lisa m. kavanaugh denise mcwilliams cpcs innocence program new england innocence project somerville,...
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L I S A M . KAVA N A U G H D E N I S E M C W I L L I A M SC P C S I N N O C E N C E P R O G R A M N E W E N G L A N D I N N O C E N C E P R O J E C TS O M E RV I L L E , M A B O S T O N, M A
JANUARY 16 , 2015
Litigating Innocence Cases:
2015 update
Lots of new developments
Federal Grants & “Chapter 278A” Working Group Best Practices for Evidence Handling Evidence Inventory Process
Chapter 278A developments Working Group model testing order Middlesex discovery agreement Case law update
Statewide hair microscopy review
Chapter 278A refresher
Who? Convicted of MA crime Incarcerated, parole/ probation, liberty otherwise
restrained Even if pled guilty or confessed So long as presently assert innocence (Affidavit)
Analysis material to identity of perpetrator
Analysis not previously performed for one of enumerated reasons in statute
Much more expansive than Rule 30!
1. Discovery
2. Standard to get hearing
3. Standard to get testing
4. Costs
5. Appellate Review
Rule 30(c)(4)G.L. ch. 278A, sec. 3(c) & sec. 7(c)
Must establish “prima facie case” for relief
Discretionary
Commonwealth or its agents
May move for discovery if can’t satisfy 3(b) or 7(b)
If good cause, court “shall not” require prima facie case
Includes third parties
Discovery
Rule 30 G.L. ch. 278A
Testing sought “would have produced results that likely would have influenced the jury’s conclusion.” Evans, 439 Mass. 184 (2003)
Would evidence “probably have been a real factor in jury’s deliberations.”
Not only tied to innocence
Sec. (4) analysis “has the potential to result in evidence that is material to the moving party’s identification as the perpetrator…”
Must be tied to claim of innocence
Standard for obtaining testing/ analysis
Rule 30 G.L. ch. 278A, sec. 6(a)
(c)(3) not required if “no substantial issue”
(c)(6) presence of moving party not required at hearing
“Shall” order hearing if sec. 3 satisfied
Moving party “shall be present” unless movant waives presence
Hearing
Rule 30(c)(5) G.L. ch. 278A
Commonwealth has right to be heard
Entirely discretionary, even if make out prima facie case for relief
Sec. 2, costs “shall be paid” if D indigent
Sec. 3, marginally indigent – court can set equitable fee
Costs of testing for indigent defendants
Rule 30 G.L. ch. 278A
Abuse of discretionWritten findings not
requiredNo right to
immediate appeal of denial of post-conviction funds, Celester v. C., 440 Mass. 1035 (2004)
Sec. 3(e) – if no hearing, denied w/o prejudice, can refile
Sec. 7(a) - must make findings of fact & rulings of law after hrg
Sec. 18 – denial is “final and appealable order”
Appellate Review
How Chapter 278A works
1. Stage 1: Are pleadings adequate to get a hearing?
2. Stage 2: After the hearing, do you get testing?
Stage 1 cases
C v. Wade, 467 Mass. 496 (2014) Adequacy of affidavit Meaning of “effective assistance” in context of
showing why testing not previously performed
C v. Donald, 468 Mass. 37 (2014) What if there was DNA testing, and now there’s a new
test? Can trial court consider strength of other evidence?
No!
Issues to watch out for
Burden re. chain of custody/ contamination? Clark
Trial strategy (not to seek what was available) vs. newly available tests? Wade
Degree of waiver of attorney-client privilege? Wade
Jurisdiction in M1 cases? Pre-direct appeal (Moffatt) Post-direct appeal: need to satisfy gatekeeper? (Not
yet raised)
Grant-related developments
Increased access to information for screening From DA From lab
Agreements to testing Middlesex – case by case, “pain in the neck” rule Suffolk – if grant pays, agree Other counties – all bets are off, especially Plymouth
Grant-related developments
Hair microscopy review
• 2009: NAS report says problematic
• 2012: DNA exonerations of 3 men whose convictions tainted by hair microscropy
• 2014 grant: MSP review
• 1980 – 2000• hair and serology
Questions?
CPCS Innocence Program:• Lisa Kavanaugh, [email protected]• Ira Gant, [email protected]• Emma Zack, [email protected]
New England Innocence Project• Denise McWilliams,
The CPCS Innocence Program is supported in part by Grant No. 2009-FA-BX-0037 awarded by the Bureau of Justice Assistance and Grant No. 2013-DY-BX-K006 awarded by the National Institute of Justice. The National Institute of Justice and the Bureau of Justice Assistance are components of the Office of Justice Program, which also includes the Bureau of Justice Statistics, the Office of Juvenile Justice and Delinquency Prevention, the SMART Office, and the Office for Victims of Crime. Points of view or opinions in this document are those of the authors and do not represent the official position or policies of the United States Department of Justice.