Matthew's Foray into Blogging

Saturday, March 11, 2006

Appellate Brief Be Gone

Glad am I to have that appellate brief in the mail to the 9th District Court of Appeals. It had dominated my work-life for the last month. I had grown tired of looking at the thing.

We actually represented the appellee, as opposed to the appellant. It was the State that was appealing. We had been appointed to represent an indigent inmate on a Motion for Forensic DNA Testing. These motions are rarely granted, because the convicted person must show that there was untested DNA evidence or DNA evidence that was tested, but that more probative results could be obtained through retesting with newer technology. The convicted person must also show that the test results would be exculpatory and that there is a 51% chance that he or she would not have been convicted had the test results been available at trial. Our position was that current DNA testing methods have advanced considerably since 1997. I obtained affidavits from forensic scientists to that effect. We also contended that there was untested evidence, which there was. I also made an equity argument, urging that the reviewing court should afford some deference to the trial court when such a motion is granted, despite the de novo standard of review applied to these appeals, which are generally appeals from a trial court’s denial of the motion.

I do not know why the Montgomery County District Attorney’s Office appealed the trial court’s grant of the motion. All that the order allowed was testing of the few items in the possession of the State. It does not open the jailhouse doors. The client is currently serving a life sentence. He was excluded by DNA tests conducted in 1997, that is, none of his DNA was detected. If DNA testing is performed, no one loses. The client could be excluded, again, in which case he would continue serving his sentence. A DNA component from the client could be identified, as a result of improved testing methods, in which case he would continue serving his sentence. A third scenario would be that a DNA component from a third individual would be detected, as a result of improved testing methods, which would tend to exculpate the client. In this event, a wrongfully convicted person would be exonerated, and the authorities could begin the search for the “real” killer, who may still be free.

Given the recent incidences of convicted persons being exonerated by DNA evidence, what reason is there to balk at testing and retesting?

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