DNA analyst must testify, Md. high court rules

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Criminal defendants have a constitutional right to cross-examine a DNA analyst whose report puts them at the crime scene “within a reasonable degree of scientific certainty,” Maryland’s top court has held in overturning the attempted murder and armed-robbery convictions of a man whose DNA was allegedly found on the mask the criminal used.

Though contained in a DNA report, such an incriminating statement amounts to testimony by its author, the Court of Appeals ruled.

Under the U.S. Constitution’s Confrontation Clause, criminal defendants have the right to confront, or cross-examine, those who testify against them, the court added in sending the case back for trial.

Harold Norton Jr., the accused, was deprived of this Sixth Amendment right when the trial court admitted the damning DNA report into evidence following the in-court testimony not of the analyst but of her supervisor, Judge Lynne A. Battaglia wrote for the high court.

Battaglia cited the Supreme Court’s 2012 decision in Williams v. Illinois in holding that a forensic report is testimonial — and subject to cross examination — if it contains “a conclusion that connects the defendant to the underlying crime,” as was the case with Norton and the analyst’s certainty of the DNA connection.

Specifically, Battaglia noted, Justices Samuel A. Alito Jr.’s and Clarence Thomas’ opinions in Williams, a plurality decision in which the court said the DNA report in that case was not testimonial and its author not subject to cross-examination.

Alito said the report was non-testimonial because it was not produced for “the primary purpose of accusing a targeted individual.” Thomas said the report lacked the “formality and solemnity” to be considered testimonial.

By contrast, the language in Norton’s DNA report was both accusatory and solemn, as it was the key to getting the damning evidence admitted, Battaglia wrote.

“The inclusion of such language, ‘within a reasonable degree of scientific certainty,’ in a DNA report identifying a match between a defendant’s profile with that of a perpetrator is key to the acceptance of the expert’s testimony into evidence in Maryland,” Battaglia added in the opinion filed Thursday. “Without this language certifying the result, the testimony is without foundation. The phrase, then, of ‘within a reasonable degree of scientific certainty,’ constitutes such ‘talismanic words’ that, without them, the testimony cannot cross the threshold of acceptance by the judge as gatekeeper.”

Fractured decision

Brian S. Kleinbord, of the Maryland attorney general’s office, said he disagrees with the Court of Appeals’ conclusion that the DNA report was testimonial in light of the Supreme Court’s fractured Williams decision.

“This opinion shows that Williams v. Illinois has sown a great deal of uncertainty,” said Kleinbord, who heads the office’s criminal-appeals division. “The Court of Appeals is clearly searching for a workable test.”

Kleinbord predicted the Supreme Court will revisit its Williams decision to resolve the uncertainty.

However, he said the attorney general’s office has not yet decided if it will seek Supreme Court review of the Court of Appeals’ decision.

Bradford C. Peabody, Norton’s appellate counsel, lauded the Court of Appeals’ effort to “clarify the law” but said “the Supreme Court may yet decide to provide further clarification.”

Peabody, an assistant Maryland public defender, added “the best thing for my client, of course, would be for the various appeals to end.”

Robbery of three women

Baltimore County police arrested Norton in 2007 on charges of trying to kill George Bennett, who had allegedly implicated him in the robbery of three women at gunpoint at Isha’s Hair Salon in Owings Mills. Bennett had given the police a black mask witnesses said the criminal had worn during the robbery, according to court documents.

The police swabbed the inside of Norton’s cheek for DNA and sent the genetic sample and the mask to Bode Technology Group Inc., a private DNA testing company in Virginia.

The report, by Bode analyst Rachel Cline, found a DNA match to “within a reasonable degree of scientific certainty.”

Prosecutors successfully moved to have the report introduced into evidence through the testimony of Cline’s supervisor, Michael Cariola.

He testified he had “reviewed all the materials, all of the notes, the lab notes, all of the data that was generated, the paperwork and the final report,” according to court documents.

A Baltimore County Circuit Court jury subsequently found Norton guilty of attempted first-degree murder, armed robbery, first-degree assault, witness intimidation and using a handgun in a violent crime. He was sentenced to 50 years in prison.

Norton appealed, arguing his constitutional right to cross-examine the analyst was violated.

The Court of Special Appeals agreed and overturned the convictions in a reported opinion last year.

The state then mounted its unsuccessful appeal to Maryland’s top court.

Judge Glenn T. Harrell Jr. agreed with the seven-member court’s judgment in favor of Norton but did not join Battaglia’s opinion. Harrell, who reached the mandatory judicial retirement age of 70 last month, participated in the opinion’s adoption before stepping down from the bench.

The Court of Appeals rendered its decision in State of Maryland v. Harold Norton Jr., No. 67, September Term 2014.