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Md. high court will weigh if ‘CSI-effect’ rulings apply retroactively

The Maryland Court of Appeals will consider whether a general prohibition on judges telling prospective or sitting jurors that prosecutors need not present scientific evidence to prove a defendant’s guilt applies to criminal convictions reached before the high court issued its general ban about a dozen years ago.

The court this month agreed to hear Antonio McGhee’s argument that his first-degree murder conviction before the announced general prohibition should nevertheless be overturned because the trial judge asked prospective jurors if they could find a defendant guilty beyond a reasonable doubt without forensic evidence placing him at the crime scene.

McGhee has also argued that his trial attorney provided ineffective assistance of counsel by failing to object to the judge’s question, which was akin to one the high court deemed improper in a later case.

In response, the Maryland Attorney General’s Office urged the high court in vain to deny McGhee’s request for its review, saying the court’s rulings do not apply retroactively. Because the rulings did not apply to McGhee’s trial, his counsel’s decision not to object to the judge’s question cannot be deemed ineffective assistance based on the law at that time, the state added.

The Court of Appeals’ consideration of McGhee’s appeal marks the first time it will directly confront whether its two 2011 decisions generally barring judges from telling would-be and impaneled jurors that scientific evidence is not needed to prove the state’s case apply retroactively.

The court ruled such a comment from a trial judge likely tilts the scales of justice in favor of the prosecution in cases in which it lacks forensic evidence.

Judges in the early 2000s often felt compelled to ask or instruct jurors on the issue of forensic evidence in the belief that they — as a result of watching television crime dramas – had grown to expect the state to prove its case with DNA and rule against the prosecution if it did not present forensic evidence.

This expectation of jurors has been dubbed the “CSI effect” in recognition of the popular show “CSI: Crime Scene Investigation,” which featured forensic investigators.

But in Stabb v. Maryland, the Court of Appeals overturned a man’s sexual-assault conviction, saying the judge’s instruction that the jury disregard the lack of DNA evidence had unfairly undercut a key argument of the defense. And In Atkins v. Maryland, the court struck down jury instructions similar to those in McGhee’s case when the judge asked prospective jurors during voir dire if they could still convict someone in the absence of forensic evidence.

In his successful request for high court review, McGhee stated through counsel that Stabb and Atkins apply retroactively to his 2007 conviction because the two decisions did not create a new right but merely applied a defendant’s existing right to a fair trial to a set of facts: the questions and instructions a judge renders to jurors.

Atkins and Stabb did not announce a new constitutional or statutory rule; instead this Court (of Appeals) merely applied settled federal and state constitutional guarantees to a new and different factual situation,” wrote Assistant Maryland Public Defender Allison P. Brasseaux. “Accordingly, under well-settled retroactivity law, which states that a case that does not announce a new principle applies to all convictions, final or not, Atkins and Stabb apply to Mr. McGhee’s ineffective assistance of counsel claim, even though his convictions were final before those decisions issued.”

In its unsuccessful request that the court deny McGhee’s review petition, the state said trial counsel’s failure to object was not ineffective in light of the pre-Atkins and Stabb case law in effect at the time of trial.

“Counsel in 2007 could not have anticipated that the law would, over the course of the next decade, evolve to disapprove of a CSI-effect voir dire question,” Assistant Maryland Attorney General Virginia S. Hovermill wrote. “Indeed, under the law, counsel was not required to do so.”

The Court of Appeals is scheduled to hear arguments in June and expected to render its decision by Aug. 31 in Antonio McGhee v. State of Maryland, No. 64, September Term 2021.

McGhee was charged in the March 17, 2007, shooting death of Keith Dreher outside a pizzeria in Prince George’s County.

Prior to McGhee’s trial, Prince George’s County Circuit Judge James J. Lombardi asked prospective jurors, “Does any member of this panel believe that the state has got to present fingerprint evidence, DNA, blood sample evidence, ballistic evidence, any scientific evidence in order to convince you of the defendant’s guilt? In other words, do you think the state has a requirement to do that in all cases?”

Trial counsel did not object, a failure Brasseaux said doomed McGhee’s defense by essentially excusing the prosecution’s lack of forensic evidence in a case based largely on the testimony of one eyewitness who had identified McGhee in a photo array but later recanted his identification.

McGhee was convicted of first-degree murder and sentenced to life in prison in 2008.

He moved for post-conviction relief in 2014 in light of the high court’s rulings in Atkins and Stabb.

Prince George’s County Circuit Judge Beverly J. Woodard ruled for McGhee and on June 11, 2020, ordered a new trial. But the Court of Special Appeals reversed Woodard’s decision in an unreported opinion last November, prompting McGhee to seek review by the high court.