Marlon Williams v. United States (decided January 21, 2016)
Players: Associate Judges Thompson and Easterly, Senior Judge Nebeker. Opinion by Judge Easterly. Concurrence by Judge Easterly. Enid Hinkes for Mr. Williams. Trial Judge: Russell F. Canan.
Facts: Soon after Min Soo Kang was found shot to death in Southeast D.C., police used the OnStar navigation system installed in his Cadillac Escalade to recover the vehicle. From a digital database of known fingerprints, they identified Marlon Williams as a possible source of fingerprints found on and inside the Escalade. A subsequent search of Williams’s home turned up a gun in his bedroom. A firearms and toolmark examiner test-fired the gun and compared the resulting bullet markings to markings on bullets recovered from Kang’s vehicle. At trial, the examiner testified that every gun leaves “unique” marks on the bullets it fires, and that based on his comparison, there was not “any doubt in [his] mind” that the bullets recovered from Kang’s vehicle were fired by the gun recovered from Williams’s room. On the basis of this evidence—along with a cooperating witness’s testimony that Williams made incriminating statements and eyewitness testimony that someone matching Williams’s description was opening and closing the hood of the Escalade around the time the OnStar service remotely disabled it—a jury convicted Williams of first-degree felony murder while armed, attempted robbery while armed, PFCV, and CPWL.
Issue: Should the firearms and toolmarks examiner have been permitted to testify that the markings on the bullets recovered from Kang’s Escalade were “unique” and that he was without “any doubt” that they were fired by the gun recovered from Williams’s room?
Holding: The majority opinion strongly implied — and Judge Easterly’s concurrence expressly concluded — that the examiner should not have been permitted to testify with such absolute certainty that the recovered bullets matched Williams’s gun, but the Court declined to reverse on that ground because the unobjected-to testimony did not rise to the level of plain error. Although the same issue was presented in an earlier case, Jones v. United States, 27 A.3d 1130 (D.C. 2011), the government had at that time assured the Court that its policy was “to only elicit firearms examiners’ opinions [of a match] to a reasonable degree of scientific certainty,” not “100% certain[ty].” In light of this assurance, the Court in Jones merely “assume[d], without deciding, that [firearms and toolmark] experts should not be permitted to testify that they are 100% certain of a match, to the exclusion of all other firearms.” Id. at 1139 (emphasis added). Thus, there was no controlling precedent in this jurisdiction at the time of Williams’s trial, nor was there sufficient weight of authority from other jurisdictions to say that the trial court “plainly” erred in allowing the examiner’s testimony. And while the government concededly violated its own policy in this case, the Court held that such a policy is not binding law and cannot by itself form the basis of a plain error determination.
Concurrence: In addition to authoring the majority opinion, Judge Easterly wrote a separate and forceful concurrence in which she concluded that D.C. courts should “preclude a firearms and toolmark examiner from testifying with unqualified, absolute certainty.” The reason, Judge Easterly explained, can be found in two reports published by committees of the National Research Counsel (NRC), an arm of the publicly chartered National Science Foundation. The first, a 2008 report commissioned by the Department of Justice, found that there is simply not enough scientific research to establish that “firearms-related toolmarks are unique: that is, [that] a particular set of toolmarks can be shown to come from one weapon to the exclusion of all others,” and that experts’ commonplace testimony to that effect “cloak[s] an inherently subjective assessment of a match with an extreme probability statement that has no firm grounding and unrealistically implies an error rate of zero.” The second NRC publication, a 2009 report commissioned by Congress, similarly concluded that there is no statistical basis to say with any particular degree of certainty that toolmarks on a bullet match a specific gun or other bullets fired from that gun. In light of these findings, Judge Easterly concluded, “[c]ertainty statements” like those at issue in this case are not only not helpful to juries, they are misleading, and they create an “alarming” risk of wrongful convictions. As Judge Easterly put it, “a certainty statement regarding toolmark pattern matching has the same probative value as the vision of a psychic . . . .” As such, they are not admissible as expert testimony.
Of Note:
- So misleading is testimony that an examiner is certain of a match to a specific gun—and likewise, testimony that each gun leaves a “unique” mark on bullets it fires—that Judge Easterly suggested defense counsel is constitutionally ineffective if he or she fails to object, and the government is in violation of its obligation under Napue v. Illinois, 360 U.S. 264 (1959), to avoid knowingly presenting false or misleading evidence if it elicits or allows such certainty statements to go uncorrected.
- Judge Easterly’s concurrence could provide substantial support to argue that an examiner’s claim of any degree of certainty in a match, even if not 100% certainty, is impermissibly misleading. The concurrence specifically notes that firearms examiners should not be permitted to claim “a reasonable degree of scientific certainty” about a toolmark match, because the 2009 NRC report found it impossible to say “how many points of similarity are necessary for a given level of confidence in the result.” It also cites with approval cases from federal district courts that have prohibited an examiner from saying he reached his conclusions with any degree of certainty and limited an examiner to describing the observed toolmark similarities without stating any conclusion of a match.
- The majority opinion rejected, for lack of plain error, an unpreserved claim that the firearms examiner failed to present the images or other “documentation” underlying his opinions for the jury to evaluate for itself. It nevertheless left the door open for a future argument that toolmark pattern-matching testimony must include “sufficient documentation to permit the jury to meaningfully evaluate the expert’s subjective conclusions,” noting one federal district court had so held, and another had urged, but not required, supporting documentation.
- Williams also raised several other issues on appeal, including sufficiency of the evidence for attempted armed robbery; a hearsay and Confrontation Clause challenge to the firearms examiner’s report, which bore the signature of a second, non-testifying examiner; an unpreserved challenge to the admission of fingerprint evidence; an unpreserved argument that he was entitled to a hearing based on Franks v. Delaware, 438 U.S. 154 (1978), because of a discrepancy between the fingerprint examiner’s testimony and the search warrant issued for his home; and a claim that his attempted robbery and corresponding PFCV conviction must merge with his felony murder conviction. The Court rejected all but the merger argument. FT.
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