Daily Independent (Ashland, KY)

February 13, 2013

Post-conviction DNA bill moves on to House

By RONNIE ELLIS
CNHI News Service

FRANKFORT — Melinda Elkins Dawson’s mother was murdered and her 6-year-old niece brutally raped in 1998 in Canton, Ohio.

If that wasn’t horror enough, police investigators eventually arrested her husband at the time, Clarence Elkins, who was convicted and sent to prison, primarily because of the niece’s statement that the man “looked like Uncle Clarence.”

Melinda Elkins wasn’t convinced.

She spent several years trying to determine who might have committed the crime when one day she saw a story in the local newspaper about a man arrested for a similar crime. The story indicated the man had once lived next door to Melinda’s mother.

She recalled that her niece had somehow after the attack managed to drag herself to the neighbor’s house seeking help but no one answered the door.

The man whose arrest Melinda discovered in the newspaper was eventually convicted for the later crime and imprisoned in the same facility with Clarence Elkins. She convinced her husband to befriend the man and then later to retrieve a cigarette butt the man had smoked.

DNA evidence on the cigarette eventually confirmed the second man had murdered Melinda’s mother and raped her niece.

Ohio didn’t have a law at the time allowing convicted felons to prove their innocence through DNA testing, but Melinda persuaded “a compassionate judge” to hear the evidence and re-open his case over the objections of prosecutors.

Eventually Clarence Elkins was cleared and set free. Melinda, who has since remarried, said he’s fine but lost two years of his life for something he didn’t do.

That is why she was in Frankfort Wednesday – to testify on behalf of a post-conviction DNA testing bill sponsored by Rep. Johnny Bell, D-Glasgow. The bill, which Bell has sponsored in the three previous legislative sessions, sailed out of the Judiciary Committee.

Kentucky currently allows death row inmates to seek DNA evidence to prove their innocence but the avenue is not open to other felony prisoners.

Bell’s bill and a similar measure already passed by the state Senate would change that. The Senate bill is sponsored by Sen. John Schickel, R-Union, but it differs from Bell’s bill in that it would not apply to those who plead guilty or accept an Alford Plea.

(An Alford Plea allows a defendant to avoid pleading guilty while recognizing the weight of the evidence is likely enough to convict him. Usually in such cases, an Alford Plea has been negotiated in return for a lighter sentence.)

Some senators objected to that exception, favored by prosecutors, because they contend – as does Bell – that an Alford Plea is not an admission of guilt. And Joe Blaney of the Innocence Project, a national effort to use DNA to prove the innocence of wrongfully convicted prisoners, said innocent defendants sometimes plead guilty to avoid what they fear are inevitable lengthier sentences.

Bell said he is willing to discuss with prosecutors their concern about guilty pleas but he wants to keep allow those taking Alford Pleas the opportunity to later prove their innocence.

House Speaker Greg Stumbo, D-Prestonsburg, a former state Attorney General who often sides with prosecutors on law enforcement issues, said this week he prefers Bell’s version. Even Schickel originally wanted to apply the bill to all felony convictions and agreed to the change to get it passed in the Senate.

Schickel said even with the change, the bill represents a significant improvement over current law.

Bell’s bill now goes to the House floor. If it passes there without changes, the two bills will go to conference committee between the two chambers to reconcile any differences.

RONNIE ELLIS writes for CNHI News Service and is based in Frankfort. Reach him at rellis@cnhi.com. Follow CNHI News Service stories on Twitter at www.twitter.com/cnhifrankfort.