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Appeals Court extends fingerprint rule to DNA.

Byline: Kris Olson

The rule for fingerprints found on movable objects at crime scenes, which requires that the prosecution prove beyond a reasonable doubt that the fingerprint was placed there during the offense, should apply equally if not more so to DNA evidence, the Appeals Court has decided. After being convicted of armed robbery, a defendant appealed, arguing that there had been insufficient evidence to support the conviction. The defendant cited the Supreme Judicial Court's 1996 ruling in Commonwealth v. Morris, a case with a similar fact pattern, just with fingerprint rather than DNA evidence supporting the conviction. The Appeals Court noted a line of decisions establishing a requirement that fingerprint evidence at the scene of the crime must be coupled with evidence of other circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime, quoting from the 1979 case Commonwealth v. Clark. This principle applies because the presence of a fingerprint on an object alone provides insufficient data to determine when the fingerprint was placed on the object, Judge Dalila A. Wendlandt wrote for the panel, noting that fingerprints can remain on objects for months. DNA has the same characteristics, the Appeals Court found. In fact, testimony of the DNA analyst shows that the concerns are even more acute with regard to DNA than with regard to fingerprints, Wendlandt wrote, referring to an expert in the case who testified that DNA may cling to an object for decades after it is deposited. The 14-page decision is Commonwealth v. Anitus, Lawyers Weekly No. 11-041-18. The full text of the ruling can be found here. Life in CSI' age The defendant's attorney, Michelle Menken of Newton, said the decision was not all that extraordinary, with the extension of the Morris doctrine pretty logical. In fact, there had been a pair of unpublished Appeals Court decisions, Commonwealth v. Tavares and Commonwealth v. Lorenzo, that had applied Morris to DNA evidence back in 2015, she noted. Though spokesman Gregg Miliote said the Bristol County District Attorney's Office was reviewing whether to seek further review of the decision, Menken said she could not imagine the SJC would find that DNA and fingerprint evidence should be treated differently. Scientists have long known about concepts such as secondary transfer in which an individual can deposit DNA on an object without touching it Menken said, noting that the legal community is only now starting to catch up to them. Menken said the prosecution put undue emphasis on the fact that her client was determined to be the major source of the DNA on the items, which could not substitute for circumstantial evidence tying her client to the crime that was really not strong. The biggest challenge in the appeal was the surveillance footage, she said, with deference often paid to the jury's assessment of such footage. It's hard to persuade the Appeals Court that it can't be trusted, she said. Menken also credited her client's trial counsel, James M. Caramanica of Attleboro, for laying the groundwork for the successful appeal. Specifically, she pointed to his cross-examination of the DNA expert, which helped frame exactly what the DNA analysis proved and more importantly, what it did not prove. Caramanica thus set an example for other trial attorneys not to be intimidated by how powerful DNA evidence can sound, she said. Observing that he and his fellow defense attorneys have to contend with living in the age of CSI,' Luke Ryan of Northampton said Anitus offers an important reminder as to the limitations of forensic evidence. Because the science is not well understood, DNA evidence is used in a very abusive way, according to Cambridge attorney Derege Demissie. Demissie noted that it is difficult to place the fingerprint of a person at a crime scene but comparatively easy to plant DNA. The recognition that DNA can travel independently of a person is another reason the Morris rationale makes all the more sense in the DNA context, he said. Like Menken, Boston defense attorney Ruth O'Meara-Costello said she was not surprised by the Appeals Court's decision and, in fact, would have been shocked had it gone the other way. Nonetheless, she said Anitus is important given DNA tests are now being conducted on a wider range of material, not just on blood and semen. When she started to read the opinion, O'Meara-Costello said, she figured the defendant's DNA might have been found in the restaurant in other words, a place it could have come to rest simply because the defendant was a frequent customer. That the Appeals Court reached its decision despite the DNA being found on items believed to have been used in the commission of the crime should prompt defense counsel to think long and hard about alternate explanations for a defendant's DNA being found on a weapon, for example. As defense attorneys, we need to be alert to how tenuous connections can be, she said. Makeshift masks Defendant Jeffrey Anitus was one of two men suspected of breaking into a Burger King in Easton shortly after it closed on July 3, 2013. As the manager was counting the receipts, he and another employee heard a loud bang from a brick smashing through the door. The manager told police that the two robbers, who made off with approximately $3,000, were African-American and wore blue surgical masks. One was approximately 6 feet tall, wearing a dark hooded sweatshirt and armed with a gun; the other was a little bit taller and wearing a tan hooded sweatshirt. Police would come to suspect the two men were Anitus and his brother, Jerry. As they fled, the robbers were captured on surveillance video shot from both the Burger King and the neighboring Dunkin' Donuts, though the recording was grainy and of poor quality. A responding police officer discovered two cloth items a toddler-sized white T-shirt and a blue knotted bandana in the Dunkin' Donuts plaza. They were believed to be what the robbers had used as masks during the crime, which allegedly then were discarded by Jeffrey Anitus. Testing of both items showed the presence of more than one person's DNA, though Jeffrey Anitus was almost certainly the source of the major profile on the T-shirt and one of the major profiles on the bandana as well. He had an alibi, however. A Quincy police officer who knew him testified to having encountered Jeffrey Anitus at a street festival early in the evening, and a friend and his mother said they could account for his whereabouts until the early morning. The evidence also showed that Jerry Anitus was involved two months later in a Weymouth robbery with a similar modus operandi, just with a different accomplice. In both cases, Jerry Anitus had been seen around the time of the crime behind the wheel of his mother's distinctive vehicle, a white 2005 Cadillac sedan, which he drove often. Witnesses testified to Jeffrey Anitus having been seen in the passenger's seat on a couple of occasions. A Bristol grand jury indicted Jeffrey Anitus on Dec. 18, 2013. He was charged with armed robbery while masked under G.L.c. 265, 17, and assault with a dangerous weapon. Two years later, a jury convicted him on both counts after a four-day trial in Superior Court. Judge Renee P. Dupuis sentenced him to seven to nine years in state prison, followed by three years of probation. Anitus then appealed. [divider] As defense attorneys, we need to be alert to how tenuous connections can be. Ruth O'Meara-Costello, Boston [divider] Insufficient evidence Having decided to apply the Morris standard, the Appeals Court had to decide whether the DNA evidence, coupled with the prosecution's other evidence, was sufficient to allow the jury to determine Anitus' guilt beyond a reasonable doubt. Wendlandt wrote that, broadly speaking, the prosecution could tie Jeffrey Anitus to the crime in three ways: his DNA was the only major profile on the child's T-shirt and the bandana; the surveillance footage showed that the make, model and year of the car used by the robbers matched the car of Anitus' mother; and the suspect, alleged to be Anitus, was depicted in the surveillance footage. In Morris, there had been a similar array of evidence. In addition to a thumbprint on a clown mask, the defendant matched the general description of one of the intruders; the defendant's mother owned a vehicle resembling one seen fleeing the scene of the crime; and the defendant was a known associate of the two other intruders. That evidence might have allowed the jury in Morris to reasonably infer that the defendant was one of the intruders but did not warrant such a conclusion beyond a reasonable doubt, the Morris court concluded. Like the clown mask with a fingerprint on it in Morris, the T-shirt and the bandana with the defendant's DNA are portable objects that suggest that the defendant, at some point, may have touched the objects, Wendlandt wrote. Alone, however, it does not establish that the defendant was one of the assailants who wore the objects during the crime, and is not enough to support a conviction beyond a reasonable doubt. Meanwhile, Jeffrey Anitus' connection to his mother's car was too attenuated to support a conviction beyond a reasonable doubt, the Appeals Court found. As for the surveillance recording and the even grainier still images from that recording Wendlandt said they were of such poor quality that it cannot reasonably be used for the fine analysis required to establish that the defendant's profile matches the profile on the recording.   Commonwealth v. Anitus THE ISSUE: Should the rule that applies to fingerprints found on movable objects at crime scenes be extended to apply to DNA evidence? DECISION: Yes (Appeals Court) LAWYERS: Bristol County Assistant District Attorney Shoshana E. Stern (commonwealth) Michelle Menken of Newton (defense)

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