CARROLL: Contrary evidence

By Vincent Carroll, Rocky Mountain News (Contact)

Wednesday, March 26, 2008

Senate Majority Leader Ken Gordon, D-Denver

In the beginning, Colorado district attorneys objected to legislation promising a new trial for convicts when evidence is destroyed because the bill, they said, was far too broad.

So the sponsor retooled Senate Bill 205 to narrow its focus.

The DAs complained that the bill failed to rule out new trials when disasters such as fires and floods ruin evidence.

So the sponsor carved out exceptions related to "an act of God."

Indeed, Senate Majority Leader Ken Gordon, D-Denver, tried to meet just about every serious objection raised by prosecutors shortly after he filed his original bill two weeks ago. And yet they still object - maybe more strongly than ever.

"In some respects it is worse than the original bill," the director of the Colorado District Attorneys Council, Ted Tow, told me Monday. "He completely expanded the scope the bill."

Hmmm. The original version mandated a new trial when a court had merely ordered the "preservation" of evidence that is then lost or destroyed. In the amended version, the court must order the actual testing of evidence. That's "expanded"?

In the original, all "material evidence" was included. Now only "biological evidence" qualifies.

So "biological evidence" is broader than "material evidence," I asked with surprise. How can that be?

Because biological evidence is "anything," Tow said. "It's anything that is touched."

But surely every piece of evidence isn't an attractive candidate for a relevant DNA test. And surely a judge is likely to order a test in the first place only if the evidence is material - i.e., "likely to affect the determination of a matter or issue." By Colorado law, in fact, courts cannot order DNA testing unless a preponderance of evidence suggests "favorable results . . . will demonstrate the petitioner's actual innocence."

There's simply no way the bill's definitions have been "expanded."

Gordon and the bill's many co-sponsors certainly didn't intend for biological evidence to mean "anything." They had a scenario in mind: A man convicted years ago believes that new DNA technology might absolve him and persuades a court to order the testing, say, of a piece of clothing. But before the test occurs, police destroy the evidence.

That scenario fits the case of Clarence Moses-El, convicted in 1987 of a Denver rape. Eight years later, a court ordered certain evidence related to the case packaged and held for testing, but police destroyed it in an apparently routine disposal. The question is whether our response should be, "Tough luck, buddy," or to grant Moses-El - and anyone who finds himself in a similar predicament - what he has long sought, namely a new trial.

SB 205 passed the Senate Tuesday with bipartisan support.

As it moves to the House, the pressure against it is likely to swell - but should be resisted.

Hard to swallow

Study the following passage to see if you can guess its origin:

"At Outback, the Aussie Cheese Fries with Ranch Dressing comes loaded with 2,900 calories and 182 grams of fat. Terrifyingly, Outback markets this not as a meal, but as a 'starter.' "

"Terrifyingly" should be the tipoff. Surely this is an over-the-top passage from The Onion mocking the breathless fear-mongering of anti-obesity crusaders.

Except that the passage is not a parody. It appears in a column in Tuesday's USA Today by the editor-in-chief of Men's Health, David Zinczenko, who later dubs the Aussie Cheese Fries - which so far as we know have never been forced into a single customer's mouth - "the Saturday Night Special of restaurant food."

Get it? Cheap but deadly fare. Terrifyingly, Zinczenko appears dead serious.

Vincent Carroll is editor of the editorial pages. Reach him at carrollv@RockyMountainNews.com.