v. Genrich

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
August 29, 2019
2019COA132
No. 16CA0651, People v. Genrich — Topical subject
keywords
In the wake of a report funded by Congress and published by
the National Academy of Science that calls into question the
scientific method underlying toolmark identification, a division of
the court of appeals considers whether a defendant is entitled to an
evidentiary hearing based on newly discovered evidence.
A majority of the division, including a special concurrence,
holds that the report — coupled with an affidavit of an expert
witness applying the report to the toolmark evidence sustaining the
defendant’s conviction — is sufficient to warrant an evidentiary
hearing under Crim. P. 35(c).
However, the dissent disagrees, concluding that the report and
accompanying affidavit are not newly discovered evidence, but
rather unapplied academic theories — the content of which the
defense essentially presented at trial, long before the report’s
publication.
The majority also concludes that the supreme court’s decision
in Farrar v. People, 208 P.3d 802 (Colo. 2009), did not announce a
heightened standard for ordering a new trial based on newly
discovered evidence. The special concurrence takes it a step further
to state that, even if Farrar imposed a heightened standard, it
applies only to victim recantation cases. The dissent counters these
conclusions, asserting that Farrar declared that newly discovered
evidence must be material such that it is affirmatively probative of
innocence, and that the supreme court did not indicate that
recantation should be treated differently than any other type of
newly discovered evidence.
Finally, the special concurrence concludes, but the dissent
disagrees, that due process concerns also entitle the defendant to
an evidentiary hearing.
COLORADO COURT OF APPEALS 2019COA132
______________________________________________________________________________
Court of Appeals No. 16CA0651
Mesa County District Court No. 92CR95
Honorable Richard T. Gurley, Judge
______________________________________________________________________________
The People of the State of Colorado,
Plaintiff-Appellee,
v.
James Genrich,
Defendant-Appellant.
______________________________________________________________________________
ORDER AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division I
Opinion by JUDGE TAUBMAN
Berger, J., specially concurs
Tow, J., concurs in part and dissents in part
Announced August 29, 2019
______________________________________________________________________________
Philip J. Weiser, Attorney General, Matthew S. Holman, First Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Cummins Krulewitch, Beth L. Krulewitch, Aspen, Colorado; Weil, Gotshal &
Manges, LLP, Irwin H. Warren, Edward Soto, New York, New York; M. Chris
Fabricant, Dana M. Delger, New York, New York, for Defendant-Appellant
¶1 Defendant, James Genrich, appeals the district court’s denial
of his Crim. P. 35(c) motion for postconviction relief. He contends
that the district court erred in denying him an evidentiary hearing
to prove allegations set forth in his motion and incorporated
affidavit. In support of his argument, he points to a 2009 report,
commissioned by Congress and published by the National Academy
of Sciences, Nat’l Research Council of the Nat’l Acads.,
Strengthening Forensic Science in the United States: A Path Forward
(2009), https://perma.cc/8H3Q-S9SU (hereinafter NAS Report),
that found toolmark identification evidence — which served as a
linchpin in the prosecution’s case against him — had not been
scientifically validated. He also alleges that the district court
violated his right to due process by admitting such evidence to
support his conviction. In addition, he contends that the opinions
of a forensic scientist, premised on extensive scholarship, review of
the evidence, knowledge of contemporary scientific consensus, and
authorship of the NAS Report, constitute newly discovered evidence
that undermines confidence in the jury’s verdicts. We agree in part
and remand for a new evidentiary hearing.
1
¶2 Following oral arguments, we requested that the parties file
supplemental briefs addressing (1) whether Farrar v. People, 208
P.3d 702 (Colo. 2009), establishes a new standard for granting a
new trial based on a claim of newly discovered evidence; and, if so,
(2) whether the proffered newly discovered evidence set forth in the
petition for postconviction relief is affirmatively probative of
Genrich’s innocence.
I. Law of this Case
¶3 Based on my opinion, Judge Berger’s concurring opinion, and
Judge Tow’s partially dissenting opinion, we believe that the law of
this case is as follows:
• The postconviction court’s order denying Genrich’s Crim.
P. 35(c) motion is affirmed in part and reversed in part.
It is affirmed as to all of Genrich’s convictions other than
his convictions for class 1 felonies. It is reversed as to
the class 1 felonies, and the case is remanded to the
postconviction court for an evidentiary hearing and for
findings of fact and conclusions of law following the
hearing.
2
• Farrar v. People, 208 P.3d 702, 706-07 (Colo. 2009), did
not establish a heightened standard for Genrich’s Crim.
P. 35(c) newly discovered evidence claim. Instead, on
remand the postconviction court should apply the
supreme court’s holdings in People v. Rodriguez, 914
P.2d 230, 292 (Colo. 1996); People v. Gutierrez, 622 P.2d
547, 559 (Colo. 1981); People v. Scheidt, 187 Colo. 20,
22, 528 P.2d 232, 233 (1974); and Digiallonardo v.
People, 175 Colo. 560, 568, 488 P.2d 1109, 1113 (1971).
• This division has not made a determination whether the
exclusion of O’Neil’s testimony would likely result in an
acquittal; that determination is for the postconviction
court to make following the evidentiary hearing.
¶4 This division expresses no view as to whether Genrich
ultimately is entitled to a new trial.
II. Background
¶5 Genrich was convicted of two counts of first degree murder,
and multiple other felonies, arising from a series of pipe bombs
detonated in Grand Junction, Colorado, in 1991.
3
¶6 In April 1989, law enforcement officers launched an
investigation in connection with a pipe bomb discovered and
disarmed in the parking lot of the La Court Motor Lodge in Grand
Junction. Investigators did not identify the perpetrator, and the
case lay dormant until three pipe bombs exploded within months of
each other in the spring of 1991. The bombs — set off at the Two
Rivers Convention Center, a residence, and the Feedlot Restaurant
— left one injured and two dead, spurring terror in Grand Junction
and a joint investigation by the Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF) and local police.
¶7 ATF investigators connected the bombings to a serial bomber,
with Genrich as their primary suspect. They based their suspicions
on reports of his unusual behavior, including his former
employment at the convention center and his presence near the
area of the explosion hours before the detonation of the first of the
three 1991 bombs. Investigators learned that Genrich had inquired
at a local bookstore about the Anarchist Cookbook — a book that,
among other things, contained instructions for manufacturing
explosives.
4
¶8 Officer Robert Russell and ATF Agent Larry Kresl spoke with
Genrich twice during the summer of 1991. On both occasions,
Genrich invited them into his one-room apartment in a boarding
house and voluntarily answered their questions. During the first
conversation, Genrich indicated that he was aware of the bombs at
the convention center and the Feedlot Restaurant, stating that he
had heard the explosion at the Feedlot from his apartment, but that
he did not know any details about the incidents. Genrich also
shared his background with Officer Russell and Agent Kresl. He
said he had studied electronics at DeVry Technical Trade Institute
in Phoenix, Arizona, after he graduated from high school and
continued to live in Phoenix for a time (including during April 1989,
when the first pipe bomb was discovered). Genrich explained that
he had worked at the convention center but quit because there was
not much work. He denied ordering the Anarchist Cookbook but
admitted that he was familiar with it because he had seen it in a
Phoenix bookstore where he had worked. When Officer Russell
asked about his relationship with women, he said that he “gets
upset with women easy.”
5
¶9 During Genrich’s second conversation with Officer Russell,
and ATF Agents Kresl and Jeffrey Brouse, Genrich allowed the
agents to search his room. The agents discovered two electrical
Buss-type fuses and a handwritten note expressing anger,
frustration, and threatening violence against women. Genrich
admitted writing the note.
¶ 10 Based on this investigation, Officer Russell obtained and
executed a search warrant for Genrich’s apartment. During this
formal search, he found a second note, similar to the first, also
threatening to kill unspecified persons, as well as an electrical fuse,
a pair of yellow-handled needle-nose pliers with wire cutters, metal
wires, a plastic toolbox containing a soldering iron and green-
handled pliers, a second toolbox containing yellow-handled pliers
and other tools, a home and auto electrical repair kit, wire
strippers, and an electrical circuit board. However, investigators
did not find traces of gunpowder or other explosives; mercury
switches; bombmaking instructions; or diagrams, drawings, or
prototypes of plans to construct bombs.
¶ 11 While Officer Russell conducted his search of Genrich’s
apartment, Genrich agreed to speak with ATF Agent Debra Dassler.
6
She testified that he told her he had moved back to Grand Junction
two and a half years earlier and that, since he had been back, he
often walked around alone late at night. He also told her that he
had attempted to order the Anarchist Cookbook at a bookstore to
“piss the lady off at the bookstore.”
¶ 12 During their conversation, he volunteered that he would not
blow up the convention center because he had two friends who
worked there. When she asked him what he thought the agents
were looking for in their search of his apartment, he replied that
they would probably take his electronics tools because they could
be used to make a bomb.
¶ 13 He also said he knew that a bomb had exploded at a
residence. He recognized the address but indicated that because he
did not own a car, “it would be a long way for him to walk.”
Following the search, the items seized were sent to labs and ATF
agents commenced round-the-clock, covert surveillance. However,
at some point, Genrich realized that he was being watched and
engaged ATF agents in conversation, insisting that he was not the
bomber.
7
¶ 14 Meanwhile, Agent Brouse visited twenty-five hardware stores
in the Grand Junction area to determine which stores carried pipe
fittings, specifically “Coin brand end caps,” which were used in the
construction of the bombs. Agent Brouse found only one store
carrying that brand of end caps, Surplus City; it was located five
blocks from Genrich’s apartment. An employee recalled having
seen Genrich wandering the aisles where the galvanized pipe,1
ammunition, and guns were stocked.
¶ 15 The surveillance of Genrich did not result in any inculpatory
evidence. Further, no crime lab tests showed any trace of
gunpowder or other explosive residue on Genrich’s seized
belongings, and no fingerprints were found on the bombs.
¶ 16 In an effort to obtain a confession, agents asked Genrich’s
parents to wear an electronic recording device to allow them to
listen in on a rehearsed conversation with Genrich, which invited
Genrich to admit that he had committed the crimes. However,
Genrich denied involvement and instead expressed dismay that his
1Jerry Hill, the prosecution’s expert witness in crime scene analysis
and explosives analysis, testified that all three of the 1991 pipe
bombs were made with galvanized steel.
8
mother and stepfather could believe he was capable of carrying out
the bombings.
¶ 17 Based on the evidence described above, a grand jury indicted
him on two counts of murder and related felonies.
¶ 18 The trial at which he was convicted took place in 1993. The
prosecution called two principal expert witnesses at trial, John
O’Neil — an ATF expert in firearms and, as relevant here, toolmark
identification — and Agent Jerry Taylor — an expert in bomb
technology and explosives analysis.
¶ 19 O’Neil was qualified as an expert based on his on-the-job
training as a firearms and toolmark examiner during lengthy
employment with the ATF. Although he lacked an advanced degree,
he had testified as an expert approximately 465 times and used
scientific techniques accepted at the time to identify toolmarks. 2
O’Neil testified regarding the basis for his analysis of toolmarks,
telling the jury that all tools possess unique identifiers at a
microscopic level, and these unique characteristics imprint a
signature mark on other substances, such as wire, that come into
2“Toolmarks are generated when a hard object (tool) comes into
contact with a relatively softer object.” NAS Report, at 150.
9
contact with the tool. According to O’Neil, these signature marks
enabled him to determine whether a particular tool made a
particular mark. He explained that, during his examination, he
must “figure out how that tool was used, how it was applied to the
object. If it’s a cutting type of tool, was it cut at an angle? Was it
perpendicular to the object? Did he move it as he cut through the
wire?”
¶ 20 He also told the jury that he was the first person in his field to
distinguish the characteristics3 for “cutting type” tools and
“gripping type” tools. He further testified that, after determining to
what class a tool belongs and how it was used, an examiner can
microscopically determine whether a “suspect tool” was responsible
for the striations made on a wire that are caused by the unique
manufacturing marks left on the tool.
¶ 21 He further opined that he had never encountered a situation
in which the mark left by a tool was not unique. He based this
opinion on an experiment he had conducted by examining two tools
3 O’Neil explained that certain observable characteristics of
toolmarks, including the type, shape, and dimension of the
impression, allow him to determine what type of tool was used to
make the impression.
10
manufactured consecutively on the same assembly line. He
observed that “although there [were] similarities between [the] two
tools, it was very easy to determine that [the] marks that were left
behind were entirely different.”
¶ 22 He admitted that he had no background in statistical theory,
inferential statistics, mathematical statistics, probability theory,
experiment design, sampling methods, sampling techniques, quality
control, or bias in experiment design. Nevertheless, he told the jury
that he had identified three tools seized from Genrich’s room — to
the exclusion of any other tool — as the tools used in the creation of
one or more of the bombs. The prosecution relied on O’Neil’s
testimony about “individualization” — the unique marks made by
each cutting tool — to support its theory that Genrich constructed
each of the bombs.
¶ 23 After O’Neil’s testimony, Agent Taylor testified, based on his
analysis of the unexploded 1989 bomb and reconstructions of the
other three, that a serial bomber was responsible for all four bombs
found in 1989 and 1991. Agent Taylor testified that, in his
experience in examining 10,000 bombs, the four bombs in question
11
were unlike any he had seen, which led him to conclude they were
made by the same person.
¶ 24 He further recounted that Surplus City — the store located a
few blocks from Genrich’s residence — carried all the items required
to construct the bombs.
¶ 25 During closing arguments, the People focused on the
interconnectedness of the detonations, relying on O’Neil’s expert
testimony:
• all four bombs were identically constructed;
• three specific tools — [Genrich’s] needle-nose wire
cutters, his wire strippers with the chip in the blade, and
his yellow-handled pliers — were used to build the
bombs; and
• Genrich was the only person who had possession of or
access to those tools; he never loaned them to anyone.
¶ 26 The prosecutor added, “If you need further proof that all three
of these are linked together, you get that from John O’Neil . . .
[n]one of the 700 people who were in the Association of Firearms
and Toolmark Examiners will say he’s wrong.”
12
¶ 27 To counter this expert testimony, the defense presented
evidence that two of the four bombings appeared to have been
aimed at specific targets apparently unknown to Genrich; law
enforcement officials had not investigated alternate suspects who,
unlike Genrich, had experience with explosives; Genrich lived in
Phoenix at the time of the first explosion in 1989 and so could not
have placed a bomb in Grand Junction then; and Genrich did not
drive or own a car, making it difficult to transport and place the
volatile explosive devices without detonation.
¶ 28 The jury returned guilty verdicts after four days of
deliberation, convicting Genrich of two counts of first degree
murder, three counts of use of an explosive or incendiary device in
the commission of a felony, and one count of third degree assault.
¶ 29 Genrich directly appealed, and a division of this court
affirmed. The division specifically held that toolmark identification
evidence was widely accepted by courts across the country and that
the admission of O’Neil’s opinions did not constitute error. People
v. Genrich, 928 P.2d 799 (Colo. App. 1996).
¶ 30 In February 2016, nearly two decades after the supreme court
denied certiorari, Genrich moved under Crim. P. 35(c) for a new
13
trial based on newly discovered evidence. He supported his motion
with an affidavit of a scientist who opined that years after Genrich’s
trial, scientists had concluded that there was no scientific basis for
most of O’Neil’s opinions. The expert relied on the 2009 NAS
Report, which concluded that there was no scientific underpinning
for the types of opinions given by O’Neil. Specifically, the report
determined, among other things, that conclusions reached on the
foundational theory of toolmark identification (used by O’Neil) —
especially the association of evidence to a known source — had no
basis in scientifically validated principles.
¶ 31 A sworn affidavit from Dr. Jay Siegel, a member of the
committee that authored the NAS Report, explained that he could
provide expert testimony to explain the relevance of the NAS Report
to Genrich’s case and relate it to the toolmark identification relied
on by the prosecution. Dr. Siegel’s affidavit stated that the NAS
Report “calls into question whether the conclusion of
individualization — the exclusive sourcing of a tool mark to one
particular tool — is ever justified.”
¶ 32 In his motion for a new trial, Genrich alleged that, because the
sole evidence (Dr. Siegel’s tool characterization) tying him to the
14
pipe bombs was faulty science now condemned nationally by
forensic science experts, his conviction had been based on false
evidence and was invalid. Genrich requested an evidentiary hearing
on these issues, but by written order the district court denied his
motion without a hearing.
¶ 33 In its order, the district court relied on several cases in which
courts outside of Colorado had concluded that toolmark evidence,
at least the marks left by a firearm, remained sufficiently reliable to
justify its admission in a criminal trial. In applying the test for a
new trial based on newly discovered evidence, the court concluded
that Genrich’s claims did not satisfy the third and fourth prongs of
People v. Muniz, 928 P.2d 1352 (Colo. App. 1996). Applying People
v. Shreck, 22 P.3d 68 (Colo. 2001), which established Colorado’s
test for the admission of expert testimony, the court concluded that
both at the time of Genrich’s trial and at the time the court decided
Genrich’s Crim. P. 35(c) motion, O’Neil’s testimony remained
sufficiently reliable to be presented to a jury. According to the
court, the NAS Report and Dr. Siegel’s opinions merely impeached
O’Neil’s opinions, and newly discovered evidence that is merely
impeaching does not warrant a new trial under Muniz. Genrich
15
moved for reconsideration of the order denying his motion for a new
trial, presenting a second affidavit from Dr. Siegel. In that affidavit
Dr. Siegel distinguished firearm identification from toolmark
identification, explaining that
[s]ince there is only one way for a bullet to
travel down the barrel of a gun, so long as the
same weapon is used with the same type of
ammunition, the markings on a bullet or
cartridge will be relatively reproducible
through many consecutive firings. Thus . . .
there is some basis to express opinions
regarding the probability that the subject gun
fired the recovered evidence. The same is not
true . . . where the tool at issue is . . . a
common hand tool, such as a wire cutter. The
marks made by a wire cutter are impacted by
numerous variables that include the
examiner’s ability to replicate the exact
manner in which the tool was used . . . .
The court, noting that nothing in Crim. P. 35(c) permits a
motion for reconsideration, treated the motion for
reconsideration as a C.R.C.P. 60(b) motion, and denied it,
concluding that it was merely a reiteration of the original
Crim. P. 35(c) motion.
III. Preliminary Preservation Matters
¶ 34 Section 16-5-402, C.R.S. 2018, imposes a three-year time
limitation for collateral attacks on felonies other than class 1
16
felonies. (No time limit applies to challenges to convictions of class
1 felonies.) If a defendant files a motion after the applicable time
limit runs, he or she must assert justifiable excuse or excusable
neglect. Id.; People v. Wiedemer, 852 P.2d 424, 428 (Colo. 1993). If
no such exception is alleged, our review is limited to claims and
allegations presented to the district court in the original Crim. P.
35(c) motion. Therefore, we may not consider claims or allegations
in a Rule 35(c) motion raised for the first time on appeal. People v.
Stovall, 2012 COA 7M, ¶ 3, 284 P.3d 151, 153.
¶ 35 With this standard in mind, we agree with the People that
Genrich failed to set forth an exception to the time limitation
imposed on his three convictions for the use of an explosive or
incendiary device in the commission of a felony and his conviction
for third degree assault. Accordingly, we limit his challenge to his
murder convictions.
¶ 36 We also agree that his argument regarding a 2016 report,
President’s Council of Advisors on Sci. & Tech., Exec. Office of the
President, Forensic Science in Criminal Courts: Ensuring Scientific
Validity of Feature-Comparison Methods (2016),
https://perma.cc/J3EA-QP7V, that purportedly undermines the
17
“degree of certainty to the exclusion of any other tool” and that
O’Neil asserted in support of his theory of individualization was not
preserved. Stovall, ¶ 3, 284 P.3d at 153. Therefore, we may not
consider this report.
IV. Validity of Expert Testimony Used to Convict
¶ 37 Genrich contends that the district court erred in denying him
an evidentiary hearing. We agree with respect to his murder
convictions.
A. Standard of Review
¶ 38 We review de novo a postconviction court’s decision to deny a
Crim. P. 35(c) motion without holding an evidentiary hearing.
People v. Gardner, 250 P.3d 1262, 1266 (Colo. App. 2010). A court
may deny a Crim. P. 35(c) motion without a hearing only if “the
motion and the files and record of the case” establish that the
allegations lack merit and do not entitle the defendant to relief.
Crim. P. 35(c)(3)(IV); Kazadi v. People, 2012 CO 73, ¶ 17, 291 P.3d
16, 22.
18
B. Applicable Law
1. Muniz
¶ 39 While motions for a new trial based on newly discovered
evidence are disfavored, in some cases injustice can only be avoided
by granting a new trial. The bar to prevail on a motion for a new
trial based on newly discovered evidence is high but not
insurmountable. “Depending upon such things as the nature of the
additional evidence, the circumstances of its discovery, and the
strength of the existing evidence supporting conviction, we have at
times highlighted different considerations in making the
determination and have articulated the applicable standards in a
variety of terms.” Farrar, 208 P.3d at 706.
¶ 40 The traditional standard applied by Colorado courts to a
motion for a new trial based on newly discovered evidence requires
a defendant to show that (1) the evidence was discovered after trial;
(2) the defendant and his attorney exercised due diligence to
discover all possible favorable evidence prior to and during trial; (3)
the newly discovered evidence is material to the issues involved and
not merely cumulative or impeaching; and (4) the newly discovered
19
evidence is of such character as probably to bring about an
acquittal if presented at another trial. Muniz, 928 P.2d at 1357.
2. Farrar
¶ 41 In Farrar, a case involving the recantation of testimony by a
sexual assault victim, the supreme court stated that newly
discovered evidence
must be consequential in the sense of being
affirmatively probative of the defendant’s
innocence, whether that is accomplished by
helping to demonstrate that someone else
probably committed the crime; that the
defendant probably could not have committed
the crime; or even that the crime was probably
not committed at all.
Farrar, 208 P.3d at 707.
¶ 42 In his supplemental brief, the Attorney General argues that
whatever the reach of the allegations in Genrich’s postconviction
motion, they are not affirmatively probative of his innocence.
¶ 43 We conclude that the above-quoted language in Farrar did not
establish a new test for granting a motion for a new trial based on
newly discovered evidence and that the test announced in Muniz
remains the law.
20
a. Farrar Did Not Announce a New Test
¶ 44 While the Farrar court stated that the new evidence must be
affirmatively probative of the defendant’s innocence, a careful
reading of Farrar reveals that the court did not apply any such
heightened test. The court actually applied the Muniz test set forth
in Digiallonardo v. People, 175 Colo. 560, 567-68, 488 P.2d 1109,
1113 (1971), and People v. Scheidt, 187 Colo. 20, 22, 528 P.2d 232,
233 (1974).
¶ 45 Supporting this reading of Farrar is the following statement:
“In addition to probably being believed by reasonable jurors, the
witness’s new version of events must be of such significance in its
own right as to probably cause reasonable jurors to acquit the
defendant.” Farrar, 208 P.3d at 708. This language mirrors the
traditional standard set forth in Muniz — “the newly discovered
evidence is of such character as probably to bring about an
acquittal verdict if presented at another trial.” 928 P.2d at 1357.
Further, the dissent in Farrar did not interpret the majority’s
opinion as articulating a new standard displacing Muniz; instead, it
argued that the evidence there was of such significance as to
probably bring about Farrar’s acquittal on retrial. Farrar, 208 P.3d
21
 at 710 (Bender, J., dissenting) (“The majority states that new
impeachment evidence can justify a new trial only when it is of
such significance that it would probably bring about an acquittal
before a new jury.”).
b. Application of Farrar by Other Divisions
¶ 46 Since Farrar, divisions of our court have consistently applied
the Muniz test. See People v. Gee, 2015 COA 151, ¶ 73, 371 P.3d
714, 725-26 (citing Muniz as the applicable standard to analyze
whether newly discovered evidence warrants a new trial). Though
two divisions of our court have cited the above-quoted language in
Farrar, neither applied its “actual innocence” language.
¶ 47 In People v. Hopper, 284 P.3d 87 (Colo. App. 2011), the
defendant was charged with two counts of possession of a
controlled substance, two special offender sentencing counts, and
one count of possession of a dangerous weapon in connection with
a search of the vehicle in which the defendant was riding that
uncovered firearms, drug paraphernalia, and drugs. Id. at 89. At
trial, he argued that the other men he was riding with planted the
illegal items in the vehicle — unbeknownst to him — and
repositioned them to implicate him in the crime. Id. In a motion for
22
a new trial, the defendant offered newly discovered witness
testimony from two inmates housed in the same facility as the men
who purportedly framed the defendant for the crimes. Id. at 92-93.
The inmates were prepared to testify that the other men had
admitted allowing the defendant to “go[] down for something [one of
the men] had done,” one of the other men had transferred the guns
and drugs into the vehicle, and the guns and drugs belonged to one
of the other men. Id. at 93. The division concluded that none of the
testimony offered was material or affirmatively probative of the
defendant’s innocence because, along with part of it being
cumulative, the defendant’s possession and ownership of the
weapons and drugs were not at issue in the trial. Thus, the
proffered evidence was not material under any standard because it
would not have undermined the conviction.
¶ 48 Significantly, the Hopper division did not address whether the
above-quoted Farrar language set forth a new standard. Id. at 92-
93. Although the division cited the above-quoted Farrar language,
it does not appear that it actually relied on it. Instead, it relied on
three other grounds to dismiss the defendant’s petition — the
23
proffered new evidence was cumulative, not probative of a matter at
issue, and lacked any potential to undermine the conviction.
¶ 49 Similarly, in People v. Poindexter, the division cited the above-
quoted language in Farrar, but ultimately applied the standard
articulated in Muniz. 2013 COA 93, ¶¶ 44, 51, 338 P.3d 352, 360,
361.
¶ 50 Accordingly, we conclude that Farrar did not establish a new
standard for motions for a new trial based on newly discovered
evidence.
C. Analysis: Muniz Applies Here
¶ 51 Concluding that the standard articulated in Muniz, 928 P.2d
at 1357, applies here, I must first determine what constitutes new
evidence. Academic theories may form the basis for an expert to
interpret existing evidence. See People v. Bonan, 2014 COA 156,
¶ 31, 357 P.3d 231, 236 (explaining that, while academic theories
applied to existing evidence may form the basis for interpreting
evidence, unapplied academic theories do not constitute evidence at
all). The new evidence must demonstrate sufficient materiality to
suggest that, when considered with all evidence presented at trial,
“a reasonable jury would probably conclude that there existed a
24
reasonable doubt as to defendant’s guilt and thereby bring about an
acquittal verdict.” People v. Tomey, 969 P.2d 785, 787 (Colo. App.
1998); see also Mason v. People, 25 P.3d 764, 768 (Colo. 2001). We
must consider this standard through the lens of the district court’s
threshold determination in a Crim. P. 35(c) motion: Can the
defendant’s petition for postconviction relief be denied without the
benefit of an evidentiary hearing? It is the trial court’s
responsibility to determine the weight of the proffered evidence, and
based on that, to conclude whether the evidence would probably
result in acquittal if presented at another trial. Thus, if the facts
alleged in the Crim. P. 35(c) motion, taken as true, may entitle the
defendant to a new trial, the court must conduct an evidentiary
hearing.
¶ 52 Scientific advances in forensic evidence have been the basis
for new evidentiary hearings and new trials throughout the country.
See Andrea Roth, Safety in Numbers? Deciding When DNA Alone Is
Enough to Convict, 85 N.Y.U. L. Rev. 1130 (2010). Significantly, the
United States Supreme Court has relied on the NAS Report’s
findings and analysis by other legal scholars, observing that
“[s]erious deficiencies have been found in the forensic evidence used
25
in criminal trials.” Melendez-Diaz v. Massachusetts, 557 U.S. 305,
319 (2009). Writing for the majority in Melendez-Diaz, Justice
Scalia quoted the report’s conclusion that “[t]he forensic science
system, encompassing both research and practice, has serious
problems that can only be addressed by a national commitment to
overhaul the current structure that supports the forensic science
community in this country.” Id. (quoting NAS Report, at xx). The
Court also pointed out that “[o]ne study of cases in which
exonerating evidence resulted in the overturning of criminal
convictions concluded that invalid forensic testimony contributed to
the convictions in 60% of the cases.” Id. (citing Brandon L. Garrett
& Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful
Convictions, 95 Va. L. Rev. 1, 14 (2009)).
¶ 53 In State v. Behn, a New Jersey court recognized that a study
calling into question an expert witness’s opinion as to the
uniqueness and source of bullet lead, conducted after the
defendant’s conviction, constituted new evidence entitling the
defendant to a new trial. 868 A.2d 329, 344 (N.J. Super. Ct. App.
Div. 2005).
26
¶ 54 I next turn to the question of whether the evidence could have
been discovered prior to or during trial with due diligence. Muniz,
928 P.2d at 1357. However, for our purposes, a report issued
nineteen years after a defendant’s conviction indisputably could not
have been discovered prior to or during the trial. Though Genrich
proffered his own expert to rebut O’Neil’s testimony, the toolmark
identification methods used by O’Neil were generally accepted at the
time.
¶ 55 Turning to the third and fourth prongs of the Muniz analysis, I
address the questions of materiality and magnitude.
¶ 56 In Farrar, the supreme court declared that a witness’s
recantation necessarily impeaches the recanting witness’s
credibility; thus, witness recantation justifies a new trial only when
it contradicts the prior testimony with a different and more credible
account. 208 P.3d at 708. Similarly, in Tomey, a division of our
court concluded that newly discovered evidence consisting of a
victim’s hearsay statement that was inconsistent with the victim’s
former testimony necessitated a new trial. 969 P.2d at 787. The
division reasoned that the statement presented more than mere
27
impeachment evidence because, if believed, it would mean that the
victim had lied about key facts at trial. Id.
¶ 57 The Behn court applied an analysis similar to that required by
Muniz and determined that the report at issue there demonstrated
sufficient materiality because it called into question key evidence
relied on at trial. 868 A.2d at 344. In deciding whether the report
was mere impeachment evidence, the court considered the test
concerning materiality of undisclosed exculpatory evidence
established in Brady v. Maryland, 373 U.S. 83 (1963). Id. “Under
the Brady standard, ‘withheld evidence that is material may be that
which impeaches a witness where the issue of the witness’
reliability and credibility is crucial.’” Id. at 345 (quoting State v.
Henries, 704 A.2d 24, 35 (N.J. Super. Ct. App. Div. 1997)).
Concluding that the results of the study would have effectively
neutralized the testimony of a key expert in the prosecution’s case,
the court determined that the study probably could have changed
the jury’s verdict. Id. It reasoned that “[w]hile the State’s case,
although circumstantial, was strong, it was ‘far from
overwhelming.’” Id. (quoting State v. Ways, 850 A.2d 440, 453 (N.J.
28
2004)). Thus, the court granted a new trial based on the newly
discovered evidence. Id. at 346.
¶ 58 The Third and Ninth Circuits have also allowed a defendant to
seek relief from convictions based on flawed forensic evidence by
alleging a constitutional violation. Gimenez v. Ochoa, 821 F.3d
1136, 1144 (9th Cir. 2016); Han Tak Lee v. Houtzdale SCI, 798 F.3d
159, 162 (3d Cir. 2015); Albrecht v. Horn, 485 F.3d 103, 124 n.7 (3d
Cir. 2007). The Han Tak Lee court granted habeas corpus relief to a
defendant based on new developments in the field of fire science
that undermined the reliability of expert testimony about arson
provided at the defendant’s trial. 798 F.3d at 167. There, the Third
Circuit determined that the expert testimony on arson “constituted
the principal pillar of proof tying [the defendant] to th[e] arson fire
and the death of [the victim],” and the remaining evidence at his
trial was insufficient to prove the defendant’s guilt beyond a
reasonable doubt. Id. at 167-69.
¶ 59 Though we need not conclude here that forensic evidence later
deemed flawed violates a defendant’s constitutional rights, we find
it instructive in connection with our analysis of whether newly
discovered evidence based on the motion, files, and record, taken as
29
true, entitles a defendant to a new evidentiary hearing. See Crim.
P. 35(c); cf. Farrar, 208 P.3d at 706 (stating that newly discovered
evidence upsetting a guilty verdict does not implicate the
constitutionality of a conviction, and declaring that the decision to
grant a new trial based on new evidence instead rests on the
“balance between the need for finality and the state’s interest in
ensuring the fairness and accuracy of its proceedings”).
¶ 60 The affidavit based on the NAS Report, satisfies the first and
second prongs of the Muniz test. The affidavit, applying the report
to the facts of the case, provides relevant evidence that would be
helpful to the jury, and the report’s publication followed Genrich’s
convictions by almost two decades. 4
4 We recognize that the NAS Report does not render false all
toolmark identification evidence; however, we conclude that its
determination that the lack of precisely defined processes and
specified standards sufficiently undermines the reliability of
toolmark identification evidence to warrant an evidentiary hearing.
The NAS Report concluded that more rigorous scientific studies to
understand the reliability and the repeatability of these methods is
required to “make the process of individualization more
precise . . . .” NAS Report, at 154. Similarly, we do not conclude
that at a hearing on Genrich’s motion the trial court would or
should determine that none of O’Neil’s testimony would be
admissible in the event of a retrial. The extent to which O’Neil
could testify would be determined by the trial court.
30
¶ 61 Though Genrich’s petition satisfies the first two prongs of the
test for a motion for a new trial, the third and fourth prongs
encompass the crux of the dispute. The district court ruled that
Genrich’s proffered evidence was merely impeaching. However, we
conclude that the evidence offered bears similarity to the evidence
alleged in Behn. Though it may serve to impeach O’Neil’s
testimony, the proffered evidence, if believed, is of the sort that calls
into question the reliability and credibility of a key witness.
Genrich’s newly discovered evidence, as in Behn, may effectively
neutralize the testimony of O’Neil, a key prosecution witness.
¶ 62 We also consider the test, announced in Shreck, 22 P.3d at 82-
83, to determine the admissibility of expert testimony. Specifically,
we look to CRE 702 and the focus of the inquiry set forth in Shreck
— whether the scientific principles underlying the expert’s
testimony are reliable. See People v. Wilkerson, 114 P.3d 874, 877
(Colo. 2005). The trial court may consider a multitude of factors in
its consideration.5 Here, the evidence is akin to that proffered in
5 The supreme court emphasized that a trial court may consider the
nonexclusive list of factors set forth in Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993): (1) whether the
technique can and has been tested; (2) whether the theory or
31
Han Tak Lee and Behn. Dr. Siegel’s affidavit applying the NAS
Report offers peer-reviewed, scientifically accepted evidence that
counters O’Neil’s testimony that furnished the principal evidence
connecting Genrich to the pipe bombs at trial.
¶ 63 Finally, I conclude that Genrich’s allegations entitle him to an
evidentiary hearing to establish the fourth element of Muniz — that
his evidence is likely to bring about an acquittal if presented at a
new trial. Without a developed record, we cannot hold that
Genrich’s allegations, if true, are likely to bring about an acquittal,
but we conclude that they dramatically increase his chances of
obtaining an acquittal. Once again, this is for the trial court to
determine following an evidentiary hearing.
¶ 64 Despite the People’s reliance on Bonan to contend that
unapplied academic theories do not constitute evidence, let alone
newly discovered evidence under Crim. P. 35(c), we conclude that
Bonan is distinguishable. There, a division of our court determined
technique has been subjected to peer review and publication; (3) the
scientific technique’s known or potential rate of error, and the
existence and maintenance of standards controlling the technique’s
operation; and (4) whether the technique has been generally
accepted. People v. Shreck, 22 P.3d 68, 77-78 (Colo. 2001).
32
that the defendant’s presentation of an academic theory, without
having proffered an expert witness to testify as to the theory and
relate it to the defendant’s case, was not newly discovered evidence
warranting a new trial. Bonan, ¶ 31, 357 P.3d at 236. Dr. Siegel’s
assertions in his affidavit apply the findings of the NAS Report to
the circumstances of Genrich’s case, thus differentiating the
present facts from those of Bonan.
¶ 65 Moreover, it is probable that, as in Han Tak Lee, O’Neil’s
testimony tying Genrich’s tools to the marks on the pipe bombs
served as the prosecution’s pillar of proof, and the other evidence
presented at trial cannot, alone, sustain a conviction. In fact, the
prosecutor’s heavy reliance on O’Neil’s toolmark identification
during closing arguments demonstrates its significance to Genrich’s
murder convictions.
¶ 66 Most of the other evidence against Genrich was arguably
insufficient to establish his guilt. 6 That evidence — including the
6 We disagree with Genrich’s statement that “the sole evidence
connecting him to the deadly pipe bombs was the same type of
faux-expert opinions discussed and condemned in the NAS report.”
As noted in the text, some circumstantial evidence supported his
convictions.
33
notes and tools seized from his home, the locations of the bombs,
his proximity to the hardware store that carried the bombmaking
components, his familiarity with the Anarchist Cookbook, and his
late-night walks around town — placed Genrich as a suspect but
may not have sufficiently proved his guilt beyond a reasonable
doubt. Here, Dr. Siegel’s testimony could counter the prosecution’s
expert witness testimony that provided the only direct connection
between Genrich and the pipe bombs. Genrich’s Rule 35(c)
allegations and proffered scientific evidence have the potential to
weaken O’Neil’s testimony about individualization, which the trial
court could conclude would likely lead to an acquittal, given the
lack of other direct evidence presented at trial. However, we need
not determine the precise effect the newly discovered evidence
would have on a jury in a new trial for us to remand to the trial
court for an evidentiary hearing.
¶ 67 Given the proffered expert testimony presented in Genrich’s
Rule 35(c) motion, which, if true, would undermine the cornerstone
of the prosecution’s case, we conclude that Genrich is entitled to an
evidentiary hearing.
34
V. Genrich’s Due Process Argument
¶ 68 Because I conclude that Genrich is entitled to an evidentiary
hearing under Crim. P. 35(c), I need not reach the question of
whether the trial court deprived him of due process in denying his
motion without a hearing.
VI. Conclusion
¶ 69 Accordingly, the order is reversed, and we remand to the
district court for an evidentiary hearing.
JUDGE BERGER specially concurs.
JUDGE TOW concurs in part and dissents in part.
35
JUDGE BERGER, specially concurring.
¶ 70 I agree that James Genrich is entitled to an evidentiary
hearing on his Crim. P. 35(c) motion. But I cannot join Judge
Taubman’s opinion in full. Therefore, I write separately to explain
why Genrich is entitled to a hearing.
¶ 71 Genrich was convicted of multiple felonies, including murder,
in connection with the detonations of three pipe bombs in Grand
Junction, Colorado. Years later, he moved for a new trial under
Crim. P. 35(c), arguing that scientific developments since his trial
demonstrated that expert testimony against him, which concluded
that Genrich’s tools were the only tools that could have made
certain toolmarks left on the pipe bombs, was scientifically
baseless.
¶ 72 The district court denied his motion without an evidentiary
hearing. Relying on cases from other jurisdictions, the court held
that the weight of authority supported the admissibility of the
toolmark identification testimony at the time of Genrich’s trial, as
well as today.
¶ 73 Because I conclude that, taking Genrich’s factual allegations
as true, the record does not clearly establish that Genrich was not
36
entitled to a new trial, I agree with the reversal of the postconviction
court’s denial of Genrich’s Crim. P. 35(c) motion and the remand for
an evidentiary hearing.
I. Background
¶ 74 In April 1989, a pipe bomb was discovered in a motel parking
lot in Grand Junction and disarmed by police. The ensuing
investigation did not identify the bomb maker.
¶ 75 In 1991, three pipe bombs were detonated in Grand Junction
–– the first in February, the second in April, and the third in June
— killing two and injuring another. Investigators recovered pieces
of the detonated pipe bombs and concluded that there were
multiple similarities between the 1989 bomb and each of the 1991
bombs, including that each detonator was powered by an electric
battery and that each bomb’s wiring was soldered to the battery. 1
¶ 76 The investigators identified Genrich as a suspect based on a
tip. Investigators contacted Genrich twice, and on both occasions
he invited them into his apartment. During the second visit, with
1
Investigators in this case included both local police officers and
agents of the Federal Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF).
37
Genrich’s permission, the investigators conducted a search and
recovered a handwritten note in which Genrich expressed his
frustration with his interactions with women, stating, among other
things, “[i]f I end up killing some stuckup bitch don’t blame me,”
and “[t]hese bitches still won’t even talk to me. If I can’t be happy, I
might as well kill one.”
¶ 77 After this visit, investigators obtained and executed a search
warrant for Genrich’s apartment. From the apartment,
investigators took into evidence various tools and equipment,
including a pair of needle-nose pliers, a pair of wire strippers, a pair
of slip-joint pliers, assorted wires, a soldering iron, two Buss-type
fuses of the type used in the 1989 bomb, and a home and auto
electrical repair kit.
¶ 78 Genrich was arrested and charged with first degree murder,
use of explosives to commit a felony, and other related charges.
¶ 79 At trial, the prosecution presented, among other evidence,
expert testimony from John O’Neil, a firearms toolmark examiner
for ATF. O’Neil testified that based on general characteristics of
toolmarks left on components of the pipe bombs, Genrich’s tools
were capable of making certain of those marks. O’Neil then went
38
further, testifying that based on his microscopic analysis and “to
the exclusion of any other tool,” a pair of needle-nose pliers taken
from Genrich’s apartment cut two of the wires used in the 1989
bomb, a pair of wire strippers taken from Genrich’s apartment cut a
wire used in the February 1991 bomb, and a pair of slip-joint pliers
taken from Genrich’s apartment were applied to fragments of the
end caps from the April 1991 and June 1991 bombs (the
individualization testimony). Prompted by the prosecutor, O’Neil
clarified that “to the exclusion of any other tool” meant that “no
other . . . tool could have made those toolmarks.”
¶ 80 As the underlying basis for the individualization testimony,
O’Neil stated that he had once examined two tools of the same make
and model from the same assembly line and concluded that there
were differences between the two. He also stated that in his many
years as a toolmark examiner, he had never come across, or heard
of, two tools being identical at a microscopic level so that they
would leave the same marks.
¶ 81 The defense presented, among other evidence, expert
testimony of Don Searls, a professor with a Ph.D. in statistics and
expertise in experimental design, to rebut O’Neil’s testimony. Searls
39
testified that the toolmark analysis conducted by O’Neil did “not
have a scientific basis,” and that, for the testing to be reliable,
O’Neil would have needed to test multiple tools of the same make
and wear without knowing which one belonged to Genrich, and
have three other investigators perform the same blind test.
¶ 82 The jury convicted Genrich of two counts of first degree
murder, multiple counts of use of an explosive or incendiary device
in the commission of a felony, and third degree assault.
¶ 83 Genrich appealed on multiple grounds, and a division of this
court affirmed, concluding that “experts in the use and analysis of
tools have long been permitted to testify concerning the marks left
by those instruments” and that Genrich’s concerns regarding the
reliability of O’Neil’s testimony went to its weight rather than its
admissibility. People v. Genrich, 928 P.2d 799, 802 (Colo. App.
1996) (Genrich I). The supreme court denied certiorari.
¶ 84 In 2016, Genrich moved for a new trial under Crim. P. 35(c)
and requested an evidentiary hearing. He alleged that, after his
trial, the relevant scientific community had concluded that
toolmark individualization testimony was scientifically baseless
because the underlying science had not been sufficiently tested and
40
validated. To support this claim, Genrich attached an affidavit from
Dr. Jay Siegel, a former professor of forensic science and one of the
authors of a 2009 report issued by the National Research Council,
Nat’l Research Council of the Nat’l Acads., Strengthening Forensic
Science in the United States: A Path Forward (2009),
https://perma.cc/8H3Q-S9SU (NAS Report), assessing the
reliability of, among other forensic evidence, firearms and toolmark
identification. In the affidavit, Dr. Siegel stated that a conclusion
that a specific tool made a toolmark to the exclusion of all other
tools was “unprovable” and had “no scientific support,” citing the
NAS Report to support his claims.
¶ 85 Genrich argued that this new understanding of the reliability
of toolmark individualization testimony (1) demonstrated that he
was convicted on the basis of unreliable forensic evidence in
violation of the United States and Colorado Constitutions’ Due
Process Clauses and (2) constituted new evidence that required a
new trial.
¶ 86 The district court denied the motion without a hearing, noting
the division’s holding in Genrich I and concluding that multiple
courts outside of Colorado had considered the admissibility of
41
toolmark and firearms identification analysis in light of the NAS
Report and had admitted that evidence.
¶ 87 Genrich moved for reconsideration, which the postconviction
court also denied. He then filed this appeal.
II. Analysis
¶ 88 Genrich argues that the court erred when it denied his motion
for a new trial based on newly discovered evidence and due process
violations without holding an evidentiary hearing. I agree.
A. Preliminary Matters
1. Genrich’s Challenges to Convictions for Felonies That Are Not
Class 1 Felonies Are Time Barred
¶ 89 I agree with Judge Taubman’s conclusion and analysis that
Genrich’s challenges to his convictions for felonies that are not
class 1 felonies are time barred under section 16-5-402(1), C.R.S.
2018.
2. Genrich’s Motion for a New Trial Can Be Dismissed Without an
Evidentiary Hearing Only If the Record Clearly Establishes
That He Is Not Entitled to Relief
¶ 90 It is important that we limit our focus to the question before
us — whether the district court erred in denying Genrich’s motion
without an evidentiary hearing — rather than considering whether
42
Genrich’s motion and affidavit, standing alone, entitle him to a new
trial.
¶ 91 We review de novo a postconviction court’s decision denying a
Crim. P. 35(c) motion without holding an evidentiary hearing.
People v. Gardner, 250 P.3d 1262, 1266 (Colo. App. 2010). “A court
may deny a defendant’s Crim. P. 35(c) motion without an
evidentiary hearing ‘only where the motion, files, and record in the
case clearly establish that the allegations presented in the
defendant’s motion are without merit and do not warrant
postconviction relief.’” People v. Chalchi-Sevilla, 2019 COA 75, ¶ 7
(emphasis added) (quoting Ardolino v. People, 69 P.3d 73, 77 (Colo.
2003)). “But where the defendant alleges sufficient facts that, if
true, may warrant relief, the court must conduct an evidentiary
hearing.” Id. (emphasis added).
¶ 92 Thus, the threshold for Genrich to establish that he is entitled
to an evidentiary hearing is lower than the threshold to establish
that he is entitled to a new trial. I conclude he meets that lower bar
with respect to both claims.
43
B. Genrich Is Entitled to an Evidentiary Hearing Based on his
Newly Discovered Evidence Claim
¶ 93 Expert testimony constitutes potent evidence. The imprimatur
of the trial court in qualifying a witness to give expert testimony is
powerful medicine and gives experts an “aura of trustworthiness
and reliability” that few lay witnesses enjoy. People v. Cook, 197
P.3d 269, 277 (Colo. App. 2008). When later developments in
science demonstrate convincingly that so-called expert opinions
were nothing more than uninformed guesses or junk science,
serious miscarriages of justice are possible.
¶ 94 Accordingly, to the extent that the partial dissent contends
that advances in science can never be the basis for a new trial, I
disagree. The difficult question, however, is when such scientific
advances rise to the level that requires a court to reassess a prior
conviction rendered on such faulty evidence. This case well
illustrates the problem.
¶ 95 The partial dissent cites two cases in which courts rejected
newly discovered evidence claims on the grounds that courts cannot
retry cases every time a defendant is able to “find a credible expert
with new research results,” Commonwealth v. LeFave, 714 N.E.2d
44
 805, 813 (Mass. 1999), or there is a new “‘advancement’ in scientific
research,” State v. Gillispie, Nos. 22877, 22912, 2009 WL 2197052,
at *26 (Ohio Ct. App. July 24, 2009) (unpublished opinion). But
those cases involved experts testifying based on new academic
studies, of which there are presumably thousands produced each
year.
¶ 96 The new evidence in this case is markedly different. It involves
an alleged scientific consensus — evidenced by a federally
mandated report representing the conclusions of dozens of experts
in the field — and the application of that consensus to the evidence
in this case by one of the report’s authors. While there will always
be new studies and scientific advances, the new evidence alleged in
this case goes many degrees further.
¶ 97 So while I agree with the partial dissent that not every advance
in science will justify a new trial decades after the conviction (and
most advances certainly will not), this is not one of those cases that
can be dismissed so easily.
45
1. The Evidence Alleged by Genrich Constitutes New Evidence for
Purposes of Crim. P. 35(c)
¶ 98 The partial dissent would affirm the denial of Genrich’s motion
without an evidentiary hearing because the NAS Report is not new
evidence for purposes of Crim. P. 35(c). I agree with the partial
dissent that, standing alone, the NAS Report does not constitute
new evidence. However, that is not the evidence at issue here.
¶ 99 Crim. P. 35(c)(2)(V) states that a convicted defendant may
apply for postconviction review if
there exists evidence of material facts, not
theretofore presented and heard, which, by the
exercise of reasonable diligence, could not
have been known to or learned by the
defendant or his attorney prior to the
submission of the issues to the court or jury,
and which requires vacation of the conviction
or sentence in the interest of justice.
¶ 100 The “material fact[]” alleged by Genrich is that there is a
consensus in the relevant scientific community that
individualization testimony, like O’Neil’s individualization
testimony, is scientifically baseless. Crim. P. 35(c)(2)(V). The
“evidence of [that] material fact[]” is an affidavit from one of the
authors of the NAS Report, an indisputably well-qualified expert
46
witness, applying the NAS Report’s conclusions to the
individualization testimony in Genrich’s case. Id.
¶ 101 That evidence is “new” because, although Genrich’s lawyers
vigorously attacked the reliability of O’Neil’s individualization
opinions and called their own expert (though not a toolmark expert)
to attack the scientific basis and reliability of toolmark
individualization opinions during trial in 1992, the alleged scientific
consensus regarding the scientific validity of O’Neil’s
individualization testimony did not exist at that time.
¶ 102 Under the circumstances presented, even skilled cross-
examination pointing out purported weaknesses in the underlying
basis for an expert opinion and counter expert opinions challenging
the scientific validity of expert opinions are hardly the same as the
opinions (evidence) of one of the authors of a congressionally
mandated study addressing forensic evidence.
¶ 103 Contrary to the partial dissent’s and the Attorney General’s
position, the evidence at issue is not an unapplied academic theory
like that in People v. Bonan, 2014 COA 156. In that case, the
division stated that “[a]cademic theories merely form the basis for
interpreting evidence when they are applied to existing evidence.”
47
Id. at ¶ 31. “Unapplied, academic theories do not constitute
evidence” that would support a motion for a new trial. Id. The
division concluded that four academic studies did not, in and of
themselves, merit a new trial under Crim. P. 35(c) because Bonan
“proffered no expert who ha[d] applied the theories he identified to
the evidence presented at his trial.” Id. at ¶ 33. I do not dispute
Bonan’s holding.
¶ 104 Genrich, on the other hand, does not rely solely on the NAS
Report; rather, he relies on the application of the NAS Report to the
evidence in this case. He submitted an affidavit by one of the
authors of the NAS Report specifically applying the conclusions of
the NAS Report to the type of toolmark individualization testimony
presented against Genrich. 2 In the affidavit, Dr. Siegel stated his
understanding that an expert had testified that Genrich’s tools were
the tools used on certain pieces of the pipe bombs to the exclusion
of all other tools in the world. Dr. Siegel opined that this
2
I do not consider the second affidavit of Dr. Siegel, filed with
Genrich’s motion for reconsideration, because it was not included
with the Crim. P. 35(c) motion, and because motions for
reconsideration of a denied Crim. P. 35(c) motion are not authorized
by law. People v. Thomas, 195 P.3d 1162, 1164 (Colo. App. 2008).
48
conclusion is “unprovable” and has “no scientific support.” Thus,
Dr. Siegel’s opinion is not an unapplied academic theory.
2. Standard for Prevailing on a Motion for a New Trial Based on
Newly Discovered Evidence
¶ 105 The supreme court has, on multiple occasions, articulated
what a defendant must show to warrant a new trial based on newly
discovered evidence:
(1) “that the evidence was discovered after the trial;”
(2) “that defendant and his counsel exercised diligence to
discover all possible evidence favorable to the defendant
prior to and during the trial;”
(3) “that the newly discovered evidence is material to the
issues involved, and not merely cumulative or
impeaching; and”
(4) “that on retrial the newly discovered evidence would
probably produce an acquittal.”
Rodriguez, 914 P.2d at 292 (quoting Gutierrez, 622 P.2d at 559).
¶ 106 Contrary to the partial dissent’s position, Farrar, 208 P.3d at
706-07, did not modify this standard by adding a requirement that
the newly discovered evidence be “affirmatively probative of the
49
defendant’s innocence.” Farrar described the third and fourth
prongs of the existing standard as follows:
We have also required that the newly
discovered evidence must not only be relevant
to material issues at trial but that it must also
be of consequence to the outcome. Moreover,
the newly discovered evidence must be of
sufficient consequence for reasons other than
its ability to impeach, or cast doubt upon, the
evidence already presented at trial. It must be
consequential in the sense of being
affirmatively probative of the defendant’s
innocence, whether that is accomplished by
helping to demonstrate that someone else
probably committed the crime; that the
defendant probably could not have committed
the crime; or even that the crime was probably
not committed at all. We have described the
required materiality of newly discovered
evidence, or the extent to which it must be
consequential to the outcome, in various
terms, with varying degrees of precision, but at
least since Digiallonardo, we have specified
that it must be such that it would probably
produce an acquittal.
Id. (citations omitted).
¶ 107 A requirement that newly discovered evidence be affirmatively
probative of the defendant’s innocence (an actual innocence
standard) significantly narrows the types of evidence that merit a
new trial. For instance, consider a scenario in which a defendant
was convicted of robbery solely on the basis of a video showing him
50
committing the robbery, and, after the conviction, new evidence was
discovered demonstrating that the video was entirely fake. That
evidence would not meet the partial dissent’s affirmatively probative
of innocence standard because, while it demonstrates that there
was no basis for the conviction, it does not demonstrate that the
defendant did not commit the crime.
¶ 108 There is no indication in Farrar that this was the court’s
intent. The Farrar court did not state that it was modifying the
existing standard; rather, it repeatedly cited (and applied)
Rodriguez, Gutierrez, Scheidt, and Digiallonardo –– the cases setting
out the existing standard that I (and Judge Taubman) rely on here.
The Farrar court went on to discuss the existing standard’s
materiality requirement in greater detail, but did not restate or
apply the “affirmatively probative” language. The opinion does not
mention it again.
¶ 109 Not only does Farrar cite the existing standard and then apply
it without reference to an actual innocence standard, it explicitly
recognizes that it imposes no heightened requirement that the
charges against the defendant actually be false or unfounded.
Farrar contrasts the test it applies with the test applied when a
51
defendant who has pleaded guilty moves for withdrawal of that plea
based on newly discovered evidence. That test differs from the
existing standard applied in Farrar only because it applies an actual
innocence standard. In order for such a defendant to successfully
withdraw a guilty plea, the defendant must demonstrate that
(1) the newly discovered evidence was
discovered after the entry of the plea, and, in
the exercise of reasonable diligence by the
defendant and his or her counsel, could not
have been earlier discovered; (2) the charges
that the People filed against the defendant, or
the charge(s) to which the defendant pleaded
guilty were actually false or unfounded; and (3)
the newly discovered evidence would probably
bring about a verdict of acquittal in a trial.
People v. Schneider, 25 P.3d 755, 762 (Colo. 2001) (emphasis
added).
¶ 110 The first and third prongs of the Schneider test parallel prongs
of the Gutierrez test applied in Farrar. The distinguishing factor is
Schneider’s requirement that the charges against the defendant who
has pleaded guilty actually be false or unfounded. By recognizing
that Schneider set out a new standard “applicable only to
convictions resulting from guilty pleas,” the Farrar court established
52
that there is no similar requirement for defendants who, like
Genrich, went to trial. 3
¶ 111 The partial dissent contends that the difference highlighted by
Farrar between the two tests is instead that Schneider requires proof
of actual innocence, whereas Farrar only requires that the evidence
support actual innocence. I think this makes too fine a distinction.
¶ 112 Furthermore, although we are typically reluctant to rely on a
dissenting opinion’s interpretation of a majority opinion, the dissent
in Farrar is instructive because it makes the same distinction
between the standard applied by the majority and the standard
applicable in a case in which a defendant seeks to withdraw a guilty
plea based on new evidence, recognizing that such a defendant
bears a “higher burden.” Farrar, 208 P.3d at 711 (Bender, J.,
dissenting) (quoting Schneider, 25 P.3d at 761).
3
Two later Colorado Court of Appeals cases cite the “affirmatively
probative of . . . innocence” language from Farrar v. People, 208
P.3d 702, 707 (Colo. 2009). One, People v. Poindexter, 2013 COA
93, does not apply that language. The other, People v. Hopper, 284
P.3d 87, 92-93 (Colo. App. 2011), does so without needing to.
Without considering whether the testimony at issue was
affirmatively probative of innocence, that testimony was not
material because it lacked any potential to undermine the
conviction.
53
¶ 113 In addition, facts and context matter. The Farrar court
engaged in extensive discussion regarding the unique nature of
victim recantations as the basis for newly discovered evidence
claims, noting “the concerns inherent in the recantation of an
alleged incest or child sexual assault victim,” “the suspicion with
which recantations should be examined,” and “the court’s role in
making an objective assessment of the recanting witness’s
credibility.” Farrar, 208 P.3d at 707. The Farrar court went on to
describe in detail the materiality standard applicable in victim
recantation cases. To the extent Farrar imposed a heightened
materiality standard requiring an actual innocence claim, that
heightened standard only applies in victim recantation cases.
3. The Record Does Not Clearly Establish That Genrich’s Newly
Discovered Evidence Motion Would Fail
¶ 114 Taking Genrich’s factual allegations as true, the record does
not “clearly establish” that Genrich has not met the standard set
out in Rodriguez, Gutierrez, and earlier precedent, and therefore
those allegations, if true, “may warrant relief.” Chalchi-Sevilla, ¶ 7.
¶ 115 First, the new evidence alleged was discovered after trial
because the scientific consensus alleged by Genrich did not emerge
54
until years after his conviction. Second, for the same reason, no
amount of due diligence on the part of Genrich and his counsel
could have discovered this evidence before trial.
¶ 116 Third, the new evidence alleged is material to the issues
involved because it would gut the strongest evidence supporting
Genrich’s conviction –– the individualization testimony. It is not
cumulative because, although Genrich did present the testimony of
a statistician at his trial that O’Neil’s methods were not scientifically
reliable, the testimony of a single defense expert with admittedly no
experience in toolmarks is decidedly different in character and
impact than a report of the National Research Council that
represents the conclusions of dozens of experts in the field and the
testimony of one of its authors applying those conclusions
specifically to the evidence in this case.
¶ 117 The alleged new evidence does more than impeach O’Neil’s
individualization testimony because it is relevant not only to
credibility, but also reliability. Credibility determinations are a
function of the jury. Hildebrand v. New Vista Homes II, LLC, 252
P.3d 1159, 1166 (Colo. App. 2010). Reliability determinations are
at least initially a function of the court, and for expert testimony to
55
be admissible, the court must conclude the scientific principles
underlying it are reliable under CRE 702. Kutzly v. People, 2019
CO 55, ¶¶ 10-12. This determination is separate and apart from
any attempt by a party to impeach a witness. If the trial court
determines under CRE 702 that the opinions are unreliable, the
jury would not hear them at all.
¶ 118 Fourth, because, taking the allegations in Genrich’s motion as
true, the alleged new evidence would likely result in the exclusion of
O’Neil’s individualization testimony, it would significantly increase
the probability of an acquittal.
a. Based on the Alleged New Evidence, the Individualization
Testimony Would Not Be Admissible
¶ 119 To determine whether scientific or other expert testimony is
admissible under CRE 702, the court should “focus on the
reliability and relevance of the proffered evidence” and must make
determinations as to “(1) the reliability of the scientific principles,
(2) the qualifications of the witness, and (3) the usefulness of the
testimony to the jury.” People v. Shreck, 22 P.3d 68, 70 (Colo.
2001).
56
¶ 120 First, accepting Genrich’s allegations as true, there were at the
time of trial, and there are now, no scientific principles underlying
O’Neil’s individualization testimony. Therefore, based on a
straightforward application of CRE 702, O’Neil’s individualization
opinions are not reliable, and that testimony is inadmissible.4
¶ 121 I disagree with the district court’s conclusion that “the weight
of authority from other jurisdictions holds that toolmark
identification testimony is reliable despite the criticisms stated in
the NAS Report.” Each of the cases relied upon by the district court
dealt with matching bullets and cartridge casings to a specific
firearm. United States v. Adams, No. 15-CR-0106 (PJS/FLN), 2016
WL 424967 (D. Minn. Feb. 3, 2016); United States v. Ashburn, 88 F.
Supp. 3d 239, 243-44 (E.D.N.Y. 2015); United States v. Otero, 849
F. Supp. 2d 425, 438 (D.N.J. 2012), aff’d, 557 F. App’x 146 (3d Cir.
2014); People v. Robinson, 2 N.E.3d 383, 395-402 (Ill. App. Ct.
4
I do not address, because it is not implicated by the evidence
alleged by Genrich, whether some form of less conclusive testimony
as to the relationship between the tools and the marks, such as, “I
cannot conclude, based on this evidence, that these tools did not
make these marks,” would be admissible.
57
2013); Commonwealth v. Pytou Heang, 942 N.E.2d 927, 937-38
(Mass. 2011).
¶ 122 With respect to ballistics opinions, numerous courts have
prohibited experts from testifying that bullets or cartridge casings
were fired from a specific firearm to the exclusion of all other
firearms in the world. E.g., Ashburn, 88 F. Supp. 3d at 249; United
States v. Taylor, 663 F. Supp. 2d 1170, 1180 (D.N.M. 2009); United
States v. Glynn, 578 F. Supp. 2d 567 (S.D.N.Y. 2008); United States
v. Monteiro, 407 F. Supp. 2d 351, 372 (D. Mass. 2006) (“Because an
examiner’s bottom line opinion as to an identification is largely a
subjective one, there is no reliable statistical or scientific
methodology which will currently permit the expert to testify that it
is a ‘match’ to an absolute certainty, or to an arbitrary degree of
statistical certainty.”). The courts in those cases concluded that
such testimony lacked scientific reliability.
¶ 123 More importantly, none of the cases relied on by the district
court involved marks left by a hand tool, and the Attorney General
has cited no cases since the release of the NAS Report involving
marks left by a hand tool. Similarly, while Genrich I previously
concluded that the analysis of marks left by hand tools was reliable
58
based on existing precedent from other jurisdictions, the division’s
opinion predated the alleged scientific consensus damning toolmark
individualization evidence.
¶ 124 Opinions from other jurisdictions concluding that firearms
identification testimony is admissible bear little weight here because
of the differences between toolmark identification analysis for
firearms and hand tools. The analysis of toolmarks left on a surface
by a hand tool is inherently more subjective than the analysis of
toolmarks left by a gun on bullets or cartridge casings. While a gun
fires in the same manner each time, there is significantly more
variability in the application of a hand tool, including the angle at
which it is applied, the portion of the blade used, and the force with
which it is applied.
¶ 125 Examiners of toolmarks created by hand tools, as opposed to
those examining bullets and cartridge casings, set out to recreate
the particular way in which a tool was applied to a surface. While a
gun need only be fired once to recreate the markings it would leave
on a bullet, a toolmark examiner might need to make dozens of test
cuts (as was the case here) in order to create a cut that the
59
examiner believes matches, introducing further layers of
subjectivity and variability.
¶ 126 Continued reliance on precedents that predate the
development of an alleged scientific consensus regarding the
reliability of toolmark individualization testimony runs the risk of
“grandfathering in irrationality.” United States v. Green, 405 F.
Supp. 2d 104, 123-24 (D. Mass. 2005) (excluding expert testimony
that a specific gun fired a bullet to “the exclusion of all other guns”).
I decline the Attorney General’s invitation to do so.
¶ 127 Second, again accepting Genrich’s allegations as true, there
are no expert qualifications that would render someone competent
to testify that only one tool in the world could have made a certain
mark. And finally, expert testimony that is unreliable has no
probative value, and therefore would not be useful to a jury.
b. I Cannot Conclude That Genrich Would Be Convicted Without
the Individualization Testimony
¶ 128 On the present record, it is impossible for us to determine
whether exclusion of the toolmark individualization testimony
would likely result in an acquittal. O’Neil testified over a period of
several days, expressing multiple opinions. Some of those opinions
60
undoubtedly would withstand the attack made by Genrich, while
the individualization opinions probably would not. Without a full
analysis of all of O’Neil’s testimony (as well as the other toolmark
expert who testified at trial), I cannot reach a conclusion whether
the exclusion of some or all of this testimony likely would have
resulted in an acquittal. This determination must be made, at least
in the first instance, by the postconviction court after an evidentiary
hearing.
¶ 129 The determination of whether newly discovered evidence would
probably bring about an acquittal “should be premised on whether
the new evidence, as developed in trial, when considered with all
the other evidence, is such that a reasonable jury would probably
conclude that there existed a reasonable doubt as to defendant’s
guilt and thereby bring about an acquittal verdict.” Rodriguez, 914
P.2d at 292.
¶ 130 Turning to the evidence here and excluding the
individualization testimony, the prosecutor introduced the following
evidence:
(1) there were numerous similarities between the four pipe
bombs, including that each lacked a safety mechanism,
61
was a booby-trap device triggered by movement, was
powered by a battery with wires soldered to it, used the
same type of powder, and used Coin brand end caps;
(2) Genrich lived within easy walking distance of the
locations where two of the three 1991 pipe bombs were
detonated;
(3) Genrich had been seen near some of the areas where the
1991 bombs were detonated;
(4) Genrich had threatened in the past to kill people out of
frustrations with women and a perceived lack of respect;
(5) Genrich was familiar with the Anarchist Cookbook, which
includes descriptions of how to make bombs;
(6) Genrich lived five blocks from, and was seen in, Surplus
City, the only hardware store of twenty-five in the area to
carry the type of Coin brand end caps used in the
bombs; 5
5
Law enforcement agents who conducted the search testified to
this. The Coin brand end caps recovered were not in evidence at
trial.
62
(7) two Buss-type fuses were recovered from Genrich’s
apartment, and that is the type of fuse used in the 1989
bomb;
(8) the bombs employed an electronic detonation system,
and Genrich was familiar with electronics from
coursework at DeVry Technical Trade Institute; and
(9) Genrich had tools capable of making the marks that
appeared on certain of the wires and caps used in the
bombs.6
¶ 131 Countering the prosecutor’s case, Genrich introduced evidence
that
(1) he was in Phoenix working at a bookstore when the 1989
bomb was placed; 7
6
I am concerned that Genrich’s attorney ignores virtually all this
evidence. His contention that the only evidence of guilt was O’Neil’s
opinion testimony is demonstrably untrue.
7
Evidence included testimony of Genrich’s coworkers in Phoenix at
the time, a timesheet from his place of employment with
handwritten entries from the bookstore’s employees, and a record of
books returned to the publisher filled out by Genrich on April 14,
1989, the date the first pipe bomb was discovered in Grand
Junction.
63
(2) he was at his mother and stepfather’s house when each
of the 1991 bombs detonated;8
(3) there was no gunpowder residue found at Genrich’s
apartment or his mother and stepfather’s house, and
Genrich did not rent a storage unit in the area;
(4) two other toolmark examiners reviewed O’Neil’s work and
were able to confirm only one of the matches identified by
O’Neil, agreeing that the other purported matches were
inconclusive;
(5) the highly hazardous nature of the bombs (detonated by
movement without a safety switch) suggested that the
maker had bombmaking expertise, which, beyond
testimony that Genrich was familiar with the Anarchist
Cookbook, there is no evidence Genrich had;
8
Both Genrich’s mother and stepfather testified to this and
provided documentary evidence corroborating portions of their
testimony.
64
(6) the only end caps available at Surplus City from a period
in 1990 through the time the bombs were detonated were
not Coin brand;9
(7) there were multiple alternate suspects familiar with
building explosives; and
(8) there was a white vehicle seen at each of the 1991
bombings, and Genrich did not own or have access to a
vehicle.
¶ 132 I conclude that in light of all the evidence, if O’Neil’s
individualization testimony were excluded as the result of the new
evidence alleged, the record does not clearly establish that Genrich
would probably still be convicted.
C. Genrich Is Entitled to an Evidentiary Hearing on the Basis of
His Due Process Claim
¶ 133 In his motion for a new trial, Genrich contended that the
“jury’s verdicts were based on what we now know to be unreliable
forensic evidence, in violation of both the Colorado and United
9
The Surplus City employee responsible for ordering this kind of
part testified that the end caps were slow sellers, and therefore he
knew from his records that the only end caps in stock from the time
he ordered them in 1990 until after the bombings were the non-
Coin brand type.
65
States Constitutions.” I conclude that Genrich has alleged facts
that warrant an evidentiary hearing because the record does not
“clearly establish,” Chalchi-Sevilla, ¶ 7 (quoting Ardolino, 69 P.3d at
77), the absence of a due process violation, and his allegations “may
warrant relief,” id.
¶ 134 Crim. P. 35(c)(2)(I) authorizes postconviction review when “the
conviction was obtained or sentence imposed in violation of the
Constitution or laws of the United States or the constitution or laws
of this state.”
¶ 135 Colorado appellate courts have not previously considered
whether the admission of scientifically unreliable expert testimony
results in a due process violation. However, in Han Tak Lee v.
Houtzdale SCI, 798 F.3d 159, 166 (3d Cir. 2015) (quoting Han Tak
Lee v. Glunt, 667 F.3d 397, 403 (3d Cir. 2012)), the Third Circuit
Court of Appeals held that the admission of scientifically unreliable
expert testimony would violate due process guarantees if the “expert
testimony undermined the fundamental fairness of the entire trial
because the probative value of [that] evidence, though relevant,
[was] greatly outweighed by the prejudice to the accused from its
66
admission.” The Ninth Circuit Court of Appeals adopted this
approach in Gimenez v. Ochoa, 821 F.3d 1136 (9th Cir. 2016).
¶ 136 Habeas relief for a due process violation is not available,
however, if there was “ample other evidence of guilt.” Glunt, 667
F.3d at 407 n.13 (quoting Albrecht v. Horn, 485 F.3d 103, 126 (3d
Cir. 2007)).
¶ 137 I conclude that Colorado law recognizes the due process
claims recognized by both the Third and Ninth Circuits.
¶ 138 Given the significant potential for O’Neil’s expert
individualization testimony to have swayed the jury to convict
Genrich, I consider the elements of the Han Tak Lee test and
conclude that Genrich’s due process claims warrant an evidentiary
hearing.
1. Han Tak Lee
¶ 139 In Han Tak Lee, 798 F.3d at 161, a jury convicted a father of
first degree murder and arson after his daughter died in a house
fire. At trial, the prosecutor relied heavily on “fire-science and gas-
chromatography evidence” introduced through expert testimony.
Id. at 161-62. Years later, the father filed a petition for habeas
corpus arguing that his conviction violated due process because the
67
expert testimony had been based on what he claimed was
unreliable science. Id. at 162.
¶ 140 The federal district court denied the petition, but the Third
Circuit reversed. Id. The father then prevailed on remand following
an evidentiary hearing. Id. The district court concluded that “the
admission of the fire expert testimony undermined the fundamental
fairness of the entire trial” because the verdict “rest[ed] almost
entirely upon scientific pillars which have now eroded.” Id. (quoting
Han Tak Lee v. Tennis, No. 4:08-CV-1972, 2014 WL 3894306, at
*15-16 (M.D. Pa. June 13, 2014)).
¶ 141 The district court also concluded, despite the fact that the
Commonwealth of Pennsylvania had introduced evidence that the
father had strangled his daughter before the fire, had shown little
grief after the incident, and had provided conflicting accounts of the
fire, that the Commonwealth had failed to demonstrate that there
was ample other evidence of guilt. Id. The Third Circuit affirmed.
2. Due Process Violation
¶ 142 Assuming the truth of Genrich’s allegations in his Crim. P.
35(c) motion, the prejudicial effect of the individualization testimony
significantly outweighs its probative value. The individualization
68
testimony was allegedly scientifically baseless and therefore, as
discussed above, had no probative value. It was highly prejudicial
because (1) it was the strongest piece of evidence against Genrich;
(2) it was offered by an expert witness whose opinion, as an expert
witness for the State, bore an “aura of trustworthiness and
reliability” not typically afforded that of lay witnesses, Cook, 197
P.3d at 277; and (3) the prosecutor relied heavily on the
individualization testimony in opening statement and closing
argument.
3. Ample Other Evidence of Guilt
¶ 143 As discussed above, I disagree with Genrich that the “sole
evidentiary basis” for his conviction was the individualization
testimony. However, whether there was ample other evidence of his
guilt such that he would not be entitled to, at the very least, an
evidentiary hearing is a closer question. As detailed above, both the
prosecutor and Genrich introduced significant evidence apart from
the individualization testimony.
¶ 144 The partial dissent takes the position that because there is
some other evidence of Genrich’s guilt, his due process claim must
be rejected. But that is not the test. There must be “ample other
69
evidence of guilt.” Han Tak Lee, 798 F.3d at 166 (emphasis added)
(quoting Glunt, 667 F.3d at 407 n.13). Further, in order to reject
the due process claim without an evidentiary hearing, the record
must “clearly establish” that there is ample evidence of guilt.
Chalchi-Sevilla, ¶ 7 (emphasis added) (quoting Ardolino, 69 P.3d at
77). I conclude it does not. The ultimate determination of whether
ample other evidence of guilt was presented is for the postconviction
court on remand after an evidentiary hearing.
¶ 145 Finally, the partial dissent seems to contend that Genrich has
not alleged deficiencies in the expert testimony that would
constitute a due process violation. I disagree because Genrich’s
undeniable base contention is that the individualization testimony
is scientifically unreliable, and multiple courts have concluded that
the admission of such unreliable testimony can constitute a due
process violation. Gimenez, 821 F.3d at 1145; Han Tak Lee, 798 at
161. Such a due process claim, unlike a new evidence claim under
the partial dissent’s reading of Farrar, “does not require a showing
of innocence.” Han Tak Lee, 798 F.3d at 162. Thus, Genrich’s due
process claim entitles him to an evidentiary hearing.
70
III. Conclusion
¶ 146 I vote to reverse the postconviction court’s order in part and to
remand to that court for an evidentiary hearing on Genrich’s Crim.
P. 35(c) motion as it pertains to his class 1 felony convictions.
71
JUDGE TOW, concurring in part and dissenting in part.
¶ 147 A quarter century after his conviction for multiple counts of
murder and other crimes stemming from a bombing spree, James
Genrich seeks a new trial, asserting newly discovered evidence. His
motion for a new trial, filed in 2016, is based on a 2009 report of
the National Academy of Sciences, Nat’l Research Council of the
Nat’l Acads., Strengthening Forensic Science in the United States: A
Path Forward (2009), https://perma.cc/8H3Q-S9SU (the NAS
Report) — which concluded that much of the forensic science relied
upon by law enforcement officials throughout the country lacked
sufficient scientific validation studies — and a proffered expert
witness’s opinion purporting to explain the impact of the NAS
Report on Genrich’s case. The majority concludes that Genrich’s
allegations are sufficient to warrant a hearing on his motion for a
new trial on the class 1 felony charges. Because I believe that
Genrich’s proffered evidence, as a matter of law, is neither new nor
of sufficient consequence to the outcome to meet the threshold for
obtaining a new trial, I respectfully dissent in part. 1
1
I agree with both of my colleagues that any claim for a new trial on
the lesser felonies is time barred. § 16-5-402, C.R.S. 2018. See
72
I. Background and Applicable Law
¶ 148 As a threshold matter, I agree with, and adopt without
repeating, Judge Berger’s recitation of the factual and procedural
background in this matter. Supra ¶¶ 75-84 (Berger, J., specially
concurring). I also agree with both of my colleagues’ recitations of
the four elements a defendant must show to obtain a new trial
based on newly discovered evidence. Supra ¶ 41 (majority opinion);
¶ 106 (Berger, J., specially concurring). This, however, is where I
part company with my colleagues, because in my view, Genrich has
failed to sufficiently set forth allegations that entitle him to a
hearing on his motion for new trial.
II. The NAS Report
¶ 149 The NAS Report was the result of a study commissioned in
2005 by Congress, which had recognized the need for significant
improvements in the nation’s forensic science system. NAS Report,
at xix. Specifically, by statute, Congress “direct[ed] the Attorney
General to provide [funds] to the National Academy of Sciences to
People v. Stovall, 2012 COA 7M, ¶ 37. Thus, I concur in that
portion of the decision.
73
create an independent Forensic Science Committee.” S. Rep. No.
109-88, at 46 (2005); see Act of Nov. 22, 2005, Pub. L. No. 109-108,
119 Stat. 2290. That committee then studied numerous forensic
science disciplines, including biological evidence, analysis of
controlled substances, friction ridge analysis, hair and fiber
analysis, shoe print and tire track impressions, forensic odontology,
bloodstain pattern analysis, and (relevant to this dispute) firearms
and toolmark identification. After a lengthy study, the committee
issued the NAS Report.
¶ 150 The report describes toolmarks as follows: “Toolmarks are
generated when a hard object (tool) comes into contact with a
relatively softer object. Such toolmarks may occur in the
commission of a crime when an instrument such as a screwdriver,
crowbar, or wire cutter is used . . . .” NAS Report, at 150.
Toolmark identification focuses on both “class characteristics” and
“individual characteristics” of tools. The former are “distinctive
features that are shared by many items of the same type.” Id. at
152. This would include things like “the width of the head of a
screwdriver or the pattern of serrations in the blade of a knife . . .
common to all screwdrivers or knives of a particular manufacturer
74
and/or model.” Id. Individual characteristics, on the other hand,
are “the fine microscopic markings and textures that are said to be
unique to an individual tool.” Id.
¶ 151 The committee studied how the process of toolmark
identification is undertaken and reported on the shortcomings in
the interpretation of toolmarks. For example, the committee noted
that it was “not able to specify how many points of similarity are
necessary for a given level of confidence in the result.” Id. at 154.
Further, the committee expressed concern regarding the “heavy
reliance on the subjective findings of examiners rather than on the
rigorous quantification and analysis of sources of variability.” Id. at
155. Ultimately, the committee concluded that “[s]ufficient studies
have not been done to understand the reliability and repeatability of
the methods.” Id. at 154.
¶ 152 Notably, however, the committee did not opine that the
discipline could never or would never be established as reliable.
Indeed, the committee acknowledged that “class characteristics are
helpful in narrowing the pool of tools that may have left a distinctive
mark,” and that “[i]ndividual patterns from manufacture or from
wear might, in some cases, be distinctive enough to suggest one
75
particular source.” Id. Rather, the NAS Report merely concluded
that “additional studies should be performed to make the process of
individualization more precise and repeatable.” Id.
III. The Motion for a New Trial
¶ 153 Genrich argues that the NAS Report is new evidence, was not
obtainable prior to his trial, is material and not merely cumulative
or impeaching, and would probably produce an acquittal. In my
view, even taking his factual allegations as true, Genrich’s motion
fails to establish that he is entitled to a new trial, or even to an
evidentiary hearing.
A. The NAS Report Is Not New Evidence
¶ 154 Implicit in the first two prongs of the test — that the evidence
was discovered after trial, and not before trial despite the exercise of
due diligence by a defendant and his or her counsel — is the
requirement that the evidence must actually be new. The
information in the NAS Report is neither evidence nor new.
¶ 155 As a division of this court has previously held in another
context, “[a]cademic theories merely form the basis for interpreting
evidence when they are applied to existing evidence.” People v.
Bonan, 2014 COA 156, ¶ 31. “Unapplied, academic theories do not
76
constitute evidence.” Id. Genrich has not proffered any testimony
or evidence that would apply the purportedly new scientific
information in the NAS Report to the circumstances of this case.
Instead, he proffers an affidavit from Jay Siegel (a member of the
committee that wrote the 2009 NAS Report), in which Siegel merely
recites the conclusion of the report: that the forensic science of
toolmark identification “has not been sufficiently studied nor
scientifically validated.” At no point in the affidavit does Siegel
opine that Genrich’s tools did not make the marks on the bomb
parts. 2
¶ 156 The affidavit attached to Genrich’s motion for new trial is not
evidence. See Commonwealth v. LeFave, 714 N.E.2d 805, 813
(Mass. 1999) (holding that to treat expert testimony relying on
studies released after trial as evidence “would provide convicted
defendants with a new trial whenever they could find a credible
2
Though Genrich submitted a supplemental affidavit to the trial
court as part of a motion to reconsider, neither the trial court nor
this court is required to consider information first presented in a
motion to reconsider. See Fox v. Alfini, 2018 CO 94, ¶ 36. In fact,
where, as here, the motion to reconsider merely advanced the same
arguments in the original postconviction petition, it is essentially a
successive petition and will not be considered. See People v.
Thomas, 195 P.3d 1162, 1165 (Colo. App. 2008).
77
expert with new research results supporting claims that the
defendant made or could have made at trial”); State v. Gillispie, Nos.
22877, 22912, 2009 WL 2197052, at *26 (Ohio Ct. App. July 24,
2009) (unpublished opinion) (“A case cannot be retried based on
every ‘advancement’ in scientific research.”). Notably, both LaFave
and Gillespie were cited with approval in Bonan, ¶ 35.
¶ 157 Nor is the information new. Again, the gravamen of the report
is that “[s]ufficient studies have not been done to understand the
reliability and repeatability of the methods.” NAS Report, at 154.
In other words, the report concludes that the science of toolmark
identification lacks a sufficient scientific method and basis. In his
motion for new trial and the accompanying affidavit, Genrich and
his expert, Siegel, parrot this conclusion, arguing that the forensic
science of toolmark identification “has not been sufficiently studied
nor scientifically validated.”
¶ 158 Significantly, the jury heard this exact evidence during
Genrich’s trial. Genrich presented an expert witness in scientific
methods. The defense expert pointed out that there were no data
banks supporting the assumption that each tool is unique, there
had been no experiments conducted to determine the probability of
78
misidentification of a tool, the toolmark examiner’s opinion was
subjective, the toolmark analysis process has no scientific basis,
and the fact that the test was not conducted in a blind fashion
exposed the conclusion to confirmation bias by the examiner. The
prosecution offered no evidence to the contrary.
¶ 159 Because Genrich’s motion offers only unapplied academic
theories, and in any event the jury heard and had the opportunity
to consider essentially the same information as that presented in
the NAS Report, Genrich has not presented any new evidence.
Thus, because he has failed to sufficiently allege that new evidence
exists, he cannot be entitled to a hearing on whether this
information would warrant a new trial.
¶ 160 Indeed, for the same reason, he has failed to sufficiently allege
facts that, if true, would establish the second prong. In one
iteration of the second prong, our supreme court has stated that
the evidence must be “unknown to the defendant and his counsel in
time to be meaningfully confronted at trial and unknowable through
the exercise of due diligence.” Farrar v. People, 208 P.3d 702, 706
(Colo. 2009). Genrich’s purportedly new evidence was not only
knowable, but known to Genrich’s counsel, who developed and
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presented it to the jury in a meaningful confrontation of the
prosecution’s expert. Thus, again, even taking the allegations as
true, the motion fails to set forth sufficient grounds to warrant a
hearing.
B. The Evidence Is Merely Cumulative and Impeaching
¶ 161 Even if the NAS Report constitutes new evidence, Genrich
must show that it is “material to the issues involved, and not merely
cumulative or impeaching.” People v. Rodriguez, 914 P.2d 230, 292
(Colo. 1996).
1. Farrar and the Definition of Material
¶ 162 In Farrar, the supreme court explained that to be material,
new evidence “must be of sufficient consequence for reasons other
than its ability to impeach, or cast doubt upon, the evidence
already presented at trial.” Farrar, 208 P.3d at 707. To be
consequential, the court continued, the evidence must be
“affirmatively probative of the defendant’s innocence, whether that
is accomplished by helping to demonstrate that someone else
probably committed the crime; that the defendant probably could
not have committed the crime; or even that the crime was probably
not committed at all.” Id.
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¶ 163 Both of my colleagues conclude that Farrar has no application
here. Specifically, they conclude that though the supreme court
announced this language, it did not apply it. I respectfully disagree.
¶ 164 After providing this guidance on what materiality means in the
context of new evidence, the court reiterated, “we have for some
time emphasized that a defendant can be entitled to a new trial as
the result of newly discovered evidence only if that evidence would
be likely to result in acquittal for reasons beyond simply
impeaching the earlier conviction.” Id. In the context of that case,
which involved a witness recantation, the court stated that a new
trial would not be warranted “[u]nless the victim’s testimony that
the defendant did not commit the sexual assault will probably be
believed.” Id. at 708 (emphasis added). Clearly, this is an
invocation of the “affirmatively probative of innocence” test the
court had announced appearing just moments before. The court
further stated that the district court “properly evaluated the effect of
the victim’s recantation apart from its impeachment value.” Id. at
709. And finally, the court reiterated that a new trial may only be
granted “upon the discovery of meaningfully contradictory evidence.”
Id. (emphasis added). There is simply no reason to believe that
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“meaningfully contradictory” was meant to be read in the context of
the test for “sufficient consequence” or materiality appearing just
three pages earlier in the court’s decision.
¶ 165 Judge Berger seeks to distinguish Farrar on two additional
grounds, both of which I disagree with. First, he posits that Farrar
itself disavows any effort to impose a heightened standard when it
discusses the test for withdrawing a guilty plea based on new
evidence set forth in People v. Schneider, 25 P.3d 755 (Colo. 2001).
Supra ¶¶ 110-111 (Berger, J., specially concurring). Judge Berger
states that the existing standard for obtaining a new trial differs
from the test for withdrawal of a guilty plea based on new evidence
only because the latter requires proof that the charges be “actually
false or unfounded.” Schneider, 25 P.3d at 762. However, I do not
believe the Farrar standard is an “actual innocence” test. To
require a defendant to prove — as a threshold to being permitted to
withdraw a plea — that the charges were actually false is far
different than to require a defendant to prove — as a threshold for
obtaining a new trial — that evidence is “affirmatively probative of
innocence.” The latter only requires a threshold showing that the
charges might actually be false or unfounded. Thus, Schneider does
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not necessitate any limitation on the clarification of the materiality
test announced in Farrar.
¶ 166 Next, Judge Berger asserts that to the extent Farrar imposes a
new test for materiality, that test is limited to recantations. I do not
believe this is a fair reading of the case.
¶ 167 When the supreme court set forth its clarification of what is
required for new evidence to be consequential, it had not yet turned
to the analysis of the specific facts of the case; rather, it was setting
forth the applicable law. Farrar, 208 P.3d at 706-07. In doing so,
the court discussed the historical treatment of the materiality prong
of the test by referring to two cases, neither of which is a
recantation case. Id. (first citing People v. Scheidt, 187 Colo. 20, 22,
528 P.2d 232, 233 (1974); then citing Digiallonardo v. People, 175
Colo. 560, 567, 488 P.2d 1109, 1113 (1971)).
¶ 168 The new evidence in Scheidt involved an allegation that before
the defendant’s trial, the prosecution possessed but did not disclose
a statement by a different person confessing to the killing for which
the defendant had been convicted. 187 Colo. at 21, 528 P.2d at
233. No witness recanted any testimony.
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¶ 169 The new evidence in Digiallonardo involved a post-trial
statement from the victim of a robbery by two men he had just been
introduced to, in which the victim stated that at some point after
the trial, he had seen the defendant and another man at a social
event, and “in viewing the two men he now feels that his absolute
identification of defendant . . . is doubtful and that his testimony
may have been mistaken.” 175 Colo. at 567, 488 P.2d at 1113.
While this statement might be classified as a recantation, even the
court was hesitant to do so, stating that the witness “merely states
that he may have been mistaken.” Id. at 569, 488 P.2d at 1114.
Such a statement does not amount to the witness withdrawing or
renunciating his testimony. See Black’s Law Dictionary 1521 (11th
ed. 2019) (defining recant).3
¶ 170 Finally, after setting forth the law in this area, the supreme
court in Farrar noted that “[n]ewly discovered evidence in this sense
can, and often does, arise from the recantation of a witness who
testified at trial.” Farrar, 208 P.3d at 707 (emphasis added). The
court further explained that “some jurisdictions treat recantations
3
Interestingly, in both cases, the supreme court affirmed the trial
court’s denial of a new trial.
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as a distinct ground for ordering a new trial, subject to different
standards of proof altogether.” Id. However, the court stated that it
has “never singled out recantation for this kind of special
treatment.” Id. In short, nothing in the court’s discussion suggests
that recantation is to be treated differently than any other type of
new evidence.
2. The Materiality of the NAS Report
¶ 171 Nothing in the NAS Report demonstrates, or even suggests,
that Genrich did not commit the crimes, or that someone else
probably did. 4 The evidence demonstrates nothing more than that,
after Genrich’s trial, a consensus has developed in a significant
portion of the scientific community that agrees with Genrich’s
expert’s view of the state and quality of the forensic science of
toolmark identification. Similarly, nowhere in Siegel’s original
affidavit does he state that the examiner’s opinion in this case was
definitively wrong. Rather, Siegel only opines that there is no
scientific support for the examiner’s opinion — a point
unequivocally made to the jury by Genrich’s trial expert.
4
Of course, there can be no argument in this case that the crime
did not actually occur.
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¶ 172 In other words, the NAS Report shows nothing more than that
additional experts would support Genrich’s trial expert and refute
the prosecution’s. Therefore, the information in the report is not
material — i.e., not sufficiently consequential; rather, the evidence
is merely cumulative of Genrich’s trial expert’s testimony and serves
only to impeach the prosecution’s expert. Genrich’s allegations,
taken as true, fail to establish the third prong of the test as well.
Thus, because he would not be entitled to relief, he is not entitled to
a hearing.
C. The Record Clearly Demonstrates that the Evidence
Would Probably Not Produce an Acquittal
¶ 173 Finally, again assuming the NAS Report qualifies as new
evidence, the record as a whole clearly demonstrates that the
evidence would probably not produce an acquittal. First, unlike my
colleagues, I am not convinced that the NAS Report would
necessarily exclude much, if any, of the toolmark examiner’s
testimony, the vast majority of which was informed by his own
extensive personal experience from sixteen years examining
toolmarks. See Kutzly v. People, 2019 CO 55, ¶ 17 (holding that
experience-based expert testimony need not always be based on
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statistical analysis). Indeed, Judge Harry Edwards, the co-chair of
the committee that authored the NAS Report, has made it clear that
“nothing in the Report was intended to answer the ‘question
whether forensic evidence in a particular case is admissible under
applicable law.’” United States v. Rose, 672 F. Supp. 2d 723, 725
(D. Md. 2009) (quoting Hon. Harry T. Edwards, Statement before
U.S. Senate Judiciary Committee (Mar. 18, 2009)).
¶ 174 Yet, even if the individualization testimony were excluded, the
jury would nevertheless have heard testimony from a very
experienced toolmark examiner that the toolmarks on the bomb
parts were consistent with marks made by Genrich’s tools. (It bears
repeating that nothing in the NAS Report or Genrich’s motion
refutes the accuracy of that testimony.) Combined with the weighty
circumstantial evidence of Genrich’s guilt, the probability that the
individualization testimony was the linchpin of the jury’s
deliberation appears quite low.5
5
I note that Genrich has not identified any case in which the 2009
NAS Report was determined to be sufficiently material new evidence
regarding toolmark analysis that a new trial was ordered. And,
despite a nationwide search, I have discovered no such case.
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IV. Genrich’s Due Process Claim
¶ 175 Genrich also claims that permitting a conviction to stand
despite the fact that some of the scientific testimony supporting
that conviction has fallen out of favor would run afoul of his due
process rights. While I do not necessarily disagree with his
premise, I do not believe he has sufficiently pleaded facts to warrant
a hearing on the issue.
¶ 176 Some federal courts have considered a defendant’s due
process claim based on subsequently debunked scientific
testimony.
¶ 177 In Han Tak Lee v. Houtzdale SCI, 798 F.3d 159 (3d Cir. 2015),
the defendant was convicted of murder and arson, based in part on
the testimony of an expert in fire science. Id. at 161. During a
postconviction hearing, the defendant presented “evidence about
developments in the field of fire science that . . . ‘provided ample
reason to question the reliability of the arson investigation.’” Id.
(quoting Han Tak Lee v. Glunt, 667 F.3d 397, 401 (3d Cir. 2012)).
The defendant then filed a habeas corpus petition, claiming that his
conviction violated due process because it was based on inaccurate
and unreliable evidence. Id. at 162. The Third Circuit Court of
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Appeals held that, to prevail, the defendant “must show that the
admission of the fire expert testimony undermined the fundamental
fairness of the entire trial because the probative value of [the fire
expert] evidence, though relevant, is greatly outweighed by the
prejudice to the accused from its admission.” Id. (quoting Glunt,
667 F.3d at 403). However, habeas relief is not available where
there is “ample other evidence of guilt.” Id. (quoting Glunt, 667 F.3d
at 407 n.13).
¶ 178 In Gimenez v. Ochoa, 821 F.3d 1136 (9th Cir. 2016), the Ninth
Circuit Court of Appeals reviewed a challenge to a child abuse
conviction based on testimony regarding the connection between a
specific triad of injuries (subdural hematoma, brain swelling, and
retinal hemorrhage) and a diagnosis of Shaken Baby Syndrome
(SBS). Id. at 1143. The defendant pursued habeas relief, asserting
that numerous scientific articles published following his conviction
had altered the reliance of the forensic pathology community on
this triad, and that now the medical community requires some
evidence of impact injuries before diagnosing SBS. Id. The Ninth
Circuit Court of Appeals adopted the test adopted by the Third
89
Circuit in Han Tak Lee. Id. at 1145. However, the court denied
habeas relief based on the strength of the remaining evidence. Id.
¶ 179 I note that neither the Colorado Supreme Court nor the Tenth
Circuit Court of Appeals has adopted the Han Tak Lee test.
However, even if I assume that a due process challenge to a
conviction based on subsequently discredited science is cognizable
in theory, such a claim would not be applicable here.
¶ 180 The flaw in Genrich’s proposition is not in its premise, but in
the applicability of that premise to his situation. He formulates the
issue in his opening brief: “Is Due Process violated where the sole
evidentiary basis for conviction is expert testimony that is later
revealed to be patently false and contrary to science?” (Emphasis
added.) As both Judge Berger and I have pointed out, the
individualization testimony at trial is far from the sole evidentiary
basis for the conviction. Supra ¶ 131 & n.6 (Berger, J., specially
concurring). While the weight and sufficiency of the circumstantial
evidence of Genrich’s guilt might be subject to debate, its existence
is not, notwithstanding Genrich’s counsels’ refusal to acknowledge
it. Further, as I have discussed, nothing in either the NAS Report
or the Siegel affidavit supports the allegation that the toolmark
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analysis testified to at trial is either “patently false” or “contrary to
science.” Again, the only conclusion of the report is that more
testing is needed to ensure reliability.
¶ 181 Again, I do not reject the premise underlying Han Tak Lee —
that a conviction that rests exclusively, or even primarily, on
scientific testimony that is later determined to be demonstrably
false cannot stand. This, however, is not that case. Even if the Han
Tak Lee test were applicable, Genrich fails to satisfy it, or even
sufficiently invoke it to be entitled to a hearing. He has not alleged
facts that would demonstrate that the admission of the
individualization testimony at trial undermined the fundamental
fairness of the trial, particularly in light of (1) the fact that his
expert witness exposed all of the same flaws in the testing that the
NAS Report later identified and (2) the strength of the remaining
evidence against him.
V. Conclusion
¶ 182 I concur in the decision affirming the district court’s denial of
the request for a new trial on the non-class-1 felony charges. But
because — taking as true all of Genrich’s factual allegations — I do
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not believe he has brought forth new material evidence that would
likely result in acquittal, I respectfully dissent from the decision to
require the district court to conduct a hearing on Genrich’s motion
for new trial.
92