Post-conviction forensic testing under G.L. 278A & Rule 30
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Transcript Post-conviction forensic testing under G.L. 278A & Rule 30
Litigating Innocence Cases:
2015 update
LISA M. KAVANAUGH
CPCS INNOCENCE PROGRAM
SOMERVILLE, MA
DENISE MCWILLIAMS
NEW ENGLAND INNOCENCE PROJECT
BOSTON, MA
JANUARY 16, 2015
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
Discovery
Rule 30(c)(4)
G.L. ch. 278A, sec. 3(c) &
sec. 7(c)
Must establish “prima
May move for
facie case” for relief
Discretionary
Commonwealth or its
agents
discovery if can’t satisfy
3(b) or 7(b)
If good cause, court
“shall not” require
prima facie case
Includes third parties
Standard for obtaining testing/ analysis
Rule 30
G.L. ch. 278A
Testing sought “would have
Sec. (4) analysis “has
Would evidence “probably
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
produced results that likely
would have influenced the
jury’s conclusion.” Evans,
439 Mass. 184 (2003)
have been a real factor in
jury’s deliberations.”
Not only tied to innocence
Hearing
Rule 30
G.L. ch. 278A, sec. 6(a)
(c)(3) not required if
“Shall” order hearing if
“no substantial issue”
(c)(6) presence of
moving party not
required at hearing
sec. 3 satisfied
Moving party “shall be
present” unless movant
waives presence
Costs of testing for indigent defendants
Rule 30(c)(5)
G.L. ch. 278A
Commonwealth has
Sec. 2, costs “shall be
right to be heard
Entirely discretionary,
even if make out prima
facie case for relief
paid” if D indigent
Sec. 3, marginally
indigent – court can set
equitable fee
Appellate Review
Rule 30
G.L. ch. 278A
Abuse of discretion
Sec. 3(e) – if no
Written findings not
required
No right to immediate
appeal of denial of
post-conviction funds,
Celester v. C., 440
Mass. 1035 (2004)
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”
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, [email protected]
The CPCS Innocence Program is supported in part by Grant No. 2009-FA-BX0037 awarded by the Bureau of Justice Assistance and Grant No. 2013-DY-BXK006 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.