Albright, Justice, dissenting:
I dissent because, having improvidently decided the instant case on the narrow
ground of res judicata, the majority has proceeded to unnecessarily make law. If followed,
that unnecessary decisional law would improperly limit the power of this Court to address
post-conviction criminal cases in which presently known or hereafter developed DNA
technology might support reversal of unjust convictions.
The strong presumption that verdicts are correct, one of the underpinnings of restrictions on postconviction relief, has been weakened by the growing number of convictions that have been vacated because of exclusionary DNA results. National Commission on the Future of DNA Evidence, National Institute of Justice, Postconviction DNA Testing: Recommendation for Handling Requests, www.ncjrs.org/txtfiles1/nij/177626.txt (1999). (See footnote 2) It is axiomatic that exclusionary DNA results will lead to challenges to the finality of related convictions and judgments. The majority's blind adherence to conventional notions of finality fails to acknowledge the unique potential DNA testing currently and potentially has for determining the ultimate question of guilt or innocence, fails to credit the nationwide reality that such tests _ as far as the technology has thus far progressed _ have corrected miscarriages of justice in a substantial number of cases, and fails to appreciate that a request for such testing is a mere first step. A request for DNA testing is, by its nature, only a preliminary step to determining whether there is even a basis to petition for post-conviction relief. In the instant case, the request is even less a cause of concern because it does not involve the extraction of a DNA sample from anyone but the Petitioner or from any object other than items supposedly in the possession of the State or its agencies. At the time Petitioner was convicted, DNA testing was not available (See footnote 3) as a means of supporting or refuting Petitioner's contention that no crime had been committed. Petitioner and those similarly situated should not be deprived the benefit of the testing due to ill-suited orthodox notions of finality. As Justice Brennan stated in Sanders v. United States, 373 U.S. 1 (1963), the [c]onventional notions of finality of litigation have no place where life or liberty is at stake . . . . Id. at 8. To reiterate, the testing itself simply determines what further action may be warranted. Thus, the consequence of granting DNA testing requests in relevant cases is aimed at identification of individuals who have been wrongly convicted so that justice results. In those circumstances ought not justice prevail over finality?
If it be the intent of the majority to completely bar persons unjustly convicted
of crimes from ever utilizing DNA technology to regain their good names and reputations
in the community simply because those persons have been released from prison or had the
better fortune of undergoing probation, parole, home incarceration or community service for
crimes of which they are innocent, I submit that intent must fail, the majority opinion in this
case notwithstanding. There can be no sound reason for making a distinction on the basis
of how a sentence is served or whether it has been fully served, since it hardly promotes the
overriding aim of our criminal justice system: that guilt shall not escape or innocence
suffer. Berger v. United States, 295 U.S. 78, 88 (1935).
Despite these deficiencies, I see absolutely no logical reason or other justification to support the majority's position that individuals initially applying for DNA testing bear the burden of proving factors which are beyond their knowledge and outside their possession. It is most unreasonable at this preliminary stage to expect persons who are least likely, especially if they are incarcerated or similarly incapacitated, to have access to the information to prove that the material to be tested exists and is available for testing, is in a condition which would permit DNA testing, and has a chain of custody which demonstrates the material has not been altered or otherwise tainted. Proof of these factors may at times be helpful in processing the request, but it seems more likely that some of this desired information will actually emerge from the testing process itself. To the extent such information is needed at this initial stage, a practical suggestion made by one authority (See footnote 8) is that it be derived from the cooperative efforts of the state and the convicted person's counsel. This seems to be an even-handed and fair approach at the application stage and would do nothing to disturb the established burden of proof if an attack on the judgment of conviction is later mounted by a convicted person. The convicted person making the attack would then bear the burden of proving the elements necessary to support the requested relief.
Moreover, the neat little rule that the petitioner's theory supporting a request for post-conviction DNA testing may not be inconsistent with the trial defenses is in many factual circumstances quite reasonable and appropriate. I see no reason, however, to exclude the possibility that a factual situation might arise _ beyond the imagination of the majority to conceive _ where that rule, set in stone, would work a horrible injustice. The facts of the case before us not requiring a ruling on the point, I dissent from the enunciation of that rule by reason of lack of knowledge of what might arise and by reason of awe for the unknown future. This Justice does not want our courts put in a box of unknown possibilities.
All of that being said, it seems to me indispensable that one applying to this
Court, or under the majority's preferred route, to a circuit court, for DNA testing in a post-
conviction situation must present a convincing and practical scenario under which, if the
requested tests were to be performed and the results found favorable to the applicant, a
legally sound motion might justify disturbing the finality of the conviction. For instance,
from the showings made in this case, it seems eminently fair to insist that the Petitioner
should be required to demonstrate that favorable test results, if available, would be, in the
words of the majority opinion, outcome determinative. I would suggest that without such
a showing or very good cause for the absence of such a showing, it is highly unlikely that any
court would be persuaded to order such tests.
Before a petitioner is entitled to post-conviction DNA testing the petitioner must file a motion for post-conviction DNA testing in the circuit court that entered the judgment of conviction that the petitioner challenges. In the motion the petitioner must allege, and subsequently prove by a preponderance of the evidence, that: 1) the petitioner is incarcerated; 2) the material upon which the petitioner seeks testing exists and is available; 3) the material to be tested is in a condition that would permit DNA [testing]; 4) a sufficient chain of custody of the material to be tested exists to establish such material has not been substituted, tampered with, replaced, or altered in any material respect; 5) identity was a significant issue at trial; and 5) a DNA test result excluding the petitioner as being the genetic donator of the tested material would be outcome determinative in proving the petitioner not guilty of the offense(s) for which the petitioner was convicted. Finally, the petitioner's theory supporting the request for post-conviction DNA testing may not be inconsistent with the trial defenses.