed, dies, or is releasedon parole. Tex. Code Crim. Proc. Ann. art. 38.43(b),(c)(1)-(2).

Thus, the government maintains physical custodyof the biological evidence and can control who hasaccess to it and where and how it is stored. Thestatute governing preservation of evidence inTexas—Chapter 38.43 of the Texas Code of CriminalProcedure—does not specify where this evidence is tobe stored, at what temperature, how it is preserved,or who has access to it. Indeed, Chapter 38.43provides no precise guidance about how to fulfill theState’s preservation obligation. As happened here,the preserved evidence could be handled by others orcomingled together while the government hasphysical custody of the evidence and the exclusiveability to dictate how it is treated.

The government’s actions alone will thereforedetermine whether the evidence a convicted personwants tested through Chapter 64’s procedures willmeet the chain of custody requirement. With thispower, Texas could effectively prevent any—or all—convicted persons from ever obtaining post-conviction DNA testing. The Fifth Circuit concluded,

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with respect to the chain-of-custody requirementsimposed on convicted persons and prosecutors, that“we cannot place upon the defendant the burden ofproving its history while it is held in governmentcustody.” Fasano, 577. F.3d at 577.

The same is true with respect to a judicially createdcontamination requirement that is entirely outsidethe convicted person’s control: It is fundamentallyunfair to require a perfect record for post-convictiontesting when the government retains custody of theevidence at issue. See also Newton v. City of NewYork, 681 F. Supp. 2d 473, 491 (S.D.N.Y. 2010)(movant need not show evidence of bad faith whenthe City misplaced evidence because “due processrights have been violated if attempts to locate theevidence are frustrated due to a poor or non-existentevidence management system”); State v. Pratt, 842N.W.2d 800, 811 (Neb. 2014) (“If we were to interpretthe physical integrity prong as demanding that thebiological evidence was secured in a way likely toavoid accidental contamination with extraneousDNA from epithelial cells, then the express purposesof the Act would be undermined.”).

What is more, there is no remedy for convictedpersons when evidence in Texas’s custody ismishandled. Chapter 38.43 does not provide anyremedy when the State’s actions render the evidencecontaminated. And this Court’s precedent in Arizonav. Youngblood, 488 U.S. 51 (1988), suggests thatlittle relief would be constitutionally required. Id. at56–57 (finding that failure to preserve evidence doesnot establish a substantive due process violationunless the defendant can show bad faith by thegovernment in destroying the evidence and theexculpatory value of the evidence was apparent

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before the evidence was destroyed). Finally, Chapter38.43 even allows Texas to destroy evidence as longas the State provides notice to the defendant and theconvicting court. Tex. Code Crim. Proc. Ann. art.38.43(d). The State has exclusive control over theevidence and nearly unchecked power to render itcontaminated.

Texas is not the only state with preservationrequirements that place the evidence exclusivelywithin the government’s control. For example,Virginia has created limited preservation duties andhas also explicitly eliminated any causes of actionthat could arise from improper evidence destruction.Va. Code Ann. § 19.2-270.4:1(E) (2008) (“Nothing inthis section shall create any cause of action fordamages against the Commonwealth, or any of itspolitical subdivisions or officers, employees or agentsof the Commonwealth or its political subdivisions.”);Lovitt v. Warden, 585 S.E.2d 801, 815–816 (Va. 2003)(holding that state did not act in bad faith and didnot violate due process when destroying DNAevidence and any failure of state to comply withstatutory evidence preservation requirement did notentitle petitioner to habeas corpus relief); seegenerally Justin Brooks & Alexander Simpson, BloodSugar Sex Magik: A Review of Postconviction DNATesting Statutes and Legislative Recommendations,59 Drake. L. Rev. 799, 852 n.362 (2011).

Alabama has adopted a different approach, but itsstatutory regime likewise provides an illusory rightto post-conviction DNA analysis. The convictedindividual, and his trial record, must show that the“evidence to be tested is in the possession of the stateor the court and has been subject to a chain ofcustody sufficient to establish that it has not been

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altered in any material respect.” Ala. Code § 15-18-200(f)(1)(b). Despite these requirements, thegovernment has no preservation duty until after itreceives a post-conviction request for DNA testing.Id. at § 15-18-200(d). Thus, convicted individualsseeking relief under this statute are put in animpossible position: They must prove the conditionof evidence the government has no duty to preserve.

This Court cautioned in Osborne that“constitutionaliz[ing] this area would short-circuitwhat looks to be a prompt and considered legislativeresponse” to the challenges DNA technology pose toour criminal justice systems. 557 U.S. at 73. Nearlynine years later, the Court of Criminal Appeals hasinterpreted Texas’ post-conviction DNA testingstatute in a way that is fundamentally unfair andcontrary to our long-held belief in the importance ofour judicial system’s truth-seeking function. Andthere is opportunity for similarly unfairinterpretations of these statutes in other states. Thejudges interpreting post-conviction DNA testingstatutes consequently need guidance from this Courtabout how to apply these statutes in ways thatcomport with these long-held principles andprocedural due process.

III.STATE COURTS NEED GUIDANCE AS TOWHAT PROCEDURAL DUE PROCESSREQUIRES WITH RESPECT TO POST-CONVICTION DNA TESTING STATUTES.

Proper interpretation of DNA testing statutesnecessitates some understanding of what minimumprocess is due under the Fourteenth Amendment.State courts administering state-created rights suchas Chapter 64 look to this Court for guidance on

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preserving procedural due process rights. SeeOsborne, 557 U.S. at 67–68. But this Court has notyet set clear guideposts for procedural due processrights surrounding post-conviction DNA testing.

In Osborne, the convicted defendant had a post-conviction right to present “newly discoveredevidence” to prove that he deserved a “vacation of[his] conviction or sentence in the interest of justice.”Id. at 68 (quoting Alaska Stat. §§ 12.72.020(b)(2),12.72.010(4)). The Court confirmed that post-conviction rights are subject to due-process review,and cautioned that “[f]ederal courts may upset aState’s postconviction relief procedures [when] theyare fundamentally inadequate to vindicate thesubstantive rights provided.” Id. at 69. Osborne setforth only two indicia of fundamentally inadequateprocedures—a lack of access to discovery and timebars. It left for another day what proceduresimposed on post-conviction rights would cross theline.

The Texas Court of Criminal Appeals has filled thevoid left by Osborne with a host of restrictions on theright to DNA testing that render the right virtuallyillusory for many convicted defendants. In so doing,the Court of Criminal Appeals has removed much ofthe force from a law passed to protect againstimprisonment of the innocent. The judicial gloss hasleft Texas’s post-conviction procedures“fundamentally inadequate to vindicate thesubstantive rights provided” by Chapter 64.

Courts in Texas and elsewhere need guidance fromthis Court, similar to what the Court has provided inother procedural due process contexts. AlthoughOsborne specified that post-conviction relief is

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subject to the procedural-due-process frameworkapplied to state criminal law and procedure, whichmeans that Texas courts may not administerChapter 64 in any unfair manner they can conjureup, this Court has long provided guidance to statecourts as to whether criminal laws and proceduresabide by federal constitutional due-processrequirements.

Just last year, this Court held that a stateproviding a refund of costs, fees, and restitution paidby defendants whose convictions have been reversedor vacated may not first require a showing ofinnocence by clear and convincing evidence. Nelsonv. Colorado, 137 S. Ct. 1249 (2017). Nelson providesa more comprehensive set of guideposts by whichstates can judge procedural due process compliance:whether foundational rights such as the presumptionof innocence are involved, the severity of the burdenon the party seeking to exercise its rights, and theadequacy of existing truth-seeking procedures. Id. at1255–58. This Court further noted fallacies inColorado’s position that would—against the law’sstated purpose—allow the State to keep an innocentperson’s money. Id. at 1257. Nelson offered the sortof clear-cut conclusion absent from Osborne: “Tocomport with due process, a State may not imposeanything more than minimal procedures on therefund of exactions dependent upon a convictionsubsequently invalidated.” Id. at 1258. A similarlydetailed and unambiguous holding regarding theprocedural due process inherent in a particular stateright is essential here.

Some criminal-procedure rights are so fundamentalthat a trial cannot occur without them, such as adefendant’s right to demonstrate incompetence.

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Medina v. California, 505 U.S. 437 (1992). Othersexist only if states choose to create them. SeeOsborne, 557 U.S. at 65. But in both scenarios,states have some leeway to define rights and accessto them, fettered by this Court’s procedural dueprocess guidelines. When a state purports to createrights for criminal defendants, the administration ofthose rights may not “offend[] some principle ofjustice so rooted in the traditions and conscience ofour people as to be ranked as fundamental,” butbeside references to centuries-old common law,Medina did not thoroughly explain what such anoffense might look like. 505 U.S. at 446 (quotingPatterson v. New York, 432 U.S. 197, 202 (1977)).

This Court has since fleshed out the Medina rule inthe context of a defendants’ right to showincompetence to stand trial. States may not imposea burden on the defendant to demonstrateincompetence by clear and convincing evidence that“has [no] roots in prior practice” when “a rulesignificantly more favorable to the defendant hashad a long and consistent application,” resulting in“a significant risk of an erroneous determination thatthe defendant is competent.” Cooper v. Oklahoma,517 U.S. 348, 356, 363 (1996).

States now need a similar demarcation ofprocedural due process guideposts in the context ofpost-conviction DNA testing, which since Osbornehas been made a right by statute in every state. Thenewness of this right creates a challenge: Unlike inMedina and Cooper, there are no centuries ofpractice to look to. That makes guidance from thisCourt all the more urgent.

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While Osborne, Cooper, and Medina all addressedthe constitutionality of state statutes on their face,this Court should still provide guidance even thoughthe Texas Court of Criminal Appeals—rather thanthe state legislature—has imposed restrictions onPetitioner’s access to his right. A decade ago, thisCourt held that a court’s mere routine of visiblyshackling a defendant during the penalty phase of acapital case violates the defendant’s procedural dueprocess rights. Deck v. Missouri, 544 U.S. 622(2005). Deck offers precisely what Petitioner hererequests: a general rule for what state courts may,or may not, do along with guidance for whendeviation from that rule is permissible. See id. at633 (While routine shackling is not permissible,“case specific” determinations “reflect[ing] . . . specialsecurity needs or escape risks” allow for somejudicial discretion.). In the same vein, the issue hereis not the Court of Criminal Appeals’misinterpretation of Chapter 64. Rather, it iswhether the Texas Court’s gloss on Chapter 64—which is the law of the land—comports with federalprocedural due process.

All fifty states have now enacted post-convictionDNA testing laws, and based on a review of thelitigation of those laws since, Osborne’s review ofAlaska’s procedures has proven insufficient guidancefor the States. The Texas Court of Criminal Appealshas thrown up roadblocks that eviscerate convictedpersons’ liberty interest in post-conviction relief andin so doing, deprive Petitioner and similarly situateddefendants of their due process rights. Thesubstantive right provided by Chapter 64—and bylaws in every state—is plain: the “forensic DNAtesting of evidence” for convicted persons. This

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Court should now pick up where Osborne left off andevaluate whether the harsh procedural restrictionsplaced on that right are fundamentally inadequate toallow meaningful access to it.

CONCLUSIONFor the foregoing reasons, the Court should grant

the petition for certiorari.

Respectfully submitted,JESSICA L. ELLSWORTH

Counsel of RecordSARAH C. MARBERG

JENNIFER A. FLEURY

SARAH BENOWICH

ANTONIO M. ELIAS

LAURA N. FERGUSON

HOGAN LOVELLS US LLP555 Thirteenth Street, N.W.Washington, D.C. 20004(202) 637-5600jessica.ellsworth@hoganlovells.com

MARCH 7, 2018

ADDENDUM

Add-1

ADDENDUM

AMICI CURIAE RETIRED JUDGES

Harry Lee AnsteadJustice, Florida Supreme Court (1994-2009, Chief

Justice 2002-2009); Judge, Florida 4th Circuit Courtof Appeals (1977-1994).

Charles F. BairdJudge, 299th Criminal District Court, Travis

County, Texas (2007-2011); Judge, Texas Court ofCriminal Appeals (1991-1999).

U. W. ClemonJudge, United States District Court for the

Northern District of Alabama (1980-2006, ChiefJudge 1999-2006).

Oliver E. Diaz, Jr.Justice, Mississippi Supreme Court (2000-2008);

Judge, Mississippi Court of Appeals (1994-2000).

W. Thomas Dillard

Magistrate Judge, United States District Court forthe Eastern District of Tennessee (1976-1978).

Norman S. FletcherJustice, Supreme Court of Georgia (1989-2005,

Chief Justice 2001-2005).

Add-2

Gerald KoganJustice, Florida Supreme Court (1987-1998, Chief

Justice 1996-1998); Judge, Eleventh Judicial Circuitof Florida (1980-1987).

Nan R. NolanMagistrate Judge, United States District Court for

the Northern District of Illinois (1998-2012).

Michol O’ConnorJustice, Texas First Court of Appeals (1989-2000).

Stephen M. OrlofskyJudge, United States District Court for the District

of New Jersey (1996-2003); Magistrate Judge, UnitedStates District Court for the District of New Jersey(1976-1980).

Sol WachtlerJudge, New York Court of Appeals (1972-1992);

Judge, New York State Supreme Court (1968-1972).

Warren D. WolfsonJustice, Illinois Court of Appeals (1994-2006);

Judge, Cook County Circuit Court, Illinois (1975-1994).

Add-3

Michael D. ZimmermanJustice, Utah Supreme Court (1984-2000, Chief

Justice 1994-1998).