Change in Oregon’s DNA law could free wrongly convicted defendants, legislators told

SALEM — After 18 years in prison, Gerard Richardson walked free in 2013. He had been found wrongfully convicted of murder.

Richardson was serving time in New Jersey, but experts say if an Oregon court found him guilty, he would still be imprisoned.

That’s because Richardson’s freedom followed testing of DNA evidence after his conviction.

Richardson shared his case with Oregon legislators Friday, joining an effort to modify Oregon’s law restrictive law governing such testing.

While getting a judge to approve the testing in New Jersey was a long process, in Oregon it would have been next to impossible, according to Michelle Feldman, legislative specialist for the Innocence Project.

Oregon law states if a person convicted of a crime wants subsequent DNA testing of evidence, they must show “that DNA testing of the evidence would, assuming exculpatory results, lead to a finding that the person is actually innocent of the offense for which the person was convicted.”

Richardson and the Innocence Project, an organization that seeks to overturn convictions based on DNA evidence, took to the Capitol to argue that the state law makes it impossible to get DNA testing that could exonerate the wrongfully convicted.

“You have to show you are actually innocent before you can get testing, which is a Catch-22, because the entire point of getting testing is to use that to prove you’re innocent,” said Feldman.

Richardson and Feldman were joined by state Sen. Kim Thatcher, R-Keizer, and state Rep. Carla Piluso, D-Gresham. Thatcher left her committee seat to join Piluso, a former police chief, as witnesses to testify about the importance of amending the law.

“I wouldn’t be surprised if this bill got a supermajority on both sides of the isle and in both chambers,” Thatcher said.

The committee listened but didn’t act.

Since 1989, the Innocence Project has worked to exonerate 362 people nationwide through DNA testing. Those innocent people spent an average of 14 years and a combined 5,013 years in prison. Feldman said people have been exonerated in 37 states. Oregon has had 13 people exonerated, mostly on the basis of false accusations, but never due to new DNA testing.

Since 2001, 31 convicts have requested new DNA testing. Feldman testified that only three people have won a court order granting such testing, twice with the agreement of prosecutors.

Richardson was convicted in part because an expert said his teeth matched a bite mark on the victim. A swab of DNA tested during the trial phase did not show Richardson’s DNA, but was ruled tainted and inadmissible. After being convicted, Richardson fought for years and eventually was able to have another swab tested, which showed samples of two men other men. It led to Richardson being freed.

Feldman said evidence such as bite marks and hair can be unreliable, but are still being used to convict people. She said it’s critical for legislators to realize there is bad science, eyewitnesses can be wrong and confessors aren’t always telling the truth.

That’s why she wanted legislators to hear Richardson’s story, she said.

“If someone like him couldn’t have gotten DNA testing here, that means that the law is not working the way it’s supposed to,” she said.

It’s not clear how significant an issue this is locally. Brittney Plesser, an attorney with the Oregon Innocence Project, said the state doesn’t track how often defendants file motions for DNA testing.

Gail Meyer, a lobbyist working with Feldman, said the legislation her clients want would include a mandate to track requests for DNA testing.

After the testimony, Rep. Rich Vial asked why the testing issue existed. He asked whether it was a money matter. 

Feldman said no because defendants pay for the later DNA testing.

“I think sometimes it’s just hard in an adversarial system for prosecutors to acknowledge a mistake could have been made,” she said, adding district attorneys in Oregon regularly fight this kind of testing.

Feldman said the Innocence Project is in discussions about the matter with the Oregon Attorney General Ellen Rosenblum’s office and two district attorneys representing the Oregon District Attorneys Association.

In addition to making testing more available, the advocacy group also wants DNA used to clear a convicted defendant to be automatically entered into law enforcement databases to seek the true killer.

It’s not just a justice issue, it’s a public safety issue, she said.

Richardson said the DNA that cleared him still hasn’t been used to pursue another match.

“Someone out there could still be walking around killing people,” he said.

Reporter Aubrey Wieber: [email protected] or 503-575-1251. Wieber is a reporter for Salem Reporter who works for the Oregon Capital Bureau, a collaboration of EO Media Group, the Pamplin Media Group, and Salem Reporter.