Flawed evidence puts legal process on trial

Roland Walker has been practicing law since 1952. You’d think he’d seen it all, but he said his faith in the system was rattled to an unusual degree recently.

While representing client Brandon Grimes, charged in the fatal shooting of Baltimore Police Detective Troy Chesley, Walker learned through a Baltimore Sun article that DNA forming a centerpiece of the case against Grimes could be tainted.

Two weeks later, Baltimore State’s Attorney Patricia C. Jessamy was asked to review homicide cases after it was determined that evidence favorable to the defense had not been turned over in two 2001 murder cases.

Lawyers, judges and juries know that witnesses make mistakes or have motives that affect their testimony. But when DNA is not reliable, or evidence is kept from the defense, can the legal process be trusted? And if not, what can be done?

In the Grimes case, Walker sought a mistrial or to have the DNA considered inadmissible. Lab technicians’ DNA had been found on evidence; the longtime head of the city crime lab had been fired. Both of Walker’s requests were denied, and Grimes was found guilty.

Now, Walker, who plans to appeal, questions the reliability of evidence he’d considered “better than a movie” of the crime. He was particularly frustrated because DNA is all but incomprehensible to the average person.

“A lawyer’s duty is to be skeptical and not accept as fact anything, whether it’s gunshot residue or prints or whatever,” he said. “And we do. But when it’s DNA, it’s very hard to do much unless you happen to be an expert.”

Preventing contamination

Baltimore circuit judge John M. Glynn believes the adversarial judicial system is inherently flawed. “The participants in the system have no interest in the truth,” he said. “They care about winning.”

Still, scientific evidence, particularly DNA, has been considered reliable.

“Every case I know, where there’s DNA, the lawyer rolls over,” said Walker, of Roland Walker & Mark Zayon P.A. in Baltimore.

That faith may be misplaced.

“I always made the argument that scientific evidence is only as reliable as the people who have collected it and tested it,” said Amy Dillard, an assistant professor of law at the University of Baltimore School of Law and a former defense attorney.

Dillard said prosecutors have an obligation to trace the chain of custody, looking for places where the material might have been contaminated. “With each of those steps, you have the potential for evidence becoming tainted,” she said.

Glynn said Baltimore’s cash-strapped crime labs are particularly susceptible to problems. To make sure that scientific evidence is trustworthy, he said, “You’re going to have to use labs that are funded in a way that enables people to really do the work.”

An independent standard would help. “You have to have the protocols and they have to be consistent,” he said.

State Public Defender Nancy Forster calls the adversarial system the best way to wrest out the truth during a criminal trial. Any lawyer who takes a case involving DNA must find experts to validate the evidence, she said.

She noted that a new law changes the rules of discovery, spelling out what the state and prosecutors must turn over to the defense. It’s too soon to see if the law will make a difference, she said, but “it aligns Maryland’s discovery rules more with the federal.”

Cassandra Costley, a former assistant state’s attorney, has been accused of withholding information from defense attorneys in a 2001 Baltimore murder case. “Her position was that she did not have it, that it was the city police department,” Forster said. “The bottom line is that, in all criminal cases, the prosecutor is responsible.”

Forster said she doesn’t know if the new rules would have made a difference in that case. “If the police withheld it—and honestly, I don’t know where the truth lies—then there’s not a whole heck of a lot she could have done.”

Need for skepticism

Renee Hutchins is an assistant professor at the University of Maryland School of Law who does appellate and post-conviction advocacy work. She is trained to look skeptically at every element of the judicial system, including witnesses who can’t or won’t tell the truth and scientific evidence that’s not as trustworthy as jurors may be led to believe.

Studies show that witnesses are notoriously flawed at cross-racial identifications, she says. But if juries don’t know this, they’ll believe a witness who honestly but mistakenly points to the wrong person at a crime scene.

Even scientific evidence can be flawed, she said, and the problem is particularly unsettling with DNA: Unlike skid marks and fingerprints, which can be shown to a jury, DNA evidence is inscrutable.

Who knows if DNA will always be considered reliable?

Not long ago, Hutchins said, the FBI touted comparative bullet lead analysis as 100 percent accurate in linking criminals to crime scenes. But a couple of years ago, the test was deemed not credible, and convictions based on such analysis had to be retried, she said.

Hutchins has ideas for improving the court system. One is to make sure jury instructions emphasize that evidence and testimony must be viewed with a skeptical eye.

“We all know there is a presumption of innocence, but I think six out of 10 people think if you got arrested, you probably did something,” she said.

Another problem, she said, is that defense lawyers usually have fewer resources than the prosecutor’s office, creating an uneven playing field.

“I think the solution is to more equitably fund the offices. I think the solution requires more money, and I know that’s not a popular answer,” she said.

Karen Nitkin is a freelance writer based in Ellicott City.