[Congressional Record Volume 167, Number 190 (Thursday, October 28, 2021)]
[Senate]
[Page S7478]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 3968. Ms. HIRONO submitted an amendment intended to be proposed to
amendment SA 3867 submitted by Mr. Reed and intended to be proposed to
the bill H.R. 4350, to authorize appropriations for fiscal year 2022
for military activities of the Department of Defense, for military
construction, and for defense activities of the Department of Energy,
to prescribe military personnel strengths for such fiscal year, and for
other purposes; which was ordered to lie on the table; as follows:
At the end of subtitle C of title V, add the following:
SEC. 530C. PETITION FOR DNA TESTING UNDER THE UNIFORM CODE OF
MILITARY JUSTICE.
(a) In General.--Subchapter IX of chapter 47 of title 10,
United States Code (the Uniform Code of Military Justice), is
amended by inserting after section 873 (article 73) the
following new section:
``Sec. 873a. Art 73a. Petition for DNA testing
``(a) In General.--Upon a written petition by an accused
sentenced to imprisonment or death pursuant to a conviction
under this chapter (referred to in this section as the
`applicant'), the Judge Advocate General shall order DNA
testing of specific evidence if the Judge Advocate General
finds that all of the following apply:
``(1) The applicant asserts, under penalty of perjury, that
the applicant is actually innocent of the offense for which
the applicant is sentenced to imprisonment or death.
``(2) The specific evidence to be tested was secured in
relation to the investigation or prosecution of the offense
referenced in the applicant's assertion under paragraph (1).
``(3) The specific evidence to be tested--
``(A) was not previously subjected to DNA testing and the
applicant did not knowingly fail to request DNA testing of
that evidence in a prior motion for postconviction DNA
testing; or
``(B) was previously subjected to DNA testing and the
applicant is requesting DNA testing using a new method or
technology that is substantially more probative than the
prior DNA testing.
``(4) The specific evidence to be tested is in the
possession of the Government and has been subject to a chain
of custody and retained under conditions sufficient to ensure
that such evidence has not been substituted, contaminated,
tampered with, replaced, or altered in any respect material
to the proposed DNA testing.
``(5) The proposed DNA testing is reasonable in scope, uses
scientifically sound methods, and is consistent with accepted
forensic practices.
``(6) The applicant identifies a theory of defense that--
``(A) is not inconsistent with an affirmative defense
presented at trial; and
``(B) would establish the actual innocence of the applicant
of the offense referenced in the applicant's assertion under
paragraph (1).
``(7) If the applicant was convicted following a trial, the
identity of the perpetrator was at issue in the trial.
``(8) The proposed DNA testing of the specific evidence may
produce new material evidence that would--
``(A) support the theory of defense referenced in paragraph
(6); and
``(B) raise a reasonable probability that the applicant did
not commit the offense.
``(9) The applicant certifies that the applicant will
provide a DNA sample for purposes of comparison.
``(10) The petition is made in a timely fashion, subject to
the following conditions:
``(A) There shall be a rebuttable presumption of timeliness
if the petition is made within five years of the date of the
enactment of the National Defense Authorization Act for
Fiscal Year 2022 or within three years after the date of the
entry of judgment under section 860c of this title (article
60c), whichever comes later. Such presumption may be rebutted
upon a showing--
``(i) that the applicant's petition for a DNA test is based
solely upon information used in a previously denied motion;
or
``(ii) of clear and convincing evidence that the
applicant's filing is done solely to cause delay or harass.
``(B) There shall be a rebuttable presumption against
timeliness for any petition not satisfying subparagraph (A).
Such presumption may be rebutted upon the Judge Advocate
General's finding--
``(i) that the applicant was or is incompetent and such
incompetence substantially contributed to the delay in the
applicant's motion for a DNA test;
``(ii) the evidence to be tested is newly discovered DNA
evidence;
``(iii) that the applicant's petition is not based solely
upon the applicant's own assertion of innocence and, after
considering all relevant facts and circumstances surrounding
the petition, a denial would result in a manifest injustice;
or
``(iv) upon good cause shown.
``(C) For purposes of this paragraph--
``(i) the term `incompetence' has the meaning given that
term in section 876b of this chapter (article 76b); and
``(ii) the term `manifest' means that which is
unmistakable, clear, plain, or indisputable and requires that
the opposite conclusion be clearly evident.
``(b) Appeal of Denial.--The applicant may appeal the Judge
Advocate General's denial of the petition of DNA testing to
the Court of Appeals for the Armed Forces.
``(c) Evidence Inventory; Preservation Order; Appointment
of Counsel.--
``(1) Inventory.--The Judge Advocate General shall order
the preparation of an inventory of the evidence related to
the case for which a petition is made under subsection (a),
which shall be provided to the applicant.
``(2) Preservation order.--To the extent necessary to carry
out proceedings under this section, the Judge Advocate
General shall direct the preservation of the specific
evidence relating to a petition under subsection (a).
``(3) Appointment of counsel.--The applicant shall be
eligible for representation by appellate defense counsel
under section 870 of this chapter (article 70).
``(d) Testing Costs.--The costs of any DNA testing ordered
under this section shall be paid by the Government.
``(e) Time Limitation in Capital Cases.--In any case in
which the applicant is sentenced to death--
``(1) any DNA testing ordered under this section shall be
completed not later than 60 days after the date on which the
test is ordered by the Judge Advocate General; and
``(2) not later than 120 days after the date on which the
DNA testing ordered under this section is completed, the
Judge Advocate General shall order any post-testing
procedures under subsection (f) or (g), as appropriate.
``(f) Disclosure of Test Results.--Reporting of test
results shall be simultaneously disclosed to the Government
and the applicant.
``(g) Post-testing Procedures; Inconclusive and Inculpatory
Results.--
``(1) Inconclusive results.--If DNA test results obtained
under this section are inconclusive, the Judge Advocate
General may order further testing, if appropriate, or may
deny the applicant relief.
``(2) Inculpatory results.--If DNA test results obtained
under this section show that the applicant was the source of
the DNA evidence, the Judge Advocate General shall--
``(A) deny the applicant relief; and
``(B) if the DNA test results relate to a State offense,
forward the finding to any appropriate State official.
``(h) Post-testing Procedures; Motion for New Trial or
Resentencing.--
``(1) In general.--Notwithstanding any provision of law
that would bar a motion under this paragraph as untimely, if
DNA test results obtained under this section exclude the
applicant as the source of the DNA evidence, the applicant
may file a petition for a new trial or resentencing, as
appropriate.
``(2) Standard for granting motion for new trial or
resentencing.--The applicant's petition for a new trial or
resentencing, as appropriate, shall be granted if the DNA
test results, when considered with all other evidence in the
case (regardless of whether such evidence was introduced at
trial), establish by compelling evidence that a new trial
would result in the acquittal of the applicant.
``(i) Relationship to Other Laws.--
``(1) Post-conviction relief.--Nothing in this section
shall affect the circumstances under which a person may
obtain DNA testing or post-conviction relief under any other
provision of law.
``(2) Habeas corpus.--Nothing in this section shall provide
a basis for relief in any Federal habeas corpus
proceeding.''.
(b) Clerical Amendment.--The table of sections at the
beginning of such subchapter is amended by inserting after
the item relating to section 873 (article 73) the following
new item:
``873a. Art 73a. Petition for DNA testing.''.
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