Litigating Innocence Cases:
2015 update
LISA M. KAVANAUGH
CPCS INNOCENCE PROGRAM
SOMERVILLE, MA
DENISE MCWILLIAMS
NEW ENGLAND INNOCENCE PROJECT
BOSTON, MA
JANUARY 16, 2015
Lots of new developments
 Federal Grants & “Chapter 278A” Working Group
 Best Practices for Evidence Handling
 Evidence Inventory Process
 Chapter 278A developments
 Working Group model testing order
 Middlesex discovery agreement
 Case law update
 Statewide hair microscopy review
Chapter 278A refresher
 Who?
 Convicted of MA crime
 Incarcerated, parole/ probation, liberty otherwise restrained
 Even if pled guilty or confessed
 So long as presently assert innocence (Affidavit)
 Analysis material to identity of perpetrator
 Analysis not previously performed for one of
enumerated reasons in statute
Much more expansive than Rule 30!
1.
Discovery
2. Standard to get hearing
3. Standard to get testing
4. Costs
5. Appellate Review
Discovery
Rule 30(c)(4)
G.L. ch. 278A, sec. 3(c) &
sec. 7(c)
 Must establish “prima
 May move for
facie case” for relief
 Discretionary
 Commonwealth or its
agents
discovery if can’t satisfy
3(b) or 7(b)
 If good cause, court
“shall not” require
prima facie case
 Includes third parties
Standard for obtaining testing/ analysis
Rule 30
G.L. ch. 278A
 Testing sought “would have
 Sec. (4) analysis “has
 Would evidence “probably
the potential to result
in evidence that is
material to the moving
party’s identification as
the perpetrator…”
 Must be tied to claim of
innocence
produced results that likely
would have influenced the
jury’s conclusion.” Evans,
439 Mass. 184 (2003)
have been a real factor in
jury’s deliberations.”
 Not only tied to innocence
Hearing
Rule 30
G.L. ch. 278A, sec. 6(a)
 (c)(3) not required if
 “Shall” order hearing if
“no substantial issue”
 (c)(6) presence of
moving party not
required at hearing
sec. 3 satisfied
 Moving party “shall be
present” unless movant
waives presence
Costs of testing for indigent defendants
Rule 30(c)(5)
G.L. ch. 278A
 Commonwealth has
 Sec. 2, costs “shall be
right to be heard
 Entirely discretionary,
even if make out prima
facie case for relief
paid” if D indigent
 Sec. 3, marginally
indigent – court can set
equitable fee
Appellate Review
Rule 30
G.L. ch. 278A
 Abuse of discretion
 Sec. 3(e) – if no
 Written findings not
required
 No right to immediate
appeal of denial of
post-conviction funds,
Celester v. C., 440
Mass. 1035 (2004)
hearing, denied w/o
prejudice, can refile
 Sec. 7(a) - must make
findings of fact &
rulings of law after hrg
 Sec. 18 – denial is
“final and appealable
order”
How Chapter 278A works
1.
Stage 1: Are pleadings adequate to get a hearing?
2. Stage 2: After the hearing, do you get testing?
Stage 1 cases
 C v. Wade, 467 Mass. 496 (2014)
 Adequacy of affidavit
 Meaning of “effective assistance” in context of showing why
testing not previously performed
 C v. Donald, 468 Mass. 37 (2014)
 What if there was DNA testing, and now there’s a new test?
 Can trial court consider strength of other evidence? No!
Issues to watch out for
 Burden re. chain of custody/ contamination? Clark
 Trial strategy (not to seek what was available) vs.
newly available tests? Wade
 Degree of waiver of attorney-client privilege? Wade
 Jurisdiction in M1 cases?
 Pre-direct appeal (Moffatt)
 Post-direct appeal: need to satisfy gatekeeper? (Not yet raised)
Grant-related developments
 Increased access to information for screening
 From DA
 From lab
 Agreements to testing
 Middlesex – case by case, “pain in the neck” rule
 Suffolk – if grant pays, agree
 Other counties – all bets are off, especially Plymouth
Grant-related developments
Hair microscopy review
• 2009: NAS report says
problematic
• 2012: DNA exonerations
of 3 men whose
convictions tainted by
hair microscropy
• 2014 grant: MSP review
• 1980 – 2000
• hair and serology
Questions?
CPCS Innocence Program:
•
•
•
Lisa Kavanaugh, lkavanaugh@publiccounsel.net
Ira Gant, igant@publiccounsel.net
Emma Zack, ezack@publiccounsel.net
New England Innocence Project
•
Denise McWilliams, dmcwilliams@newenglandinnocence.org
The CPCS Innocence Program is supported in part by Grant No. 2009-FA-BX0037 awarded by the Bureau of Justice Assistance and Grant No. 2013-DY-BXK006 awarded by the National Institute of Justice. The National Institute of
Justice and the Bureau of Justice Assistance are components of the Office of
Justice Program, which also includes the Bureau of Justice Statistics, the Office of
Juvenile Justice and Delinquency Prevention, the SMART Office, and the Office
for Victims of Crime. Points of view or opinions in this document are those of the
authors and do not represent the official position or policies of the United States
Department of Justice.