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Criminal Law Casebook
Franklin County Criminal Law Casebook
Reproduced with permission from:
David L. Strait
Franklin County Public Defender Office
-- Civil action against the state for wrongful imprisonment.
-- Postconviction DNA testing for eligible inmates.
Actual Innocence Claims
Postconviction Applications for DNA Testing
State ex rel. Cordray v. Rawlins
, 123 Ohio St. 3d 229,
– The Attorney General has standing to bring a prohibition action compelling a common pleas court judge to vacate entries granting relief to a defendant on a motion for relief from judgment pursuant to Civil Rule 60(B). Trial court refused to instruct on voluntary and involuntary manslaughter. Court of Appeals affirmed. But without opposition from the county prosecutor the trial court subsequently granted 60(B) relief on the same claim, entered conviction on voluntary manslaughter, imposed a ten year sentence, and ordered release from prison. Writ granted. Law of the case doctrine applies. A trial court may not take action affecting the decision of a reviewing court.
McDaniel v. Brown
(2010), 130 S.Ct. 668 – Federal courts granted habeas relief from conviction in state court on the basis of
Jackson v. Virginia
review. Primary basis was a report prepared eleven years after conviction asserting that the testimony of the state’s DNA expert was flawed because of the “prosecutor’s fallacy” which confuses the statistical likelihood a trait will be carried and the unlikelihood the accused is innocent. Supreme Court reverses. (1) Defendant now concedes a subsequently prepared report is not properly received when the issue is jury error. (2) State concedes the prosecutor’s fallacy occurred. (3) Attempt to convert claim to one based on
Manson v. Braithwaite
fails because it was not argued in the lower courts.
House v. Bell
(2006), 126 S.Ct. 2064 -- Subsequent developments make capital defendant's conviction highly suspect. This does not establish "freestanding innocence" such as would render execution unconstitutional. See
Herrera v. Collins
(1993), 506 U.S. 390. But since based on evidence not presented at trial it appears more likely than not that a reasonable juror would not have found the defendant guilty beyond a reasonable doubt, this case falls within the narrow exception to procedural default in a federal habeas when there is a viable claim of actual innocence.
State v. Harrington
, 172 Ohio App. 3d 595,
-- Actual innocence is not an issue that may be litigated in an Ohio post conviction action. Postconviction actions are limited to claims of constitutional magnitude, and actual innocence has not been recognized as such. Also see
Herrera v. Collins
(1993), 506 U.S. 390 reaching the same conclusion as to federal habeas.
Nelson v. State
, 183 Ohio App. 3d 83,
– Court of Claims dismissed wrongful imprisonment action believing the defendant had to obtain a finding from the trial court hat he had been found guilty of a crime he did not commit or an offense not committed by anyone. That is not the standard under the controlling version of
. In any event, the state‘s answer admitted wrongful imprisonment, leaving no issue for the court to determine as to jurisdiction.
State v. Moore
, 165 Ohio App. 3d 538,
-- Defendant pled guilty. Counsel had not told him of exculpatory gunshot residue tests. Plea was allowed to be withdrawn and defendant was acquitted at a second trial. Evidence at that trial indicated he was not guilty and that another person committed the homicide. In response to the filing of a motion asking the defendant be declared a wrongfully imprisoned individual in furtherance of a court of claims lawsuit the court scheduled a hearing. The defendant submitted a trial transcript deemed sufficient to establish he had been wrongfully convicted. Former infirm guilty plea does not bar claim. State was not denied its right to a hearing since one was scheduled, and it did not appear or object.
Skinner v. Switzer
(2011), 131 S.Ct. 1289 – 1983 action lies to have DNA testing performed. Death row inmate was twice unsuccessful when he sought to have tests performed on objects not previously tested pursuant to a Texas statute. Court reasons that a 1983 suit here does not directly seek review of the decision of a state court. Instead the inmate is mounting a due process challenge against the Texas statute.
claims distinguished on the basis that there a favorable judgment implies the invalidity of a conviction or sentence. But the results of DNA testing may be incriminating or inconclusive as well as exculpatory.
State ex rel. Steffen v. Court of Appeals, First Appellate District
, 126 Ohio St. 3d 405,
– Writ of prohibition issued to halt state’s appeal of trial court’s award of a new sentencing phase trial in a 1982 capital case. Steffen had been convicted of rape and a capital specification based on rape or attempted rape. Recent DNA testing disclosed semen was deposited by a morgue employee, not the defendant. State agreed conviction for rape should be reduced to attempted rape, but pursued a claimed appeal as of right from the award of new sentencing trial. Since the state agreed to the reduction, its appeal did not lie form from dismissal or partial dismissal. Therefore leave to appeal was required. Since it was not sought, writ of prohibition issues.
State v. Prade
, 126 Ohio St. 3d 27,
– Defendant wanted retesting of a lab coat worn by the victim. When the area of a bite mark was previously tested DNA from the female victim’s blood overwhelmed any other DNA that might have been detected. Now Y-STR testing can “resolve the minor male component in mixtures containing an overwhelming amount of female DNA.” Remanded for further testing, subject to assessment whether results would be outcome-determinative. Syllabus: “A prior DNA test is not ‘definitive’ within the meaning of
when a new DNA testing method can detect information that could not be detected by the prior DNA test.”
District Attorney‘s Office v. Osborne
(2009), 129 S.Ct. 2308 – Alaska inmate seeking exoneration through DNA testing filed an civil action for deprivation of rights under 42 U.S.C. 1983 seeking access to evidence in the hands of the prosecution. There is no freestanding constitutional right of access to such evidence following conviction.
is limited to the obligation to provide pretrial disclosure.
State v. Reynolds
, 186 Ohio App. 3d 1,
– A postconviction request for DNA testing lies even though DNA testing was available at the time of trial, but was not requested. Court notes new techniques which have become available. Trial court abused its discretion by determining the items listed in the request would not yield usable DNA. That determination is for the examiner to make. Test results would be outcome determinative if the DNA of a third party was found and that person popped up in the combined DNA index system.
State v. Ayers
, 185 Ohio App. 3d 168,
– Defendant was unsuccessful in an initial effort to obtain DNA testing. In response to a second application the state interposed res judicata and maintained testing would not be outcome determinative.
was revised in 2006 making it somewhat easier to obtain DNA testing. In view of this and the availability of improved testing procedures, res judicata does not apply. Changes in the statute also make it easier to demonstrate testing could be outcome determinative.
State v. Buehler
, 113 Ohio St. 3d 114,
-- Syllabus: "(1) A careful, commonsense reading of
in paria materia with
and the remainder of
illustrates the intent of the General Assembly to authorize the trial court to exercise its discretion in how to proceed when ruling on an eligible inmate's application for DNA testing. (2) When an eligible inmate files an application for DNA testing pursuant to
, a trial court should exercise its discretion based upon the facts and circumstances presented in the case as to whether it will first determine whether the eligible inmate has demonstrated that DNA testing would be outcome-determinative, or whether it should order the prosecuting attorney to prepare and file a DNA evidence report pursuant to
State v. Buehler
, 164 Ohio App. 3d 209,
which held that the prosecutor's duty to prepare a report concerning the availability of samples for DNA testing is triggered by submission of the application, not by the application being granted.
State v. Sterling
, 113 Ohio St. 3d 255,
-- Regarding inmates who pleaded guilty or no contest the syllabus holds: "(1) Because
provides that a prosecuting attorney's decision to disagree with an inmate's request for DNA testing is final and not appealable by any person to any court and further directs that no court shall have authority, without agreement of the prosecutor, to order DNA testing, it interferes with the exercise of judicial authority, violates the doctrine of separation of powers, and is unconstitutional. (2)
is capable of being severed from the rest of the statute."
State v. Price
, 165 Ohio App. 3d 198,
-- Though the inmate had checked no in response to a form question asking if DNA evidence had been collected or still existed, the prosecutor was still under an obligation to search to see if there was such evidence. In fact the record indicated a rape kit had been used. Thus the court was not in a position to summarily overrule the application. Though the court must provide reasons in an entry denying an application for DNA testing, they need not be in the format of findings of fact and conclusions of law.
State v. Combs
, 162 Ohio App. 3d 706,
-- Little forensic evidence linked inmate-applicant for DNA testing to the crime. Previously he had been eliminated as the source of blood on one of his own socks. Application pursuant to
was properly denied for failure to show how testing would have been outcome determinative.
State v. Wilkins
, 163 Ohio App. 3d 576,
-- Defendant met two of the three criteria of
for DNA testing. The basic blood grouping test done at the time of the crime was not a DNA test. Nor was DNA evidence generally admissible in evidence before the decision in
State v. Pierce
(1992), 64 Ohio St. 3d 490. But the results of testing would not have been outcome determinative since the rape victim was uncertain defendant had ejaculated and there was strong evidence otherwise that he was the rapist. Not having passed beyond the threshold issue, the prosecutor was not required to consult with the testing authority and prepare a report regarding what might be tested. Compare
State v. Hightower
, Cuyahoga App. Nos. 84242 and 84398,
where the evidence was more narrowly supportive of conviction.
State v. Emerick
, 170 Ohio App. 3d 647,
-- Trial court improperly denied application for post-conviction DNA testing. (1) Though DNA testing was in fact done on some materials prior to trial, the Y-STR analysis method was not available at that time. (2) Testing now would be outcome determinative. The state's theory was that the defendant acted alone. Detection of the blood of a third party would indicate another person committed the crime.
State v. Nalls
, 164 Ohio App. 3d 567,
-- Inmate filed an application for DNA testing. State was not required to file a response, but elected to file a memo in opposition. A local court rule permitted the inmate to file a memo in response, but the court dismissed the application before the time for doing so had passed. Reversed.
David L. Strait
Copyright © Franklin County Public Defender and David L. Strait, 2015
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