DNA Testing: Important Enough for Extended Jurisdiction and Too Important to Wait for Final Sentencing

Author: Kat Girod, Staff Editor

State v. Thurber, No. 122,739, (Kan. Aug. 13, 2021).


Does Kan. Stat. Ann. § 21-2512 extend a district court’s jurisdiction to consider a petition for DNA testing after the case has been appealed and before final sentencing? 


Yes, Kan. Stat. Ann. § 21-2512 both extends a district court’s jurisdiction and authorizes parties to act under the statute before final sentencing.


Thurber was convicted of murder and kidnapping and sentenced to death.  The prosecution presented DNA evidence at trial.  The Kansas Supreme Court affirmed the convictions, remanded an issue to the district court, and retained jurisdiction over the remaining penalty-phase issues.

On remand, Thurber petitioned for DNA testing of trial evidence and moved for appointment of counsel, pursuant to Kan. Stat. Ann. § 21-2512.  The district court denied Thurber’s motion because his conviction was not final.  Thurber appealed.


In reversing, the Kansas Supreme Court held that Kan. Stat. Ann. § 21-2512 creates exceptions to general rules of law.  The Court used the statute’s plain language to determine and give effect to the Legislature’s intent.  The statute authorizes convicted parties to petition for post-conviction DNA testing of trial evidence and permits courts to appoint counsel to such parties. 

First, the Court held that Kan. Stat. Ann. § 21-2512 extends district courts’ jurisdiction even while a case is on appeal.  Generally, a district court loses jurisdiction once an appeal is entered.  However, the statute creates an exception because it permits action “at any time,” “notwithstanding any other provision of the law.”

Second, the Court held that parties can seek relief under Kan. Stat. Ann. § 21-2512(a) before final sentencing.  Generally, final convictions require “final judgment on both the conviction and the sentence.”  However, subsection (a) authorizes a petition for DNA testing “at any time after conviction.”  It does not require a final conviction nor does it reference sentencing.  Additionally, by including “convicted” and “sentenced” in subsection (c), the legislature purposely omitted “sentence” from subsection (a).   

Lastly, the Court found the impermanency of DNA evidence supported its decision as a matter of policy.

Key Authorities:

Kan. Stat. Ann. § 21-2512 (LEXIS through 2021 Reg. Sess.).

State v. Robertson, 439 P.3d 898, 900 (Kan. 2019).

State v. Williams, 471 P.3d 17, 25 (Kan. Ct. App. 2020).

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