June 26, 2013
Evidence Preservation

by Justice Paul E. Pfeifer

In September 1997, Clarence D. Roberts was found guilty of aggravated murder and aggravated robbery in connection with the death of Leo Stinnett. Following the jury’s recommendation, the trial court sentenced Roberts to life imprisonment without parole.

In 2010, Roberts filed a motion in the trial court seeking the preservation of the physical evidence and a certified list of all evidence from his case so that he could retain an expert to conduct “touch DNA” analysis. Roberts argued that because the prosecution’s theory had relied on the testimony of a John LaFollet, he wanted an expert to perform DNA analysis on the evidence to determine whether LaFollet’s DNA could be found.

But the trial court denied his motion, after which Roberts turned to the court of appeals. He argued that the trial court erred in failing to order the preservation and listing of evidence.

The law Roberts used as the basis for his argument – we’ll call it the “Evidence Preservation Law” – became effective on July 6, 2010. The law requires the government to retain and preserve evidence likely to contain biological material “that was in possession of any governmental evidence-retention entity during the investigation and prosecution of a criminal case ...”

The court of appeals overruled Roberts’s argument because the Evidence Preservation Law became effective in July 2010. Since Roberts was convicted in 1997, the court of appeals determined that the law would have to be applied retroactively if it were to apply to him. A law is retroactive only if it contains an express, clear provision for retroactive application – and the court of appeals determined that this law contained no such provision.

The court of appeals rejected Roberts’s argument that the use of the verb “was” in the language of the law implied retroactive application. The court stated that because the law set forth requirements involving the preservation of evidence after conviction, the word “was” referred to evidence in possession of the government during the investigation and prosecution of a criminal case after July 2010.

After the court of appeals issued its judgment, Roberts’s case came before us – the Ohio Supreme Court.

The Evidence Preservation Law was enacted as a product of the “Innocence Movement,” begun by lawyers, social scientists, and others in the mid-1990s who have “worked to free innocent prisoners and rectify perceived causes of miscarriages of justice in the United States.”

One mission of the movement was to create innocence projects at law schools “to investigate claims of wrongful convictions.” The innocence projects often rely on modern technology and scientific advancements, especially one of the best tools modern science has provided the criminal-justice system – DNA.

The innocence projects also highlight the need for the preservation and storage of DNA and biological evidence as a way to exonerate wrongfully convicted individuals.

As a result of the movement, by 2000 there were more than 50 innocence projects throughout the country. By 2003, over 140 wrongfully convicted individuals nationwide had been exonerated by reexamining DNA evidence.

That same year the Ohio legislature passed an act to “establish a mechanism and procedures for the DNA testing of certain inmates serving a prison term for a felony or under a sentence of death.”

Despite these changes, “there were no statewide procedures for preserving or storing biological evidence, resulting in inconsistent storage techniques by governmental entities throughout the state. The lack of consistency in preserving and storing evidence allowed evidence to be compromised, lost, or prematurely destroyed.”

The legislature sought to rectify the inconsistencies for preserving and storing biological evidence by establishing a task force charged with creating a uniform system and standards. And that eventually led to the Evidence Preservation Law.

The question for us, then, was this: is the Evidence Preservation Law meant to be retroactive?

Roberts argued that the plain language of the law indicates the legislature’s intent that the law applies to evidence in the possession of governmental entities at the time the law was enacted. His primary support for this argument is that the law requires the newly created preservation-of-biological-evidence task force to recommend practices for the cataloging and accessibility of preserved biological evidence already in the possession of governmental evidence-retention entities.

The law also states that the requirement to secure biological evidence applies to evidence that “was in the possession” of a governmental evidence-retention entity during the investigation. Roberts argued that when a defendant, such as himself, requests that a government entity “that possesses biological evidence” prepare an inventory of that evidence, the government agency shall do so.

Thus, Roberts argued, the law repeatedly states that governmental evidence-retention entities must retain biological evidence that was already in their possession at the time the law was enacted.

We agreed with Roberts that the language of the law is clear. The legislature repeatedly used the phrase “was in the possession” or “possesses,” which shows an unequivocal intent that the duty to preserve and catalog biological evidence applies to evidence that was in the government’s possession at the time of the law’s enactment.

The legislature didn’t specify that the law was to apply only to evidence that would come into the possession of the governmental entities after its enactment.

The state argued that because Roberts was convicted in 1997, the law is not applicable to evidence collected in his case unless applied retroactively. But Roberts countered that the obligation to preserve and catalog evidence applies to biological evidence collected after the law was enacted as well as to biological evidence in the possession of law-enforcement agencies as of July 2010. We agreed.

We therefore concluded – by a seven-to-zero vote – that the obligation in the law to preserve and catalog biological evidence imposed upon certain governmental entities applies to evidence in the possession of those entities at the time of the law’s effective date.

We thus reversed the judgment of the court of appeals and sent the case back to the trial court to order the preservation and cataloguing of the physical evidence from Roberts’s case.

EDITOR'S NOTE: The case referred to is State v. Roberts, 134 Ohio St.3d 459, 2012-Ohio-5684. Case No. 2011-1882. Decided December 6, 2012. Majority opinion written by Chief Justice Maureen O'Connor.