The Commonwealth responds in Greineder’s latest appeal

By Tom Farmer

The Commonwealth has filed its response to the Massachusetts Supreme Judicial Court which will decide an appeal by Dirk Greineder who argues he deserves a new trial because a DNA expert who did not conduct testing in his case should not have been allowed to testify about the results during his trial.

Greineder, 71, a highly respected doctor, was convicted in June 2001 of killing his wife, Mabel “May’’ Greineder, during an early Halloween morning walk in 1999 at Wellesley’s Morses Pond. An investigation by State and Wellesley police revealed that the allergist and expert on childhood asthma was leading a secret life with prostitutes, an Internet dating service, and on-line pornography prior to killing his wife.

The SJC affirmed Greineder’s conviction in November 2010, but the former doctor’s attorney, James L. Sultan, filed a writ of certiorari with the United States Supreme Court in January 2011 arguing that Greineder deserved a new trial because his Sixth Amendment rights to confront an accuser were violated because the Commonwealth did not put on the witness stand scientists from Cellmark Diagnostics who conducted and supervised the DNA testing. Instead, Dr. Robin Cotton, who was the director of Cellmark at the time, testified about the overall testing process and the results which partially matched Greineder’s DNA profile to a knife used to kill his wife and two brown work gloves worn by her killer.

The U.S. Supreme Court did not rule or comment on Greineder’s writ of certiorari, but did vacate the SJC’s affirmation of his conviction and sent the issue of the DNA testing back the Massachusetts court to reconsider in light of Williams vs. Illinois, a case decided in June by the Supreme Court.

According to the Chicago Tribune, with a splintered 5-4 vote, the justices upheld the conviction of a Chicago rapist who was found guilty based on a DNA match also done by Cellmark Diagnostics. The court’s majority said the expert testimony provided by an Illinois State Police lab analyst was sufficient. No one from Cellmark testified about its testing during the trial.

The ruling was a reversal from the Supreme Court’s 2009 decision in Melendez-Diaz vs. Massachusetts in which the justices concluded that a criminal defendant’s right to confront his accusers requires live trial testimony from crime lab analysts who identified him as the culprit.

Sultan cites both Supreme Court cases in his argument to the SJC that Greineder deserves a new trial. He argues that Dr. Cotton’s testimony during the Greineder trial “parroted’’ Cellmark analyst Wendy Magee’s reports rather than Cotton providing her own opinion and that it amounted to testimonial hearsay in violation of the U.S. Constitution’s Sixth Amendment’s Confrontational Clause.

But in a brief filed last week by Norfolk County Assistant District Attorney Varsha Kukafka, she argues the SJC already rejected Greineder’s argument when it upheld his conviction in 2010 and should do so again.

Kukafka argues that the “Confrontation Clause was not violated by testimony of the laboratory director who did not test the samples but reviewed the complete case file and reached an independent conclusion that the defendant was not excluded as a source of DNA on the murder weapons and gloves’’ and that Cotton’s “testimony during direct examination that referenced the underlying data was not ‘testimonial hearsay.’’’

Cotton, Kukafka argued, had worked at Cellmark for 12 years since the lab had started DNA testing for criminal investigations and “had overall responsibility for validation studies and all work done by the laboratory,’’ noting that Cotton has a doctorate in molecular biology and biochemistry and had qualified as a DNA expert in courts “at least forty times’’ at the time of the Greineder trial.

The Supreme Court ruling in the Williams case backs the Commonwealth’s argument, Kukafka continued, noting that the justices concluded that “the Confrontation Clause does not restrict an expert witness from presenting her opinion based on facts made known to her and on which she relied in forming her own opinion although she does not have first-hand knowledge of those facts.’’

Since the Williams case was decided federal and state courts “have concluded that expert DNA testimony based on data prepared by another analyst did not violate the confrontation clause,’’ Kukafka stressed.

Greineder and Marty Murphy, his trial attorney, used the DNA results as part of their trial strategy “that spanned pre-trial to closing arguments,’’ Kukafka noted, adding that “the defendant’s claims that he could not meaningfully cross-examine the Commonwealth’s expert and would have been better off if no DNA evidence had been offered into evidence is just second-guessing of able trial counsel (Murphy) with arguments fully litigated and rejected by the trial judge and this Court.’’

In fact, the SJC ruled in 2010 that Greineder and attorney Murphy used the Cellmark results as part of their defense strategy. “Defense counsel gave his opening statement immediately after the prosecutor’s opening,’’ the SJC wrote in its ruling. “In his opening (defense) counsel stated that Cellmark found an unknown human’s DNA on the victim’s blue left-hand glove. He quoted from the Cellmark report, and let the jury know that a significant part of the defense would be the failure of the ‘police and prosecutors’ to ‘conduct a fair and objective search for the truth. They never sought out other suspects.’ He also promised the jury they were ‘going to hear a lot about DNA testing in the course of this case.’’’

The SJC also noted that Murphy “made extensive use of the data prepared by Magee’’ in his cross-examination of Dr. Cotton. “This cross-examination buttressed two pillars of the defense, namely, the unreliability of Cellmark’s testing procedures, which necessarily affected the credibility of Dr. Cotton’s opinion as to the high probability of the defendant being a contributor to the DNA on the knife and brown gloves, and the defense theory that a third party committed the murder,’’

As such, the SJC ruled that “Dr. Cotton’s opinion was admissible, and experienced defense counsel prepared and pursued two effective strategies as a response to a very high likelihood her opinion would be admitted. One strategy was to reduce some of the sting of Dr. Cotton’s opinion; the other was to elicit support for his third-party culprit defense. Both strategies depended entirely on the use of Magee’s data in cross-examination of Dr. Cotton.

“Moreover,’’ the SJC ruling continued, “counsel benefitted from not having Magee testify because it enabled him to frustrate Dr. Cotton’s testimony at points where she simply had no knowledge about analytical choices that Magee made in producing the (data), which probably reflected negatively on Dr. Cotton’s credibility. The data were an integral part of the defense, and it was going to be the subject of inquiry whether Magee testified or not.’’

The SJC concluded that “in the context of this case, there was no prejudice in the admission of Magee’s test results.’’

The SJC will now hear oral arguments on the matter on Thursday, Nov. 8, at 9 a.m.

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