55 N.E.3d 409
Mass.2016Background
- Robert D. Wade was convicted in 1997 of felony-murder predicated on aggravated rape; he has repeatedly sought postconviction DNA testing of biological evidence introduced at trial.
- Legislature enacted G. L. c. 278A to allow postconviction forensic testing by a two-step process: (1) threshold showing under § 3, then (2) an evidentiary hearing under § 7 where the mover must prove six factors by a preponderance.
- One § 7(b)(3) requirement is that the evidence “has not been subjected to the requested analysis for any of the reasons” listed in § 3(b)(5), which lists five alternative reasons (including that the analysis was undeveloped at conviction (i) or that a reasonably effective attorney would have sought it but did not (iv)).
- Wade amended his claim to proceed under § 3(b)(5)(i) (analysis undeveloped at time of conviction). At the evidentiary hearing the judge admitted testimony from Wade’s trial counsel that disclosed privileged communications and nonetheless found Wade had satisfied (i) but denied relief because the judge concluded Wade had to prove the "primary reason" testing was not done and that a reasonably effective attorney would have sought testing.
- The Supreme Judicial Court reversed: it held a mover need only satisfy any one of the § 3(b)(5) alternatives (the word “any”/“or” is disjunctive), that Wade proved (i) (modern STR testing was undeveloped in 1997), and that admitting privileged trial-counsel communications and refusing to strike them was erroneous.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a mover must prove the “primary” or "actual" reason testing was not done, or only any one § 3(b)(5) reason | Wade: establishing any one enumerated reason (e.g., analysis undeveloped) suffices | Commonwealth: court may probe which reason actually caused lack of testing; "reasonably effective attorney" may preclude relief | Court: mover need only satisfy any one § 3(b)(5) reason; no "primary reason" requirement |
| Whether Wade met § 3(b)(5)(i) (analysis undeveloped at conviction) | Wade: modern STR testing (13 loci/CODIS-level) was not available in 1997 and has far greater discriminating power | Commonwealth: contended earlier DNA tests existed and trial counsel testimony may show reasons testing wasn't sought | Court: expert testimony showed 1997 tests far less discriminating; finding that (i) satisfied is not clearly erroneous |
| Whether filing a § 3 motion waives attorney-client privilege over trial counsel communications about why testing not sought | Wade: filing does not effect an "at-issue" waiver here because claim under (i) is objective and doesn’t require privileged material | Commonwealth: waiver is implicit; counsel testimony may be needed to determine "real reason" testing wasn't done | Court: no at-issue waiver; judge erred in compelling privileged disclosures and denying motion to strike |
| Whether a moving party can withdraw a § 3(b)(5) theory before or during proceedings | Wade: allowed to supplement or withdraw; § 15 protects right to file but does not bar withdrawing claims | Commonwealth: argued otherwise (that withdrawal/proceeding solely under (i) is inappropriate) | Court: moving party may withdraw a theory and proceed under another; § 15 does not bar withdrawal |
Key Cases Cited
- Commonwealth v. Wade, 467 Mass. 496 (discussing G. L. c. 278A procedure and standard for a "reasonably effective attorney")
- Commonwealth v. Clark, 472 Mass. 120 (describing § 278A's purpose and two-step process)
- Commonwealth v. Donald, 468 Mass. 37 (explaining threshold § 3 showing requires pointing to specific information)
- Clair v. Clair, 464 Mass. 205 (discussing limits of "at-issue" waiver of privilege)