SB 211 Ch. 337(3), 2008 MSAR# 7314

January 15, 2009

Barriers to Post Conviction Review Submitted by: Governor's Office of Crime Control and Prevention

Contact: Virginia Geckler (410) 821-2855

V Geckler@goccp-state-md.org

January 15, 2009

TO: Chairman Joseph F. Vallario, Jr. and Members of the House Judiciary Committee Room 101 , House Office Building Annapolis, MD 21401

FROM: Governor' s Office of Crime Control & Prevention Office of the Public Defender

RE: Report: Barriers to Postconviction Review of Claims of Factual Innocence, and in Particular, Those Based on DNA Evidence

BARRIERS TO POSTCONVICTION REVIEW OF CLAIMS OF FACTUAL INNOCENCE,

AND IN PARTICULAR, THOSE BASED ON DNA EVIDENCE

Dear Chairman Vallario and Members of the Senate Judicial Proceedings Committee:

Chapter 33 7, signed into law on May 13, 2008, requires the Office of the Public Defender (OPD) and the Governor 's Office of Crime Control and Prevention (GOCCP) to submit a joint report to the House Judiciary Committee and Senate Judicial Proceedings Committee on barriers to postconviction review of claims of factual innocence, and in particular, those based on DNA evidence.

To accomplish this joint report, GOCCP reviewed Maryland Code and Court Rules and surveyed Maryland judges, law enforcement officials, prosecutors, and crime laboratory directors. The OPD compiled its position based on years of litigating cases involving claims of innocence.

Section I of this report provides background on Maryland 's postconviction and DNA testing laws. Sections II and Ill present significantly different perspectives on barriers to postconviction review of claims of factual innocence. Section II sets forth GOCCP 's survey findings, Section Ill sets forth the position of the OP D, and, finally, Section IV presents the joint conclusion of GOCCP and the OP D.

I. STATUTORY PROVISIONS RELATING TO POSTCONVICTION REVIEW OF CLAIMS OF FACTUAL INNOCENCE IN MARYLAND

The principle opportunity to litigate a freestanding claim of factual innocence is at the time of trial. If a defendant is found guilty beyond a reasonable doubt, he or she may challenge the guilty finding in State courts in the following ways:

A. Motion for New Trial

Mary land Rule 4-3 31 ( c) provides that the defendant may make a motion for a new trial or other appropriate relief on the ground of newly discovered evidence that could not be discovered with due diligence. Under Maryland Rule 4-33 l(c), the court may grant a new trial:

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January 15, 2009

TO: Chairman Brian E. Frosh and Members of the Senate Judicial Proceedings Committee 2 East, Miller Senate Building Annapolis, MD 21401

FROM: Governor's Office of Crime Control & Prevention Office of the Public Defender

RE: Report: Barriers to Postconviction Review of Claims of Factual Innocence, and in Particular, Those Based on DNA Evidence

REPORT: BARRIERS TO POSTCONVICTION REVIEW OF CLAIMS OF FACTUAL

INNOCENCE, AND IN PARTICULAR, THOSE BASED ON DNA EVIDENCE

Dear Chairman Frosh and Members of the Senate Judicial Proceedings Committee:

Chapter 337, signed into law on May 13, 2008, requires the Office of the Public Defender (OPD) and the Governor's Office of Crime Control and Prevention (GOCCP) to submit a joint report to the House Judiciary Committee and Senate Judicial Proceedings Committee on barriers to postconviction review of claims of factual innocence, and in particular, those based on DNA evidence.

To accomplish this joint report, GOCCP reviewed Maryland Code and Court Rules and surveyed Maryland judges, law enforcement officials, prosecutors, and crime laboratory directors. The OP D compiled its position based on years of litigating cases involving claims of innocence.

Section I of this report provides background on Maryland's postconviction and DNA testing laws. Sections II and III present significantly different perspectives on barriers to postconviction review of claims of factual innocence. Section II sets forth GOCCP 's survey findings, Section III sets forth the position of the OP D, and, finally, Section IV presents the joint conclusion of GOCCP and the OP D.

I. STATUTORY PROVISIONS RELATING TO POSTCONVICTION REVIEW OF CLAIMS OF FACTUAL INNOCENCE IN MARYLAND

The principle opportunity to litigate a freestanding claim of factual innocence is at the time of trial. If a defendant is found guilty beyond a reasonable doubt, he or she may challenge the guilty finding in State courts in the following ways:

A. Motion for New Trial

Maryland Rule 4-331 ( c) provides that the defendant may make a motion for a new trial or other appropriate relief on the ground of newly discovered evidence that could not be discovered with due diligence. Under Maryland Rule 4-331 ( c ), the court may grant a new trial:

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1. on motion filed within one year after the date the court imposed sentence or the date it received a mandate issued by the Court of Appeals or the Court of Special Appeals, whichever is later;

2. on motion filed at any time if a sentence of death was imposed and the newly discovered evidence, if proven, would show that the defendant is innocent of the capital crime of which the defendant was convicted or of an aggravating circumstance or other condition of eligibility for the death penalty actually found by the court or jury in imposing the death sentence;

3. on motion filed at any time if the motion is based on DNA identification testing or other generally accepted scientific techniques the results of which, if proven, would show that the defendant is innocent of the crime of which the defendant was convicted.

B. Direct Appeal

Following trial, a defendant may appeal his or her conviction to the Court of Special Appeals of Maryland. The appellate court only reviews evidence that was presented at trial. Issues raised on direct appeal are typically trial or sentencing errors objected to by trial counsel. An appellate court must accept the lower court's findings of fact unless, upon review, the appellate court is convinced that no reasonable person would have made such findings . The Court of Special Appeals may address a claim of factual innocence, if it was made at trial, but the appellate court gives deference to the fact-finder, whether it was a jury or court trial. If the Court of Special Appeals affirms the convictions and sentences, a defendant may petition the Court of Appeals of Maryland for permission to appeal the case to that court. Whether or not the Court of Appeals chooses to hear the case is entirely within the Court's discretion.

C. Maryland's Uniform Post Conviction Procedure Act

After the aforementioned avenues have been exhausted, a defendant may bring a petition for post­conviction relief. The defendant makes a collateral appeal back to the court of first instance, the circuit court, to raise issues that do not appear on the record, such as ineffective assistance of counsel and the failure to use available scientific evidence such as DNA. For each trial or sentence, a person may file only one petition for relief under the Act but they may move to reopen a postconviction proceeding in the interest of justice. Petitioners who were sentenced after October 1, 1995, have ten years from the date of sentencing to file a petition for post-conviction relief. However, there are no limitations on the number and time of filing of petitions for DNA testing under CP §8-201.

If the petition for postconviction relief is denied, a petitioner may file an application for leave to appeal, seeking permission to appeal the circuit court' s decision. If granted, the petitioner may then appeal the circuit court's denial of the postconviction petition to the Court of Special Appeals of Maryland. In those cases where the Court of Special Appeals summarily denies an application for leave to appeal, the Court of Appeals has no jurisdiction to entertain a further appeal.

D. DNA Evidence - Postconviction Review

The State of Maryland is among the 44 states that have enacted postconviction DNA testing statutes. Currently, six states do not have postconviction DNA testing statutes: Alabama, Alaska, Massachusetts, Mississippi, Oklahoma and South Dakota. Compared to the postconviction DNA testing statutes of other states, Maryland's law is strong for the following reasons :

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Maryland requires the State to retain evidence containing DNA in all cases of murder, rape, manslaughter, and sexual offences in the first and second degree.

Maryland does not prevent persons who initially plead guilty from access to DNA testing .

Maryland has no sunset provisions or absolute deadlines for when access to DNA expires .

Qualifying evidence is retained for the time of the sentence, including any consecutive sentence imposed in connection with the offense.

If the State is unable to produce scientific identification evidence the court is required to hold a hearing to determine whether the failure to produce evidence was the result of intentional and willful destruction.

Maryland does not prohibit an appeal from the denial of DNA testing. A petitioner may file a direct appeal with the Court of Appeals.

Maryland provides flexibility in where, and how, DNA testing is conducted .

During the 2008 Legislative Session, the General Assembly passed Senate Bill 211 , a portion of which expands a section of the Criminal Procedure Article related to DNA evidence and postconviction review. The new law increases the scope of collateral review, creates a provision for a petitioner to motion for a new trial, and most notably authorizes the court to order a new trial in the "interest of justice" ifthere is not a substantial possibility that the petitioner would not have been convicted if the DNA testing results were known at the time of trial.

Petitions for DNA Testing and Evidence Search

Since 2001 , the Criminal Procedure article has provided that persons convicted of murder, rape, manslaughter, and sexual offenses in the first and second degree may file a petition for DNA testing of scientific identification evidence that the State possesses that is related to the judgment of conviction. During the 2008 legislative session, the General Assembly expanded this paragraph to provide that a person convicted for the aforementioned crimes may file a petition for a search by a law enforcement agency of its databases or logs for the purpose of identifying the source of physical evidence used for DNA testing. See CP §8-201 (b) and (c). The new provision enhances the requirement that law enforcement agencies exercise due diligence in the search for evidence that may contain DNA or other scientific evidence.

In response to the petition, if the court finds that a reasonable probability exists that a database search by a law enforcement agency will produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing, the court is required to order that search. See CR §8-201(d)(2).

If the State is unable to produce scientific identification evidence, the court is required to hold a hearing to determine whether the failure to produce evidence was the result of intentional and willful destruction. See CR §8-2010)(3).

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If the court determines at this hearing that the failure to produce evidence was the result of intentional and willful destruction, the court is required to order a postconviction hearing and at the postconviction hearing infer that the results of the postconviction DNA testing would have been favorable to the petitioner. See CR §8-2010)(3).

New Trial Remedies

Beginning January 1, 2009, a motion for new trial can be made by a petitioner on the grounds that the conviction was based on unreliable scientific identification evidence and a substantial possibility exists that the petitioner would not have been convicted without the evidence. See CP §8-201(c).

Prior to the new statute a judge was required to re-open postconviction proceedings upon the presentation of favorable DNA testing results. The new statute (effective January 1, 2009) creates a requirementthat the judge order a new trial if upon favorable DNA testing results the court finds that a substantial possibility exists that the petitioner would not have been convicted if the DNA testing results had been known or introduced at trial CR §8-201(j)(2)(iii). The statute further permits upon a court's finding that a substantial possibility does not exist that the petitioner would not have been convicted if the DNA testing results had been known or introduced at trial, a judge may order a new trial in the interest of justice. See CP §8-201(1)(3).

II. BARRIERS: GOCCP SURVEY OF LAW ENFORCEMENT AND JUDICIAL ENTITIES

A. Maryland State's Attorneys' Offices

A survey of State's Attorneys' Offices in 12 jurisdictions revealed that in years 2006 and 2007 only two jurisdictions received requests for postconviction DNA testing: Baltimore City and Baltimore County. Within those years, both jurisdictions each received three requests. Requests in Baltimore County are still pending, while two out of three requests in Baltimore City have been tested.

The Baltimore City State's Attorney's Office (BCSAO) maintains that it is at least in formal contact with opposing counsel within 30 days ofreceiving requests. BCSAO does not have an evidence control facility, but when the request is received they advise the Baltimore Police Department that the case is pending and ask the police department to locate the evidence.

The Baltimore County State's Attorney's Office assumes the responsibility of ensuring that the evidence is not destroyed once a request is made and attempts to locate necessary crime scene samples in partnership with their police department.

The overwhelming majority (81.82%) of State's Attorneys' Offices (n=l 1) believe that no freestanding claim of factual innocence within Maryland's postconviction law is not a barrier to postconviction relief. They assert that Maryland's motion for new trial rule combined with the formulation of statute's Uniform Postconviction Act provide adequate assistance to counsel and courts and redress for defendants desiring to assert these claims. State's Attorney's Offices are primarily concerned with the financial and time constraints of dealing with private labs and the Maryland State Police Forensic Sciences Division for testing services. They refer to the location of evidence in old cases which were

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investigated before mandated retention of evidence as a barrier. One agency expressed concern about the breadth ofrelease and the relatively low standard of proof to overturn a conviction based upon postconviction DNA testing.

B. Maryland Law Enforcement

Law enforcement agencies are critical partners in postconviction review because they catalog and store the evidence needed for testing or retesting of DNA They are tasked with preserving evidence, finding previously tested evidence, and identifying evidence that is now testable because of advances in technology. CP 8-201 requires the retention of DNA evidence that is secured in connection with murder, rape, manslaughter, and first and second degree sexual offense cases for the time of the sentence, including any consecutive sentence imposed in connection with the offense. In 2001, Maryland law required retention of qualifying evidence for only 3 years after the imposition of sentence. A noticeable trend in statute is that law enforcement is tasked with retaining more evidence for longer periods of time.

GOCCP surveyed the primary law enforcement units of 12 jurisdictions representing a cross section of Maryland's population levels and crime rates. Agencies were surveyed on evidence policy and procedure, data quality, records management, and storage.

Overall, Maryland law enforcement agencies have policies in place regarding evidence storage and destruction. Of the 12 primary law enforcement units surveyed, all agencies have formalized policies regarding evidence destruction procedures and the overwhelming majority (81.82%) have quality assurance policies (n=l 1). In addition, all departments have official procedures of evidence storage that differ based on the type of evidence.

American Society of Crime Laboratory Directors Laboratory Accreditation Board (AS CLAD/LAB) accredits six Maryland crime laboratories housed within police departments: Maryland State Police Forensic Sciences Division, Baltimore City Crime Laboratory, Baltimore County Forensic Services Section, Anne Arundel County Crime Laboratory, Montgomery County Crime Laboratory, and Prince George's County Forensic Services Division. ASCLAD/LAB monitors local labs' policies and procedures for evidence preservation, quality assurance, and storage. Labs are responsible for setting guidelines for proper submission of evidence as well as properly packaging evidence for return to the originating agency to prevent contamination and deleterious change. Some labs such as MSP FSD ultimately store biological evidence collected by MSP investigators that is mandated to be retained. Other labs such as Anne Arundel County Crime Laboratory currently have no long term storage capability for biological evidence.

In addition to official policies, law enforcement agencies also have training to relay policies and procedures regarding evidence handling, storage, and destruction. Respondents were asked what forms of training they provide to their employees; class instruction, training manual, on the job training. Approximately 36% of the 11 agencies that responded indicated that they implement all three methods of training. The same percentage reported that on the job training was the only method. Four agencies surveyed have labs whose forensic service workers receive extensive training at the academy and recertification training yearly. Lab accreditation drives the majority of these training policies and procedures.

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Through the use of qualitative questions, the agencies were asked to describe the methods and technology used to track evidence. Overall, Maryland meets or exceeds the level of sophistication in other states. Jurisdictions such as Baltimore County Police Department, Anne Arundel County Police Department, and the Frederick County Sheriffs Office keep written chains of custody and electronically track evidence using automated barcode and scanner technology that links into a computer system. Even if barcoding technology is not used to track evidence, agencies are utilizing computers to maintain a database of evidence location married to property reports and case numbers in their storage facilities. Jurisdictions such as Charles County Sheriffs Office and St. Mary' s County Sheriffs Office state that they plan to move in the direction of barcodes technology for this purpose.

Although law enforcement agencies in Maryland have policies, training, and technology in place to track and maintain evidence, the evidence storage facilities present a barrier. Of the 11 agencies that responded regarding facilities, a little more than half (54.55%) reported that their facilities were currently adequate to maintain the amount of evidence they receive and the conditions that keep the evidence viable for testing. The most common problem reported by departments was a lack of physical space to house evidence. Concerns were voiced, even from departments that reported that their facilities were currently adequate, that there is imminent need for increased storage capacity. Jurisdictions across the spectrum of population levels and crime rates recognize that evidence needs to be stored for much longer periods of time. In a time of budget crisis, lab directors have capital projects for space additions or remodeling in planning stages or in queue for consideration. In the past few years, Federal grant funding has been exhausted by Maryland labs to close backlogs and increase equipment, services, and staff capacity. Although successful, grant funding is not a sustainable approach for resources that will be needed indefinitely to keep up with new laws that increase the scope of DNA as a criminal justice tool in Maryland.

One of Maryland' s largest jurisdictions struggles with the aftermath of a recent natural disaster. On September 19, 2003 , the storm surge of Hurricane Isabel left 16 feet of water in the basement of the Baltimore World Trade Center. Less than half a mile away, several feet of water filled the basement of the Baltimore Police Department Headquarters containing Evidence Control Unit vaults and storage. Evidence and corresponding paper records were underwater. The BPD immediately tasked a vendor with drying and relocating hundreds of thousands of pieces of evidence to higher ground. Some paper records and evidence were unsalvageable. Following this event, transferring manually cataloged evidence predating the Department's 1993 upgrade to its WinACE (Automated Control of Evidence) computer-based system became a fundamental need. The BPD has actively sought funding to outsource the data entry of its complete inventory into its WinACE system in part to facilitate the outcomes of postconviction claims in recent years that involve crimes taking place in the 1970s and 1980s. Currently, a vendor has been selected.

C. Courts

Three judges were surveyed from Baltimore City and Baltimore County. Based on descriptive data, the only foreseeable barriers for the courts are with regard to evidence retrieval and search. In particular, there was concern over the costs and finances associated with postconviction relief and testing.

III. BARRIERS: OFFICE OF THE PUBLIC DEFENDER LITIGATION EXPERIENCE

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Once convicted, a defendant faces almost insurmountable obstacles to obtaining relief on the grounds that he, in fact, did not commit the crime alleged. Significant barriers prevent defendants from obtaining postconviction review of claims of innocence. They include statutes, rules, and case law that prevent claims of innocence from being litigated; restrictions on appellate jurisdiction; and vigorous opposition from prosecutors and the bench to assertions of innocence. A defendant is far more likely to obtain a new trial on the basis of a "technical" error, such as a clear error in a jury instruction, than he is to prevail on a claim that he is entitled to a new trial in light of even compelling evidence that he did not commit the crime.

Maryland provides two statutory mechanisms and one rule-based avenue for convicted defendants to utilize in an effort to overturn a conviction. Section 7-102 of the Code of Criminal Procedure and Section 8-102 of the Code of Criminal Procedure provide statutory frameworks for seeking to overturn a conviction infected by constitutional error or on the basis of exculpatory DNA evidence. Maryland Rule 4-331 provides a basis upon which a convicted defendant can move for a new trial on various grounds with attendant time restrictions depending on the basis of the request. Unfortunately, as a result of both technical legal barriers to the presentation of a claim of factual innocence and a host of practical obstacles encountered in the development of these claims, relief is rarely obtained from the courts. Although the DNA testing statute enacted in 2001 held promise initially as a vehicle for improving this situation, several years of litigation pursuant to the statute have shown this promise to be illusory for all but a few of Maryland's wrongly convicted. Even in those few instances where relief has been granted in light of exculpatory postconviction DNA test results, it has typically come only after years of protracted litigation.

A. Innocence Claims Without DNA Evidence

The most significant barrier to postconviction review of a claim of innocence is the simple fact that the appellate courts of Maryland have excluded claims of innocence as a justiciable issue. Unlike other states that have construed their state postconviction statutes to encompass a cognizable legal claim based solely on evidence supporting an assertion of factual innocence, the Maryland appellate courts have explicitly held that Section 7-102 of the Maryland Code of Criminal Procedure (also known as the Uniform Postconviction Procedure Act) does not provide any legal basis for seeking relief solely on the grounds of factual innocence. See Thornton v. Warden, Maryland Penitentiary, 241 Md. 715 (1966); White v. Warden, Maryland Penitentiary, 1 Md. App. 670 (1967). Nor does Maryland have a statutory scheme that allows for the litigation of a claim of factual innocence as a basis for vacating a conviction. Although other procedural avenues exist for defendants to assert claims relating to innocence, these mechanisms have significant restrictions that often prevent defendants from obtaining relief.

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Direct Appeal

On direct appeal, the appellate court does not address claims of innocence per se; rather, the most closely related claim is that of insufficient evidence to support the verdict. The appellate court, however, is limited to only the evidence presented during the trial, and it considers all of the evidence in the light most favorable to the prosecution. Therefore, no matter how incredible the testimony, as long as one eyewitness at trial identified the defendant as the perpetrator, the court will find the evidence to be "sufficient."

Motion/or New Trial

In Maryland, a defendant may present newly discovered evidence that relates to a claim of innocence through a motion for new trial (Rule 4-331 ). The rule, however, contains strict time limits and excludes any case in which the newly discovered evidence could have been discovered by the defendant's trial counsel. The broadest provision is Rule 4-33 l(a), which allows the court to grant a new trial "in the interests of justice." This provision only applies to a motion filed within 10 days of the verdict, however, and it must set forth the specific ground upon which the motion is based. It is a rare case indeed in which evidence was not discovered in time for the trial itself, yet is discovered less than two weeks after the verdict. Because of the narrow window, this provision has little utility for the overwhelming majority of defendants who are asserting claims of innocence.

A somewhat broader window is found in Rule 4-33 l(c), which allows for the court to consider newly discovered evidence provided that it is discovered within one year of sentencing or the issuance of the mandate by an appellate court. The rule also restricts the nature of the evidence that can form the basis for the new trial motion by specifically excluding evidence that could have been discovered with "due diligence" in time to meet the 10 day deadline of section (a) of Rule 4-331. In other words, ifthe evidence is such that a reasonable trial attorney should have discovered the evidence - for example, an exculpatory witness that could have been found by reasonable investigation - or if the evidence did not come to light for over a year regardless of the circumstances, then the defendant may not utilize this rule.

Uniform Postconviction Procedure Act

By statute, postconviction proceedings are limited to a review of "constitutional" or statutory claims. § 7-102. According to Maryland's appellate courts, a claim of innocence is not a constitutional claim. Therefore, a claim of innocence set forth only as a claim of innocence is automatically precluded from postconviction review. Postconviction attorneys representing innocent clients must find a constitutional "category" in which the case will otherwise fit, such as ineffective assistance of counsel or the failure of the prosecution to disclose exculpatory evidence. These categories usually involve a finding of "fault" by a state actor or the defendant's attorney. It is not true that all innocence cases can easily fit into some other justiciable category. If the new evidence consists of information that could not have been discovered by a reasonable defense attorney and it was not hidden in the prosecutor's or police files, then it cannot be reviewed by the courts no matter how persuasive or compelling the evidence. Examples of the type of evidence that would be precluded are the following:

o A confession by another individual to having committed the crime;

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o Acknowledgement by an eyewitness or other evidence indicating that he was mistaken;

o Acknowledgement by an eyewitness or other evidence indicating that the witness intentionally lied;

o Evidence casting senous doubt on the reliability of scientific evidence used against the defendant.

In sum, the postconviction system is designed to provide relief only if fault of a constitutional dimension was committed by the defense attorney or a state actor. Absent this specific type of "fault," an innocent defendant cannot even initiate a postconviction proceeding.

In addition, the doctrines of waiver and "fully and finally litigated claims" present obstacles to review of innocence claims even when they are brought under the guise of a constitutional issue. If the claim was previously raised, even if poorly and even if clearly wrongly decided, the defendant is essentially stuck with the result. Also, the lower courts have narrowly construed the "interests of justice" grounds for reopening a postconviction (§ 7-104) and often do not even grant hearings despite the presentation of significant claims.

The restrictions on appellate review of postconviction claims present another significant barrier. Defendants do not have a right to appeal from a denial of a postconviction petition; rather, they must file an Application for Leave to Appeal with the Court of Special Appeals. Appeals by defendants are rarely granted. Therefore, even egregious factual errors or erroneous legal conclusions by the Circuit Court are rarely corrected.

Other states do allow for direct resolution of claims of innocence either through statute or case law. These states include, among others, Illinois (People v. Johnson, 793 N.E.2d 591 (Ill. 2002); New Mexico (Montoya v. Ulibarri, 163 P.3d 476 (N.M. 2007); Connecticut (Miller v. Comm'r of Corr., 700 A.2d 1108 (1997); and Missouri (State ex rel Amrine v. Roper, 102 S.W.3d 541 (Mo. 2003).

B. Innocence Claims Based on Newly Discovered DNA Evidence

In 2001 the legislature enacted Criminal Procedure§ 8-201, the Postconviction DNA testing statute. Intended to serve as a means to speedily resolve claims of innocence based on DNA test results, the statute has rarely benefited defendants in practice due to a number of factors including:

o DNA results cannot be obtained due to (1) inadequate record keeping systems by police departments so that it cannot be determined whether the evidence exists, (2) the evidence has not been preserved properly and therefore no DNA profile can be derived from the item, and (3) the evidence has been intentionally destroyed despite the preservation requirements of the statute.

o Objections by prosecutors to testing the evidence causing lengthy delays while the issue is litigated.

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o Failure of trial court judges to set prompt hearings and issue speedy rulings.

1. Problems of Retention of Evidence and Defense Access to Evidence

Prior to 2002, police departments were not legally required to preserve evidence and they often destroyed all physical evidence as soon as the defendant lost his appeal. In 2002, however, the DNA testing statute was amended to include a provision requiring police departments and various law enforcement entities to retain physical evidence that could be subjected to DNA testing in murder and in certain sexual assault cases. A sunset provision was included in the 2002 amendments that made the evidence preservation requirements contingent upon the Maryland Sate Police securing a grant in the amount of at least $1,500,000 to implement the provision. The funding was received by the Maryland State Police and in 2003 the evidence preservation requirement was extended and modified to include hospitals that secure evidence in sexual assault examinations as entities required to preserve physical evidence.

Since the postconviction DNA testing statute was enacted in Maryland in 2001 , the Office of the Public Defender (OPD) has litigated the overwhelming majority of cases that have involved this new law. In addition, the OPD's Innocence Project Division, created in 2002 to handle cases involving significant claims of innocence, has made numerous inquiries of law enforcement agencies regarding the status of physical evidence in cases that potentially qualify for relief under the statute. In the vast majority of these cases, no petition for postconviction DNA testing was ever filed because it became clear that the evidence had been destroyed. In the three largest metropolitan jurisdictions in Maryland that are responsible for the bulk of criminal convictions. for the crimes of murder and sexual assault, evidence is rarely available for postconviction DNA testing. In Prince George's County, the police department has not produced physical evidence in a single case that the Innocence Project has handled. In Montgomery County, evidence has been located and tested in only two cases and lost or intentionally destroyed in two other cases. In Baltimore City the police department has produced physical evidence for DNA testing in only two cases despite attempts to locate evidence in more than thirty cases. Additionally, in Baltimore City, due to record keeping deficiencies, the Baltimore City Police Department is frequently incapable of determining whether they have custody of the evidence.

It is not particularly surprising that evidence in many criminal cases is unavailable given that law enforcement officials had no legal duty to preserve it prior to 2002. However, it is disturbing that since the preservation requirement went into effect in 2002, based on information known to the authors, not a single motion has been filed by a prosecutor requesting permission to destroy evidence as the statute requires. Furthermore, in at least two cases the Innocence Project has handled, evidence was intentionally destroyed at the request of either a police officer or a prosecutor in flagrant violation of the law. It is hoped that the recently enacted amendments to the DNA postconviction testing law that went into effect in January 2009 will address this issue of non-compliance by law enforcement with evidence preservation requirements by granting a judge the authority to infer that the testing would have proved exculpatory to a defendant in those cases in which the judge makes a finding that the State intentionally destroyed the evidence in violation of the law.

The other aspect of the difficulty in securing physical evidence for testing is the inability of the defense to ensure that a thorough search for the evidence has been conducted by law enforcement officials. In the case of Kirk Bloodsworth the defense was told repeatedly that the police department did not have

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any physical evidence that was amenable to DNA testing and yet almost a decade after the initial exculpatory results were generated from an item of evidence that had been stored in the closet of the trial judge, a sheet with visible semen stains was tested by the Baltimore County Police Department Crime Lab in 2003 and found to match the profile of a convicted sex offender who ultimately entered a plea of guilty to the murder of the victim in the case, Dawn Hamilton. More recently in the case of James Owens and James Thompson, the police department repeatedly advised the defense that no physical evidence was in existence and yet after exculpatory DNA test results were generated from a sample that had been retained by the Office of the Medical Examiner, various items of physical evidence were located and tested by the prosecution.

The following are a few noteworthy examples of the obstacles faced by defendants who attempted to secure postconviction DNA testing:

An egregious example is the case of Alfonso Minger, who was convicted of murder in Montgomery County in 1995. Minger wrote to the Innocence Project requesting DNA testing of the evidence in his case. In 2007 the lead homicide detective advised Innocence Project staff that the police department would not disclose any information regarding the status of the physical evidence to the defense. The Innocence Project filed a motion to release the evidence, which was opposed by the State's Attorney's Office without addressing the question of whether the evidence was still in the custody of the police department. After a hearing on the matter, the State notified Mr. Minger' s counsel that the same detective who refused to cooperate with Innocence Project inquiries regarding the status of the evidence had ordered the evidence destroyed after the Innocence Project had made inquires about the evidence and fi led a motion to release the evidence for DNA testing. Some items of evidence in the case were retained separately by the Montgomery County Police Department Crime Lab and those items have been tested and have proved exculpatory. However, critical pieces of evidence such as a hair recovered from a bandana and a ski mask that the State alleged were worn by the perpetrators of the murder have been destroyed.

Charles Pollard was convicted in 1993 in Frederick County of first-degree rape and various related offenses. The sexual assault evidence in the case was not tested at the time of his trial because then current forensic DNA testing techniques could not generate results from the small amount of sample that had been recovered. The physical evidence in the case, including the sexual assault kit, was preserved by the State for years as Pollard's case progressed through the appeals process. In 2003 , after Pollard requested assistance from the Innocence Project to obtain DNA testing using more advanced techniques, the Innocence Project sought to locate the physical evidence. Finally, in December 2003 , after several inquiries, the City of Frederick Police Department advised Innocence Project staff that, at the direction of the Office of the State ' s Attorney for Frederick County, all physical evidence had been destroyed at some point in 2003. By 2003 Maryland' s evidence preservation requirement had gone into effect and the Office of the State ' s Attorney was required to file a Motion to be served upon Pollard and the Office of the Public Defender for Frederick County seeking authorization to destroy the evidence in the case before actually doing so. No such motion was ever filed. Since the law at that time provided no sanction for failure to comply with the evidence preservation requirement, no further relief existed for Pollard or any other similarly situated defendant.

2. The Prosecutorial and Judicial Handling of Postconviction DNA Testing Requests

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There is no uniformity in the approach prosecutors take to requests for postconviction DNA testing in Maryland. With the exception of Baltimore City, a jurisdiction in which the Office of the State' s Attorney opposes every request for the release of evidence for testing, other county prosecutors will either affirmatively agree to release the evidence for testing by the defense while reserving the right to argue the immateriality of the testing results should they prove exculpatory or more commonly will simply ignore the petition for testing until forced to respond by a judge. Although the legislature clearly contemplated that requests for DNA testing would be handled expeditiously by prosecutors and the judicial system this has not proved to be the case. Delay in the context of requests for postconviction DNA testing creates not only the potential for innocent defendants to languish in prison for years awaiting test results and further action by the courts but also increases the chances of the evidence being damaged or destroyed as the petition for testing languishes on the court docket or on a prosecutor' s desk.

Prosecutors could improve the process of evaluating and responding to DNA testing requests by assigning responsibility to a particular individual in the office with some expertise in forensic DNA testing who could develop consistent procedures for handling these requests and commit to an expeditious handling of those requests that are meritorious. To date only one jurisdiction, Baltimore City, has formally created the position of a forensic evidence coordinator and this has occurred within the last year. Despite this development, the expeditious resolution of testing requests has still not occurred in Baltimore City because the State ' s Attorney Office continues to oppose all testing requests and the hearings on contested motions for DNA testing are not expeditiously scheduled. Despite the fact that every DNA testing case that the Innocence Project has litigated has resulted in a court ruling that the testing was legally required, it typically takes close to one year and often longer to even resolve the issue of whether the evidence will be released to the defense so the testing can begin.

Judicial officials could improve this situation dramatically by requiring timely responses from the State, setting hearings on these motions expeditiously, and ruling on the requests promptly.

The case of James Owens and James Thompson is illustrative of the problems defendants face in obtaining speedy resolution of their innocence claims despite the existence of the DNA testing statute. In July 2004, James Thompson, who had been convicted of rape and felony murder in 1989, filed a request for DNA testing pursuant to the statute. The State objected arguing that the DNA evidence was "irrelevant" despite having argued to the jury that (1) sperm found on the victim during autopsy was left by the rapist, and (2) that Thompson and his co-defendant, James Owens, both raped the victim before killing her. The Circuit Court did not hold a hearing on the request until November 2004. The Court did not issue a ruling until August 31, 2005, and only after the defendant submitted two additional pleadings requesting a ruling in the case. Having finally reached a decision, the Court denied the testing request finding that the defendant had not established that DNA testing was reliable, an issue that had not even been raised by the State. Following an article by the Baltimore Sun, the Court reversed itself and ordered DNA testing but placed such onerous restrictions on the testing process that the testing could not be performed. The Court of Appeals reversed the restrictive conditions and remanded the case. The testing was finally performed in July 2006, a full two years after the initial request. The testing excluded both men as the depositors of the sperm taken from the victim during autopsy and contradicted the State's claim, based on serology testing, that blood found on Thompson's jeans came from the victim. Nonetheless, Owens spent another two years in prison until he was released on October 15, 2008, when the State nolle prossed the charges the day before his scheduled new trial and twenty years after his wrongful conviction. James Thompson, however, remains in prison despite the clearly

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exculpatory DNA evidence as he was denied a new trial by the Circuit Court and his case remains on appeal.

C. Innocence Claims Based On Non-DNA Forensic Evidence

The benefit of the DNA testing statute is that it at least provides statutory authority for obtaining testing and a mechanism for a direct appeal of an adverse decision. In cases involving other types of physical evidence, the defendant has little upon which to base a request for postconviction testing. In 2002 the Court of Appeals approved an amendment to Maryland Rule 4-331 codified as Rule 4-33 l(c)(3) that allowed for the filing of a motion "at any time if the motion is based on DNA identification testing or other generally accepted scientific techniques the results of which, if proven, would show that the defendant is innocent of the crime of which the defendant was convicted." Seven years later, four cases in which relief was denied to a defendant who had utilized this provision of the rule have been appealed in an effort to gain clarification of what type and quantum of evidence must be produced to gain a new trial and to clarify the inherent authority of a trial court to order forensic testing so that test results can be generated from the evidence at issue. In two of these cases, the denial of relief was upheld in an unreported opinion of the Court of Special Appeals and petitions for certiorari were denied by the Court of Appeals. See Tyrone Jones v. State, 399 Md. 596 (2007) and Frank James Swann v. State, 404 Md. 660 (2008). Because unpublished appellate opinions have no precedential value no clarification of these legal issues has emerged from the appellate courts.

Frank James Swann was convicted of first-degree rape and kidnapping in 1992 and sentenced to life imprisonment. Years later, DNA testing was performed on a slide that had been retained by the Prince George's County Hospital, which had performed a sexual assault exam on the victim in the case. The police department had destroyed all evidence in the case with the exception of several fingerprint lift cards that were taken from an area of a vehicle that matched the precise location that the victim had described as having been touched by the perpetrator while he assaulted her. Because the hospital had used a staining technique on the slide that had destroyed most of the cells, no DNA profile could be recovered. After the police and prosecutor refused to accede to a request by Swann that the seven unidentified latent prints be run through a computer tracking system to see if they matched those of any offenders in the database, a motion was filed asking the circuit court to order the State to submit the latent prints to a computer database check that would have taken no more than twenty to thirty minutes at most. Despite finding that the evidence was probative and material of Swann' s guilt or innocence and finding that the burden on the state to run the computer database check was minimal, the court refused to order the State to do the comparison. That order was upheld on appeal.

Without the ability to secure evidence and subject it to forensic testing in the appropriate cases, the utility of Maryland Rule 4-331 (c)(3) for convicted defendants who could demonstrate innocence through forensic testing is non-existent.

In the case of Tyrone Jones, the defense presented evidence discovered after his trial proving that critical scientific evidence - gunshot residue - was unreliable due to the faulty testing procedures and significant contamination at the police department. Yet, the trial court applied a standard of materiality to the newly discovered scientific evidence that is so high as to be impossible for any petitioner to ever meet, and yet efforts to receive clarification on this critical point in the appellate courts remains elusive seven years after the rule was amended. It is hoped that two cases that are currently pending before the

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Court of Appeals will resolve the issue of the defendant's burden of proof in obtaining a new trial in light of exculpatory DNA test results under Maryland Rule 4-331 ( c )(3) in a manner that will discourage trial court judges ruling on these motions from imposing a burden so high as to be virtually impossible for any convicted defendant to ever meet.

D. Recommendation of the Office of Public Defender

Individuals who have been convicted of serious, violent crimes that they did not commit and are able to generate probative evidence that supports a claim of factual innocence will continue to be imprisoned with little hope of ever being released without a change in the current legal landscape. The law itself needs to be changed in order to allow for the presentation of these claims in a direct and forthright manner. Prosecutors and judges need to adjudicate these claims whether they are based on DNA evidence, or other types of forensic or non-forensic evidence more promptly and with a greater sense of urgency about what is at stake.

IV. JOINT GOCCP AND OPD CONCLUSION

This Report reflects the varying perspectives of the parties involved in litigating innocence claims. The OPD recommends legal changes to permit defendants with significant claims of innocence to directly litigate these claims as well as other practical suggestions for speedily resolving innocence claims. The view of the State ' s Attorney Offices and local law enforcement agencies, as reflected in the GOCCP survey, is that the process currently in place is adequate to resolve these claims and, therefore, GOCCP could not join in all of the OPD's recommendations. GOCCP and the OPD jointly recommend future collaboration regarding evidence preservation and tracking based upon review of local policies across the state and numerous case studies.

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