By Steve Lash
The Daily Record Newswire
BALTIMORE, MD — Saying what is true for the prosecution is true for the defense, Maryland’s top court said defendants can submit a DNA mismatch at trial only if the genetic sample undergoes an additional test that confirms the initial result.
The Court of Appeals rendered its unanimous decision in upholding two attempted-murder convictions in which the defendants had sought to introduce DNA results that pointed to another perpetrator.
The high court said the trial judge properly refused to admit the DNA evidence at trial because the samples had not been confirmed by an additional, confirmatory test.
The Court of Appeals’ recent decision puts the defense on equal footing with prosecutors under Maryland law.
That statute, Public Safety Article Section 2-510, requires prosecutors to submit DNA matches for a confirmatory test before the match can be introduced as evidence at trial. But the court said the law make no distinction between the prosecution and the defense.
The law provides uniformly that a “match obtained between an evidence sample and a data base entry may be used only as probable cause and is not admissible at trial unless confirmed by additional testing.”
Defense counsel had argued that the additional test is required only of the prosecution because the constitutional right to a fair trial affords the defendant greater leeway in introducing evidence at trial.
But the Constitution does not give defendants “a right to present inadmissible evidence,” Judge Clayton Greene Jr. wrote for the high court.
“PS Section 2-510 imposes a reasonable restriction on the admission of DNA evidence, because it ensures the reliability of that evidence,” Greene added. “More importantly, it does not preclude a defendant from admitting DNA evidence. As we have made clear, the discovery rules provide for the ability of a defendant to have the additional testing done through court order.”
Brian S. Kleinbord, of the Maryland attorney general’s office, called the court’s decision “an important victory that clarifies the boundaries for admission of DNA evidence.”
Kleinbord, who heads the office’s criminal-appeals division, added in the statement Tuesday that “requiring a defendant to adhere to rigorous standards ensures that reliable evidence is admitted at trial and does nothing to infringe on the defendant’s right to present a defense.”
Former Maryland Public Defender Nancy S. Forster, who pressed Traimne Martinez Allen’s appeal, said in an email that it is her “hope that the legislature considers rewriting that portion of the DNA statute to make their intentions more clear” that a defendant need not have a confirmatory test taken when the genetic testing points to another individual.
Forster, now in private practice, said Tuesday that she has not yet discussed with Allen a potential appeal to the U.S. Supreme Court.
Public defender Peter F. Rose, attorney for co-defendant Howard Bay Diggs, did not return a telephone message seeking comment. Allen and Diggs were charged with attempted murder and other violent crimes following an attack on Jeremy Gordon and Sentayehu Negussie in their Montgomery County apartment just after midnight on June 24, 2009. Diggs, armed with a handgun, bound Gordon and Negussie’s hands with duct tape, while Allen ransacked the apartment looking for valuable items.
When Diggs joined in the search, Gordon escaped from the duct tape and ran to the sliding glass back door of the apartment.
Shots were fired at Gordon as he ran though the shattered glass, and he was struck by a bullet in his lower back.
Montgomery County police heard the shots and arrested Diggs and Allen a short time later.
During their investigation, police took DNA samples from two bandanas, a Pittsburgh Pirates baseball cap, a black T-shirt and an orange-juice bottle and matched the results with DNA in county and federal databases.
The cap yielded a match for Allen, but none of the other items matched the men. One of the bandanas matched Richard Debreau and the bottle matched Mohamed Bangora, both of whom were in the law-enforcement databases.
After presenting its case at the April 2010 trial, the prosecution moved to prevent the defense from questioning DNA specialist Naomi Strickman about the profile matches to Debreau and Bangora. The prosecution argued that the DNA matches to the non-defendants were inadmissible due to the lack of additional tests to confirm the matches to Debreau and Bangora.
Montgomery County Circuit Judge Thomas L. Craven agreed and rejected defense counsel’s request for a continuance to allow time for the additional test. The judge said the defense had
the opportunity to have the additional test conducted but did not.
the opportunity to have the additional test conducted but did not.
Craven did permit Strickman to testify that Allen and Diggs were excluded as the source of the DNA on several pieces of evidence, including the bandana and bottle. But Strickman was barred from mentioning the matches to Debreau and Bangora — connections the defense said could have exonerated Allen and Diggs by pointing to other suspects.
The jury found Allen and Diggs guilty of attempted first degree murder, first degree burglary, robbery with a deadly weapon, attempted robbery with a deadly weapon, conspiracy to commit robbery, two counts of first degree assault and two counts of using a handgun in the commission of a violent crime. They were each sentenced to life in prison plus 90 years.
The Court of Special Appeals affirmed the convictions in a published opinion last year, holding that the DNA match was properly excluded from trial due to the absence of a confirmatory test. Allen and Diggs then sought review by the Court of Appeals.
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