In the Matter of the Personal Restraint of ROBERT EDWARD JAMES, Petitioner.
James timely filed a personal restraint petition with
supporting documents. The acting chief judge of Division Two
of the Court of Appeals dismissed the petition as frivolous,
and this court's commissioner denied James's motion
for discretionary review. Based on the evidence included in
James's pleadings and the State's subsequent
statements, we grant James's motion to modify the
commissioner's ruling, grant discretionary review, and
remand to the Court of Appeals for further consideration.
convicted James of second degree rape. At trial, the State
presented evidence that a swab from S.C.'s neck contained
a mixed DNA (deoxyribonucleic acid) profile consistent with
James and S.C. All of the male DNA located on S.C. matched
James. The anal swab obtained from S.C. contained P3O, a
protein commonly found in semen, but no DNA was recovered
from the swab. James's defense was general denial based
on the theory that while he engaged in consensual
nonintercourse sexual activity with S.C, she was raped by
someone else after he left. In the defense trial brief,
defense counsel accurately stated that James's DNA was
found on both sides of S.C.'s neck, but in a possible
reference to the P3O found in the anal swab, counsel
erroneously added that an "unidentified male's
DNA" was found elsewhere on her body.
State's DNA expert testified on direct examination that
the anal swabs were tested for P3O, a protein used to
indicate the presence of semen. The expert further explained
that the P3O test cannot identify the donor of the semen. The
P3O test results were positive for the presence of semen, but
the anal swabs contained no male DNA. Yet, after this
explanation, James's defense counsel asked if the expert
was able to retrieve DNA from the anal swab, and why she was
unable to do so. When the expert again explained that a
presumptive test for semen does not always yield DNA, defense
counsel responded by incorrectly implying that the expert had
concluded there was more than one male DNA profile on the
[DEFENSE COUNSEL:] Okay, now, you found another deduced male
profile from the right neck sample?
[EXPERT:] The mixture is consistent with [the victim] and Mr.
James, with the assumption that [the victim] is present on
her own neck swab. The types of the STRs [(short tandem
repeats)] that are present do not belong to her and can be
subtracted out into a deduced male profile.
Report of Proceedings (Mar. 27, 2013) at 83. Then, in
response, defense counsel again incorrectly indicated that
there was more than one male DNA profile on victim:
[DEFENSE COUNSEL:] Okay, and that would be something other
than the profile of Mr. James?
[EXPERT:] No, in fact, those types do match Mr. James....
Id. at 84.
jury found him guilty. As noted above, James, acting pro se,
timely filed a personal restraint petition in the Court of
Appeals on October 20, 2015, asserting several grounds for
relief. James was permitted to file an overlength brief with
several documents attached, including his personal
declaration, a Washington State Patrol crime laboratory DNA
report, and letters he wrote to defense counsel and the
prosecutor that included repeated requests for a copy of an
allegedly favorable plea offer.
acting chief judge ultimately dismissed the personal
restraint petition as frivolous, explaining his ruling as to
each claim. James timely moved for this court's
discretionary review. In denying review, the commissioner
indicated that James failed to provide adequate evidence to
support the claim that counsel was ineffective for failing to
properly investigate and understand the DNA evidence. James
moved to modify the commissioner's ruling on various
grounds, and the court directed the State to respond to the
motion. For reasons ...