Jones v. United States

         Argued February 28, 2017

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          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.

          OPINION

         Glickman, Associate Judge:

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          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

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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

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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

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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 ...