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Lawyers had no duty to object before CSI effect ruling, Md. high court says

Court of Appeals rejects ineffective assistance claim

Maryland’s top court has excused defense attorneys who failed to object to judges telling prospective or sitting jurors that prosecutors need not present scientific evidence to prove guilt before the high court first ruled such comments generally verboten in 2010.

In a 7-0 decision Monday, the Court of Appeals said the defense was not expected to recognize then 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. Thus, an attorney’s failure to object before 2010 could not be regarded as ineffective assistance of counsel because lawyers are not required “to predict future developments in case law,” the high court held.

The Court of Appeals’ landmark 2010 decision in Charles v. State 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.

The high court rendered its most recent decision in affirming Antonio McGhee’s first-degree murder conviction and life sentence for the March 17, 2007, shooting death of Keith Dreher outside Prince George’s County pizzeria.

The Court of Appeals rejected McGhee’s argument that his trial attorney in 2007 had provided ineffective assistance by failing to object when the judge asked prospective jurors during voir dire if they could convict a defendant without forensic evidence.

The high court stated that before 2010, discussion of the CSI effect was largely limited to news and scholarly articles, nearly all of which downplayed its potential harm to defendants.

In addition, only one reported Maryland opinion — a May 2007 Court of Special Appeals decision — even hinted at a CSI effect in stating that a judge validly instructed the jury that  the state was not legally required “to use any specific investigative technique or scientific test to prove its case.” The intermediate court did not use the expression “CSI effect” in its decision in Evans v. State, the high court noted.

“In sum, we conclude that McGhee’s counsel performed within the accepted professional norms of 2007, which did not require objecting to the CSI effect voir dire question in this case,” Judge Jonathan Biran wrote for the Court of Appeals.

“Because McGhee’s trial occurred in December 2007, we do not assess his counsel’s performance under Charles, Atkins and Stabb, which were all decided in the years that followed,” Biran added, referring to the high court’s trilogy of CSI effect rulings. “McGhee failed to demonstrate that, under the professional norms that existed at the time of his trial, his attorney provided constitutionally deficient representation by failing to object to a CSI effect voir dire question.”

McGhee’s appellate attorney, Allison Brasseaux, did not immediately return a message Tuesday seeking comment on the court’s decision. Brasseaux is an assistant Maryland public defender.

The Maryland attorney general’s office declined to comment on the high court’s decision.

In Charles, the Court of Appeals ruled that a judge tainted the jury by asking prospective jurors if they could still convict someone in the absence of forensic evidence. In 2011, the court ruled in two cases — Atkins v. Maryland and Stabb v. Maryland — that the judges’ instructions for the juries to disregard the lack of DNA evidence had unfairly undercut key defense arguments.

Before McGhee’s 2007 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, which McGhee’s appellate attorney said doomed his 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 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 rendered its decision in Antonio McGhee v. State of Maryland, No. 64, September Term 2021.