In 1999, Dennis Dolinger was stabbed to death in his home. More than a decade later, the man convicted on a murder charge will get a new trial. The District of Columbia Court of Appeals ruled yesterday that the defendant had a right to question the laboratory analysts who tested DNA from the crime scene, as opposed to a supervisor who studied the results of those tests.
A divided three-judge panel found that the supervisor’s testimony was improper hearsay because he didn’t perform the DNA testing itself. Judge Kathryn Oberly, writing for the majority, said the decision to allow the evidence—without giving defendant Raymond Jenkins an opportunity to question the analysts—justified a new trial because of the significant role DNA played in the case.
The decision marked the second time the local court grappled with a recent U.S. Supreme Court opinion that left questions about the standards for admitting forensic evidence at trial. Under the Sixth Amendment's Confrontation Clause, "testimonial" hearsay can't be admitted under most circumstances. In the high court's 2012 decision in Williams v. Illinois, Oberly wrote that the justices didn't reach a true majority on how to define "testimonial" with respect to forensic evidence, since there were divisions among the majority. That meant the 2012 opinion didn't create new precedent, the judge said.
The Public Defender Service for the District of Columbia, which represented Jenkins, declined to comment. A spokesman for the U.S. attorney's office, William Miller, also declined to comment.
According to court documents, Dolinger was stabbed 25 times in his head and neck. Crime scene technicians testified at trial that they found blood evidence throughout Dolinger's home. Using the blood samples, the government created a DNA profile and asked area law enforcement agencies to check it against their offender databases. The Virginia Department of Criminal Justice Services found a match: Jenkins.
The jury hung in Jenkins' first trial in 2006, but he was convicted the second time. Besides testimony from the forensic examiner, the government presented witnesses tying Jenkins to Dolinger's death. Jenkins' theory was that he was engaged in sexual activity with Dolinger and an unknown assailant attacked both men. Jenkins' lawyer noted certain blood stains in Dolinger's house weren't tested and he attacked the credibility of the government's witnesses, according to yesterday's opinion.
Before the trial, Jenkins' lawyers moved to exclude the government's DNA evidence absent testimony from the analysts. The trial judge denied the motion, according to yesterday's opinion, saying the defense had the option of subpoenaing the analysts.
Oberly said the trial judge incorrectly shifted the burden from the prosecution to the defense. The DNA evidence was "testimonial" because it established "some fact relevant to a later criminal prosecution: the identity of Dolinger's killer," she wrote. The forensic examiner's "testimony, relaying the lab findings, was admitted in violation of appellant's rights under the Confrontation Clause," she said.
The judge wrote that the error was not harmless-another standard for reversing a conviction. Although Jenkins' theory of another assailant meant admitting his blood was in Dolinger's house, Oberly said that wasn't the same admitting his blood was the only blood found beside Dolinger's, or that the blood was where the forensic examiner said it was found. Given the significance of the DNA evidence and weaknesses with the government's other witnesses, Oberly, joined by Judge Anna Blackburne-Rigsby, ordered a new trial.
Judge Phyllis Thompson dissented. She disagreed with her colleagues that the Supreme Court's fragmented rulings in Williams couldn't be applied to Jenkins' case. Under the high court's analysis, she wrote, evidence would not be testimonial if it lacked the "formality" of a sworn affidavit and the testing was done before the defendant became a suspect. The forensic examiner's testimony about testing that helped identify Jenkins as the suspect satisfied those two prongs, Thompson wrote, meaning it was not testimonial and should have been allowed.
Although some forensic testing was done after Jenkins became a suspect—matching his blood to blood from the crime scene—Thompson said admission of the examiner's testimony about that testing did not prejudice Jenkins because he admitted his blood was in the house.
In April, a unanimous three-judge panel that included Oberly and Blackburne-Rigsby reversed another conviction on the grounds that the defendant had a right to confront the scientists who analyzed DNA evidence in a sexual assault case. Judge Stephen Glickman wrote the opinion.