Jones v. United States

          Argued February 28, 2017

          Appeal from the Superior Court of the District of Columbia FEL-3048-96, Hon. A. Franklin Burgess, Jr., Trial Judge; Hon. Patricia A. Broderick, Motions Judge

          Daniel Gonen, Public Defender Service, with whom Samia Fam and Jonathan W. Anderson, Public Defender Service, were on the brief, for appellant.

          Valinda Jones, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth Trosman, Suzanne G. Curt, Timothy Lucas, and Nancy Boggs Jackson, Assistant United States Attorneys, were on the brief, for appellee.

          Before Blackburne-Rigsby, ^[1] Chief Judge, and Glickman and Thompson, Associate Judges.

          Glickman, Associate Judge

         Appellant Michael A. Jones was tried in Superior Court in October 1996 and convicted of armed robbery and other offenses. The present appeal is from the court's denial of his motions to vacate his convictions pursuant to D.C. Code § 23-110 (Repl. 2012) and for post-conviction DNA testing pursuant to the Innocence Protection Act (IPA), D.C. Code § 22-4133 (Repl. 2012).

         The motions relate, in different ways, to microscopic hair comparison evidence introduced by the government at appellant's trial. Appearing as an expert witness, the FBI agent who performed the comparison testified that appellant's hair matched hair found in a hat left at the scene of the crimes. This expert testimony bolstered the identification of appellant as the perpetrator, which was the central issue in dispute at trial.

         In the years since appellant's trial, the reliability of microscopic hair comparisons has been undermined, a development accelerated by numerous cases in which post-conviction DNA testing disproved the matches to which hair examiners had testified. In a 2009 report, the National Research Council of the National Academy of Sciences decried the methodological deficiencies of hair comparison identifications and concluded that there was "no scientific support for the use of hair comparison for individualization in the absence of nuclear DNA."^[2]

         The Department of Justice eventually undertook a review of the thousands of cases predating the use of DNA testing in which the FBI had provided hair-comparison analysis. The Department completed its review of appellant's case in December 2014 and informed the parties that "a report or testimony regarding microscopic hair comparison analysis containing erroneous statements was used in this case." In his § 23-110 motion, appellant claimed that his due process rights were violated at his trial by the government's presentation of this false evidence. The court denied that claim in the proceedings below based on its determination that the false evidence did not have a material effect on the outcome of appellant's trial. Appellant now challenges that ruling. As materiality is the dispositive issue in our evaluation of the ruling, we must undertake in this opinion an in-depth review of the evidence and argument at trial.

         The IPA motion presents other questions. Some years before the Justice Department commenced its review, appellant's case was taken up by law students participating in the Innocence Project at Catholic University's Columbus School of Law. In September 2007 and again in March 2008, the students asked the Metropolitan Police Department (MPD) to find and make available the hair examined by the FBI and other physical evidence in the case so that the Innocence Project could subject it to DNA testing. The MPD never produced this evidence and eventually reported that it had been destroyed. In the proceedings on his IPA motion, appellant sought to have the hair evidence located and produced for DNA testing, or to have sanctions imposed on the government for its failure to preserve the evidence. The court denied the IPA motion without a hearing based on its acceptance of the government's proffer that the hair evidence had been lost, and it did not consider appellant's request for sanctions. Appellant contends the court erred in this ruling and asks us to remand for an evidentiary hearing on the issues presented by his IPA motion.

         We conclude that appellant is entitled to vacatur of his convictions pursuant to § 23-110 because his due process rights were violated at trial. We affirm the court's IPA ruling to the extent of the issues the court reached and decided, as we explain below.

         I. Factual Background

         A. The Trial

         The charges against appellant arose from a robbery on the night of March 20, 1996, at a convenience store located at 200 Rhode Island Avenue, N.W. Tsehay Woldeab, one of the proprietors, and Gashaye Zinabu, a recently hired stock clerk, were alone in the store when the robber entered it shortly after 8:00 p.m.^[3] The man was carrying a handgun and wearing two black ski hat-masks that covered his entire face except for his eyes. He locked the front door behind him and walked directly to the secure interior room in which the store's cash register was located. Although the only entrance to this room was through a locked door, the intruder apparently had a key and opened the door without difficulty.^[4] He then went into the room and removed money from the cash register and also from a drawer containing lottery ticket proceeds and other cash.^[5]

         Next, the robber motioned with his gun for Woldeab and Zinabu to walk to the back of the store and for Zinabu to go into the employee bathroom located there. The robber shut the bathroom door behind him. Zinabu testified that he could look out through a horizontal "crack" at the top of the door, though "[i]t was hard [to see]."

         The robber had other plans for Woldeab. After pointing his gun at her and pushing her over to an area where some boxes were stacked, he assaulted her by trying to forcibly remove her sweater. Woldeab resisted and a struggle ensued, during which the robber managed to tear her bra.^[6] As the fight continued, the robber put his gun down on a box. Woldeab grabbed it and called out to Zinabu for help, saying she had gotten hold of the weapon. Zinabu did not come to her aid; he testified that he stayed in the bathroom because he was still in shock and too afraid to come out. The robber wrested the gun away from Woldeab and struck her hard on the back of her head with it, opening up a painful wound that bled profusely.^[7] The robber then got up and went to the front of the store.

         At some point during the fighting, one of the robber's masks apparently became dislodged. Zinabu and Woldeab each testified that, at different times, they glimpsed his face and recognized appellant, a regular customer of the store whom they knew as "Mike" or "Michael."^[8] Zinabu said this occurred when he peered through the crack in the bathroom door while Woldeab was still grappling with her assailant. Woldeab, however, testified that she did not see the robber's face during the struggle. She said she first saw it only after he had gone back to the front of the store, and that she then said to him, "Michael, Michael, is that you, why you did this to me?"^[9] The robber left the store without answering her.

         Immediately after the robber left, Woldeab called 911 for help; the tape of the call was played at trial. In her testimony, Woldeab acknowledged being "very shocked and panicked" and "very emotional" (something the recording of the call also indicated), as well as tired, hurting, and bleeding from her head wound. While she was on the phone with the police, Woldeab simultaneously confronted Zinabu, telling him repeatedly that he should have come to her aid when she called him after grabbing the robber's gun, and pressing him to explain how Michael had opened the door to the secured area.^[10] The officer who responded to Woldeab's call found her still "very upset" and bleeding from her head wound. She told the officer that the robber was someone she knew named "Michael." Zinabu also spoke to the police on the night of the robbery, but he did not tell them anything about the identity of the robber at that time.

         Woldeab did not go back to the store for three days, during which it was closed to customers. When she returned, she found a nondescript knit black hat in the back of the store where she had fought with the robber.^[11] Woldeab recognized this hat as one she had seen appellant wearing that winter. She called the police, who took the hat and turned it over to the FBI for hair and fiber examination. A week later, Woldeab testified, appellant returned to the store at a time when she was not present.^[12] There was no testimony elucidating what transpired on that occasion, nor any evidence explaining why appellant - if he actually was the robber - would have showed himself at the store knowing Woldeab had recognized him during the robbery (when she addressed him as "Michael").^[13]

         Appellant was arrested three weeks after the robbery, and a search warrant was executed at his home at that time. No incriminating evidence - no gun, no key to the cash register room, no mask or other clothing - was discovered in the search. The police obtained a hair sample from appellant to compare to any hairs found in the hat in the FBI's possession.

         FBI Special Agent Robert Fram performed that comparison, and he was the government's final witness at appellant's trial. The court found Agent Fram qualified to testify as an expert in hair and fiber analysis. Fram's testimony extended to sixty-three pages of trial transcript. He began by explaining in detail what he referred to as "the science" of hair comparison based on the different microscopic characteristics of hair, which he described and illustrated for the jury with enlarged photographs. Fram testified that only when two hairs are "the same microscopically," meaning "all those characteristics [are found] to be the same throughout the length of the hair, distributed the same way," does he conclude that a hair in a known sample is "consistent with" a hair of unknown origin. Fram stated that while a hair comparison is "not like a fingerprint" and "not a basis for absolute personal identification," it is "very rare to find two people whose hairs I can't distinguish between." This is so rare, Fram said, that in the two to three thousand cases he personally had worked on, he "never had" two hairs from different people that were so close he could not distinguish them. In fact, Fram testified, on only two occasions in his seven-year career had anyone in the FBI Laboratory Hair and Fiber Unit come upon hairs from different people that could not be distinguished.

         Turning to this case, Agent Fram testified that he had microscopically compared hairs removed from the hat found in the store to known samples obtained from appellant. He showed the jury enlarged photographs of those hairs and pointed out that appellant's sample displayed features that were "unusual" and seldom seen. According to Fram, the hairs removed from the hat "exhibit the same microscopic characteristics as hairs from the known sample from the defendant," and Fram's "professional opinion" was that the hat hairs were "consistent with" appellant's. On cross-examination, Fram acknowledged again that hair comparison evidence "cannot be conclusively identifying," but he then reiterated that, "in my experience, it's rare to find two people whose hairs I can't distinguish between." Defense counsel was unable, in cross-examining Fram, to make a meaningful dent in his testimony.

         In his initial closing argument, the prosecutor emphasized the reliability of Agent Fram's "professional opinion," based on "the science," that there is a "match" between appellant's hair and the hairs removed from the hat found at the scene:

[T]hink about somebody like Mr. Fra[m] from the FBI who spends all day locked to a microscope looking at hair after hair . . ., fiber after fiber. It's his whole job. And he was able to bring these blowup pictures to you to show, you know these four, they match these other four. These are [a match], in my professional opinion from looking at hairs day in and day out, and only on a couple of occasions . . . not being able to dispositively say after 7 years only twice have I been fooled to say, you know, I can't really tell. All the other times he can tell you. . . . What's important is that he's trained to examine these things and the science is not fingerprints, this is not DNA, but, he says, this is as much as we can say about the science is that it's a match.

(Emphases added.) Defense counsel could not refute Fram's conclusions, though he argued that the eyewitnesses' identifications were dubious given the circumstances in which they were made and other factors, and that Fram's hair comparison was not "conclusive" proof of identity. In rebuttal, the prosecutor again emphasized the virtual certainty of Fram's opinion and how "remarkabl[y]" it bolstered the eyewitnesses:

If it's true that that . . . compelling eyewitness identification was wrong, then think how remarkable it must be for that FBI Agent to look at a hair that looks just like his from that hat. Isn't that remarkable? If it's true that the eyewitness identification is wrong, then it must be true that that agent found a hair that looks just like his after all that experience of his, and all the hairs that he's looked at where he's only seen that happen on two occasions out of 7 years, day to day hair after hair after hair, think how remarkable that must be alone. If it's true, what else must be true?

         B. § 23-110 Motion to Vacate Appellant's Convictions

         At the time of appellant's trial in 1996, the use of microscopic hair comparisons to identify suspected individuals as the perpetrators of crimes was generally accepted as a valid and reliable forensic technique in criminal prosecutions.^[14] This began to change when post-conviction DNA testing became widely available and led to prominent exonerations of defendants who had been convicted with hair comparison evidence. By 2009, the watershed NRC Report on the state of forensic science in the United States concluded that microscopic hair comparison analysis was useful for some purposes but deficient as a means of making positive identifications. The Report found there to be "no uniform standards on the number of features on which hairs must agree before an examiner may declare a 'match, '" and "[n]o scientifically accepted statistics . . . about the frequency with which particular characteristics of hair are distributed in the population."^[15] The "lack of a statistical foundation" undermined the kinds of "probabilistic claims" made by microscopic hair examiners "based on their experience, as occurred in some DNA exoneration cases in which microscopic hair analysis evidence had been introduced during trial."^[16] Noting that courts were beginning to "recognize[] that testimony linking microscopic hair analysis with particular defendants is highly unreliable, "^[17] the Report concluded:

In cases where there seems to be a morphological match (based on microscopic examination), it must be confirmed using mtDNA analysis; microscopic studies alone are of limited probative value. The committee found no scientific support for the use of hair comparisons for individualization in the absence of nuclear DNA.^[18]

         In the wake of the DNA exonerations and the NRC Report, the Department of Justice undertook a review of all cases predating the routine use of mitochondrial DNA testing in which FBI examiners provided hair comparison analysis. In a letter dated December 23, 2014, the Department advised the United States Attorney for the District of Columbia and appellant that its review had "determined that a report or testimony regarding microscopic hair comparison analysis containing erroneous statements was used in this case." More specifically, the letter stated that Agent Fram's testimony at appellant's trial "included statements that exceeded the limits of science in one or more of the following ways and were, therefore, invalid:"

(1) the examiner stated or implied that the evidentiary hair could be associated with a specific individual to the exclusion of all others . . .; (2) the examiner assigned to the positive association a statistical weight or probability or provided a likelihood that the questioned hair originated from a particular source, or an opinion as to the likelihood or rareness of the positive association that could lead the jury to believe that valid statistical weight can be assigned to a microscopic hair association . . .; or (3) the examiner cite[d] the number of cases or hair analyses worked in the laboratory and the number of samples from different individuals that could not be distinguished from one another as a predictive value to bolster the conclusion that a hair belongs to a specific individual . . . .^[19]

         A year before he received this notification, appellant already had moved for a new trial on the ground that the government's presentation of false or misleading hair comparison testimony had violated his right to due process. This motion was still pending when the Department of Justice notified appellant of the results of its review. In February 2015, he filed a supplement to his motion apprising the court of the new information. In response to the new trial motion, the government ultimately did not deny that it should have known Fram's testimony was false or misleading, and it waived any claim that the motion was procedurally barred. Nonetheless, the government opposed the motion. It rested its opposition on a single contention: that appellant could not demonstrate any reasonable possibility that he had been prejudiced by Agent Fram's testimony because, even without that testimony, the other identification evidence at trial amounted to overwhelming proof of his guilt.

         The court denied appellant's new trial motion without an evidentiary hearing. It concluded "there exists no reasonable probability, in the context of the entire record, that the inclusion of the expert testimony caused the jury to find the Defendant guilty of the crimes charged beyond a reasonable doubt where otherwise it would not have done so." The court stated that it based this conclusion on

the strength of the eyewitness testimony; the fact that the government did not mention the hair and fiber analysis test in its opening statement and did not rely heavily on this evidence in its closing argument; and the fact that defense counsel extensively cross-examined the expert witness regarding the validity and reliability of the hair and fiber analysis test and defense counsel argued in its closing statement that the hair and fiber analysis were not absolute, which the expert admitted.

         C. IPA Motion for Post-Conviction DNA Testing

         On September 26, 2007, law students working with the Catholic University of America Innocence Project on appellant's behalf wrote to Lieutenant Derek Gray, who was then in charge of the Evidence Control Branch (ECB) of the MPD, inquiring about the "location and status" of the physical evidence in appellant's case in order to make arrangements to inspect the items. The letter identified in particular "three pieces of evidence - a ski mask [sic], containing human hair, and a brassiere."^[20] It noted that the hair had not been subjected to DNA testing, but that hair comparison analysis had been conducted. By March 31, 2008, none of this evidence had yet been located, and the students sent another letter requesting Lieutenant Gray to instruct cadets who were performing an audit of the evidence warehouse to "keep an eye out for evidence pertaining to" appellant and certain other individuals.

         On December 20, 2013, appellant moved pursuant to the IPA for post-conviction DNA testing of the "ski mask" and the hairs that had been found in it.^[21]His motion stated that the law students acting on his behalf had been told by an MPD sergeant that physical evidence relating to his case had been destroyed on May 5, 2008. Nonetheless, the motion suggested that a property report relating to appellant's case contained a bar code number for a "black skull cap" that might reflect the mask's presence and help determine its location in the then-new MPD evidence warehouse (to which property from the old warehouse had been transferred).^[22] The motion asserted that "[i]t is the government's burden to produce the evidence or to prove why it cannot be produced." The only relief appellant requested, however, was a court order for DNA testing of the hairs and mask; the motion did not seek sanctions for the destruction of evidence or an evidentiary hearing.

         In its May 2, 2014, opposition to appellant's motion, the government reported that members of the Evidence Control Division (ECD; another name, apparently, for the ECB) had conducted an "exhaustive search" for the hat and hairs and were unable to find them; that property records indicated that "[o]n or about May 5, 2008, an unknown member of MPD's ECD destroyed the evidence in this case"; that the responsible Assistant United States Attorneys (AUSAs) who had handled appellant's case and Lieutenant Derek Gray had not authorized this destruction; and that based on the property records and the search, Lieutenant Debra Manigault, the current Chief Property Clerk (and Lieutenant Gray's successor) "has opined" that the evidence is no longer in the MPD's actual or constructive possession.

         In support of these representations, the government submitted documentation relating to the handling and maintenance of the evidence together with affidavits of the AUSAs and Lieutenants Manigault and Gray. As the documentation showed, separate bar codes were assigned in the MPD's computerized evidence control system (called FileOnQ) to the hat and to a pair of pill boxes containing the hairs examined by Agent Fram. The FileOnQ database entries for each bar code were included with the government's response. They describe the items as "blk skull hat" and "2 small box[es]." The entries cryptically state that the boxes were "destroyed" as of May 5, 2008, and that the hat, according to "old data imported" into the database on May 13, 2009, was in the "property room." The available documentation disclosed no further information as to the whereabouts or the fate of the evidence. Physical searches were conducted for them in response to appellant's motion for DNA testing.

         In pertinent part, Lieutenant Manigault's affidavit states that a member of her staff recalled that a search for the same evidence already had been conducted one or two years earlier at the behest of the Catholic University Innocence Project.^[23] "Nevertheless," Lieutenant Manigault stated, her staff

re-examined the existing hand-written records, computer data entries, evidence bins and shelves previously assigned to this evidence, as well as the mezzanine boxes referenced in Lieutenant Gray's affidavit [where relevant handwritten records, if any remained, would have been stored] and found no evidence associated with this case and little evidence helpful in clarifying its disposition. The only evidence which was helpful . . . was a few data entries in our File-on-Q computer system, which ...