C. WARE'S Col., Ho. Co. CRIMINAL BLOG: WHACK v. STATE, www.CharlesJeromeWare.com

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On Wednesday, August 21st, 2013, the Maryland Court of Appeals (MCOA) reversed the second-degree murder conviction of Tommy Whack, Jr. and remanded his case back to the Prince George's County Circuit for a new trial:

TOMMY WHACK, JR. v. STATE OF MARYLAND,
No. 86, Sept. Term, 2012 (Decided August 21, 2013);
Judges Barbera, Harrell, Battaglia, Greene, Adkins, McDonald and Bell.

DNA is a powerful evidentiary tool and its importance in the courtroom cannot be overstated. See Maryland v. King, 133 S. Ct. 1958, 1966 (2013) (observing that DNA technology is “one of the most significant scientific advancements of our era” and its usefulness in the criminal justice system is “undisputed”).

 

DNA evidence can place a defendant at the scene of a crime, providing a firm scientific foundation for a prosecutor’s case, particularly when other evidence may be lacking. Not surprisingly, jurors place a great deal of trust in the accuracy and reliability of DNA evidence. But this evidence has the potential to be highly technical and confusing in a way that could unduly affect the outcome of a trial.

 

We consider here whether a prosecutor’s incorrect statements during rebuttal closing argument regarding DNA evidence, in a case in which that evidence was of central importance, required a mistrial. 

Petitioner, Tommy Whack, Jr., was convicted of second-degree murder following a trial in the Circuit Court for Prince George’s County.

 

During the trial, the prosecution presented several witnesses, including Petitioner’s cousin, who testified that Petitioner called the victim’s cell phone before the killing and was walking in the neighborhood where the killing took place shortly before the crime occurred. Jurors also heard from a DNA analyst who testified that she could not exclude Petitioner as being the source of DNA recovered from the passenger armrest of the truck in which the victim was shot.

 

In rebuttal closing argument, the prosecutor told jurors that Petitioner’s DNA was present in the victim’s truck, and he claimed the statistical analysis conducted by the DNA analyst supported the State’s theory of the case. Petitioner objected to that argument as misstating the DNA evidence and asked for a mistrial, a request the trial court denied. The Court of Special Appeals affirmed Petitioner’s conviction in an unreported opinion. We granted Petitioner’s petition for a writ of certiorari, Whack v. State, 429 Md. 303 (2012), to answer the following question: 

Did the trial court abuse its discretion in denying defense counsel’s motion for a mistrial after the State, in rebuttal closing argument, mischaracterized the statistical significance of the DNA evidence? 

For reasons we shall explain, we answer yes to that question, reverse the judgment of the Court of Special Appeals, and direct a remand of the case for a new trial.