Christina M. Kerls won in State v. George, No. 112,224 (Kan. June 8, 2018), obtaining DNA testing in a Leavenworth County rape and kidnapping prosecution. After conviction and sentencing, Mr. George filed a motion for DNA testing of some collected, but untested hairs. The district court and a majority of the COA held that additional testing would not point to Mr. George's innocence, but would at most be cumulative to other record evidence. The KSC agreed with COA Judge Atcheson in dissent, holding that the district court applied to strict a standard for exculpatory evidence:
We agree that even if the testing of the hairs found at the spot where the rape occurred only revealed that George's DNA was not present, the results would be exculpatory because they would "tend" to disprove his guilt. At a minimum, they would tend to show he had not been at that spot.
That this potentially exculpatory evidence may be of very little evidentiary value does not matter at this stage. Once DNA results are obtained, the district court will then make "a 'probabilistic determination about what reasonable, properly instructed jurors would do' with the new evidence in light of the totality of the circumstances.
The KSC also held that the COA majority erred by finding that any exculpatory evidence would be cumulative:
In our analysis of the "noncumulative evidence" issue, we start with the majority's acceptance of the parties' characterization "that the jury had as evidence a stipulation that 'George's DNA was not found on the complaining witness.'" As mentioned, from there the majority ultimately concluded that "the jury was provided with evidence and argument that George's DNA was not found . . . at the crime scene."
But not finding George's DNA at the crime scene was essentially a jury argument made by defense counsel. It was based upon the apparent stipulation that was limited to R.L.'s body—which counsel expanded to argue "there is no DNA match at all to my client to this crime scene. Nothing whatsoever . . . . [T]here is no DNA." A mere lack of George's DNA in the fluids on R.L.'s body—the only items tested—does not mean, however, that all untested crime scene items likewise do not contain his DNA. Accordingly, that single agreed upon fact regarding R.L.'s body cannot automatically dispose of the general question that the district court must answer when reviewing a petition for DNA testing of the hair, e.g., if those results "may produce noncumulative" evidence.
As for the next step in our analysis on the noncumulative evidence issue, we agree with the panel's dissent. If the testing results of the hairs found at the point where the rape happened were to indicate the presence of the boyfriend's DNA, then that evidence would be cumulative of the seminal fluids' evidence. (Conversely, if the hairs' testing results indicated the presence of George's DNA, then that evidence clearly would not be exculpatory.) But under the language of K.S.A. 2015 Supp. 21-2512(c), future testing of those hairs "may produce" results indicating the presence of other individuals' DNA. And because such evidence would be the first of that type from the crime scene—especially the rape scene—it necessarily would be noncumulative under the statute.
Such evidence in turn would support George's defense that some other person— significantly, perhaps someone now identified—committed the crimes. In short, for K.S.A. 2015 Supp. 21-2512(c) purposes, there is a difference between failing to find George's DNA, which only suggests he did not commit the crimes—and actually finding someone else's DNA, which suggests that person committed the crimes instead.
As a result, the KSC reversed and remanded for further proceedings at the district court.
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