Close-up Of Gavel On Wooden Desk justice court law

DNA testing is only available to defendants after their convictions if they can demonstrate it would likely prove their innocence, notwithstanding a procedural rule on new evidence, the Colorado Court of Appeals decided.

A Denver jury convicted Larry Allen Thompson of murder in 1994. Thompson confessed to four people, all of whom testified at his trial. The crime stemmed from a drug dispute, whereupon Thompson stabbed the victim repeatedly, rolled him up in a blanket, put the body in a vehicle and dumped him in an alley.

However, following the trial, DNA testing found the blood in the van did not match that of the victim, despite prosecutors' assertions to the contrary. Thompson’s attorney requested another trial, citing new evidence. A judge called the motion “too great a reach,” believing it unlikely that the revelation would have affected the verdict. A Court of Appeals panel at the time agreed, given multiple, compelling pieces of evidence implicating Thompson.

Subsequently, Thompson asked for DNA testing on the victim’s clothing, the blanket and other aspects of the crime scene. He pointed to the Colorado Rules of Criminal Procedure, which provide post-conviction relief if “there exists evidence of material facts… [that] could not have been known to or learned by the defendant or his attorney prior to the submission of the issues to the court or jury”.

A court again denied his motion, saying Thompson did not show how additional DNA evidence would prove his innocence, which is the legal requirement under Colorado statute to permit testing. An expert for the prosecution testified that the test would amount to a “‘needle’ of locating bodily fluid of [Thompson] in a ‘haystack’ of the clearly overwhelming amount of bodily fluids on the crime scene.” 

The appellate court on Thursday agreed that there was no clear indication that a jury would have acquitted Thompson had they had more DNA evidence, notwithstanding the procedural rule. The provision on which Thompson based his appeal “does not address or authorize the discovery of such evidence — DNA or otherwise,” wrote Judge Michael H. Berger for the three-member panel. The court again pointed to Thompson’s confessions and his motive as “strong evidence” of guilt. Just because he was allowed DNA testing in the van, Berger added, that did not mean he was entitled to further testing.

The Innocence Project, which works to exonerate convicted individuals through DNA evidence, reports that some state laws "present insurmountable hurdles to the individual seeking access, putting the burden on the wrongfully convicted person to effectively solve the crime." The organization supports a reasonable standard to establish innocence when petitioning for access to DNA post-conviction.

The court also rejected Thompson’s claim of ineffective counsel. The case is People v. Thompson.

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