SJC Affirms the Validity of an Order for Post-Conviction DNA Testing, Even After Defendant’s Death

A BBA Amicus Letter Had Urged This Result, in Pursuit of Justice 

BOSTON, MA — The Supreme Judicial Court of Massachusetts ruled today in Commonwealth v. Tanner that a court order for post-conviction DNA testing remains valid—even if the defendant dies before the testing is completed. 

The ruling is another in a series of decisions by the Court that apply a broad interpretation to the Massachusetts statute allowing for post-conviction forensic testing. The Boston Bar Association (BBA), which played a primary role in drafting the law, filed an amicus letter urging the court to reach this result. 

The case turned on a court order obtained by Tanner for testing of DNA evidence, based on his claim that it could help demonstrate that another person had committed the murder for which he was convicted. However, he died before the testing was conducted, and prosecutors argued that this extinguished the court order. A judge denied the Commonwealth’s motion to vacate the order, and they appealed to the SJC. 

On behalf of a unanimous Court, Justice Gabrielle Wolohojian wrote, 

[W]e have repeatedly emphasized the broad remedial purpose of G. L. c. 278A, and that purpose would not be furthered by importing into the statute a provision that would cause an otherwise valid testing order to terminate automatically upon a defendant’s death. Although a defendant’s death will extinguish his or her own interest in the outcome of testing in the sense that the conviction can no longer be set aside … society’s interest in identifying any potential third-party culprits continues regardless of the defendant’s death. 

That emphasis on identifying the true culprit was the focus of the BBA’s Getting It Right report in 2009, which led to the enactment of the law at issue in Tanner. The BBA had previously filed as amicus in several other cases relating to Chapter 278A, consistently taking the position that it was intended to create a pathway toward potential exoneration of the innocent and allow for renewed pursuit of the guilty. 

Neil Austin, who drafted the BBA’s letter, said, “We urged the Court to reach this result because DNA technology can be a powerful tool in reversing a prior miscarriage of justice.” 

Other amici taking the same position included Attorney General Andrea Joy Campbell, the Committee for Public Counsel Services, the Innocence Project, and a group of survivors who argued that information obtained through testing in this case could help identify the killer of their murdered relatives. Jessica Dormitzer, Jack Langa, and India Mazzarelli of Ropes & Gray appeared for the defendant. 

“Amicus Curiae” means, literally, “friend of the court.” Since 1975, the BBA has filed amicus briefs on matters related to the practice of law or the administration of justice. The 2025-2026 BBA Amicus Committee is co-chaired by Ian Roffman of Nutter McClennen & Fish LLP and Emily Schulman of Harvard Law School.