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Md. high court weighs ‘CSI’ effect’s impact on ineffective-assistance claims

The Maryland Court of Appeals grappled Monday with whether defense attorneys provided ineffective assistance by not objecting to judges telling prospective or sitting jurors that prosecutors need not present scientific evidence to prove guilt in the years before the high court first ruled such comments generally verboten in 2010.

Even before that decision, defense counsel was obliged to recognize that the judge’s comments unfairly tilted the trial in the prosecution’s favor by excusing in the jurors’ minds the state’s absence of forensic evidence, attorney Allison Brasseaux told the high court in pressing convicted first-degree murderer Antonio McGhee’s appeal.

“Mr. McGhee is simply asking this court to acknowledge that a reasonably competent attorney would be aware of prior published decisions and would have recognized that those (fair trial) principles applied to the situation before him,” said Brasseaux, an assistant Maryland public defender. “A message that tells the jury it doesn’t have to consider scientific evidence necessarily invades the jury’s factfinding ability, necessarily is an impermissible comment on the evidence because it tells the jury ‘hey, don’t consider this’ and it negates defense argument to the contrary.”

Countering Brasseaux, Assistant Maryland Attorney General Virginia Hovermill told the court that the “prevailing professional norms” before its 2010 ruling was that defense counsel was neither obliged nor had sufficient notice to object to judicial comments on the lack of forensic evidence.

The court’s 2010 decision and subsequent rulings came in response to trial judges instructing jurors in the early 2000s that forensic evidence was not required for conviction in the belief that they — due to 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.

In Charles v. Maryland, the Court of Appeals ruled in 2010 that a judge tainted the jury by asking prospective jurors during voir dire if they could still convict someone in the absence of forensic evidence. The following year, the court ruled in two cases — Stabb v. Maryland and Atkins v. Maryland — that the judges’ instructions for the juries to  disregard the lack of DNA evidence had unfairly undercut key defense arguments.

In McGhee’s appeal, Brasseaux said the murder conviction that occurred before the Charles decision 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. Brasseaux added McGhee’s trial attorney was ineffective by not objecting to the judge’s question, which was akin to one the high court deemed improper in Charles.

But Hovermill urged the Court of Appeals to uphold McGhee’s conviction, saying his trial counsel was not obliged in 2007 to object to the judge’s effort to counter the CSI effect, which the high court did not recognize until 2010.

“There was nothing in that snapshot in time that would have signaled to (defense counsel) that an objection to this voir dire question was necessary or even appropriate,” Hovermill said. “The body of law that had to do with the CSI effect was non-existent in Maryland.”

In apparent agreement, Judge Jonathan Biran told Brasseaux that attorneys had no reason to suspect a judge’s comments designed to quell the CSI effect were improper until an especially bright lawyer pressed that argument.

“There’s always going to be that first person who, when we look back on it, we’ll say, ‘Gosh, that lawyer really had vision, was the first person to raise it,’” Biran said. “Why does it follow that all the other good lawyers who just didn’t happen to think of that were deficient under the Constitution?”

Brasseaux agreed that “there’s always going to be that first” lawyer.

“But I think that first person is an indication that other lawyers also should have objected,” Brasseaux said. “Reasonably competent counsel is aware of caselaw and is expected to apply that caselaw not just to the situations directly addressed but the situations that are analogous, that fall within the scope of it.”

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

Before 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 and sentenced to life in prison in 2008.

He moved for post-conviction relief in 2014 based on the high court’s rulings in Charles, 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.

The Court of Appeals is expected to render its decision by Aug. 31 in the case, Antonio McGhee v. State of Maryland, No. 64, September Term 2021.