The District of Columbia Court of Appeals today affirmed the conviction of Rashaun Gee, who was accused of breaking into a Southeast Washington home in 2008 and repeatedly stabbing and attempting to sexually assault one of the female residents.
The decision (PDF) is the latest from the city's highest court to limit the role that a 2009 congressionally mandated report on the forensic sciences plays in criminal proceedings and appeals. In Gee's case, his lawyer argued that the trial judge was wrong to prevent him from using sections of the report during cross-examination that questioned the reliability of fingerprint analysis.
The three-judge appellate panel disagreed, finding that the sections of the report at issue weren't a "learned treatise," a term referring to a text that is considered authoritative and can be used to question experts. The appeals court found that Gee's lawyer failed to present any evidence that the section on fingerprint analysis was a "reliable authority" and accepted by the scientific community.
Defense lawyers nationwide have pointed to the forensic sciences report, which was published in 2009 by the National Research Council of the National Academies, in challenging the reliability of certain types of forensic evidence in criminal cases. The report was generally critical of the reliability of forensic techniques besides DNA testing, but prosecutors have argued that it shouldn't be considered in court at the same level as expert testimony.
Gee's lawyer at trial and on appeal, Ivan Waldman of Ivan M. Waldman & Associates in Langley Park, Md., could not immediately be reached for comment. A spokesman for the U.S. attorney's office, William Miller, said his office is reviewing the opinion and has no comment.
According to today's opinion, a District of Columbia Superior Court jury found Gee guilty in September 2010 of assault with intent to kill while armed, first-degree burglary while armed, malicious disfigurement while armed and attempted first-degree sexual assault, among other charges.
Superior Court Judge Russell Canan's handling of the forensic sciences report was one of several issues Gee presented on appeal. He also challenged Canan's ruling that if he presented testimony that the government's DNA analysis was biased or inappropriate, the government could present testimony about the defendant's right to test evidence. Waldman had argued that the ruling hamstrung him in questioning the government's expert and that when the government was allowed to make that point, it unfairly shifted the burden of proof to the defense.
The appeals court found no evidence of burden shifting, noting that the judge gave the jury the standard instruction about the government's burden of proof and that the prosecutor didn't bring up the defendant's right to test evidence – a t-shirt with the victim's blood that the government argued had Gee's DNA on it, especially – in closing statements. The court also said that Waldman "proceeded with more caution than the court's ruling necessitated" in his questioning.
Judges Anna Blackburne-Rigsby and Phyllis Thompson and Senior Judge James Belson heard the case.