Amicus Curiae Brief — Moore v. Maryland (No. 05-1411)

FILED

O> JUL 6 - 2006

OFFICE OF THE CLERK

SUPREME COURT. U.S.

No. 05-1411

IN THE

Supreme Court of the Cnited States

FREDERICK JAMES MOORE,

Petitioner,

¥,

STATE OF MARYLAND,

Respondent.

On Petition for a Writ of Certiorari

To The Maryland Court of Appeals

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

Of Counsel: WILLIAM F. SHEEHAN

PAMELA HARRIS, Co-Chair Counsel of Record

Amicus Committee JOHN MOUSTAKAS

NATIONAL ASSOCIATION OF = ANNE M. SMETAK

CRIMINAL DEFENSE LAWYERS GOODWIN | PROCTER LLP

1625 I Street, NW 901 New York Avenue, NW

10th Floor Washington, D.C. 20001

Washington, D.C. 20006 Tel: 202-346-4000

Tel: 202-383-5386

Counsel for Amicus Curiae

July 6, 2006

Fae

TABLE OF CONTENTS

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INTEREST OF THE AMICUS CURIAE...............:c0scce0000 I

DUREURIIMIER APE” PRMRMBUIIVEEGIN F o..ccncssssncccsesseesncsecscccosccnsscens l

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I. Criminal Defendants Need an Independent

Expert To Mount a Meaningful Defense to DNA

Mi eiac Cle decbbcksinakaveisiaséeicesesévesnsesecveseseses 3

A. DNA Testing Is Subject to Human Error. ......... 3

Bere We OURME RT BTNOT cn cicsscncveccnsedeccssesevese 4

2. The Potential for and Occurrence of

LLL ch bnddah suuikehisehisaviscabssbsocicusceassne 7

B. An Independent Expert Protects Against

Ne is. <caswaaejevasncbeccanenses 1]

II. Petitioner’s Constitutional Right to an Expert

_ Cannot Be Conditioned on Relinquishment of

His Constitutional Right to Counsel. ..................... 13

RIAD siren Suudninvscisnshosscssccaccsnsvecsvecssensooseess 18

TABLE OF AUTHORITIES

CASES

Ake v. Oklahoma, 470 U.S. 68 (1985) ..........:c.000 Se Sa

Caplin & Drysdale, Chartered v. United States, 491

RFE Fo FU iicibashsscnitaceactocainshatedeccouousueas onices 15-16

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

Rods PIP Ck aD siesta nkcpadsstvinngeasaintaetanakulbucainsinpnnien 13

Dubose v. State, 662 So. 2d 1189 (Ala. 1995) .............0.. 12

Faretta v. California, 422 U.S. 806 (1975)...............c00008 16

Illinois State Board of Elections v. Socialist Workers

Party; WSUS: UTS TO viiihicktcaniecnainn ye Ie

In re Investigation of the W. Va. State Police Crime

Laboratory, 438 S.E.2d S01 (W. Va. 1993) ...........004. ll

People v. Wesley, 533 N.Y.S.2d 643 (Albany County

RR, SED sahiceicnnsindncacounccuenkasdenearhinonubvenceubabpaebebananss 3

Roberson v. State, 16 S.W.3d 156 (Tex. App. 2000) ........ 3

Shapiro v. Thompson, 394 U.S. 618 (1969)... eee 17

Simmons v. United States, 390 U.S. 377

II ia isk scx acich ci npacectbbadinaslicenchcustanbbadaiuene 2, 14, 15, 18

State v. Handson, 689 A.2d 1081 (Vt. 1996).................. 17

State v..Punsalen, No. 77490-1 (Wash. Sup. Ct. May

9 Ree cick ccscansnab cschanaisansapsicigcancatsabadbammulgaeaeectisctaes 18

United States v. Gonzalez-Lopez, No. 05-352 (U.S.

PN FI BOO vcsininti iia vinti tp icincakn caanlaboxedenasiatins 15, 16, 17

United States v. Herrera-Ochoa, 245 F.3d 495 (Sth

CO Fre heikninnhvsadsiescesueatacnnabicanctedcpasbataegisiartentume 15

iii

United States v. Mullen, 32 F.3d 891 (4th Cir. 1994)...... 16

United States v. Scott, 909 F.2d 488 (11th Cir. 1990)..... 15

United States ex rel. Wilcox v. Johnson, 555 F.2d

RA Ee ee FI ipvsdcaidccieees tna cub added taceinip\outatainntn 15

Wheat v. United States, 486 U.S. 153 (1988).................. 15

OTHER AUTHORITIES

ABA Standards for Criminal Justice (2d ed. 1980)......... 16

American Society of Crime Laboratory Directors,

Laboratory Accreditation Board, Laboratories

Accredited by ASCLD/LAB, http://www.ascld-

lab.org/legacy/aslablegacylaboratories.html (last

NE Ty ae IE soos cashes tes Seoceceanctnnabrccectabnnne 8

Michael R. Bromwich, Independent Investigator,

Fourth Report of the Independent Investigator for

the Houston Police Department Crime Laboratory

and Property Room (Jan. 4, 2006), available at

http://www.hpdlabinvestigation.

org/reports/060 1 O4report. pdf... cee eeeteeeceeeeees 8-9

Carol J. DeFrances, Bureau of Justice Statistics,

Prosecutors in State Courts, 2001 (2002) ................. 3,9

John Devlin, Genetics and Justice: An Indigent

Defendant's Right to DNA Expert Assistance,

1998 U. Chi. Legal F. 395 (1998) ...............cccccceees 11, 12

J. Herbie DiFonzo, The Crimes of Crime Labs, 34

Pant TSR EP i iccscackcas sksisecdssacrtiacacuces 8, 9-10

DNA Testing Problems, Scientific Testimony,

http://www.scientific.org/DNAProblems/DN A-

Problems.htm (last visited May 11, 2006).................... 4

Paul C. Giannelli, Ake v. Oklahoma: The Right to

Expert Assistance in a Post-Daubert, Post-DNA

World, 89 Cornell L. Rev. 1305 (2004)................. 12, 43

iv

The Innocence Project, Causes and Remedies of

Wrongful Convictions, http://www.

innocenceproject.org/causes/index.php (last

REE FN hg I aa cen sdiciecscancccnestecxigriesivuneeannels 3

David H. Kaye & George F. Sensabaugh, Jr.,

Reference Guide on DNA Evidence, in Federal

Judicial Center, Reference Manual on Scientific

Evidence (2d ed. 2000), available at http://www.

fjc.gov/public/home.nsf/pages/16 ............:.eeeeeeeeeees 4,7

Jonathan J. Koehler, DNA Matches and Statistics:

Important Questions, Surprising Answers, 76

POG Dk CTD vis sninnscincsiokciitaceivnsdadelendsciucatatsenen 6

Adam Liptak, You Think DNA Evidence Is

Foolproof? Try Again, N.Y. Times, Mar. 16,

TRUE alse ened cama assailed ah aacacasnae Nomad iasita eared 4,13

Jane Campbell Moriarty, Psychological and

Scientific Evidence in Criminal Trials (2003)......passim

National Research Council, National Academy of

Sciences, DNA Technology in Forensic Science

Nationa! Research Council, National Academy of

Sciences, The Evaluation of Forensic DNA

Be OIE Ca IE vas savin ahd ck kisinswavcdiactacecsus bunksseudaneegnn 11

Office of the Inspector General, U.S. DOJ, The FBI

DNA Laboratory: A Review of Protocol and

Practice Vulnerabilities (May 2004), available at

http://www.usdoj.gov/oig/special/0405/final. pdf........ 11

Maurice Possiey et al., Scandal Touches Even Elite

Labs: Flawed Work, Resistance to Scrutiny Seen

Aéross U5. Cha, THB, Oct: 21; DOR iciciscicr evden 8

Vv

D. Michael Risinger et al., The Daubert/Kumho

Implications of Observer Effects in Forensic

Science: Hidden Problems of Expectation and

Suggestion, 90 Cal. L. Rev. f (2002) .................eceeeees 10

Greg W. Steadman, Bureau of 'ustice Statistics,

Survey of DNA Crime Laboratories, 2001 (2002)........ 8

Ruth Teichroeb, Rare Look Inside State Crime Labs

Reveals Recurring Problems 23 Cases in 3 Years

Had DNA Test Errors, Seattle Post-Inteiligencer,

Wg PA sid nals sien dpacsesth enapioansanscisehiaenapiactrsshovnnnss 7

William C. Thompson, DNA Evidence in the O.J.

Simpson Trial, 67 U. Colo. L. Rev. 827 (1996).......... 1]

William C. Thompson et al., Evaluating Forensic

DNA Evidence: Essential Elements of a

Competent Defense Review, 27 Champion 24

William C. Thompson et al., How the Probability of

a False Positive Affects the Value of DNA

Evidence, 48 J. Forensic Sci. | (2003)................2.2c00000s 4

William C. Thompson, Tarnish on the ‘Gold

Standard’; Understanding Recent Problems in

Forensic DNA Testing, 30 Champion 10 (2006)... passim

Phoebe Zerwick, DNA Mislabeled in Murder Case,

Winston-Salem J., Aug. 28, 2005 ...............ccccceeeeseseees 7

Phoebe Zerwick, Mixed Results: Forensics, Right or

Wrong, Often Impresses Jurors, Winston-Salem

Bg. NE I AI aa iw bcisatbcnicd chs shersdintaandnchcaiinaincseenvanssvetars 7

INTEREST OF THE AMICUS CURIAE'

The National Association of Criminal Defense Lawyers

(“NACDL”) is a nonprofit corporation with a membership of

more than 11,200 attorneys and 28,000 affiliate members in

fifty states, including private criminal defense lawyers, public

defenders, and law professors. NACDL was founded in 1958

to promote study and research in the field of criminal law, to

disseminate and advance knowledge of the law in the area of

criminal practices, and to encourage the integrity,

independence, and expertise of defense lawyers in criminal

cases. The American Bar Association recognizes NACDL as

an affiliate organization and awards it full representation in its

House of Delegates.

This case raises important questions concerning an indigent

criminal defendant’s right to a DNA expert. NACDL offers

its practical view of why defendants incriminated by DNA

evidence need their own experts, and then addresses the

important question whether indigent defendants may be

forced to choose between their right to an expert and their

right to counsel of their choice.

SUMMARY OF ARGUMENT

DNA evidence is used with increasing frequency in

criminal prosecutions and is typically accorded heavy

evidentiary weight. But DNA testing is not infallible. Test

samples may be mislabeled or contaminated, and test results

may be skewed or misinterpreted by human error. To mount

a meaningful defense when incriminated by DNA evidence,

criminal defendants must have an independent expert who can

' No counsel for any party had any role in authoring this brief, and no one

other than the amicus curiae and its counscl made any monetary

contribution to its preparation or submission. The parties have consented

to the filing of this brief in letters of consent on file with the Clerk.

a

retest the DNA evidence, review the prosecution’s test data

for errors, aid defense counsel in cross examination, and

testify as to the uncertainty in DNA testing. For these

reasons, expanded on below, the Maryland Court of Appeals

correctly assumed that the due process right articulated in Ake

v. Oklahoma, 470 U.S. 68 (1985), requires that states provide

necessary DNA experts to indigent criminal defendants.

The Maryland court erred, however, in holding that only

indigent criminal defendants who are represented by the

State’s Public Defender’s Office may obtain necessary State-

appointed experts. That ruling impermissibly forces an

indigent defendant to choose between his Sixth Amendment

right to counsel and his due process right to present an

adequate defense. See Simmons v. United States, 390 U.S.

377, 394 (1968). It also violates the Equal Protection Clause,

because it impinges on the fundamental right to counsel

without serving any compelling government interest. See //l.

Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 185

(1979).

The population of indigent defendants who for one reason

or another secure representation by private counsel is not

small. The constitutional issue presented by this case is thus

recurring as well as important, and warrants this Court’s

review.

ARGUMENT

We show in Part I below that DNA evidence is subject to

human error and that, without an independent DNA expert,

criminal defendants may be convicted by faulty DNA test

results. In Part II, we show that Maryland improperly

requires indigent criminal defendants to choose between their

due process right to a DNA expert and their Sixth

Amendment right to retain counsel of their choice.

Re Ye

I.

Criminal! Defendants Need an Independent Expert To

Mount a Meaningful Defense to DNA Evidence.

When DNA evidence first entered courtrooms in the late

1980s, it was heralded as “the single greatest advance in the

‘search for truth,’ and the goal of convicting the guilty and

acquitting the innocent, since the advent of cross-

examination.” People v. Wesley, 533 N.Y.S.2d 643, 644

(Albany County Ct. 1988). Courts proclaimed that its

reliability “justifie[d] an aura of amazement,” United States v.

Jakobetz, 747 F. Supp. 250, 263 (D. Vt. 1990), and experts

argued that a false match — a test result that incriminated an

innocent defendant — was impossible.”

Not surprisingly, the use of DNA evidence in criminal trials

has increased dramatically in the past two decades. In 1996,

about half of all state prosecutor’s offices used DNA evidence

in felony trials or plea negotiations; by 2001, two-thirds did.

DNA evidence has been admitted in almost every jurisdiction,

Moriarty § 11:45, and has gained such standing in the

criminal justice system that DNA evidence alone may convict

or exonerate a defendant.’

A. DNA Testing Is Subject te Human Error.

Despite the early claims made for it, DNA testing is not

infallible. With growing use in the criminal justice system

? Jane Campbell Moriarty, Psychological and Scientific Evidence in

Criminal Trials § | 1:38 n.3 (2003) [hereinafter Moriarty].

> Carol J. DeFrances, Bureau of Justice Statistics, Prosecutors in State

Courts, 2001, at | (2002) [hereinafter DeFrances].

* See, e.g., Roberson v. State, 16 $.W.3d 156, 170 (Tex. App. 2000); The

Innocence Project, Causes and Remedies of Wrongful Convictions,

http://www. innocenceproject.org/causes/index.php (last visited May 2

2006).

a ae

has come growing evidence of its limits. DNA evidence has

been called into question or proven faulty in numerous cases

around the country, and in fact false matches and flawed

DNA test results have resulted in the conviction of innocent

individuals.” Understanding how this can happen requires a

brief description of the DNA testing process.

1. DNA Testing Primer

Each human sex cell, a sperm or an ovum, contains twenty-

three chromosomes.° When a sperm and ovum combine into

a fertilized cell, that cell contains forty-six chromosomes,

matched up into twenty-three pairs — the number one

chromosome from the father pairs with the number one

chromosome from the mother, and so on. The chromosomes

are replicated as the fertilized cell divides, until almost every

cell in a human’s body contains copies of the twenty-three

pairs. The chromosomes contain al] of the genetic

information that makes us human and individual.

Each chromosome is made up of a DNA (deoxyribonucleic

acid) molecule. Long and double-stranded, DNA molecules

> See, e.g., William C. Thompson et al., How the . vbability of a False

Positive Affects the Value of DNA Evidence, 48 J. Forensic Sci. 1, 2-3

(2003); William C. Thompson, Tarnish on the ‘Gold Standard’:

Understanding Recent Problems in Forensic DNA Testing, 30 Champion

10, 10-12 (2006) [hereinafter Thompson, Gold Standard]; Adam Liptak,

You Think DNA Evidence Is Foolproof? Try Again, N.Y. Times, Mar. 16,

2003, § 4, at 5 [hereinafter Liptak]. For sources documenting errors in

DNA testing, see DNA Testing Problems, Scientitic Testimony,

http://www.scientific.org/DNAProblems/DNA-Probiems.htm (last visited

May !!, 2006).

© Unless otherwise indicated, all of the information provided in the next

two paragraphs comes from David H. Kaye & George F. Sensabaugh, Jr.,

Reference Guide on DNA Evidence, in Federal Judicial Center, Reference

Manual on Scientific Evidence 491-93, 560 app. pt. A (2d ed. 2000),

available at http://www.fjc.gov/public/home.nsf/pages/16 [hereinafter

Federal Judicial Center].

ae,

are shaped like twisted ladders or double helixes. Along the

length: of each DNA strand, four organic building-block

substances, called “bases” and abbreviated as A, T, G, and C,

combine in pairs. The order in which the base pairs occur

along the length of a DNA molecule dictates the genetic

. makeup of each individual.

The order of base pairs is identical in over 99% of the DNA

in every human. That is, over 99% of the genetic makeup of

every human is identical. But scientists have identified

specific locations on DNA strands where the order of base

pairs can differ, leading to different and distinctive genetic

makeups. For instance, at a certain location on the DNA

found in the fifteenth chromosome, base pairs may be ordered

in a number of different ways, which may account for

differences in eye color. The particular ordering of base pairs

at a particular DNA location is called an allele (rhymes with

Camille). | Because each individual has two fifteenth

chromosomes, one from each parent, there are two alleles at

that location. An individual with allele A on the DNA from

his maternal fifteenth chromosome and allele B on the DNA

from his paternal fifteenth chromosome may have blue eyes,

while someone with alleles C and D may have brown eyes.

DNA tests compare the specific locations on DNA strands

where base pairs can differ between individuals. If DNA

samples do not have the same two alleles at each tested

location, they could not have come from the same source. If

the samples do have the same alleles at each tested location,

the samples are a match — meaning that it is possible they

came from the same source. Moriarty §§ 11:4, 11:6. Because

a DNA test compares only certain locations on two

individuals’ DNA strands, it cannot determine conclusively

y

that the two samples came from the same source, only that it

is possible that they did.’

The most common form of DNA testing is called the short

tandem repeat, or STR, test. /d. § 11:22" It can be

performed using only trace amounts of DNA, which are then

amplified, or replicated, using a method called polymerase

chain reaction or PCR. /d. § 11:6. The FBI has identified as

appropriate for STR testing thirteen of the specific locations

on DNA strands where base pairs can differ between

individuals. /d. Commercial kits amplify traces from those

locations using PCR.’ As the kits amplify the DNA, they

label the specific locations on the DNA to be tested with

colored dyes. An automated test process then “reads” the

DNA and generates graphs that show the alleles at each tested

location. /d. § 11:25. An analyst compares the graphs to

determine whether the samples have the same alleles.

If the samples are a match, the DNA analyst, using

databases containing the genetic profiles of many individuals,

prepares a “frequency estimate” — in lay terms, an

assessment of the probability that a match is the product of

random chance. /d. §§ 11:35, 11:36. By counting the number

of times alleles occur at a particular location, and controlling

for racial differences, the analyst can determine the

probability that two random individuals from the same racial

group would have the same alleles at all matching locations.

The analyst may come up with a frequency estimate that only

7 Jonathan J. Koehler, DNA Matches and Statistics: Important Questions,

Surprising Answers, 76 Judicature 222, 224 (1993).

* The STR test was used by the prosecution’s expert in this case. Record

at T4-60-61.

° The prosecution’s expert in this case used the ProfilerPlus kit, which

tests nine of the thirteen locations. Record at T4-60—-62.

oe

one individual in millions or billions would randomly match

in the same way. See id. § 11:36.

Every DNA test includes procedural controls that are

supposed to guard against faulty results due to contamination.

Contamination occurs: when an alternate source of DNA is

added to the original sample and can result in a false match

because the test will reveal alleles other than those originally

present. See Federal Judicial Center, at 514-15. Even when

such controls are effective, however, they cannot catch errors

such as the mislabeling of samples. Mislabeling occurs when

a DNA sample is wrongly identified and may result in a false

match because the test literally tests another person’s DNA.

See id. at 512.

2. The Potential for and Occurrence of Error

Errors resulting from mislabeled or contaminated DNA

samples “appear to be chronic and occur even at the best

DNA labs.” Thompson, Gold Standard, at 11. Documented

instances have occurred in California, Maryland, Minnesota,

Nevada, North Carolina, Pennsylvania, Texas, and

Washington. '° One Washington State laboratory

“contaminated tests or inade other mistakes while handling

DNA evidence in at least 23 cases involving major crimes

over the last three years.”'' And files from the Orchid-

See, e.g., Thompson, Gold Standard, at 10-11; Ruth Teichroeb, Rare

Look Inside State Crime Labs Reveals Recurring Problems 23 Cases in 3

Years Had DNA Test Errors, Seattle Post-Intelligencer, July 22, 2004, at

Al {hereinafter Teichroeb]; Phoebe Zerwick, DNA Mislabeled in Murder

Case, Winston-Salem J., Aug. 28, 2005; Pheobe Zerwick, Mixed Results:

Forensics, Right or Wrong, Often impresses Jurors, Winston-Salem J.,

Aug. 29, 2005.

'' “Forensic scientists tainted tests with their own DNA in eight of the 23

cases. They made mistakes in six others, from throwing out evidence

swabs to misreading results, fingering the wrong rape suspect.”

Teichroeb, at Al.

2.

Cellmark laboratory in Germantown, Maryland, which

performed the DNA testing in the case at bar, “show dozens

of instances in which samples were contaminated with foreign

DNA or DNA was somehow transferred from one sample to

another during testing.” Thompson, Gold Standard, at 11.

Many such errors are traced to DNA laboratories that are

overworked and undersupervised. '” Labs often have

caseloads that vastly exceed their capabilities, leading

analysts to rush test results.'*» Many DNA labs are not subject

to regulation or mandatory accreditation requirements,'* and

in 2004 the Chicago Tribune reported that “evidence of

problems ranging from negligence to outright deception has

been uncovered at crime labs in at least 17 states.”

Perhaps the most notorious DNA lab was the Houston

Police Department’s. An outside investigator found

“pervasive problems” in 40% of the reviewed tests, including

failures to report exculpatory evidence, misleading reports of

the statistical significance of DNA profiling results, and the

absence of proper controls.'° Dozens of DNA retests failed to

'2 J. Herbie DiFonzo, The Crimes of Crime Labs, 34 Hofstra L. Rev. 1, 2-

4 (2005) [hereinafter DiFonzo]; Thompson, Gold Standard, at 12.

'* See Greg W. Steadman, Bureau of Justice Statistics, Survey of DNA

Crime Laboratories, 2001, at 2 (2002). “Some labs have become high-

tech sweatshops * * *.” Thompson, Gold Standard, at 12.

'* DiFonzo, at 3-4. As of May of 2006, only 313 crime laboratories, out

of more than 1,000 nationwide, have been accredited with the American

Society of Crime Laboratory Directors. Am. Soc’y of Crime Lab. Dirs.,

Lab. Accreditation Bd., Laboratories Accredited by ASCLD/LAB,

http://www.ascld-lab.org/legacy/aslablegac ylaboratories.html (last visited

May 30, 2006).

'S Maurice Possley et al., Scandal Touches Even Elite Labs: Flawed Work,

Resistance to Scrutiny Seen Across U.S., Chi. Trib., Oct. 21, 2004.

'© Michael R. Bromwich, Independent Investigator, Fourth Report of the

Independent Investigator for the Houston Police Department Crime

(continued next page)

a}.

confirm the tests of the Houston lab, and later testing proved

the innocence of two men “falsely incriminated by botched

lab work.” Thompson, Gold Standard, at 10.

Even in the best-run lab under the best of conditions, a test

Of an uncontaminated, properly labeled DNA sample may

result in a false positive, for DNA analysts have substantial

leeway to make subjective judgments during the testing

process.'’ An analyst testing a sample with DNA from more

than one contributor must make judgments about which

alleles are from a primary contributor, whether any

contributors share alleles, and whether unexpected alleles are

from an alternate contributor or other sources.'® Moriarty

§§ 11:6, 11:26. The analyst may create a false profile based

on a combination of alleles from two contributors, or exclude

the actual perpetrator from the test result. /d. § 11:26. A test

may show fewer than the expected number of alleles and an

analyst may be forced to “simply guess whether all alleles

have been detected or not.” /d, Or a test may show more

than the expected number of alleles, possibly reflecting a flaw

in the testing process, a misread of the test by the software, or

any number of random factors. /d.

Errors in DNA testing may result from more than

accidental contamination and mislabeling. Many DNA

analysts were trained as law enforcement officers, many

public labs are closely aligned with police departments,'” and

Laboratory and Property Room 5-6 (Jan. 4, 2006), available at

http://www.hpdlabin vestigation.org/reports/060 1 O4report.pdf.

'’ The subjective judgments discussed herein refer to those required to

perform an STR test, the test used by the prosecution’s expert in this case.

'® Many of the DNA samples tested in the case at bai were mixed. Record

at T4-102—14, T4-155-59.

State crime labs, which were used for DNA testing by 82% of full-time

medium state prosecution offices, DeFrances, at 8-9, are “funded with

(continued next page)

«tO

private labs may receive substantial compensation by the

prosecution for their analysis. ”” Analysts may be privy to

details of the prosecution’s theory of the case and the

expected outcome of the test, or consider information outside .

the realm of scientific knowledge. For instance, one DNA

analyst’s notes read: “Suspect —— known crip gang member

— keeps ‘skating’ on charges — never serves time. This

robbery he gets hit in head with bar stool — left blood trail.

[Detective] Miller wants to connect this guy to scene w/ DNA

* * *” Moriarty § 11:24 (quotation omitted). Moreover,

given the necessarily subjective judgments called for in some

cases, DNA analysts may unconsciously tilt their findings to

support the prosecution’s theory.”!

In some cases intentional falsification occurs. An analyst

may “fak[e] test results to cover up errors arising from cross-

contamination of DNA samples and sample mix-ups.”

Thompson, Gold Standard, at 12. Indeed, analysts have been

“fired for scientific misconduct, and_ specifically for

falsification of test results,” from laboratories operated by the

FBI, the Chief Medical Examiner in New York City, the U.S.

Army, and private enterprises. /d. at 11-12. A DNA analyst

in the FBI laboratory failed to use proper controls and

falsified laboratory reports (id. at 12), “render[ing] over two

years worth of her STR work scientifically invalid and

criminal justice dollars, and often physically located in police buildings.”

DiFonzo, at 10-11.

© See Moriarty § 11:60. The laboratory in this case was paid more than

$30,000 by the prosecution. Record at T4-133.

*! See D. Michael Risinger et al., The Dauber/Kumho Implications of

Observer Effects in Forensic Science: Hidden Problems of Expectation

and Suggestion, 90 Cal. L. Rev. 1, 35-42 (2002).

me fe

unsuitable for use in court.”"* A West Virginia State DNA

analyst was found to have a “long history of falsifying

evidence in criminal prosecutions.” Jn re Investigation of the

W. Va. State Police Crime Lab., 438 S.E.2d 501, 503 (W. Va.

1993).

B. An Independent Expert Protects Against Error.

The only meaningful defense against the kind of errors

described above is an independent DNA expert. Such experts

perform a number of crucial functions in challenging

incriminating DNA evidence. To start, a defense expert can

independently test a DNA sample. Although DNA tests are

rife with uncertainty, it is “implausible that two laboratories

would reach the same false results.”*° Accordingly, a second

test performed by an independent expert is “[a] wrongly

accused person’s best insurance against the possibility of

being falsely incriminated.””*

If sufficient DNA samples are not available for retesting, an

expert can assist defense counsel in understanding the

underlying science and reviewing the prosecution’s test data

for errors.” The complexity of DNA testing is such that it is

“difficult if not impossible for a lawyer to evaluate the

”? Office of the Inspector Gen., U.S. DOJ, The FBI DNA Laboratory: A

Review of Protocol and Practice Vulnerabilities 47 (May 2004), available

at http://www.usdoj.gov/oig/special/0405/final. pdf.

23 William C. Thompson, DNA Evidence in the O.J. Simpson Trial, 67 U.

Colo. L. Rev. 827, 844 (1996).

24 Nat’l Research Council, Nat’l Acad. of Sciences, The Evaluation of

Forensic DNA Evidence 87 (1996).

2> See John Devlin, Genetics and Justice: An Indigent Defendant's Right

to DNA Expert Assistance, 1998 U. Chi. Legal F. 395, 406-07 (1998)

(hereinafter Devlin].

met

evidence without expert assistance. An expert’s review of

the underlying data may reveal improper analysis,

contaminated or mislabeled samples, or a failure of test

controls. See Moriarty § 11:24. And even if no errors are

obviously apparent, “effective cross-examination of a

prosecution expert frequently requires the advice of a defense

expert.”

9926

A defense expert may also provide meaningful information

to the jury about the strengths and weaknesses of DNA

evidence. Without an understanding of the limitations of

DNA tests, jurors may give undue weight to the prosecution’s

evidence. “DNA analysis and the resulting statistics can be

extremely convincing evidence to jurors who have heard

hours of expert testimony and statistics regarding the

improbability of misidentification or other errors in the

procedure.” Dubose v. State, 662 So. 2d 1189, 1196-97 (Ala.

1995) (citation omitted). A defense DNA expert can inform

the jury about the inherent limitations in DNA testing, point

out potential problems in the gathering or testing of such

evidence, and provide jurors with a better understanding of

the statistics cited by prosecution experts.”

As the court below recognized, access to the prosecution’s

expert is no substitute for an independent defense expert. Pet.

App. 42a-48a. Perhaps most important, access to the

6 William C. Thompson et al., Evaluating Forensic DNA Evidence:

Essential Elements of a Competent Defense Review, 27 Champion 24, 26

(2003) [hereinafter Thompson, Essential Elements]; see also Natl

Research Council, Nat’! Acad. of Sciences, DNA Technology in Forensic

Science 147 (1992); Moriarty § 11:1.

>? Paul C. Giannelli, Ake v. Oklahoma: The Right to Expert Assistance in

a Post-Daubert, Post-DNA World, 89 Cornell L. Rev. 1305, 1376 (2004)

[hereinafter Giannelli].

8 See, ¢.g., Moriarty §§ 11:38, 11:39; Devlin, at 405-08; Thompson,

Essential Elements, at 27-28.

eh

prosecution’s expert does not allow for an independent retest

of a DNA sample. Moreover, many prosecution DNA experts

whose labs may be closely aligned with law enforcement or

who may have significant financial incentives to defend their

results may be disinclined to assist the defense.”” Finally, as

this Court has recognized, the “appropriate means of

attacking shaky but admissible evidence” include “[v]igorous

cross-examination” and “presentation of contrary evidence,”

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 596

(1993), both of which can be done only with the assistance of

a defense DNA expert.

Defense use of DNA experts also furthers the societal

interest in the accuracy of DNA testing. Widespread access

by defendants to DNA experts can help to expose systemic

laboratory and analyst errors, and to ensure the validity of

DNA evidence used at trial. As one director of a DNA

laboratory noted, “[rjesources must be made available” to the

defense to analyze DNA evidence because “{i]f you want the

best crime lab, you need to have the best criminal defense

attorneys to challenge us.” Liptak, at 5. Indeed, some of the

worst laboratory abuses have occurred in jurisdictions that

regularly fail to provide DNA experts to defendants.

Thompson, Gold Standard, at 11.

Il.

Petitioner’s Constitutional Right to an Expert Cannot

Be Conditioned on Relinquishment of His

Constitutional Right to Counsel.

In light of the foregoing, the Maryland Court of Appeals

correctly held that the rationale of Ake v. Oklahoma, 470 U.S.

68, 74 (1985), extends to defense DNA experts because

“({djue process and equal protection require the State to

provide non-psychiatric experts to indigent defendants when

>? Moriarty § 11:60; Giannelli, at 1378 & n.482.

Se

the defendant makes a particularized showing of the need for

assistance of such experts.” Pet. App. 27a. The court erred,

however, in holding that the State may condition the exercise

of Petitioner’s right to expert services on the relinquishment

of his Sixth Amendment right to counsel.

The State refused to provide Petitioner with the assistance

of a DNA expert in this case not because Petitioner did not

qualify as indigent, but because he was not represented by the

public defender. Pet. App. 42a.°° The Maryland Court held

that the Constitution permits that result: ‘While such

defendants may face difficult choices, the Constitution does

not bar the State of Maryland from requiring them to choose

between counsel of their choice and ancillary services

provided by the [public defender].” /d. at 41a.

That was incorrect. Indigent defendants may not be

required to surrender one constitutional right — the Sixth

Amendment right to counsel of choice — in order to avail

themselves of another — the due process right to present a

meaningful defense, here by way of a defense DNA expert.

That is the clear teaching of Simmons v. United States, 390

U.S. 377 (1968), which held that a defendant who wished to

challenge an allegedly unconstitutional search could not be

required, as a condition of the challenge, to admit ownership

of the property in which the incriminating evidence was

found. Such a requirement, the Court held, would put a

defendant to an unconstitutional choice: “either to give up

what he believed * * * to be a valid Fourth Amendment claim

or, in legal effect, to waive his Fifth Amendment privilege

against self-incrimination.” /d. at 394. It was “intolerable,”

© Petitioner initially passed the public defender’s test for indigency before

he acquired the funds needed to retain his counsel. Pct. App. 6.

« 14s

the Court concluded, that “one constitutional right should

have to be surrendered in order to assert another.” Id.'

In departing from that rule, the court below devalued the

Sixth Amendment right at stake by mistakenly relying on

cases involving appointed rather than retained counsel. See

Pet. App. 40a (quoting Fawlkes v. State, 536 A.2d 1149, 1159

(Md. 1988) (“for indigent defendants * * * the right to

counsel is but a right to effective legal representation; it is not

a right to representation by any particular attorney”’)). The

difference is critical. An indigent defendant for whom

counsel is appointed has a limited right to counsel of choice

because the State pays for the representation. See Wheat v.

United States, 486 U.S. 153, 159 (1988) (the Sixth

Amendment protects “the right to select and be represented

by one’s preferred attorney” but “a defendant may not insist

on representation by an attorney he cannot afford’). By

contrast, a defendant like Petitioner, indigent or not, who

retains his own counsel has a virtually absolute right to

counsel of his choosing. See United States v. Gonzalez-

Lopez, No. 05-352, slip op. at 3-4, 9 (U.S. June 26, 2006)

(deprivation of right to counsel Gf choice constitutes

“structural error’); Caplin & Drysdale, Chartered v. United

States, 491 US. 617, 624-25 (1989) (“{T]he Sixth

Amendment guarantees a defendant the right to be

*" Accord United States ex rel. Wilcox v. Johnson, 555 F.2d 115, 120 (3d

Cir. 1977) (when defendant’s due process right to testify requires him to

give up his Sixth Amendment right to counsel, “both rights are

corrupted”); United States v. Scott, 909 F.2d 488, 493 (11th Cir. 1990)

(trial judge “impermissibly forced defendant to choose between two

constitutional rights: the right to testify and the right to counsel”); United

States v. Herrera-Ochoa, 245 F.3d 495, 499-500 (Sth Cir. 2001) (using

physical presence at tral to establish immigration violation impermissibly

pitted defendant's “Sixth Amendment right to be present at wial [against]

his Fifth Amendment due process right that the government prove each

and every element of the offense * * * beyond a reasonable doubt’).

iG

represented by an otherwise qualified attorney whom [the]

defendant can afford to hire, or who is willing to represent the

defendant even though he is without funds.”).°

These holdings reflect the fundamental importance of the

right to counsel of one’s choice. Choosing counsel may well

be the most important decision a defendant makes in shaping

his defense. “Different attorneys will pursue different

strategies with regard to investigation and discovery,

development of the theory of defense, selection of the jury,

presentation of the witnesses, and style of witness

examination and jury argument.” See Gonzalez-Lopez, slip

op. at 9. The defendant’s choice “will affect whether and on

what terms the defendant cooperates with the prosecution,

plea bargains, or decides instead to go to trial.” Td.

Moreover, choosing one’s own counsel fosters the trust

between attorney and client that is necessary for the attorney

to be a truly effective advocate. See ABA Standards for

Criminal Justice § 4-3.1 cmt. at 4-29 (2d ed. 1980). Honoring

that choice shows the “‘respect for the individual which is the

lifeblood of the law.’” Faretta v. California, 422 U.S. 806,

834 (1975) (quoting /llinois v. Allen, 397 U.S. 337, 350-51

(1970) (Brennan, J., concurring)).

The court below thus erred in relying on language in Ake

cautioning that an indigent defendant’s right to a state-funded

psychiatric expert does not translate to a “constitutional right

to choose a psychiatrist of his personal liking.’ Pet. App.

37a (quoting Ake, 470 U.S. at 83). Petitioner is not claiming

that the State must provide him with a DNA expert of his

“personal liking.” But the State must provide him with expert

*2 There are exceptions when the integrity of the judicial process is

threatened, but none applies here. See, e.g., United States v. Mullen, 32

F.3d 891, 897 (4th Cir. 1994) (choice can be overriden when it is

“manipulated to delay proceedings or hamper the prosecution” (quotation

omitied )).

ee

DNA assistance of some sort — as the court below properly

held — and it may not deny him that right simply because he

refuses to forfeit his fundamental right to retained counsel of

choice. The State may no more condition the exercise of

Petitioner’s Ake right on abandoning his retained counsel than

it could on relinquishing his right to a jury trial.

The decision below is incorrect not only under Simmons but

also under a straightforward equal protection analysis. By

treating differently indigent defendants who are represented

by retained counsel from those who are represented by the

public defender, and providing necessary expert assistance to

the latter but not the former, the State has impinged on the

fundamental constitutional right to counsel. See Gonzalez-

Lopez, slip op. at 7 (right to choose counsel is “the root

meaning of the [Sixth Amendment’s] constitutional

guarantee”). That different treatment may be justified only if

it is necessary to promote a compelling governmental interest.

E.g., Ill. Bd. of Elections v. Socialist Workers Party, 440 U.S.

173, 185 (1979); Shapiro v. Thompson, 394 U.S. 618, 634

(1969). But the State has advanced no compelling

governmental interest that could justify the burden imposed

on Petitioner’s right to counsel of choice.

Indeed, the decision below advances virtually no rationale

for conditioning the right to expert assistance on the forfeiture

of the right to retained counsel of choice. Nor is any rationale

readily apparent. If the State is worried about protecting its

fisc while still permitting eligible defendants access to expert

assistance, it could establish expert fee schedules and limits,

cap the amount of fees, or require pre-approval of fees.*? Or

the State could put competent experts on retainer and make

* Concern for the public fisc is hardly a compelling governmental interest

here because every defendant allowed modest fees for expert services

saves the State the greater expense of appointed counsel. See, e.g., State

v. Handson, 689 A.2d 1081, 1083-84 (Vt. 1996).

- 18 -

them available to indigent defendants regardless of the status

of their counsel. And “guaranteeing expert assistance to

indigent criminal defendants represented by private counsel

* * * poses little risk of abuse because evaluation of the

necessity of requested expert assistance to an adequate

defense would remain within the discretion of the trial judge.”

State v. Punsalen, No. 77490-1, slip op. at 4 (Wash. Sup. Ct.,

May 4, 2006).

In short, there is no justification — let alone one weighty

enough to override the Sixth Amendment right to retained

counsel of choice — for a state policy that requires

defendants to relinquish their right to retained counsel of

choice in order to exercise their Ake right to necessary expert

assistance.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

PAMELA HARRIS, Co-Chair WILLIAM F. SHEEHAN

Amicus Committee Counsel of Record

NATIONAL ASSOCIATION OF JOHN MOUSTAKAS

CRIMINAL DEFENSE LAWYERS ANNE M. SMETAK

1625 1 Street, NW GOODWIN | PROCTER LLP

Washington, D.C. 20006 901 New York Avenue, NW

Tel: 202-383-5386 Washington, D.C. 20001

Tel: 202-346-4000

Counsel for Amicus Curiae

July 6, 2006 ;