United States v. Butler

• Decision Date: 14 April 2020
• Docket Number: No. 17-3080,17-3080
• Citation: 955 F.3d 1052
• Parties: UNITED STATES of America, Appellee v. Dennis T. BUTLER, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

955 F.3d 1052

UNITED STATES of America, Appellee

v.Dennis T. BUTLER, Appellant

No. 17-3080

United States Court of Appeals, District of Columbia Circuit.

Argued November 7, 2018

Decided April 14, 2020

Jenna M. Cobb argued the cause for appellant. With her on the briefs were Jonathan W. Anderson and Adam G. Thompson.

Patricia A. Heffernan, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Jessie K. Liu, U.S. Attorney, and Elizabeth Trosman, John P. Mannarino, and Pamela S. Satterfield, Assistant U.S. Attorneys.

Before: Srinivasan, Chief Judge, and Pillard, and Katsas, Circuit Judges.

Dissenting opinion filed by Circuit Judge Katsas.

Srinivasan, Chief Judge:

Almost fifty years ago, appellant Dennis Butler was convicted of murder. At his trial, an FBI forensic expert testified that hairs found on the victim were microscopically identical to Butler’s hair. The government recently acknowledged, though, that hair evidence of the kind introduced against Butler was false and exceeded the limits of science, and that the prosecution knew or should have known as much at the time of his trial.

Butler brought a motion to set aside his conviction and vacate his sentence based on the government’s admission that it had used false evidence against him. We examine a single question: whether the false hair evidence presented by the government was material. The district court found the evidence immaterial. In our view, however, there is a reasonable likelihood that the false hair evidence introduced against Butler could have affected the jury’s verdict. We thus reverse the judgment of the district court.

I.

A.

For decades, the FBI Laboratory employed a form of forensic analysis dubbed "hair microscopy." Hair microscopy called for forensic examiners to conduct side-by-side, microscopic comparisons of hair samples in an effort to ascertain whether hairs from a crime scene matched hairs from a suspect. The government used ostensible matches at trial as scientific evidence linking defendants to crimes.

There was, however, a significant problem with that field of analysis: science had not validated its foundational premises. Existing studies failed to support a trained examiner’s ability to identify a "match" based on any objective system of visual hair comparison or to validly estimate the frequency of hair characteristics (and therefore of matches) in the general population.

Although those limitations were long known to the government, prosecutors continued to rely on hair evidence at trial. By 2009, however, multiple developments spurred the government to reassess its position on the evidentiary reliability of hair microscopy. First, the National Academy of Sciences published a groundbreaking report critical of the practice. The report confirmed that "[n]o scientifically accepted statistics exist about the frequency with which particular characteristics of hair are distributed in the population," and noted the absence of any uniform standards for identifying how many characteristics must be shared between two hairs before they can be called a "match." Nat’l Research Council, Strengthening Forensic Science in the United States: A Path Forward 160 (2009). Additionally, DNA testing exonerated several men who had been convicted using hair evidence, some of whom had been imprisoned for decades.

Those events prompted the federal government to undertake its largest postconviction review in history. Working in tandem with defendants’ rights groups, the government audited thousands of convictions from the pre-2000 period to identify cases in which the government made use of false hair evidence. This is one of the identified cases.

B.

On September 30, 1970, appellant Butler was arrested for the murder of Jesse Mears. The previous day, police had discovered Mears’s body in an apartment building Mears managed in Northeast Washington D.C. The victim was found in a vacant apartment’s bathroom with toilet paper and a stocking stuffed in his mouth, both "soggy" wet with a clear liquid. Trial Tr. 36, July 8, 1971, S.A. 8. His hands were bound, a telephone cord was wrapped around his neck, and his keys were missing. The police found a soda bottle near his body filled with water, a paint pan in the kitchen sink, and a belt split into two pieces in the kitchen. The cause of death was determined to be "asphyxiation

secondary to garroting." Trial Tr. 38, July 8, 1971, S.A. 10.

The prosecution’s lead witnesses were James Hill and Phyllis Gail Robinson. On direct examination, Hill testified that he had known Butler for several years, and had called Butler at around 3:00 or 3:30PM on the day of the murder. When Butler came to the phone "he sounded like he was out of breath." Trial Tr. 66, July 8, 1971, A.A. 181. Hill said that he asked where Butler had been, and Butler, according to Hill, volunteered that "he had just killed the rent man"—i.e., Jesse Mears. Id. at 67, A.A. 182. Butler said that the "rent man" had "caught [Butler] selling narcotics to two boys," and that, in an ensuing struggle, Butler attempted to strangle Mears with a belt but used a telephone cord after the belt broke. Id. Hill testified that Butler then said he had poured water down the victim’s throat "to make sure that he was dead." Id.

Hill further testified that Butler came to Hill’s house later that day, around 4:00PM. Robinson, who was then dating Hill, joined them at the house sometime later. According to Hill’s testimony, Hill asked Butler whether Hill could share the story with Robinson. Butler agreed, and Hill told Robinson that Butler had just killed a man. Butler then recounted some of the details of the crime to Robinson.

Hill related that, the following day, police officers came to his house, asked if he knew anything about a pair of keys, and searched under his mattress. Later, at the police station, Hill gave a statement to police officers describing the previous day’s events. Hill testified that Robinson was also at the station but was separated from Hill. He said that he did not overhear the officers say anything to Robinson and that he had not been threatened by the officers.

Robinson’s testimony about the day of the murder tracked Hill’s in material respects. She admitted that, initially, she had told the police that her knowledge of the murder came from Hill rather than Butler. But after a police officer informed her that her statement was inconsistent with Hill’s in that regard, she revised the story and said that Butler had told her. Robinson testified that her original statement had been a lie fueled by fear because, in her words, she "had never been in no trouble." Trial Tr. 263, July 9, 1971, S.A. 176.

To rebut the government’s evidence, the defense attacked the couple’s credibility. Both witnesses prevaricated about their drug use in their trial testimony. Hill originally denied having a specific reason for calling Butler the day of the murder and claimed that the two of them had discussed nothing other than the murder. But later, Hill admitted he had called Butler to obtain narcotics and had used heroin with Butler before Robinson arrived.

Hill was also unable to deliver a consistent narrative about his drug use after the murder. At one point, he testified that he had stopped using heroin seven or eight months before the trial. But at another point, he claimed he had stopped using narcotics about one year before the trial. When the defense noted that a one-year period would have been before the September murder—and thus before a day on which Hill had already admitted to using heroin—he nonetheless insisted that it had been "about a year," before ultimately conceding it could have been "less than a year." Trial Tr. 112–113, July 8, 1971, A.A. 227–228.

Additionally, Hill testified that Robinson had snorted heroin the day of the murder while the three were together at the house. But he also stated that Robinson only used heroin on weekends. When the defense noted that the day of the murder was a Tuesday, he revised his earlier testimony and said that he did not remember whether she had snorted heroin that day. Hill also admitted that he may have given inconsistent statements to defense lawyers about what he had overheard at the police station and whether officers had threatened him with criminal liability.

For her part, Robinson, like Hill, gave contradictory testimony about her drug use. At first, she testified that she only took heroin on weekends. But she was forced to renege and acknowledge she had taken heroin on the Tuesday of the murder. And like Hill, Robinson had given inconsistent statements on a question in dispute at trial: who (Hill or Butler) had told her about the murder.

The government responded by introducing an array of corroborating evidence. Several witnesses testified to having seen Butler on the day of the crime near the apartment building. A witness testified to seeing Butler and the victim working side-by-side on a car together around 1:00PM in front of the building. An acquaintance of Butler’s testified that he had seen Butler walking toward the area of the building between 2:00 and 3:00PM. And several witnesses testified that they found the victim’s stolen key ring after it was thrown from the roof of a building near Butler’s girlfriend’s house.

Of the sixteen fingerprint impressions recovered from the crime scene, none belonged to Butler. But the government presented two other kinds of forensic evidence at trial. First, a government expert testified that paint found on the victim’s clothing, on the soda bottle at the crime scene, and on the defendant’s pants, all could have come from the same source based on their type, texture, and color, and were likely wet when applied.

Second, and of particular relevance, the forensic expert testified in detail about hair samples found on the victim’s clothing, including his jacket, shirt, and pants. The expert described a "direct microscopic comparison test" he had conducted, comparing...