Michael A. JONES, Appellant,
v.
UNITED STATES, Appellee.
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 courts 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
appellants trial. Appearing as an expert witness, the FBI
agent who performed the comparison testified that appellants
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 appellants 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 appellants 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 governments 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
appellants 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, appellants case was taken up by law
students participating in the Innocence Project at Catholic
Universitys 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 governments proffer that the
hair evidence had been lost, and it did not consider
appellants 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 courts 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
stores 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 robbers 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 robbers 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 robbers gun, and pressing him
to explain how Michael had opened the door to the secured
area.[10] The officer who responded to
Woldeabs 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 FBIs
possession.
FBI
Special Agent Robert Fram performed that comparison, and he
was the governments final witness at appellants trial. The
court found Agent Fram qualified to testify as an expert in
hair and fiber analysis. Frams 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 cant 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 ...