DNA bill spawned by Moses-EL case won't help him

Colorado lawmakers are poised to pass a bill sparked by the case of Clarence Moses-EL - in which police disposed of DNA evidence - but changes to the legislation now mean it won't help the inmate.

Moses-EL, who has always professed his innocence, was convicted of a 1987 rape. No physical evidence tied Moses-EL to the crime, but the victim, who testified that she saw the rapist's face twice and heard his voice as he attacked her, awoke in the hospital and said she realized while dreaming that the rapist was her neighbor, Moses-EL. She later identified him in court.
   
In 1995, Denver police threw out the only physical evidence in the case - DNA-bearing body swabs and the victim's clothing - despite a judge's order to preserve it. That prevented Moses-EL from obtaining forensic tests to prove the biological specimens didn't belong to him. A judge later determined that Moses-EL could not prove bad faith by the police.

Senate Majority Leader Ken Gordon, D-Denver, sponsored Senate Bill 205 and wanted it to require  that  a defendant automatically receive a new trial when police lost or destroyed DNA evidence.

A House committee changed the bill to require only that a judge hold a hearing in a case where DNA evidence was "negligently" lost or destroyed, and allowing the judge to then decide if a new trial or some other remedy was needed. The bill that came out of the House committee still would have applied to past cases, such as the Moses-EL case, but Gov. Bill Ritter threatened to veto it if it was retroactive.

The measure was then amended on the House floor by Rep. Steve King, R-Grand Junction, on April 22, but some lawmakers clearly were unaware what the change did. During the debate after King's amendment was adopted, Rep. Douglas Bruce, R-Colorado Springs, actually offered his own amendment to make the bill non-retroactive, saying the legislation was a "get-out-of-jail-free card."

And Rep. Claire Levy, D-Boulder, arguing against Bruce's amendment, said it would be a travesty if the bill wasn't retroactive. Levy later said she didn't know King's amendment had already made the bill non-retroactive.

On Friday, a House-Senate conference committee approved the House version of the bill that makes it non-retroactive, and the measure now must be approved by both chambers before it can go to Ritter's desk.

For Gordon, the process was a frustrating disappointment.

"I'm not proud of this bill," he said. "We saw an injustice. We acted for a while like we were going to do something about it, and we ended up by not doing anything about it."

Gordon said now he plans to approach the governor and ask for the only forseeable remedy for Moses-EL - clemency.

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