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Massachusetts Supreme Judicial Court Announces Impacted Third Party Has Right to Appeal Motion Granting Postconviction DNA Testing

by Matt Clarke

The Supreme Judicial Court of Massachusetts ruled that a third party who is ordered to provide biological materials pursuant to G. L. c. 278A has a right to appeal such order even where the party hasn’t intervened in the case.

After an evening of drinking at his mother’s apartment, Richard Randolph, his nephew Leroy Randolph, and other Randolph family members were involved in a confrontation with the couple living below the apartment. From their landing, the Randolphs threw various items at Brian Golden. One of the items was a knife, which struck Golden in the eye, killing him.

Richard was accused of throwing the knife. In 1986, a jury convicted him of first-degree murder and related lesser charges. He always maintained that he had been misidentified as the perpetrator and filed a motion for new trial with additional witnesses, stating they had heard Leroy confess to throwing the knife. Both that motion and a later one were unsuccessful.

In 2019, Richard filed a chapter 278A motion for testing of DNA left on the murder weapon. The motion was granted, and testing showed that it was very unlikely the DNA from the murder weapon was Richard’s. He filed a second motion under chapter 278A, § 7 (c), seeking a DNA sample from Leroy to test and compare with the DNA from the knife. The court held a nonevidentiary hearing with Leroy participating, then allowed the motion.

Due to uncertainty on how to appeal, Leroy filed a notice of appeal against the Commonwealth and Richard in the Superior Court and a petition in the county court. The appeals were consolidated in the Supreme Judicial Court where Richard was represented by attorney Dennis Shed and attorney Michael, and Leroy was represented by J. Taft.

The Court began its analysis by noting a prisoner who claims “factual innocence” is entitled to request postconviction forensic testing pursuant to G. L. c. 278A, § 2. If the prisoner satisfies the procedural requirements provided for in G. L. c. 278A, § 3 (b), the judge will schedule a hearing. Prior to the hearing, the Commonwealth is required to file a response that includes any objections to the requested analysis. G. L. c. 278A, § 4 (c). DNA may be sought from a third party under G. L. c. 278A, § 7 (c), but the statute doesn’t expressly provide for appeals sought by third parties. See G. L. c. 278A, § 18.

Before turning to the question of whether the motion allowing collection of third-party DNA was properly allowed, the Court addressed the issue of the proper procedure for bringing such an appeal. The Court noted that the first sentence of G. L. c. 278A, § 18 makes it clear that an order “allowing or denying” a motion is “final and appealable.” However, the second sentence sets forth the mechanics for an appeal, but it only talks about a “moving party,” not third parties, the Court observed.

The Court stated that the statute allows for appeals with respect to motions that are allowed or denied. A moving party who has prevailed (motion allowed) would have no reason to appeal, so only an aggrieved party would want to appeal in this situation, i.e., the Commonwealth or a third party from whom DNA is sought, the Court explained. It stated that to allow motions to be appealed “but that third parties aggrieved by such order may not appeal from them would be an ‘absurd’ and ‘unreasonable’ result that ‘could not be what the Legislature intended.’” Quoting Ciani v. MacGrath, 114 N.E.3d 52 (Mass. 2019). Thus, the Court concluded that “third parties who are ordered to provide biological materials pursuant to G. L. c. 278A must be permitted to take an appeal in the ordinary course before doing so,” i.e., under G. L. c. 278A, § 18.

Turning to the sufficiency of showing that the requested materials will provide evidence material to identification, the Court ruled that Richard satisfied the “heightened standard to demonstrate by a preponderance of the evidence that the requested DNA sample ‘will … provide evidence material to the identification of a perpetrator of the crime’ under G. L. c. 278A, § 7 (c).”

In order for a motion for forensic or scientific analysis to be granted, G. L. c. 278A, § 7 (b) (4) requires, inter alia, a determination by a preponderance of the evidence that the “requested analysis has the potential to result in evidence that is material to the moving party’s identification as the perpetrator of the crime in the underlying case.” [emphasis added] However, when biological samples from a third party are sought, there’s a heightened standard that requires the party seeking such samples to demonstrate that they “will, by a preponderance of the evidence, provide evidence material to the identification of a perpetrator of the crime.” G. L. c. 278A, § 7 (c) [emphasis added].

Although there’s a heightened standard when third parties are involved, that standard doesn’t require that the biological material will “conclusively” identify the perpetrator; the moving party need only “establish a link between the material to be tested and the perpetrator,” the Court explained. See Commonwealth v. Clark, 34 N.E.3d 1 (Mass. 2015).

The Court ruled that Richard met the heightened standard, reasoning that a limited number of people could have thrown the knife at issue, DNA testing ruled Richard out, and a witness saw Leroy in the location from which the knife was thrown immediately after it struck the victim in the eye. As such, there is a reasonable basis to believe that Leroy handled the knife and that it’s his DNA that was found on it, and if it turns out to be his DNA, it’s more likely that he threw the knife at the victim, according to the Court. Thus, the Court ruled that Richard established, by a preponderance of the evidence, that testing of Leroy’s DNA will result in evidence material to identifying the perpetrator.

Accordingly, the Court affirmed the Superior Court order allowing the motion to obtain Leroy’s DNA. See: Randolph v. Commonwealth, 173 N.E.3d 317 (Mass. 2021). 

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Related legal cases

Randolph v. Commonwealth

Commonwealth v. Clark



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