Convicted murderer can question lab tech about DNA from 1973 case

Maryland’s top court has revived a convicted murderer’s effort to recover DNA evidence from the state he contends will exonerate him of the 1973 slaying.

The Court of Appeals on Thursday said Baltimore City Circuit Court Judge Kaye A. Allison denied Douglas Scott Arey sufficient opportunity to challenge in court the state’s contention that it sought but could not find the genetic material related to the murder case.

Allison in April 2010 rejected Arey’s petition for DNA testing just two days after receiving an affidavit from Robert S. Davis, who was the Baltimore Police Department’s crime lab technician in 1973, that blood evidence related to the slaying was not retained after the investigators’ work was completed.

“Arey’s due process rights entitled him to notice and a reasonable opportunity to respond to the averments in Davis’s affidavit before a ruling was made,” Judge Clayton Greene Jr. wrote for the high court. “Arey’s counsel expressed a desire to interview the state’s affiant, Robert S. Davis, and was not afforded reasonable opportunity to arrange for his interview or to respond to the state’s representations when the trial judge dismissed the petition within two days of the state’s filing.”

The Court of Appeals sent the case back to the circuit court to enable Arey’s counsel to challenge the state’s representation that the DNA cannot be found.

“This is a procedural remand that will have absolutely no bearing on the outcome of the case,” said Assistant Maryland Attorney General Robert Taylor Jr., who argued the state’s case before the high court on June 2.

He predicted that Davis, under questioning from Arey’s attorney, will merely repeat his affidavit statement that evidence was not retained once the work was completed.

Arey’s appellate counsel, Assistant Maryland Public Defender Marc A. DeSimone Jr., did not return a telephone message seeking comment Friday afternoon.

The high court’s decision followed its 2007 order that the state continue to search for the bloody T-shirt Arey was wearing when arrested in 1973 in the shooting of businessman Samuel Shapiro at the Belvedere Hotel.

The blood on the shirt matched Shapiro’s blood type, according to evidence at Arey’s 1974 trial. He was convicted of first-degree murder and sentenced to life in prison.

The shirt was not tested for DNA, as that test was unavailable at the time.

Arey, citing a new law, petitioned the circuit court in 2002 to order DNA testing of the shirt. The state responded that it could not find it, prompting Arey’s appeals.

What the court held

Case:

Arey v. Maryland, CA No. 104 Sept. Term 2010. Reported. Opinion by Greene, J. Concurrence by Harrell, J. Argued June 2, 2011. Filed Sept. 22, 2011.

Issue:

Did the Circuit Court err in denying a DNA petition two days after receiving state’s affidavit in opposition?

Holding:

Yes; two days do not afford the appellant a “reasonable opportunity” to respond.

Counsel:

Marc A. DeSimone Jr. for appellant; Robert Taylor Jr. for appellee

RecordFax # 11-0922-22 (22 pages)