July 10th. The Kansas Supreme Court has issued its opinion in the case of State v. Salas (No. 99,830) concerning post-conviction DNA testing for certain kinds murderers. In a unanimous decision, written by Justice Marla Luckert, the Court held that second-degree murderers do not have a right to post-conviction DNA testing under a statute which grants access to the testing to first degree murderers and rapists.
Abel Salas was convicted of intentional second-degree murder for the shooting death of Tracie Simon. Salas was acquitted of premeditated first degree murder. K.S.A. 21-2512 allows anyone convicted of first-degree murder, felony murder or rape to petition the court for DNA testing of forensic evidence from the crime scene. In State v. Denney (2004) the Kansas Supreme Court held that the statute which does this broke the Equal Protection Clause of the 14th Amendment to the United States Constitution by not extending this DNA testing right to those convicted of aggravated criminal sodomy, on the grounds that the elements of that crime and rape are substantially the same (differing only in terms of which body part is violated). Salas argued that this precedent should therefore apply to murder cases and entitle him to request DNA testing of evidence from the crime scene of his victim, just as if he had been convicted of first-degree murder.
The Court disagreed and rejected Salas’ argument. Essentially the ruling boils down to a comparison of this this case with Denney. In that case the Court had held that the crimes of aggravated criminal sodomy and rape were so similar that allowing rapists to petition for DNA testing while not allowing [aggravated criminal] sodomites to do so violated the Equal Protection rights of the latter. The elements of the two crimes were the same, the only reason he was charged with aggravated criminal sodomy and not rape was because of where he had violated his victim’s person. Salas was seeking to argue that first and second degree murder were essentially the same, differing only in the matter of premeditation. The Court took the view that this was true, and for that reason the two crimes were substantially different. That premeditation was the key element of the crime that separated first and second degree murder and therefore those convicted of one could be distinguished from those convicted of the other without causing Equal Protection issues.
It should be noted that the Court limited its ruling by emphasizing that under existing United States Supreme Court precedent the Equal Protection argument must be driven by the argument made by the person bringing the challenge. Therefore the court limited itself to the arguments which Salas had brought up.
Opinion: Honestly, this opinion is not terribly convincing. There is nothing in it that truly says why the facts of Denney warranted an Equal Protection challenge, but those of this case do not. Both cases hinge on a subjective decision as to how similar the elements of two crimes are. The truism that Second Degree Murder is not the same as First Degree Murder because of the differences between the two crimes definition, could equally be applied to the crimes in Denney. It almost reads as if in Denney the Court saw a law that should have been written to apply to both offenses and reached for the sledgehammer of the 14th Amendment to make it so. Having done so, it now must back away from that ruling lest it unleash mayhem in other areas where different crimes have differing elements that overlap closely.