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Defendants have greater right under Md.’s Constitution than U.S., high court says

The Maryland Constitution gives criminal defendants a greater right to confront prosecution witnesses than guaranteed under the federal Constitution, Maryland’s top court said Thursday in holding that the accused have a state constitutional right to cross-examine the authors of damning DNA reports prepared in contemplation of potential prosecution.

The Court of Appeals said its decision will bring clarity to confusion caused by the U.S. Supreme Court’s unclear holdings on whether and when DNA reports are admissible in criminal trials without their authors having to testify under the federal Constitution’s confrontation clause in the Sixth Amendment.

The Maryland high court had previously held that the state constitution’s confrontation provision — in Article 21 of the Declaration of Rights — mirrored but did not exceed the rights provided by the federal Constitution as interpreted by the Supreme Court.

“We believe this is … an instance in which we should read a Maryland constitutional provision differently than the Supreme Court has interpreted its federal constitutional counterpart,” Judge Jonathan Biran wrote for the Court of Appeals.  “As the highest court of Maryland, we decline to wait any longer for the Supreme Court to provide clarity under the Sixth Amendment, where the Maryland Constitution provides independent rights to confrontation and cross-examination – indeed, where Maryland declared the existence of those rights before the Sixth Amendment came into existence.”

The Court of Appeals rendered its decision in reversing James Leidig’s burglary and property destruction convictions, saying the DNA report linking him to the crime should not have been admitted into evidence because he did not have the opportunity to cross-examine the report’s author, who worked for the Maryland State Police.

The high court has ordered a new trial for Leidig.

The Court of Appeals likened the authors to an eyewitness and their DNA reports to the description the witness provides detectives in tracking down a suspect. Both identifications lead to the defendant, making both the authors and eyewitness subject to cross-examination under Maryland’s Constitution, the Court of Appeals said.

“When they made their statements, both declarants reasonably understood that: (1) the information they gave to police would be used to try to identify the perpetrator; and (2) if the perpetrator indeed was located and charged, the declarants’ information might be relevant evidence in the state’s case at trial,” Biran wrote. “A criminal defendant in Maryland must have the right to confront and cross-examine any witness who gives such a statement to police.”

The Court of Appeals noted in a separate decision that a DNA report’s technical reviewer – the person who thoroughly reviews and signs off on the report before its issuance – may testify and be cross-examined in place of the author. The court stated the reviewer is the “functional equivalent of a second author of the report.”

Shirley M. Watts, the only judge on the seven-member court not to join Biran’s opinion, wrote separately that the DNA report authors’ testimony is required and in line with Supreme Court and related Court of Appeals decisions interpreting the federal Constitution.

Thus, the Court of Appeals unnecessarily and improperly departed from its precedent in extending the right of criminal defendants to cross-examine prosecution witnesses under the Maryland Constitution beyond that afforded by the federal Constitution, Watts added.

Neither the Maryland attorney general’s office nor Leidig’s appellate attorney, Brian L. Zavin, immediately returned messages Friday seeking comment on the high court’s decision. Zavin heads the Maryland public defender’s appellate division.

The Court of Appeals case began when officer David Haugh of the Washington County Sheriff’s Department found blood on a window frame and curtain while investigating a burglary at Ralph and Rebecca Brown’s Hagerstown home in September 2016, according to the high court’s opinion.

Haugh’s swabs of the frame and curtain were sent to the Maryland State Police Forensic Sciences Division in Pikesville, where scientist Molly Rollo analyzed them and issued a report in October 2016 on her results and conclusions. Rollo noted that she entered the swabs’ DNA profile into the National DNA Index System database.

Within days, Haugh learned that the database yielded a potential match for Leidig, from whom the officer then obtained a DNA sample via a cheek swab. Tiffany Keener, another scientist at MSP’s forensic division, examined the sample and issued a supplemental report matching the blood found at the house to Leidig, who was arrested and charged with burglary and property destruction.

Rollo never testified at Leidig’s trial regarding the report she wrote and upon which Keener had based her findings. Nevertheless, the report and the findings it led to were admitted into evidence.

The Washington County Circuit Court jury found Leidig guilty in 2019 of third- and fourth-degree burglary and malicious destruction of property. He was sentenced to eight years in prison.

The intermediate Court of Special Appeals upheld Leidig’s conviction, prompting him to seek review by the Court of Appeals.

The high court rendered its decision in James Matthew Leidig v. State of Maryland, No.19, September Term 2020.