United States v. McAllister , 55 M.J. 270 ( 2001 )

UNITED STATES, Appellee
V.
John C. McALLISTER, Specialist
U.S. Army, Appellant
No. 00-0252
Crim. App. No. 9601134
United States Court of Appeals for the Armed Forces
Argued January 10, 2001
Decided August 2, 2001
GIERKE, J., delivered the opinion of the Court, in which
EFFRON and BAKER, JJ., joined. CRAWFORD, C.J., and
SULLIVAN, J., each filed a dissenting opinion.
Counsel
For Appellant: Richard T. McNeil (argued); Colonel Adele H.
Odegard, Lieutenant Colonel David A. Mayfield, and Major
Jonathan F. Potter (on brief); Captain David S. Hurt.
For Appellee: Captain Arthur L. Rabin (argued); Colonel David L.
Hayden, Lieutenant Colonel Edith M. Rob, and Major Anthony P.
Nicastro (on brief); Major Patricia A. Ham.
Military Judges: Patrick K. Hargus and Debra L. Boudreau (trial)
This opinion is subject to editorial correction before publication.
United States v. McAllister, No. 00-0252/AR
Judge GIERKE delivered the opinion of the Court.
A general court-martial composed of officer and enlisted
members convicted appellant, contrary to his pleas, of
unpremeditated murder and disobeying the order of a superior
commissioned officer, in violation of Articles 118 and 90,
Uniform Code of Military Justice, 10 USC §§ 918 and 890,
respectively. The adjudged and approved sentence provides for a
dishonorable discharge, confinement for life, total forfeitures,
and reduction to the lowest enlisted grade. The Court of
Criminal Appeals affirmed the findings and sentence.
This Court granted review of the following issue:
WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION IN REFUSING
TO ALLOW THE DEFENSE TO UTILIZE EXPERT ASSISTANCE AT
APPELLANT’S COURT-MARTIAL.
In addition, this Court specified the following issues:
I
WHETHER THE COURT OF CRIMINAL APPEALS MADE FACTUAL FINDINGS
THAT ARE UNSUPPORTED BY THE RECORD.
II
WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT THE
FINDINGS OF GUILTY.
III
WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL
PREJUDICE OF APPELLANT WHEN SHE REFUSED TO ALLOW A RETEST OF
MATERIALS FOUND UNDER THE VICTIM'S FINGERNAILS WHEN FUNDS
HAD BEEN PREVIOUSLY MADE AVAILABLE FOR DEFENSE INVESTIGATIVE
ASSISTANCE AND AN EXPERT TESTIFIED THAT SUCH TESTING WAS
APPROPRIATE. SEE UNITED STATES V. GARRIES, 22 M.J. 288 (CMA
1986).
For the reasons set out below, we set aside the decision below
and remand for further proceedings.
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Factual Background
This case arose from the prosecution of appellant for the
murder of Private First Class (PFC) Carla Shanklin, who was found
dead in her government quarters at Helemano Military Reservation,
Hawaii. The cause of death was determined to be “manual
strangulation, either alone or in combination with one of the
other forms of asphyxia,” such as use of a ligature like the
necklace PFC Shanklin was wearing or “burking” -- a combination
of smothering and pressure on the chest.
Appellant lived with PFC Shanklin, her 3-year-old daughter,
and her 15-year-old sister, Kijafa Walker, until June 23, 1995.
(R. 826, 828-30, 965) On that date, appellant and PFC Shanklin
had a physical altercation in her quarters. PFC Shanklin called
the Military Police, who apprehended appellant and removed him
from the quarters. The next day, June 24, appellant’s commander
ordered him to stay away from PFC Shanklin’s quarters.
Appellant’s conviction of willful disobedience of this no-contact
order is not at issue in this appeal.
On the afternoon of July 7, 1995, the day before her death,
appellant went to PFC Shanklin’s quarters and asked Kijafa when
she would return. Kijafa told appellant that she would return at
about 1:00 p.m., and appellant waited “outside walking up and
down, up and down.” PFC Shanklin actually returned between 2:30
and 3:00 p.m., accompanied by Sergeant (SGT) Harris, her squad
leader, who was teaching her how to drive a car with a manual
transmission. They continued to drive around for about 30
minutes.
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PFC Shanklin and appellant then conversed sometime between
4:00 p.m. until about 6:00 p.m., when appellant left PFC
Shanklin’s quarters and went to the quarters of Staff Sergeant
(SSG) Kimberly Rogers, with whom he was then living. Appellant
and SSG Rogers had an argument that evening, which ended when
Rogers told him that she “didn’t want him anymore” because she
thought he was involved with another woman named Carla [PFC
Shanklin’s first name]. According to SSG Rogers, he responded as
if he “didn’t care.”
Appellant then went to the Noncommissioned Officers’ (NCO)
Club at Schofield Barracks, where he became involved in a
conversation with SSG Michael Jones about Jones’ relationship
with PFC Shanklin. Although SSG Jones insisted that he was just
“friends” with PFC Shanklin, appellant ended the conversation by
saying, “I love her, she loves me, and may the best man win.”
SSG Jones noticed appellant’s white four-door Cadillac parked in
the NCO Club parking lot. He last saw appellant between 7:45
p.m. and 8:00 p.m.
SSG Jones went to PFC Shanklin’s quarters, and from about
9:15 p.m. until 12:45 a.m., they drove around in Jones’ truck.
They had intended to return earlier but were delayed because they
had a flat tire. Appellant called PFC Shanklin at about 9:30
p.m., but her sister told him that she was not home.
Kijafa testified that she was awakened during the night by a
female scream that sounded frightened and “like it didn’t get a
chance to finish.” She looked into the hallway, saw nothing, and
then went back to bed.
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Between 4:00 and 4:30 a.m., SGT Christopher Robinson, who
shared a common bedroom wall with PFC Shanklin, also heard a
loud, shrill scream that “was cut off.” He then heard “a
rhythmic thumping” for about 15-30 seconds. At about 5:00 a.m.
he heard a car door slam.
At about the same time, Ms. Marion McCloud, who lived across
the street, was awakened by a loud noise. She looked out the
window and saw a white car parked in the parking lot, “which was
unusual because usually no white cars parked there at night.”
The next morning, Kijafa attempted to awaken PFC Shanklin by
calling her name. She noticed that PFC Shanklin was not moving,
had foam coming from her mouth, and had bruises on her arm. She
went outside and told SGT Robinson, who was working on his car,
that she could not awaken PFC Shanklin. Kijafa asked SGT Robinson
to ask his wife to come outside, and she then asked Mrs. Robinson
to help her awaken PFC Shanklin. SGT Robinson and his wife went
to PFC Shanklin’s bedroom, where he saw foam and blood coming
from her mouth and noticed that she was was cold and stiff. He
also noticed that the bedroom window was open with the blinds
down and a dresser seemed out of place. According to Kijafa, PFC
Shanklin never opened the window.
SGT Robinson talked to the Military Police, and Kijafa paged
appellant several times. When appellant called back, Kijafa told
him that “something happened and you need to get over here.”
After appellant repeatedly asked why, SGT Robinson took the
telephone and said, “Something happened to Carla.” Appellant
responded “almost jokingly,” “Why, is she dead?” SGT Robinson
said, “Yes,” and appellant “started to cry.”
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United States v. McAllister, No. 00-0252/AR
Kijafa testified that she did not tell appellant that PFC
Shanklin was dead. In cross-examination, however, she admitted
that she initially told an agent from the U.S. Army Criminal
Investigation Command (CID) that she told appellant that PFC
Shanklin “might be dead.” She testified that she was “shaken up”
and answered without thinking when she talked to the CID, but she
insisted at trial that she did not tell appellant that PFC
Shanklin was dead.
Another soldier drove appellant to PFC Shanklin’s quarters.
When the soldier asked appellant why he was crying, appellant
said, “Carla’s dead.” Appellant also told the soldier that “he
knew they were going to try to pin it on him because [she] was
his girlfriend.”
Appellant was questioned by CID Special Agent (SA) West.
Appellant told SA West that he spent the night with SSG Rogers,
except for about 30 minutes around midnight when he drove his car
to a Texaco station, left it there, and walked back.
Appellant’s alibi was contradicted by SSG Rogers, who testified
that appellant left around 11:00 p.m. and did not return until
daybreak. Appellant did not testify at trial.
When he interviewed appellant, SA West observed scratches
on his arms and a gouge on his index finger. SSG Rogers
testified that, on July 9, appellant pointed to the scratches on
his arm and said, “Girl, you tore me up,” and “Kim, you scratched
me, you did scratch me.” SSG Rogers denied scratching appellant.
Mr. George Grady testified that around 9:30 a.m. on July 8,
1995, the day after PFC Shanklin’s death, appellant came to his
house with a container “about the size of a shoe box” and asked
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United States v. McAllister, No. 00-0252/AR
him to get rid of the box for him. As they were talking,
appellant seemed nervous and said, “I--I--I did this -- I did
something.” Mr. Grady threw the box into a dumpster without
opening it.
Deoxyribonucleic acid (DNA) tests were performed on a
substance found under PFC Shanklin’s fingernails, as well as
blood samples taken from appellant, the other suspect, and PFC
Shanklin’s daughter and sister, to determine their respective DNA
profiles. The tests did not exclude the possibility that the
material under PFC Shanklin’s fingernails contained the DNA of
more than one person. The tests excluded all donors of DNA
samples as possible sources of the material, except for appellant
and PFC Shanklin.
The prosecution’s expert, Ms. Meghan Clement, explained the
testing process. She testified that the DNA from the material
under PFC Shanklin’s fingernails was tested for eight separate
genetic systems. Appellant’s DNA and the DNA of the material
under PFC Shanklin’s fingernails matched each other in all eight
genetic systems. Ms. Clement testified that all the other
suspects, as well as PFC Shanklin’s sister and daughter, were
excluded as possible sources because their DNA did not match the
material under the fingernails in at least one genetic system.
On cross-examination, Ms. Clement testified that, after the
testing of appellant’s DNA, her laboratory started testing for
two additional genetic systems. Neither Ms. Clement nor any
other witness stated how many known genetic systems there were at
the time of trial or how many systems could have been reliably
identified by the DNA test used in this case see ___ MJ at (9).
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United States v. McAllister, No. 00-0252/AR
The DNA evidence in this case was not tested for the two
additional genetic systems. Ms. Clement opined that the
possibility of excluding appellant as a donor of the DNA by
testing for the two additional genetic systems was remote,
because she had never seen a case where there were six or seven
matches followed by a failure to match in the eighth, ninth, or
tenth tests. Defense counsel did not challenge her assertion or
question her regarding the number of cases on which her assertion
was based.
The DNA evidence was of considerable interest to the
members, as evidenced by questions from six of the eight members.
Their questions pertained to the possibility of contamination of
the samples, the potential for multiple contributors, the
explanation for the limited readings from PFC Shanklin’s right
fingernail, the possibility of mistakes in the chain of custody,
and the possibility of a retest.
Expert Assistance (Granted Issue and Specified Issue III)
Before trial, appellant asked the convening authority for
expert assistance. He specifically asked that Dr. Patrick
Conneally, PhD, be appointed under Mil. R. Evid. 502, Manual for
Courts-Martial, United States (2000 ed.), as a defense consultant
on DNA evidence. He also asked that Dr. Conneally be produced at
government expense as a defense expert witness. On April 4,
1996, the convening authority approved the request to employ Dr.
Conneally.
At a motions hearing on April 23, 1996, defense counsel
informed the military judge that Dr. Conneally had advised
employing someone else who was an expert in Polymerase Chain
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United States v. McAllister, No. 00-0252/AR
Reaction (PCR) testing. Defense counsel informed the military
judge that he was “attempting to contact Doctor Conneally to get
his suggestions on someone” to perform the PCR testing. The
defense filed a motion to preserve the evidence for further DNA
testing and requested the convening authority to provide funds
for DNA testing by an independent laboratory. The estimated cost
of DNA retesting was $3000-4000. The military judge granted a
defense motion to preserve the evidence for possible retesting,
but the convening authority denied a defense request for funds to
obtain an independent DNA test.
Dr. Conneally recommended that Dr. Edward Blake be retained.
Dr. Blake operates a DNA testing laboratory in California and had
indicated his willingness to conduct additional DNA testing.
Dr. Blake informed the defense that LabCorp, the laboratory used
by the Government, had not followed “the standard general
criminal forensic testing standards” in conducting its analysis.
At a motions hearing on May 15, 1996, the defense asked the
military judge to order that funds be made available to hire Dr.
Blake as a defense consultant and to conduct another DNA test.
When asked by the military judge what would be accomplished by
additional testing, defense counsel explained that they were
concerned with possible contamination of the samples and
misidentification of the sample taken from appellant. The
military judge cautioned defense counsel, “[D]on’t make this DNA
evidence into something more than it really is.”
After considerable discussion about the need for DNA
retesting, defense counsel informed the military judge: “The
defense position really is that we would like to substitute
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United States v. McAllister, No. 00-0252/AR
Doctor Blake for Doctor Conneally[.]” Defense counsel informed
the military judge that $6000 was approved to retain Dr.
Conneally, but only $1000 had been spent. Nevertheless, the
military judge denied the defense request, explaining her
decision as follows:
It’s up to the defense to figure out from the get go
who they wanted as an expert. The convening authority,
in good faith, relied upon the defense representation,
looked at Doctor Conneally’s qualifications. And we
were litigating the issue of DNA experts earlier on
face value as it was presented to the convening
authority, Doctor Conneally appears to have impeccable
credentials. Now, at the time that you requested the
expert that was when the time was to decide who could
provide the defense requested assistance. The
convening authority gave the defense what they wanted
and there’s nothing before me to suggest that it’s
fundamentally unfair to require the defense to go with
the expert that they asked for and the convening
authority in good faith gave them for the purposes of
preparing for trial.
The military judge left the door open for the defense to ask
the convening authority to substitute Dr. Blake for Dr.
Conneally. The defense asked the convening authority to
substitute Dr. Blake for Dr. Conneally, but the convening
authority denied the request, prompting the defense to ask for a
continuance “for at least one month.” In its request, the
defense asserted that the funds allocated for Dr. Conneally were
sufficient to retain Dr. Blake. Finally, the defense explained
its reasons for the change of experts:
The fact of the matter is that the state of Hawaii
does not have any forensically trained DNA labs of
testing experts and the defense therefore needed the
consultation of Dr. Conneally to be pointed in the
right direction to a forensic expert, such as Dr.
Blake.
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United States v. McAllister, No. 00-0252/AR
The military judge denied the defense request for a continuance,
remarking that “there is still nothing new in this appellate
exhibit that would cause me to reconsider my earlier ruling on
this matter.”
Defense counsel then informed the military judge that he had
not requested that Dr. Conneally be summoned to testify, and he
reiterated that Dr. Conneally had recommended that the defense
retain Dr. Blake to retest the DNA samples “and also because
Doctor Blake has expertise in forensic and criminology where
Doctor Conneally does not.” The military judge adhered to her
earlier rulings and reiterated:
[W]hen the defense makes a request to the convening
authority for an expert by name and the convening
authority grants it, then the convening authority can
rely that the defense has done its homework and has
determined that this defense expert possesses the
requisite qualifications at that time.
At oral argument before this Court, appellant government
counsel asserted that a retest would have delayed the trial by
one and a half months. Appellate defense counsel asserted that
consultation with Dr. Blake would have taken only “a couple of
days,” and a retest could have been accomplished within 24 hours
after Dr. Blake received the samples.
When trial on the merits began on June 12, 1996, the defense
did not present any expert testimony at trial. The record does
not reflect whether defense counsel consulted further with Dr.
Conneally after the military judge denied the request to employ
Dr. Blake.
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United States v. McAllister, No. 00-0252/AR
Discussion
Appellant now contends that the military judge was arbitrary
and capricious in denying the defense requests to substitute Dr.
Blake for Dr. Conneally, retest the unknown material found under
PFC Shanklin’s fingernails, and verify that the blood samples
used by the Government’s laboratory was actually appellant’s.
The Government argues that appellant was provided with “more than
ample expert assistance” and that the military judge did not
abuse her discretion by denying the request for retesting,
because appellant failed to identify any substantive defects in
the chain of custody or point to any evidence of contamination.
When an accused asks for expert assistance, “he must
demonstrate the necessity for” it. United States v. Garries, 22
M.J. 288, 291 (CMA), cert. denied, 479 U.S. 985 (1986). An accused
is not entitled to a specific “expert of his own choosing,” but
is entitled only to “competent assistance.” United States v.
Burnette, 29 M.J. 473, 475 (CMA), cert. denied, 498 U.S. 821
(1990). We review a military judge’s decisions on requests for
expert assistance for abuse of discretion. United States v.
Short, 50 M.J. 370, 373 (1999), cert. denied, 528 U.S. 1105 (2000).
The necessity for expert assistance is not at issue in this
case. The only issue is whether appellant was provided
“competent assistance.”
In this case, the DNA testing was done in 1995 and appellant
was tried in 1996. At that time, PCR testing was relatively new.
Indeed, many appellate courts were still struggling to determine
if PCR testing was sufficiently reliable to be admissible. See 2
Paul C. Giannelli & Edward J. Imwinkelried, Scientific Evidence §
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United States v. McAllister, No. 00-0252/AR
18-5(A) at 53-54 n. 165 (3d ed. 1999); see also Federal Judicial
Center, Reference Manual on Scientific Evidence [hereafter 1994
Reference Manual] 277 (1994).
With the rapid growth of forensic-science techniques, it has
become increasingly apparent that complex cases require more than
general practitioners. See Edward J. Imwinkelried, Expert
Witness: An Unheralded Change, The National Law Journal at A10
(February 5, 2001). Well before this case was tried, courts
began finding that forensic DNA testing was beyond the ken of
many traditional “experts.” See 1994 Reference Manual at 63; see
also Federal Judicial Center, Reference Manual on Scientific
Evidence 490 (2d ed. 2000) (“Courts have noted the lack of
familiarity of academic experts--who have done respected work in
other fields--with the scientific literature on forensic DNA
typing.”).
The prosecution’s DNA expert in this case testified that DNA
initially was used for medical research, to identify genes that
cause diseases. She testified that her employer, LabCorp,
divided its operation into three functional areas: medical
diagnosis, paternity testing, and forensic testing. Finally, she
testified that, in the short time between the DNA testing of the
evidence in this case and appellant’s trial, tests for two
additional genetic systems were implemented at her laboratory.
Defense counsel asserted, without contradiction by the
prosecution, that there were no DNA testing laboratories in
Hawaii. Thus, the defense was required to find an appropriate
expert in mainland United States.
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Dr. Conneally’s curriculum vitae demonstrates that his
expertise was in the area of medical genetics, not forensic
testing. He told appellant’s defense counsel that appellant
needed an expert in forensic PCR testing. Dr. Blake is an expert
in forensic testing.
The substitution of Dr. Blake for Dr. Conneally or the
addition of Dr. Blake to the defense team would not have incurred
any increased cost to the Government. In this case appellate
government counsel have asserted that the trial might have been
delayed 6 weeks, while appellate defense counsel have insisted
that it would have taken only a “couple of days” for defense
counsel to consult with Dr. Blake and 24 hours to retest the
sample. At trial and on appeal, government counsel did not
assert that a delay of 6-8 weeks would have prejudiced their
case.
The DNA evidence was the linchpin of the prosecution case.
It excluded all possible suspects except appellant. Appellant
was on trial for murder, facing a life sentence, and needed the
tools to competently test the prosecution’s DNA evidence. On its
face, the Government’s DNA evidence appeared incomplete, because
it was not subjected to the tests for two additional genetic
systems that were developed after the Government’s evidence was
first tested. The two additional tests were evidence of the
rapid pace of development in the area of PCR testing.
While defense counsel was not as articulate as we would like
in explaining why Dr. Conneally could not provide “competent
assistance,” it is clear from the record as a whole that the
defense needed expert assistance in the technical aspects of PCR
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United States v. McAllister, No. 00-0252/AR
testing, not the general scientific principles underlying it. It
is also clear from the military judge’s exhortation -- “[D]on’t
make this DNA evidence into something more than it really is” --
that she did not fully appreciate the complexities or importance
of the DNA evidence and the rapidly advancing technology of DNA
testing.
Appellant needed more than generalized expertise in genetic
medical diagnosis; he needed specific assistance in the then-new
and rapidly evolving techniques of PCR testing. Appellant needed
an expert to testify how many genetic systems were capable of
being compared with the technology then available. He needed an
expert to challenge or contradict Ms. Clement’s assertion that
additional tests probably would not exclude appellant as a
suspect. Dr. Conneally either could not or would not provide
those tools. The defense proffer was that Dr. Blake could have
provided those tools at no additional cost to the Government.
The defense request for Dr. Blake was timely. Nineteen days
after the request for Dr. Conneally was approved, the defense
informed the military judge that they needed an expert in PCR
testing. Almost a month before trial, the defense specifically
requested Dr. Blake. There is no evidence of bad faith or
witness shopping, and no indication that the prosecution would
have been prejudiced by any delay. See generally United States
v. Miller, 47 M.J. 352, 358 (1997) (factors to be considered in
deciding whether to delay a trial).
The military judge did not focus on the issue whether Dr.
Conneally was able or willing to provide the needed expertise.
Instead, she focused on taking defense counsel to task for
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United States v. McAllister, No. 00-0252/AR
requesting an expert who was either unable or unwilling to
provide what the defense needed, i.e., expertise in PCR testing.
See United States v. Weisbeck, 50 M.J. 461, 465-66 (1999) (military
judge abused discretion by denying expert assistance that went to
heart of defense and would have delayed trial only 6 weeks, and
military judge focused only on “holding the defense’s feet to the
fire”).
We conclude that the military judge’s focus on holding the
defense’s feet to the fire arbitrarily deprived appellant of the
tools he needed. Accordingly, we hold that the military judge
abused her discretion.
Although appellant did not receive the competent expert
assistance that was necessary, we are unable to determine whether
the court-martial’s findings of guilty were “substantially swayed
by the error.” Kotteakos v. United States, 328 U.S. 750, 765
(1946). In our view, the interests of justice will be best
served by returning this case to the Judge Advocate General and
giving appellant an opportunity to demonstrate to the Court of
Criminal Appeals, with the assistance of an expert in PCR
testing, how he would have changed the evidentiary posture of
this case if the military judge had granted his request for Dr.
Blake. See United States v. Curtis, 31 M.J. 395 (CMA 1990).
Legal and Factual Sufficiency (Specified Issues I and II)
Appellant asserts that the court below made numerous
findings of fact that are unsupported by the record. Among the
asserted factual errors are the following:
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United States v. McAllister, No. 00-0252/AR
(1) The court below found that “Ms. McCloud saw a white car
driving away” (unpub. op. at 4); she testified only that she saw
a white car in the parking lot.
(2) The court below found that Kijafa Walker “ran outside
and requested help” from SGT Robinson (unpub. op. at 4).
Appellant asserts that Kijafa made “small talk” with SGT Robinson
and then told him that she could not awaken PFC Shanklin. The
record of trial reflects that Kijafa “started in with small talk”
and then told SGT Robinson that she could not awaken PFC
Shanklin; and that she then asked to speak with Mrs. Robinson.
(3) The court below found that appellant responded to SGT
Robinson’s request to “come over to the quarters” by
spontaneously asking, “Why is Carla dead?” (Unpub. op. at 4)
(comma omitted after “Why” in unpublished opinion); the record
reflects that Kijafa initially told the CID that she told
appellant that PFC Shanklin “might be dead,” but that she
recanted that statement at trial.
(4) The court below stated: “Appellant’s alternative
explanation for the scratches [on his hands and arms] was that
they occurred while he was working on his car.” Unpub. op. at 6.
Appellant asserts that no member of the defense team ever claimed
that he was scratched while working on his car.
Discussion
The Courts of Criminal Appeals are unique in that they are
charged with “the duty of determining not only the legal
sufficiency of the evidence but also its factual sufficiency.”
United States v. Turner, 25 M.J. 324 (CMA 1987). They must be
“convinced of” an appellant’s “guilt beyond a reasonable doubt.”
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United States v. McAllister, No. 00-0252/AR
Id. at 325. If our Court is in doubt whether the court below
properly determined the factual sufficiency of the evidence, the
remedy is to remand the case for a proper factual review of the
findings of guilty. Id. Our Court “will not overturn findings
of fact by a Court of Criminal Appeals unless they are clearly
erroneous or unsupported by the record.” United States v.
Tollinchi, 54 M.J. 80, 82 (2000), citing United States v. Avery, 40
M.J. 325, 328 (CMA 1994).
In this case, we need not decide whether the factual-
sufficiency determination by the court below was defective, in
light of our decision regarding the Granted Issue and Specified
Issue III.
Decision
The decision of the United States Army Court of Criminal
Appeals is set aside. The record of trial is returned to the
Judge Advocate General for remand to the Court of Criminal
Appeals. The Judge Advocate General will provide $5000 to
appellant for employment of Dr. Blake or another equivalent
expert. Thereafter, appellant will have 90 days to file
supplemental pleadings with the court below, which may order a
factfinding hearing if the additional pleadings make it
necessary. The court below will reconsider the factual and legal
sufficiency of the evidence in light of any additional matters
submitted by appellant, taking specific cognizance of the factual
errors asserted by appellant as the basis for Specified Issue I.
In the alternative, the court below may order a rehearing.
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CRAWFORD, Chief Judge (dissenting):
Contrary to the majority’s view that “[t]he necessity for
expert assistance is not at issue in this case,” ___ MJ at (13),
I believe the sole issue is whether appellant demonstrated that
Dr. Blake’s expert assistance was necessary. A concession that
an appellant is entitled to interpretive assistance from one
expert does not, ipso facto, turn a necessity-for-a-second
expert question into an adequacy-of-expert-assistance inquiry.
That appears to be what the majority has done. Accordingly, I
respectfully dissent.
Upon a showing of necessity, any accused is entitled to
competent assistance of an expert. See Ake v. Oklahoma, 470
U.S. 68 (1985); United States v. Gunkle, 55 M.J. 26, 31 (2001);
United States v. Short, 50 M.J. 370, 372 (1999), cert. denied, 528
U.S. 1105 (2000); United States v. Ndanyi, 45 M.J. 315, 319
(1996); United States v. Burnette, 29 M.J. 473, 475 (CMA), cert.
denied, 498 U.S. 821 (1990); United States v. Garries, 22 M.J. 288
(CMA), cert. denied, 479 U.S. 985 (1986). This Court has
adopted a three-pronged test for showing that expert assistance
is necessary. United States v. Gonzalez, 39 M.J. 459, 461, cert.
denied, 513 U.S. 965 (1994). See United States v. Ford, 51 M.J.
445, 455 (1999). It is the defense’s burden to show (1) why the
expert is needed; (2) what such expert assistance would
accomplish for the defendant; and (3) why defense counsel is
United States v. McAllister, No. 00-0252/AR
“unable to gather and present the evidence that the expert
assistant would be able to develop.” Once defense counsel has
met this Gonzalez test and shown necessity, the Government must
provide “competent” expert assistance. See Ndanyi, 45 M.J. at
319. Additionally, “[d]efense counsel are expected to educate
themselves to obtain competence in defending an issue presented
in a particular case.” United States v. Kelly, 39 M.J. 235, 238
(CMA), cert. denied, 513 U.S. 931 (1994).
By specifically approving the defense request to hire Dr.
Conneally, the Government conceded that appellant was entitled
to expert assistance in interpreting the DNA findings of
LabCorp, and nothing more. See RCM 703(d), Manual for Courts-
Martial, United States (1995 ed.). The Rules for Court-Martial
are not written to provide trial defense counsel with “a credit
card” once necessity for one expert witness is established. If
Dr. Conneally was unable to provide the advice for which money
was appropriated, then it was incumbent on defense counsel to
demonstrate, anew, necessity, using the Gonzalez test, for Dr.
Blake. To say that because money had been set aside for one
expert (Dr. Conneally) for a particular purpose, that money
belonged to defense counsel and could automatically go to a
different expert (Dr. Blake) for different assistance is
contrary to RCM 703(d).
2
United States v. McAllister, No. 00-0252/AR
The sole hypothesis under which trial defense counsel
argued the necessity of Dr. Blake’s expert assistance was that
the victim’s fingernails (and skin under the fingernails from
which DNA analysis was made) were somehow “contaminated.” Dr.
Blake was not shown to be a relevant and necessary expert
witness on the subject of contamination. Accordingly, the
military judge properly denied the defense’s request to
substitute Dr. Blake for the previously funded Dr. Conneally.
FACTS
Detailed defense counsel requested the general court-
martial convening authority to approve employment of Dr. Patrick
M. Conneally, Ph.D., an expert consultant in the field of DNA
analysis, on March 20, 1996. In support of his request,
detailed defense counsel stated:
Defense believes that it is necessary that an
expert consultant review the Government’s DNA
analysis, review the Government’s findings and
procedures, independently analyze the data, and
familiarize defense counsel with DNA uses
generally.
Later in the same request defense counsel wrote: “Should
Government grant Defense’s request for Dr. Conneally’s services,
there is the probability that Dr. Conneally will testify as a
Defense expert witness in the case of U.S. v. McAllister.”
Defense counsel had been in possession of LabCorp’s (see ___ MJ
at (6), infra) findings and report for 2 months prior to this
request to employ Dr. Conneally. Presuming defense counsel to
3
United States v. McAllister, No. 00-0252/AR
be both competent and ethical, we must presume that defense
counsel and Dr. Conneally talked about LabCorp’s report and PCR
testing procedures prior to defense counsel’s March 20 request
to employ Dr. Conneally as an expert. On April 4, 1996, the
convening authority approved Dr. Conneally’s employment, as well
as that of another expert, Dr. Hardman, a forensic pathologist.
Pursuant to a government motion to admit DNA evidence, the
military judge held a hearing on April 23, 1996. Prior to
taking testimony, the military judge asked defense counsel
whether they were “satisfied” with their DNA expert (Dr.
Conneally). Civilian defense counsel responded:
He was approved at least for -- to act as a
consultant. There was not approval for him for
funding for trial testimony. We did send him
the materials. We did have a consultation. He
recommended, frankly, that we retain someone who
is an expert in PCR testing, specifically.
After determining that defense counsel was shopping for an
expert and “attempting to contact Dr. Conneally to get his
suggestions on someone, hopefully out of California,” the
military judge cautioned counsel that they needed to submit the
request for any additional expert witnesses first to the
convening authority and that it was “not up to the Government to
find” their expert witnesses for them.
Trial counsel later on presented witnesses who were present
at PFC Shanklin’s autopsy. In particular, evidence was adduced
that explained how Dr. Ingwersen cut the deceased’s fingernails
4
United States v. McAllister, No. 00-0252/AR
and how these fingernails were collected and preserved. Defense
counsel’s cross-examination clearly focused on the possibility
of contamination during the autopsy process.1 In particular,
counsel explored whether the deceased’s hands had been covered
prior to the autopsy. Questioning revealed that PFC Shanklin’s
hands and feet had been wrapped in paper bags prior to the
autopsy. Defense counsel also asked whether any of the
participants in the autopsy coughed or sneezed during the
procedure.
Mr. Overson, from the CID lab in Atlanta, explained his
receipt of the items to be tested from the CID office in Hawaii
and the transfer of these items to LabCorp for testing. Again,
the theme of potential contamination played a prominent part in
the examination and cross-examination of Mr. Overson. Counsel
established that Mr. Overson saw dirt or a substance that
appeared to be dirt under the deceased’s fingernails, and that
the deceased used fingernail polish. Cross-examination also
established that Mr. Overson “did not see any apparent blood,
apparent skin,” or “any apparent other substance extraneous to
the fingernail scrappings which I would call a definite
biological substance.”
1
As an example, defense counsel asked whether those assisting the pathologist
and collecting evidence were wearing gloves, medical clothing, masks, or
hairnets; how many other people were in the room; whether the envelope into
which the fingernails were dropped after clipping was sealed; and whether the
CID agents who collected evidence at the autopsy wore medical accoutrement on
their return trip to the office.
5
United States v. McAllister, No. 00-0252/AR
Following Mr. Overson, Ms. Meghan Clement, Assistant
Director of Forensic Identity Testing at Laboratory Corporation
of America Holdings Incorporated, was qualified as an expert
witness. Ms. Clement testified that the “scientific community
has been conducting DNA testing probably since the late 70s,
early 80s.” She noted that “the scientific community has
reached the conclusion that as long as a test is performed
properly and proper controls are employed that DNA testing in a
forensic arena is reliable and acceptable.” Ms. Clement
explained that the forensic scientific community recognized
three types of DNA testing, one of which, polymerase chain
reaction (PCR), was used in appellant’s case.2 She observed that
there were “numerous major laboratories, including the Federal
Bureau of Investigation,” that were “doing some type of PCR
analysis or initiating it in validation studies.” She remarked
that LabCorp was certified by the College of American
Pathologists (CAP) and that the laboratory participated in
proficiency testing programs sponsored by CAP as well as Selmark
Diagnostics from London, England.
2
The technique called polymerase chain reaction was invented by Kary Mullis
in 1985. It enables an examiner to “find and amplify specific segments of
DNA from complex mixtures.” Griffiths et al, Modern Genetic Analysis 21
(W.H. Freeman and Co., New York (1999)). “PRC is very sensitive and can
detect target sequences that are in extremely low copy number in a sample.”
Additionally, this technique requires no lengthy cloning procedures and “no
restriction digestion of the substrate DNA is needed..., because the primers
will hone in on the appropriate sequence of native DNA.” Id. at 326.
6
United States v. McAllister, No. 00-0252/AR
At trial, Ms. Clement testified that LabCorp tests ten
areas (or particular genetic systems) for DNA. In the case at
bar, LabCorp examined eight particular DNA target areas -- DQ
Alpha, LDLR, GYPA, HBGG, D7S8, GC, D1S80, HUMTHO1. When these
specimens were initially submitted for examination, LabCorp was
testing only eight different areas for DNA. The two other
areas, which LabCorp had added by the time of trial, were not
validated when the samples related to appellant’s case were
undergoing analysis.
The best answer to the majority’s supposition that
additional testing may create a different result can be found in
the record of trial. During recross-examination of Ms. Clement,
defense counsel asked “how can it be said with any assurance
that matches would not be found if the tests were carried out to
their fullest extent?” Ms. Clement answered:
With DNA analysis if there is a difference
at a single genetic system, in other words,
if there is a characteristic which is not
found in evidentiary materials, then that
person is excluded immediately. Whether
you test 1 system or whether you test 10
systems they will be excluded the minute
you find one characteristic which is different.
The remainder of defense counsel’s cross-examination focused on
showing that the DNA may have been contaminated through sneezing
or improper handling of the fingernails. Ms. Clement explained
that “[w]ithin our laboratory there have been a couple instances
of contamination which has been detected. Generally, the most
7
United States v. McAllister, No. 00-0252/AR
common form of contamination is by the analyst [sic] themselves.
And we have complete profiles on every technologist who works
there.” If additional DNA testing, as the majority wishes,
found contamination by a technologist at LabCorp, it would
provide no benefit to appellant unless appellant can somehow
make a laboratory analyst in the Research Triangle of North
Carolina a suspect in a murder that took place in Hawaii.
At the time she announced her findings on the Government’s
motion to admit LabCorp’s DNA testing results, the military
judge informed counsel that any defense request for further DNA
testing would need to be submitted to the United States not
later than close of business on April 29.3 On April 29,
government counsel received a FAX from the accused’s civilian
defense counsel requesting the retesting of “alleged DNA
fingernail material” by Forensic Science Associates in Richmond,
California.
At an Article 39(a) session on May 15, 1996, civilian
defense counsel asked the military judge to allow substitution
of Dr. Edward Blake for Dr. Conneally as the defense DNA expert.
Counsel informed the military judge that Dr. Blake ran Forensic
3
Defense counsel informed the judge that Dr. Conneally had not appeared at
the April 23 Article 39(a), UCMJ, 10 USC § 839(a), session due to his
unavailability. Although there was some uncertainty whether Dr. Conneally
would testify because his rates exceeded the amount allowed under the Joint
Travel Regulation, the military judge announced that “money’s not going to be
the determining factor on whether he comes. If he has got pertinent
information, I can order that a subpoena be issued and he testify as a $35.00
a day witness if he’s got matters relevant to a case that the United States
is a party. Marshals can make sure he comes.” R. 366.
8
United States v. McAllister, No. 00-0252/AR
Science Associates, a DNA testing laboratory in California, and
that he would retest the fingernail evidence. Defense counsel
stated that Dr. Blake had labeled LabCorp as a “paternity
testing lab” without “specific experience in criminal forensic
testing.” In response to the military judge’s question to
civilian defense counsel as to whether Dr. Blake’s California
lab was certified, the following took place:
CDC: I believe so----
MJ: Because it’s not listed in the----
CDC: ---I would have to----
MJ: It is not listed in the offer nor is it listed
in the qualifications for Doctor Barker [sic] nor-- Mr.
Barker [sic] nor or [sic] any qualification listed down for
him.
CDC: He is the person who invented one of the DNA
tests----
TC: I don’t believe he invented DQ Alpha, ma’am. The
person who invented DQ Alpha got the Nobel Prize.
MJ: Yeah, that’s my recollection too, although it’s
certainly not in evidence. Because in the, I guess what
passes to be a curriculum vitae for Doctor Barker [sic], he
lists only two areas that that lab tests in whereas LabCorp
tested, according to the exhibits submitted along with the
government’s response, that the testing was actually done
like in eight different areas. So, how on earth can this
lab retest what it doesn’t have the capacity to retest?
And there’s no showing of any kind of controls that the
requested lab employees, there’s no showing of any testing,
I guess that’s done by peer review organizations on any
sort of regular basis. In other words, I guess what I’m
asking for is even if this retesting were done, how would
this-- how would you set a foundation for this under United
States versus Youngberg or Merrell Dow case? Because that
was the whole point of Megham Clement coming and testifying
was to lay the foundation which is required to be laid for
9
United States v. McAllister, No. 00-0252/AR
scientific testimony. That’s not in the offer here,
because I think what I’m reading is the basis of your
motion is you think the convening authority applied an
incorrect standard in reviewing the request for independent
testing. So, I guess my question is what do you think the
standard is for testing DNA evidence? Because what I read
is that there are some broad statements that you have to,
you know, clip the nails in half and I don’t recall Meghan
Clement ever testifying about whether nails were clipped or
not clipped. What I recall her saying is that the
materials are still available for retesting. Does the
government-- do you know?
(Emphasis added.) At that point defense counsel adopted the
“possibility of contamination” theory as a reason for needing
Dr. Blake’s expertise. After applying the law announced by this
Court in United States v. Gonzalez, United States v. Kelly, and
United States v. Garries, all supra; and United States v.
Mosley, 42 M.J. 300 (1995), the military judge found that defense
counsel had not met his burden of showing what Dr. Blake’s
laboratory would contribute to the defense case other than
providing a mere possibility of something being discovered.
Having failed to show the necessity for Dr. Blake’s expert
assistance, counsel then argued his alternative theory to
contamination: a failure in the chain of custody that caused
defendant’s blood sample to be mislabeled as a reason for
needing Dr. Blake’s assistance. Finally, defense counsel argued
“fundamental fairness.” In reply the military judge stated:
MJ: I see your point but there still has to be some
kind of showing of likelihood of error for it to arise to
an issue of fundamental fairness. Remember Mosley was a
$250.00 EME test that had never been performed.
10
United States v. McAllister, No. 00-0252/AR
* * *
MJ: So, that is a different situation. That would be
like you coming in and saying, “Doctor Blake only performed
DNA for the government on two DNA areas, yet there is a lab
called LabCorp that could test in eight different areas
which would reduce the likelihood of an incorrect result.”
Then I might look at it differently if there are tests that
would be available that could do more. But that’s not what
you’re asking for here. And this is not a Mosley type
issue when you’re talking about $250.00 EME test. This
does not arise to an issue of fundamental fairness in this
case.
Lastly, civilian defense counsel said: “The defense
position really is that we would like to substitute Dr. Blake
for Dr. Conneally----“ The military judge correctly noted that
this substitution-of-experts issue was not before the court
because the “convening authority, in good faith, relied upon the
defense representation, looked at Dr. Conneally’s qualifications
... [and] gave the defense what they wanted.” This Court has
never held that once a convening authority funds a necessary
defense expert that those funds then come under the dominion and
control of either defense counsel or the funded expert witness
for use to hire different experts as they see fit.
DISCUSSION
RCM 703(d) clearly states that it is the convening
authority who “authorize[s] the employment” and “fix[es] the
compensation for the expert,” not the defense counsel. The only
remedy for refusal to provide judicially determined expert help
is abatement of the proceedings.
11
United States v. McAllister, No. 00-0252/AR
Accordingly, one must then look at the military judge’s
findings to see whether she abused her discretion by refusing to
order substitution of Dr. Blake and his Richmond, California,
laboratory for Dr. Conneally.
When one sorts through the fog surrounding defense
counsel’s three written requests for substitution of DNA expert
assistance, argument of counsel, and responses to questions in
the record of trial, it is obvious that defense counsel wanted a
retest of the victim’s fingernails based on his theories that
the chain of custody which got appellant’s blood sample to
LabCorp in North Carolina was faulty and that there was a
possibility of contamination. Defense counsel failed to
specifically allege or show that Dr. Conneally was incompetent
to render the assistance for which he was hired.
There is absolutely no allegation that LabCorp’s findings
were somehow improper unless they had received contaminated
fingernails or tainted blood. Counsel was unable to identify
any irregularity in the testing of the deceased’s fingernails or
even make an offer of proof that would warrant hiring Dr. Blake
and his laboratory. For example, counsel never argued how
additional testing might point to another theory of the crime or
cause of death. Cf. Barnabei v. Angelone, 214 F.3d 463, 474 (4th
Cir.) cert. denied, 530 U.S. 1300 (2000). Accordingly, defense
12
United States v. McAllister, No. 00-0252/AR
counsel did not demonstrate necessity for this second DNA
expert.
The chain-of-custody issue and the potential mix-up of
vials of blood, to include appellant’s, was thoroughly litigated
at trial. Defense counsel’s piercing cross-examination failed
to undermine the reliability of the handling and custody of
either the victim’s or appellant’s vials of blood drawn in
Hawaii.
The issue of potential contamination was more than
thoroughly explored by defense counsel during his cross-
examination of those witnesses who conducted the autopsy, as
well as his cross-examination of Ms. Clement. The defense
theory was that the deceased’s fingernails had become
contaminated in some manner by those conducting the autopsy
(such as sneezing on them) and as a result of that
contamination, the DNA test was unreliable. Testimony revealed,
however, that the victim’s hands were wrapped before the autopsy
and palms were facing down after being exposed. Therefore,
there was much less opportunity for any contaminates (and none
were ever shown to exist) to get under the nails. Further
questioning showed the victim’s fingernails were short anyway.
Expert witnesses are not necessary for a knowledgeable
defense counsel to adequately test a chain of custody or the
possibility of sample contamination. Appellant’s civilian
13
United States v. McAllister, No. 00-0252/AR
defense counsel was well prepared and did a good job of
contesting both areas. The court members obviously decided that
neither was an impediment to finding Specialist McAllister
guilty. As defense counsel failed to demonstrate why Dr. Blake
was “necessary” under this Court’s Gonzalez test, the military
judge did not err. The mere possibility of assistance from an
expert does not rise to the level of necessity. See Mosley, 42
M.J. at 307 (Crawford, J., dissenting); Moore v. Kemp, 809 F.2d
702, 712 (11th Cir.), cert. denied, 481 U.S. 1054 (1987).
LEGAL AND FACTUAL SUFFICIENCY
Defense counsel had two theories of the case: (1) PFC
Shanklin died of natural causes (a seizure); and (2) somebody
murdered her but it wasn’t appellant.
Counsel’s theory that PFC Shanklin died of natural causes
was premised on the fact that the victim had passed out on one
or two occasions in the Hawaiian heat while standing at
attention during formations. The findings of the autopsy --
that the victim died as a result of suffocation due to
strangulation -- certainly did not advance this position.
Appellant’s second theory, that someone other than him
killed PFC Shanklin, can also be put to rest by the evidence.
Contrary to the defense’s assertion, the DNA evidence is not the
only evidence that places appellant at the murder scene or shows
14
United States v. McAllister, No. 00-0252/AR
that he had the opportunity to kill the victim. Appellant
convicted himself without ever taking the stand.
Appellant’s statements to his fellow soldiers; past
physical altercations with the victim, which included periods of
choking; his futile attempts to get Staff Sergeant Rogers to
manufacture an alibi for him; his mysterious visit to Sergeant
Grady with a box and a request for Grady to get rid of that box
on the morning after the murder; as well as appellant’s highly
incriminating remark (“Why, is she dead?”) when first told that
“something happened to” PFC Shanklin are legally sufficient for
a rational factfinder to convict appellant of PFC’s Shanklin’s
murder. See Jackson v. Virginia, 443 U.S. 307, 319 (1979);
United States v. Turner, 25 M.J. 324 (CMA 1987). While I share
the majority’s concern with some of the minor factual
discrepancies in the Court of Criminal Appeals decision, I do
not find the factual-sufficiency determination by the court
below to be defective.
15
United States v. McAllister, 00—0252/AR
SULLIVAN, Judge (dissenting):
The majority sets aside the Court of Criminal Appeals’
decision in appellant’s case which affirmed his conviction for
murder and a life sentence. It does so on the basis that the
judge abused her discretion in denying appellant’s request for
expert assistance from Doctor Blake and denying his request for a
continuance and a retest of a DNA sample. The majority (___ MJ
at (16)) concludes that the judge acted “arbitrarily” in denying
these motions because she “focus[ed] on holding the defense’s
feet to the fire” for “requesting an expert who was either unable
or unwilling to provide” tools to challenge the Government’s DNA
evidence. See generally United States v. Weisbeck, 50 M.J. 461,
466 (1999). I dissent.
The premise of the majority opinion is flawed and,
accordingly, I cannot join its conclusion. In my view, the
military judge was “focused” on the defense’s burden to show its
requests for government assistance were necessary for a fair
trial as required by our case law. See United States v. Kelly,
39 M.J. 235 (CMA), cert. denied, 513 U.S. 931 (1994). The military
judge stated in this regard:
[W]hen the defense makes a request to the
convening authority for an expert by name
and the convening authority grants it,
then the convening authority can rely that
the defense has done its homework and has
determined that this defense expert
possesses the requisite qualifications at
United States v. McAllister, 00-0252/AR
that time. It was stated that Doctor
Conneally could provide assistance to the
defense in this case and now you're
telling me he's not even a forensic
scientist. Well I guess he teaches DNA
analysis, it still appears to me that one
who teaches DNA analysis could review the
evidence in this case and give a helpful
opinion, but there’s still nothing in here
showing why Doctor Blake is necessary in
this case.
R. 483 (emphasis added).
Previously, the judge denied a defense request for retesting
appellant’s blood sample, relying on cases from our Court which
require a necessity approach to these requests as well. She
ruled:
There’s nothing that has been raised by
the defense in this motion to show
anything [more] than the mere possibility
of something being discovered should there
be retesting. In other words, what I’m
saying in a roundabout fashion, is that
the standards that I must employ in--let
me see, I’ve got--I guess I should put the
cases on the record, in United States v.
Gonzales, at 39 M.J. 459; United States v.
Kelly, at 39 M.J. 235; United States v.
Garries, 23 M.J. 288; United States v.
Mosley, at 42 M.J. 300, which applies the
Supreme Court standards in expert
assistance provided by the Government for
the defense case. But those standards
have not been met in this motion and the
convening authority applied the right
standards when he was reviewing under RCM
703.
She later said on this same request:
I’ll make a finding here that Special
Agent Forringer testified that he took
custody of Specialist McAllister’s vial of
blood after watching it been [sic] draw
2
United States v. McAllister, 00-0252/AR
[sic] and watching the vial. Special
Agent Benavidez testified that he took
custody of the Jones’ vial; he saw it
being labeled; and he [had] custody and
control over that vial. The two vials
were transported by different agents in
different vehicles, stored in different
locations. The chain of custody has
already been litigated at the prior
Article 39(a) session. Maybe all of the
labeling was not 100% perfect but that’s
not what a chain of custody requires.
There is no showing of a likelihood or a
true possibility of mix-up of those
samples. On the vial of Specialist
McAllister, the chain of custody had the
name McLasiter, that is where Mr. Overson
called to verify the name of the
individual to verify that the correct
sample was about to be tested. And I find
that he did verify the identity of the
individual who had actually donated that
particular sample. So, there is nothing
to suggest to me that there is any real
possibility of a mix-up of samples within
the chain of custody procedures. So, that
does not support a retest and neither
does--at government expense, neither does
the possibility of contamination in a lab
just because of the difficulty in avoiding
contamination in that setting when there
is no real showing of a true possibility
of contamination in that particular lab
doing these particular tests. That does
not say that the defense cannot, at its
own expense, have a retest, provided it
can be accomplished by the day of trial in
this case. Or cannot cross-examine the
witness on the inherent validity of DNA
analysis because of the complexities of
maintaining a contamination free
environment. Those will be matters for
the members to determine or to weigh in
weighing the value of that evidence in
their own minds. But I am denying the
defense motion to compel the Government to
pay for a retest and to grant a
continuance until such time as that should
be done. There’s just not a sufficient
3
United States v. McAllister, 00-0252/AR
showing in this case to compel the
Government to do it.
R. 446-47 (emphasis added).
The Court of Criminal Appeals also affirmed appellant’s
conviction. It said:
As to the second DNA expert request, we
apply the same standard, that is,
appellant must meet his burden of
demonstrating the necessity for Dr.
Blake’s services. In approving the
defense request for Dr. Conneally, the
convening authority gave the defense more
than they were entitled to receive, i.e.,
a specifically named expert consultant.
Dr. Conneally’s curriculum vitae
established him as an eminently qualified
expert with over thirty years experience
in medical genetics culminating in his
current position as the Distinguished
Professor of Medical Genetics and
Neurology, Indiana University School of
Medicine. His appointment to the defense
team gave the appellant more than “the
‘basic tools’ necessary to present his
defense.” Kelly, 39 M.J. at 237 (citing
Ake, 470 U.S. at 77). Appellant failed to
advance any plausible reason why Dr.
Conneally could not provide the necessary
expert assistance. The request for Dr.
Blake to be substituted for Dr. Conneally
was not based on any inability on Dr.
Conneally’s part to provide the necessary
assistance. It was instead a thinly
veiled attempt to get the re-test that had
been denied by the military judge.
Indeed, as noted by the convening
authority in his denial of the requested
substitution, the request for Dr. Blake
was identical in nineteen of twenty-one
paragraphs to the request for the re-test
that had been denied. As the defense
failed to demonstrate any reasonable
necessity, the military judge did not
abuse her discretion in denying the
4
United States v. McAllister, 00-0252/AR
defense request to substitute Dr. Blake
for Dr. Conneally.
As to the defense request for a re-test
of the DNA specimen, we again apply the
Garries reasonable necessity standard,
that is the defense “must demonstrate
something more than a mere possibility of
assistance” from a re-test. See Robinson,
39 M.J. at 89. The defense request was
based on (1) a possible mix-up of
appellant’s blood specimen with that of
SSG Jones, and (2) possible contamination
of the fingernail specimen either at the
crime scene or at the laboratory. We find
the possibility of a mix-up of the blood
specimens to be so infinitesimal as to be
non-existent. The only “defect” that
appellant could point to was the slight
misspelling of his name on the DA Form
4317. That “defect” was adequately
explained by SA Forringer and is so de
minimis as to have absolutely no effect on
the chain of custody. As to the possible
contamination, the defense failed to
produce even a scintilla of evidence of
any contamination. The defense merely
asked speculative questions of[,] if
someone sneezed or coughed on the
decedent’s fingernails[,] could that have
contaminated the specimen. That is a far
cry from producing any evidence that any
person did cough or sneeze on the
decedent’s fingernails. The defense’s
conclusional assertion, that there may
have been contamination because DNA
testing is by its nature sensitive, was
unsupported by any evidence. In addition
to failing to identify any defect in the
chain of custody or any contamination of
the sample, the defense failed to identify
any laboratory error, any misconduct or
negligence by any laboratory personnel, or
any misinterpretation of the test results.
Unlike the drug test in United States v.
Mosely, 42 M.J. 300 (1995), the DNA retest
in the instant case would not have been
minimal in terms of time and resources.
We find that the military judge did not
abuse her discretion in denying the
5
United States v. McAllister, 00-0252/AR
defense request for a re-test of the DNA
specimen.
Unpub. op. at 10-11 (first emphasis added; footnote omitted).
In sum, the majority’s narrow view of the basis for the
military judge’s rulings in this case dictates the result it
reaches on this appeal. See United States v. Weisbeck, 50 M.J. at
466. While I agree with the Weisbeck decision, I do not agree it
is applicable in this case. Moreover, the evidence in this case
is more than sufficient under the test of Jackson v. Virginia,
443 U.S. 307, 319 (1979). Accordingly, I dissent to the majority
effectively reversing a jury conviction of murder on the slender
reed which mistakes this case for the real injustice suffered in
Weisbeck. There was no injustice in this trial and the
conviction should be affirmed.
6