By Bob Egelko
San Francisco Chronicle
MARTINEZ, Calif. — A man convicted of murdering a Martinez police officer in 1973 is not entitled to DNA examinations of blood or other evidence found at the scene, a federal appeals court ruled Tuesday, upholding California’s law on DNA testing.
A Contra Costa County jury convicted Curtis Morrison, 31, of Pittsburg of fatally shooting Officer Thomas Tarantino, who had stopped to offer help while Morrison was trying to repair his pickup truck that had broken down on state Highway 4. Several eyewitnesses said they saw Morrison and Tarantino wrestling on the ground, and one witness said she saw Morrison point a gun at the officer’s head before shots rang out.
Morrison was convicted of first-degree murder and sentenced to seven years to life in prison, under the law in effect at the time. Denied release on parole, he has maintained his innocence, saying two other men drove up after Tarantino arrived and he saw one of them scuffle with the officer before shots were fired.
Since 2006, Morrison has sought DNA testing, unavailable at the time of the shooting, of blood found on Tarantino’s clothing, and of Tarantino’s gun and another handgun, allegedly Morrison’s, that was found in the officer’s pants pocket.
Prosecutors declined to conduct the tests, and a Superior Court judge said Morrison, in light of the evidence against him, could not show a “reasonable probability” that the tests would have affected his verdict, the standard set by California law.
Morrison then challenged the state law in federal court, arguing that the standard was unfairly strict and violated his right to obtain evidence that might clear him. He said defense requests for evidence under the law rarely succeed and that nearly all post-conviction DNA testing in California is conducted with the prosecutor’s consent.
But the Ninth U.S. Circuit Court of Appeals in San Francisco said it had examined eight such cases in California courts and found that judges had approved DNA testing in six of them. The court also said the state law was less demanding than an Alaska statute, upheld by the U.S. Supreme Court in 2005, that required a defendant to make a “sufficiently compelling showing of new evidence that establishes innocence” to obtain DNA tests.
California’s “reasonable probability” requirement does not violate “any recognized principle of fundamental fairness,” Judge Milan Smith said in the appeals court’s 3-0 ruling.
Morrison’s court-appointed lawyer, Joshua Lipshutz, said the barriers to DNA testing — the California law, and prosecutors’ frequent unwillingness to conduct tests on their own — don’t make sense.
“For the last 10 years, (Morrison) has been trying to get access to the evidence so he can have it tested for DNA,” Lipshutz said. He said the judicial proceedings have consumed far more time and money than DNA tests would have required.
Prosecutors “can have a great case linking someone to a crime,” Lipshutz said, but “against the weight of DNA evidence, it can look very different.” He said no decision has been made on a further appeal.
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