State DNA law divides prosecutors, defenders

Prosecutors and the state's chief public defender disagree over how to enforce a new state law that stipulates how long police must keep evidence that might contain DNA.

"The law is not written as well as it should be, but we're 100 percent behind the goal of the law," said Mark Hurlbert, 5th Judicial District Attorney and president of the Colorado District Attorneys Council.

That goal, considering that DNA "allows the criminal justice system to identify the perpetrator of a crime with a level of certainty not previously possible," is to preserve evidence for defendants and prosecutors, the law states.

But Hurlbert said the new law is somewhat vague about how to accomplish that goal and with what kind of crimes.

"We're talking about the lower-level cases here. That's the ones we're really concerned about," Hurlbert said. "If we keep every check in a check fraud case because it might have DNA on it, police will have no room for evidence in a murder or more serious case."

The state's head public defender, Doug Wilson, meanwhile, is critical of what he called state prosecutors' attempts to sidestep the law by forcing defendants to allow police to get rid of evidence before entering into plea agreements.

District attorneys are implementing the law in different ways. In the 4th Judicial District, which includes El Paso and Teller counties, DNA destruction waivers have been coming with every plea deal. In some districts they are not, Hurlbert said.

"It's as if they said, ‘We don't like this law, and we're not going to follow it,'" Wilson said. "They don't just get to pick and choose what laws to follow, and that's what some of them have done.

"Part of the intention of the bill was to ensure some sort of consistent destruction process across the state. But to make a defendant agree to destroy that evidence in exchange for a plea agreement is inappropriate."

If defendants don't sign the agreement because of the evidence, the whole case stops. That could cause a backlog in the courts, Wilson said.

"Negotiations should be based on the merits of the case, not based on whether they can destroy evidence," Wilson said.

Wilson suggested to the district attorneys a new form that would include a log of all the evidence and allow defendants to narrowly tailor which evidence to keep. The form being used now allows the defendant only to agree to the destruction of all evidence.

"My hope is that the CDAC and the 22 elected district attorneys can all agree to use this form and we can cut down on some of the issues we have," Wilson said.

"We're revamping the paperwork now," Hurlbert said. "It was never our goal" to get around the law.

The law, HB 1397, states "all reasonable and relevant evidence that may contain DNA" should be kept by the law enforcement agency that collects it. If police want to get rid of such evidence, they must notify prosecutors. Prosecutors must then notify defendants or their attorneys, who then have 90 days to object. It applies to "all evidence collected" after Gov. Bill Ritter signed the bill into law in May.

If there's a dispute between prosecutors and defendants over DNA evidence, the issue lands before a judge, the law states.

Evidence in all murder cases or sex crimes where a possible life sentence is imposed must be kept until the defendant dies, the law states.

Nowhere in the law does it state defendants can waive all objections to the destruction of DNA evidence in order to enter plea agreements.

But police agencies have "limited resources and space" to store evidence, said 17th Judicial District Attorney Don Quick, who was on the task force that helped draft HB 1397. So the forms now given to defendants as part of plea agreements are a way to get rid of evidence where identity is not an issue and where the defendant agrees it doesn't need to be kept.

Quick said a group of "stakeholders" from around the state - including prosecutors, judges, defense attorneys and police officials - met Aug. 20 to try and hammer out how the law will be applied uniformly.

"There are a lot of common goals," Quick said.

Colorado Springs police are playing it safe and keeping everything, said spokesman Lt. David Whitlock. Considering a judge could punish an evidence technician for destroying evidence improperly, according to the law, it's understandable police are cautious.

"We have no clear understanding how the law affects us," Whitlock said. "We're still waiting for a final interpretation of what to keep and what we don't have to. Meanwhile, we're going to err on the side of keeping everything."

Colorado Springs police are sensitive to evidence storage issues.

In 2005, about 134,911 pieces of evidence were lost or destroyed, 20,859 pieces in 9,133 cases improperly. The evidence room supervisor was fired after he pushed technicians to purge the evidence because of a space crunch. Former Police Chief Lou Velez retired in July 2006, in part because of that blunder.

Much of the impetus for the law came from the Tim Masters murder case. The Fort Collins man was imprisoned for more than nine years before DNA evidence cleared him in 2008.

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Contact the writer: dennis.huspeni@gazette.com or 636-0110.