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The blind squirrel finds an acorn… or is it sausage?

When Prussian statesman Otto von Bismarck searched for a metaphor to explain the legislative process, he naturally aimed for something extremely disgusting and stomach-turning. The result was his oft quoted line: “If you like laws and sausages, you should never watch either one being made.”

Occasionally the comparison prompts a sausage factory owner to cry foul. Industrial animal slaughter and the processing of snouts and rectums into mixed meat products, they say, is nowhere near so nauseating as the workings of Congress. It’s a fair criticism, especially if you view, read or listen to much news from Washington, D.C., these days.

I was pleasantly surprised then as I watched a Wyoming legislative committee work on an important criminal justice reform bill recently. I tried to follow von Bismarck’s example and make a food analogy. The difference was I needed a metaphor for an event so rare it was difficult for me to fathom, much less explain to anyone else.

I pictured a mistake-prone chef making a souffle. Each attempt was met with frustrating failure as the dish always collapsed before it could be served.

But this time, it was made to perfection. The beautiful dish in this case was a controversial bill that could finally enable wrongfully convicted felons to challenge their convictions with non-DNA evidence that wasn’t part of the original trial or appeal.

It took about an hour for the previously maligned measure to be explained, discussed and voted on. When it was over the committee unanimously approved it, 14-0.

The post-conviction relief bill has been rejected repeatedly since 2011. It wasn’t simply a matter of the seventh year being the charm that made all of the problems disappear. The success was all part of a calculated effort by the committee’s leadership to put all the pieces together and ensure — to the satisfaction of all interested parties — that there were no holes in the legislation.

All it took was the willingness of the stakeholders to sit down and hash out their differences, many of which had scuttled previous iterations of the bill. The collaboration is a credit in large part to the urging of Judiciary Co-chairmen Sen. Leland Christensen (R-Alta) and Rep. Dan Kirkbride (R-Chugwater). But it wasn’t easy, especially since any of the players could have just shunned the effort and kept trying to kill the bill.

It’s a good piece of legislation that will, if passed by the full Legislature, correct a major problem in Wyoming’s criminal justice system. It outlines each step of the new evidence introduction process and allows either prosecutors or the defense to appeal any decision.

Under current law if it’s discovered at any time that an inmate’s DNA proves he or she has been wrongly convicted of a felony, such forensic evidence can be used by the defense to either get a new trial or to directly secure an exoneration and freedom. There is no deadline for when new DNA evidence can be presented.

That’s what happened to Andrew Johnson, a Cheyenne man who spent nearly 24 years in the Wyoming State Penitentiary for sexual assault and aggravated burglary before DNA evidence in 2013 proved he was actually innocent of both crimes. The Laramie County district attorney dropped all charges.

But once someone convicted of a felony goes to prison, the clock starts ticking on the inmate’s ability to get a new trial based on new non-DNA evidence. The law only allows an inmate two years to file a petition seeking such justice.

Michelle Feldman of the national Innocence Project in New York works with the Rocky Mountain Innocence Project, which litigates wrongful conviction cases in Wyoming, Utah and Nevada. She’s traveled to Wyoming for several years to testify before the Judiciary panel and other committees.

“It takes an average of 10 years in Wyoming to get [a felon’s] innocence claim, investigate, track down witnesses and file the necessary motions,” Feldman explained. By that time, the deadline is eight years in the rear-view mirror.

The bill is called the “Post-Conviction Determination of Factual Innocence Act.” The working group that crafted the new proposed law included Rep. Charles Pelkey (D-Laramie), a long-time proponent of the bill in its various forms, Feldman and State Public Defender Tina Olson. Representatives of the Attorney General’s Office, Wyoming Trial Lawyers Association and the Wyoming County & Prosecuting Attorneys Association were also included.

While they weren’t holding hands and singing “Kumbaya,” it was clear members of the working group were on the same page about what they wanted to accomplish.

That’s a far cry from the 2017 bill, which passed the House unanimously but couldn’t make it out of the Senate Judiciary Committee after Wyoming’s Deputy Chief Attorney General John Knepper testified that he had numerous concerns about the bill. Knepper said the bill, then titled the “Actual Innocence Act,” could lead to convicts who are guilty continually petitioning for new trials and wasting judges’ time.

Feldman, though, countered Knepper’s claim at the time by noting the 2017 Wyoming bill was modeled after one that has been on the books in Utah since 2008. During the past nine years, she said, only 13 petitions have been filed resulting in two inmates being freed. That’s hardly an avalanche of claims.

Knepper also complained earlier this year that he didn’t receive notice about the House Judiciary Committee’s hearing on the bill in time to attend. He was the only person to testify against the bill when it went to the Senate committee, single-handedly killing the bill.

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But the deputy chief AG served on the working group and is now one of the bill’s strongest supporters. “Some thoughtful changes were made from everyone’s perspective,” he said. “I hope what we got was a bill that I think helps the state move forward on this issue.”

“It’s not easy for people who are usually on opposite sides of the courtroom to get together and improve the system,” Feldman said. “I think we were able to do that, so it’s really exciting. [Knepper] really kept his word on working with us on a solution.”

It would be great if the way the Judiciary Committee handled improving the factual innocence bill becomes standard operating procedure. That’s how the Legislature is supposed to work. And it was a refreshing experience.

I wouldn’t count on it happening a lot, given the ornery nature of some lawmakers who can’t be happy until they’ve taken someone else’s bill and changed it beyond recognition. And, of course, the factual innocence bill is still a long way from success. Just because it made it through a joint committee doesn’t mean one of the chambers won’t kill it.

I certainly don’t want to jinx this effort, which is an excellent example of how legislators, state agency officials, interested organizations and the public can come together and do something to improve our criminal justice system. Thanks to everyone involved for showing an old cynic like me that lawmaking doesn’t have to resemble making sausage and sometimes, the souffle also rises.

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About the Author

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Kerry Drake is a veteran Wyoming journalist, and a contributor to WyoHistory.org. He also moderates the WyPols blog. He has more than 30 years experience at the Wyoming Eagle and Casper Star-Tribune as a reporter, editor and editorial writer. He lives in Casper.

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