I've got an aggravated sexual assault of a child case that is set for jury selection next Monday, with trial to follow immediately thereafter.

One of the State's main pieces of evidence is the underwear the victim was wearing at the time of the assault. According to Garland, the stain in the underwear is a mixture of the defendant and victim.

Months ago, some time last year, Defense indicates that they want the judge to authorize re-testing at independent(read expensive) private lab. Judge indicates that unless Defense can show that he is entitled to this, he will deny motion. Motion is never actually filed.

Now Defense says they are going to file for continuance and request the dna re-test. First, is the defense entitled to dna re-test in general. Second is there some kind of waiver in waiting to file formal motion til now. This case has been specially set since before Christmas. All I've been able to find so far is dna retesting cases post conviction.

As always, any help is greatly appreciated.

The defendant almost certainly has a "right of inspection" of the evidence, DNA is like other discoverable evidence. With a few exceptions (for example, not enough sample to re-test, etc.) the defense must given an opportunity to have the sample tested. Whether or not the judge will approve re-imbursement for private testing is another matter entirely. While the judge should normally grant such motions, reality (and local practice) vary greatly. In addition, it is up to the judge to decide if the defense has waited too long or is stalling in asking for a continuance.

I would suspect that the defense will argue that, in light of the judge's indicating that he would rule against a court re-imbursed test, the defendant has been trying to raise the funds and/or locate an affordable test. The judge may be sympathetic to that argument, particularly since the defense "took his hint" and didn't file a motion they knew he would deny (which they may really need for an appeal). If the defense still needs court reimbursement and the judge turns them down there won't be a need for delay (but the defense will have an issue for appeal).

I don't know of a DNA specific case offhand, however "McBride v. State" 838 S.W.2d 848 (Tex.Crim.App.1992) is usually cited for these kinds of questions. It involved testing of illegal drugs. It would be interesting to know if there is specific case law that DNA samples are "indispensable to the state's case" like charged illegal drugs, or if there is some "case-by-case" test.

And your profound legal advice is based upon your extensive experience as as a "student lawyer"? I suggest you refrain from giving advice unless you are licensed to do so. Folks on these boards should check the profiles of those giving advice to ensure they are qualified and are who they purport to be, or unless they back it up with citation to relevant authority.

The State's DNA results and underlying data are discoverable, but discovery and independent testing are two different things. Or don't they teach you about such things in "student lawyer" school?

Under Taylor v. State, 939 S.W.2d 148 (Tex. Crim. App. 1996), a defendant is entitled to the assistance of an independent DNA expert under Ake v. Oklahoma. The case did not address independent testing. I would think that a prudent prosecutor would not oppose a request for additional testing if a defendant showed good cause to believe that such testing might develop evidence that undermined the State's results or showed his innocence. Additionally, one might look at Chapter 64 of the Code of Criminal Procedure, which gives a right to post-conviction testing if evidence is not tested at trial without the fault of the defendant.

A case about testing drugs is not really on point.

In the case at bar, the defense seems to have forfeited their request for additional testing by not moving forward with it in a timely fashion upon prompting by the trial court.

Perhaps the judge could ask:

-what expert has the defense consulted to form the opinion that re-testing would be productive?

-what information found in the discovery provides any suggestion that re-testing might produce exculpatory evidence?

-why didn't the defense pursue this request sooner, as waiting for testing now will obviously delay the trial?

"And your profound legal advice is based upon your extensive experience as as a "student lawyer"? I suggest you refrain from giving advice unless you are licensed to do so."

With all due respect, I do not believe anything that I or others post on this board should be construed as "legal advice" but rather as mere suggestion. I would think that on a board of largely (but not entirely) attorneys it would not be necessary to add a 5-paragraph disclaimer to every post. If anyone is indeed taking authorative action based simply on posts from anonymous posters (even who've passed the bar) then I suggest they re-examine their methods.

I was not aware that being licensed was a requirement for posting opinions and/or suggestions on this board -- nor that all the posts on this board should be construed as "legal advice" and thus subject their posters to relevant rules and sanctions. and if that is the case then I apologize for intruding upon your hallowed ground.

Well said SJF.

If you were giving non-legal insights, that's one thing, but bad legal answers is another. Perhaps you should be spending your time studying instead of spouting off on here like you know something.

Brent has earned his gold card and his spurs. Two different categories of folks, and never the two should be confused.

JB brings up very relevant points, Rachel, but to me, you've also got to look at the big picture. To me, the big picture is that if you defeat this now, you will relitigate it as an ineffective assistance issue for years to come, both on direct and writ.

Get a good order. John R has an excellent order for inde testing.

Our profession has been taking alot of bumps lately. We've got to wear the white hats, always. To me, that means realizing that you want a defendant to get good representation in the first place, so you won't have to relitigate this matter again and again on appeal.

I often address the question like this. Taking away the facts of the crime for the moment, and your desire to incarcerate him so that he victimizes no one else, is it the perp's fault that his attorney is a foot dragger and is delaying the procedure? God forbid, if you were charged with a crime and had a crappy attorney who did not promptly pursue outside testing, wouldn't you still want to be properly represented for your day in court? And doesn't your defendant, no matter who he is or what he has done, deserve that right?

If it were me, I'd let him have the test. Then I'd try to get this sex offender off the streets for ALAP (as long as possible).

My two cents.

[This message was edited by Greg Gilleland on 03-13-08 at .]

I'd also be concerned also about a possible indigency claim bootstrapped onto the ineffective claim.

JB said: "why didn't the defense pursue this request sooner, as waiting for testing now will obviously delay the trial?"

Just a guess, but going on my past experience, the answer you hear may be that D doesn't have any money and that he and his family, etc have been diligently trying to raise money to pay for the testing as they felt the Court wouldn't do that.

[This message was edited by Greg Gilleland on 03-13-08 at .]

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Originally posted by Quiet Man:
Folks on these boards should check the profiles of those giving advice to ensure they are qualified and are who they purport to be, or unless they back it up with citation to relevant authority.

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+1!

It is a good practice at pretrial hearings, where discovery is discussed, for the prosecutor to say on the record that the case includes DNA testing results and that the defendant, having been given the opportunity to request additional testing or re-testing has ...

Like the fellow said, citation to relevant authority rather than wrong authority can be an ample substitute for sound credentials. Bad advice, bad authority, and worthless credentials in combination speak for themselves.

By the way, Quiet Man is a licensed Texas attorney with 13 years of criminal law experience, 12 as a prosecutor.

I don't know that ineffective assistance is a big worry here. The more important thing here is that the defense has laid behind the log on their request. It isn't enough to merely hang some paper in the file and then complain just before trial. DNA testing takes months. If the defense truly desires some sort of independent testing, that is something to start on immediately.

Unless the defense has made a showing of some sort of problem with your lab or your results, they have not shown a need for a retest. Now, if they want to test something that has not been tested, that may be different. There, one should look at what they want to test and how it is connected with the case. If it is something that goes to the heart of the case, like a rape kit in a rape case, that's the kind of thing that will get tested some day. But random hair from a crime scene or similar stuff is a mere attempt to delay the trial for something completely irrelevant (unless it inculpates the defendant).

Note also that retesting can be difficult because some labs will not accept evidence that has been in another lab because of worries about contamination.

I appreciate all of the responses. Turns out it was kind of moot on my part. After telling me that was his strategy, he files a motion for continuance based on some witness issues, which were resolved in my favor, and some "ex parte" considerations. Even though I knew what he wanted he claimed it would violate work product for me to be present for the presentation of that part of his grounds for continuance. So I was summarily booted out of the room before given a chance to speak. Judge denied the continuance without my ever officially knowing the additional grounds. Defense has never formally filed the motion for re-testing.

However everything falls, I sure hope this doesn't have to be relitigated since I'm confident that the dna would stand up to independent testing.

Thanks everyone.

Well, if the DNA issue is raised posttrial, it is simple enough to retest and show that nothing new would have been shown. That makes it all harmless.

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By the way, Quiet Man is a licensed Texas attorney with 13 years of criminal law experience, 12 as a prosecutor.

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That still doesn't entitle Quiet Man to be rude. Let's use more honey and less vinegar, people.

Legal advice from posters on this board should ALWAYS be vetted before being followed, whether it comes from a TDCAA staff attorney, another prosecutor, or friendly visitors.

We keep this forum open to the public to the extent it furthers the mission of the website, which is to provide education and technical assistance to prosecutors. I frequently remind non-prosecutor posters that they are guests on our forum and should act as such, but that goes both ways -- we should be polite to visitors, even when they need correction.

And as always, if any poster feels that something inappropriate has been posted, the proper course of action is to report it to one of TDCAA's administrators to let us decide if should be deleted or edited.

Thanks for your time. Now, back to our regularly-scheduled programming ...