dissenting.
Recognizing that errors in the criminal justice system may lead to the execution of innocent persons, the legislature enacted OCGA § 5-5-41 (c) to help insure that only those who are actually guilty will be put to death at the hands of the State. To achieve this laudable goal, the statute plainly states that once the petitioner has satisfied certain requirements, “the court shall order a hearing.” By denying Crawford’s right to a hearing to determine whether DNA evidence exists that is testable and might lead to a different result at trial, the majority ignores this plain language and undermines the very purpose of the statute. The majority allows its revulsion to the undeniably heinous nature of the crime to deny Crawford the due process demanded by the statute. For these reasons, I dissent.
1. OCGA § 5-5-41 (c) provides a process by which a person previously convicted of certain crimes may seek to have DNA testing done in an effort to challenge his conviction. A key part of this process is a hearing at which the petitioner and district attorney are permitted to present evidence by affidavits or testimony.1 In providing for this process, the Georgia legislature was responding to a national *100concern about innocent persons being wrongfully convicted and newly available DNA testing that could right those previous wrongs.2 “It’s about doing what is right,” said Senator David Adelman, a lead sponsor of the bill.3
The language of the statute is, admittedly, a little confusing, but a careful examination reveals the legislature’s clear intent to insure a fair process by which our criminal justice system could take advantage of the great advances in DNA technology. OCGA § 5-5-41 (c) (3) and (4) dictate the requirements a petitioner must meet in his petition in order to be granted a hearing. Subsection (c) (6) (A) then provides that once the trial “court determines that the motion complies with the requirements of paragraphs (3) and (4) of this subsection, the court shall order a hearing to occur. . . .” The majority mistakenly reads this provision to allow the court to judge the merits of the petition without granting a hearing. In doing so, however, the majority completely ignores subsection (c) (6) (E), which provides that the purpose of the hearing is, in part, to “allow the parties to be heard on the issue of whether the petitioner’s motion complies with the requirements of paragraphs (3) and (4) of this subsection.” If the court were allowed to judge the merits of the petition without a hearing, subsection (c) (6) would be rendered meaningless, contrary to our duty to read the statute so as not to render any portion of it meaningless.4 A sensible reading of the statute that honors all its language is that a petitioner must verify in his petition that he can make the showings set forth in subsections (c) (3) and (4), and that if he meets this pleading-type requirement, the court shall hold a hearing to determine if the petitioner can prove what has been pled.
A closer examination of the requirements set forth in subsections (c) (3) and (4) demonstrate that this reading is inherently logical. According to subsection (c) (6) (E), one purpose of the hearing is to allow the parties to be heard on “whether upon consideration of all the evidence there is a reasonable probability that the verdict would have been different if the results of the requested DNA testing had been available at the time of trial.” But this same standard is also one of the requirements that must be met in the verified petition in order for a *101hearing to be granted under subsection (c) (3).5 Because the statute contemplates an evidentiary hearing to determine if the requirements of paragraph (3) have been met, it only makes sense to treat those requirements as preliminary pleading-type requirements in the verified petition. The majority instead construes paragraph (3) to require the petitioner to present all the evidence in the verified petition, which is wholly inconsistent with the statute’s logic and purpose. The majority’s construction also ignores the fact that a petitioner seeking DNA testing most often will not have counsel because the statute does not authorize the appointment of counsel.6
2. Crawford alleges detailed facts in his verified petition showing that: potential DNA evidence in the form of blood stains exists on items seized by the police from the victim’s home shortly after the crime; this evidence was unknown to Crawford’s trial attorney because the police report was suppressed by the State;7 Crawford’s defense at trial was that someone else had committed the crime; other persons who had access to the 29-month-old victim on the night of the crime had a history of sexually abusing children; the evidence has been viewed by Crawford’s counsel; the evidence is currently in the possession of the Spalding County Sheriffs Department; and a chain of custody can be established for the evidence. Upon reviewing Crawford’s petition and the State’s response, I conclude that Crawford has satisfied the requirements of subsections (3) and (4) and that the trial court erred in summarily denying the motion for DNA testing without a hearing.8
3. The State argues, and the majority agrees, that DNA evidence could not result in a different outcome at trial because of the “overwhelming” evidence of guilt. A closer examination of the evidence, however, demonstrates that while it was “sufficient,” it was not so strong as to preclude the reasonable possibility that DNA evidence pointing to another perpetrator would have resulted in a different outcome in light of all the evidence. The potentially available DNA evidence exists on blood-stained items seized from the victim’s home shortly after the crime, including the victim’s baby blanket, bed linens from the bed where the victim slept, and men’s trousers that *102belonged to someone other than Crawford. This blood-stained evidence conflicts with the state’s theory and other evidence at trial showing that the victim was killed in Crawford’s home. If the DNA evidence on these items matches the victim and a person other than Crawford, then the new DNA evidence clearly raises a reasonable possibility that a different result would have occurred at trial.9
The State’s case relied heavily on “matching” hair, blood, and fiber evidence. The reliance on the microscopic hair analysis is particularly troubling because the prosecutor repeatedly argued that the hair evidence was “matching,” and that one hair sample and another were “identical,” “the same,” and “identical matches.” It has now been well-established that microscopic analysis (as opposed to DNA analysis) of hair samples cannot establish an identical match or provide any type of positive identification.10 Although the prosecutor also argued that blood found on Crawford’s shirt matched the victim’s blood, there was absolutely no evidence of the type of blood found on the shirt, much less any evidence of a “match.” While other blood evidence collected from Crawford’s home was presented, the evidence showed only that the blood was type 0, which was the blood type of both the victim and Crawford.11 The fiber evidence consisted of fibers found on the victim’s pajama top that were consistent with fibers from Crawford’s car. However, the evidence showed that the week before the crime, the victim had ridden with her mother in Crawford’s car at least two times. Finally, the State’s case also relied upon Crawford’s statements to police following lengthy interrogations.
Numerous defendants who made confessions have been exonerated based on DNA evidence.12 Likewise, numerous defendants *103convicted based on hair comparison evidence have been exonerated based on DNA evidence.13 In fact, according to one analysis, “hair misidentification has caused more wrongful convictions than any other individualization science.”14 While these facts do not establish that the potential DNA evidence would have changed this case, they illustrate the need that led to the enactment of this statute in the first place. In eviscerating OCGA § 5-5-41, the majority has made it far less likely that this statute will achieve its laudable purposes, and far more likely that the execution of innocent people will occur.
Decided June 7, 2004 Reconsideration denied June 28, 2004. Mark E. Olive, Thomas H. Dunn, for appellant. William T. McBroom III, District Attorney, Thurbert E. Baker, Attorney General, Susan V. Boleyn, Senior Assistant Attorney General, for appellee.I am authorized to state that Justice Benham joins in this dissent.
OCGA§ 5-5-41 (c) (6) (C) and (D) (parties may also submit additional memoranda of law or evidence within 30 days after the hearing).
See Melissa T. Rife, Peach Sheets - Criminal Procedure, 20 Ga. St. U.L.Rev. 119, 120 (2003) (quoting statistics showing that 114 inmates nationwide, including three from Georgia, had been exonerated based on newly-available DNA evidence). As of May 14,2004, the number ofinmates exonerated was 143. Innocence Project, available athttp://www.innoeenceproject.org.
Id. at 119.
Houston v. Lowes of Savannah, Inc., 235 Ga. 201, 203 (219 SE2d 115) (1975) (basic rule of construction that a statute should be construed “to make all its parts harmonize and to give a sensible and intelligent effect to each part [, as i] t is not presumed that the legislature intended that any part would be without meaning.”).
OCGA §5-5-41 (c)(7).
See also Gibson v. Turpin, 270 Ga. 855, 859-860 (513 SE2d 186) (1999) (no right to counsel beyond direct appeal). Other state statutes do provide for the appointment of counsel in DNA post-conviction proceedings. See Kathy Swedlow, Don’t Believe EverythingYou Read: AReview of Modern “Post-Conviction” DNA Testing Statutes, 38 Cal. W. L. Rev. 355, 364-365 (2002).
The existence of this evidence was first disclosed in response to an Open Records Request, under OCGA § 50-18-70, during post-conviction proceedings.
See also Dick v. State, 248 Ga. 898, 899 (287 SE2d 11) (1982) (under OCGA § 5-5-41 (a), which applies to the typical extraordinary motion for new trial, a hearing is required if the petition sets forth facts, that if proven, would authorize relief).
On the other hand, DNA evidence matching Crawford and the victim would conclusively link Crawford to the victim.
See, e.g., Scott v. State, 581 So.2d 887, 892 (Fla. 1991) (“it is important to recognize that hair comparisons do not constitute a basis for positive personal identification”); State v. Faircloth, 394 SE2d 198, 202 (N.C. App. 1990) (“[u]nlike fingerprints, however, comparative microscopy of hair is not accepted as reliable evidence to positively identify a person”); State v. Butler, 24 SW3d 21 (Mo. App. 2000), rev’d on other grounds, 108 SW3d 18 (2003) (“[a]s [the expert] acknowledged in her testimony, and as the authoritative articles confirm, there is no scientific basis for testifying that a hair comes from a particular individual”); Williamson v. Reynolds, 904 F. Supp. 1529, 1556 (E.D. Okla. 1995) (holding that microscopic hair analysis does not satisfy Daubert test for admissibility), aff'd, 110 F.3d 1508 (10th Cir. 1997) (Williamson was later exonerated by DNA evidence; information available at the Innocence Project website: http://www.innocenceproject.org/case/display_profile.php?id=59, last visited May 11, 2004); Knighten v. State, 829 So.2d 249 (Fla. Dist. Ct. App. 2002) (granting DNA testing where prosecutor relied heavily on “matching” microscopic analysis of pubic hair). See generally Clive A. Stafford Smith and Patrick D. Goodman, Forensic Hair Comparison Analysis: Nineteenth Century Science or Twentieth Century Snake Oil, 27 Colum. Hum. Rts. L. Rev. 227 (1996).
DNA testing was not available at the time of trial.
Diana L. Kanon, Will the Truth Set Them Free? No, But the Lab Might: Statutory Responses to Advancements in DNA Technology, 44 Ariz. L. Rev. 467 (2002) (citing The *103Innocence Project study that of 62 persons exonerated by DNA evidence, 24% had been convicted based upon false confessions); Welsh S. White, Confessions in Capital Cases, 2003 U. Ill. L. Rev. 979, 983 (2003) (“[d]ata drawn from DNA-cleared cases also support the conclusion that police-induced confessions are a leading cause of wrongful convictions in capital cases.”).
The Innocence Project (21 of first 70 persons exonerated based on DNA evidence had beenconvictedbased, inpart,onmicroscopichair comparisons), availableathttp://www.innocenceproject.org.
Craig M. Cooley, Forensic Individualization Sciences and the Capital Jury: Are Wither-spoon Jurors More Deferential to Suspect Science than Non-Witherspoon Jurors?, 27 S. 111. U. L.J. 477, 510-511 and n. 237 (2003) (citing studies).