Silent Witness - Volume 8, Number 2, 2003

Keeping a Conviction Secure

by Lisa Kreeger and Danielle Weiss

It’s a great feeling for a prosecutor to know that another dangerous criminal has been convicted, and even better to know the conviction will stick. Post-conviction, a prosecutor may fear that opposing counsel’s performance will be characterized, mistakenly or inaccurately, as “ineffective assistance.” Even worse is a fear that an unclear record will not expose the defendant’s self-serving misrepresentation of his attorney’s work. What can the prosecutor do to prevent such mischaracterization? The shortest answer is to create a comprehensive record that clearly reflects the facts, the available defenses, the subsequent strategies and both attorneys’ pretrial and trial conduct. This issue of The Silent Witness will suggest pretrial discovery and trial practices that can assist prosecutors in creating records sufficiently strong to survive appellate scrutiny.

The Strickland Standard

When the courts are determining whether a trial attorney provided adequate counsel, they presume competency—that sound trial strategy and tactics motivated the attorney’s actions. The controlling case, Strickland v. Washington, 466 U.S. 668 (1984), sets forth a two-prong test, placing the burden upon the defendant to show that (1) defense counsel provided deficient representation and that (2) the deficiency was prejudicial. Deficiency in these cases is determined, from the record, using an objective standard of reasonableness under the prevailing professional norms.1 The prosecutor’s goal is to have the record reflect that the defense was reasonable, albeit unsuccessful.

Potential Challenges

Some common challenges in post-conviction cases involving DNA evidence are as follows:2

1. The DNA technology was unavailable at the time of the trial;
   
   
2. The outcome of the trial may have been different with DNA testing of the evidence because identity was the issue;
   
   
3. The requested testing has the scientific potential to produce new, non-cumulative evidence, materially relevant to the person’s assertion of actual innocence;
   
   
4. The state failed to produce evidence, not discoverable through due diligence, that is potentially exculpatory;
   
   
5. The probability exists that the person would not have been prosecuted or convicted if DNA testing had been done; and/or
   
   
6. The request for testing is not to cause unreasonable delay in the administration of justice.

Traditional forms of discovery pleadings can refute some of these claims, for example, whether the technology was available, or whether potentially exculpatory evidence was disclosed. Other claims (e.g., DNA evidence may have produced a different outcome in the case of an identity defense, or that DNA evidence would have been relevant to the defendant’s claim of actual innocence) can be refuted with a record made through prosecutorial thoughtfulness and aggressive effort in both pretrial discovery and trial.

Creating a Record

How does a prosecutor create a sufficient record? Here are some suggestions:

Pre-Trial Strategies

• Request that the lab include in every report a statement regarding the availability of remaining sample for retesting (or the occasional lack thereof). In the prosecutor’s initial discovery response, the facts that a sample remains, available for defense retesting, will be known.
  
  
• As early as reasonable, advise your analyst to remind the defense counsel of remaining sample at each and every opportunity.
  
  
• After reviewing the issues surrounding the DNA evidence and the role it will play in the case, consider whether it is prudent for the defense to request appointment of an expert to assist defense counsel, without objection by the prosecution.
  
  
• If the prosecution will not present DNA evidence, then say so clearly in a pre-trial pleading. DNA results and/or the name of the forensic analyst who performed the tests should be disclosed regardless.
  
  
• In letter or in pleading form, specifically invite the defense counsel to retest the DNA evidence if identity of the defendant is in issue. File the invitation in the court file. As early as reasonable, and on the record, ask the judge to confirm that the defense counsel is not asking to retest the evidence by way of a recorded inquiry.
  
  
• Ask the judge to ask the defendant (not his lawyer) about his decision to go to trial without retesting the evidence.
  

Trial Strategies:

• In the case-in-chief, establish identity with every form of available evidence, including direct testimony, direct physical evidence and circumstantial evidence. Make sure that the proof reflects that DNA was merely one of several sources of identity evidence.
  
  
• During cross-examination of the prosecution analyst, identify the defense “issues” with the DNA evidence—law enforcement collection, contamination of the sample, interpretation of the statistics—and respond with detailed redirect testimony of the government’s analyst to explain why retesting would not be a remedy.
  
  
• Whenever possible, in cross-examination of the defendant or defense witnesses, elicit a concession that identity is not in issue.
  
  
• When the defense is not identity, but rather consent or the justified use of force, discuss these defenses in argument for judgment of acquittal or in closing.
  
  
• Conversely, when identity is the issue, discuss all of the evidence that proves identity in argument for judgment of acquittal or in closing.

Post-Conviction Strategy:

• In any post-conviction pleading, deposition or hearing, focus on the reasonableness of the defense attorney’s decisions in light of the facts, the evidence supporting the defendant’s identification, and the absence of controversy about the validity of the DNA.

Relevant Cases

Before dismissing any of the aforementioned strategies, consider the following cases:

In Leonard v. Michigan, 256 F. Supp. 723 (West. Dist. Mich., 2003), a rape case, the prosecutor had disclosed the DNA analyst’s name and report during discovery and the initial defense attorney had received services from a defense expert before withdrawing from the case. The subsequent defense attorney did not use the expert as a consultant or witness. According to the Michigan appellate court, defense trial counsel (without expert assistance) did not adequately demonstrate proficiency with the evidence or the purpose in not refuting the DNA evidence.

In Duff v. Tennessee, 2002 Tenn. Crim. App. Lexis 977 (Knox. Ct. App., 2002), another rape case similar to the facts in Leonard, defense counsel failed to call a rebuttal expert serologist. In Duff, though, the prosecutor preserved the decision-making that surrounded the defense attorney’s choice to rely upon a favorable ruling regarding permissible argument, rather than delay the case for the defense to obtain a serologist. The prosecutor had two identifications made by the victim, one photographic and the other voice-identification in a live line-up. The trial judge expressly ruled that the defense attorney could argue the “absence of or negative evidence inference” — that the state had no DNA evidence that linked the defendant to the rape. The court found no error in the defense attorney’s strategic decision to proceed in trial without calling another DNA analyst as a defense witness.

Lastly, a description of a record that reflects the propriety of defense counsel’s decisions and reasonableness of the defense strategy is found in Chaney v. Missouri, 73 S.W. 3d 843 (Mo. App., 2002). In Chaney, the parties never tested biological material from underneath the victim’s fingernails. The court awarded the defendant a hearing on his challenge that his attorney should have had the fingernail scrapings tested. Although the pre-trial record was not developed, during the post-conviction hearing the defense attorneys articulated a “pro and con” analysis of asking for the material to be tested and their conclusion not to make the request of the court. The Missouri appellate court found no error in the defense attorney’s strategy.

Conclusion

These tips can be summarized as follows:

• make the defense attorney aware of remaining evidence sample;
  
  
• force a decision, entered into the record, about re-testing so there will be discussions about strategies and defenses;
  
  
• use all available evidence to prove the defendant’s identity;
  
  
• identify clearly the raised defense; and,
  
  
• if genuinely necessary, support the defense counsel’s request for preparation assistance.

1 Some courts have added the burden of showing that “but for” the deficiency, the outcome would have been different.

2 Illinois v. Dunn, 306 Ill. App. 3d 75 (1999); Tennessee v. Cage, 2001 Tenn. Crim. App. LEXIS 598 (2001); People v. Gholston, 297 Ill. App. 3d 415 (1998); People v. Shum, 2003 Ill. LEXIS 781 (2003); State v. White, 2002 Del. Super. LEXIS 388 (2002); Anderson v. State, 2003 Del. LEXIS 441 (2003)(unpublished); Buford v State, 2003 Tenn. Crim. App. LEXIS 370 (2003); State v. Donovan, 2002 Me. Super. LEXIS 242 (2002); Massey v. State, 2003 Tex. App. LEXIS 4407 (2003)(unpublished); Zollman v. State, 820 So. 2d 1059 (2002)(FL); Crawford v. State, 2003 Tenn. Crim. App. LEXIS 672 (2003); People v. Dabbs, 154 Misc. 2d 671 (1991)(NY); Brady v. Maryland, 373 U.S. 83 (1963).

Federal Funding For DNA Uncertain

Funding for DNA is of continuing concern to the prosecution community. The U.S. House of Representatives has expressed support for the DNA national initiative by approving $174 million for DNA programs in the U.S. Department of Justice FY 2004 appropriation for state and local assistance. The U.S. Senate, however, has recommended no funds for the national initiative. Hopefully, the appropriations conference committee will soon act upon the pressing need to enhance DNA capacities and programs. Law enforcement and prosecutor voices should be heard as next year’s federal appropriations are decided.