United States v. Butler

• Decision Date: 16 August 2017
• Docket Number: Criminal No. 70–cr–1717 (BAH)
• Parties: UNITED STATES of America v. Dennis T. BUTLER, Petitioner/Defendant
• Court: U.S. District Court — District of Columbia

278 F.Supp.3d 461

UNITED STATES of America

v.Dennis T. BUTLER, Petitioner/Defendant

Criminal No. 70–cr–1717 (BAH)

United States District Court, District of Columbia.

Signed August 16, 2017

Pamela Stever Satterfield, Thomas Anthony Quinn, U.S. Attorneys Office for the District of Columbia, Washington, DC, for USA.

Jenna Marie Cobb, Public Defender Service for the District of Columbia, Washington, DC, for Dennis T. Butler.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

Forty seven years ago, on the evening of September 29, 1970, Jesse Mears was brutally murdered. His body was found lying on the bathroom floor of a vacant apartment in the building in which he worked, with his hands bound behind his back, a wet stocking stuffed in his mouth, and a telephone wire wrapped around his neck. Paint was found on his clothing and on a bottle of water found next to him, and his keys and wallet were missing. He appeared to have struggled before he died. By the next day, the police had arrested the defendant, Dennis Butler, whom testimony placed near the building the day of the murder accompanied by the victim. Later that day, two of the defendant's associates, to whom he sometimes supplied heroin, provided generally consistent statements to the police that, shortly after the murder, the defendant had confessed he had done it. At trial, the prosecution presented an array of evidence linking the defendant to the crime, including testimony from witnesses who saw the defendant and victim on the day of the murder and from the defendant's two associates recounting the details of the confession the defendant made to them. Expert testimony was also presented by two Federal Bureau of Investigations ("FBI") agents that paint residue on the victim, items at the crime scene and on the defendant's clothing appeared to be from the same source, as well as that three hairs found on the victim's clothing "matched" characteristics of hairs from the defendant. The jury found the defendant guilty of felony murder, murder in the first degree, and robbery, for which convictions the defendant was sentenced, in 1972, to two terms of 20 years to life imprisonment on the first-degree murder and felony murder counts, and 5 to 15 years in prison for the robbery count, to be served concurrently.

Following review of the defendant's case by the Department of Justice ("DOJ") and the FBI, the government conceded, in September 2015, that the hair-related expert testimony presented at the defendant's trial was false and misleading and that the government knew or should have known this at the time of the trial. The defendant then filed, in September 2016, 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. 2. 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. The evidence presented at the defendant's criminal trial and pertinent procedural history are reviewed below, followed by an overview of issues with forensic hair matching evidence.

A. THE TRIAL

The prosecution's theory of the case was outlined in its opening statement: on September 29, 1970, the victim caught the defendant "selling narcotics to two boys" in Apartment 9 at 1312 East Capitol Street NE, a building managed by the victim. Trial Tr. 7/7/71 at 16–17. After the boys fled, the defendant "thereupon commenced to tie up [the victim]" and stuffed "a wad of what appeared to be toilet paper" and "a woman's nylon stocking" in the victim's mouth. Id. at 15–16. While trying to strangle the victim, the belt broke and the defendant continued strangling the victim with a telephone cord he found in the apartment. Id. at 14–16. The defendant then filled a cola bottle with water and "shoved [the] water down the throat of the victim ... to make sure he was dead." Id. at 17. The defendant took the victim's ring of keys to facilitate his later return to take some of the victim's belongings. Id. at 18.

In summarizing the evidence that would support this narrative, the prosecutor referenced the following anticipated evidence: (1) the testimony of the defendant's friends, Dennis Butler and Phyllis "Gail" Robinson, who were dating at the time and to whom the defendant had confessed a detailed account of the commission of the murder, id. at 16–17; (2) witnesses who observed the defendant both alone and with the victim on and near the premises of the building where the murder occurred "at various times on that same afternoon in question," id. ; (3) the finding of the victim's keys "a period of days" after the murder on a roof "two or three doors adjacent to where the defendant resided at the time," id. at 18; and (4) "various scientific evidence" linking the defendant to the scene of the crime, id. The government did not mention in its opening that this scientific evidence would include forensic hair analysis.

1. The Scene of the Crime

The only issue at trial was the identity of the person who killed the victim. Trial Tr. 7/13/71 at 481 ("The issue in this case is not what happened to Mr. Mears, but who did it."). The manner of the victim's death was not disputed, id. at 480 ("Defense ... will not contest the fact that Mr. Mears was killed or that he was killed in the way the Government has described it."), and as a result, the defense "made no attempt to cross-examine" any witnesses on issues of how the victim died or the condition of the crime scene, id. The uncontested circumstances and manner of the victim's death, which were established by the testimony of a number of law enforcement personnel, are as follows:

On the evening of September 29, 1970, Jesse Mears was found dead in the bathroom of Apartment 9 on the third floor at 1312 East Capitol Street NE. Trial Tr. 7/8/71 at 31–33 (testimony of Dr. William Brownlee, Deputy Medical Examiner); Trial Tr. 7/9/71 at 289–90 (testimony of Officer John Lightford). After someone called 911, the first police arrived at the building around 4:52 P.M., and were joined by the homicide squad "[a]bout 5:30." Id. The police found the door of the apartment unlocked as it did not have a complete door handle on it, and it "appeared as though someone" had been "repairing the lock." Trial Tr. 7/12/71 at 436 (testimony of Detective Robert Murray).

The victim was found in the bathroom of the apartment with "his hands ... tied behind his back," with "a garrote around his neck," mouth, and face, and with "a wad of toilet paper tissue paper and a stocking" inside his mouth. Trial Tr. 7/8/71 at 32–33 (testimony of Dr. Brownlee). Blood was coming "from the [victim]'s nose and about the mouth," and the area around the victim's left eye "was bruised as if it had been struck some blow." Trial Tr. 7/12/71 at 441 (testimony of Detective Murray). The garrote was in fact a telephone cord that appeared to come from a telephone found inside the vacant apartment. Id. at 443–44. The toilet paper and stocking "were wet" and "the garrote about the neck and face was of sufficient tightness ... to create grooves within the skin." Trial Tr. 7/8/71 at 34 (testimony of Dr. Brownlee). The contents of his mouth were soggy, "not dripping," and subsequent testing revealed that the wetness had not been caused by saliva. Id. at 36, 51.

The police found "a Pepsi cola bottle that was lying near [the victim's] head" with water in it, and "water staining the floor underneath his head and [his] left shoulder." Id. at 37. Paint was found on the victim's clothing and on the bottle, which paint appeared to come from the same source. Trial Tr. 7/13/71 at 518 (testimony of Special Agent David Nichols). The victim was not found wearing a belt, but a belt that may have fit him was found in two pieces in the kitchen of the apartment. Trial Tr. 7/13/71 at 524 (testimony of Special Agent Myron Scholberg). Of sixteen "partial latent" fingerprints found at the crime scene, none of them matched the defendant or the victim. Trial Tr. 7/9/71 at 204 (testimony of Officer Donald Cherry).

The time of the victim's murder was placed as likely between 2 P.M. and 3 P.M. on September 29, 1970, Trial Tr. 7/8/71 at 37–38, 60 (testimony of Dr. Brownlee), and his cause of death was "asphyxiation second to garroting," or "strangulation," id. at 38.

2. The Day of the Murder

Seven witnesses testified that they saw the victim, the defendant, or both, on the day of the murder. James Hill, who had known the defendant for "about three years," and Phyllis "Gail" Robinson, who had been dating Hill, testified that on the day the victim's body was found the defendant had visited them and confessed to the murder, including details of the crime. Lawrence Robertson and John Taylor, who were performing maintenance at the building where the murder occurred on the day of the murder, saw the victim at various times during the morning and afternoon at the building. Two relatives of the defendant's girlfriend, Mary Dean, testified about when they saw the defendant the day of the murder: Wilson Dean, the girlfriend's brother, saw the defendant at various times throughout the day near the apartment building where the murder occurred, and Ellen Johnson (née Dean), the girlfriend's sister, saw the victim the day of the murder, both before and after his death.² Charles Barber, who lived nearby,...