KBI should follow court order

Janine Cox won in Goldsmith v. State, No. 99,041 (July 1, 2011), obtaining a reversal of a dismissal of Mr. Goldsmith's request for DNA testing pursuant to K.S.A. 21-2512. In 2000, the COA affirmed Mr. Goldsmith's aggravated kidnapping, agg burglary, rape, and agg criminal sodomy convictions. Since then, Mr. Goldsmith has been attempting to get DNA testing, including filing a request under K.S.A. 21-2512. See Goldsmith v. State, No. 86,692 (Nov. 27, 2002)(affirming denial of motion pursuant to K.S.A. 60-1507); Goldsmith v. State, No. 93,377 (Dec. 23, 2005)(reversing summary denial of request pursuant to K.S.A. 21-2512). In March 2006, the parties agreed that the state would send 35 items to the KBI for testing and the district court so ordered. The KBI tested one item, some sweatpants, and found that the DNA sample on those sweatpants was consistent with Mr. Goldsmith and, therefore, unfavorable to him. At that point, the KBI decided not to test any more of the items because it would "not be utilizing resources wisely." The report was submitted to the distrtict court and the district court dismissed the K.S.A. 21-2512 action. The KSC disagreed:

In Goldsmith's case, there is no question that the result of the test on the single item of evidence was unfavorable. The KBI found DNA consistent with both Goldsmith and the victim on the crotch of Goldsmith's blue sweatpants. Had the district court's order for testing been limited to the blue sweatpants, under K.S.A. 21-2515(f)(1)(A), the court would have been correct to dismiss Goldsmith's petition with no further proceedings. But we are compelled to consider the effect of failing to test the remaining 34 items of evidence agreed upon by the parties and ordered to be tested by the court.

We first observe that, in this case, the State (through the KBI) made the determination that it should stop testing when it found the first unfavorable result. The plain language of K.S.A. 21-2512 does not place the responsibility for such a decision in the hands of the State. Rather, the statute indicates only what a court may do—i.e., the court must dismiss a petition and may assess costs if the results are unfavorable; the court may order a hearing to determine further proceedings if the results are favorable; the court may hold a hearing to determine if there is a substantial question of innocence when the results are inconclusive. K.S.A. 21-2512(f). Nothing in K.S.A. 21-2512 permits the State to take any unilateral action to limit or cease testing previously ordered by the court.

The State nevertheless contends that the one unfavorable result means that the district court did not err by dismissing the petition under K.S.A. 21-2512(f)(1)(A). But this argument ignores the fact that the testing order instructed the KBI to test 35 items of evidence, not just 1 item. A single unfavorable result was not automatically enough for the district court to dismiss the petition when 34 other items of evidence remained untested.

The KSC held that, if the state did not want to test the remaining items pursuant to the district court's order, the proper remedy is to go back to the district court and seek amendment of the order, with Mr. Goldsmith present and represented by counsel.