United States v. Murray
| Decision Date | 04 September 2020 |
| Docket Number | CRIMINAL ACTION NO. 19-118-WBV-DMD |
| Citation | 484 F.Supp.3d 334 |
| Parties | UNITED STATES of America v. Travis Lamont MURRAY |
| Court | U.S. District Court — Eastern District of Louisiana |
Kathryn M. McHugh, U.S. Attorney's Office, New Orleans, LA, Frank Gregory Rangoussis, U.S. Department of Justice, Washington, DC, for United States of America.
Celia Clary Rhoads, Maura Doherty, Valerie Welz Jusselin, Federal Public Defender, New Orleans, LA, for Travis Lamont Murray.
SECTION: D (3)
ORDER AND REASONS
Before the Court is a Motion to Suppress DNA Evidence and Request for Evidentiary Hearing (the "Motion to Suppress"), filed by defendant, Travis Lamont Murray.1 The Government opposes the Motion.2 The Court held an evidentiary hearing on the Motion to Suppress on September 2, 2020. After careful consideration of the parties’ memoranda, the oral arguments made and witness testimony provided during the evidentiary hearing, and the applicable law, the Motion is DENIED.
On June 3, 2019, the Government filed an Indictment in this Court, alleging that Travis Lamont Murray ("Defendant") committed one count of aggravated sexual abuse in violation of 18 U.S.C. §§ 2241(a) & 2361(a)(2), and one count of sexual abuse in violation of 18 U.S.C. §§ 2242(1) & 3261(a)(2).3 The Indictment alleges that on or about May 25, 2004, Defendant sexually assaulted A.T. while he was a member of the United States Navy stationed at a United States Naval Base in Yokosuka, Japan.4 A.T. was also a member of the United States Navy and stationed at the same United States Naval Base in Yokosuka, Japan, but on a different ship. A.T. was unable to identify her attacker, but she reported the incident shortly after it allegedly occurred. A.T. was transported to the nearby United States Naval Hospital in Yokosuka, where a nurse conducted a sexual assault examination and collected semen from inside the victim. In August 2005, the Naval Criminal Investigative Service ("NCIS") forwarded the sexual assault kit containing the sample collected from the victim to the United States Army Criminal Investigation Laboratory in Georgia.5 During her review of the sexual assault kit, Dr. Diana Williams, a DNA expert, identified the DNA profiles of three different persons–the victim, the victim's consensual sexual partner, and the unknown assailant.6 The DNA profile of the unknown assailant was entered into the FBI's Combined DNA Index System ("CODIS").7
According to the Government, Defendant was arrested in 2018 in Jefferson Parish, Louisiana, during which the State of Louisiana obtained a sample of Defendant's DNA and uploaded it to CODIS.8 This resulted in a match between Defendant's DNA and the DNA profile of the assailant identified by Dr. Williams in 2005.9 A subsequent Fed. R. Crim. P. 41 search warrant for Defendant's DNA was executed in June 2019. Based upon the DNA testing, Dr. Williams confirmed that the sperm recovered by the sexual assault nurse examiner in 2004 originated from Defendant.10 The Government asserts that the frequency of occurrence of Defendant's DNA profile among unrelated individuals selected at random from the United States population is estimated to be 1 in 7.4 quadrillion for black individuals.11
Defendant alleges that in March 2009, the evidence collected from the victim, including the DNA swabs contained in A.T.’s Sexual Assault Forensic Examination ("SAFE") kit, was destroyed, in direct violation of NCIS protocol for the preservation of evidence.12 Defendant argues that the destruction of the only DNA evidence in this case is significant because forensic science has advanced significantly from 2005 to 2019. Defendant asserts that the DNA testing available today uses more advanced and discriminating testing theories, which allows for the testing of nearly twice as many locations on the genetic chain than could be tested in 2005.13 Defendant complains that he is unable to use this advanced DNA testing technology to re-test the DNA evidence, denying him the opportunity to defend himself against the accusations in the Indictment.
The Government asserts that in 2009, as part of an effort to organize the NCIS evidence rooms in Yokosuka, Japan, NCIS Special Agent Robin Kerr,14 as evidence custodian for the NCIS Yosuka Field Office, destroyed the sexual assault kit that contained the original swabs from 2004.15 The Government notes that Agent Kerr returned or destroyed approximately 185 items of evidence from dozens of cases during this same reorganization of the evidence room. The Government asserts that Agent Kerr destroyed evidence related to A.T.’s sexual assault because the incident had occurred years earlier, NCIS had closed the case, and no suspect had been identified.16 Agent Kerr's Declaration, which was thereafter confirmed by her testimony at the hearing, states that she did not single out this case and that she was never involved in the investigation of the sexual assault of this case.17 The Government points out that, at the time the evidence was destroyed in 2009, Defendant had not been identified as the assailant. Defendant's arrest and subsequent identification did not occur until some nine years later in 2019. The Government argues that Agent Kerr did not act in bad faith when she destroyed the sexual assault kit, and that she did not destroy it to conceal exculpatory evidence from Defendant.18
On February 28, 2020, Defendant filed the instant Motion to Suppress, asking the Court to suppress the introduction of DNA evidence because the Government's destruction of the original DNA evidence deprived Defendant of the opportunity to independently test the evidence using modern DNA testing technology and to prepare a full defense in this case.19 Defendant asserts that the Due Process Clause of the Fourteenth Amendment requires the government to preserve potentially exculpatory evidence on behalf of defendants.20 Defendant argues that the government's failure to preserve material, exculpatory evidence violates a defendant's due process rights, regardless of whether the government acted in good or bad faith.21 Defendant claims that materiality requires an exculpatory value that was apparent before the evidence was destroyed, and which was of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.22
Defendant argues that the destroyed DNA evidence was clearly material and exculpatory in this case.23 Defendant asserts that the evidence was material because it is critical to the prosecution's case, since A.T. did not identify Defendant as her assailant. Defendant argues that if the DNA sample had been preserved and could be retested, these proceedings could be very different, and may never have been initiated.24 Defendant argues that the destroyed DNA evidence also had exculpatory value at the time it was destroyed because two male profiles were developed from the sample taken during A.T.’s examination, and, "The presence of at least two male profiles in the sample is clearly exculpatory, making the government's destruction of the evidence an even more apparent Due Process violation."25 Defendant claims that the current standard for DNA testing, based on FBI protocols, allows for the testing of 22 specific locations on the genetic chain, while DNA testing in 2005 only tested 13 locations on the genetic chain.26 Defendant also claims that the testing method used by labs in 2005 for analyzing DNA evidence, called CPI, has since been criticized and replaced due to its troubling subjective nature, which has led to altered and/or inaccurate results in other cases.27 Defendant asserts that if the DNA evidence had been preserved in this case, Defendant would have the opportunity to re-test the samples using modern technology, the results of which could clearly be favorable to Defendant and show that he was not the contributor of the DNA, or that there was no identifiable contributor.28
Finally, Defendant argues that although a showing of bad faith is not required to establish a Due Process Clause violation, he can demonstrate bad faith because the destruction of the DNA sample in this case "was a violation of protocol."29 Defendant asserts that, "bad faith should be presumed based on the government's failure to follow proper procedures without any explanation and its subsequent attempt to use its own data from the destroyed evidence against Mr. Murray."30 As such, Defendant asserts the DNA evidence must be suppressed. Alternatively, if the Court does not determine that a due process violation has occurred, Defendant asserts that the Court may issue remedial jury instructions or other sanctions, as necessary, based on the destruction of evidence.31
The Government opposes the Motion to Suppress, arguing that suppression is only permitted in very limited circumstances, none of which apply here.32 Citing the same case relied upon by Defendant, the Government asserts that under California v. Trombetta , the government violates due process when: (1) it destroys evidence whose exculpatory significance is apparent before destruction; and (2) the defendant remains unable to obtain comparable evidence by other reasonably available means.33 The Government asserts that the Supreme Court later held in Arizona v. Youngblood that if the exculpatory value of the evidence is undetermined at the time it was destroyed, but may be "potentially useful" to the defense, a defendant must show that the government acted with bad faith in destroying the evidence to show a violation of due process.34 The Government contends that Youngblood limits the government's obligation to preserve evidence to those cases where "the police themselves by their conduct indicate that evidence could form a basis for exonerating the defendant."35 The Government claims the Supreme Court reinforced this holding in Illinois v. Fisher , when it held that the failure...
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