The Washington Supreme Court’s decision to deny DNA testing in the case of Alex Riofta is bad news for Riofta. But it may help other Washington convicts seeking to prove their innocence.
Early in the morning of January 27th, 2000, Ratthana Sok set out in the dark to walk to school in Tacoma. After a few steps down an illuminated driveway, he noticed a Honda Civic parked on the street with two or three people inside. A man wearing a white hat got out of the passenger side door and approached him to ask for a cigarette. Within moments, the man in the white hat pulled a revolver from his coat pocket, pointed it at Sok’s head, and began firing, the bullets missing Sok but embedding in a family car and the garage door.
The man Sok identified as the shooter was Alex Riofta, an acquaintance whom Sok quickly identified to police. Prosecutors cast the shooting as an attempt by Riofta to intimidate Sok because Sok’s older brother had agreed to testify against two defendants in a notorious July 1998 restaurant shooting known as the “Trang Dai massacre.” Sok’s eye-witness testimony was the central evidence in Riofta’s conviction, which resulted in Riofta being sentenced to more than ten years in prison.
Riofta still protests his innocence and, since his conviction, has repeatedly sought to have a key piece of evidence tested for DNA identification. The evidence is the
white hat that the shooter was wearing and which was recovered from the crime scene. Investigators soon learned the hat belonged to the owner of the Honda Civic, which had been stolen the night before the shooting. But Riofta’s hope was that DNA testing would confirm that he (Riofta) hadn’t worn the hat, and that DNA testing might identify who, other than the stolen car’s owner, had worn the hat.
The hat was not tested prior to Riofta’s conviction and, post-conviction, the Pierce County trial judge rejected Riofta’s motion to order the test. In affirming the trial judge, a state court of appeals panel reasoned that because the hat was available for testing at trial (but hadn’t been tested) Riofta was precluded from using the state’s law on post-conviction DNA testing to get the hat tested. The hat, the appeals court said, simply did not qualify as newly discovered evidence.
Riofta’s appeal to the Supreme Court clearly settled the question, at least in the state courts, about whether the hat will be tested. It won’t. Still, the 5 to 3 decision authored by Justice Barbara Madsen and announced last Thursday, over-ruled the appeals court on what was, arguably, the most important legal issue at stake in the Riofta case.
“Read as a whole,” wrote Justice Madsen, “the [post-conviction DNA testing] statute provides a means for a convicted person to produce DNA evidence that the original fact finder did not consider, whether because of an adverse court ruling, inferior technology, or the decision of the prosecutor and defense counsel not to seek DNA testing prior to trial. We hold that Riofta’s request for testing of the white hat is not precluded by the procedural requirements of the statute on the basis that it could have been, but was not, tested prior to the trial.”
In other words, Riofta shouldn’t be denied post-conviction DNA testing just because the hat had been recovered and was available for testing before trial.
Yet, the bitter result for Riofta remains the same. While rejecting the appeals court’s interpretation of the law, the Supreme Court sided with the Pierce County judge who reasoned that no matter the results of a DNA test on the white hat, Riofta would be hard-pressed to overcome the other evidence against him.
“The trial court reasonably concluded the absence of Riofta’s DNA would not likely demonstrate his innocence on a more probably than not basis,” Justice Madsen wrote. “The white hat belonged to the owner of the stolen vehicle and was worn by the shooter for a short time, perhaps only as long as it took to walk over to the curb and fire the gun. Moreover, Riofta’s head was shaved. Just as the absence of his fingerprints would not be inconsistent with his guilt (according to the victim, the shooter wore gloves), the absence of his DNA on the white cap would not exclude him as the perpetrator. The presence of a third person’s DNA on the white hat is also unavailing. Any of a number of people besides the shooter could have worn the white hat at some time after the vehicle was stolen. Thus, the presence of another person’s DNA on the hat does not mean that person likely was wearing the hat at the time of the shooting.”
The ruling means that Riofta would have been entitled to the post-conviction DNA testing except for the trial court’s and the Supreme Court’s evaluation that, given the strength of the other evidence against him, the test could not prove his innocence.
“The good news for future defendants is the state had argued and the Court of Appeals affirmed that if your attorney didn’t ask for DNA testing before trial that would have been available, you’ve given up your right to do it after you’ve been convicted. The court dismantled that extra burden and said that is not true, that is not the standard.”–Breean Beggs.
The attorney who represented Riofta before the Supreme Court, Jackie McMurtrie of the University of Washington’s Innocence Project Northwest Clinic, disagreed that the request for the test was futile.
“DNA testing has the power to not only exonerate the innocent, but also identify the actual perpetrator,” she said after Thursday’s decision was announced. “It [DNA testing] has led to the exoneration of over 230 people in the United States. As case after case poignantly illustrates, DNA testing is a far more accurate and scientific method of identification than eyewitness testimony.”
At least on the latter point, the court majority said they agreed.
“Riofta and amicus correctly argue that mistaken eyewitness identification is a leading cause of wrongful conviction,” Justice Madsen wrote on behalf of the majority. “However, this is not a case where the defendant was unknown to the victim Riofta and the victim lived in the same neighborhood and had known each other for years. Riofta visited the victim’s home several times to meet with the victim’s brother. Riofta and the victim used to play basketball together at a local park.”
McMurtrie, however, says the two men did not have an ongoing and close relationship, such that the eyewitness identification was so reliable as to automatically trump additional evidence.
“Alex Riofta and the victim had not known each other for 4-5 years,” she says. “The victim testified that when he was 12 to 13, he played basketball with Alex at a local park. That was the last time he saw Alex.”
Although McMurtrie insists the IPNW Clinic will continue to advocate for DNA testing in the Riofta case “in every appropriate judicial and legislative forum,” she also took note of how the decision rejected the constraints that the appeals court ruling would have put on DNA testing in Washington.
“The Washington Supreme Court held that ‘significant new information’ includes DNA results that did not exist at the time of trial and are material to the perpetrator’s identity, regardless of whether the results could have been performed at trial,” she said. ”In doing so, it makes tests more broadly available than they were under the Court of Appeals ‘newly available due to advances in technology’ standard.
“The [Supreme] court also ruled that a ‘court must look to whether, viewed in light of all of the evidence presented at trial or newly discovered, favorable DNA test results would raise the likelihood that the person is innocent on a more probable than not basis.’ This is also more expansive interpretation of the statute than the one adopted by the Court of Appeals.”
Ultimately, she said, the ruling “is an important decision for anyone working on post-conviction DNA request under Washington statute because it sets out the standards necessary to obtain testing. It also acknowledges the role that mistaken eyewitness identification plays in conviction of the innocent.”
The dissenting opinions filed by Justices Charles W. Johnson and Tom Chambers criticized the majority for setting up a more difficult threshold for post-conviction DNA testing than the legislature intended. Justices Richard Sanders and Chambers (who wrote an additional dissent) signed Justice Johnson’s dissent.
Their main argument is that the court majority’s decision puts a new and undue burden on post-conviction petitioners to prove, in advance, that the results of a DNA test would be likely to reverse the conviction.
“The legislature’s intent with this statute,” Justice Johnson wrote, “is to provide post-conviction DNA testing where doing so could potentially exonerate a convicted person. Obviously, testing will sometimes help a person if it later establishes his or her innocence. But sometimes it will not help. The intent of the statute is to provide for testing; the result of the testing is not the focus.”
Justice Madsen addressed this criticism in her opinion:
“The dissenters argue that our interpretation of the substantive statutory standard is comparable to that for ‘granting a new trial based on newly discovered evidence,’ and is therefore too burdensome. Though we do not agree that the standards are equivalent, the dissenters are correct that defendants seeking postconviction relief face a heavy burden and are in a significantly different situation than a person facing trial.”
The existing law, she continued, “asks a defendant to show a reasonable probability of his innocence before requiring state resources to be expended on a test.”
“There was good news, bad news on this decision,” says the Center for Justice’s Chief Catalyst, Breean Beggs. “The good news for future defendants is the state had argued and the Court of Appeals affirmed that if your attorney didn’t ask for DNA testing before trial that would have been available, you’ve given up your right to do it after you’ve been convicted. The court dismantled that extra burden and said that is not true, that is not the standard.”
The bad news, he said, is evident in the dissents criticism that the majority opinion imposes a more difficult test those seeking exoneration than the legislature intended.
“The dissent argued both principally that the barrier to get the testing should be lower and also that the legislature intended that it be lower,” Beggs said. “The dissent’s point is that morally, if there’s any chance the DNA testing would exonerate someone, we as a society should support getting it done.”
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