DNA testing statute applies to aggravated indecent liberties under Jessica's Law

Janine Cox won in State v. Kelsey, No. 111,598 (Kan. App. Aug. 21, 2015), obtaining DNA testing in a Labette County aggravated indecent liberties with a child prosecution. Mr. Kelsey argued that the Equal Protection Clause required extending K.S.A. 21-2512, which allows for DNA testing in listed types of cases to all cases involving off-grid sex crimes. The COA followed KSC precedent and agreed that testing should be available to Mr. Kelsey:

Then, more recently, in Cheeks, our Supreme Court rejected the State's suggestion that the severity of the crime was a rational basis to exclude second-degree murder from K.S.A. 21-2512 for the same reason used in Denney. Citing K.S.A. 2012 Supp. 21-6807(a), the court pointed out that even though first-degree murder was classified as an off-grid felony when the legislature enacted K.S.A. 21-2512, the legislature included rape as a crime eligible for postconviction DNA testing and that both rape and second-degree murder, both being level 1 or 2 person felonies, were "'relatively equal in severity.'" In other words, similar does not mean identical when focusing on severity levels of crimes when making this type of analysis.

We are constrained to follow the ruling in Cheeks. As the Supreme Court did in Cheeks, we find no legitimate legislative goal that is met by this distinction in severity levels of the crimes for the purpose of an equal protection analysis. Given Kansas' obvious commitment to exoneration of the innocent through DNA—both sampling and later testing—and following our Supreme Court's lead in extending K.S.A. 21-2512 rather than nullifying the statute in such instances as here, we likewise extend K.S.A. 21-2512 to include testing for those in the same situation as Kelsey.

In so holding, we clarify that, like Cheeks, we are not adding a new crime to the statute's coverage but are expanding the statute to cover a much narrower class of offenders, i.e., offenders convicted of aggravated indecent liberties with a child under the age of 14 and sentenced under Jessica's Law to the mandatory hard 25 life sentence.

Judge Atcheson concurred, but would not have applied a requirement that persons demonstrate that they are "similarly situated" as an element of the Equal Protection claim.

[Update: the state did not file a PR and the mandate issued on September 24, 2015.]