The Serial Podcast, Episode 7: Analyzing Maryland's DNA Law & Its Application to Adnan's Case

I've done twelve posts (here, here, here, here, here, here, here, here, here, here, here, and here) about Sarah Koenig's Serial Podcast, which deals with the 1999 prosecution of 17 year-old Adnan Syed for murdering his ex-girlfriend, 18 year-old Hae Min Lee. This post is about the seventh episode of the Serial Podcast: "The Opposite of Prosecution." This episode deals with the efforts of the Innocence Project at UVA in connection with Adnan's case. In turn, this post focuses on the procedural aspects of Maryland's DNA Law that the Innocence Project is trying to utilize.

According to this article from the Columbia Journalism Review, 

The UVA Innocence Project is poised to ask a court to test an old physical evidence recovery kit (PERK) that was used on Lee’s body to test for possible sexual assault in 1999 but was never tested for DNA. Serial producer Dana Chivvis confirmed that reporting is ongoing for the podcast, which averages a million downloads per weekly episode. But the reporting is not strictly chronological. It’s not always clear to the listener whether a piece audio was recorded in the previous week, or months ago.

The show has already mentioned the kit’s existence, but the legal process to test it for DNA is unfolding right now....

According to UVA Innocence Project director Deirdre Enright, her group and a pro bono lawyer in Maryland are about to file a motion to have the kit tested for DNA "as soon as possible." 

This motion is ostensibly being filed under Section 8-201 of the Maryland Code of Criminal Procedure.   So, first, why can Adnan file a motion to have the kit tested for DNA? Section 8-201(b) of the Code reads as follows:

(b)   Notwithstanding any other law governing postconviction relief, a person who is convicted of a violation of § 2–201, § 2–204, § 2–207, or §§ 3–303 through 3–306 of the Criminal Law Article may file a petition:

(1) for DNA testing of scientific identification evidence that the State possesses as provided in subsection (j) of this section and that is related to the judgment of conviction; or

(2) for a search by a law enforcement agency of a law enforcement data base or log for the purpose of identifying the source of physical evidence used for DNA testing.

A couple of points here: (1) Adnan was convicted of first-degree murder under Section 2-201 of the Maryland Code of Criminal Law, which is why Section 8-201(b) is triggered; and (2) Adnan's petition triggers Section 8-201(b)(1) because the kit falls under Section 8-201(j)(1):

(1) The State shall preserve scientific identification evidence that:

(i) the State has reason to know contains DNA material; and

(ii) is secured in connection with an offense described in subsection (b) of this section.

The second issue is: How does the State respond? Section 8-201(e) reads as follows:

(1) A petitioner shall notify the State in writing of the filing of a petition under this section.

(2) The State may file a response to the petition within 15 days after notice of the filing or within the time that the court orders.

So, that's pretty basic. Adnan has to give notice that he's filing a petition for DNA testing, and the State has 15 days to respond or longer if the court so orders. The third issue is then: What does the court consider in deciding whether to grant Adnan's petition for DNA testing? Section 8-201(d) reads as follows:

(1) Subject to subsection (e) of this section, a court shall order DNA testing if the court finds that:

(i) a reasonable probability exists that the DNA testing has the scientific potential to produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing; and

(ii) the requested DNA test employs a method of testing generally accepted within the relevant scientific community.

(2) A court shall order a data base search by a law enforcement agency if the court finds that a reasonable probability exists that the data base search will produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing.

Because the State has the kit, Adnan's petition triggers Section 8-201(d)(1). Assuming that Adnan is asking for a DNA test which satisfies Section 8-201(d)(1)(ii), the question becomes whether there's a reasonable probability that the DNA testing "has the scientific potential to produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction...."

This takes us to Postconviction DNA Testing: Recommendations for Handling Requests, a report by the National Commission on the Future of DNA Evidence, which the Court of Appeals of Maryland cited with approval in Blake v. State, 909 A.2d 1020 (2006). According to that report, there are five categories of cases in which a petitioner might seek DNA testing:

Category 1. These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, exclusionary results will exonerate the petitioner. In these cases, prosecutors and defense counsel should concur on the need for DNA testing.

Category 2. These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, exclusionary results would support the petitioner’s claim of innocence, but reasonable persons might disagree as to whether the results are exonerative. The prosecutor and defense counsel may not agree on whether an exclusion would amount to an exoneration or would merely constitute helpful evidence.

Category 3. These are cases in which biological evidence was collected and still exists. If the evidence is subjected to DNA testing or retesting, favorable results will be inconclusive. Future developments may cause such a case to be reassigned to a different category.

Category 4. These are cases in which biological evidence was never collected, or cannot be found despite all efforts, or was destroyed, or was preserved in such a way that it cannot be tested. In such a case, postconviction relief on the basis of DNA testing is not possible.

Category 5. These are cases in which a request for DNA testing is frivolous. In these cases, prosecutors and defense counsel should generally agree that no testing is warranted.

The report goes on to state that

Trial courts will likely be involved in category 1 and category 2 cases. By issuing orders, the court can play an important role in helping obtain access to evidence prior to testing, which is part of the screening process and helps determine if DNA evidence will be irrelevant to the case.

It's pretty clear that Adnan's case falls under Category 1 or Category 2, meaning that the court should grant testing. Ruling out the other possibilities, the report states that

Category 3 consists of cases in which, because of the present state of evidence or technology, testing will be inconclusive. Future developments may cause such a case to be reassigned to a different category.

This covers cases in which the evidence is so old or so small (as in the case of low copy number DNA) that testing is unlikely to produce reliable results. This does not seem to be the case for Adnan, with a good deal of evidence collected relatively recently in 1999. Category 4 doesn't apply because a PERK was done and, as far as we can tell, is still available. Finally, here are the considerations regarding whether to dump a case into Category 5:

1) whether the petitioner confessed or pleaded guilty at trial; 2) whether the petitioner testified to performing the charged act, but raised a defense such as consent, self-defense, duress, or entrapment; 3) whether the petitioner was caught in the act or other strong evidence of identity or involvement exists such as unambiguous fingerprint evidence; and 4) whether an earlier version of DNA testing had been performed but not introduced at trial.

So, it's Category 1 or 2 for Adnan, meaning that testing should be ordered.

The fourth issue is: How and when will the testing be done? Section 8-201(f) indicates that, if the court orders DNA testing, it will likely designate things such as "the specific evidence to be tested" and "the method of testing to be used." In turn, Section 8-201(g) states that:

(1) Except as provided in paragraph (2) of this subsection, DNA testing ordered under subsection (d) of this section shall be conducted as soon as practicable.

(2) Based on a finding of necessity, the court may order the DNA testing to be completed by a date that the court provides.

Section 8-201(g)(1) would apply in an extraordinary case such as a pending execution, so testing in Adnan's case would likely be done under Section 8-201(g)(1), with "as soon as practicable" likely not being as soon as Adnan would like.

The fifth issue is: Who pays for the testing? Section 8-201(h) provides that:

(1) Except as provided in paragraph (2) of this subsection, the petitioner shall pay the cost of DNA testing ordered under subsection (d) of this section.

(2) If the results of the DNA testing that the court orders under this section are favorable to the petitioner, the court shall order the State to pay the costs of the testing.

In other words, if only Adnan's DNA is detected or nobody's DNA is detected, Adnan's responsible for the costs of the testing under Section 8-201(h)(1). If some other person's DNA is detected, the State has to pay the costs of testing under Section 8-201(h)(2).

This gets is to the sixth and final issue, which is: What are the consequences of unfavorable or favorable results from the testing? Section 8-201(h) reads as follows:

(1) If the results of the postconviction DNA testing are unfavorable to the petitioner, the court shall dismiss the petition.

(2) If the results of the postconviction DNA testing are favorable to the petitioner, the court shall:

(i) if no postconviction proceeding has been previously initiated by the petitioner under § 7–102 of this article, open a postconviction proceeding under § 7–102 of this article;

(ii) if a postconviction proceeding has been previously initiated by the petitioner under § 7–102 of this article, reopen a postconviction proceeding under § 7–104 of this article; or

(iii) on a finding that a substantial possibility exists that the petitioner would not have been convicted if the DNA testing results had been known or introduced at trial, order a new trial.

(3) If the court finds that a substantial possibility does not exist under paragraph (2)(iii) of this subsection, the court may order a new trial if the court determines that the action is in the interest of justice.

(4) If a new trial is granted, the court may order the release of the petitioner on bond or on conditions that the court finds will reasonably assure the presence of the petitioner at trial.

So, if only Adnan's DNA is detected or nobody's DNA is detected, the court will dismiss the DNA petition under Section 8-201(h)(1). On the other hand, if somebody else's DNA is detected, a few possibilities exist. First, as I noted this post, Adnan has initiated a postconviction proceeding under Section 7-102. This is Adnan's current claim that he received the ineffective assistance of counsel (I noted that Adnan filed his petition under Section 7-103, which is the procedural component; 7-102 is the substantive component, covering his claim for ineffective assistance).

As I noted, I believe that Adnan is currently seeking leave to appeal the Circuit Court's rejection of his ineffective assistance claim to the Maryland Court of Special Appeals. But if favorable DNA evidence is found, Section 8-201(h)(2)(ii) indicates that the Circuit Court could reopen his postconviction proceeding under Section 7-104 and consider the significance of this new DNA evidence. This is one possibility if Jay's DNA is recovered. This would call Jay's version of events into further question but not necessarily prove Adnan's innocence.

Second, if the court finds a substantial possibility that these DNA results would have produced a different outcome at trial, the court can order a new trial under Section 8-201(h)(2)(iii). The Columbia article about the Innocence Project's efforts indicate that the petition for DNA testing references two alternate suspects: a suspect in the rape/murder of an Asian women in Baltimore county shortly after Hae's death and a mysterious second suspect. If the DNA of either man is detected, I imagine that the court would order a new trial under Section 8-201(h)(2)(iii).

Third, even if the court does not find such a substantial possibility, it can still order a new trial under Section 8-201(h)(3) "in the interest of justice." This seems to be the other possibility if Jay's DNA is recovered. While, again, this might not be enough to create a substantial possibility of a different outcome, it might be enough for the court to lose all faith in Jay's accounting of events. Combine that with defense counsel being suboptimal if not ineffective, and the court might find that a new trial is in the interest of justice.

-CM