United States v. Dennis Butler ( 2020 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 7, 2018 Decided April 14, 2020
No. 17-3080
UNITED STATES OF AMERICA,
APPELLEE
v.
DENNIS T. BUTLER,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:70-cr-01717-1)
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.
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Before: SRINIVASAN, Chief Judge, and PILLARD, and
KATSAS, Circuit Judges.
Opinion for the Court filed by Chief Judge SRINIVASAN .
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
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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.
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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
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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
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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
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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 the hairs from the victim’s clothing to
sample hairs from Butler. Trial Tr. 527, July 13, 1971, S.A.
349. The expert explained he had considered sixteen features
of the hair, describing some of the features as “very important”
or “very distinct” identifying characteristics. Id. at 529, S.A.
351. The two sets of hairs, according to the expert, “match[ed]
in all microscopic characteristics,” and were thus
“microscopically the same or alike.” Id. at 528–30, S.A. 350–
52. Later, the prosecutor asked whether the expert was saying
that the hairs from the victim’s clothing were “only similar” to
Butler’s. Id. at 535, S.A. 357. The expert responded, “No, I
am not. When you imply that something is similar, you are
implying that it is also different in some respects. My report
and my testimony is that these hairs are the same. They are
alike in all identifiable microscopic characteristics.” Id.
The expert gave somewhat varying testimony about the
significance of that finding. At one point, he noted that “hairs
do not contain enough identifying characteristics to be
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positively identified as originating from a certain head of a
certain individual to the exclusion of all other individuals in
this race group.” Id. at 530, S.A. 352. But he then stated that
the hairs he had examined “are the same or alike in all the
microscopic characteristics that were available to [him].” Id.
And when asked, “how likely or unlikely is it for two hairs to
be microscopically alike, yet come from different people?,”
instead of answering that he did not know (the scientifically
sound answer), the expert said that, in the approximately
10,000 examinations he had conducted, “there have been four
or five times when the hair of the suspect and the hair of the
victim was so nearly alike . . . that I was unable to come to a
conclusion as to where these hairs originated. It would be very
seldom.” Id. at 531, S.A. 353.
On redirect, the expert reiterated that testimony. He was
asked, “[i]s it your testimony that in 10,000 examinations only
four or five times the victims and the defendants have been . . .
so alike you were unable to distinguish?” Id. at 535, S.A. 357.
He answered in the affirmative: “Approximately 10,000.” Id.
But on re-cross, when defense counsel asked, “we don’t know
how many other people have the same microscopic
characteristics of their hair follicles as the one that you
identified as Mr. Butler’s hair from the clothing of Mr.
Mears?,” he answered, “Yes, that is correct. I have no idea
whether anyone would have the same microscopic
characteristics.” Id. at 536, S.A. 358.
In summation, the prosecutor said the following to the jury
about the significance of the expert’s hair testimony:
He said when he compared the hairs that were
found on the victim’s clothing with the
defendant’s hairs that were taken by [the
detective] from him at the infirmary, when he
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compared those two, what were they? They
were the same in every microscopic detail, the
same.
I said, how often . . . does it happen? You
can’t be positive, yes, but how often does it
happen that two people’s hair, two different
people, are so similar and so alike that you
would be unable to tell? Out of 10,000
examinations, he said he recalls it happening
approximately four times.
Id. at 731–32, S.A. 495–96.
Later, in his rebuttal summation, the prosecutor reminded
the jury:
You have the FBI report saying that this man’s
hair compared with the hairs found on the body
of the dead man. They are the same in every
microscopic characteristic—every one. You
heard the sixteen possible combinations, lack
thereof, etc. Every one matched.
Id. at 783, S.A. 535.
On July 15, 1971, the jury convicted Butler of felony
murder, first degree murder, and robbery. Butler appealed his
conviction to this court, arguing, among other things, that the
trial judge had erred in declining to order physical and
psychiatric examinations of Hill and Robinson. See United
States v. Butler, 481 F.2d 531, 532 (D.C. Cir. 1973). We
rejected Butler’s arguments and affirmed his conviction. See
id. at 537.
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C.
In 2015, more than four decades after Butler’s convictions,
the government reviewed his case as part of the overall
examination of cases involving the use of discredited hair
microscopy analysis. The government “determined that the
microscopic hair comparison analysis testimony or laboratory
report presented in this case included statements that exceeded
the limits of science . . . and were, therefore, invalid.” Letter
from Norman Wong, Special Counsel for the Department of
Justice to Vincent H. Cohen Jr., Acting United States Attorney
for the District of Columbia 2 (Sept. 11, 2015) (Wong Letter),
A.A. 68.
The government identified two types of errors in the
expert’s testimony against Butler. First, “[t]he examiner stated
or implied that the evidentiary hair could be associated with a
specific individual to the exclusion of all others.” Id. at 71.
Second, “[t]he examiner assigned to the positive association a
statistical weight or probability or provided a likelihood that
the questioned hair originated from a particular source, or an
opinion as to the likelihood or rareness of the positive
association that could lead the jury to believe that valid
statistical weight can be assigned to a microscopic hair
association.” Id. Both statements were flawed in that they
“exceed[ed] the limits of science.” Id.
The government advised that, if Butler were to seek post-
conviction relief “based on the Department[] [of Justice’s]
disclosure that microscopic hair comparison laboratory reports
or testimony used in this case contained statements that
exceeded the limits of science,” the government then would
waive any reliance on the statute of limitations or any
procedural-default defense “in order to permit the resolution of
legal claims arising from the erroneous presentation of
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microscopic hair examination laboratory reports or testimony.”
Id. at 68. The government, though, took “no position regarding
the materiality of the error in this case.” Id.
In September 2016, Butler moved to vacate his sentence
pursuant to 28 U.S.C. § 2255, arguing that the false hair
testimony violated his rights under the Due Process Clause.
The district court denied the motion, holding that the hair
evidence was not material and that its use at trial thus did not
violate the Constitution. United States v. Butler, 278 F. Supp.
3d 461 (D.D.C. 2017). Butler now appeals.
II.
The scope of our review is confined. The government
concedes that the hair microscopy evidence presented against
Butler was false and exceeded the limits of science. The
government also acknowledges that the prosecution knew or
should have known of hair microscopy evidence’s
inadequacies at the time of trial. And the government waives
statute-of-limitations and procedural-default defenses. In light
of the government’s concessions and waivers, the sole question
for us is whether the prosecution’s use of the false hair
testimony against Butler was material. If so, his constitutional
rights were infringed.
In a line of cases beginning with Napue v. Illinois, 360
U.S. 264 (1959), the Supreme Court has consistently
recognized that the government’s knowing presentation of
false evidence against a criminal defendant is “incompatible
with ‘rudimentary demands of justice.’” Giglio v. United
States, 405 U.S. 150, 153 (1972) (quoting Mooney v. Holohan,
294 U.S. 103, 112 (1935)). Yet not every knowing use of false
evidence by the government against a defendant necessarily
rises to the level of constitutional error. Rather, the
introduction of false evidence unconstitutionally denies a
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defendant a fair trial if the evidence counts as material. E.g.,
United States v. Agurs, 427 U.S. 97, 104–108 (1976).
As we recently explained, “the government’s introduction
of false testimony is material if the evidence ‘could in any
reasonable likelihood have affected the judgment of the jury.’”
United States v. Ausby, 916 F.3d 1089, 1092 (D.C. Cir. 2019)
(per curiam) (quoting Giglio, 405 U.S. at 154) (ellipses
omitted); see Napue, 360 U.S. at 271. That “‘reasonable
likelihood’ standard does not require the defendant to show
‘that he more likely than not would have been acquitted’ absent
the false statements. Rather, the defendant need show only that
the false testimony ‘undermines confidence’ in the verdict.
Thus, even if the false testimony ‘may not have affected the
jury’s verdict,’ it is material if the evidence reasonably could
have affected the verdict.” Ausby, 916 F.3d. at 1093 (quoting
Wearry v. Cain, 136 S. Ct. 1002, 1006 & n.6 (2016) (per
curiam)) (formatting modified).
So understood, the “reasonable likelihood” test “is quite
easily satisfied.” Id. at 1093 (quoting United States v.
Williams, 233 F.3d 592, 594 (D.C. Cir. 2000)). The standard
is “strict” against the government, “not just because [the cases]
involve prosecutorial misconduct, but more importantly
because they involve a corruption of the truth-seeking function
of the trial process.” Agurs, 427 U.S. at 104. Indeed, we have
described the reasonable-likelihood standard as establishing “a
veritable hair trigger for setting aside the conviction,” United
States v. Gale, 314 F.3d 1, 4 (D.C. Cir. 2003), and as
“mandat[ing] a virtual automatic reversal of a criminal
conviction,” Williams, 233 F.3d at 594 (quoting United States
v. Stofsky, 527 F.2d 237, 243 (2d Cir. 1975)).
In Ausby, we recently applied the reasonable-likelihood
test in closely parallel circumstances. There, as here, the
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government had introduced false hair microscopy evidence
against the defendant at trial. And there, as here, the sole issue
we confronted was whether the evidence was material. The
district court, as in this case, had concluded that the evidence
was immaterial, but we reversed. Explaining that the “false
hair-comparison testimony” presented against Ausby “was
neither the sole piece of evidence on which the prosecution
hung its case nor redundant or irrelevant,” we determined that
the “testimony falls on the material side of the spectrum.”
Ausby, 916 F.3d at 1094–95. We reach the same conclusion
here, applying the same “quite easily satisfied” materiality
standard. Id. at 1093.
The cornerstone of the government’s case against Butler
was the testimony of Hill and (to a lesser degree) Robinson.
Hill, though, repeatedly offered false testimony about his drug
use, falsities that were revealed or corrected upon further
examination. And the defense introduced credible
impeachment evidence demonstrating Hill’s prior inconsistent
statement about the circumstances of his police statement.
Robinson was also an admitted drug user and similarly testified
falsely about her heroin use on the day of the murder. And she
admitted to making a prior inconsistent statement on the source
of her knowledge of the crime. In the absence of corroborating
evidence, then, a reasonable juror could have doubted their
credibility and thus discounted their testimony.
We in fact said as much forty-seven years ago when we
initially reviewed Butler’s conviction. In addressing (and
ultimately rejecting) a claim that the trial court should have
ordered examinations of Hill and Robinson for purposes of
assisting the jury in weighing their credibility, we said that their
testimony “present[ed] a particular danger of unreliability.”
Butler, 481 F.2d at 534. We explained that their testimony
about their drug use “should have sufficed to put the jury on
14
notice that, to the extent the witnesses’ testimony was
uncorroborated, it should be weighed with caution.” Id. at 535.
And “[t]he danger of unreliability,” we observed, “is
substantially increased by a factor present in this case . . .
: ‘The addict-turned-informer (or prosecution witness) may
have a special and very powerful motive to fabricate a case for
his own benefit,’” i.e., the threat of criminal prosecution. Id. at
534 (quoting United States v. Kinnard, 465 F.2d 566, 574 (D.C.
Cir. 1972)) (formatting modified). Defense counsel
accordingly “urged the jury to conclude that Hill and Robinson
‘lied . . . on the stand.’” Butler, 278 F. Supp. 3d at 473 (quoting
trial transcript).
Notwithstanding our significant concerns about Hill’s and
Robinson’s reliability, we held that the trial court’s failure to
order their examinations fell short of an abuse of discretion,
chiefly because “of the substantial corroborative evidence
introduced by the government.” Butler, 481 F.2d at 535. The
prosecutor’s closing argument to the jury echoed our
estimation of the corroborating evidence’s centrality. He
stressed to the jury that “[w]e don’t ask you to only believe
James Hill. We only ask you to do what is reasonable, to test
his story and to test Gail Robinson’s story . . . . Test those with
the other evidence and what have you? You start to realize that
those stories are true. It rings true. Each little bit of evidence
starts to add up.” Trial Tr. 779, July 14, 1971, S.A. 531.
Addressing what he evidently sensed to be a core
vulnerability in the government’s case—Hill’s drug use and the
concomitant “danger of [his] unreliability” as a witness, 481
F.2d at 534—the prosecutor said to the jury: “the fact that
James Hill was a narcotic addict at the time . . . does that mean
that in and of itself he didn’t hear what the defendant told him?
Everything that he has said has been corroborated by
circumstantial evidence and scientific evidence. Ladies and
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gentlemen, test the testimony once again . . . . What does it
show? Corroboration, corroboration, corroboration.” Trial Tr.
781, July 14, 1971, S.A. 533.
Among the corroborating evidence that the prosecution
and our court deemed critical, the false hair testimony was
especially weighty. Apart from Hill’s and Robinson’s
testimony, the government’s principal corroborating evidence
pointing to Butler’s culpability consisted of: (i) forensic
evidence indicating that paint chips found on Butler, the victim,
and at the crime scene could have come from the same source;
(ii) testimony from eyewitnesses who saw Butler in the vicinity
of the crime scene near the estimated time of the crime; (iii) the
discovery of the victim’s keys in an area Butler frequented; and
(iv) the false testimony that Butler’s hair microscopically
matched hair found on the victim. See Butler, 481 F.2d at 533.
With regard to the first of those categories of corroborating
evidence, an expert’s forensic paint analysis suggested that
paint chips found on Butler, on the victim, and on objects found
at the crime scene could have all originated from the same
source. Yet the government’s own witnesses also testified that
the paint was likely wet when applied to the clothing and that
Butler had been in the apartment days before at the time the
apartment was painted. Jurors therefore could have concluded
that the spot of paint had been applied to Butler’s clothing days
before the murder—indeed, that may have been the most
plausible explanation based on the government’s evidence.
The government also offered evidence suggesting that
Butler had been seen going to and from the area of the murder
at times roughly corresponding with the estimated time of the
crime. The evidence at trial, however, suggested that Butler
frequented the neighborhood. For example, the government’s
witnesses testified that he had been inside the apartment where
16
the murder took place days earlier and had also helped the
victim fix a car just outside the apartment on the day of the
crime. In light of Butler’s regular, licit visits to the area, a
reasonable juror could have construed his presence there in the
rough timeframe of the offense, standing alone, to offer modest
corroboration for Hill’s and Robinson’s testimony.
As for the victim’s keys, a set of keys carried by the victim
was found on the rooftop of a house located on a block where
Butler’s girlfriend lived and Butler often stayed. But no one
testified to having seen Butler with the keys, there was
testimony that some of the keys were already missing by the
time of the murder, the keys were found on the rooftop almost
two weeks after Butler had been arrested for the murder, and
the rooftop, while on the same block as Butler’s girlfriend’s
residence, was also within two blocks of the murder scene. As
a result, while the keys could have been deposited on the
rooftop by Butler, they also could have been put there by
someone else who committed the crime. After all, it was not a
secret that the police had been searching for the keys: Hill at
least knew of the police’s interest in finding the keys based on
his testimony that the officers had searched his residence for
them.
By comparison, the hair microscopy evidence offered
powerful corroboration for Hill’s and Robinson’s testimony
pointing to Butler as the perpetrator. The defense’s sole
explanation for the presence of hair matching Butler’s on the
victim’s clothing, apart from noting questions about the
probability of a hair match in the first place, was to suggest that
Butler’s hair had been transferred to the victim when the two
of them worked on a car together earlier in the day of the
murder. But the government had a compelling response:
“Does common sense tell you that when two men are just
standing next to one another the hair will get on the coat, the
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shirt and on the pants?” the prosecutor asked in summation.
“Common sense will tell you,” he continued, “that hair from a
person gets on another person’s clothing if the person were
standing over him or sitting on him strangling him. What is
more reasonable?” Trial Tr. 777–78, July 14, 1971, S.A. 529–
30.
The government now seeks to cast doubt on the force of
the hair microscopy evidence presented at trial. The
government notes the expert’s testimony at one point that “hair
analysis does not permit a positive identification of a hair as
‘originating from a certain head.’” Gov’t Br. 50–51 (quoting
Trial Tr. 530–32, July 13, 1971, S.A. 352–354). But the
government itself, after reviewing the trial transcript,
determined that the “examiner stated or implied that the
evidentiary hair could be associated with a specific individual
to the exclusion of all others,” a “type of testimony” that is false
and “exceeds the limits of the science.” Wong Letter 5, A.A.
71 (emphasis added). The government cannot in one breath
concede the hair testimony’s falsity and in the next breath urge
that the hair testimony was accurate after all.
At any rate, in Ausby, the expert’s testimony similarly
included a statement that “microscopic hair comparisons do not
constitute a basis of positive personal identification”; and he
thus allowed that the hairs not only could have “originated from
the head of Mr. Ausby” but also could have come “from some
other person whose head hairs or pubic hairs are
microscopically identical.” 916 F.3d at 1091 (formatting
modified). We then acknowledged that the expert “had
conceded that microscopic hair comparison analysis cannot
produce a positive identification.” Id. But we still determined
that the admittedly false hair testimony presented against
Ausby, taken as a whole, was material. So too here.
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Even if the expert’s testimony against Butler did at times
include an acknowledgement that hair microscopy could not
produce a positive identification, at other points, the expert or
prosecutor indicated that it could. That is presumably why the
government has now determined that the expert falsely “stated
or implied that the evidentiary hair could be associated with a
specific individual to the exclusion of all others.” Wong Letter
5, A.A. 71; see also id. at 7, A.A. 73. The expert recounted the
sixteen characteristics of the hair he had analyzed. Describing
two of those characteristics in more detail, the expert referred
to them as a “very important identifying feature” and an
“important identifying characteristic.” Trial Tr. 529–30, July
13, 1971, S.A. 351–52 (emphasis added). And when the
prosecutor asked whether the expert was “saying that the hairs
that were found of the defendant’s on the clothes of the victim
are only similar,” the expert doubled down: “No, I am not.
When you imply that something is similar, you are implying
that it is also different in some respects. My report and my
testimony is that these hairs are the same.” Id. at 535, S.A. 357.
Notably, the framing of the prosecutor’s question itself
assumed that the hairs found “on the clothes of the victims”
were “the defendant’s” hairs, and the expert’s answer
reinforced to the jury that the “hairs are the same.” Indeed,
even defense counsel bought into that assumption about the
expert’s testimony when he asked the expert a question
concerning the “hair from the clothing of” the victim that the
expert had “identified as Mr. Butler’s.” Id. at 536, S.A. 358.
The government points to a response that the expert
elsewhere gave when asked, “how likely or unlikely is it for
two hairs to be microscopically alike, yet come from different
people?” Id. at 531, S.A. 353. The expert answered, “[i]t
would be very seldom”; but as a preface to that conclusion, he
somewhat confusingly referenced the number of times he had
19
been unable to differentiate a victim’s hair from the defendant’s
(four or five times out of roughly 10,000 examinations). Id.
Even if the expert’s reference to a victim’s hair might have
seemed off-base, a confused juror might well have focused on
his ultimate response of “very seldom.” Id. That may be why
the government pointed to this exact exchange as one in which
the expert had invalidly “assigned to the positive
association”—i.e., the association of the hair “with a specific
individual”—“a statistical weight or probability or provided a
likelihood that the questioned hair originated from a particular
source, or an opinion as to the likelihood or rareness of the
positive association that could lead the jury to believe that valid
statistical weight can be assigned to a microscopic hair
association.” Wong Letter 5, A.A. 71.
In his closing argument to the jury, moreover, the
prosecutor used the figures referenced by the expert, but in a
manner indicating that they directly responded to the question
that had been posed to the expert:
Agent Scholberg of the FBI . . . when he compared
the hairs that were found on the victim’s clothing
with the defendant’s hairs . . . [t]hey were the same
in every microscopic detail, the same. I said, How
often, Agent Scholberg, does it happen? You can’t
be positive, yes, but how often does it happen that
two people’s hair, two different people, are so
similar and so alike that you would be unable to
tell? Out of 10,000 examinations, he said he recalls
it happening approximately four times.
Trial Tr. 731–32, July 14, 1971, S.A. 495–96 (emphasis
added). A juror hearing that argument by the prosecutor could
have readily inferred that, according to the expert, it would be
exceedingly unlikely for two hairs deemed to be
20
microscopically identical to have come from different people.
That is precisely the kind of conclusion that science did not
(and does not) support. In Ausby, we relied on the prosecutor’s
closing argument as supporting our conclusion that the
presentation of false hair evidence in that case was material.
916 F.3d at 1095. We do likewise here.
The government finally contends that Hill’s and
Robinson’s accurate recounting of various details found at the
crime scene—such as the presence of a torn belt, a sock in the
victim’s mouth, and a bottle with water—lends corroboration
to their accounts that Butler had committed the crime and told
them about it. That may be so, but the defense also presented
evidence suggesting: (i) the police initially suspected that it
was Hill himself who possessed the victim’s keys (and Hill
knew as much); (ii) Hill had spoken with individuals who
relayed what someone who visited the crime scene had seen;
(iii) Hill was not credible on the issue of whether he had been
threatened with criminal liability; and (iv) Robinson was not
credible on the source of her knowledge of the crime. The
defense argued to the jury that other witnesses who had seen
(or been told about) the crime scene could have related details
about the scene to Hill and Robinson before they spoke with
the police. See Butler, 278 F. Supp. 3d at 467–68, 471, 473.
The defense also suggested to the jury that the police
themselves may have told Hill and Robinson about those
details. Id. at 483 n.12.
Even if the last suggestion lacked “concrete support,” id.,
a reasonable juror could have surmised that Hill and Robinson
had a motive to misstate the source of their information. And
the government, not Butler, bore the burden to demonstrate
beyond a reasonable doubt who had informed Hill and
Robinson about the details of the crime scene. In the absence
of the potentially confirming role played by the false hair
21
evidence, a reasonable juror could have found that the
government fell short of meeting its heavy burden on that
score, even without the defense advancing a compelling
alternative theory.
Our dissenting colleague, though, would conclude that the
false hair microscopy evidence introduced against Butler could
not have affected the jury, even under the “quite easily
satisfied” standard of materiality that governs when the
prosecution presents false testimony. Ausby, 916 F.3d at 1093
(quoting Williams, 233 F.3d at 594). As our colleague sees it,
our conclusion in applying that standard here is out of step with
other decisions. To the contrary, our conclusion is fully in step
with precedent, as best illustrated by our most germane and
recent decision, Ausby. There, we reached the same result,
under the same standard, in the same circumstances (also a
murder trial in which the prosecution had introduced false hair
microscopy testimony). Our colleague emphasizes what he
views to be (i) the relatively insignificant role played by the
false hair evidence in this case, and (ii) the strength of the other
evidence implicating Butler. In both of those respects,
however, this case is of a piece with Ausby.
First, in arguing that the false hair testimony played only a
minor role in Butler’s trial, our colleague submits that: the
testimony designated as false comprised only “twelve lines of
text during a four-day prosecution”; a number of other lines of
testimony were deemed to qualify as curative, “limiting
language,” including testimony specifically stating that the hair
evidence was “not a positive identification”; the prosecutor
made only limited reference to the hair evidence in his closing
arguments; and defense counsel explained the limitations of
hair-microscopy evidence in his own closing argument.
Dissenting Op. 11, 16–21.
22
All of that, however, was also true in Ausby, yet we
(unanimously) found the false hair evidence to be material and
thus vacated Ausby’s conviction. In particular, in Ausby: the
testimony designated as false comprised virtually the same
number of lines of transcript text (fifteen) in a four-day trial,
Ausby App. 74; a number of other lines of testimony were
deemed to qualify as curative, “limiting language,” id.,including testimony specifically stating that hair microscopy
evidence does “not constitute a basis of positive personal
identification,” Ausby, 916 F.3d at 1091; the “prosecution only
briefly discussed the hair evidence in its opening and closing
arguments,” United States v. Ausby, 275 F. Supp. 3d 7, 30
(D.D.C. 2017); and defense counsel explained and emphasized
the limitations of that evidence in his closing argument, id. at
21; see Ausby, 916 F.3d at 1091. In that light, the allegedly
limited role played by the false hair testimony in this case
affords no ground for reaching a different result than in Ausby.
Nor does the strength of the other evidence of guilt. Our
dissenting colleague observes in that regard that: the
prosecution in Butler’s trial presented the testimony of twenty-
three witnesses over four days; the jury returned its verdict of
guilt in one day; the district court, in finding the false hair
evidence immaterial, “painstakingly reviewed” the evidence
and arguments presented the jury for some twelve pages of its
published opinion; and that court viewed the non-hair evidence
of guilt to be “overwhelming.” Dissenting Op. 1–3, 5–6.
Again, though, all of that could equally be said about
Ausby. There, too, the prosecution presented the testimony of
twenty-three witnesses over four days, Ausby, 275 F. Supp. 3d
at 10; the jury returned its verdict in just an hour and a half, id.
at 22; the district court reviewed the evidence and arguments
presented to the jury for some thirteen pages of its published
opinion, id. at 9–23; and that court (coincidentally, the same
23
judge who wrote the equally thorough and considered decision
we review here) viewed the non-hair evidence to be
“overwhelming,” id. at 32. Our court still found a reasonable
likelihood that the false hair evidence could have affected the
jury’s judgment. And we follow that same course here.
In arguing that the hair evidence could not have affected
the jury’s verdict, our colleague emphasizes the testimony of
Hill and Robinson. As explained, though, a reasonable juror
could have doubted their veracity, such that the hair evidence
could have played a confirming role. See pp. 13–14, 20–21,
supra. At any rate, in Ausby, too, the centerpiece of the
prosecution’s case was non-hair evidence connecting Ausby to
the crime. See Ausby, 275 F. Supp. 3d at 20, 31–32.
Of particular note, Ausby was known to carry highly
distinctive bottles of perfumed oils, and one such bottle was
found on the floor of the victim’s bedroom next to her body
and three bottles were found on the ground immediately
outside, just below an open bedroom window. Id. at 11–13.
The defense thus did not dispute that Ausby, although a
stranger to the victim, had been inside her apartment, or that he
had exited it through the window. Nor did Ausby dispute the
prosecutor’s account that the perpetrator had escaped through
the window after the victim’s boyfriend knocked on her door.
Id. at 11. Nor, finally, did Ausby dispute that the victim had
been away from her apartment for two weeks and returned only
on the day of her murder. Id. Ausby’s defense was that, even
if he had been in the bedroom and had exited it through the
window, and even if the perpetrator had also fled through the
window, Ausby and the perpetrator still could be different
people, with Ausby having been in the apartment in a several-
day period before the day of the crime (and having also exited
through the window even though the victim would not have
24
been home then, leaving his perfume vials behind). See id. at
21.
The prosecutor, after reviewing the evidence about the
perfume vials in his closing argument, said to the jury that he
could rest his case “right there” and could be “boring” the jury
“with anything further.” Id. at 20 (quoting trial transcript). But
even if that evidence may have strongly connected Ausby to
the crime in the eyes of the jury, see id. at 31, the hair evidence
purportedly putting Ausby’s hair on the victim’s body, see id.
at 15, could have removed any conceivable question about
whether he was at the scene on the relevant day, rather than a
previous day. For that reason, we found a reasonable
likelihood that the false hair testimony could have affected the
jury’s judgment. See Ausby, 916 F.3d at 1095.
Guided by our decision there, we reach the same
conclusion here. In Ausby, the prosecution chiefly relied on
physical evidence connecting Ausby to the murder; and here,
the prosecution chiefly relied on Hill’s and Robinson’s
testimony connecting Butler to the murder. In both cases, the
jury might well have convicted the defendants based on that
evidence, regardless of the false hair microscopy testimony
introduced against them. But Butler need not show that the
jury could not (or would not) have convicted him without the
false hair evidence. Recall that a defendant against whom the
prosecution introduces false testimony need not show that the
jury more likely than not would have acquitted him without that
evidence. See id. at 1092–93. Rather, “even if the false
testimony may not have affected the jury’s verdict, it is material
if the evidence reasonably could have affected the verdict.” Id.
at 1093 (internal quotation marks omitted). Hence our
consistent description of the standard as “quite easily
satisfied.” Id. (quoting Williams, 233 F.3d at 594).
25
We found it satisfied in Ausby, and we do likewise here.
And we thus conclude that the government’s presentation
against Butler of evidence that it knew (or should have known)
was false denied him a fair trial.
* * * * *
For the foregoing reasons, we reverse the judgment of the
district court and remand with instructions to grant Butler’s
motion to vacate his sentence pursuant to 28 U.S.C. § 2255.
So ordered.
KATSAS, Circuit Judge, dissenting: My colleagues set
aside a half-century-old murder conviction based on a few
scraps of misleading testimony that were briefly given and
immediately corrected. In so doing, they recast Napue v.
Illinois, 360 U.S. 264 (1959), which permits relief only if there
is a reasonable likelihood that false testimony caused a
conviction, into a hairline trigger for setting aside convictions.
And they downplay untainted evidence that overwhelmingly
establishes the defendant’s guilt. For both reasons, I
respectfully dissent.
I
A
On September 29, 1970, Jesse Mears was strangled to
death at age 75. Mears’s body was found in the bathroom of a
vacant third-floor apartment in a building that he managed. His
hands were tied behind his back, and a telephone cord was
wrapped tightly around his neck. He had been gagged with a
stocking and a wad of toilet paper shoved into his mouth.
Dennis Butler, then 19 years old, was arrested the next day and
charged with first-degree murder, felony murder, and robbery.
Every court to review the evidence against Butler has
described it as “overwhelming.” United States v. Butler, 481
F.2d 531, 535 (D.C. Cir. 1973); United States v. Butler, 278 F.
Supp. 3d 461, 483 (D.D.C. 2017). Eyewitnesses placed Butler
with Mears around the time of the murder. Matching paint
stains were found on their respective clothing. Mears’s keys
were recovered near Butler’s home. And, most damningly,
Butler confessed to the murder to two friends, James Hill and
Phyllis Robinson, whose testimony recounting the confessions
was “comprehensive and believable and, more importantly,
supported by overwhelming extrinsic corroboration.” Butler,
278 F. Supp. 3d at 474 (cleaned up).
2
According to Hill and Robinson, Mears intruded on Butler
selling drugs to two boys in the bathroom of a vacant
apartment. Butler confessed to Hill that he “tied the old man
up,” gagged him with a stocking, strangled him with a belt
(until the belt broke) and then with a telephone cord, “poured
some water down his throat to make sure that he was dead,”
and absconded with his keys. Supplemental Appendix (S.A.)
22–23. Butler confessed to Robinson that “he was choking the
man with a belt and the belt broke and then he started choking
him with the telephone cord.” Id. at 150–51. The crime scene
closely corroborated these accounts. The gag inside Mears’s
mouth was “soggy”—wetter than saliva could explain. Id. at
8. Mears’s corpse lacked a belt, keys, or wallet. And in the
kitchen, police discovered a half-open cabinet drawer that
contained a man’s leather belt split into two pieces and left on
top of various other items.
Over the course of four days, the prosecution presented
live testimony from twenty-one witnesses and stipulated
testimony from two more. Hill and Robinson testified at length
about Butler’s confessions to each of them. Three witnesses
placed Butler near the apartment around the time of the murder.
Five witnesses—a medical examiner, a detective, two police
officers, and one neighbor—described the crime scene. Five
witnesses testified about the recovery of Mears’s keys, and one
testified about leaving wet paint in the vacant apartment three
days before the murder. Five expert witnesses testified about
the keys, the crime scene, the water poured down Mears’s
throat, the paint found on the clothes of Mears and Butler, the
torn belt, and hair taken from Mears’s clothing and from Butler.
FBI Special Agent Myron Scholberg briefly testified for
the prosecution, for less than 16 pages of an 800-page trial
transcript. Scholberg began by explaining that the belt had
been torn rather than cut. Scholberg then explained his
3
microscopic examination of the hair found on Mears’s clothing
and of hair samples taken from Butler. Scholberg opined that
the hair on Mears’s clothing “could have come from” Butler,
though he affirmatively disclaimed any “positive
identification.” Appellant’s Appendix (A.A.) 84. Scholberg
further opined that it was virtually impossible for “the hair of
the suspect and the hair of the victim” to be indistinguishable.
Id. at 85. On cross-examination, Scholberg acknowledged that
he had “no statistics” about how many people had hair
indistinguishable from the hair on Mears’s clothing. Id. at 86.
On re-cross, in response to a further question from defense
counsel about “how many other people have the same
microscopic characteristics of their hair follicles as the one that
you identified as Mr. Butler’s hair from the clothing of Mr.
Mears,” Scholberg reiterated: “I have no idea whether anyone
would have the same microscopic characteristics.” Id. at 90.
The defense presented five witnesses to undercut the
credibility of Hill and Robinson and to show that neighbors
discussed Mears’s killing in the hours after the murder. The
jury returned a guilty verdict in one day, and the district court
sentenced Butler to twenty years to life in prison.
On direct appeal, this Court affirmed the conviction and
sentence. We rejected Butler’s contention that the district court
had abused its discretion in failing to order Hill and Robinson
to be tested for drug use. Both were “admitted heroin users,”
and we recognized that this undercut the credibility of their
testimony. 481 F.2d at 534. But, we continued, “[t]he
challenged witnesses’ testimony, while ambiguous at times,
did present a comprehensive and believable narrative. More
importantly, that narrative was supported by overwhelming
extrinsic corroboration, giving substantial independent
assurance of its reliability.” Id. at 535.
4
In 1978, Butler escaped from prison and remained a
fugitive until 2006, when he was caught, convicted of escape,
and returned to prison.
B
In recent years, concerns arose about the use of hair
evidence in criminal trials, which was common before the
development of DNA testing. In response, the Department of
Justice and the Federal Bureau of Investigation, working with
the Innocence Project and the National Association of Criminal
Defense Lawyers, began studying the appropriate uses of such
evidence. In 2012, DOJ issued a statement titled “Microscopic
Hair Comparison Analysis.” A.A. 101. In it, DOJ and the
private organizations agreed that some uses of hair evidence
are entirely appropriate. Specifically, “[t]he scientific analysis
of hair evidence permits a well-trained examiner to offer an
opinion that a known individual can either be included or
excluded as a possible source of a questioned hair collected at
a crime scene.” Id. But because “the size of the pool of people
who could be included as a possible source of a specific hair is
unknown,” a statement “that applies probabilities to a
particular inclusion of someone as a source of a hair of
unknown origin cannot be scientifically supported.” Id. The
statement identifies three instances in which testimony
“exceeds the limits of science”: if the examiner states that
“evidentiary hair could be associated with a specific individual
to the exclusion of all others” (dubbed Error Type 1), assigns
“a statistical weight or probability” to such an association
(Error Type 2), or cites “the number of samples from different
individuals that could not be distinguished from one another as
a predictive value to bolster the conclusion that a hair belongs
to a specific individual” (Error Type 3). Id.5
In 2015, the FBI concluded that Scholberg had committed
two of these errors. First, it asserted that nine lines of testimony
from the direct examination, in which Scholberg discussed the
probability that hair from Butler and Mears would be
indistinguishable, reflected Error Type 2. A.A. 73 (citing Trial
Tr. 531, lines 8–16, reproduced at A.A. 85). Second, the FBI
asserted that three lines of testimony from the re-cross, in
which Scholberg disclaimed any knowledge of the probability
that hair from different people would have the same
microscopic characteristics, reflected Error Type 1. Id. (citing
Trial Tr. 536, lines 9–11, reproduced at A.A. 90). At the same
time, the FBI noted that Scholberg repeatedly had included
“Limiting Language” in his testimony. Id. The FBI notified
the Innocence Project and the NACDL of its conclusions, and
those groups noted their agreement. DOJ then notified Butler’s
counsel and waived in advance any limitations or procedural-
default defenses that might otherwise apply to claims for post-
conviction relief under 28 U.S.C. § 2255. The notice expressly
took “no position regarding the materiality of the error in this
case.” A.A. 68.
Not surprisingly, Butler moved to vacate his conviction
under section 2255. He contended that Scholberg’s testimony
constituted a knowing use of false evidence to convict him, and
thus violated due process. The government did not dispute that
some of Scholberg’s testimony was false or misleading. Nor
did it dispute that the government knew, or should have known,
that some of the testimony was misleading. But, the
government argued, any misleading evidence was not material.
The district court denied relief on that basis. For twelve
pages, the court painstakingly reviewed the evidence and
arguments presented at Butler’s trial. 278 F. Supp. 3d at 463–
74. The court concluded that Scholberg’s testimony was
carefully hedged, id. at 482; that the testimony of Hill and
6
Robinson “remained supported by ‘overwhelming extrinsic
corroboration’” even without the hair evidence, id. at 483
(quoting Butler, 481 F.2d at 535); and that the government’s
entire case, “when viewed as a whole, and even without the hair
testimony,” established Butler’s guilt “beyond a reasonable
doubt,” id. at 484.
II
Under Napue v. Illinois, 360 U.S. 264 (1959), the
government “may not knowingly use false evidence, including
false testimony, to obtain a tainted conviction.” Id. at 269.
Moreover, “[t]he same result obtains when the State, although
not soliciting false evidence, allows it to go uncorrected.” Id.But use or allowance of false testimony does not invariably
require a new trial. To the contrary, it does so only if the
defendant proves materiality—i.e., a “reasonable likelihood
that the false testimony could have affected” the verdict.
United States v. Agurs, 427 U.S. 97, 103 (1976); see Giglio v.
United States, 405 U.S. 150, 154 (1972); Napue, 360 U.S. at
271. We have applied this settled materiality requirement in
“decades of cases” under Napue. United States v. Ausby, 916
F.3d 1089, 1092 (D.C. Cir. 2019) (per curiam). And we have
stressed that “even if the prosecution either sponsored or failed
to correct false testimony, the grant of a new trial is not
automatic.” United States v. Vega, 826 F.3d 514, 529 (D.C.
Cir. 2016) (per curiam).
Supreme Court precedent makes this clear. The Court has
found false testimony to be material in only four cases. Each
time, it stressed the critical importance of the testimony to the
government’s overall case. In Alcorta v. Texas, 355 U.S. 28(1957) (per curiam), the “only eye witness” to a murder gave
perjured testimony that he was not having an affair with the
victim, which was “seriously prejudicial” to the defendant’s
7
contention that he had killed his wife only in “sudden passion,”
upon discovering the affair. See id. at 29–32. In Napue, the
“principal state witness” falsely denied that the government
had “promised him consideration” to testify, and the conviction
rested “largely” on his “extremely important” eyewitness
account. See 360 U.S. at 265–66. In Miller v. Pate, 386 U.S.
1 (1967), a government chemist made a “consistent and
repeated misrepresentation” that paint on the defendant’s
shorts was blood, and this formed a “vital component” of the
government’s case. See id. at 3, 6. In Giglio v. United States,
405 U.S. 150 (1972), the government’s case “depended almost
entirely” on one “key witness,” who falsely denied that the
government had promised not to prosecute him in return for his
testimony. See id. at 151, 154–55.
In contrast, the Court has denied relief for false testimony
even on critical issues, as long as the remaining evidence is
sufficiently strong. In Kaiser v. New York, 394 U.S. 280(1969), the prosecution falsely presented two recorded phone
conversations as confessions. That misrepresentation struck at
the heart of its case, which “rested principally on the content”
of the conversations. Id. at 280. Nonetheless, the record as a
whole “clearly and beyond any reasonable doubt implicated the
defendant,” People v. Kaiser, 233 N.E.2d 818, 821 (N.Y.
1967), and the jury, which “knew the circumstances under
which the incriminating statements had been made,” could
itself evaluate the misrepresentation in context. See 394 U.S.
at 281 n.5. Likewise, in Giles v. Maryland, 386 U.S. 66 (1967),
five justices rejected two Napue claims for lack of materiality.
Giles involved rape convictions resting on testimony from the
victim and her date on the night at issue. A plurality would
have ordered further consideration of whether the government
had knowingly elicited from them false testimony about one of
the defendants and about whether the victim had engaged in
sexual activity with her date, who was not one of the
8
defendants. See id. at 74–76 (opinion of Brennan, J.).
Although the Court remanded on other grounds, a majority held
that neither Napue claim was material: the first involved a
dispute fully aired out at trial, and the second involved at most
an “inconclusive intimation” of the victim’s promiscuity,
which could “scarcely have sufficed to change the trial’s
outcome.” Id. at 111–12 (Harlan, J., dissenting); see id. at 82–
83 (White, J., concurring in the judgment).
This Court too has confirmed that Napue’s materiality
requirement has bite. So far as I can tell, we have found the
requirement satisfied only twice in the six decades since Napue
was decided. In United States v. Iverson, 637 F.2d 799 (D.C.
Cir. 1980), we reversed a conviction where the government had
failed to correct perjury by a “key witness” who falsely testified
that she “had nothing to gain from testifying for the
government.” Id. at 801.1 And in Ausby, we set aside a
conviction resting in part on expert testimony falsely stating
that hair from the crime scene could be “positively” identified
as the defendant’s. 916 F.3d at 1091–92. We described this
testimony as “the primary evidence that directly contradicted”
the position of the defense, which could “plausibly explain[]”
all the government’s remaining evidence. Id. at 1095.
Over the same period, we rejected at least six Napue
claims for lack of materiality. In four cases, the disputed
testimony was insignificant relative to the prosecution’s overall
case. See United States v. Sitzmann, 893 F.3d 811, 828–29
(D.C. Cir. 2018) (per curiam) (“single reference during a five-
week trial … was unlikely to have influenced the verdict,
especially in light of the abundant evidence at trial” (cleaned
1
On rehearing, we remanded the case for further factfinding on
whether the defense knew that this testimony was false. United
States v. Iverson, 648 F.2d 737 (D.C. Cir. 1981).
9
up)); Vega, 826 F.3d at 531 (false testimony was “just gilding
the lily”); United States v. Burch, 156 F.3d 1315, 1328–29
(D.C. Cir. 1998); United States v. Anderson, 509 F.2d 312,
326–27 & n.110 (D.C. Cir. 1974). In a fifth case, “the [false]
testimony was corrected, and [the defendant] failed to
demonstrate that the misleading content of the initial testimony
could nevertheless have affected the judgment of the jury.”
United States v. Straker, 800 F.3d 570, 604 (D.C. Cir. 2015)
(per curiam). In a sixth, the false testimony was immaterial
because the defense received the critical evidence “in time to
make effective use of it.” United States v. Paxson, 861 F.2d
730, 737–38 (D.C. Cir. 1988).
Butler attempts to equate Napue’s materiality requirement
with the harmless-error rule of Chapman v. California, 386
U.S. 18 (1967), under which the government, to preserve a
conviction despite constitutional error, must show no
“reasonable possibility” that the error influenced the jury. See
id. at 23. But “reasonable possibility” is different from
“reasonable likelihood,” and a burden on the government is
different from one on the defendant. We thus decisively
rejected Butler’s position in Ausby. There, we explained that
“the harmless-error standard of Chapman,” which applies only
after a constitutional violation has been established, is
substantively and conceptually different from the materiality
requirement of Napue, which is an essential element of
establishing a due-process violation in the first place. See 916
F.3d at 1092–94.
For their part, my colleagues embrace Chapman in
substance, though not by name. Piecing together scattered
dicta from two cases, they morph Napue’s materiality
requirement into “a veritable hair trigger for setting aside the
conviction,” ante, at 12 (quoting United States v. Gale, 314
F.3d 1, 4 (D.C. Cir. 2003)), which is “quite easily satisfied” and
10
would require “a virtual automatic reversal” whenever the
government has offered false testimony, id. (quoting United
States v. Williams, 233 F.3d 592, 594 (D.C. Cir. 2000) (citation
omitted)). But Gale and Williams cannot bear that weight.
Neither case set aside any conviction, on Napue grounds or
otherwise. In Gale, this Court rejected a Napue claim because
the disputed testimony was not false. See 314 F.3d at 3. We
referenced the supposed “hair trigger” only after doing so, and
only to make the undisputed point that Napue’s materiality
requirement is less demanding than the materiality requirement
for establishing a due-process violation under Brady v.
Maryland, 373 U.S. 83 (1963), based on the government’s
failure to disclose exculpatory evidence without fault. See 314
F.3d at 4. Williams is even further afield. It involved perjury
discovered only after trial. There was no constitutional issue
at all, but only the question of whether the “interests of justice”
required a new trial under Federal Rule of Criminal Procedure
33. See 233 F.3d at 593. Finally, and most importantly, the
dicta quoted by my colleagues do not fairly describe the six
decades of case law applying Napue’s materiality requirement
with some rigor. We should therefore reject the gloss on Napue
suggested by Gale and Williams, just as Ausby rejected prior
dicta mistakenly equating Napue to Chapman. See 916 F.3d at
1094.2
2
The government failed to argue that the harmless-error rule of
Brecht v. Abrahamson, 507 U.S. 619 (1993), should govern Napue
claims raised under section 2255. In Brecht, the Supreme Court held
that, on collateral review under 28 U.S.C. § 2254, courts generally
should deny relief unless the constitutional error “had substantial and
injurious effect or influence in determining the jury’s verdict.” 507
U.S. at 637 (quotation marks omitted). Some courts of appeals have
held that Brecht applies to Napue claims, see, e.g., United States v.
Clay, 720 F.3d 1021, 1025–27 (8th Cir. 2013), and most courts of
appeals have held that Brecht applies to collateral review under
11
III
In this case, there is no reasonable likelihood that
Scholberg’s disputed hair testimony could have affected the
verdict. For one thing, even setting aside that testimony, the
evidence of Butler’s guilt was overwhelming. For another, the
two scraps of disputed testimony—covering twelve lines of
text during a four-day prosecution—were at worst narrowly
misleading and quickly cleared up by various ensuing
clarifications. In the context of the government’s overall case,
the disputed statements were wholly immaterial.
A
As the district court explained, the testimony of Hill and
Robinson, who recounted detailed confessions made by Butler
on the day of the murder, formed “the linchpin of the
government’s case.” Butler, 278 F. Supp. 3d at 483. On direct
review, this Court explained that their testimony “present[ed] a
comprehensive and believable narrative” that “was supported
by overwhelming extrinsic corroboration, giving substantial
independent assurance of its reliability.” Butler, 481 F.2d at
535. Likewise, as the district court explained, even “absent the
hair evidence, the testimony of these two witnesses remained
supported by ‘overwhelming extrinsic corroboration.’” Butler,
278 F. Supp. 3d at 483 (quoting Butler, 481 F.2d at 535).
Butler was friends with, and supplied heroin to, Hill and
Robinson. When police separately interviewed Hill and
Robinson one day after the murder, both gave consistent
statements reporting confessions that Butler had made to them
section 2255, see United States v. Smith, 723 F.3d 510, 517 (4th Cir.
2013) (collecting cases). In this circuit, both questions remain open
for consideration in a case where the government raises the issue.
12
within one to three hours of the crime. Hill and Robinson then
repeated their accounts as the star witnesses at Butler’s trial.
Hill provided the fullest narrative. He testified that he
called Butler between 3:00 and 3:30 p.m. on the day of the
murder, looking for heroin. Over the telephone, Butler told
Hill that he had just left the home of Ellen Johnson—the sister
of Butler’s girlfriend—where “he had just killed the rent man”
for her building. S.A. 22. Johnson lived in the building where
Mears’s body was found. According to Hill, Butler “told me
that the old man caught him selling narcotics to two boys, and
the old man knocked it over and came over and flushed it.” Id.Hill added that Butler “told me he tied the old man up and put
a stocking or something in his mouth, and was choking him
with a belt, and the belt broke and he started choking him with
a telephone cord.” Id. Finally, “he poured some water down
his throat to make sure that he was dead.” Id. Later, around
4:00 p.m., Butler went to Hill’s home and divulged more
details, including how he had taken “some keys to the
apartment or … to the man’s car.” Id. at 23. Butler also
revealed that the killing took place in the bathroom of an
“[u]pstairs apartment.” Id. at 28.
Robinson’s testimony reinforced Hill’s. She arrived at
Hill’s house around 4:30 p.m. on the day of the murder, where
she found Hill and Butler using heroin. Hill told Robinson that
“Dennis just killed a man.” S.A. 150. Butler then “cut in” to
explain that he “had to do something,” and that “he was
choking the man with a belt and the belt broke and then he
started choking him with the telephone cord.” Id. at 150–51.
According to Robinson, Hill added that Butler had killed Mears
because “the man caught Dennis selling narcotics in the
bathroom to two boys.” Id. at 152.
13
My colleagues note fair grounds for questioning the
credibility of Hill and Robinson: both used heroin, both gave
conflicting testimony about the extent of their drug use, and
Robinson gave the police inconsistent statements about which
details of the murder she learned directly from Butler and
which she learned indirectly through Hill. Ante, at 13.
Nonetheless, both knew and separately reported key details of
the murder that they could have learned only from the
murderer. Hill and Robinson each knew that the killer had
choked Mears with a belt until it broke. Additionally, Hill
knew that the killer had poured water down Mears’s throat.
And, of course, the crime scene itself established beyond any
reasonable doubt that they truthfully reported these details.
My colleagues speculate that Hill and Robinson might
have learned these details from Ellen Johnson and then
manufactured a story to frame Butler. Ante, at 20–21. That is
a virtual impossibility. Johnson, a sister of Butler’s girlfriend,
lived in a second-floor apartment in the building where Mears
was killed. She testified that, when another neighbor told her
of Mears’s death, she went upstairs to the vacant apartment,
entered it, “just stood there and looked at [the body] and came
back out.” S.A. 212. During this brief visit to the crime scene,
Johnson noticed that Mears “had something white stuffed in his
mouth and a cord around his neck and his hands were tied
behind his back.” Id. But Johnson did not go into the
bathroom, bedroom, or kitchen of the apartment, and she did
not “look in anything, in any of the cabinets or any of the tables
or anything in the kitchen.” Id. at 219–20. Thus, it is highly
unlikely that she would have noticed (but failed to mention in
her testimony) that the stocking protruding from Mears’s
mouth was wetter than spit would explain and then would have
inferred that the murderer must have poured water down his
throat. Likewise, it is virtually impossible that she would have
looked in the kitchen drawer (from her position outside the
14
bathroom), noticed the torn belt among other random items,
and inferred that it must have been a failed murder weapon used
before the telephone cord finished the job. Johnson—who had
no motive to shade her testimony adversely to Butler—further
testified that she did not convey to Hill the details of what she
saw at the crime scene. Id. at 215. My colleagues cite other
evidence suggesting that Johnson conveyed those details to her
sister Lillian Harring, who in turn conveyed them to Mary
Dean (another sister, who was also Butler’s girlfriend), who in
turn conveyed them to Hill. Id. at 450–52. Even if those
various communications occurred in the hours after the murder,
Johnson still cannot be the source of Hill’s and Robinson’s
knowledge that the murderer tore a belt trying to strangle
Mears, or Hill’s knowledge that the murderer then poured
water down Mears’s throat to make sure that he was dead. The
only rational account of this evidence is the obvious one:
Butler confessed to Hill and Robinson, just as they testified.
Other evidence linked Butler to the crime. Many
eyewitnesses placed him near the building around the time of
the murder, and one even saw Butler and Mears working
together on a car around 12:30 to 1:00 p.m. In addition, two
weeks after the murder, Mears’s keys were found on a rooftop
three doors down from the home where Butler lived with his
girlfriend, almost half a mile away from where Mears was
murdered. Furthermore, when Butler was arrested in the early
morning of September 30, the day after the murder, his pants
had a spot of aqua-colored paint. Three days before the murder,
Wilson Dean, the brother of Butler’s girlfriend, was painting
the apartment where the murder took place. Dean testified that
he left in the apartment a pan of paint, a roller, and an open
paint bucket with some cans and soda bottles inside it. When
police inspected the crime scene, they found the pan, roller, and
bucket. They also found aqua-colored paint stains on Mears’s
coat and on a Pepsi bottle containing water and lying inside his
15
coat. An expert for the government testified that the paint on
Butler’s pants, the paint on Mears’s coat, and the paint on the
Pepsi bottle all were similar or identical “in color, texture, and
type of paint.” S.A. 342.
My colleagues seek to discount all this corroborating
evidence piece by piece. Butler’s presence at the apartment
building, they say, could have been a coincidence. The keys,
they say, could have been taken and thrown away by anyone.
And the paint, they say, might have stained Butler’s pants days
earlier. Ante, at 15–16. True enough, but the individual pieces
of evidence are more powerful than my colleagues
acknowledge. To reiterate, Butler was seen together with
Mears right outside the apartment building, within a few hours
of the time of death, and Mears’s keys were recovered three
doors down from where Butler lived, almost half a mile away
from the murder scene. As for the paint, Wilson Dean did
testify that Butler “came up” to the vacant apartment as Dean
was painting on the Saturday before the murder, though he
“didn’t stay too long.” S.A. 241. But it is far less likely that
such a brief visit would cause paint-stained pants than would
the murderer’s struggle to tie up and gag the victim, grab a soda
bottle from an open paint bucket, fill it with water, and pour the
water down the victim’s throat. Moreover, the paint left in the
apartment by Dean must have still been wet on the day of the
murder; the expert testified that the paint was “applied while
wet” to the clothes of both Mears and Butler, id. at 342, and
there is no evidence suggesting that Mears might have been
dabbed while Dean painted on the prior Saturday.
Furthermore, Dean’s testimony is incriminating in another
respect. It establishes that Butler, who himself used and sold
heroin, would have known that the third-floor apartment was
vacant—and thus an ideal spot from which to make the sales.
Finally, whatever the probative force of any one piece of
evidence considered in isolation, “individual pieces of
16
evidence, insufficient in themselves to prove a point, may in
cumulation prove it.” Bourjaily v. United States, 483 U.S. 171,
179 (1987). Here, these various pieces of evidence, together
with the confessions reported by Hill and Robinson, make the
case against Butler overwhelming.
B
Compared to all this evidence, the disputed hair testimony
played only a minor role at trial. Much of Scholberg’s
testimony was appropriate—and made the case against Butler
even stronger. According to the FBI, Scholberg “exceeded the
limits of science” in only two asserted overstatements made in
twelve lines of testimony. A.A. 67–73. But these fleeting
scraps were at worst confusing or ambiguous, and any marginal
prejudice that they may have caused was immediately cured by
corrective and cautionary statements from the prosecution,
from defense counsel, and from Scholberg himself—including
in twenty-five lines of testimony that the FBI itself recognized
as appropriate “Limiting Language.” Id. at 73.
In his direct testimony, Scholberg began by explaining the
basics of microscopic hair analysis, through which samples of
hair can be classified as similar or dissimilar in some sixteen
different respects. After explaining that the hair taken from
Mears’s clothing and the hair samples taken from Butler were
similar in all those respects, Scholberg offered the measured
and appropriate conclusion that the hair from Mears’s clothing
“could have come from the head of the defendant.” A.A. 84.
Scholberg then elaborated on why he had hedged his
conclusion:
Now, I say could have because hairs do not contain
enough identifying characteristics to be positively
identified as originating from a certain head of a
certain individual to the exclusion of all other
17
individuals in this race group. This is not a positive
identification. My testimony is they are the same or
alike in all the microscopic characteristics that were
available to me.
Id. (emphasis added). Measured against the DOJ guidelines on
appropriate and inappropriate uses of hair evidence, this
testimony was permissible—indeed, it was exemplary.
The first snippet deemed by the FBI to be false involved
eight lines of testimony immediately after this passage, at the
end of the direct examination. After Scholberg explained his
inability to make a positive identification, the prosecutor asked
him “how likely or how unlikely is it for two hairs to be
microscopically alike, yet come from different people?” A.A.
85. A direct response could have amounted to Error Type 2,
had it offered any “probability” that the hair found on Mears’s
clothing belonged to Butler. Id. at 101. But Scholberg’s
answer was nonresponsive. He stated that, in his roughly
10,000 examinations, there were only “four or five times when
the hair of the suspect and the hair of the victim was so nearly
alike … that I was unable to come to a conclusion as to where
these hairs originated.” Id. at 85 (emphases added). This
suggested a very low probability that the hair of Mears and
Butler would be indistinguishable. But as defense counsel
stressed in closing argument, Mears and Butler were different
races, their hair looked entirely different, and nobody had
argued to the contrary. In other words, far from overstating the
likelihood that the hair found on Mears’s clothing belonged to
Butler, Scholberg’s nonresponsive answer tended to rule out
that the hair belonged to Mears—a possibility not at issue in
the case. In context, any overstatement in Scholberg’s direct
testimony was immaterial.
18
In any event, immediately after this garbled exchange, the
defense cleared up any confusion and thus cured any prejudice.
At the beginning of the cross-examination, defense counsel
shifted attention away from the question whether “the hair of
the defendant and the hair of the victim” were alike. A.A. 85.
Counsel then elicited further testimony stressing Scholberg’s
limited ability to connect the crime-scene hair to Butler:
Q: But, your testimony is that you cannot say
positively that ... the known hair from Mr. Butler is
the same as the hair that was taken from the clothes of
the decedent, Mr. Mears? You cannot say positively?
A: That these hairs originated from the head of the
defendant?
Q: Right.
A: That is correct.
Q: They could have originated from someone else’s
head as well?
A: If all of the characteristics were the same, yes.
Q: That could be any number of people. You don’t
have any idea how many people that could be?
A: I have no statistics to illustrate this any further, no.
Id. at 86. This testimony was clear, perfectly appropriate,
consistent with DOJ guidelines, and recognized by the FBI as
proper “Limiting Language.” Id. at 73.
19
The second snippet flagged by the FBI is even more
obviously immaterial. It involved a small portion of the re-
cross, the entirety of which is this:
Q: The relevant statistical comparison would not be
between the victim’s hair and the defendant’s hair. It
would be between the microscopic identification you
could make of one hair and the rest of the community
that might have the same kind of hair. In other words,
we don’t know how many other people have the same
microscopic characteristics of their hair follicles as the
one that you identified as Mr. Butler’s hair from the
clothing of Mr. Mears, isn’t that correct?
A: Yes, that is correct. I have no idea whether anyone
would have the same microscopic characteristics.
Q: It could be no one or it could be 200 people.
A: It could be no one or it could be someone. I don’t
have any basis to ... assign a number to it. That is
correct.
A.A. 90. The obvious takeaway points are that (i) the
dissimilarity of Butler’s hair and Mears’s hair is beside the
point, and (ii) the probability that the crime-scene hair was
Butler’s is unknown. None of that is problematic, and the FBI
itself designated three lines of this testimony as appropriate
“Limiting Language.” Id. at 73. Yet the FBI still found Error
Type 1—associating crime-scene hair to Butler “to the
exclusion of all others”—from the three lines of testimony in
which Scholberg indicated agreement with the statement that
“we don’t know how many other people have the same
microscopic characteristics of their hair follicles as the one that
you identified as Mr. Butler’s hair from the clothing of Mr.
Mears.” Id. at 71–73, 90 (emphasis added). This makes no
20
sense. Any overstatement, in suggesting that Scholberg had
previously identified the crime-scene hair as Butler’s, was built
into a long, leading question formulated by defense counsel.
By casually answering “Yes, that is correct,” Scholberg made
at worst an invited error, which is hardly grounds for setting
aside a conviction. See, e.g., United States v. Ginyard, 215
F.3d 83, 88 (D.C. Cir. 2000) (per curiam). In any event, the
thrust of the exchange was not to suggest that Scholberg had
positively identified Butler as the murderer. Precisely the
opposite: defense counsel posited that “we don’t know how
many other people” have hair microscopically
indistinguishable from Butler’s, and Scholberg repeatedly
agreed that he had “no idea.” A.A. 90. This disputed testimony
is actually helpful to Butler.
In fairness, I should note that the short redirect
examination raises two similar concerns, although the FBI did
not identify it as containing any false testimony. First,
Scholberg briefly repeated the point that he could almost never
fail to distinguish the hair of a defendant from that of a victim.
For the reasons explained above, that statement is immaterial
in this case, even if slightly misleading. Second, the prosecutor
asked whether Scholberg was testifying that the crime-scene
hair was “only similar” to Butler’s. A.A. 89. Scholberg
responded: “No, I am not. When you imply that something is
similar, you are implying that it is also different in some
respects. My report and my testimony is that these hairs are
the same. They are alike in all identifiable microscopic
characteristics.” Id. In isolation, this exchange might
misleadingly suggest that Scholberg could positively identify
the crime-scene hair as Butler’s. But all Scholberg said was
that the hairs “are alike in all identifiable microscopic
characteristics,” and his direct examination explained at length
why that did not and could not amount to a positive
identification. Moreover, defense counsel immediately cleared
21
up this point in the re-cross, where Scholberg twice
acknowledged that he could not positively identify the crime-
scene hairs as belonging to Butler—or even estimate the
probability that they belonged to Butler.
Closing argument reveals much the same pattern: the hair
evidence played a small role in the government’s overall case,
and any overstatements were at worst fleeting, marginally
misleading, and amply corrected. The government addressed
hair evidence in barely more than one page of its 25-page
closing. Moreover, its discussion of that evidence was
carefully hedged. The government reminded the jury that
Scholberg “couldn’t say whose hair it was,” and it merely
asked the jury to “consider” the hair evidence rather than to
“find [Butler] guilty on that evidence.” S.A. 495–96. In
contrast, the government described Hill’s and Robinson’s
knowledge of the torn belt and Hill’s knowledge of the water
in Mears’s throat as “pivotal.” Id. at 530. Likewise, the
government called the discovery of the keys next to Butler’s
home “very crucial.” Id. at 492. The government did briefly
mention the four-in-ten-thousand probability of “two different
people” having microscopically indistinguishable hair. Id. at
496. But in Butler’s closing argument, after reminding the jury
yet again that Scholberg “could not testify that it was Dennis
Butler’s hair,” defense counsel hammered away—at length and
with great effectiveness—at the irrelevance of Scholberg’s one
statement of probability:
Now, ladies and gentlemen there was some testimony
regarding the hair and four out of ten thousand. Let’s
get that straight. The FBI expert testified that out of
ten thousand cases that he handled only in four cases
was the hair of the decedent and the hair of the suspect
alike. That is what he testified to. I want you to
remember that. From all of the testimony adduced
22
from the stand there is no question but that the
decedent was a white man and Dennis Butler is a black
man. There can be no similarity of hair. So he can
add ten thousand to five. Keep that in mind. The
Government tried to change that testimony around but
that is what the record shows.
Id. at 520. My colleagues note that the government, in its
closing argument and rebuttal, stressed that the crime-scene
hair and Butler’s hair were “the same in every microscopic
detail” or characteristic. Id. at 495–96, 535; ante, at 9. But this
did not highlight false testimony at all. Instead, it reflected the
legitimate use of expert testimony that Butler, because his hair
matched the crime-scene hair in all microscopically observable
respects, could fairly be “included … as a possible source” of
that hair. A.A. 101.
C
This case is unlike any other in which we or the Supreme
Court have found false testimony to be material. Scholberg’s
disputed statements do not amount to perjury by “the only eye
witness to the killing.” Alcorta, 355 U.S. at 29. Nor do they
involve lies about plea deals secretly offered to key fact
witnesses. Giglio, 405 U.S. at 151; Napue, 360 U.S. at 265;
Iverson, 637 F.2d at 801. And they are nothing like false
testimony that paint stains were blood stains. Miller, 386 U.S.
at 6. To the contrary, like the disputed testimony in Sitzmann,
they involve brief comments made during a lengthy trial and
dwarfed by “abundant evidence” of guilt. See 893 F.3d at 829.
Moreover, Napue involved only “uncorrected” false
testimony, 360 U.S. at 269, which jurors are “not themselves
in a position to evaluate,” Kaiser, 394 U.S. at 282 n.5. See
Long v. Pfister, 874 F.3d 544, 548 (7th Cir. 2017) (en banc)
(“All Napue itself holds is that perjury known to the
23
prosecution must be corrected before the jury retires.”). Here,
in contrast, any misleading testimony was quickly corrected, so
Butler had to show “that the misleading content of the initial
testimony could nonetheless have affected the judgment of the
jury.” Straker, 800 F.3d at 604. In any case involving
corrected testimony, that would be an uphill battle. See, e.g.,
United States v. Chavez, 894 F.3d 593, 601 (4th Cir. 2018) (“It
is difficult to imagine how a conviction could have been
‘obtained by the knowing use of perjured testimony’ when that
testimony was almost immediately corrected by the witness
himself.”); United States v. Joyner, 201 F.3d 61, 82 (2d Cir.
2000) (“cross-examination and jury instructions regarding
witness credibility will normally purge the taint of false
testimony”); United States v. Cassino, 467 F.2d 610, 622 (2d
Cir. 1972) (“the fact that the jury learned the details of the story
precludes a successful [Napue] challenge”). Here it is an
impossibility, given the amount of independent incriminating
evidence, the fleeting and marginal nature of any misleading
statements, and the promptness and thoroughness of the
ensuing corrections.
Finally, Butler can take no refuge in Ausby. There, the
disputed testimony constituted “the primary evidence that
directly contradicted [the] defense theory,” which “plausibly
explained the remaining evidence” presented by the
government. 916 F.3d at 1095. But here, there was a mountain
of untainted evidence that the defense could not plausibly
explain away. Moreover, the improper testimony in Ausby
“played a key role” at trial, as “borne out by the prosecution’s
emphasis” of the point that the hair evidence amounted to a
“positive” identification. Id. Here, in contrast, the prosecution
disavowed such an overstatement, and the hair evidence played
a much smaller part in the overall case. If Ausby was by its
24
own reckoning a borderline case of materiality, see 916 F.3d at
1094–95, then Butler’s case falls far short.3
* * * *
Because Butler failed to show that the disputed hair
evidence in this case was material, we should affirm the district
court’s judgment declining to set aside his sentence. Firmly
but respectfully, I dissent.
3
My colleagues contend that Ausby is indistinguishable because,
there as well as here, the hair testimony was equivocal and other
evidence of guilt was strong. Ante, at 22–24. But in his closing
rebuttal, the prosecutor in Ausby argued that hair-comparison
evidence “‘is not a positive means of identification but it amounts to
a positive means here.’” 916 F.3d at 1095 (emphasis added) (quoting
rebuttal argument). This in turn built on expert testimony that the
crime-scene hair matching the defendant’s hair had “unusual”
characteristics present in “less than five percent” of individuals of
the defendant’s race. United States v. Ausby, 275 F. Supp. 3d 7, 16
(D.D.C. 2017), rev’d, 916 F.3d 1089 (D.C. Cir. 2019). Under the
FBI’s current thinking, that was an obvious Error Type 2—and was
quite unlike any testimony given by Scholberg. Other evidence
made clear that Ausby had entered the victim’s apartment and exited
it through a window, either on or shortly before the day of the
murder. See 916 F.3d at 1091. We concluded that the defense
theory—that Ausby had burgled the apartment a few days before,
when he was seen loitering in the apartment building—“plausibly
explained” the evidence. Id. at 1095. In contrast, Butler has no
plausible innocent explanation of how Hill and Robinson could have
known about the torn belt or how Hill could have known about the
water poured down Mears’s throat.