DISTRICT OF COLUMBIACOURT OF APPEALS

No. 08-CO-1581

CHARLES A. HOOD, Appellant,

UNITED STATES OF AMERICA, Appellee.

APPEAL FROM THE SUPERIOR COURTOF THE DISTRICT OF COLUMBIA

CRIMINAL DIVISION

BRIEF OF AMICUS CURIAETHE MID-ATLANTIC INNOCENCE PROJECT

AND THE INNOCENCE NETWORK

IN SUPPORT’OF APPELLANT CHARLES A. HOOD,SUPPORTING REVERSAL

Dated: January 7, 2011 ¯

Daniel P. Westman, D.C. Bar No. 465028Jeremy Merkelson, D.C. Bar No. 997281Morrison & Foerster LLP1650 Tysons Blvd., Ste. 400McLean, VA 22102Telephone: (703) 760-7700Facsimile: (703) 760-7777

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES .............................................................................................iii

STATEMENT OF INTEREST ...........................................................................................1

SUMMARY OF ARGUMENT ..........................................................................................3

ARGUMENT ......................................................................................................................4

I. THE IPA SHOULD BE INTERPRETED TO BEST ACCOMPLISH ITSFUNDAMENTAL PURPOSE TO DO JUSTICE ..............................................................4

II. THE IPA SHOULD BE INTERPRETED IN A MANNER THAT BRINGS THEDISTRICT OF COLUMBIA IN STEP WITH EVERY OTHER JURISDICTION INTHE U.S. WITH A DNA TESTING STATUTE ...............................................................5

A. The IPA’s Definition of Testable Material .............................................................6

B. Forty-Eight Jurisdictions Have Broad Views of Testable Material ........................7

C. The Term "Visible" Must Be Read in the Context of DNA Testing Statutes andDNA Science .................................................................................................................. 8

Ill. THE IPA MUST BE INTERPRETED TO PERMIT USE OF SCIENTIFICALLYVALIDATED DNA EVIDENCE .......................................................................................9

A. With the Evolving Modem DNA Science, Touch DNA Testing, Along With TSRAnalysis, Has the Potential to Identify the Actual Perpetrator Even from Old andDegraded DNA Material Collected in Connection with the Crime .............................. 10

1. Modern Testing Methods Can Accurately and Reliably Identify DNA ProfileEven from Old or Degraded Samples Containing Extremely Small Amounts of DNA

11

a. STR technology has the ability to obtain DNA profiles from minute traces ofbiological material even from decades old samples ............................................. 11

b. Subsequent significant DNA technologies are capable of identifying little ordegraded DNA Material ....................................................................................... 13

c. Touch DNA permits technicians to obtain a DNA profile from very small,degraded, and compromised samples ...................................................................14

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ii

B. Advances in Technologies Designed to Obtain Touch DNA for InvestigativePurposes Have Resulted in a Trend among Jurisdictions in Favor of BroaderInterpretation of "Biological Material". ........................................................................15

1. Courts Have Embraced the New DNA Technologies and Allowed QualifiedInmates the Opportunity to Take Advantage of Advances in Technologies ThatWere Not Available at the Time of Their Trials .......................................................16

2. Touch DNA Testing Sought in This Case Has Helped to Exonerate SeveralInnocent People, and to Identify Actual Perpetrators ...............................................18

CONCLUSION .................................................................................................................20

Appendix 1’ Chart of Federal and State Innocence Protection Statutes ............................la

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iii

TABLE OF AUTHORITIESPage

CASES:

*800 Water Street, ]nc. v. District of Columbia Alcoholic Beverage Control Bd.,992 A.2d 1272 (D.C. 2010) .......................................................................................................8

*District Attorney’s Office v. Osborne:, 129 S. Ct. 2308, 2316 (2009) .........................................15

Gilmore v. United States, 699 A.2d 1130 (D.C. 1997) ....................................................................5

*Green v. Berge, 354 F.3d 675 (7th Cir. 2004) .............................................................................11

*Harvey v. Horan, 285 F.3d 298 (4th Cir. 2002) ..........................................................................13

Herring v, New York, 422 U.S. 853 (1975) ...................................................................................16

In re Pers. Restraint of Bradford, 165 P.3d 31 (Wash. Ct. App. 2007) ........................................17

Jones v. Murray, 962 F.2d 302 (4th Cir. 1992) .............................................................................11

*People v. Megnath, 898 N.Y.S. 2d. 408 (N.Y. Sup. Ct. 2010) ....................................................15

*Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751 (D.C. 1983) ........................5, 6

Shabazz v. State, 592 S.E. 2d 876 (Ga. 2004) ..........................................................................13, 14

*State v. DeMareo, 904 A.2d 797 (N.J. Super. Ct. App. Div. 2006) ......................................16, 18

State v. Emerick, 868 N.E.2d 742 (Ohio Ct. App. 2007) ...............................................................17

State v. Peterson, 836 A.2d 821 (N.J. Super. Ct. App. Div. 2003) ..........................................16, 18

*State v. Reynolds, 926 N.E.2d 315 (Ohio Ct. App. 2009) ...........................................................17

State v, Reynolds, No. 19083, 2002 WL 31341558 (Ohio Ct. App. Oct. 18, 2002) ......................17

State v. Wharton, No. 09CA3132, 2010 WL 3835644 (Ohio Ct. App. Sept. 30,2010) ........................................................................................................................................16

Swearingen v. State, 303 S.W. 3d 728 (Tex. Crim. App. 2010) ....................................................16

United States v. Brown, 333 U.S. 18 (1948) ....................................................................................5

*United States v. Sczubelek, 402 F.3d 175 (3d Cir. 2005). ............................................................11

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iv

FEDERAL AND STATE STATUTES:

18 U.S.C. § 3600A(b) ......................................................................................................................7

18 U.S.C. § 3600A(b)(2) ..................................................................................................................a

Ariz. Rev. Stat. § 13-4221 ...............................................................................................................7

Cal. Penal Code § 1405(t)(7) ...........................................................................................................7

Colo. Rev. Stat. Ann. § 18-1-410 etseq ..........................................................................................7

Innocence Protection Act of 2001, D.C. Code§ 22-4131, et. seq .......................................................................................................................4§ 22-4131(2) .......................................................................................................................6, 8, 9

725 Ill. Comp. Star. Ann. 5/116-3(a) ...............................................................................................7

Md. Code Area. Crim. Pro. § 8-201(a)(2) ....................................................................................7, 9

Mich. Comp. Laws Ann. § 770.16 ...................................................................................................7

Minn. Star. Ann. § 590.10 subd. 2 ...................................................................................................7

Miss. Code § 99-39-5(5)(a) ..............................................................................................................7

N.J. Stat. Ann. § 2A:84-32a ...........................................................................................................16

N.J. Star. Ann. § 2A:84A-32a(d)(7) .................................................................................................7

Ohio Rev. Code Ann. § 2953.74(B)(1) ..........................................................................................17

S.C. Code Ann. § 17-.28-20 ..............................................................................................................7

Tex. Code Crim. Pro. Ann. art. 64.01 et seq ....................................................................................7

Va. Code Ann. § 19.2-327.1 etseq ..................................................................................................9

13 Vt. Stat. Ann. § 5561(b) ..............................................................................................................7

OTHER AUTHORITIES:

I. Findlay et al., DNA Fingerprinting From Single Cells, 389 Nature 555 (1997) .......................12

Mark Hansen, The Uncertain Science of Evidence, 91-JUL A.B.A.J. 48 (July2005) ........................................................................................................................................10

Innocence Project, Facts on Post-Conviction DNA Exonerations ...................................................2

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Innocence Project. Know the Cases: Frank Sterling ......................................................................19

Innocence Project. Know the Cases: Stephan Cowans ..................................................................19

John M. Butler, Forensic DNA Typing: Biology and Technology Behind STRMarkers (2001) ..................................................................................................................12, 15

Chief Justice Thomas J. Moyer & Stephen P. Anway, Biotechnology and the Bar:A Response to The Growing Divide Between Science and the LegalEnvironment, 22 Berkeley Tech. L.J. 671 (2007) ..............................................................10, 20

National Institute of Justice, Office of Justice Programs, U.S. Dept of Justice,Using DNA to Solve Cold Cases (July 2002) ...........................................................................17

National Institute of Justice, Office of Justice Programs, U.S. Dept of Justice, TheFuture of Forensic DNA Testing: Predictions of the Research andDevelopment IVorking Group (Nov. 2000) ..............................................................................12

National Institute of Justice, Office of Justice Programs, U.S. Dept of Justice,Postconviction DNA Testing: Recommendations for Handling Requests (Sept.1999) ..............................................................................................................................9, 13, 14

President’s DNA Initiative, Basic Biology of DNA .......................................................................10

President’s DNA Initiative, Basics of DNA Typing .......................................................................11

President’s DNA Initiative, Gathering DNA Evidence ....................................................................7

President’s DNA Initiative, Identifying DNA Evidence ...................................................................8

President’s DNA Initiative, Solving Cold Cases ...........................................................................11

Richard Saferstein, Criminalistics: An Introduction to Forensic Science (6th ed.2004) .........................................................................................................................................12

Jonathan Saltzman & Mac Daniel, Man Freed in 1997 Shooting of Officer,BOSTON GLOBE, Jan. 24, 2004 .................................................................................................19

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BRIEF OF AMICUS CURIAEIN SUPPORT OF APPELLANT

STATEMENT OF INTEREST

Pursuant to Rule 29 of the District of Columbia Court of Appeals, the Mid-

Atlantic Innocence Project ("MAIP"), a 501(c)(3) charitable organization, and its

affiliate, the Innocence Network ("the Network"), through undersigned counsel,

respectfully submit this brief as amicus curiae in support of appellant Charles A. Hood.

Identity of Amicus Curiae

MAIP was established in the face of mounting evidence that innocent people are

incarcerated for criminal offenses - and sometimes even placed on death row - while the

real perpetrators remain free to carry out additional criminal acts. MAIP is dedicated to

help remedy such injustices, and, in doing so, to help improve the proper functioning of

the criminal justice system. MAIP’s core mission is the investigation and litigation of

innocence claims in the District of Columbia, Maryland, and Virginia. MAIP also

advocates for reforms to increase the reliability of the criminal justice system, thus better

protecting the community from dangerous criminals and reducing the costs of wrongful

convictions to society (and, of course, to the innocent convicts).

MAIP is based at American University’s Washington College of Law, and is

advised by an Honorary Board that represents a broad range of views on justice and

policy matters, including former federal judges and former senior federal prosecutors.

MAIP works with student groups at five area law schools, as well as a network of pro

bono attorneys, to investigate and litigate prisoners’ claims of actual innocence. MAIP

currently investigates approximately forty to sixty prisoner applications for assistance

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each month, and has helped secure the freedom of eight wrongfully convicted men.

Lessons learned from these investigations help MAIP to develop its legislative and policy

agenda for preventing and remedying failures in the criminal justice system.

The Innocence Network is an affiliation of organizations dedicated to providing

pro bono legal and investigative services to prisoners for whom evidence discovered after

conviction can provide conclusive proof of innocence. The 63 current member

organizations of the Innocence Network represent hundreds of prisoners with innocence

claims in all 50 states and the District of Columbia, as well as Canada, New Zealand, the

United Kingdom, and Australia.~

Over the past two decades, the Network has helped introduce DNA evidence into

courtrooms through its successful exoneration of hundreds of individuals.2 Drawing on

lessons learned from these cases, the Network advocates for reforms to ensure that future

wrongful convictions are prevented.

Interest of Amicus Curiae in the Case

DNA analysis is an invaluable tool for pinpointing the guilty party to a scientific

certainty, at any stage of the criminal process, and no matter how strongly other evidence

currently weighs against a defendant. DNA evidence can exclude a defendant from

suspicion, help identify the real perpetrator, or, at the very least, cast serious doubt as to a

defendant’s guilt due to the redundant appearance of another person’s genetic materials.

For these reasons, MAIP and the Network are committed to advocating for

The member organizations are listed at http://www.innocencenetwork.org/members.html (last visited Jan. 5,2011).

See Innocence Project, Facts on Post-Conviction DNA Exonerations, available at http://www.innocenceproject.org/Content/351 .php (listing cases) (last visited Jan. 5,2011).

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appropriate access to post-conviction DNA testing. This is a case with important

implications for the interpretation of the District of Columbia’s post-conviction DNA

testing statute, the D.C. Innocence Protection Act ("IPA"), D.C. Code § 22-4131, et. seq.

This Court’s interpretation of the IPA as applied to the facts of this case is particularly

important because it relates to the developing area of modem forensic science known as

"Touch DNA," which may allow experts to develop a DNA profile from as few as seven

or eight epithelial (or "skin") cells left behind on objects touched by a perpetrator. MAIP

and the Network are concerned that incarcerated individuals be given appropriate access

to post-conviction DNA testing using recent scientifically validated methods, whether or

not such methods existed in 2002 when the IPA was enacted, because such methods may

provide incarcerated individuals their only hope of exoneration and release from

wrongful imprisomnent.

Source of Authority to File Amicus Brief

MAIP and the Innocence Network filed a Motion for Leave to Late File a Brief as

Amicus Curiae on December 14, 2010. This Court granted that motion on December 29,

2010.

SUMMARY OF ARGUMENT

This Court should interpret the IPA in a manner consistent with its remedial

purposes to allow for the testing sought by Appellant. Such an interpretation will bring

the IPA in step with the post-conviction testing statutes in every other U.S. jurisdiction

with similar statutes, and will serve the interests of justice by allowing the IPA to be

flexible enough to keep pace with continually evolving scientific developments. There

are six items found at the scene of the crime for which Appellant was convicted that have

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never been tested for DNA. Such testing may lead to identification of the actual

perpetrator and exoneration of Appellant. MAIP and the Network join in Appellant’s

request that this Court reverse the trial court’s denial of Mr. Hood’s application to submit

those six pieces of physical evidence3 to STR DNA testing pursuant to the IPA.

ARGUMENT

I. THE IPA SHOULD BE INTERPRETED TO BEST ACCOMPLISH ITSFUNDAMENTAL PURPOSE TO DO JUSTICE

Since the early 1990s, more than 250 prisoners have been exonerated by analysis

of DNA evidence that either was not performed, or was not possible at the time of their

conviction.

Recognizing that it is fundamentally just to release those wrongly convicted,

many states, the District of Columbia, and the federal government passed legislation

designed to give prisoners post-conviction access to DNA testing which they asserted

could prove their innocence. This was the genesis of D.C.’s Innocence Protection Act of

2001, and this underscores the fundamental purposes of the IPA--to seek truth, identify

actual perpetrators, and free those wrongfully convicted.

This Court should construe the IPA in a manner consistent with these purposes.

The IPA’s statutory definitions need to be sufficiently elastic to accommodate any

situation where DNA evidence is left behind at a crime scene--on weapons left behind

after an assault, on items taken or known to have been touched by assailants, and on other

items that may contain exonerating DNA. The IPA should be interpreted in a manner

3 The six items are a knife hilt, a purse, two rings, a pair of scissors, and a pipe wrench,

all recovered at the crime scene. See Appellant’s Br. 21.

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that allows the statute to give full effect to the technology that led to its enactment as that

technology evolves.

II. THE IPA SHOULD BE INTERPRETED IN A MANNER THAT BRINGSTHE DISTRICT OF COLUMBIA IN STEP WITH EVERY OTHERJURISDICTION IN THE U.S. WITH A DNA TESTING STATUTE

The IPA is similar in many respects to the innocence protection statutes of other

jurisdictions. While appearing to place limits on testable materials, if viewed in isolation

such limits would make the IPA inconsistent with the statutes in every other jurisdiction.

These limitations would serve no scientific purpose, would offend the IPA’s truth-

seeking and innocence protection goals, and would cause absurd results.

"Basic principles of statutory construction require that the actual language of a

statute be ignored or revised to avoid the absurdity that would result if it were read

literally. See, e.g., United States v. Brown, 333 U.S. 18, 27 (1948) ("No rule of

construction necessitates our acceptance of an interpretation resulting in patently absurd

consequences."); Peoples Drug Stores, Inc. v. District of Columbia, 470 A.2d 751,754

(D.C. 1983) (en banc) ("a court may refuse to adhere strictly to the plain wording of a

statute in order ’to effectuate the legislative purpose’" (citation omitted)); Gilmore v.

United States, 699 A.2d 1130, 1132 (D.C. 1997).

Moreover, the language of the IPA should be interpreted in the context of DNA

testing science, and the other federal and state innocence protection statutes in the U.S.,

using such legal and scientific context to inform the terms used in the IPA. This Court

has recognized as follows:

First, even where the words of a statute have a "superficial clarity," areview of the legislative history or an in-depth consideration of alternativeconstructions that could be ascribed to statutory language may reveal

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ambiguities that the court must resolve. Second, "’the literal meaning of astatute will not be followed when it produces absurd results.’" Third,whenever possible, the words of a statute are to be construed to avoid"obvious injustice."

Peoples Drug Stores, 470 A.2d at 754 (citations omitted).

Accordingly, the IPA should be construed based on the assumption that the

legislature did not intend the IPA to be out of step with the innocence protection statutes

of 48 other jurisdictions, nor to be inconsistent with standard DNA collection and

analysis practices.

A. The IPA’s Definition of Testable Material

The range of materials that the IPA allows to be tested for potentially exonerating

DNA has two peculiar features.

First, the statute lists only seven categories of testable material, and does not

contain a catch-all provision. D.C. Code § 22-4131 (2). Thus, the statute allows testing

of DNA from those seven enumerated sources. However, the IPA does not specifically

disallow testing of DNA from other commonly-used sources such as sweat and

fingernails.

Second, the list of potential sources of DNA is qualified further in that skin cells,

and skin cells alone, be "visible." Id. The term "visible" must be interpreted in the

context of DNA testing which occurs in forensics laboratories using microscopes and

other standard laboratory equipment. It is well-recognized that "biological evidence is

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not always visible to the naked eye.’’4 Thus, it would be an absurdity to interpret the

IPA’s use of"visible" to mean "visible to the naked eye."

These two features of the IPA should be construed in a manner that avoids the

absurd result that the IPA is the only innocence protection statute in the U.S. that

disallows testing of common sources of DNA.

B. Forty-Eight Jurisdictions Have Broad Views of Testable Material

Forty-eight other jurisdictions have adopted statutes similar to the IPA. See

Appendix 1: Chart of Federal and State Innocence Protection Statutes, infra, 1 a-4a. Most

statutes contain no specific definition of testable material at all (see, e,g., Colo. Rev. Stat.

Ann. § 18-1-410 et seq.; Mich. Comp. Laws Ann. § 770.16; Tex. Code Crim. Pro. Ann.

art. 64.01 et seq.); those that do leave the definition specifically open-ended (see, e.g.,

725 Ill. Comp. Stat. Ann. 5/116-3 (a)). Others limit testable material only by reference to

the state of the scientific art (see, e.g., Cal. Penal Code § 1405 (f)(7); N.J. Stat. Ann. §

2A:84A-32a (d)(7)), allowing tests of any material so long as the tests are considered

sufficiently scientifically reliable.

Even those statutes with definitions of testable material that are most like the IPA

(see, e.g., Ariz. Rev. Stat. § 13-4221; Md. Code Ann. Crim. Pro. § 8-201 (a)(2); Minn.

Stat. Ann. § 590.10 subd. 2; Miss. Code § 99-39-5 (5)(a); S.C. Code Ann. § 17-28-20; 13

Vt. Stat. Ann. § 5561 (b); and 18 U.S.C. § 3600A (b)) require at most that the testable

material be "identified" or "identifiable" biological material. "Identifiable" or

"observable" suggests that biological material detectible through any means would

4 See President’s DNA Initiative, Gathering DNA Evidence, available at http://www.dna.

gov/basics/evidence_collection/(last visited Jan. 6, 2011).

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qualify for testing. Moreover, all of the other statutes that define biological material

contain a catch-all that allows for testing of material which is not specifically included in

the jurisdiction’s definition of biological material. (See, e.g., 18 U.S.C. § 3600A (b)(2),

defining "biological material" as "semen, blood, saliva, hair, skin tissue, or other

identified biological material" (emphasis added).)

This legal context suggests that the IPA’s lack of a prohibition on testing other

items should be construed to allow testing of other biological material besides the seven

enumerated categories in § 22-4131 (2).

Co The Term "Visible" Must Be Read in the Context of DNA Testing Statutesand DNA Science

The term "visible" cannot be viewed in isolation:

However, statutory language cannot be read in a vacuum. "[I]ndividualwords of a statute are to be read in the light of the statute taken as a whole,and where possible, courts should avoid constructions at variance with thepolicy of the legislation as a whole."

800 Water Street, Inc. v. District of Columbia Alcoholic Beverage Control Bd., 992 A.2d

1272, 1274 (D.C. 2010) (per curiam) (citation omitted). When placed in the appropriate

legal and scientific context, "visible" can only mean biological material that is observable

using standard DNA collection and analysis practice. Standard practice recognizes that

"just because you cannot see a stain does not mean there are not enough cells for DNA

typing.’’s

Moreover, the unclear origins of the term "visible" should cause this Court to be

wary of reading the IPA too narrowly. As explained in Appellant’s Br.(at 28-29), earlier

versions of the bill that became the IPA allowed testing of "observable" material. There

5 See President’s .DNA Initiative, Identifying DNA Evidence, availableathttp://www.dna.gov/basics/evidence_collection/identifying (last visited Jan. 6, 2011).

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is no explanation for the change from "observable" to "visible" evidence. Tellingly, the

language was not changed from "observable" to "visible to the naked eye," or "visible

without the aid of standard forensic equipment." Moreover, the statutes which inspired

the IPA have no such restrictions. (Md. Code Ann. Crim. Pro. § 8-201; Ya. Code Ann. §

19.2-327.1 et seq.; see Appellant’s Br. 30 - 31 .)

In sum, the IPA should be interpreted, consistent with its purposes, to allow

testing of materials outside the seven enumerated categories set forth in § 22-4131 (2),

including biological materials that are not "visible to the naked eye" or "visible without

the aid of standard forensic equipment."

III. THE IPA MUST BE INTERPRETED TO PERMIT USE OFSCIENTIFICALLY VALIDATED DNA EVIDENCE

Since the time of Mr. Hood’s trial in 1991, the technology for DNA testing "has

undergone rapid change that has increased both its capability to obtain meaningful result

from old evidence samples and its discriminatory capabilities." National Institute of

Justice, Office of Justice Programs, U.S. Dept of Justice, Postconviction DNA Testing:

Recommendations fi~r Handling Requests, at xiv (Sept. 1999) ("Recommendations"),

available at http://www.ncirs.gov/pdffilesl/nii/177626.pdf (last visited Jan. 6, 2011).

The ability of modem DNA analysis to identify criminals sometimes decades removed

from their crimes is nothing less than extraordinary. To date, there have been 265 post-

conviction exonerations based on DNA evidence, and in nearly one-half of those cases,

the true suspects and/or perpetrators have been identified using the very results that set

the innocent free.6 Therefore, the judicial system’s embracing of these modem DNA

technologies is simply "sound policy" because "the advent of genetic fingerprinting in the

~ See http://www.innocenceproject.org (last visited Jan. 5,2011).

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mid-1980s led to convictions that previously would have been impossible, exonerated

criminal suspects before prosecutors filed charges, and freed mistakenly convicted

defendants." See Chief Justice Thomas J. Moyer & Stephen P. Anway, Biotechnology

and the Bar." A Response to the Growing Divide Between Science and the Legal

Environment, 22 Berkeley Tech. L.J. 671,682 (2007).

In this case, Mr. Hood seeks to avail himself of Touch DNA testing of biological

evidence that may exist on six objects collected from the scene of the crime for which he

was convicted.

A. With the Evolving Modern DNA Science, Touch DNA Testing, Along WithTSR Analysis, Has the Potential to Identify the Actual Perpetrator Evenfrom Old and Degraded DNA Material Collected in Connection with theCrime

The scientific integrity and reliability of DNA testing have helped DNA replace

fingerprinting and made DNA evidence the new "gold standard" of forensic evidence.

See Mark Hansen, The Uncertain Science of Evidence, 91-JUL A.B.A.J. 48 (July 2005).

DNA, the abbreviation for deoxyribonucleic acid, is the fundamental building

block for an individual’s entire genetic makeup. It is a component of virtually every cell

in the human body, and a person’s DNA is the same in every cell.7 Thus, the DNA in a

person’s blood is the same as the DNA in his skin cells, saliva, and other biological

material. DNA analysis is a powerful tool because each person’s DNA, with the

exception of identical twins, is unique. Therefore, DNA evidence collected from a crime

scene can implicate or eliminate a suspect, similar to the use of fingerprints.

7 See President’s DNA Initiative, Basic Biology ofDNA, available at http://www.dna.gov

(last visited Jan. 5,2011).

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DNA is also a powerful tool because forensically valuable DNA can be found on

evidence that may be decades old.8 Therefore, old cases that were previously thought

unsolvable may contain valuable DNA evidence capable of identifying the perpetrator.

In addition, evidence invisible to the naked eye, such as the saliva on the stamp of a

stalker’s threatening letter, the perspiration on a rapist’s mask, or the skin cells shed on a

ligature used to restrain or strangle a victim, may hold the key to solving a crime such as

a residential burglary, sexual assault, or murder.9

DNA identification "provides a dramatic new tool" for identifying perpetrators

because "[e]ven a suspect with altered physical features cannot escape the match that his

DNA might make with a sample contained in a DNA bank, or left at the scene of a crime

within samples of blood, skin, semen, or hair follicles." United States v. Sczubelek, 402

F.3d 175, 185 (3d Cir. 2005) (quoting Jones v. Murray, 962 F.2d 302, 307 (4th Cir.

1992)); see also Green v. Berge, 354 F.3d 675, 679 (7th Cir. 2004) ("DNA is the most

reliable evidence of identification--stronger even than fingerprints or photographs.").

1. Modern Testing Methods Can Accurately and Reliably Identify DNAProfile Even from Old or Degraded Samples Containing ExtremelySmall Amounts of DNA

a. STR technology has the ability to obtain DNA profiles fromminute traces of biological material even from decades oldsamples

DNA technology’s sophistication is now capable of linking an offender to his or

her victim or crime scene with a fleck of blood, perspiration in underwear or the

headband of a baseball cap, saliva on the rim of a cup or a postage stamp, or through

~ See President’s DNA Initiative, Basics of DNA Typing, available at http://www.dna.gov(last visited Jan. 5,2011).9 See President’s DNA Initiative, Solving Cold Cases, available at http://www.dna.gov

(last visited Jan. 5,2011).

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"Touch DNA’" on a telephone receiver held by the suspect. Short Tandem Repeat (STR)

technology and a national DNA databank system - the Combined DNA Index System

("CODIS") maintained by the Federal Bureau of Investigation ("FBI"), are responsible

for many of these scientific advancements.

STR DNA testing first became validated for use in laboratories nationwide in

1999. See John M. Butler, Forensic DNA Typing: Biology and Technology Behind STR

Markers 9 (2001). The development of the Polymerase Chain Reaction (PCR) procedure

increased the sensitivity of analysis and allowed for the copying of these STRs to

increase the quantity of DNA samples available for analysis. Richard Saferstein,

Criminalistics: An Introduction to Forensic Science 416-420 (6th ed. 2004).

Remarkably, STR "can be used with degraded samples" and it "permits analysis

of extremely small amounts of DNA." See National Institute of Justice, Office of Justice

Programs, U.S. Dept of Justice, The Future of Forensic DNA Testing: Predictions of the

Research and Development Working Group 41 (Nov. 2000) ("Future of Forensic DNA

Testing"); see also I. Findlay et al., DNA Fingerprinting From Single Cells, 389 Nature

555 (1997) (noting that STR DNA testing can often yield reliable results from even a

single cell of biological material); Tamyra R. Moretti, Ph.D. & Bruce Budowle, Ph.D.,

The CODIS STR Project: Evaluation of Fluorescent Multiplex STR Systems, presentation

at 50th Annual American Academy of Forensic Science Meeting (Feb. 9-14, 1998) (The

FBI noted that "STR typing results can be routinely achieved from typical forensic

specimen, including degraded and

amplification of several STR loci...

DNA consumption and the chance of contamination ....").

low-quality DNA samples. The simultaneous

expedites and simplifies samples analyses, reduces

STR testing, which

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13

identifies individuals through the differences in thirteen separate regions of a person’s

DNA, is so discriminating that "cellular-size samples . . . can distinguish between any

two individuals on the planet." Harvey v. Horan, 285 F.3d 298, 305 (4th Cir. 2002). In

fact, STR "can be used to amplify very small amounts, less than 1 ng. of DNA" (1 ng. = 1

billionth of a gram). Future of Forensic DNA Testing, supra, 39. Thus, material that at

one time was thought to contain insufficient material for conclusive biological testing has

been utilized successfully later. ~0

Further, an STR detected profile can be entered into CODIS, which currently stores

the DNA profiles of over 5 million convicted offenders.~l Because the "statistical

probabilities of STR DNA matches ranging in the hundreds of billions, if not trillions,"

this method of DNA analysis establishes "to a virtual certainty whether a given individual

did or did not commit a particular crime." Harvey, 285 F. 3d at 305.

b. Subsequent significant DNA technologies are capable ofidentifying little or degraded DNA Material

Y-chromosome short tandem repeat technology (Y-STR), a specialized form of

STR test to target male DNA, provides another means for testing evidence. See e.g.,

Shabazz v. State, 592 S.E. 2d 876 (Ga. 2004) (discussing Y-STR testing in a case where

such results were used to link defendant to male DNA in rape kit evidence after STR

10 As the Recommendations instruct, "Many samples that proved inconclusive withRFLP testing have been retested using PCR and the results have been exonerative ....Samples that were inconclusive with nuclear PCR testing may be suitable formitochondrial DNA testing and could lead to exonerations in the future. Other tests notnow available could be used in the future to confirm convictions or to exoneratedefendants." Recommendations at 64.

~ See NDIS Statistics, available at http://www.fbi.gov/about-us/lab/codis/ndis-statistics(last visited Jan. 6, 2011).

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analysis failed to generate the male donor’s profile). Y-STR is capable of identifying the

genetic profile of male DNA in rape kit samples through testing of skin cells left during

intercourse. Thus, biological material that previously could not positively identify or

exclude a suspect could now definitively exonerate or implicate individuals. Id.

Subsequently, mitochondrial DNA (MtDNA) provided a new method for testing

biological material. Mitochondrial DNA testing is appropriate and highly probative

where there exists "very little or highly degraded nuclear DNA" for which other forms of

DNA testing are inappropriate. See Recommendations at 28. Mitochondrial DNA testing

can be performed on "dried bones or teeth, hair shafts, or any other samples that contain

very little or highly degraded DNA." Id.

c. Touch DNA permits technicians to obtain a DNA profile fromvery small, degraded, and compromised samples

Touch DNA has provided another means of possibly excluding and implicating

suspects in a crime. Touch DNA, also referred to as a type of low copy number (LCN)

DNA, results when an individual comes into contact with or touches an object, leaving

small amounts of biological material like skin cells on the object’s surface. See J.M.

Butler, Introduction to Low Copy Number (LCN) DNA Testing Issues, presentation at

MAAFS DNA Workshop, Richmond Va. (May 3, 2006);~2 see also Recommendations at

xiii (noting that types of biological samples suitable for DNA testing include skin, which

"not only helps to convict, but also serves to exonerate.").

Available at www.cstl.nist.gov/biotech/strbase/training.htm (last visited Jan. 6, 2011).

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LCN DNA typing has been defined as "the analysis of any results below the

stochastic threshold for normal interpretation,’’13 using samples of microscopic amounts

of DNA for analysis. Butler, Introduction to LCN DNA Testing Issues, supra, 1. ~4 LCN

NDA testing is conducted "by increasing the number of times the DNA is amplified or

more specifically by increasing the amplification cycle from 28 times as is used in HCN

DNA testing to 31 cycles as is used in LCN DNA tests." People v. Megnath, 898 N.Y.S.

2d. 408, 410 (N.Y. Sup. Ct. 2010). The trial court in Megnath stated that the LCN

method was "basically the same method of DNA testing that occurs with HCN DNA

testing" since "the scientific process.., is essentially the same." The scientific technique

underlying LCN DNA testing therefore allows forensic scientists to "use smaller amounts

of DNA evidence" such as "skin cells left on an object" to be tested. Id. at 413, 411. The

Megnath court stated that LCN DNA testing had been used worldwide for over 10 years

and concluded that "LCN DNA testing . . . was generally accepted as reliable in the

forensic scientific community." Id. at 413.

In this country, 48 states have statutes giving access to post-conviction DNA

testing on biological materials including skin cells. See App., infra, 1 a-4a.

B. Advances in Technologies Designed to Obtain Touch DNA for InvestigativePurposes Have Resulted in a Trend among Jurisdictions in Favor of BroaderInterpretation of "Biological Material"

The United States Supreme Court recently stated in District Attorney’s OJfice v.

Osborne:

~3 Budowle, Bruce et al., Low Copy Number--Consideration and Caution, Genetic

Identity Conference Proceedings. Twelfth International Symposium on HumanIdentification 2001.

Available at www.cstl.nist.gov/biotech/strbase/training.htm (last visited Jan. 6, 2011).

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Modern DNA testing can provide powerful new evidence unlike anythingknowr, before. Since its first use in criminal investigations in the mid-1980s, there have been several major advances in DNA technology,culminating in STR technology. It is now often possible to determinewhether a biological tissue matches a suspect with near certainty. Whileof course many criminal trials proceed without any forensic and scientifictesting at all, there is no technology comparable to DNA testing formatching tissues when such evidence is at issue. DNA testing hasexonerated wrongly convicted people, and has confirmed the convictionsof many others.

129 S. Ct. 2308, 2316 (2009) (internal citations omitted.) The Supreme Court has also

stated that the "ultimate objective" of our system of criminal law is that "the guilty be

convicted and the immcent go free." IIerring v. New York, 422 U.S. 853, 862 (1975).

Thus, when scientific advances give the courts the tools to ensure that the innocent can go

free, and that actual perpetrators can be convicted, laws such as the IPA should be

interpreted in manner that allows use of those advances in science.

Courts Have Embraced the New DNA Technologies and Allowed QualifiedInmates the Opportunity to Take Advantage of Advances in TechnologiesThat Were Not Available at the Time of Their Trials

Due to advances in DNA technology, especially the availability and sensitivity of

the STR test, and fact that individuals leave sweat and/or skin cells behind on items that

they handle, items used or touched by a perpetrator are common items of evidence to

test.

~s See State v. DeMarco, 904 A.2d 797, 803 (N.J. Super. Ct. App. Div. 2006) (ordering

post-conviction DNA testing under N.J. Stat. Ann. § 2A:84-32a and noting that "’state ofthe art’ [STR] DNA testing now enables the testing of [even] extremely small ordegraded DNA samples"); State v. Peterson, 836 A.2d 821, 828 (N.J. Super. Ct. App.Div. 2003) (ordering post-conviction DNA testing under N.J. Star. Ann. § 2A:84-32a andnoting that "DNA testing has become more common and more reliable" since the early1990’s); State v. Wharton, No. 09CA3132, 2010 WL 3835644 (Ohio Ct. App. Sept. 30,2010) (noting that forensic scientist’s testimony on Touch DNA bolsters a finding thatthe defendant actually possessed the drugs in the console); Swearingen v. State, 303 S.W.3d 728, 733 (Tex. Crim. App. 2010) ("The concept that individuals deposit their DNA onobjects that they touch . . . is not a novel concept. No credible DNA analyst could

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Indeed, weapons, ligatures, and victim’s clothing are common items of evidence

to submit for STR analysis. See National Institute of Justice, Office of Justice Programs,

U.S. Dept of Justice, Using DNA to Solve Cold Cases 1-2, 21 (July 2002) (listing items

such as guns, baseball bats, tape, and ligatures as common items of evidence for DNA

testing to identify the perpetrator of a crime with the source of the assailant’s DNA being

skin cells, sweat, and saliva).

In State v. Reynolds, 926 N.E.2d 315 (Ohio Ct. App. 2009), Reynolds had been

convicted by a jury of aggravated robbery and felonious assault in 2001 and a trial court

denied Reynolds’s application for post-conviction DNA testing. See State v. Reynolds,

No. 19083, 2002 WL 31341558 (Ohio Ct. App. Oct. 18, 2002). Reversing the trial court,

the appellate court quoted State v. Ernerick as follows:

While it is true that DNA testing was an accepted practice at the time ofhis trial, the technology has advanced to such a degree that Emerick isentitled to additional testing using the new technique. Because Y-STRDNA analysis was not available at the time of his prosecution, thebiological materials Emerick seeks to be tested are eligible for analysispursuant to [Ohio Rev. Code Ann.] § 2953.74(B)(1).

Reynolds, 926 N.E.2d at 318 (quoting State v. Emerick, 868 N.E.2d 742, 745 (Ohio Ct.

App. 2007)). The court agreed with Reynolds "that the absence of his DNA and the

simultaneous presence of a known felon’s DNA from CODIS would create a strong

probability of a different outcome." Id. at 319. The court also noted that "the job of

determining whether the parent sanaple of the biological evidence collected is of

question that conclusion."); In re Pers. Restraint of Bradford, 165 P.3d 31 (Wash. Ct.App. 2007) (vacating defendant’s conviction for a 1996 attack when in 2005 DNA testingperformed on a piece of tape the perpetrator had used to adhere a mask to cover thevictim’s face generated a male DNA profile that excluded the defendant).

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sufficient quantity and in suitable scientific condition to be submitted for testing belongs

to the ’testing authority’ and not the trial court."

In DeMarco, 904 A.2d at 801-02, the defense argued at trial that the results of its

DNA testing of a semen sample found on the victim excluded the defendant as the

source, while the State argued that it did not. The court used the same analysis as in

Peterson, and noted that advances in DNA testing and other developments indicated the

possibility that another person whose DNA was in State databases could be positively

identified as the perpetrator. Id. at 804-07. As a result, the denial of defendant’s post-

conviction motion for DNA testing was reversed on appeal, and the case was remanded

to the trial court for further DNA testing on the remaining biological samples.

2. Touch DNA Testing Sought in This Case Has Helped to Exonerate SeveralInnocent People, and to Identify Actual Perpetrators

Testing of Touch DNA has played a substantial role in exonerating several

innocent people. This technology has produced astonishing DNA exonerations results

due to both the minute traces of evidence involved and the grave errors that the

exonerations have revealed. Often, the defendant’s guilt had appeared to be beyond

dispute before DNA testing showed otherwise.

For example, in 1997, Stephen Cowans was convicted of shooting a Boston police

officer. The evidence against him included an eyewitness identification by the surviving

victim, and testimony by two police department fingerprint analysts that prints taken

from the crime scene matched Cowan’s. In May 2003, Cowans obtained STR-DNA

testing on saliva from a glass of water that the perpetrator drank at the scene and skin

cells from the band of a hat that fell offhis head while fleeing, both of which yielded the

same STR-DNA profile, which did not match the DNA profile of Cowans. In 2004,

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DNA testing of a white sweatshirt worn by the assailant also revealed the same profile

found on the baseball hat and the swab of the glass mug. The fingerprint was then re-

analyzed, and, after police concluded that both analysts had made "a mistake," Cowans

was exonerated and released from prison in January. See Jonathan Saltzman & Mac

Daniel, Man Freed in 1997 Shooting of Officer, BOSTON GLOBE, Jan. 24, 2004.16

Another example is the case of Frank Sterling, who served more than 17 years in

New York prisons before DNA testing obtained by the Innocence Project led to his

exoneration in 2010. He was convicted based almost exclusively on a false confession he

gave after hours of police interrogation. In 2006, testing for Touch DNA to detect sweat

and skin cells left by a perpetrator was performed on numerous pieces of the victim’s

clothing. Results on two key areas of the clothing where the perpetrator would have

grabbed the victim while beating her and dragging her body conclusively excluded

Sterling and implicated another person. The DNA evidence of Sterling’s innocence was

corroborated in January 2010 when the real perpetrator gave a detailed confession. On

April 28, 2010, Sterling was officially exonerated at the age of 46.17

Notably, the District of Columbia courts have allowed testing for Touch DNA in

recent cases. In the Chandra Levy case, the Superior Court of the District of Columbia

granted the defendant’s request for DNA testing of certain evidence, including clothing,

shoes, knives, cassette player, cash and other items.18

16 See also Innocence Project. Know the Cases: Stephan Cowans, available at

http://www.innocenceproject.org/Content/Stephan_Cowans.php (last visited Jan 6, 2011).

See Innocence Project. Know the Cases: Frank Sterling, available athttp://www.innocenceproject.org/Content/Frank_Sterling.php (last visited Jan 6, 2011).

is See Order, United States v. Guandique, No. 2009-CF1-9230, (DC Super. Ct., Crim.

Division-Felony Branch, Feb. 2010).

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The six items that Mr. Hood seeks to have tested for Touch DNA may contain

DNA that matches the real perpetrator, who may confess that he or she, not Mr. Hood,

~9committed the crime for which Mr. Hood has been incarcerated for 20 years.

CONCLUSION

The parties appear to agree that six items found at the scene of the crime for

which Mr. Hood has been convicted have never been tested for DNA. For the reasons

articulated above, MAIP and the Network join in Mr. Hood’s request that this Court

reverse the trial court’s denial of Mr. Hood’s application to submit those six pieces of

physical evidence to STR DNA testing pursuant to the IPA. Without subjecting each of

these items to DNA testing, the possibility exists that Touch DNA may exonerate Mr.

Hood and identify the actual perpetrator of the crime. Mr. Hood should have the

opportunity to prove that someone else committed the crime for which he has now served

twenty years in prison.

MAIP and the Network thank this Honorable Court for the opportunity to submit

this brief of amicus curiae.

~9 It is easy to dismiss such scenarios as "fanciful," "imaginative," or "speculative."

Skeptics are encouraged to read the following article co-authored by the Chief Justice ofthe Ohio Supreme Court. Chief Justice Thomas J. Moyer & Stephen P. Anway,Biotechnology and the Bar: A Response to The Growing Divide Between Science and theLegal Environment, 22 Berkeley Tech. LoJ. 671, 688 n.91 (2007) (discussing case inwhich a convicted person was exonerated seven years after the crime through DNAevidence obtained from the victims).

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Dated: January 7, 2011

Daniel P. Westman, D.C. Bar No. 465028Jeremy Merkelson, D.C. Bar No. 997281Morrison & Foerster LLP1650 Tysons Blvd., Ste. 400McLean, VA 22102Telephone: (703) 760-7700Facsimile: (703) 760-7777

Counsel for Amicus Curiae

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY, that I have caused a copy of the foregoing Brief of

Amicus Curiae, the Mid-Atlantic Innocence Project and the Innocence Network, In

Support of Appellant Charles A. Hood to be hand-delivered to the Office of Leslie Ann

Gerardo, Esq., Appellate Division, Office of the United States Attorney for the District of

Columbia, 555 4th Street, N.W., Washington, DC 20530, and sent via U.S. Mail to the

Office of Sydney J. Hoffmann, Esq., P.O. Box 42733, Washington, DC 20015 on this 7th

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