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Ask Hammer O'Justice Your Own Question

Hammer O'Justice
Hammer O'Justice, Criminal Lawyer
Category: Criminal Law
Satisfied Customers: 4231
Experience:  10 years legal experience, primarily in criminal law
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in 1980, i was convicted of (2) robberies and (1) assault,

Customer Question

in 1980, i was convicted of (2) robberies and (1) assault, convicted and sentenced to 30 years.

a) collected from the cene of the crime was 1 baseball cap and a glove gthat witnesses said fell out of the perpetrators pocket. Witnesses stated that the perpetrator had one glove on and one in his pocket, while in flight the cap fell off of his head and the glove fell out of his pocket.

b) Filed September 1 2002, was a request for DNA testing, pursuant to V.A.M.S. 547.035,RSMo., on both the cap and the glove which was granted by the Court. The motion was subsequently denied December 2, 2003, by the court based upon the prosecution stating that they didn't know where the items where at.

c) in appealing the courts deciasions, it was asked that the prosecution be ordered to at least provide chain of custody cronology documentation, evidence logs, which was also denied.

QUESTION: What is current precedent law reqarding an issue such as this and the arbitrary denial of the DNA request by the court based upon the prosecutions just saying they didn't have the evidence? What if any can be filed to overcome any procedural bar, pursuant to Missouri law, regarding this issue?

Case No. 801.00669, Appeal No 43449 Eastern District Missouri, State V. Cook 637 s.w. 2d 110(Mo.App.1982); Cook v. State, 741 s.w.2d 678 (Mo.App.E.D.1987)
Submitted: 2 years ago.
Category: Criminal Law
Expert:  Hammer O'Justice replied 2 years ago.

The issue you are discussing is not so much an issue of precedent but of statutory law. Missouri has a statute regulating post-conviction requests for DNA testing.

The movant bears the burden of producing facts that meet the statutory requirements. And the standard for the court order is very high, meaning that the court does not have to order DNA testing unless a reasonable probability exists that the DNA evidence will disturb the conviction.

There have been a few cases that have addressed the law more in depth, and what the requirements of the court are:

Basically, a court is given wide discretion to determine if the moving party has met the requirements. The court is required to issue findings and conclusions that support its decision. The appellate court is limited to setting aside the court's ruling on the DNA issue if "the motion court's findings and conclusions are clearly erroneous," which is a high standard.

The other problem is that at this point, you are not eligible to have the issue considered again. You filed the request, and it was denied, and then you could have appealed it. At this point, the issue has been fully and finally litigated. It also seems that from your question, you are no longer in custody and have served your sentence. The DNA testing is only available for individuals who are currently incarcerated (see the law above). So because you have waited too long since your original petition to take the case to the highest court that you can, and because you are not eligible under state law for testing any more, there is nothing you can do about the retest unfortunately.

While DNA testing is not available to you, there are other routes you can take to try to address the conviction. A writ of error coram nobis is a petition that requests that an earlier conviction be set aside because of some fundamental error with the conviction (such as evidence not known at the time, which may include DNA testing). You can also try to obtain a pardon, which is official government forgiveness of the conviction:

Sorry I can't give you better news about the DNA testing issue, but it is too late due to the fact that you already filed the request and too much time has passed to request review of the denial.

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