News article: Florida appeal mentioning the NAS report

[Identify]

http://www.leagle.com/unsecure/page.htm ... 0100121231

"We also reject Johnston's challenge to the fingerprint analysis based on the National Academy of Science forensic report. Johnston contends that the fingerprint analysis completed in his case was faulty because four latent prints found at the crime scene were not compared with an individual named Jose Gutierrez who was in the vicinity on the evening of the murder and who, according to Johnston, was suspicious. Johnston does not explain how the report constitutes newly discovered evidence that assists him in that regard because both the unidentified fingerprints and the presence of Gutierrez in the neighborhood were known at the time of trial. Moreover, Gutierrez testified at trial and explained his presence in the neighborhood. He explained that he was a friend of the victim's granddaughter and her husband, and was waiting for them that night to go out to a social event. This fact was confirmed by the victim's granddaughter, who testified that she and her husband were supposed to meet Gutierrez that evening. Consequently, this claim has no merit."....
and
"Johnston's next claim challenges the postconviction court's denial of his Motion to Produce Evidence for Forensic Testing, in which he sought access to fingerprint and shoeprint evidence, in addition to the items of clothing that were tested during the relinquishment. Johnston sought production of the evidence in order to perform additional forensic testing, arguing that the forensic testing done at the time of trial was faulty, based on the National Academy of Science report discussed above. We conclude the postconviction court did not err in denying production of the fingerprints and shoeprint evidence for additional testing, and that denial of the motion did not deprive Johnston of due process.

Although the fingerprint evidence presented at trial did not incriminate Johnston, he now contends, as discussed above, that the fingerprints should be produced so that they can be compared to those of Jose Gutierrez. However, the fingerprints are not newly discovered evidence, and Johnston knew of Gutierrez at trial but only now seeks to compare his fingerprints to those found at the scene. For these reasons, any claim based on these fingerprints is procedurally barred. Even if the claim were not procedurally barred, Johnston has not provided any basis to conclude the results of the fingerprint testing would probably result in his acquittal. As explained above, Jose Gutierrez's presence near the victim's home that night was fully explored at trial during his testimony. We also agree with the postconviction court that testing of these fingerprints now would not be likely to demonstrate that the forensic testing done for trial was deficient."
and
"The postconviction court denied the motion for production of the fingerprint evidence and the shoes and castings, concluding first that there is no reasonable probability that the results of additional forensic testing would exonerate Johnston of the crime. The court also concluded that there is no absolute right to production of evidence, which is in the nature of a discovery request, in this postconviction proceeding. We agree that the request is in the nature of postconviction discovery. There is no unqualified general right to engage in discovery in a postconviction proceeding. "[A]vailability of discovery in a postconviction case is a matter firmly within the trial court's discretion." Marshall v. State, 976 So. 2d 1071, 1079 (Fla. 2007). We have held that "[a] trial court's determination with regard to a discovery request is reviewed under an abuse of discretion standard." Overton v. State, 976 So. 2d 536, 548 (Fla. 2007). In denying the motion, the postconviction court properly considered the issues, the fact that Johnston had almost twenty-five years in which to make this motion, and the fact that he only speculates that additional testing could disclose forensic deficiencies. Thus, we conclude that the court did not abuse its discretion in denying the motion.

Because Johnston has not shown that the trial court abused its discretion in denying production for additional testing or that any of the testing would probably result in his acquittal, relief is denied on this claim."

[Gerald Clough]

A lot of them end up like this. A great deal of what is put forth by various folks, especially to media and on the Internet, that this or that evidence or information was not known at the time of trial turns out to be things that were well known at the time. This one got his shot at more testing. Too bad for him that it piled on more against him. In a lot of these, they recognize that the evidence was available at the time and the appeals court will know that too, and they go after an ineffective assistance claim that, yes it was there at the time, but the defense attorney (almost never the same attorney at this stage) was ineffective for not using it. One is sometimes moved to wonder why they would pursue issues that are easily analyzed and dismissed, but the goal is often just as much or more to buy someone a few more years of life.