ANNAPOLIS, Md. (AP) — The Maryland Office of the Public Defender is seriously considering an appeal to the U.S. Supreme Court in two cases involving rape convictions where DNA analysts’ reports were used but the analysts themselves never testified.

The Daily Record of Baltimore reports that the chief of the office’s forensics division, Stephen B. Mercer, says the office is considering the appeals. One case involves Orville Cooper, who was convicted of a 2006 rape. The other case involves Norman Bruce Derr, who was convicted of a 1984 rape. In both cases, witnesses cited DNA reports but the analysts never testified. One or both cases could be appealed.

This would not be the first time the U.S. Supreme Court has considered the issue. In 2012 the high court upheld a DNA analysis in which the analyst did not testify, but the decision in the case, Williams v. Illinois, did not yield a majority opinion. The lack of a majority opinion in the Williams case “opens the window enough” for the justices to be willing to hear an appeal and refine their previous, fractured decision, said Byron L. Warnken, a University of Baltimore School of Law professor.

If Derr’s case is appealed, it would be the case’s second trip to the U.S. Supreme Court. In 2011, Maryland’s highest court overturned Derr’s conviction, saying the failure of the analyst to testify violated the Confrontation Clause. The case was appealed to the U.S. Supreme Court, which vacated the Maryland court’s decision and remanded it with instructions to reconsider it in light of the Williams decision. The Court of Appeals of Maryland, the state’s highest court, has since affirmed Derr’s conviction, citing Justice Clarence Thomas’ opinion in Williams, which said that a DNA analysis report does not implicate the Confrontation Clause because it is non-testimonial and “lacks the solemnity of an affidavit or deposition.”

David Paulson, a spokesman for Maryland Attorney General Douglas F. Gansler, said if the public defender appeals to the Supreme Court his office “will be prepared and be able to cross that bridge when we come to it.”

Information from: The Daily Record of Baltimore,

(Copyright 2013 by The Associated Press. All Rights Reserved.)


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