State must look harder for evidence, Maryland Court of Appeals says

Daily Record, The (Baltimore), Aug 2, 2007 by Liz Farmer

Prosecutors must try harder - much harder - to comply with convicted rapists' and murderers' requests for post-conviction DNA testing, the state's highest court held Wednesday.

It's not enough to look in the police department's evidence control unit; instead, prosecutors "should search for evidence in nontraditional sources," the Court of Appeals said.

"Prosecutors should check most likely places, including the prosecutor's office, state and local crime laboratories, hospitals, clinics or doctors' offices, defense investigators, courthouse property and evidence rooms, independent crime laboratories, clerks of court and court reporters," Judge Irma S. Raker wrote for the unanimous court.

Once the state has exhausted all reasonable options, then the burden of proving the evidence exists transfers to the defendant, the court said.

The decision is an interim win for Douglas Scott Arey, who was convicted in 1974 of murdering his former boss shortly after losing his job. He was sentenced to life in prison.

Arey is seeking access to blood evidence from his trial, including the clothing he was wearing when he was arrested.

"Sometimes in an older case, evidence does get moved," said Gary Bair, a criminal defense attorney and former head of criminal appeals for the state attorney general. "Because the defendant really has no control over that, it seems like the court is acknowledging that. It puts the initial burden on the prosecution for at least five or six steps."

The Baltimore City State's Attorney's Office will follow the court's ruling, said Margaret T. Burns, a spokeswoman for the office. Sharon R. Holback, appointed in June to direct the forensic sciences investigations unit, will head the search.

"It's certainly reasonable and understandable, given the new technology," said Burns. "If there's a need for additional staff, we are confident we can meet those challenges due to this new ruling."

Remanded

Arey filed his request in 2002, a year after the state passed a law that allowed judges to order DNA testing for people serving sentences for murder and rape when that testing could prove their innocence.

In response, the state produced an affidavit from the manager of the police department's Evidence Control Unit stating that he had searched the unit and its database and had failed to find the evidence.

The Baltimore City Circuit Court ruled that the evidence no longer existed and cancelled the July 2006 hearing.

In his appeal, Arey argued that the state failed to show the evidence no longer existed, and that the lower court erred by placing the burden of proof of its existence on him. He also said that due process of law entitled him to an evidentiary hearing on his petition for DNA testing and that he should have been appointed counsel.

In its opinion, the court referenced the National Institute of Justice's recommendation that evidence be searched for in the "most likely places," including "the prosecutor's office, defense counsel's office, state and local crime labs, hospitals or doctors' offices, defense investigators, courthouse property, clerks of the court, court reporters and independent crime laboratories."

"At a minimum," the court said, a reasonable search in this case would have required looking in the original crime lab and property room used in 1974 for any related evidence, and the original judge's chambers where evidence was kept during the trial.

"Searching the [Evidence Control Unit] alone was insufficient," Raker wrote "Because the state was the custodian of the evidence, the state needs to check any place the evidence could reasonably be found, unless there is a written record that the evidence had been destroyed in accordance with then existing protocol."

The top court remanded the case for reconsideration of Arey's request. While it declined to find that an evidentiary hearing is required by statute or the constitution, it said that "ordinarily the court should hold a hearing" if it "determines that there is a genuine factual dispute as to whether the evidence exists."

The court reached a similar conclusion on Arey's claim that he was entitled to a court-appointed attorney: While "there is no constitutional or statutory right to counsel at the time a petitioner files the petition for DNA testing," the circuit court has inherent power to appoint counsel at any stage "when the court believes counsel would be necessary to further the interest of justice."

The ruling is "definitely a defense friendly verdict," said Bair, now in private practice at Bennett & Bair in Greenbelt.

"The defendant is getting a better shot at his day in court," he said. "The trial court should ordinarily hold a hearing if the facts are in dispute. The [appellate] court went out of its way to make the point that we don't know if anybody's been wrongly convicted unless those facts are issued - so let's hear it."

WHAT THE COURT HELD

Case: Douglas S. Arey vs. State, CA No. 82, Sept. Term 2006. Reported. Opinion by Raker, J. Filed Aug. 1, 2007.

Issue: Did the trial court err in denying a petition for DNA testing based on the state's claim that the evidence was not found in the police department's Evidence Control Unit?