The Impact of DNA Technology on the Prosecutor: Handling Motions for Post-Conviction Relief

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1 The Impact of DNA Technology on the Prosecutor: Handling Motions for Post-Conviction Relief Mark Lee I would like to talk a little bit about the extent to which the advent of DNA technology has impacted the Suffolk County District Attorney s Office s policies on handling motions for new trial. In the process, I hope to be able to use some of my own existing cases to illustrate my points. In Massachusetts, a defendant seeking post-conviction relief, after his direct appeal is exhausted, must do so via a motion for new trial under Massachusetts Rule of Criminal Procedure With the acceptance of DNA evidence in the courtroom, defendants in increasing numbers are seeking to have old convictions re-examined in light of DNA technology that was not available at the time of their original trials. My office, the Suffolk County District Attorney s Office (DA s office), recently has received a number of requests by convicted defendants to have DNA testing performed in old convictions, hoping that the test results will exonerate them. The problem initially posed by these requests, at least from a procedural standpoint, is that the Massachusetts Rules of Criminal Procedure, as they now exist, do not provide a mechanism for a defendant to petition the Commonwealth to conduct post-conviction DNA testing. As a result, the defense bar has sought testing pursuant to a Rule 30 mo- Mark T. Lee is an Assistant District Attorney in the Homicide Unit of the Suffolk County District Attorney s Office, where he manages a case load of homicide investigations and trials, as well as new trial motions related to past homicide cases. He has also worked in the office s Appellate and Major Felony Units. He came to Boston in 1997 from the Kings County District Attorney s Office in Brooklyn, New York, where he was an Assistant District Attorney for five years, the last two as Senior Trial Attorney. He is a graduate of Brown University and Fordham University School of Law. 1. MASS. R. CRIM. PRO. 30(b) (2001) states that [t]he trial judge upon motion in writing may grant a new trial at any time if it appears that justice may not have been done. Upon the motion the trial judge shall make such findings of fact as are necessary to resolve the defendant's allegations of error of law. 663

2 664 NEW ENGLAND LAW REVIEW [Vol. 35:3 tion for new trial based on newly-discovered evidence, even though, strictly speaking, a request for DNA testing is neither a motion for a new trial nor newly-discovered evidence, as that term is contemplated by the rule. Despite this procedural anomaly, the DA s office has recognized the importance, both morally and ethically, of providing a defendant some kind of meaningful access to DNA technology that could serve to exonerate him especially where the government now relies on that very science to convict him. That recognition has led the DA s office to examine its posture on motions for new trials based on newly discovered evidence, and in particular, DNA technology. Ordinarily, when faced with a direct appeal or a motion for new trial, the government typically opposes such appeals or motions. The government, however, must be vigilant against adopting an attitude that interferes with its obligation to objectively examine the merits of an appeal or a motion for new trial. This is particularly important when a motion for new trial is based on newly discovered evidence or DNA testing. Consequently, with respect to requests for DNA testing, the DA s office has adopted a position that it will not oppose a defendant s request for funds to have DNA testing performed. Within the Homicide Unit, which is where I work, we have encouraged the assistant district attorneys (ADA) to have open lines of communication with defense lawyers regarding motions for new trial that request DNA testing. Any defendant who files a motion for new trial is encouraged, through his lawyer, to contact the ADA in the Homicide Unit who is assigned to handle the motion, and to present to that ADA the theory under which DNA testing might help exonerate the defendant. We have consistently stated that the DA s office does not fear the results of DNA testing after all, if we are going to rely on it as a tool to procure convictions, then we should be equally enthusiastic about its value in identifying wrongly convicted defendants. Therefore, the government should not be in the business of impeding a defendant s access to the testing itself. Once the testing has been completed, the parties can debate its significance. A DNA test result that clearly exonerates a defendant should result in the Commonwealth s assent to the motion for new trial, and a test result that further incriminates a defendant will result in the Commonwealth s continued opposition to any post-conviction relief. To the extent that motions for new trial will be contested, they will be contested when there are irreconcilable differences of opinion regarding the significance of the test results. One way to illustrate this process is with the example that Peter (Neufeld) used the Danziger and Ochoa case. 2 Prior to hearing Peter speak, I 2. State v. Danziger, District Court of Travis County, 299th Judicial District, No. 94,518, Honorable Jon N. Wisser, Judge (1989); see also Alan Berlow, Texas

3 2001] MOTIONS FOR POST-CONVICTION RELIEF 665 did not know anything about the case, so I am working off of the facts that Peter provided. Assume that case occurred in Suffolk County, and that these two gentlemen were both convicted after trial. Assume further that at their trial, either DNA technology had not yet been developed or the technology was available but not utilized. Finally, assume that both defendants are now seeking post-conviction relief on the grounds of newly discovered evidence. I would like to think that as part of their new trial motion, lawyers for Mr. Ochoa or Mr. Danziger would have come to our office and explained to me the situation Peter described earlier there is a man in the prison system who has claimed to have found God, and he is confessing to the murder for which Ochoa and Danziger were convicted. In that instance, I would like to think that we would have taken the information provided by the lawyers, investigated it, and pursued DNA testing if it was likely to shed light on the issue of the defendants guilt. In his presentation, Peter also suggested that prosecutors should not stop at scrutinizing motions for new trials that raise DNA issues. He suggests that our examination should go beyond those cases to include motions for new trials that raise legitimate questions about a conviction, irrespective of DNA. I agree. I am presently working on a motion for new trial on a thirty-two-yearold murder case in which six people were convicted in 1968 for the killing of a man named Edward Teddy Deegan in Chelsea Massachusetts. Although each defendant had his conviction affirmed on direct appeal, there has always been talk surrounding the case that the government s chief witness framed one or more of the defendants. Over the course of the last thirty-two years, each defendant has either filed, or joined in, multiple motions for new trial based on newly discovered evidence allegedly supporting the defense theory of a frame-up. To date, the Supreme Judicial Court of Massachusetts has affirmed the denial of every motion for new trial based on newly discovered evidence. This case illustrates a number of issues. First, it shows how difficult it is for a defendant to prevail on a motion for new trial based on newly discovered evidence. In the Deegan case, the SJC has affirmed the denial of at least five motions for new trial. To prevail on a motion for new trial based on newly discovered evidence a defendant must satisfy the following standard: (1) he must show that the evidence is newly-discovered that is, he must show that the evidence could not have been discovered at the time of trial; and (2) he must establish that the newly discovered evidence casts real doubt on the justice of the conviction. If the appellate decisions in this area show anything, it is that defendants have a very tough hurdle to overcome when seeking a new trial based on the discovery Justice (visited Mar. 30, 2001) <http://www.salon.com/politics/feature/2000/10/31/ ochoa/print.html>.

4 666 NEW ENGLAND LAW REVIEW [Vol. 35:3 of new, exculpatory evidence. Second, the Deegan case poses an interesting ethical question. When there appears to be a growing body of evidence that tends to call into question the soundness of a conviction, should prosecutors demand the same of a defendant s motion for new trial that the appellate courts demand? Or, should prosecutors scrutinize the quality of the conviction more closely? For instance, in the Deegan motion for new trial, based upon our review of the case and our conversations with people close to the case, we have discovered a very strong undercurrent of thought that one or more of the defendants in that case may have been wrongfully convicted. Consequently, I face a dilemma as a prosecutor. Based on my review of the case s appellate history, I might believe that the motion should be denied based on the law. Against that, however, I must weigh my willingness to live with a conviction that increasingly appears to be flimsy. This has been a recurring theme in the Deegan case, and I am sure the issue is legitimately raised in other cases as well. My office has taken it upon itself not to look at just the legal standard for granting or denying a motion for new trial, but to examine whether the conviction appears solid and valid. One of the points that David (Meier) mentioned, and that I would like to reiterate, is that there are numerous factors beyond our control that can result in a compromised, or worse, wrongful conviction. There will be the occasional police officer who uses unscrupulous and dishonest practices. There are people who will make eyewitness identifications honestly but mistakenly, and those who make them purposefully and vindictively. To the extent that we can, it is our duty as prosecutors to ferret out these situations. Although we will not be 100% successful, I believe that the best way to uncover such problems is to conduct thorough investigations at the beginning of a case. Specifically, this means gathering as much information as possible. In Suffolk County, we use the grand jury aggressively to investigate and build cases. Part of building a solid case, however, involves testing the evidence we have gathered for its quality. This means not only defining the merits of the case and what our trial theory will be, but also critically assessing whether the evidence is of such a quality that we are convinced that we have done the right thing. This critical assessment ties in with something that Peter said earlier. Peter suggested that a district attorney s office should have an innocence unit. I believe that every good prosecutor already has an innocence unit built into his or her daily habits. In other words, every good prosecutor, as part of his or her routine investigation of a case, should subject every case to an objective, critical analysis. To conclude, the Suffolk County District Attorney s Office and Homicide Unit in particular have made a commitment to foster a cooperative relationship with the defense bar on motions for new trial based on re-

5 2001] MOTIONS FOR POST-CONVICTION RELIEF 667 quests for DNA testing. Furthermore, we believe that when funds for testing have been granted by the court, we have no reason to fear DNA testing, particularly since it is a tool upon which we rely to obtain convictions.

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