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Top court faults ‘CSI effect’ instruction

Although a defense attorney drew attention to the absence of DNA evidence in a burglary case, a trial judge overstepped his bounds in telling the jury that prosecutors didn’t have to present scientific evidence to prove the defendant’s guilt, Maryland’s top court has held.

In its 5-2 decision, the Court of Appeals said the judge violated Emmanuel Ford Robinson’s right to a fair trial in a flawed attempt to absolve jurors of a mistaken belief — borne of TV police dramas — that guilt can be proved only by DNA evidence linking the defendant to the crime scene.

The court’s decision was its latest to address the so-called “CSI effect” — the theory that jurors have been conditioned by programs such as “CSI: Crime Scene Investigation” to expect to hear scientific evidence conclusively linking a defendant to the crime. Montgomery County Circuit Court Judge Robert A. Greenberg’s instruction invalidly tipped the balance in favor of the state by implying that jurors could discount the defense’s key argument: that the state had not conducted DNA tests on the alleged burglary tools, the high court said without mentioning the judge by name.

“Certainly, lack of evidence is a common defense in a criminal case to generate reasonable doubt as in the instant case,” Judge Lynne A. Battaglia wrote for the majority.

In 2011, the court held in Stabb v. Maryland and Atkins v. Maryland that a defendant’s right to a fair trial is violated when a judge instructs jurors before deliberations that prosecutors need not present scientific evidence to prove their case.

Citing those decisions, the high court said defense attorneys have latitude to note the prosecution’s lack of scientific evidence without triggering — and rendering valid — a judge’s “anti-CSI effect instruction” that scientific evidence is not required to prove guilt.

“Robinson’s counsel’s opening statement and cross-examination merely pointed out what procedures might have been available to the state, but did not misstate the law or the state’s burden,” Battaglia wrote in overturning an intermediate Court of Special Appeals decision that found Greenberg’s instruction valid.

“Robinson’s counsel cross-examined the [police] officers regarding whether testing had been ordered to compare the screwdrivers recovered to pry marks on the door to the apartment and whether fingerprint or DNA tests had been ordered, but did not insinuate that the state had any obligation to perform such testing or that had tests been performed, the results of such testing would have favored his client,” Battaglia added in sending the case back for a new trial. “As a result, we hold that the trial judge erred in giving the anti-CSI effect instruction, which effectively relieved the state of its burden to prove Robinson guilty beyond a reasonable doubt.”

James J. Cagley was listed on Maryland Judiciary Case Search as Robinson’s trial attorney. Cagley, a Rockville solo practitioner, did not return a telephone message Monday afternoon seeking comment on the case.

In dissent, Judge Shirley M. Watts said the anti-CSI effect instruction was necessary to counterbalance the defense attorney’s having urged the jury to note that prosecutors had presented no DNA evidence linking Robinson to the burglary, which took place on Tuckerman Lane in Bethesda.

“Even if the CSI effect does not exist, a defendant can nonetheless mislead jurors by representing to them that the state is required to offer scientific evidence to satisfy its burden of proof beyond a reasonable doubt, and there would be no colorable argument against giving an anti-CSI effect instruction.” Watts wrote. “… Robinson’s counsel did essentially that.”

Brian S. Kleinbord, of the Office of the Maryland Attorney General, expressed concern that the court’s decision allows defendants to seize on a lack of scientific evidence while preventing trial judges from making clear that such evidence is not required to prove guilt.

“This is an area the defendants will continue to exploit,” said Kleinbord, who heads the office’s criminal appeals division. “When the issue has been introduced by the defendant that the lack of forensic evidence itself is a basis to find reasonable doubt, they [trial judges] should be allowed to give an instruction similar to the one given in this case.”

Kleinbord added he will request that the high court reconsider its decision based on the argument that the judge’s instruction, while in error, was harmless because it did not affect the jury’s verdict.

Greenberg, in his controversial instruction, told the jurors they “should consider all of the evidence or lack of evidence in deciding whether the defendant is guilty. However, I instruct you that there is no legal requirement that the state utilize any specific investigative technique or scientific test to prove its case. Your responsibility as jurors is to determine whether the state has proven based upon the evidence, the defendant’s guilt beyond a reasonable doubt.”

The jury subsequently found Robinson guilty of conspiracy to commit first-degree burglary in September 2011. He was sentenced to 10 years in prison, with all but four years suspended.

The Court of Special Appeals upheld the conviction in an unreported opinion, stating that Greenberg’s instruction came in response to the defense counsel noting the lack of scientific evidence. The judge “correctly stated that proof beyond a reasonable doubt does not require a specific investigative technique or scientific evidence,” the intermediate court held.

Robinson then sought review by the Court of Appeals.

Battaglia was joined in her opinion by Chief Judge Mary Ellen Barbera and Judges Glenn T. Harrell Jr., Clayton Greene Jr. and Sally D. Adkins.

Judge Robert N. McDonald joined Watts’ dissent.

WHAT THE COURT HELD

Case:

Emmanuel Ford Robinson v. State of Maryland, CA No. 11, Sept. Term 2013. Reported. Opinion by Battaglia, J. Dissent by Watts, J. Argued Oct. 8, 2013. Filed Nov. 27, 2013.

Issue:

Did the trial judge err in instructing the jury that the state has “no legal requirement that [it] utilize any specific investigative technique or scientific test to prove its case”?

Holding:

Yes; the jury instruction implied that the defense could prove guilty short of “beyond a reasonable doubt.”

Counsel:

Michael T. Torres for petitioner; Cathleen C. Brockmeyer for respondent.

RecordFax # 13-1127-21 (30 pages).