Litigating Innocence Cases: 2015 update Lisa M. Kavanaugh DENISE MCWILLIAMS CPCS Innocence Program New England innocence project Somerville, ma boston, ma January 16, 2015

Lots of new developments Federal Grants & “Chapter 278A” Working Group Best Practices for Evidence Handling Evidence Inventory Process Chapter 278A developments Working Group model testing order Middlesex discovery agreement Case law update Statewide hair microscopy review LISA INTRO

DENISE SLIDE – HOW WORKING GROUP GOT STARTED, WHO IS INVOLVED

DENISE SLIDE: BEST PRACTICES GUIDE, PLANNED PANEL AT BC, TRAINING OF CLERKS, ETC.

Chapter 278A refresher Who? Convicted of MA crime Incarcerated, parole/ probation, liberty otherwise restrained Even if pled guilty or confessed So long as presently assert innocence (Affidavit) Analysis material to identity of perpetrator Analysis not previously performed for one of enumerated reasons in statute LISA SLIDE

Much more expansive than Rule 30! Discovery Standard to get hearing Standard to get testing Costs Appellate Review

Discovery Must establish “prima facie case” for relief Discretionary Rule 30(c)(4) G.L. ch. 278A, sec. 3(c) & sec. 7(c) Must establish “prima facie case” for relief Discretionary Commonwealth or its agents May move for discovery if can’t satisfy 3(b) or 7(b) If good cause, court “shall not” require prima facie case Includes third parties SKIM THROUGH THESE – MORE USEFUL FOR THE HANDOUT RULE 30: (1) No entitlement to discovery unless you establish by affidavits a prima facie case for relief – that is, that “justice may not have been done.” (2) Even if you make such a showing, discovery is not mandatory, statute says only that a judge “may authorize such discovery as is deemed appropriate.” 278A – sec. 3 & 7 address discovery tools under new law. Basically, can seek discovery whenever you aren’t able to satisfy one or more of the requisite items to obtain post-conviction analysis, provided the judge finds “good cause” for your inability to identify the location or condition of the evidence. Do still have to make the effort to locate evidence in first instance – can’t just rely on post-conviction discovery to make prosecutor find it. But if you can’t determine whether the evidence still exists, perhaps because prosecutor/ police/ state lab not responding, argue that there is “good cause” for why you are unable to provide that information, and judge may grant discovery without requiring you to first establish a prima facie case for relief under Rule 30 Recognizes that there will be situations where you simply cannot make out a prima facie showing for relief under Rule 30 without the testing/ analysis that’s being sought – says if you’ve got a good reason for not being able to explain where the evidence is, here’s a new tool for getting that information Discovery not limited to identifying evidence to be tested for DNA – could be that you can’t assess the reliability of evidence used to establish the identity of the perpetrator at trial (whether that was hair comparison or fingerprint analysis or something else) without additional discovery Quite often the case that trial discovery, particularly in older cases, missing lots of stuff – bench notes, photographs – and that all you’ve got is the conclusory report, and possibly a transcript of the trial testimony on the topic For example, if you don’t know whether evidence still exists, and you need to get information from the prosecutor, the police, the state lab, some other state agency, so long as court finds “good cause” for your inability to know that information, sec. 7 says court shall not require establishment of prima facie case for relief under Rule 30 before ordering discovery. Also new b/c encompasses discovery orders directed at third parties who may have evidence/ information. Only limitation is that it must be “material to the identity of the perpetrator” This means

Standard for obtaining testing/ analysis Rule 30 G.L. ch. 278A Testing sought “would have produced results that likely would have influenced the jury’s conclusion.” Evans, 439 Mass. 184 (2003) Would evidence “probably have been a real factor in jury’s deliberations.” Not only tied to innocence Sec. (4) analysis “has the potential to result in evidence that is material to the moving party’s identification as the perpetrator…” Must be tied to claim of innocence Rule 30 – not just limited to innocence, but need to show that evidence would probably have been a real factor in jury’s deliberations in order to even get the testing. 278A – is limited to innocence, but it’s a lesser burden (“potential” to result in evidence that’s “material” to ID as perpetrator). Might be situations in which it is easier to get funds/ testing ordered under Rule 30: Where issue is whether a crime occurred at all (e.g. was it an arson?) Where conviction was based on forensic evidence that has since been called into question/ found to be unreliable, but that does not directly bear on the identity of the perpetrator. Where the only possible explanation for the lack of prior testing = IAC & trial (or prior post-conviction) counsel is asserting a strategic reason for not seeking testing at time of trial That said, statute clearly not just intended to provide access to testing/ analysis that is determinative of innocence Need only be “material” to identity of perpetrator Certainly any type of matching evidence – ballistics, fingerprints, hair examination, voice identification – could conceivably fall under statute Almost always going to be worth pursuing under both, b/c of the different standards.

Hearing (c)(3) not required if “no substantial issue” Rule 30 G.L. ch. 278A, sec. 6(a) (c)(3) not required if “no substantial issue” (c)(6) presence of moving party not required at hearing “Shall” order hearing if sec. 3 satisfied Moving party “shall be present” unless movant waives presence This is proving to be a double-edged sword in certain circumstances, particularly where failure to test is based on a claim of IAC.

Costs of testing for indigent defendants Rule 30(c)(5) G.L. ch. 278A Commonwealth has right to be heard Entirely discretionary, even if make out prima facie case for relief Sec. 2, costs “shall be paid” if D indigent Sec. 3, marginally indigent – court can set equitable fee Should point out here that new law does talk about where testing is done: 8(b) says prosecutor & defense atty shall agree on lab to do testing 8(c) says if can’t agree, each must provide list of up to 3 labs, and court selects from list 8(d) says testing lab has to give both sides equal access to personnel, opinions, conclusions, reports, documents – this is very different than what MA regs say about who has access to testing, and may lead to confusion/ litigation, particularly in realm of CODIS hits or post-conviction efforts to have lab release particular profiles from CODIS for comparison testing.

Appellate Review Abuse of discretion Written findings not required Rule 30 G.L. ch. 278A Abuse of discretion Written findings not required No right to immediate appeal of denial of post-conviction funds, Celester v. C., 440 Mass. 1035 (2004) Sec. 3(e) – if no hearing, denied w/o prejudice, can refile Sec. 7(a) - must make findings of fact & rulings of law after hrg Sec. 18 – denial is “final and appealable order” 2 important results of this provision: Don’t have to wait until the new trial motion has been decided in order to appeal denial of motion for access to evidence/ funds to test/ discovery; Also seems to provide a way around Gatekeeper requirement for 1st degree murder cases. SJC takes position that post-conviction mtns for funds/ discovery sought in connection with Rule 30 motion filed after direct appeal must go through gatekeeper strong likelihood that you never even get a decision on the merits of whether should have been granted funds/ discovery, b/c could get handwritten denial by trial court, and summary denial by single justice. B/c section 18 of 278A creates new mechanism for seeking post-conviction testing/analysis independent of a new trial motion, and also makes denial of such motion a “final and appealable order,” reasonable argument that you don’t have to satisfy gatekeeper requirement before obtaining appellate review of the denial of such a motion by trial judge.

How Chapter 278A works Stage 1: Are pleadings adequate to get a hearing? Stage 2: After the hearing, do you get testing?

Stage 1 cases C v. Wade, 467 Mass. 496 (2014) Adequacy of affidavit Meaning of “effective assistance” in context of showing why testing not previously performed C v. Donald, 468 Mass. 37 (2014) What if there was DNA testing, and now there’s a new test? Can trial court consider strength of other evidence? No!

Issues to watch out for Burden re. chain of custody/ contamination? Clark Trial strategy (not to seek what was available) vs. newly available tests? Wade Degree of waiver of attorney-client privilege? Wade Jurisdiction in M1 cases? Pre-direct appeal (Moffatt) Post-direct appeal: need to satisfy gatekeeper? (Not yet raised)

Grant-related developments Increased access to information for screening From DA From lab Agreements to testing Middlesex – case by case, “pain in the neck” rule Suffolk – if grant pays, agree Other counties – all bets are off, especially Plymouth

Grant-related developments Funding For expert consultation For testing, where Commonwealth might not otherwise agree Consultation When did particular tests come on line? When issue is whether particular form of testing available Why is new test a substantial improvement over previous testing? When issue is that some testing was done, or was available Model affidavits

Hair microscopy review 2014 grant: MSP review 1980 – 2000 hair and serology 2009: NAS report says problematic 2012: DNA exonerations of 3 men whose convictions tainted by hair microscropy In July 2013, NACDL and the IP signed the groundbreaking and historic agreement with the FBI and DOJ to review thousands of criminal cases in which the FBI conducted microscopic hair analysis of crime scene evidence. Two major developments created the impetus for this review. First, in 2009, the National Academy of Sciences (NAS) issued its report on forensic science and specifically identified microscopic hair comparison evidence as problematic.2 The report observed that “[n]o scientifically accepted statistics exist about the frequency with which particular characteristics of hair are distributed in the population. There appear to be no uniform standards on the number of features on which hairs must agree before an examiner may declare a ‘match.’”3 Further, the NAS committee found “no scientific support for the use of hair comparisons for individualization in the absence of nuclear DNA. Microscopy and mtDNA analysis can be used in tandem and may add to one another’s value for classifying a common source, but no studies have been performed specifically to quantify the reliability of their joint use.”4  The second and more direct triggering event was the exoneration of three men between 2009 and 2012 who had served lengthy prison sentences, and whose convictions were tainted by microscopic hair comparison evidence that exceeded the limits of science. DNA testing contradicted the conclusions of three different FBI hair examiners who had provided the flawed testimony.5  

Questions? CPCS Innocence Program: New England Innocence Project Lisa Kavanaugh, lkavanaugh@publiccounsel.net Ira Gant, igant@publiccounsel.net Emma Zack, ezack@publiccounsel.net New England Innocence Project Denise McWilliams, dmcwilliams@newenglandinnocence.org

The CPCS Innocence Program is supported in part by Grant No The CPCS Innocence Program is supported in part by Grant No. 2009-FA-BX-0037 awarded by the Bureau of Justice Assistance and Grant No. 2013-DY-BX-K006 awarded by the National Institute of Justice. The National Institute of Justice and the Bureau of Justice Assistance are components of the Office of Justice Program, which also includes the Bureau of Justice Statistics, the Office of Juvenile Justice and Delinquency Prevention, the SMART Office, and the Office for Victims of Crime. Points of view or opinions in this document are those of the authors and do not represent the official position or policies of the United States Department of Justice.