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United States v. Butler

United States District Court, District of Columbia

August 16, 2017

UNITED STATES OF AMERICA
v.
DENNIS T. BUTLER, Petitioner/Defendant

          MEMORANDUM OPINION

          Beryl A. Howell, Chief Judge.

         Forty seven years ago, on the evening of September 29, 1970, Jesse Mears was brutally murdered. His body was found lying on the bathroom floor of a vacant apartment in the building in which he worked, with his hands bound behind his back, a wet stocking stuffed in his mouth, and a telephone wire wrapped around his neck. Paint was found on his clothing and on a bottle of water found next to him, and his keys and wallet were missing. He appeared to have struggled before he died. By the next day, the police had arrested the defendant, Dennis Butler, whom testimony placed near the building the day of the murder accompanied by the victim. Later that day, two of the defendant's associates, to whom he sometimes supplied heroin, provided generally consistent statements to the police that, shortly after the murder, the defendant had confessed he had done it. At trial, the prosecution presented an array of evidence linking the defendant to the crime, including testimony from witnesses who saw the defendant and victim on the day of the murder and from the defendant's two associates recounting the details of the confession the defendant made to them. Expert testimony was also presented by two Federal Bureau of Investigations (“FBI”) agents that paint residue on the victim, items at the crime scene and on the defendant's clothing appeared to be from the same source, as well as that three hairs found on the victim's clothing “matched” characteristics of hairs from the defendant. The jury found the defendant guilty of felony murder, murder in the first degree, and robbery, for which convictions the defendant was sentenced, in 1972, to two terms of 20 years to life imprisonment on the first-degree murder and felony murder counts, and 5 to 15 years in prison for the robbery count, to be served concurrently.

         Following review of the defendant's case by the Department of Justice (“DOJ”) and the FBI, the government conceded, in September 2015, that the hair-related expert testimony presented at the defendant's trial was false and misleading and that the government knew or should have known this at the time of the trial. The defendant then filed, in September 2016, his first habeas petition, pursuant to 28 U.S.C. § 2255, forty-four years after he was sentenced to life in prison, challenging his conviction on the ground that the government's knowing use of the false hair testimony materially affected the outcome of his trial, in violation of the Fifth Amendment and Napue v. Illinois, 360 U.S. 264 (1959). Pet'r's Mot. Vacate Under 28 U.S.C. § 2255 (“Pet'r's Mot.”), ECF No. 2. For the reasons explained below, the defendant's motion is denied.

         I. BACKGROUND

         The government reports that its files, “which presumably included reports, grand jury transcripts, witness statements, photographs, and trial exhibits” as well as “all physical evidence recovered in this case . . . no longer exist[].” Gov't's Opp'n Pet'r's Mot. (“Gov't's Opp'n”) at 3.[1] Consequently, the Court relies on the trial transcript, which is available in paper format. The evidence presented at the defendant's criminal trial and pertinent procedural history are reviewed below, followed by an overview of issues with forensic hair matching evidence.

         A. THE TRIAL

         The prosecution's theory of the case was outlined in its opening statement: on September 29, 1970, the victim caught the defendant “selling narcotics to two boys” in Apartment 9 at 1312 East Capitol Street NE, a building managed by the victim. Trial Tr. 7/7/71 at 16-17. After the boys fled, the defendant “thereupon commenced to tie up [the victim]” and stuffed “a wad of what appeared to be toilet paper” and “a woman's nylon stocking” in the victim's mouth. Id. at 15-16. While trying to strangle the victim, the belt broke and the defendant continued strangling the victim with a telephone cord he found in the apartment. Id. at 14-16. The defendant then filled a cola bottle with water and “shoved [the] water down the throat of the victim . . . to make sure he was dead.” Id. at 17. The defendant took the victim's ring of keys to facilitate his later return to take some of the victim's belongings. Id. at 18.

         In summarizing the evidence that would support this narrative, the prosecutor referenced the following anticipated evidence: (1) the testimony of the defendant's friends, Dennis Butler and Phyllis “Gail” Robinson, who were dating at the time and to whom the defendant had confessed a detailed account of the commission of the murder, id. at 16-17; (2) witnesses who observed the defendant both alone and with the victim on and near the premises of the building where the murder occurred “at various times on that same afternoon in question, ” id.; (3) the finding of the victim's keys “a period of days” after the murder on a roof “two or three doors adjacent to where the defendant resided at the time, ” id. at 18; and (4) “various scientific evidence” linking the defendant to the scene of the crime, id. The government did not mention in its opening that this scientific evidence would include forensic hair analysis.

         1. The Scene of the Crime

         The only issue at trial was the identity of the person who killed the victim. Trial Tr. 7/13/71 at 481 (“The issue in this case is not what happened to Mr. Mears, but who did it.”). The manner of the victim's death was not disputed, id. at 480 (“Defense . . . will not contest the fact that Mr. Mears was killed or that he was killed in the way the Government has described it.”), and as a result, the defense “made no attempt to cross-examine” any witnesses on issues of how the victim died or the condition of the crime scene, id. The uncontested circumstances and manner of the victim's death, which were established by the testimony of a number of law enforcement personnel, are as follows:

         On the evening of September 29, 1970, Jesse Mears was found dead in the bathroom of Apartment 9 on the third floor at 1312 East Capitol Street NE. Trial Tr. 7/8/71 at 31-33 (testimony of Dr. William Brownlee, Deputy Medical Examiner); Trial Tr. 7/9/71 at 289-90 (testimony of Officer John Lightford). After someone called 911, the first police arrived at the building around 4:52 P.M., and were joined by the homicide squad “[a]bout 5:30.” Id. The police found the door of the apartment unlocked as it did not have a complete door handle on it, and it “appeared as though someone” had been “repairing the lock.” Trial Tr. 7/12/71 at 436 (testimony of Detective Robert Murray).

         The victim was found in the bathroom of the apartment with “his hands . . . tied behind his back, ” with “a garrote around his neck, ” mouth, and face, and with “a wad of toilet paper tissue paper and a stocking” inside his mouth. Trial Tr. 7/8/71 at 32-33 (testimony of Dr. Brownlee). Blood was coming “from the [victim]'s nose and about the mouth, ” and the area around the victim's left eye “was bruised as if it had been struck some blow.” Trial Tr. 7/12/71 at 441 (testimony of Detective Murray). The garrote was in fact a telephone cord that appeared to come from a telephone found inside the vacant apartment. Id. at 443-44. The toilet paper and stocking “were wet” and “the garrote about the neck and face was of sufficient tightness . . . to create grooves within the skin.” Trial Tr. 7/8/71 at 34 (testimony of Dr. Brownlee). The contents of his mouth were soggy, “not dripping, ” and subsequent testing revealed that the wetness had not been caused by saliva. Id. at 36, 51.

         The police found “a Pepsi cola bottle that was lying near [the victim's] head” with water in it, and “water staining the floor underneath his head and [his] left shoulder.” Id. at 37. Paint was found on the victim's clothing and on the bottle, which paint appeared to come from the same source. Trial Tr. 7/13/71 at 518 (testimony of Special Agent David Nichols). The victim was not found wearing a belt, but a belt that may have fit him was found in two pieces in the kitchen of the apartment. Trial Tr. 7/13/71 at 524 (testimony of Special Agent Myron Scholberg). Of sixteen “partial latent” fingerprints found at the crime scene, none of them matched the defendant or the victim. Trial Tr. 7/9/71 at 204 (testimony of Officer Donald Cherry).

         The time of the victim's murder was placed as likely between 2 P.M. and 3 P.M. on September 29, 1970, Trial Tr. 7/8/71 at 37-38, 60 (testimony of Dr. Brownlee), and his cause of death was “asphyxiation second to garroting, ” or “strangulation, ” id. at 38.

         2. The Day of the Murder

         Seven witnesses testified that they saw the victim, the defendant, or both, on the day of the murder. James Hill, who had known the defendant for “about three years, ” and Phyllis “Gail” Robinson, who had been dating Hill, testified that on the day the victim's body was found the defendant had visited them and confessed to the murder, including details of the crime. Lawrence Robertson and John Taylor, who were performing maintenance at the building where the murder occurred on the day of the murder, saw the victim at various times during the morning and afternoon at the building. Two relatives of the defendant's girlfriend, Mary Dean, testified about when they saw the defendant the day of the murder: Wilson Dean, the girlfriend's brother, saw the defendant at various times throughout the day near the apartment building where the murder occurred, and Ellen Johnson (née Dean), the girlfriend's sister, saw the victim the day of the murder, both before and after his death.[2] Charles Barber, who lived nearby, testified that he saw both the victim and the defendant together on the day of the murder. The examinations of these seven witnesses are summarized below.

         i. James Hill

         On direct examination, Hill testified that on the day of the murder, he contacted the defendant by phone “[a]bout 3:00 or 3:30, ” and the defendant volunteered that he was leaving the apartment building of Ellen Johnson, his girlfriend's sister, where “[h]e had just killed . . . Ellen[]'s rent man.” Trial Tr. 7/8/71 at 66-67. The defendant said that “the old man caught him selling narcotics to two boys, ” so “[the defendant] tied the old man up, . . . put a stocking or something in his mouth, ” and began to choke him with a belt. Id. at 67. After the belt that he was using broke, “he started choking him with a telephone cord, ” and when the defendant was finished, “he poured some water down [the victim's] throat to make sure that he was dead.” Id. Hill further testified the defendant said that he killed the victim in “[t]he bathroom” of the “[u]pstairs apartment.” Id. at 73.

         The defendant came to Hill's house around 4:00 P.M. and told Hill “about the keys he had got” to the victim's apartment or car, and that “[h]e was going back up there later.” Id. at 68. Soon after, Hill went upstairs to his girlfriend Robinson's apartment, and called for the defendant and Robinson to come upstairs. Id. at 69. Once all three were upstairs, Hill told Robinson, with the defendant's permission, that the defendant “had just killed a man, ” after which the defendant “told Gail he was choking a man with a belt, and the belt broke, and he started choking him with a telephone cord.” Id. at 69-70. Neither the defendant nor Hill told Robinson any other details about the murder. Id. at 70.

         On cross examination, Hill admitted to his significant heroin use, including on the day of the murder, as well as the fact that the defendant was his heroin supplier. After first denying having a “specific reason” for calling the defendant the day of the murder, id. at 77-78, Hill, when pressed by defense counsel, admitted that he “was calling [the defendant] because of narcotics, ” to get heroin, id. at 79. Hill admitted that he had used “two caps” of heroin the day of the murder, supplied to him by the defendant after they met at Hill's house, id. at 108, and that, prior to the murder, he regularly used heroin, averaging “four caps per day, ” Trial Tr. 7/9/71 at 146. Hill also denied using drugs since the day of the murder, Trial Tr. 7/8/71 at 112-13, or using methadone for a number of months prior to trial, id. at 113, but then testified, when pressed, that he was in fact using methadone at the time of the trial and had been using methadone for some time, Trial Tr. 7/9/71 at 141-42. He further testified that Robinson used heroin as well and had snorted some the evening of the confession in front of the defendant and Hill. Id. at 93-95. In addition to these admitted inconsistencies in his testimony about his drug use, Hill's testimony was also inconsistent as to whether, on the day of the murder, he had called the defendant or the defendant had called him first after the murder. Id. at 147-49.

         The cross-examination of Hill illuminated additional details about the police investigation the day after the murder. Hill testified that the police “came to [his] house” the morning after the murder because, the police told Hill, the victim's keys were “supposed to be upstairs underneath [his] mattress.” Trial Tr. 7/9/71 at 160-61. The police unsuccessfully searched Hill's apartment for the keys and then took Hill, along with his girlfriend Robinson, and the defendant's girlfriend, Mary Dean, to “No. 1, ” the police station, where they were interviewed separately. Id. at 161-63. Hill was aware at the time that the defendant “had already been charged and locked up for th[e] homicide” and, at the station, “told [the police] what [the defendant] had told him.” Id. at 172-75. Hill could not remember if the police threatened “to lock [him] up if [he] didn't tell the truth” or if he had told the defense investigator the police had threatened to punish him if he did not tell the truth, id. at 173, but admitted to having spoken to the defense investigator “several months after” the murder, id. at 174-75. Hill denied that the police had threatened to prosecute him for homicide in connection with the murder. Id. at 174-75.[3]

         On re-direct, Hill confirmed that “the statement he made to the police was true and accurate to the best he could remember.” Id. at 185. Hill also denied any motive to lie or inculpate the defendant, including denying ever seeing the defendant and Hill's girlfriend Robinson behaving intimately with one another. Id. at 191-92. Hill told the police what he knew because he found out he “could get in trouble” for not being honest about what he knew as a witness to the confession. Id. at 187.

         ii. Phyllis “Gail” Robinson

         Hill's girlfriend, Phyllis “Gail” Robinson, testified on direct examination that on the day of the murder, September 29, 1970, she arrived at Hill's house at 4:30 P.M. and found the defendant and Hill injecting heroin into their arms. Id. at 235-36. Robinson was given some heroin as well “but [she] didn't take it right then.” Id. at 236. She did, however, admit to some use of heroin beginning in June 1970 before the murder, and claimed to have stopped four months later. Id. at 233-34. After receiving the defendant's permission, Hill told her that “Dennis just killed a man, ” id. at 236-37, and the defendant himself explained that “he was choking the man with a belt and the belt broke and then he started choking him with the telephone cord, ” id. at 238-39. Hill told her that the defendant killed the victim because he “caught [the defendant] selling narcotics in the bathroom to two boys.” Id. at 239. The defendant and Hill did not tell Robinson “anything else.” Id. at 239. Robinson denied any “animosity ill-will, or hatred” between the defendant and her or between Hill and the defendant. Id. at 243.

         Nevertheless, on cross-examination, Robinson admitted that she used drugs on the day of the murder, but stated that she used them “after [the defendant] left.” Id. at 249. She testified that she never received drugs from the defendant, only from Hill, and that she “only took drugs on weekends.” Id. at 248. In response to cross examination questions implying that Robinson would exchange sex with the defendant for drugs, Robinson made clear that she did not “know [the defendant] that good” and that she and the defendant were only friends. Id. at 245-47, 260- 62.

         Robinson admitted that she initially lied to the police twice, first telling the police she knew nothing about the murder and later “telling the police” she had learned about the murder from Hill only. Id. at 252-60. She explained that she had lied because she “was scared, ” and having “never been in trouble, ” she did not want to “have [any]thing to do with [the murder investigation].” Id. at 257-59, 262-63.

         On-redirect, Robinson testified that, after the police noted inconsistencies between her and Hill's statements, she told the police the “complete truth” that she had spoken to the defendant directly after the murder. Id. at 266-69.

         iii. Robertson, Taylor, and Barber

         Both Lawrence Robertson and John Taylor were at 1312 East Capitol Street NE “installing a water meter” on the day of the murder. Trial Tr. 7/9/71 at 272. Robertson saw the victim in the morning, when the victim came out of the building to check on what Robertson and Taylor were doing. Id. at 272-73. Later, around 1:30, Robertson saw the victim with “a middle-aged man, ” whom he “wouldn't be able to recognize” and whose physical characteristics he did not describe. Id. Robertson also testified that he did not “see anybody running out of the apartment that afternoon.” Id. at 276.

         Taylor first saw the victim in the morning at the same time as Robinson, saw him again “around lunch time, ” when he “came over to the truck and wanted to know the exact time, ” and again at “approximately 1:30 or 1:45, ” when he “and some other guy walk[ed] out to the street [to] look[] in a car.” Id. at 277-78. Taylor saw the victim a fourth time, “at around 2:30, ” when he saw the victim “standing in the hall talking to another fellow, ” whom Taylor “didn't get a good look at” and whom Taylor likely would not be able to recognize. Id. at 278, 283. Taylor finished work “somewhere around 3:20 or 3:25.” Id. at 282.

         Charles Barber testified briefly that on the day of the murder, he was walking home “up 13th to East Capitol” when he went “past 1312 East Capitol Street . . . around 12:30 or 1:00 o'clock.” Id. at 284-86. Near the building, he saw the defendant and “another man under the hood of [a] car.” Id. at 285. Barber identified the unnamed man as “the man who owned the place, ” noting that he was “old, ” “white, ” and “thin.” Id. at 284-86. He further testified that “it looked like they were working on the car” together. Id. at 287.

         iv. Ellen Johnson

         At the time of the murder, Ellen Johnson, the sister of the defendant's girlfriend, lived at 1312 East Capitol Street NE, the building where the victim's body was found. Trial Tr. 7/9/71 at 293. Ellen knew the victim as “her rent man.” Id. Ellen testified that she saw the victim in the morning, when he “knocked on [her] door, ” and again “when [she] got home” that day, after a man “knocked on [her] door and told [her] to come up to the apartment and see [the victim's] body.” Id. at 294-95. She went to the apartment and saw that the victim had “something white stuffed in his mouth and a cord around his neck and his hands were tied behind his back.” Id. at 295. Later that day, she spoke to Hill on the phone and told him that “someone just killed [the] rent man, ” id. at 297, but denied telling him “any details of what [she] saw” and did not “describe the body” to him, id. at 298.[4] At the end of the trial, Ellen was called back for brief rebuttal testimony and confirmed that she did not speak with anyone other than Hill and people at the crime scene before midnight that evening. Trial Tr. 7/14/71 at 685-86.

         v. Wilson Dean

         Wilson Dean, the brother of the defendant's girlfriend, worked for the victim “for about three weeks” prior to his murder. Trial Tr. 7/12/71 at 375-77. Wilson testified that three days before the murder, he had been painting the apartment in which the victim's body was later found, and that the defendant “came up” to the apartment that day as it was being painted. Id. at 382-83, 393. Wilson was painting the apartment “green” or “turquoise, ” and “left a paint pan, ” “a roller, ” and “a bucket of paint . . . in the sink.” Id. at 383-84. At this time, Wilson found a dog leash and collar, like the one used to bind the victim, and a woman's “white stocking” in the apartment, which he “did not take” with him. Id. at 386-89.

         On the day of the murder, Wilson testified that he saw the defendant “between two and three o'clock . . . coming up C street.” Id. at 377-79. Wilson did not “know where [the defendant] was coming from, ” id. at 380, but noted that Wilson's house, where the defendant often stayed with Wilson's sister, Mary Dean, was somewhere “around the corner” from 1312 East Capitol Street NE, where the murder occurred, id. at 378.[5] ...


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