Appeals court upholds use of mitochondrial DNA evidence

Daily Record, The (Baltimore), Jan 5, 2005 by Lawrence Hurley

The state's second highest court has held that a form of DNA evidence defense attorneys claim is unreliable can be admitted into evidence in Maryland courts.

The Court of Special Appeals held in a case of first impression that the trial judge did not abuse his discretion in allowing mitochondrial DNA evidence, known as mtDNA, to be used against Russell W. Wagner, who was subsequently convicted on two murder counts.

Wagner's life sentences for the murders of Daniel B. Davis, 84, and Davis' 80-year-old wife, Wilda, were therefore upheld by the court in Monday's opinion.

Both died from stab wounds on Valentine's Day, 1994, at their Hagerstown home.

Anne Arundel County State's Attorney Frank R. Weathersbee, whose office was the first to use mtDNA evidence in Maryland in the 1997 trial of Scotland E. Williams, welcomed the court's decision.

It's important that the Court of Special Appeals has recognized it, Weathersbee said. It will be more important that the Court of Appeals recognizes it.

However, he added that courts throughout the country have ruled in favor of using mtDNA evidence in recent years.

I don't think there's any doubt about it, he said.

Wagner was convicted in part thanks to mtDNA evidence obtained by FBI scientists from a single strand of hair found on a glove recovered from a neighbor's back porch

mtDNA provides less definitive results than DNA because it is retrieved from material surrounding cells rather than the cell nucleus itself. It can also be detected in dead cells, such as hair.

As Murphy noted in the opinion, it has been described to be a test more of exclusion than of identification.

Defense attorneys argued that one of the reasons mtDNA is unreliable is the risk of contamination in the laboratory, something they say mtDNA is particularly susceptible to.

The appeals court concluded that Washington County Circuit Judge Frederick C. Wright III did not abuse his discretion in allowing the evidence to be admitted.

This is because the use of mtDNA meets the standard of scientific reliability established by the Frye-Reed test (as described by the Court of Appeals in 1978 in Frye v. State).

Murphy wrote this week that the court agreed with Wright's conclusion that the specific procedures that were used by the FBI - in this case to identify characteristics of another's genetic material was certainly reliable.

Despite losing on the mtDNA issue, Wagner did prevail on another.

The court held that Wright incorrectly sentenced Wagner to a life sentence for the first degree felony murder of Wilda Davis, because Wright had already sentenced Wagner to life for her premeditated murder.

Both of Wagner's convictions for premeditated murder and burglary will, however, stand, as all his other claims were rejected by the appeals court.

The Davises were both stabbed multiple times in the chest and back after being bound by the arms and legs.

Their bodies were discovered next day by their granddaughter, who delivered their newspaper.

The Davises, who had two properties they rented for cash, were known to keep all their money in the house, according to the opinion.

When police searched the property, they found Wilda Davis' empty wallet on the kitchen table, along with an empty bank envelope.

The opinion did not state how much money was stolen.

The appellate attorneys for both parties could not be reached for comment yesterday.

WHAT THE COURT HELD

Case:

Russell Wayne Wagner v. State. CSA No. 2034, Sept. Term 2002. Reported. Murphy, C.J. Filed Jan. 3, 2005.

Issue:

Did the trial court err in ruling that mitochondrial DNA could be admitted in evidence against defendant?

Holding:

No. Judgment affirmed. Mitochondrial DNA evidence satisfies the requirements of the Frye-Reed test of scientific reliability.

Counsel:

Stacy W. McCormack, for appellant; Shannon E. Avery, for appellee.