Original intent 

Former lawmaker says law favors new trial.

click to enlarge ECHOLS: What does DNA law mean?
  • ECHOLS: What does DNA law mean?

Last week, Dennis Riordan, an attorney representing Damien Echols, one of the men now known as the West Memphis Three, argued before the Arkansas Supreme Court that his client deserved a new trial based on DNA and other evidence accumulated since Echols was sentenced to death in 1994. The state argued the opposite. At issue is each side's interpretation of the state's DNA statute and the "intent" behind the law that grants access to DNA testing, and possibly relief, for those wrongly convicted of crimes.

But the man who wrote that law, former state Sen. Kevin Smith, D-Helena, says the law's intent is clear: to allow a new trial or venue for post-conviction relief in cases just like this one.

"The intent was that we should exercise every option possible," Smith says. "If there's new technology and new evidence brought about from that new technology after the case then we should be taking every advantage of that in the legal system to make sure that we're doing the right thing before we take or destroy someone's life."

Smith modeled the state's DNA statute after similar bills passed in other states as a result of the work of the Innocence Project, an organization that assists prisoners who can be proven innocent through DNA testing. The bill was passed in 2001 and amended in 2005. It outlines the conditions under which someone may be granted a new trial.

Jeff Rosenzweig, a criminal defense lawyer from Little Rock who represents Jessie Misskelley, one of the West Memphis Three who was sentenced to life in prison, says the amendment didn't change the essence of the law.

"The amendment changes some procedures and put some deadlines in which weren't in the law before," he says.

DNA testing in the West Memphis Three case found no physical evidence tying any of the three to the crime scene. However, the evidence did suggest that a hair found in the rope used to tie up the victims belonged to Terry Hobbs, stepfather of one of the victims.

Assistant attorney general David Raupp argued before the Supreme Court for a narrow interpretation of state law that says new DNA evidence could be presented along with "all other evidence" pertaining to innocence, telling the justices that only evidence that conclusively proved innocence would warrant a new trial.

Raupp argued that since the testing did not conclusively prove Echols innocent, he should not be granted a new trial.

Smith, however, says that interpretation places too high a burden on defendants.

"That would be a ridiculous standard to me because it basically says that there has to be no doubt that the person is innocent before you can have a post-conviction hearing," Smith says.

When Special Justice Jeff Priebe asked Raupp what would be the harm of allowing a new trial with all evidence, Raupp answered, "The harm is in the criminal justice system's interest in finality."

Riordan responded by saying "the state has really proposed an Orwellian interpretation of the word 'all'." Referring again to the statute, Riordan said, "all means all." When asked whether that would include evidence potentially damaging to his client's case, such as Jessie Misskelley's confessions, Riordan answered that those, too, would have to be allowed. "Let that come in," he said. "Fine."

"Obviously, the fact that there was no DNA evidence of any of these three people at the scene is evidence that would have been very significant at the time this case was brought," Smith says. "Does it prove absolute innocence? Probably not, but it certainly casts significant doubt on the outcome of the case, which means that when you're talking about robbing someone of their life, the state should feel obligated – and the Supreme Court – to do whatever is necessary to make sure before we literally take someone's life, that every opportunity has been afforded that person."

Rosenzweig also believes the attorney general's interpretation of the DNA statute places too high a burden on those seeking a new trial.

"You look at all the evidence," he says. "The reason you look at all the evidence is this: In so many DNA cases you have a witness. This person raped me, this person shot me. It's the DNA that has exonerated them. Let's say you have the hypothetical woman who comes in and says, 'This person here at the defense table raped me and ejaculated in me and there's the DNA.' Then they find that it actually wasn't him. Under the interpretation the state is trying to push, they would come in say, 'Well, she identified him, that's all we need.' Well, that's just silly. That's why you consider all the evidence in context."

Rosenzweig helped Smith draft the DNA law in 2001, but says his work on the bill had nothing to do with his current client.

"Most states were finding a need for laws like this and the Arkansas Supreme Court was refusing to re-interpret any of the so-called common law procedures or the rules to accept this at all. So the legislature had to step in and say, 'If there's evidence out there that exonerates someone then we need to look at it.' "

The attorney general's office declined comment when asked about Smith's comments on the original intent of the law. A spokesperson for Attorney General Dustin McDaniel said the "state's pleadings and oral arguments stand for themselves."

Smith says he has no real interest in this case beyond seeing the intent of the law fulfilled.

"I haven't seen the HBO specials, I don't follow the case closely," he says. "We're talking about a man's life here. He's on death row. It should be what we're all taught in school: Everybody has the right to life, liberty and the pursuit of happiness and we shouldn't take that away from anyone if there's any chance that the person could be innocent."


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