Project DNA: Kentucky

Kentucky

The pertinent portion of Kentucky’s postconviction DNA testing statute, Ky. Rev. Stat. Ann. § 422.285(5)(d), provides that the court shall order postconviction DNA testing if, inter alia,

Except for a petitioner sentenced to death, the petitioner was convicted of the offense after a trial or after entering an Alford plea….

So, where does that leave pleading defendants? 

As Kentucky’s statute makes clear, most defendants who pleaded guilty cannot get postconviction DNA testing. The only exceptions are: (1) defendants given death sentences; and (2) defendants who entered Alford pleas. The Court of Appeals of Kentucky applied Kentucky’s prohibition to prevent Russell Milburn from seeking DNA testing. See Milburn v. Commonwealth, No. 2013-CA-000417-MR, 2016 WL 1069124 (Ky. App. Mar. 18, 2016). Pursuant to a plea agreement, Milburn pleaded guilty to rape in the third degree and illegal possession of drug paraphernalia. Milburn later sought DNA testing, claiming that he was coerced into entering a plea “because the Commonwealth offered to dismiss a bail jumping charge that would have led to a property bond foreclosure on a family home.”  The Court of Appeals of Kentucky denied Milburn relief, finding that his valid guilty plea to a non-capital offense precluded him from seeking DNA testing.

-CM