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‘CSI effect’ instruction faulted again

Maryland’s top court on Tuesday unanimously overturned a man’s conviction for sexually assaulting a 7-year-old girl in Salisbury, saying he was denied a fair trial because the judge told the jury that prosecutors did not need scientific evidence to prove their case.

The Court of Appeals said the instruction — prompted by the popularity of television crime dramas — had the impermissible effect of telling jurors to discount the absence of DNA evidence linking Kenneth G. Stabb to the assault, a key argument of his defense.

The decision remands the case for a new trial.

While the Court of Appeals said an “anti-CSI effect” instruction may be permissible in some situations, this is the second time it has found the instruction should not have been given.

In its Aug. 18 ruling in Atkins v. Maryland, the court struck down similar jury instructions that were prompted by the so-called “CSI effect,” or the belief that jurors have been conditioned by TV crime dramas to expect DNA evidence conclusively linking the defendant to the crime.

On Sept. 1, less than two weeks after Atkins was decided, Stabb’s case was argued in the Court of Appeals.

Writing for the court Tuesday, Judge Glenn T. Harrell Jr. said the jury is still out on whether the CSI effect is real.

“[B]ecause of the currently inconclusive state of the scholarly legal and/or scientific communities’ research, taken as whole, regarding whether such a phenomenon as the CSI effect exists, the use of anti-CSI effect jury instructions … is fraught with the potential for reversible error,” Harrell wrote. “To the extent that such an instruction is requested, its use ought to be confined to situations where it responds to correction of a pre-existing overreaching by the defense, i.e., a curative instruction.”

The decision is a blow to the Maryland attorney general’s office, which has argued in favor of such instructions.

Brian S. Kleinbord, who heads the office’s criminal appeals division, voiced concern.

“The court holds out the theoretical hope that such an instruction might be appropriate, but the question is what would that case look like, which is hard to tell based on the court’s opinion,” Kleinbord said. “This is something that defense attorneys will continue to exploit. They’ll use the absence of forensic evidence as a trial strategy.”

Assistant Maryland Public Defender Mark Colvin, who argued Stabb’s appeal before the high court, declined to comment on the decision.

No exam

Stabb was charged with touching the girl’s genitalia while sitting with her outside her Salisbury home on Aug. 17, 2008. The investigating officer, Jonas Barry, interviewed the girl and her mother before arresting Stabb, according to court papers.

The girl was also interviewed by a licensed graduate social worker nurse at the Child Advocacy Center four days after the alleged incident. However, no forensic exam was conducted at that time.

At Stabb’s trial in Wicomico County Circuit Court, the girl testified that Stabb said he would kill her if she told anyone.

Stabb and his ex-wife both testified that they were together, riding in her van, at the time the child allegedly was touched. There was also evidence that Stabb and the girl’s mother had an intimate relationship that had “soured” in the weeks before the alleged incident, after the girl’s grandmother wrote to warn him that the child was upset about the amount of time the couple was spending together.

His defense also noted that the prosecution had no DNA or fingerprint evidence showing Stabb had done anything improper.

The prosecution said DNA tests were not ordered because no penetration had occurred and there was no reason to believe any genetic evidence would be discovered.

Judge Kathleen L. Beckstead instructed the jurors that “there is no legal requirement that the state utilize any specific investigative technique or scientific test to prove its case.”

The jury found Stabb guilty of a third-degree sex offense and second-degree assault in April 2009. Beckstead sentenced Stabb to eight years in prison, with all but four years suspended, and three years’ probation, and he appealed.

The Court of Special Appeals found the instruction valid and upheld Stabb’s conviction last December.

On Tuesday, the Court of Appeals said the instruction violated Stabb’s right to a fair trial under the federal and Maryland constitutions.

“In giving the ‘anti-CSI effect’ instruction to the jury, the trial court directed effectively the jurors not to consider the absence of … corroborating physical evidence,” Harrell wrote. “The trial court invaded impermissibly the province of the jury deliberations with the given anti-CSI effect instruction under the circumstances.”

What the court held

Case:

Stabb v. Maryland, CA No. 2 Sept. Term 2011. Reported. Opinion by Harrell, J. Argued Sept. 1, 2011. Filed Nov. 22, 2011.

Issue:

Did the trial judge err in instructing jurors that prosecutors did not need to present scientific evidence to prove the crime of child sexual assault.

Holding:

Yes; the “anti-CSI effect” instruction invaded the province of the jury, depriving the defendant of a fair trial.

Counsel:

Mark Colvin for petitioner; Brenda Gruss for respondent.

RecordFax # 11-1122-20 (22 pages).