Criminal Law Blog

The government’s bare claim that there is no biological material is not enough to defeat an IPA motion for DNA testing

Wallace G. Mitchell v. United States, Nos. 05-CO-1261 & 05-CO-1262
(decided December 12, 2013)
Players: Judges Oberly, Beckwith, and Easterly.  Opinion by Judge Beckwith.  Steven R. Kiersh for appellant.  Trial judge: James E. Boasberg.
Issue 1: Can the government defeat a post-trial Innocence Protection Act (IPA) motion for DNA testing simply by claiming that it does not possess biological material?  Does the defendant bear the burden of showing that there is biological material to be tested?
Facts: Appellant was convicted in 1991 of murder and assault with intent to kill (and related charges) for shooting two men in an apartment, one of whom died.  The crime scene examiner photographed blood on the scene but the record was silent regarding whether any blood or other biological material was collected.  In 2005 appellant filed a pro se motion – deemed by the trial court to be an IPA motion – seeking DNA testing of the material.  The government argued that the motion should be denied based on its assertion that there was no biological material to be tested, citing the crime scene officer’s trial testimony that did not mention the collection of blood or other biological material and a crime scene evidence report that did not record any biological material.  The trial court denied the motion for DNA testing.
Holding 1: “[I]f the government responds to an application under the IPA for DNA testing by alleging that it has no testable biological material, it bears the burden of substantiating that claim.” Specifically, the government must conduct “a reasonable search for the evidence, meaning an extensive search in any place the evidence could reasonably be found.”  If “the government contends that the material does not exist or no longer exists, it must proffer a reasonable search – evidence that defense might probe at a hearing – and the trial court should determine whether the government has reasonably searched for” the evidence.  If “the government cannot demonstrate that it has performed a reasonable search, the court can order it to take additional measures.”  The DCCA remanded, in part, for the government to make such a showing if it maintains that the blood evidence does not exist or no longer exists.
Issue 2: Whether the defendant satisfied the requirements under DC Code § 22-4133 (b) for a request for DNA testing under the IPA.
Holding 2:  The defendant’s initial request combined with a subsequently filed affidavit stating that he is actually innocent satisfied the requirements of DC Code § 22-4133 (b). (1) He filed an affidavit stating that he was actually innocent. (2) He identified the specific evidence which he wanted testing by identifying the “‘scatterings of blood’” in the apartment where the homicide occurred.  More specific evidence was not required because “[s]uch a strict requirement would obstruct the IPA’s goal of exonerating wrongfully convicted prisoners.” (3) He set forth the reason why DNA testing had not previously been completed by explaining that DNA testing was not available at the time of the original trial in 1991.  (4) He explained how the DNA testing would help establish his innocence “by explaining that ‘the assailant became involved in a scuffle with the decedent,’ that ‘the depth of the battle’ yielded a ‘high probability that the assailant himself was injured in the brawl,’ and that given the government’s single-shooter theory, and other evidence that a single person had committed the crime, ‘a DNA test will point a clear finger at the true perpetrator.’”  The trial court “erred in asking whether he had ‘adequately explained’ how DNA testing would help establish his innocence.”  This section of the IPA requires only an explanation, not an “adequate” explanation, and it does not call for the trial court, at this stage in the process, “to assess the plausibility of the explanation.”
Issue 3: Must a defendant moving post-trial under the IPA for DNA testing articulate “specific, non-conclusory facts that demonstrate that the movant is actually innocent” in order to demonstrate “a reasonable probability that testing will produce non-cumlative evidence that would help establish” actual innocence?
Holding 3: The IPA “does not require an applicant for DNA testing to show ‘specific’ evidence of innocence.”  The requirement of “specific, non-conclusory facts” governs motions to vacate the conviction or grant a new trial on grounds of actual innocence based on new evidence.  The case is remanded, in part, for the trial court “to parse alternative versions of the factual record and to apply the reasonable probability standard[.]”
Of Note:  The appellant presented a number of additional claims under the IPA and DC Code § 23-110.  The DCCA affirmed the trial court’s rulings denying those claims on fact-specific grounds.  --JA.