Convicts who believe they were wrongfully convicted of murder or forcible rape may benefit from a $630,000 federal grant to test DNA.
But none of the money can be used in Idaho cases.
Why? Idaho Attorney General Lawrence Wasden will not sign a federally required form certifying that the state’s DNA testing and collection practices comply with federal requirements. He told Boise State University that those requirements and Idaho law do not mesh, and that he has no jurisdiction over Idaho law enforcement agencies.
The grant was originally intended for the nonprofit Idaho Innocence Project, which sought it. The project, which focuses on Idaho convictions, is led by criminal justice and biology professor Greg Hampikian.
Since Wasden will not sign the letter, the U.S. Department of Justice agreed to award the grant to Hampikian and Boise State, not to the project. That allows grant money to be used in other states.
Hampikian said he plans to use the grant to work on cases with similar innocence projects in Montana, Georgia, Illinois and other states whose officials agree to sign the form.
Hampikian was among many experts who worked to free convicted murderer Christopher Tapp from prison. Tapp was released in a March deal with prosecutors after serving 20 years in prison for the rape and murder of Angie Dodge. His release came 10 years before his first scheduled parole hearing. None of Tapp’s DNA was found at the scene and Tapp and forensic and criminal investigation experts say his confession to the crime was false and coerced.
Judge Alan Stephens reduced Tapp’s sentence to time served, vacated his rape conviction and ordered no probation.
No state law, no jurisdiction
The Idaho Innocence Project was one of just seven organizations in 2016 to receive federal grants under the Justice for All Act enacted in 2004. The grant program, the Kirk Bloodsworth Post-Conviction DNA Testing Program, is named for the the first death-row inmate in the U.S. exonerated by DNA evidence.
For the money to be used for DNA testing in any state, the state’s chief legal officer must sign a one-page form certifying that the state provides post-conviction DNA testing in murder and forcible rape cases and that it preserves biological evidence in those cases.
Wasden said limitations in Idaho law prevent it from meeting the requirements. For example, Idaho law requires preservation of DNA evidence only in sexual assault cases.
“There is no similar Idaho statute that applies to testing and preservation of biological cases in the cases of murder,” Wasden wrote in a Oct. 13, 2016, letter to Boise State explaining why he would not sign the form.
Furthermore, the form Wasden is asked to sign states, “I am aware that a false statement in this certification may be the subject of criminal prosecution.” But Wasden said he lacks jurisdiction over any police agencies in Idaho, including the Idaho State Police, and over the state crime lab. He said he cannot certify that all jurisdictions in Idaho take reasonable measures to collect and preserve biological evidence in murder and forcible rape cases.
Some states do have post-conviction DNA collection and preservation laws, and their attorneys general have jurisdiction over state crime labs. For example, in Montana, the attorney general heads the Department of Justice, which includes the state patrol and state crime lab.
Also, “Montana has a post-conviction DNA preservation statute,” said Toby Cook, an attorney with Montana Innocence Project.
Montana has already sent two DNA cases to Hampikian, one involving sex abuse and one involving the slaying of a bartender.
“There was no physical evidence connecting our clients to any of the crimes in either case,” Cook said. “Instead, their convictions were based on shaky eyewitness testimony and circumstantial evidence.”
40 in the U.S. exonerated
Kirk Bloodsworth was convicted and sentenced to death in 1985 in the rape and killing of a 9-year-old girl in Maryland.
In 1992, Bloodsworth learned about new DNA testing. Prosecutors agreed to DNA testing of the victim’s clothing and other evidence. The DNA did not match Bloodsworth’s. He was exonerated and released from prison in 1993. After his release, he became an advocate for DNA testing and for abolishing the death penalty.
Idaho filmmaker Gregory Bayne released a documentary in 2015 about the case, “Bloodsworth: An Innocent Man.”
Forty men and women have been exonerated since the Bloodsworth program started in 2004.
Idaho project still open
The Idaho Innocence Project is funded by grants and donations. Even though the new grant cannot be used on Idaho cases, Hampikian’s team will keep working on them.
“We are still open for business,” Hampikian said. “We are not turning away cases.”
The project typically handles about a half-dozen Idaho cases at a time.
An earlier grant that can be used on Idaho cases runs out in September. Hampikian thinks additional help may be on the way.
“The university is considering earmarking some discretionary funds for support of the Idaho Innocence Project for the next two years,” he said.