As the Press reported in the October 22 edition (“Did Alaska convict an innocent man of murder?”), the Alaska Innocence Project was pleasantly surprised when the state Department of Law agreed to allow re-testing of palm prints, fingerprints, and DNA evidence in the 1993 murder of Donna Jackson that Gregory Marino was convicted of based on eyewitness testimony of a 7-year-old.

But the Innocence Project has hit a snag. The Anchorage Police Department told the Department of Law it wanted to be reimbursed financially for retrieving the 250 pieces of evidence (Bill Oberly, the Alaska Innocence Project executive director and attorney, says they don’t need every piece of the evidence, however). Oberly says he was told this week that APD estimates the first stage of testing—re-running fingerprints and palm prints—could take two people as much as 60 to 80 hours per person to locate, retrieve, and deliver the prints to the state crime lab, at a cost of up to $6,000.

Oberly says his position is this: “APD investigated it for the state; the state prosecuted it; the state had the ability to ask APD to go out and get other evidence if they wanted—it seems to me like that stuff is in control of the state.” APD says it’s not bound by the stipulations agreed to by the Department of Law, so if the Innocence Project wants the evidence, they’ve got to pay for it, because the Department of Law isn’t going to. The Department of Law says it’s an issue between the Innocence Project and APD, according to Oberly, while he feels the state is responsible. A spokesman for the Department of Law declined comment on the matter, since it’s still pending.

So Oberly has served the state with requests for production, a discovery tool set out in the civil rules that allows a party to send an adverse party a request that they produce documents or items. The requesting party has to pay for copying if copying is required, but retrieval isn’t part of the expenses that the requesting party has to cover. Whether this tactic works—whether it means the Innocence Project receives the evidence at no cost—will be decided by a court.

Oberly’s concern is that future cases will look at the Marino post-conviction relief process as a precedent, and he believes the state should be responsible for retrieving the evidence—something to which they’d originally agreed, he says. Since this is the first filing ever by the Alaska Innocence Project, the results could indeed have repercussions in future filings to come.

bjk@anchoragepress.com