In re Towne, 2013 VT 90
By Merrill Bent
It’s important to have standards, and that’s what this case is all about. The issues revolve around Vermont’s Innocence Protection Act, which allows convicted criminals to obtain DNA testing under certain circumstances.
The petitioner in this case was convicted in 1989 of murdering young Paulette Crickmore after kidnapping her on her way to school. His conviction was affirmed on appeal, and at least ten requests for post-conviction relief have all since been denied. In 2011, the trial court rejected the petitioner’s request for mitochondrial DNA testing of hairs found on the victim’s body. Because the petitioner asserted that his ex-girlfriend’s son was guilty of the crime, he requested that the son’s DNA also be tested.
In rejecting his bid for DNA testing, the trial court found that the petitioner had not established a “reasonable probability” that the test results would have yielded a different result at trial, and noted that even if the hair belonged to the son, that fact would not exclude the petitioner as the murderer.
The petitioner’s argument on appeal is that the trial court misapprehended the applicable standard for relief under the Act, and that there truly was a reasonable probability that the DNA results would have resulted in a different outcome at trial.
The initial question the SCOV takes up on the petitioner’s appeal is what standard a trial court must apply in considering requests for relief under the Act. Finding this query to be one of statutory construction and therefore a “pure” question of law, the SCOV decides it must review the trial court’s decision as to the applicable standard “de novo,” or, in other words, without any deference to the trial court.
The SCOV next examines the broad body of existing case law interpreting the reasonable probability standard as applied in other contexts, operating on the assumption that the legislature was familiar with the SCOV’s prior treatment of the standard when it elected to employ it in the context of the Innocence Protection Act. The SCOV holds that, to satisfy the standard under the act, the evidence must form a reasonable doubt that did not exist without it, and that it must be “sufficient to undermine confidence in the outcome.”
The SCOV concludes that the inquiry is a matter of overall fairness, and not merely a question of whether the result of the trial would have been different had the evidence been considered. The SCOV further clarifies that a “reasonable probability” is a different and less exacting standard than a preponderance of the evidence standard, the latter often being described as a “balance of probabilities” test, satisfied where there is at least a 50% chance that a proposition is true. By extension, a reasonable probability is even less than a 50% probability. The SCOV finds that the trial court had, in its decision, conflated the two distinct standards.
The SCOV next examines the trial court’s application of the standard to the facts in the case, and resultant ruling. Again, the appropriate standard of review is de novo.
First, the SCOV points out that the type of DNA test the petitioner had requested—mitochondrial as opposed to nuclear—would not have been able to have definitively established who the hair came from, only that it had come from a common matrilineal ancestor of any match. Thus, the impact of the requested test results is just too speculative and remote to satisfy the standard. Moreover, even if the test results could establish that the hair belonged to the ex-girlfriend’s son, that fact would not even contradict any of the State’s evidence at the petitioner’s trial. This was particularly the case given that petitioner had refused to submit to testing at the time of trial, which resulted in an instruction that the jury could consider his refusal as evidence of guilt. In short, no test result would have called into question any evidence on which the jury had reached its verdict.
Although the petitioner pointed to numerous other facts that he asserts point to the ex-girlfriend’s son, the SCOV noted that all of those facts had been presented and known to the jury at trial, and that the jury had nonetheless found that the petitioner was guilty beyond a reasonable doubt.
Based on its review of the totality of the evidence, the SCOV finds that no test result would be sufficient to undermine its confidence in the outcome of the petitioner’s trial and, accordingly, did not create a reasonable probability of a different result.
The petitioner’s latest bid rejected, he will remain behind bars, continuing to serve a very long sentence for a terrible crime.