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Post-conviction DNA law applies to violent crimes, not conspiracy, Md. court says

People convicted of conspiracy to commit a violent crime have neither a statutory nor constitutional right to conduct a potentially exonerating DNA test on evidence in the state’s possession, Maryland’s top court unanimously ruled Tuesday.

In its 7-0 decision, the Court of Appeals said Maryland’s DNA Postconviction Act requires the state to keep DNA evidence following convictions for violent offenses but not for conspiring to commit such crimes. In addition, the state’s distinction for DNA purposes between violent acts and conspiracy violates neither the due-process nor equal-protection rights of those convicted of merely conspiring, the court said.

The Court of Appeals’ decision marked a defeat for Trendon Washington, who had petitioned for DNA testing after having been convicted of conspiracy to commit murder and sentenced to life in prison.

Baltimore City Circuit Judge Charles J. Peters had rejected Washington’s petition last year, saying the Postconviction Act — found in Section 8-201(b) of the Criminal Procedure Article — does not provide for testing in conspiracy cases. Washington appealed directly to the high court as permitted under the DNA statute.

The Court of Appeals, in ruling against Washington, noted the Postconviction Act does not mention conspiracy, whereas other sections of the Criminal Procedure Article expressly use the word.

“These provisions show that the legislature knows how to include conspiracy to commit crimes of violence in statutory provisions when it so desires,” Judge Sally D. Adkins wrote for the high court. “The legislature did not do so in CP Section 8-201(b). Consequently, based on the plain and unambiguous language of CP Section 8-201(b), we conclude that the legislature did not intend for individuals convicted of conspiracy to commit the crimes of violence … to have standing to file a petition for postconviction DNA testing.”

Not ‘similarly situated’

The high court also turned away the due-process challenge, calling it “neither offensive to our traditional principles of justice nor fundamentally unfair” to deny post-conviction access to DNA testing for people convicted of conspiracy crimes in light of other protections available under Maryland law.

For example, Maryland allows convicts for seek appellate relief as well as to petition for writs of actual innocence if newly discovered evidence arises that “creates a substantial or significant possibility that the result may have been different,” the court said, adding that Washington could have obtained DNA testing of the evidence against him before trial but declined.

The high court also ruled that the Constitution’s guarantee of equal protection under the law is not violated by the distinction Maryland law draws between those convicted of committing or attempting to commit a violent crime and those merely involved in the conspiracy.

The convicts are not “similarly situated” and thus can be treated differently, Adkins wrote.

Those convicted of attempting or committing a violent crime are likely to have left DNA evidence at the scene, while those found guilty of conspiracy are not directly involved in the violence and might not have even been present, she added.

“Therefore, it is rational for the state to conclude that DNA evidence related to a crime that requires some physical presence is more likely to exonerate an individual than DNA evidence related to a crime that can be completed through a mere conversation,” Adkins wrote. “Thus, it is rational for the state to work to remedy wrongful convictions by providing access to postconviction DNA testing in cases where the testing is most likely to exonerate.”

Washington’s attorney, Stephen B. Mercer, said in an email that “in light of the court’s decision, I am assessing Mr. Washington’s options to obtain access to evidence in the state’s possession that if subjected to DNA analysis is likely to produce exculpatory results consistent with my client’s actual innocence.”

Mercer heads the forensics division of the Maryland public defender’s office.

The Maryland attorney general’s office said in a statement that “we agree with the Court of Appeals that the legislature had a rational basis for limiting the universe of crimes for which the state is required to preserve potential DNA evidence.”

Washington was convicted of conspiracy in the March 2007 shooting death of Ricardo Paige at the house Paige was renovating on East 43rd Street in Baltimore. Investigators found blood on a broom and dust pan at the scene, which they presumed was left by the killer or an accomplice trying to sweep up ballistic evidence.

The blood was never tested for DNA, according to Washington’s unsuccessful petition. State prosecutors have preserved the blood evidence for potential post-conviction DNA testing by Washington’s co-conspirator, Kevin Armstead, because he was convicted of a violent crime — second-degree murder — in the slaying. Armstead, like Washington, is serving a life sentence.

The Court of Appeals rendered its decision in Trendon Washington v. State of Maryland, No. 5 September Term 2016.


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