Lawyers had no duty to object before CSI effect ruling

The Maryland Supreme Court has pardoned defense attorneys who failed to disagree with judges who told prospective or sitting jurors that prosecutors do not need to present scientific evidence to prove guilt before the Supreme Court first ruled such statements in 2010 for declared generally forbidden.

In a 7-0 decision Monday, the appeals court said the defense at this point would not expect the judge’s comments to wrongly tip the trial in favor of prosecutors by raising in the jury’s mind the state’s lack of forensic evidence excused. Therefore, a solicitor’s failure to object prior to 2010 cannot be regarded as ineffective assistance to the solicitor, as solicitors have no obligation to “predict future developments in case-law,” the High Court ruled.

The landmark 2010 Court of Appeals decision in Charles vs. State came in response to trial judges who, in the early 2000s, instructed jurors that forensic evidence was not necessary for a conviction, believing that – based on watching TV crime dramas – they could expect the state to prove their case with DNA and would rule against the prosecution if it failed to produce forensic evidence.

This jury expectation has been dubbed the “CSI Effect” in reference to the popular show “CSI: Crime Scene Investigation” starring forensic investigators.

The Supreme Court made its latest decision, upholding Antonio McGhee’s first-degree murder conviction and life sentence for the March 17, 2007 shooting of Keith Dreher outside the Prince George’s County Pizzeria.

The Court of Appeals dismissed McGhee’s argument that his trial attorney had provided invalid assistance in 2007 by not objecting when the judge asked prospective jurors during the voir dire if they could convict a defendant without forensic evidence.

The Supreme Court noted that prior to 2010, discussion of the CSI effect was largely confined to news and scholarly articles, almost all of which downplayed its potential harm to the accused.

Moreover, only one opinion from Maryland — a May 2007 Court of Special Appeals decision — even suggested a CSI effect, stating that a judge validly instructed the jury that the state had no legal obligation to ” to use a particular investigative technique or scientific test to prove their case.” The Intermediate Court did not use the term “CSI effect” in its decision Evans v. State‘ the Supreme Court stated.

“In summary, we conclude that McGhee’s counsel operated within the accepted professional standards of 2007, which in this case did not require an objection to the CSI effect voir dire question,” Judge Jonathan Biran wrote for the Circuit Court of Appeals.

“Because McGhee’s trial took place in December 2007, we do not rate his attorney’s performance below that Karl, Atkins and staffall of which were decided in subsequent years,” Biran added, citing the High Court’s trilogy of CSI effects decisions , 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 public defender for Maryland.

The Maryland Attorney General’s office declined to comment on the Supreme Court’s decision.

in the Karl, The Court of Appeals ruled that a judge soiled the jury by asking potential jurors if they could still convict someone without forensic evidence. In 2011, the court ruled in two cases – Atkins vs. Maryland and Stabb against Maryland — that the judges’ instruction to the jury to ignore the lack of DNA evidence unfairly undermined important defense arguments.

Before McGhee’s trial in 2007, Prince George County District Judge James J. Lombardi asked would-be jurors, “Does any member of this panel believe that the state needs to present fingerprints, DNA, blood samples, ballistic evidence and all scientific evidence in order.” Convince you of the accused’s guilt? In other words, do you think that the state is obliged to do this in any case?”

The trial attorney 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 an eyewitness who identified McGhee from a series of photographs, but later revoked his identification.

McGhee sought a post-conviction appeal in 2014 based on the Supreme Court rulings Karl, Atkins and staff.

Prince George’s County Circuit Judge Beverly J. Woodard ruled in favor of McGhee and ordered a new trial on June 11, 2020. But the appeals court overturned Woodard’s decision in an unreported opinion last November, prompting McGhee to seek a Supreme Court review.

The Court of Appeal rendered its decision in Antonio McGhee v. Maryland StateNo. 64, September semester 2021.