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Top court rules DNA preservation law not retroactive

The Court of Appeals has ruled that the state law requiring the preservation of DNA evidence after conviction is not retroactive from when the bill was signed into law on Oct. 1, 2001.

Michael D. Washington-Bey had appealed his January 1990 rape conviction in Wicomico County Circuit Court. Washington-Bey claimed a law passed in 2001 requiring DNA evidence to be maintained for the length of the convict’s sentence should be retroactive.

He also appealed on grounds that a search for the DNA evidence in the original case was not thorough enough and that his conviction was based on unreliable scientific evidence.

Judge Clayton Greene Jr. wrote the unanimous opinion, which was released Tuesday. Greene said the judges agreed that the lower court did not err in its ruling that Washington-Bey should not get a new trial.

“I think this opinion does two important things — it answers that it is not retroactive and it also clarifies the state’s burden to conduct a reasonable search,” said Brian S. Kleinbord, who oversees criminal appeals at the attorney general’s office.

The rape occurred on Aug. 18, 1989 in Salisbury around 12:30 a.m. The victim told police that she was walking near her home when she saw Washington-Bey and approached him. She said she asked him for a cigarette and he grabbed her and dragged her off to the side of the road, where he raped and assaulted her.

The woman went to the hospital where a rape kit was collected. Washington-Bey was identified as the attacker initially because he left a tote bag at the scene that had papers with his name on them. After his arrest, investigators took blood, saliva and hair samples from him.

At trial, a serologist testified that semen found on the woman’s underwear and from the rape kit came from two individuals and Washington-Bey could not be ruled out. In addition to the physical evidence, the victim identified Washington-Bey in a photo array and at trial as her attacker.

A Wicomico County jury convicted him of first-degree rape, assault, battery and other sex offenses and sentenced him to life in prison. Washington-Bey, who turned 52 on the day the court released the opinion, is currently an inmate at the Eastern Correctional Institute in Westover.

The issue of DNA evidence retention centered on Md. Code (2001, 2008 Repl. Vol.), § 8-201(j) of the Criminal Procedure Article. Signed into law on Oct. 1, 2001, it provides that the state shall preserve scientific identification evidence for the length of the convict’s sentence.

Washington-Bey’s attorney on the appeal, Assistant Maryland Public Defender Marc A. DeSimone Jr., argued that the law was ambiguous about whether it should be applied retroactively. He said the statute says DNA evidence could not be willfully and intentionally destroyed, but does not mention what time frame that should cover.

DeSimone did not return calls for comment. Tuesday.

Assistant Maryland Attorney General Robert Taylor Jr. argued that prior to 2001 there was no law regarding retaining DNA evidence following a trial and that punishing behavior legal at the time was “irrational.”

The court held that it was the intent of the legislature that the preservation law was not meant to be retroactive even though it was not specified in the language of the bill. In the opinion, the judges also upheld the lower court’s decision that the loss of evidence occurred before October 2001 and therefore was not covered under the statute.

The judges also found that the lower court was correct in ruling that Washington-Bey was not convicted solely on the serological evidence, but also by the victim identifying him as her attacker. Technological advances in serological testing did not make the older test unreliable.

RecordFax # 12-0221-20 (51 pages).

WHAT THE COURT HELD

Case:

Michael D. Washington v. State of Maryland;, Md. Court of Appeals No. 22 Sept. 2011. Reported. Opinion by Judge Clayton Greene Jr. Argued Nov. 3, 2011. Filed Feb. 21, 2012.

Issue:

1) Did the lower court err in finding that the conceded destruction of DNA in the case was not intentional and willful? 2) Did appellant’s conviction rest on unreliable scientific identification evidence when compared to the technology available today? 3) Is the requirement to preserve DNA evidence retroactive to the law’s implementation in 2001?

Holding:

1) No; Prosecutors and law enforcement carried out a reasonable search for the missing or destroyed DNA evidence. 2) No; the victim’s identification of her attacker did not contradict the biological evidence. 3) No; by looking at the legislature’s intent in drafting the statute, it was meant to be prospective not retroactive.

Counsel:

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

RecordFax # 12-0221-20.