(b) (1) An indigent convicted person may request appointment of counsel to prepare a motion under this section by sending a written request to the court. The request must include the person's statement that he or she was not the perpetrator of the crime and that DNA testing is relevant to his or her assertion of innocence. The request must also include the person's statement as to whether he or she previously had appointed counsel under this section.
(2) If any of the information required in subdivision (1) of this section is missing from the request, the court shall return the request to the convicted person and advise him or her that the matter cannot be considered without the missing information.
(3) (A) Upon a finding of indigency, the inclusion of information required in subdivision (1) of this section, and that counsel has not previously been appointed pursuant to this subdivision, the court shall appoint counsel. Counsel shall investigate and, if appropriate, file a motion for DNA testing under this section. Counsel represents the indigent person solely for the purpose of obtaining DNA testing under this section.
(B) Upon a finding of indigency, and that counsel has been previously appointed pursuant to this subdivision, the court may, in its discretion, appoint counsel. Counsel shall investigate and, if appropriate, file a motion for DNA testing under this section. Counsel represents the person solely for the purpose of obtaining DNA testing under this section.
(4) Nothing in this section provides for a right to the appointment of counsel in a post-conviction collateral proceeding or sets a precedent for any such right. The representation provided an indigent convicted person under this article is solely for the limited purpose of filing and litigating a motion for DNA testing pursuant to this section.
(c) (1) The motion shall be verified by the convicted person under penalty of perjury and must do the following:
(A) Explain why the identity of the perpetrator was, or should
have been, a significant issue in the case.
(B) Explain, in light of all the evidence, how the requested DNA testing would raise a reasonable probability the convicted person's verdict or sentence would be more favorable if the results
of DNA testing had been available at the time of conviction.
(C) Make every reasonable attempt to identify both the evidence that should be tested and the specific type of DNA testing sought.
(D) Reveal the results of any DNA or other biological testing previously conducted by either the prosecution or defense, if known.
(E) State whether any motion for testing under this section has been filed previously and the results of that motion, if known.
(2) Notice of the motion shall be served on the prosecuting attorney in the county of conviction and, if known, the governmental agency or laboratory holding the evidence sought to be tested. Responses, if any, shall be filed within sixty days of the date on which the prosecuting attorney is served with the motion, unless a continuance is granted for good cause.
(d) If the court finds evidence was subject to prior DNA or other forensic testing, by either the prosecution or defense, it shall order the party at whose request the testing was conducted to provide all parties and the court with access to the laboratory reports, underlying data, and laboratory notes prepared in connection with the DNA or other biological evidence testing.
(e) The court, in its discretion, may order a hearing on the
motion. The motion shall be heard by the judge who conducted the
trial or accepted the convicted person's plea, unless the presiding judge determines that judge is unavailable. Upon request of either party, the court may order, in the interest of justice, that the convicted person be present at the hearing of the motion.
(f) The court shall grant the motion for DNA testing if it determines all of the following have been established:
(1) The evidence to be tested is available and in a condition that would permit the DNA testing requested in the motion;
(2) The evidence to be tested has been subject to a chain of
custody sufficient to establish it has not been substituted, tampered with, replaced or altered in any material aspect;
(3) The identity of the perpetrator of the crime was, or should have been, a significant issue in the case;
(4) The convicted person has made a prima facie showing that the evidence sought for testing is material to the issue of the convicted person's identity as the perpetrator of or accomplice to, the crime, special circumstance, or enhancement allegation resulting in the conviction or sentence;
(5) The requested DNA testing results would raise a reasonable
probability that, in light of all the evidence, the convicted person's verdict or sentence would have been more favorable if DNA testing results had been available at the time of conviction. The court in its discretion may consider any evidence regardless of whether it was introduced at trial;
(6) The evidence sought for testing meets either of the following conditions:
(A) The evidence was not previously tested;
(B) The evidence was tested previously, but the requested DNA test would provide results that are reasonably more discriminating and probative of the identity of the perpetrator or accomplice or have a reasonable probability of contradicting prior test results;
(7) The testing requested employs a method generally accepted
within the relevant scientific community;
(8) The evidence or the presently desired method of testing DNA were not available to the defendant at the time of trial or a court has found ineffective assistance of counsel at the trial court level;
(9) The motion is not made solely for the purpose of delay.
(g) If the court grants the motion for DNA testing, the court
order shall identify the specific evidence to be tested and the DNA
technology to be used. Testing shall be conducted by a DNA forensic laboratory in this state.
(h) The result of any testing ordered under this section shall be fully disclosed to the person filing the motion and the prosecuting attorney. If requested by any party, the court shall order production of the underlying laboratory data and notes.
(i) If testing was requested by the state or the individual is an indigent, the cost of DNA testing shall be borne by the state.
(j) An order granting or denying a motion for DNA testing under this section is not to be appealable and is subject to review only through a petition for writ of mandamus or prohibition filed with the Supreme Court of Appeals by the person seeking DNA testing or the prosecuting attorney. The petition shall be filed within twenty days of the court's order granting or denying the motion for DNA testing. The court shall expedite its review of a petition for writ of mandamus or prohibition filed under this subsection.
(k) DNA testing ordered by the court pursuant to this section
shall be done as soon as practicable. However, if the court finds
that a miscarriage of justice will otherwise occur and that it is
necessary in the interests of justice to give priority to the DNA
testing, the court may require the DNA laboratory to give priority to the DNA testing ordered pursuant to this section over the laboratory's other pending casework.
(l) DNA profile information from biological samples taken from a convicted person pursuant to a motion for post-conviction DNA testing is exempt from any law requiring disclosure of information to the public.
(m) Notwithstanding any other provision of law, the right to file a motion for post-conviction DNA testing provided by this section is absolute and may not be waived. This prohibition applies to, but is not limited to, a waiver that is given as part of an agreement resulting in a plea of guilty or nolo contendre.
Note: WV Code updated with legislation passed through the 2012 1st Special Session