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On second hearing, rape verdict stands

Md. Court of Appeals changes its mind after ruling, remand by Supreme Court

A man’s conviction in a 1984 rape will stand despite issues raised about DNA evidence presented during the trial.

The Court of Appeals rejected four exceptions Norman Bruce Derr took to his 2006 trial proceedings in an opinion issued Friday.

Derr had contended that his right to confront a witness was violated when the state presented a forensic expert witness who had not performed or witnessed the forensic tests on the case’s DNA evidence.

“Science is powerful and persuasive evidence to a jury but it also has a vast potential to mislead and to result in the erroneous deprivation of a person’s liberty,” said Derr’s attorney, Stephen B. Mercer, chief attorney in the forensics division of the Office of the Public Defender. “The integrity of forensic science in criminal cases requires that the analyst who conducted the test and generates the results be subject to confrontation and cross-examination.”

The decision represented the Court of Appeals’ second look at Derr’s conviction.

In 2011, it held that a lab analyst testifying in court must be the person who analyzed and tested the DNA evidence and overturned Derr’s murder conviction.

The state, however, petitioned the U.S. Supreme Court for review. The high court vacated the decision and remanded it in June 2012, with the instructions to reconsider it in the light of Williams v. Illinois, which the Supreme Court had recently decided.

That was no easy task, as there was no majority opinion in Williams — the latest in a string of Supreme Court opinions dealing with Sixth Amendment Confrontation Clause issues.

Given the fractured nature of the Supreme Court’s jurisprudence and the Court of Appeals’ own 2011 decision in the case, Derr argued that the court should decide the case under Article 21 of the Maryland Declaration of Rights.

Two members of the court agreed, but the majority declined to do so.

And, within the five-judge majority, judges Sally D. Adkins and Robert N. McDonald wrote concurring opinions making different points about the case, with Judge Glenn T. Harrell Jr. joining Adkins’ concurrence.

Ultimately, the majority held that Derr’s Confrontation Clause rights were not violated.

“I do think it gets to what the Confrontation Clause seeks to protect, which is affidavits and formal statements from an interrogation and that kind of thing,” said Brian Kleinbord, chief of the Criminal Appeals Division in the Attorney General’s Office.

Derr fared no better on his other three arguments. He argued that his right to discovery was violated when a judge would not allow him to access the Federal Bureau of Investigation’s DNA database, challenged the jury instructions given at his trial and said the evidence presented against him was not sufficient to sustain his conviction.

Derr was indicted in 2004 for the 1984 attack and rape of a Charles County woman.

After the crime was committed, the victim was taken to the hospital where medical personnel collected biological evidence including a blood sample, a genital swab, two vaginal swabs and an anal swab. There were no arrests in the case and the case sat dormant.

The Charles County Sheriff’s Office submitted the rape kit to an FBI laboratory to be analyzed and compared to samples in the bureau’s DNA index. The DNA matched Derr’s DNA profile in the system.

After police collected additional DNA with a cheek swab from Derr, he was indicted in September 2004.

Derr went to trial in Charles County Circuit Court in June 2006.

During court proceedings, the state called a forensic DNA examiner, who provided background information about DNA collection and analysis. The expert, however, had not conducted or supervised the 1984 testing, the 2002 testing of the rape kit or the testing on Derr’s 2004 cheek swab. She only “supervised” her forensic team’s analysis.

The expert testified that the analysis of the vaginal swabs in 2002 matched DNA from Derr’s 2004 sample in all possible locations, making the probability that the DNA evidence would match another person’s “more than one in quadrillion.”

The jury found Derr guilty of first- and second-degree rape and first- and second-degree sexual offense, but not guilty on two counts of third-degree sexual assault on June 29, 2006.

After the remand from the Supreme Court, the Court of Appeals heard arguments in the case again on January 4, 2013. In his appeal, Derr argued his right to confront witnesses was violated under federal and state law.

The Court of Appeals largely applied Justice Thomas’ decision — the decisive fifth vote in Williams — which held that statements must be solemn or formal to be considered testimonial.

“I think it’s a very important decision in an unsettled area of the law,” Kleinbord said. “That won’t be the final word in this area, but as far as Maryland is concerned, we now have a clear test to apply.”

The Court of Appeals held the lab notes and other forensic evidence offered against Derr were not “sufficiently formalized” to be considered testimonial under Williams.

The Court of Appeals, therefore, concluded that Derr’s right to confront witnesses was not violated since the expert’s in-court testimony was subject to cross-examination and the forensic test results are not testimonial under Williams.

“It is completely unpersuasive that a forensic report is to be treated as a testimonial statement only when the analyst says it is true,” Mercer said.

Derr also challenged the circuit court’s decision to deny his motion to make the state produce statistics on matching profiles in its DNA database, known as CODIS, during discovery. Derr wanted to show the probability that coincidental matches could occur when searching a DNA database.

The state argued that the FBI would need to “devote massive computer resources” and a significant amount of time to perform such an analysis.

“We hold that the trial court’s refusal to order the FBI to conduct a research project and create potentially useful evidence for Derr does not violate either his constitutional right to discovery, as defined by Brady and its progeny, or Maryland Rule 4-263,” Judge Clayton Greene Jr. wrote for the majority.

Court of Appeals Judge Sally D. Adkins wrote a concurring opinion joined by Judge Glenn T. Harrell Jr. While Adkins agreed with the majority’s opinion, she cautioned against reading the decision on CODIS reports too broadly. Adkins wrote that in certain cases involving partial matches, the state should be made to “disgorge information valuable to the defense” in DNA databases.

“I concur in the majority opinion, but add a caveat: we should be alert for the case when the government’s need for secrecy is outweighed by the defendant’s right to a fair trial,” Adkins wrote.

McDonald wrote another concurring opinion, agreeing with the judgment but questioning whether the rationale would eventually be upheld in the Supreme Court.

Retired Court of Appeals Judge John C. Eldridge dissented, joined by former Chief Judge Robert M. Bell, on the interpretation of the Confrontation Clause. The dissenters would have found that Derr’s right to confrontation had been violated under Maryland law.



Norman Bruce Derr v. State of Maryland, No. 6, September Term 2010. Argued January 4, 2013. Decided August 22, 2013. Majority opinion by Greene, J. Concurring opinion by Adkins, J. Concurring opinion by McDonald, J. Dissenting opinion by Eldridge, J., retired, spec. assigned.


Was a man wrongly convicted of rape when an expert who had not tested or analyzed the DNA evidence testified as to the results?


No; The expert’s in-court testimony was subject to cross-examination and the forensic test results are not testimonial under the Supreme Court’s 2012 decision in Williams v. Illinois.


Stephen B. Mercer, chief attorney in the forensics division of the Office of the Public Defender, for petitioner; Robert Taylor Jr., Office of the Attorney General, for respondent.

RecordFax 13-0822-23 (72 pages).