The change of custody of DNA from the crime scene towards testing and archiving is an important part of a defendant's due process rights from pre trial towards post conviction relief after appeals. New technology as DNA itself is reopening closed cases in favor of the defendants. This has also resulted in proof of evidence mishandling and prosecutorial misconduct.

At issue are two exonerations from New York State. This is a fluid issue to date. Groups as the Innocence Project are part of what is being termed the exoneration movement. The concern here is the right to post conviction retrieval of evidence and how this evidence should be stored and handled by the state and it's agents.

The New York Police Department is currently undergoing accusations from two falsely accused rapists (McPhate 2011).

Alan Newton and Scott Fappiano who were convicted of rape and exonerated listened during the first week of December 2011 to NYPD Chief discuss with lawmakers that the agency is competent in handling crime scene evidence.

NYPD lost crime scene evidence. As a result Fappiano and Newton spent prison time for offenses they did not commit. DNA tests exonerated both and they were released.

The Innocence Project has helped to exonerate 184 prisoners. In New York State the group stated it also closed between 30 and 35 cases as crime scene evidence could not be retrieved from archives. Forty five year old Fappiano was told his evidence was lost in 2002. His case brought renewed attention to the legal injustice created by NYPD's evidence tracking system.

NYPD Assistant Chief Robert Gianelli described the department's evidence tracking system as "orderly" (McPhate 2011). Fappiano who was at the meeting lowered his forehead in shock and stated, "Oh, man." Fappiano was released four days previously from prison (McPhate 2011).

Gianelli was briefing assembly members last week who are investigating alleged mishandling of evidence. Newton and Fappiano cases have brought attention to the issue of what legal rights experts call NYPD's "black hole" of evidence storage (McPhate 2011).

Newton walked out of the briefing disgusted, "Police are gonna try to cover their tracks, and minimize their blame (McPhate 2011)".

Newton, 46, spent more than a decade waiting for evidence from his case to be relocated. He was convicted on faulty eyewitness testimony of rape and knifing a 25 year old woman. Newton requested that his DNA be compared to a semen sample obtained from the crime scene in 1994. DNA science was just beginning to become prominent. Three requests to locate evidence failed. A Bronx prosecutor made a request on his behalf last year for a search.

The evidence was found in it's original bin location. Newton was exonerated after serving 22 years in prison for a rape he did not commit.

Conversely Fappiano spent 21 years in prison. He was convicted of raping a Brooklyn police officer's wife. The Innocence Project contacted a private lab which had been contracted to test samples from the case. The Innocence project obtained a sample of cloth from the victim's sweatpants containing DNA. The evidence excluded Fappiano as the rapist.

The Innocence Project has made a case study of Fappiano. His 1985 conviction in 1985 of rape sodomy, burglary, and sexual abuse actually occurred in 1983. His conviction was based on eyewitness misidentification and resulted in a 20 to 50 year sentence (Innocence Project 2009).

The attack occurred on December 1, 1983, in Brooklyn, New York. A armed white male assailant awoke a New York Police Department officer and his wife. The attacker had the wife tie up her husband with a length of telephone wire. He then ordered the victim to remove her clothing. The perpetrator vaginally raped her and forced her to perform oral sex (Innocence Project 2009).

The wife was able to run and bang on a neighbor's door. The attacker then fled the scene.

The Identification

The victim described the attacker as a white male of Italian heritage. At the station house she was able to view photographs of individuals with these characteristics. She identified Scott Fappiano. The wife identified Fappiano in a live lineup with police officers serving as fillers. Her husband selected a filler in a live lineup the same day (Innocence Project 2009).

The Biological Evidence

The victim was taken to a hospital where a rape kit was assembled. The vaginal smears and swabs tested positive for semen. The victim's white jogging pants which she had wore after the assault also tested positive for semen. Police also collected crime scene evidence as a towel containing semen, cigarette butts and a beer bottle from the apartment (Innocence Project 2009).

The Office of the Chief Medical Examiner (OCME) performed serology on the towel and cigarettes. Fappiano was blood type O, and the husband was type A. These evidences contained type A antigens. The jogging pants and rape kit were not tested for trial due to technological limitations (Innocence Project 2009).

The Trial

Fappiano received two trials for the crimes. The jury did not reach a verdict in the 1984 trial. A second trial in 1985 resulted in convictions of rape, sodomy, burglary, and sexual abuse. Fappiano was sentenced to 20 to 50 years in prison (Innocence Project 2009).

Post Conviction

Fappiano was granted post conviction DNA testing of the sweatpants in 1989. The District Attorney provided the evidence to LifeCodes, a private DNA laboratory. Lifecodes stated spermatozoa tested on the sweatpants with no other results. The sweatpants and rape kit were returned to the District Attorney's Office (Innocence Project 2009).

The Innocence Project began representing Fappiano in 2003. At the Office of the District Attorney and NYPD storage facilities did not produce any evidence. In August 2005, however, Orchid Cellmark notified the Innocence Project that they had obtained materials from LifeCodes. Cellmark had received two tubes of DNA extract from the sweatpants which corresponded to Fappiano's case number. This evidence was supplied to the Office of the Chief Medical Examiner in New York. In 2006, the OCME began multiple rounds of DNA testing. There was DNA from one male and one female. Fappiano and the victim's husband were excluded from the male sample. The OCME confirmed that the victim as the contributor of the female portion establishing that the evidence originated from the same crime. Fappiano had proof that he was not the perpetrator (Innocence Project 2009).

On October 6, 2006, Scott Fappiano's convictions were vacated and he was released after serving 21 years in prison (Innocence Project 2009).

Systemic Problems in Archiving

Peter Neufeld, co director of the Innocence Project, stated to legislators that any redesigning of evidence tracking systems should not be the domain of individual police agencies. This activity should be standardized by the state's Commission on Forensic Science. A central database would harmonize the different protocols among the various departments statewide. A central database would permit universal access to older evidence and what Neufeld states as, "a goldmine of potential justice" (McPhate 2011).

Regarding the storing and retrieval of evidence Chief Gianelli defended the department's system of handwritten vouchers and clerical receipts. He admitted evidence volumes for New York are large and items get misplaced. Post conviction evidence in New York City is stored at the Pearson Place Warehouse facility in Queens (McPhate 2011).

As illustrated the rights and prosecutorial strategy for storing DNA and it's use for appellative review is problematic and reflects disturbing set convictions.

The Federal Government and California

Earlier then Attorney General Janet Reno in September of 1999 published recommendations on Post Conviction DNA.

A petitioner who is proceeding pursuant to newly discovered evidence must motion and meet the standard in the governing statute. This standard differs from jurisdiction to jurisdiction. In New York, the newly discovered evidence shall be "of such a character as to create a probability that had such evidence been received at trial the verdict would have been more favorable to the defendant[.]" NY Crim. Pro. § 440.10 (1)(g) (McKinney 1994) (Reno 1999).

If the Court is proceeding via Brady motions some showing by the petitioner that the evidence introduced at trial, DNA testing could somehow have affected the outcome (Reno 1999).

In California biological material must be retained while parties to the crime are incarcerated. If the material is to be destroyed the parties must be notified and given an opportunity to move the court against such (Westlaw):

Miscellaneous Proceedings

Chapter 13. Disposition of Evidence in Criminal Cases

§ 1417.9. Retention of biological material

(a) Notwithstanding any other provision of law and subject to subdivision (b), the appropriate governmental entity's hall retain all biological material that is secured in connection with a criminal case for the period of time that any person remains incarcerated in connection with that case. The governmental entity shall have the discretion to determine how the evidence is retained pursuant to this section, provided that the evidence is retained in a condition suitable for deoxyribonucleic acid (DNA) testing.

In New York evidence from closed cases can only be reviewed for DNA testing with the request of the prosecutor or by judicial order. Police and prosecutors argue that frivolous requests for DNA tests will burden the system.

Neufeld also argued for legislators to require the preservation of old evidence. In some exoneration cases, law enforcement have destroyed biological samples that were needed for DNA testing.

Preserving DNA and biological evidence is a core of a movement in which only tiny samples are needed. New York is one 21 states that have failed to follow suit. Cynthia Jones an American University Law Professor states that the criminal justice system is slow to adopt the exoneration movement due to negative perceptions of reliability of prosecutors and officers (McPhate 2011).

In direct nexus to the cases of Fappiano and Newton the New York State Bar Association has a Task Force on Wrongful Convictions. Below are some of their recommendation (New York State Bar):

Forensic Evidence

1. Ensure Proper Preservation, Cataloguing and Retention of All Forensic Evidence

a. Enact legislation to expand the jurisdiction enabling the Forensic Science Commission to have authority to promulgate mandatory standards for the preservation, cataloguing and retention of all forensic evidence obtained at crime scenes or other relevant locations to the commission of a crime;

b. Enact legislation to require all existing forensic evidence as biological and fingerprint evidence, which exists in local or state warehouses and or storage facilities, be identified using state of the art technology, as bar coding;

c. Enact legislation to requiring all forensic evidence in connection with a crime be maintained for a minimum of ten years after an individual convicted of a crime has been released from any post incarceration period of supervision; where no person has been accused of the crime, all forensic evidence shall be maintained until the expiration of statutes of limitations for the crime.

2. Expand Jurisdiction of the Forensic Science Commission to Provide Independent Oversight of Forensic Disciplines

3. Establish Authority for Judges to Order Comparison of Crime Scene Evidence to Forensic Databases Upon Request of an Accused or Convicted Person

4. Permit Wrongfully Convicted Persons To Prove Their Innocence, Whether the Conviction Regardless of a Trial Verdict or a Guilty Plea

5. Promulgate Standards and Best Practices To All Law Enforcement Agencies for Processing of Crime Scene Collection, Processing, Testing and Storage of Forensic Evidence

6. Establish Forensic Science Training for Prosecutors, Defense Lawyers and Judges

7. Create a Permanent Independent Commission to Reduce the Frequency of Wrongful Convictions

The Innocence Project recommends these protocols (Innocence Project).

Preserved evidence helps solve closed cases and exonerate innocent persons. DNA can provide the strongest evidence of innocence or guilt in review of a case (Innocence Project).

All of the nation's 275 DNA exonerations have been possible because the biological evidence was available to test. Had the evidence been destroyed tainted, contaminated, or otherwise corrupted, the exoneration of these individuals may have failed (Innocence Project).

Do all states require the preservation of crime scene evidence (Innocence Project)?

Approximately half of the states have created legislation that compels the automatic preservation of evidence upon conviction of a defendant.

Below are some Key Facts (Innocence Project):

The preservation of evidence are usually embedded in DNA testing access statutes.

In 2004, Congress passed the Justice for All Act (H.R. 5107), which creates financial incentives for states to preserve evidence and this withholds monies for states that do not preserve evidence.

The Innocence Project argues these shortcomings (Innocence Project):

Failing to sanction parties responsible for the disposal or corruption of evidence by states does adequately punish or deter those destroy evidence.

The groups also recommends (Innocence Project):

Cold Case retention of crime scene evidence.

The implications of the willful destruction of evidence is precarious. If the case is closed should the sentence be vacated? The issue is that if the police or agents maliciously destroy evidence should such be held exculpatory or should a person be freed because of a due process violation?

The professionalization of evidence collection and archiving is at a fore. The power of DNA and it's fragility should be in the care of highly qualified persons and legal professionals.