The Colorado Supreme Court decided on Tuesday, by 4-2, that a defendant failed to allege how uninvestigated, inaccessible DNA evidence would have shown he was wrongly convicted.

When Jamale D. Townsell filed a petition from prison seeking postconviction relief, he argued his trial lawyer was constitutionally ineffective for failing to properly investigate DNA evidence that would have called his culpability for a 2013 bank robbery into question.

The state’s Court of Appeals rejected his petition, reasoning Townsell had not shown how the evidence would have changed the outcome of his criminal case, or if a DNA expert was “available and willing to testify.”

In the Feb. 17 decision, all members of the Supreme Court agreed that any defendant in Townsell’s shoes would need to explain why his lawyer’s deficient performance would have likely changed the result of his proceeding. However, the justices disputed whether Townsell’s petition met that threshold.

“Although Townsell didn’t need to use any magic words, he needed to provide some explanation of how further investigation would have excluded him or how it would have overcome the substantial evidence introduced at trial against him,” wrote Justice William W. Hood III for the majority. “Townsell only asserted that further DNA testing would prove his exclusion but never the inclusion of another suspect.”

Justice Richard L. Gabriel, writing for himself and Chief Justice Monica M. Márquez, saw otherwise. He noted the judicial form used by self-represented defendants does not direct them to describe how their case was harmed. Nonetheless, Gabriel believed Townsell adequately explained how his case would have been different with better legal representation.

“Indeed, I cannot discern what more Townsell could have alleged without actually conducting the neglected DNA testing and asserting the results,” he wrote. “In my view, the majority’s ruling imposes an impossible burden on criminal defendants who are seeking postconviction relief.”

Hollis Whitson, who represented Townsell at the Supreme Court, said the majority’s decision reinforces a “two-tiered system” for defendants alleging problems with their convictions.

“A prisoner with more education or who has money to get help writing their first motion will likely be referred to a public defender who will assess their claims to see if they have arguable merit,” she said. “But people with less education, intellectual or mental disabilities, and no money aren’t likely to get even a referral.”

In contrast to direct appeals of criminal convictions that assert errors before trial, during trial, or at sentencing, defendants can also seek postconviction relief directly from the trial courts. That pathway, however, is only available for specific reasons, like ineffective assistance of counsel or newly discovered evidence — assertions generally requiring some investigation.

When a self-represented defendant files a petition, the Supreme Court has previously explained that trial judges must deny the request outright if the defendant is not entitled to relief. But if there is at least one claim with “arguable merit,” the judge must forward the petition to the public defender’s office so that an attorney can investigate and potentially refine the defendant’s assertions. After all of that happens, there is an opportunity for the defendant to receive a hearing.

An Arapahoe County jury convicted Townsell of entering a bank while wearing a mask, demanding money at gunpoint, and fleeing with $1,100 in cash in under 30 seconds. He is serving 32 years in prison. 

After the Court of Appeals upheld his convictions, Townsell filed a petition on his own arguing his defense lawyer failed to diligently investigate the possibility that DNA evidence would exonerate Townsell and point to an alternate suspect.

A three-judge panel for the Court of Appeals sided against Townsell by 2-1. The majority concluded a trial judge was not obligated to appoint counsel to represent Townsell because even if he had credibly alleged his original lawyer was ineffective, he failed to show the lack of DNA investigation harmed him.

Judge Timothy J. Schutz disagreed with the majority’s conclusion that Townsell neglected to explain how his attorney’s actions compromised his defense. Schutz further argued it is unreasonable to expect an incarcerated defendant to essentially perform the DNA investigation their trial lawyer allegedly failed to do.

“Townsell is, by all appearances, indigent, and he is in prison,” Schutz wrote. “The net effect of such reasoning is to deprive a defendant of an evidentiary hearing because of the failure to present the evidence that he claims trial counsel failed to procure in the first instance.”

Ultimately, the Supreme Court concluded Townsell did not go far enough by alleging a lawyer who properly investigated the prosecution’s DNA evidence “would have discovered substantial evidence of defendant’s exclusion.”

“Townsell needed to provide some basis, which if true, would explain how further investigation would have excluded him from the robbery given the strength of the evidence used to convict him,” wrote Hood. “His motion focused on the nature of defense counsel’s mistake but failed to include the potential prejudice the mistake caused.”

Gabriel, in dissent, wrote that the majority was effectively creating a requirement for self-represented defendants to show how DNA testing would exclude them and include a different suspect, without access to the evidence from prison.

“Here, the majority not only holds Townsell to the standard of learned counsel but also appears to have imposed on him,” wrote Gabriel, “a burden that even lawyers would likely find insurmountable.”

The case is Townsell v. People.