EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, January 2, 2015

The Serial Podcast: What If Neither of Them Did It? Maryland's New DNA Standard

I've posted 26 entries 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, on January 13, 1999. These posts are collected in my Legal Companion to the Serial Podcast. The popular assumption is that either Adnan or Jay, the key witness for the prosecution, must have killed Hae. But what if neither of them did it? The UVA Law Innocence Project is in the process of filing a request for forensic testing. This prompts two questions: (1) Is there any possibility that this testing will uncover some third party's DNA; and (2) What would be the legal implications of such a finding? The answer to both of these questions can be found in Thompson v. State, 985 A.2d 32 (Md. 2009), a case that bears some striking similarities to Adnan's case.

In Thompson

On August 2, 1987, Colleen Williar was found dead in her home. She was nude and had been stabbed, strangled, and sexually assaulted. The Petitioner, James Thompson, lived near her home. The day after Williar's body was discovered, Thompson approached police with a knife and told them that he found the knife in a grassy area near Williar's home. He surrendered the knife to the police and also turned over a pair of bloodstained cut-off jeans he claimed he was wearing when he found the knife.

In an interview with police a few days later, Thompson revealed that the knife belonged to him and went missing prior to August 1st. According to Thompson, his purported accomplice, James Owens, told him where to find the knife on the morning of August 2nd. Thompson also told police that when disclosing the location of the knife, Owens told him that he had sex with and "'copped dope from'" Williar. Based on these allegations and other circumstantial evidence, Owens was charged as the sole perpetrator of the rape and murder of Williar.

Film buffs might note that this "I lost my knife" accounting is very similar to the one given in the classic movie, "12 Angry Men." Most anyone might conclude that either Thompson or Owens must have been the guilty party. But let's continue with the case.

Owens was charged with felony murder, burglary, and rape. Thompson was the key witness for the prosecution, but his story kept changing, maybe as many as six times. Eventually, Thompson changed a key aspect of his story. In this new version, Owens didn't merely tell him the location of the knife the morning after Williar's murder;  he brought him the knife. When Thompson finally testified at Owens's trial, "[h]is testimony was inconsistent with the chronology of events the morning after the murder and appeared so untruthful that the prosecutor was worried about the 'prognosis of the case[.]'" For the most part, though, this concern was unwarranted because the jury convicted Owens of felony murder and burglary, but it did acquit him on the rape count.

That rape count was reserved for Thompson, who was later tried and convicted of that crime; he was also convicted of burglary, felony murder, and a weapons offense. One of the key pieces of evidence against Thompson was that the blood found on his blue jeans was the same blood type of the victim.

After he was convicted, Thompson moved under Section 8-201 of the Maryland Code of Criminal Procedure for forensic testing of (1) the blood found on his blue jains; and (2) sperm on a cytology slide taken from the victim. The court granted the motion, and the testing revealed that (1) the blood did not belong to the victim; and (2) both Thompson and Owens were excluded as depositors of the sperm on the cytology slide.

Thompson thus filed a Petition for Postconviction Relief and Motion for New Trial, contending that "[n]ewly discovered DNA testing conclusively establishes that two innocent men were wrongly convicted for the 1987 rape and murder of Colleen Williar." Owens also moved for a new trial, and the State joined in his motion. The State, however, didn't join in Thompson's petition, and the postconviction court denied it, concluding that 

Since the DNA evidence does not show that the Petitioner is innocent of the underlying crime of burglary, coupled with his confession stating that he burglarized the house as the victim was murdered, this Court does not concur with the Petitioner that the DNA evidence exculpates him of the primary crime of which he was accused-felony murder.

On appeal, the Court of Appeals of Maryland vacated and remanded, and here's where we get to the legal standard. Prior to 2008, newly discovered DNA evidence could only lead to a new trial if it met the standard set forth in Maryland Rule 4-331(c)(3). This required proof that the DNA evidence showed "that the defendant [wa]s innocent of the crime of which the defendant was convicted." 

But, as the court noted in Thompson, Maryland's DNA law, Section 8-201, was amended in 2008 to create "a more liberal standard—'substantial possibility' of acquittal—for proving the right to a new trial than the Rule 4–331 standard, which requires a showing of actual innocence." The court went on to note that this "substantial possibility" test is the same as the "reasonably probability" test that is used in ineffective assistance of counsel claims, such as the one that Adnan currently has pending. In other words, the DNA evidence doesn't have to exclude the defendant as the person who committed the crime; it merely has to create reasonable doubt regarding the case the State presented against the defendant at trial.

Using this new standard on remand, the postconviction court granted Thompson a new trial, just as it had done for Owens. The State decided not to reprosecute Owens, who later sued the Baltimore Police Department, three of its officers, and an assistant state's attorney, claiming "that police and the prosecutors who handled his case purposely withheld relevant evidence from him and his attorney, and they knew they were presenting perjured testimony against him, which led to his conviction." The Fourth Circuit recently said that this lawsuit could proceed. The State did recharge Thompson, and he eventually entered an Alford Plea to second-degree murder and was sentenced to time served.

So, what does all of this mean? First, to quote the great William Goldman, "Nobody knows anything." Maybe it was some third party who killed Hae Min Lee. Second, while DNA evidence almost certainly would not have helped Adnan under Maryland's old standard, it has a much better chance of helping him under the new standard. 

Here's a typical case of proving actual innocence: An eyewitness sees a knife fight in an alley, which ends with one of the participants dying. The eyewitness later identifies the defendant as the killer. DNA testing subsequently excludes the defendant as the source of blood on the victim's clothes. In this case, we know we likely have one killer, and it isn't the defendant. Actual innocence.

In Adnan's case, we don't know how many people were involved in the death and burial of Hae Min Lee. It could be one person. Or two. Or three. Therefore, DNA evidence could point to some third party, and it wouldn't necessarily prove Adnan's actual innocence. But it would likely create a substantial possibility of a different outcome at trial given the overall weakness of the State's case.

-CM

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Comments

Professor, I still don't understand why DNA testing wasn't done for the original trial. It seems like testing the DNA from material found under the victim's nails and the hairs on her body, and comparing it to any possible suspects, would be standard procedure. Is it unusual that these tests were never done? Or was DNA evidence not routinely used at that time?

Posted by: francis | Jan 2, 2015 6:42:56 AM

I can see why the prosecution didn't ask for DNA testing. Jay told them that Adnan was wearing gloves, and there isn't relevant DNA evidence in the vast majority of murder cases. As for defense counsel, I'm not sure.

Posted by: Colin Miller | Jan 2, 2015 8:09:21 AM

I may be wrong, but I thought foreign material was found under Hae's nails. If so, wouldn't that very likely contain DNA from a struggle during the murder even if Adna wore gloves? It seems like the prosecution went out of it's way to avoid gathering evidence that could undermine it's preferred narrative.

Posted by: francis | Jan 2, 2015 9:16:53 AM

It is likely that in 1999, the type of forensic DNA testing being used would not have been helpful in determining a foreign DNA profile from the fingernails. It may have been screened as a candidate for potential DNA testing, but the limitations using RFLP made it unlikely to have been helpful. Advances today allow for a very small amount (tens of nucleated cells, rather than hundreds with RFLP) to generate a profile for comparisons.

Posted by: lk | Jan 2, 2015 1:58:37 PM

Thanks, lk. That makes sense.

Posted by: francis | Jan 2, 2015 4:06:29 PM

To francis's question above, not only has DNA testing technology of evidence improved, but it has gotten cheaper and more available. I recall not too many years ago that most big cities has disturbingly long wait times for the DNA processing of rape kits in cases where there was definitely semen recovered. Part of the problem was the expense, and part of the problem was there simply weren't enough labs and technicians to do the work. So rapists were going free for lack of evidence against them.

From what I've read, it seems like Adnan's attorney didn't think he would be convicted. She may have considered it a waste of money and unnecessary.

Posted by: Kevin | Jan 5, 2015 10:49:25 AM

Whatever happened to this new DNA testing? What were the results? I thought I'd heard it'd take five months but it's been ten.

Posted by: Alexandra | Oct 26, 2015 10:48:13 PM

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