Metropolitan News-Enterprise


Friday, May 23, 2008


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Supreme Court Sets High Bar to Post-Conviction DNA Testing


By Kenneth Ofgang, Staff Writer


A Tulare Superior Court judge did not abuse its discretion by denying post-conviction DNA testing of evidence found at a murder scene where there was enough other evidence to convict the defendant and sustain the death sentence regardless of what the testing might show, the California Supreme Court said yesterday.

In a 5-2 decision, its first interpreting Penal Code Sec. 1405, the court held that orders granting or denying motions for post-conviction testing under that statute are reviewable under an abuse-of-discretion standard.

The court further held that Judge William Silveira Jr. correctly looked at the strength of the prosecution’s other evidence in holding that Charles Keith Richardson failed to make a prima facie showing that the evidence sought to be tested was “material to the issue of [his] identity as the perpetrator of....the crime” or that there was a “reasonable probability” that he would have obtained a more favorable verdict or sentence if the evidence had been tested prior to trial.

Dissent Argues Practicality

Justice Carlos Moreno authored the majority opinion, which was joined by Justices Joyce L. Kennard, Kathryn M. Werdegar, Marvin Baxter, and Carol Corrigan. Justice Ming Chin, joined by Chief Justice Ronald M. George, dissented, arguing that the court was setting such a high bar that the costs of litigating motions under the statute would exceed the costs of DNA testing.

Silveira sentenced Richardson to death in 1992 for the 1988 murder of April Holley. The 11-year-old was found dead in the bathtub of her family home.

A jury found Richardson guilty of rape, burglary, child molesting, sodomy and murder and reached a death penalty verdict, which the trial judge accepted.

Witnesses Disagree

In 2004, Richardson moved for DNA testing of four pubic hairs taken at the bathtub. At trial, one prosecution expert testified that two of the four came from Richardson, another said all four came from the defendant, and two defense experts said they doubted that any of the hairs were Richardson’s.

In denying the motion, Silveira concluded that even if the hairs were not defendant’s, he would have been convicted, and a death penalty verdict returned, based on the other evidence in the case, including the defendant’s inconsistent statements about the murder, including a claim that he saw April dead in the bathtub but didn’t kill her and saw another man running out of the house, and in which he revealed details of the killing that were not public knowledge, and testimony by a fellow jail inmate that he had made an incriminating statement.

There was also penalty phase evidence that Richardson had previously been convicted of forcible rape and that he had repeatedly committed sexual assaults on another inmate in prison and had encouraged other sexual assaults while incarcerated.

That was enough to deny the motion for DNA testing, Moreno said.

‘Preliminary’ Assessment Argued

Chin, dissenting, argued that the better interpretation of the statute is that it required  only  “a preliminary assessment of whether testing results would raise a reasonable probability of a different outcome.”

In making that assessment, he said, the trial and appellate courts “should not be obligated to review the entire trial record and reach a definite conclusion regarding the ultimate issue whether hypothetical test results would establish the petitioner’s innocence.”

In a separate opinion, the court unanimously rejected Richardson’s direct appeal, saying any errors by the trial judge were harmless.

The cases are Richardson v. Superior Court (People), 08 S.O.S. 3004, and People v. Richardson, 08 S.O.S. 2981.


Copyright 2008, Metropolitan News Company