Court rules DNA testing problems at DFS not enough for new trial

Barber v. United States (decided March 1, 2018)

Players: Chief Judge Blackburne-Rigsby, Associate Judge Glickman, Senior Judge Pryor. Opinion by Chief Judge Blackburne-Rigsby. Matthew B. Kaplan for Mr. Barber. Trial Judge: Russell F. Canan.

Facts: Appellant Tavon Barber was convicted of theft, armed burglary, three counts of third-degree sexual abuse, and eight counts of possession of a firearm during a crime of violence (PFCV) in connection with two home invasions on June 4 and 5, 2013. The evidence of sexual abuse consisted of testimony to the effect that Mr. Barber slapped the bottom of a female victim during the second home invasion and then fondled and ran his gun barrel along her body. The government relied in part on DNA evidence in its case against Mr. Barber, using testimony both of a DFS employee and of independent expert Dr. Bruce Budowle. Dr. Budowle generally agreed with DFS’s conclusions as to whether or not samples collected from the scene “matched” the suspects and victims but voiced concerns about the statistical calculations underlying these conclusions. Following trial, both DFS and the U.S. Attorney’s Office engaged in an internal audit led by Dr. Budowle himself, and the panel’s report identified multiple systemic flaws in DFS’s protocol for interpreting forensic DNA tests and calculating “match” probability. Based on these findings, Mr. Barber filed a Rule 33 motion for a new trial on the theory that the report “unequivocally demonstrates the unreliability of DFS testing and invalidates the entire testing process” and thus significantly undermines the DNA evidence used to convict him. Judge Canan denied this motion, noting that the challenged DNA evidence was “not the ‘key evidence’” in the prosecution’s case and that even Dr. Budowle had no concerns about the particular evidence used against Mr. Barber. 

Issue 1: Did the trial judge err in denying appellant’s motion for a new trial based on newly discovered evidence?

Holding 1: No. Rule 33 imposes four requirements for motions for a new trial based on newly discovered evidence, two of which were contested here: whether the new evidence is “material…and not merely cumulative or impeaching” and whether the evidence is “of a nature that it would probably produce an acquittal.” The Court found that the Budowle Report failed both of these prongs. Regarding materiality, the Court of Appeals noted that the systemic issues identified after trial were essentially remedied in Mr. Barber’s case by Dr. Budowle providing his own, undisputed conclusions to the jury. The Court also found that any cross-examination of the DFS expert concerning the lab’s systemic issues would have served merely to impeach her, which cannot be the basis for a new trial under Rule 33.

With respect to the evidence’s probability of producing an acquittal, the Court of Appeals agreed with the trial judge, finding that the DNA was not crucial to the prosecution’s case. The government introduced various other pieces of evidence incriminating Mr. Barber, including fingerprint evidence in a stolen car, a hand-print from the scene, the identifying testimony of one of the victims, and a third-party witness’s relation of Mr. Barber’s detailed confession to the crimes. Accordingly, because the new evidence was merely impeaching and unlikely to have produced an acquittal, the Court of Appeals held that the trial court did not abuse its discretion in denying Mr. Barber’s motion.

Issue 2: Should the appellant’s three sexual abuse and eight PFCV charges have been merged into one charge of sexual abuse and one charge of PCFV?

Holding 2: No. Criminal acts do not merge when “there is an appreciable length of time between the acts…or when a subsequent criminal act was not the result of the original impulse but a fresh one.” Sanchez-Rengifo v. United States. For sexual assault cases, the Court of Appeals inquires whether “the defendant sought a ‘new and different kind of sexual gratifications,’ with each act committed against the victim, such that [the Court is] convinced that the defendant was acting ‘in response to a fresh impulse.’” The Court held that the three acts of sexual assault charged here—slapping the victim’s bottom, flipping her over to touch her breast, and touching the victim’s thighs and buttocks with a firearm—pass this test. In finding that the first two do not merge, the Court placed emphasis on appellant’s forcing the victim to change position, distinguishing the facts here from Cullen v. United States, in which acts of sexual assault had merged. In addition, the Court held that appellant’s use of the firearm implicates the third-degree sexual abuse statute’s specific mention of threats of bodily injury; this mention “denotes the legislature’s attempt to distinguish different counts … based on differences in the nature and character of the acts.”

Regarding appellant’s eight PFCV charges, such charges merge only when their predicate crimes merge, and here, all of the eight predicate offenses  were found to pass the “fork-in-the-road” test—“appellant was at a fork in the road an had an opportunity to reconsider his actions.”—Jackson Myers.

Read the full opinion here.