United States v. Ausby, Criminal Action No. 72–67 (BAH)

• Court: U.S. District Court — District of Columbia
• Writing for the Court: BERYL A. HOWELL, Chief Judge
• Citation: 275 F.Supp.3d 7
• Parties: UNITED STATES of America v. John Milton AUSBY, Petitioner/Defendant
• Decision Date: 16 August 2017
• Docket Number: Criminal Action No. 72–67 (BAH)

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UNITED STATES of America
v.
John Milton AUSBY, Petitioner/Defendant

Criminal Action No. 72–67 (BAH)

United States District Court, District of Columbia.

Signed August 16, 2017

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Pamela Stever Satterfield, U.S. Attorneys Office for the District of Columbia, Washington, DC, for United States of America.

Adam G. Thompson, Public Defender Service for the District of Columbia, Washington, DC, for Petitioner/Defendant.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

On the evening of December 14, 1971, Deborah Noel was violently raped and murdered in her apartment in northwest Washington, D.C. Around 5 P.M. that day, Noel had left work early to prepare dinner for her boyfriend, but when he had arrived at her apartment close to an hour later, he received no response when he knocked on her door. After knocking again more forcefully, he heard Noel scream and then heard a gunshot. With the help of building staff, the door to the apartment was opened and inside, Noel's body was found lying on her bed next to an open window. Noel was unclothed from the waist down and had been shot point-blank in her temple. At the crime scene, the police found, among other things, labeled vials of scented oil, a single usable latent fingerprint of the defendant, the bullet that killed the victim, and hairs of unknown origin. Three days later, in New York City, the defendant John Milton Ausby was arrested in possession of a gun, which was loaded except for two spent cartridges with the same type of bullet used in the murder, and a small unlabeled vial of oil, which were similar to the oil vials found on the murder scene that had been sold to the defendant shortly before the murder.

At trial, the prosecution presented overwhelming evidence of the defendant's guilt. The oil vials and fingerprint were conclusively

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linked to the defendant, and the testimony of two expert witnesses established that the defendant's loaded gun fit the profile of the likely murder weapon. Three witnesses saw the defendant in the apartment building in the week preceding the murder, one of whom saw the defendant loitering outside the victim's apartment on two separate evenings. Another witness, who lived two doors down from the victim, had her apartment broken into, and she found that whoever had broken in had left a rag doused in scented oil. In addition to this evidence, a forensic examiner from the Federal Bureau of Investigations ("FBI") testified that, based on his scientific analysis, the hairs found at the crime scene were microscopically similar to or microscopically alike known hairs of the defendant. The defendant was convicted of felony murder for which he was sentenced to life imprisonment, and "carnal knowledge while armed," for which he was sentenced to 10 to 30 years to run concurrently with his life sentence.

In September 2015, following review of the defendant's case by the Department of Justice ("DOJ") and the FBI, the government informed the defendant that the expert hair testimony presented at his trial was false and misleading, and that the government knew or should have known this at the time of the trial. Based on this concession, in September 2016, the defendant filed 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, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959). Pet'r's Mot. Vacate under 28 U.S.C. § 2255 ("Pet'r's Mot."), ECF No. 1. 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. Following review of the evidence presented at the defendant's criminal trial and other relevant history of the case, the developments related to the use of comparative hair analysis in criminal trials is summarized.

A. THE TRIAL

The original indictment in this case not only charged the defendant with the burglary, rape, and murder of Deborah Noel, but also charged the defendant with the rape and murder of two other women, Sharan Tapp and Sherry Frahm. Gov't's Opp'n at 2, n.2; see also United States v. Ausby , 489 F.2d 1273 (D.C. Cir. 1974) (order affirming the defendant's conviction and noting that the accompanying memorandum was not published); United States v. Ausby , No. 72–2202, slip op. ("Ausby slip op.") at 2 (D.C. Cir. Jan. 30, 1974). The charges related to Tapp and Frahm were severed and the charges related to Noel's murder were tried first. Ausby slip op. at 2. As discussed more fully below, see infra Part I.B, the defendant was also ultimately convicted of the murder of both Tapp and Frahm but those convictions are not at issue in this case.

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1. The Prosecution's Opening Statement

The government's opening statement outlined the charges against the defendant and its theory of the case: on December 14, 1971, the victim arrived home from work "about 5:40 and went into her apartment, where she lived alone." Trial Tr. 8/21/72 at 137–38. The defendant was "already there" in the apartment and "seeing her alone attacked her." Id. at 138–39. She screamed and resisted, and was "knocked [ ] temporarily unconscious" by the defendant, after which he took her "into [her] bedroom" and "raped her." Id. at 139. At approximately 6:00 P.M., the victim's boyfriend arrived at her apartment and knocked on her door. Id. He received no response and knocked again, and then heard the victim scream followed by a gunshot. Id. That gunshot was the sound of the defendant "pull[ing out] a high velocity revolver, press[ing] it up behind [the victim's] left ear, and pull[ing] the trigger." Id. The victim's boyfriend ran downstairs to get help to enter the locked apartment, during which time the defendant "opened th[e] bedroom window," jumped "to the ground and then effectuated his escape." Id.

The government next summarized the evidence that it would use to support this narrative. One witness had seen the defendant in the building on December 9 and December 10, 1971, "some three days before the crime occurred in front of and near the deceased's apartment." Id. at 144. A fingerprint left in the victim's apartment would prove to be of the defendant. Id. at 142. The owner of the business who sold the defendant the "vial[s]" or "dram[s] of oil" would identify the defendant as the person to whom he had sold the vials a week before the murder. Id. at 141–42. Another expert would testify that certain hairs from the crime scene, under his analysis, were microscopically "identical" to the defendant's hair along "nineteen microscopic characteristics, ... no more no less." Id. at 142–43.

The prosecution also planned to present witnesses to testify that the defendant "was arrested three days" after the murder "[on] December the 17th," in New York City, and that when the defendant was arrested, he had a ".357 Magnum" on his person, with "four live rounds and two empty casings in the chamber. Id. at 140, 144. The prosecutor stressed that the evidence would show that, although the bullet "recovered from the body of the deceased was too mutilated for the ballistics expert to make a positive match," an expert would testify that the bullet had been fired from a gun with a barrel that had "five lands and grooves and a right twist," and would testify that the defendant's gun had "five lands and grooves and a right twist." Id. at 144.

Defense counsel made no opening statement. See id. at 136. ("[The defendant] do[es] not wish to make an opening statement").

2. The Government's Trial Evidence

The government presented twenty-three witnesses over the course of the four day trial, including three witnesses who were in the building at the time the murder occurred; police officers who responded to the crime scene after the discovery of the victim's body; a vendor who sold the defendant the vials of oil found at the crime scene; four witnesses who were in the building in the week leading up to the murder; a witness and two officers who encountered the defendant shortly before and during his arrest in New York City; and five forensic experts.

i. Witnesses the Day of the Murder

(a) Grace Pyles

Grace Pyles lived "two doors" from the victim's apartment. Id. at 145–47. Pyles

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testified that around 5:45 P.M. on the day of the murder, she "heard a blood-curdling scream," and ten minutes later, "heard a shot." Id. at 146–47. Pyles knew the time of day when this occurred because she had...