[00:00:01] Speaker 01:
Please.

[00:00:14] Speaker 02:
Good morning and may it please the court.

[00:00:17] Speaker 02:
My name is Jenna Cobb and I represent appellant Dennis T. Butler.

[00:00:21] Speaker 02:
I would like to reserve two minutes for rebuttal.

[00:00:24] Speaker 02:
The government infected Mr. Butler's trial with false and misleading testimony from an FBI agent qualified as an expert.

[00:00:32] Speaker 02:
This false and misleading testimony was intentionally designed to lead the jury to believe that three hairs recovered from the decedent's body belonged to Mr. Butler and to resolve the only contested issue at trial, the identity of the killer.

[00:00:47] Speaker 02:
This hair evidence was extremely powerful for the government's case.

[00:00:52] Speaker 02:
The forensic hair testimony tied Mr. Butler directly to the crime in a case in which the bulk of the government's evidence came from two drug addicted witnesses who were mixed up in crimes, one of whom had directly lied to the jury to cover up his own criminal activity.

[00:01:08] Speaker 02:
The government tried to corroborate their testimony with details from the crime scene, but the jury heard that at least four neighbors had walked through the crime scene before the police even arrived.

[00:01:19] Speaker 02:
And of course, they had talked about what they'd seen with others.

[00:01:24] Speaker 02:
The jury also heard that the police, who applied pressure to the two alleged confession witnesses, had been through the crime scene and even heard evidence that one of them may have had more of an involvement in the murder than he'd let on.

[00:01:39] Speaker 02:
In contrast, the forensic hair testimony stood on its own, scientifically linking Mr. Butler to the murder.

[00:01:48] Speaker 02:
In a criminal trial in which false forensic evidence was developed by the government, presented during the expert's direct examination, highlighted again on redirect examination,

[00:02:00] Speaker 02:
argued explicitly during closing arguments and re-emphasized again on rebuttal, there is at the very least a reasonable possibility or likelihood that it may have affected the judgment of the jury.

[00:02:13] Speaker 01:
I'm not saying you necessarily have to have this, but I'm going to ask the question anyway, which is, was there a defense case put on at trial that it was somebody other than Butler?

[00:02:27] Speaker 02:
There was certainly, the jury could make those inferences.

[00:02:29] Speaker 02:
It was, the defense case was that Mr. Butler was obviously not the person who committed the crime.

[00:02:35] Speaker 01:
They didn't... Right, I'm sorry, I should have been more careful.

[00:02:38] Speaker 01:
They obviously hoped and thought it was somebody other than Butler, but was there a theory put forward as to how it could have been?

[00:02:44] Speaker 01:
somebody other than Butler, like say for example, either that either Hilla Robinson was involved.

[00:02:52] Speaker 01:
Was that ever put to the jury?

[00:02:54] Speaker 02:
The inference was argued to the jury.

[00:02:56] Speaker 02:
They didn't specifically identify one person who it could have been, but several questions were raised to identify, you know, to make it clear that other people could have committed this crime.

[00:03:08] Speaker 02:
And what the hair evidence did then was foreclose that possibility that it was someone other than Mr. Butler.

[00:03:14] Speaker 03:
You mentioned, Ms.

[00:03:15] Speaker 03:
Cobb, that you referred to the government's hair evidence as intentionally designed.

[00:03:23] Speaker 03:
Does it matter whether it was knowingly false or just now conceitedly false?

[00:03:30] Speaker 02:
It doesn't matter for the sake of, you know, the falsity element of NAPU, but what the intentionality shows is the prosecutor's mindset and the prosecutor's intent to use this evidence to identify Mr. Butler as

[00:03:45] Speaker 02:
the person who committed the crime.

[00:03:47] Speaker 02:
He was an expert witness who had testified 90 times.

[00:03:50] Speaker 02:
So there was no question as to what his testimony was going to be.

[00:03:52] Speaker 02:
And so the fact that it was known and intentionally used just goes to show how the prosecutor thought of the evidence and how the prosecutor was using it and arguing it for the jury to rely upon in order to identify Mr. Butler.

[00:04:07] Speaker 00:
Could we go through it?

[00:04:09] Speaker 00:
Could we go through it?

[00:04:12] Speaker 00:
in some more detail because I have to say my reaction to it is much of it seems unobjectionable and the characterization of knowingly false as opposed to there's maybe one garbled exchange where there's a degree of overstatement.

[00:04:33] Speaker 00:
That's my reaction to it on reading it.

[00:04:35] Speaker 00:
So the first exchange on direct

[00:04:42] Speaker 00:
He says the hairs could have come from the head of the defendant.

[00:04:49] Speaker 00:
And he says this is not a positive identification.

[00:04:52] Speaker 00:
I don't have enough information to do that.

[00:04:54] Speaker 00:
That seems like a measured and appropriate statement of what the science does or doesn't allow.

[00:05:04] Speaker 00:
Do you agree with that?

[00:05:06] Speaker 02:
Well, in one breath, he said, it's not a positive identification, which was the traditional kind of limiting language that all the agents would use.

[00:05:14] Speaker 02:
However, in the other breath, he also told the jury that it would be very seldom that two hairs could come from two hairs.

[00:05:20] Speaker 00:
So let's just take them one at a time.

[00:05:22] Speaker 00:
That seems to me perfectly fair and consistent with

[00:05:29] Speaker 00:
the government's view and with the Innocence Project's view that this is legitimate science to identify the defendant as a potential person as long as you don't overstate the reliability of the science.

[00:05:47] Speaker 02:
That statement alone, yes.

[00:05:49] Speaker 00:
Okay.

[00:05:49] Speaker 00:
So then we come to the next one, which is at the end of the direct in which he says it's only four or five times

[00:06:00] Speaker 00:
He's previously said he's looked at 10,000 samples, right, and you take this as effectively saying that to a near certainty this hair can be, the hair that they found can be attributed to Butler.

[00:06:21] Speaker 00:
But that's not what he said.

[00:06:23] Speaker 00:
What he said is that to a near certainty,

[00:06:27] Speaker 00:
the hair of the victim and the hair of the defendant can be shown to be different, right?

[00:06:38] Speaker 00:
It's not that the evidentiary hair came from Butler.

[00:06:44] Speaker 00:
It's that he knows to a near certainty it did not come from the victim.

[00:06:49] Speaker 00:
That's what he says.

[00:06:50] Speaker 02:
Well, he says his point about it being very seldom that he cannot tell hair apart and referring to his 10,000 examinations and saying there were only four times when there were hairs that he couldn't distinguish when they were nearly alike.

[00:07:05] Speaker 02:
The point of that was to impress upon the jury how rare it would be that he would have two hairs and not be able to tell them apart, even if they were nearly alike.

[00:07:14] Speaker 00:
When the hair of the suspect

[00:07:17] Speaker 00:
and the hair of the victim are so nearly alike.

[00:07:20] Speaker 00:
I'm on essay 353.

[00:07:29] Speaker 00:
So basically, he's eliminating the possibility that the evidentiary hair was the victim's.

[00:07:36] Speaker 00:
And that's not really in dispute.

[00:07:40] Speaker 02:
Well, in this case, he doesn't just eliminate the possibility that the evidentiary hair was the victim's.

[00:07:46] Speaker 02:
He also says that the evidentiary hair was identical to Mr. Butler's hair in that.

[00:07:52] Speaker 00:
OK, but now you're jumping ahead to the redirects, which is where I think there's overstatement.

[00:07:59] Speaker 00:
But this one doesn't bother me, because he just seems to be saying,

[00:08:05] Speaker 00:
The evidentiary hair is not the victim's.

[00:08:08] Speaker 00:
Can I ask one question about this?

[00:08:12] Speaker 01:
Sure.

[00:08:13] Speaker 01:
Which is that the question that was put was, how likely or unlikely is it for two different hairs to be microscopically alike, yet come from different people?

[00:08:27] Speaker 01:
And the answer that was given is the one that Judge Katsas is recounting, which the statement's well taken about the answer.

[00:08:34] Speaker 01:
The question, it's not entirely clear that the answer is responsive to the question that was being asked, although the answer I think has.

[00:08:43] Speaker 00:
I'm putting it to you, but I... Fair point, and let me just put my cards on the table.

[00:08:51] Speaker 00:
That strikes me as an instance where there's a little bit of garbling and arguable mismatch between the question and the answer, the kind of thing that

[00:09:04] Speaker 00:
happens all the time when people are speaking under stress.

[00:09:08] Speaker 00:
It reads more like a little bit of garbling than like a deliberate conspiracy to mislead the jury.

[00:09:15] Speaker 00:
And then when you take the answer on its own terms, it's just eliminating the match to the victim.

[00:09:22] Speaker 02:
And the question too is the impression that the jury would have been left with from the testimony.

[00:09:29] Speaker 02:
So even if there was garbling, the question is going to be what message the jury take from that testimony.

[00:09:35] Speaker 02:
And the clear message, because it was asked several times and elicited,

[00:09:41] Speaker 02:
I don't want to jump ahead.

[00:09:43] Speaker 02:
But because it was asked several times and elicited and argued, the point that you were trying to make, which was that it would be so rare and that you can rely on that.

[00:09:51] Speaker 00:
So let's move ahead.

[00:09:52] Speaker 00:
So that's direct.

[00:09:53] Speaker 00:
And we come to cross.

[00:09:55] Speaker 00:
And the defense counsel does a very effective job underscoring the limits of the science, right?

[00:10:02] Speaker 00:
Your testimony is you can't say positively the hair is from Mr. Butler.

[00:10:06] Speaker 00:
It could have originated from someone else's head.

[00:10:09] Speaker 00:
I have no statistics to illustrate how likely it is that this was Butler's hair, right?

[00:10:15] Speaker 00:
Very good exchange for the defense, and it's right on the heels of this statement about four or five times.

[00:10:25] Speaker 02:
Well, what he says is that it could have originated from someone else if all of the characteristics were the same.

[00:10:31] Speaker 02:
There's no reason to think that the jury would think that all of the characteristics would be the same, particularly when they emphasize that, look, these were not only similar hairs, these were exactly the same.

[00:10:43] Speaker 02:
And in his experience, he'd only had four out of 10,000 examinations where it had even come close.

[00:10:51] Speaker 03:
Right.

[00:10:53] Speaker 00:
If all the characteristics are the same and in context this means the 16 traits or however many traits that they're looking for and there's a match on each of them and then the question is how likely is that as a positive ID of the defendant and the ultimate concession elicited by an effective cross is I have no statistics to illustrate the likelihood of that.

[00:11:24] Speaker 02:
He does say he doesn't have statistics to illustrate the likelihood.

[00:11:27] Speaker 00:
So it seems to me you're in quite good shape until we get to redirect, which is what you want to jump ahead to, because I think it's the best statement for your case here, where I'm now on 357.

[00:11:44] Speaker 00:
This strikes me as the one and perhaps only area where there's overstatement where he says,

[00:11:52] Speaker 00:
The question is, are these similar?

[00:11:54] Speaker 00:
And he says, these hairs are the same.

[00:11:57] Speaker 00:
They're alike in all identifiable microscopic characteristics, which seems close to saying, these hairs, I can tell you as an expert, these hairs belong to Butler.

[00:12:07] Speaker 02:
Exactly.

[00:12:07] Speaker 02:
And that's exactly how the prosecutor used it, how it was understood by the jury, how the prosecutor argued it.

[00:12:15] Speaker 00:
But it's five lines of transcript on redirect.

[00:12:23] Speaker 00:
after the expert in his principal testimony has laid out all the limits of the science.

[00:12:29] Speaker 00:
And that's been confirmed by an effective cross.

[00:12:33] Speaker 00:
And then right after this comes out, it's confirmed again on an effective recross where defense counsel says we have no idea how many people have all of these same characteristics.

[00:12:46] Speaker 00:
So it seems like there's an overstatement, no doubt.

[00:12:50] Speaker 00:
But in the grand scheme of this exchange,

[00:12:53] Speaker 00:
doesn't seem like it's a centerpiece.

[00:12:58] Speaker 02:
It is a centerpiece in the sense that this is exactly the reason why the government put this evidence on.

[00:13:03] Speaker 02:
It was for that 4 in 10,000 statistics, for the idea that it's very seldom that tears can't be told apart.

[00:13:12] Speaker 02:
And so that's how the prosecutor used it in trial.

[00:13:16] Speaker 02:
That's what he argued to the jury repeatedly.

[00:13:20] Speaker 02:
And the fact that it takes up relatively little space in the context of the entire trial

[00:13:26] Speaker 02:
I think just speaks to the power of the evidence.

[00:13:27] Speaker 02:
There wasn't a lot that had to be said about this.

[00:13:29] Speaker 02:
You've said that there is an identical or a hair that's alike in all microscopic characteristics and it would be very seldom that there would be a false match.

[00:13:38] Speaker 02:
And so similar to if there was a DNA match put forward, that's extremely powerful regardless how many lines of the transcript are spent discussing it.

[00:13:48] Speaker 03:
One of the things that we have here is that the Department of Justice has conceded that the FBI laboratory examiners exceeded the limits of science by overstating the conclusions that may appropriately be drawn from

[00:14:04] Speaker 03:
positive association between evidentiary hair and a known sample and the department has stated that the witness stated or implied that the hair could be associated with a specific individual to the exclusion of all others and that the witness assigned

[00:14:21] Speaker 03:
to the positive association a statistical weight or probability that could lead the jury to believe that valid statistical weight can be assigned.

[00:14:29] Speaker 03:
So all of those things on record as we have it are conceded by the government.

[00:14:34] Speaker 03:
On the other hand, the government does not take a position about materiality.

[00:14:39] Speaker 03:
And I just wonder if you can help us in light of the line of questioning that we've just been through, how do we distinguish how to treat those concessions from the question of

[00:14:51] Speaker 03:
materiality?

[00:14:53] Speaker 02:
Well, I think for the purpose of the concessions, it's just to establish that this is false evidence.

[00:14:58] Speaker 02:
And we're not arguing whether it's false or not.

[00:15:02] Speaker 03:
But it seemed like some of the back and forth was arguing about that.

[00:15:05] Speaker 03:
And that's where I'm trying to get your position.

[00:15:08] Speaker 02:
Sure.

[00:15:08] Speaker 02:
And my position first is that the government should be bound by its concession that it was false and misleading.

[00:15:14] Speaker 02:
They made that concession with good reason, because it is, in fact, false and misleading.

[00:15:21] Speaker 02:
And then beyond that, we then would go to the materiality assessment under which reversals required unless the court can be convinced that this powerful false forensic evidence was harmless beyond a reasonable doubt, that it didn't at all affect the jury's verdict.

[00:15:38] Speaker 02:
In this case, where this false forensic testimony from an expert went directly to the only contested issue at trial, there's no way that the court can be satisfied that this was harmless error.

[00:15:54] Speaker 01:
Okay, thank you.

[00:15:56] Speaker 01:
We'll hear from the government.

[00:15:58] Speaker 01:
We'll give some time on the phone.

[00:16:10] Speaker 04:
Patricia Heffernan on behalf of the United States.

[00:16:14] Speaker 04:
Just starting to clear one thing up.

[00:16:16] Speaker 04:
The defense theory was an attack on the credibility of the witnesses, but there was no defense, alternate defense theory of the case.

[00:16:22] Speaker 04:
In fact, in the closing arguments on July 14th at page 763,

[00:16:28] Speaker 04:
defense counsel in fact said, this isn't going to be a, we're not going to try to be Perry Mason and bring in the person who did it.

[00:16:35] Speaker 04:
So there was no alternate theory for who committed this crime.

[00:16:41] Speaker 01:
Here the... But they did argue there was reasonable doubt as to whether Butler did it, obviously.

[00:16:45] Speaker 04:
Yes, yes.

[00:16:46] Speaker 04:
The defense counsel walked through the testimony of every single witness

[00:16:49] Speaker 04:
and attacked the credibility of the two confession witnesses and then with respect to the remainder of the evidence basically said this isn't direct evidence, no one's saying tying this defendant specifically, this piece of evidence doesn't say this defendant did it.

[00:17:04] Speaker 04:
So basically it was a one by one attack on the circumstantial evidence.

[00:17:09] Speaker 03:
So what happened with the so-called two boys

[00:17:13] Speaker 03:
who the defendant was allegedly selling drugs to at the time when they ran across the victim?

[00:17:21] Speaker 04:
Well, the defendant told Mr. Hill that the boys ran out of the apartment.

[00:17:27] Speaker 03:
And they were never witnesses?

[00:17:29] Speaker 03:
They were never identified?

[00:17:30] Speaker 04:
They were not witnesses at trial.

[00:17:32] Speaker 04:
And there were several explanations for how it could be that they would have escaped unnoticed by the water workers.

[00:17:40] Speaker 04:
But no, they were not witnesses at trial.

[00:17:42] Speaker 04:
We agree that this statement, Your Honor, that you pointed out is overstated, the statistics.

[00:17:51] Speaker 04:
But I think the court of course needs to look at the context of that testimony within the context of the expert himself who made quite clear that he was not identifying the defendant as the perpetrator, that he could not say that.

[00:18:04] Speaker 04:
And then within the broader scheme of the overwhelming evidence, circumstantial evidence coupled with the confession evidence, confessions to two witnesses, those confessions were corroborated by the physical evidence.

[00:18:21] Speaker 01:
We also have to look at in the context the way the prosecutor used it, right?

[00:18:24] Speaker 01:
And so in the prosecutor's closing argument, prosecutor said, I said, and this is a

[00:18:29] Speaker 01:
496 and supplemental clinics, I said, how often, Agent Shulberg, does it happen?

[00:18:34] Speaker 01:
You can't be positive, yes, but how often does it happen that two people's hair, two different people, are so similar and so alike that you'd be unable to tell?

[00:18:42] Speaker 01:
Out of 10,000 examinations, he said he recalls it happening approximately four times.

[00:18:46] Speaker 01:
So whatever confusion there might have been about the nature of that testimony, given the potential mismatch between the question and the answer,

[00:18:53] Speaker 01:
and the different ways in which it came out.

[00:18:55] Speaker 01:
That's how the government encapsulated the significance of that testimony.

[00:18:58] Speaker 04:
I don't dispute that.

[00:18:59] Speaker 04:
That's correct.

[00:19:01] Speaker 04:
I would point out that this was, that several lines within a 24-page closing argument, and it is not, was not what the government highlighted.

[00:19:09] Speaker 04:
The government described certain evidence as pivotal.

[00:19:12] Speaker 04:
This is where the door opens or cracks the case open.

[00:19:14] Speaker 04:
I can't remember what exactly the prosecutor said, but the evidence that the prosecutor focused on

[00:19:20] Speaker 04:
Starting with the confessions, that was a big chunk of what the government highlighted as important, and how those confessions were highlighted, were corroborated.

[00:19:30] Speaker 04:
And what the government characterized as pivotal was the belt.

[00:19:35] Speaker 04:
These confessional witnesses knew both that the belt had been used and that it had broken in the process of the strangling.

[00:19:41] Speaker 04:
And that belt was not with the decedent, it was in the kitchen in a drawer where these civilian witnesses had not been.

[00:19:48] Speaker 04:
And the prosecutor highlighted the paint.

[00:19:51] Speaker 04:
And the prosecutor highlighted the fact that Ellen Johnson couldn't have known several of these things because she did not go anywhere past the bathroom.

[00:20:01] Speaker 04:
The confession witnesses also knew that a stocking had been used.

[00:20:06] Speaker 04:
What he really highlighted were the details that only the killer could have known, which was what made these confession witnesses and the facts that they... The killer or the police, right?

[00:20:19] Speaker 03:
The killer or the police?

[00:20:20] Speaker 04:
The police officers have been on the scene and... Well, the police wouldn't have known of the FBI analysis that the belt had been torn rather than cut.

[00:20:30] Speaker 04:
That's right.

[00:20:30] Speaker 04:
The police made observations.

[00:20:32] Speaker 04:
The medical examiner made observations.

[00:20:34] Speaker 04:
The police, of course, denied

[00:20:36] Speaker 04:
having colluded to corrupt this trial, and there was no evidence of that.

[00:20:42] Speaker 04:
And of course, I would point out that that theory was, although there was no alternate defense theory of the case argued at trial by the defense, they did throw out this notion that other people were, this information could have come from other people, and the jury rejected that.

[00:20:56] Speaker 01:
Right, so you can know details of the crime scene

[00:20:59] Speaker 01:
that are consistent with the statements by Hill and Robinson and still not necessarily conclude that knowledge of the details of the crime scene implicate Butler.

[00:21:09] Speaker 01:
Because it may, it could have been somebody else that did exactly all those things with the bell.

[00:21:14] Speaker 01:
with the sock in the throat.

[00:21:15] Speaker 04:
That's correct.

[00:21:17] Speaker 04:
But that's corroborated by all of the other evidence in the case.

[00:21:20] Speaker 04:
These keys are found on the contiguous roof of Butler's home.

[00:21:24] Speaker 04:
Butler, he's got the motive.

[00:21:26] Speaker 04:
There was no disputing that he was a drug dealer.

[00:21:28] Speaker 04:
And this is a drug deal that has been interrupted.

[00:21:32] Speaker 04:
He's got the opportunity.

[00:21:33] Speaker 04:
He's the person who's on the scene.

[00:21:35] Speaker 01:
Can I ask you this question?

[00:21:37] Speaker 01:
There's no doubt that there's evidence that implicates Butler.

[00:21:40] Speaker 01:
I doubt that

[00:21:42] Speaker 01:
colleagues on the other side would disagree with that.

[00:21:45] Speaker 01:
The question is, where are we in terms of materiality, given the standard?

[00:21:49] Speaker 01:
And what you say in your brief, quoting Lafave, is that the standard of materiality is easier for the defendant to meet than the reasonable probability requirement of Brady, and is instead equivalent to the harmless error standard in Chapman.

[00:22:02] Speaker 01:
And so that means that it is the most difficult standard of materiality that the government has.

[00:22:11] Speaker 01:
Correct?

[00:22:12] Speaker 04:
Correct.

[00:22:13] Speaker 04:
But we still do not think that Appellant has met his burden here of demonstrating a reasonable likelihood of an effect on the verdict, given there's a mountain of

[00:22:23] Speaker 04:
circumstantial evidence and boy this guy's he's either the most unlucky guy on the planet or he's the killer I mean every every all the circumstantial evidence points to the points to the appellant and there's all sorts of evidence that corroborates the veracity of the confession witnesses so I'm a little concerned about the opinion that we wrote on direct appeal which I

[00:22:47] Speaker 03:
The direct appeal issue, as you'll recall, was should there have been an expert evaluation of the credibility of these two witnesses, Hill and Robinson, who were admittedly drug addicts.

[00:23:01] Speaker 03:
And our court says, yeah, we know there's serious concern about the addict turned informer who may have a special and very powerful motive to fabricate a case for his own benefit, but we say again and again, here there's extrinsic corroboration, extrinsic corroboration, extrinsic corroboration.

[00:23:23] Speaker 03:
When I read that, I think the panel at that time is thinking of hair evidence.

[00:23:29] Speaker 03:
which the prosecution emphasized.

[00:23:32] Speaker 03:
These hairs are the same in every microscopic characteristic, every one.

[00:23:37] Speaker 03:
You heard the 16 possible combinations, lack thereof, et cetera.

[00:23:40] Speaker 03:
Every one matched.

[00:23:42] Speaker 03:
To me, that is, arguably in the juror's mind, the strongest corroborating evidence.

[00:23:47] Speaker 03:
So it's a little, how do we say harmless error given the

[00:23:53] Speaker 03:
on the one hand, the bulwark of the Helen Robinson testimony, and on the other hand, the bulwark of the hair.

[00:23:59] Speaker 04:
Well, I think the question is, how does the court, can the court say that the defendant has shown a reasonable likelihood of an effect on the verdict?

[00:24:06] Speaker 04:
And there's so much evidence here.

[00:24:08] Speaker 04:
It's true.

[00:24:09] Speaker 04:
We're not disputing that these were drug users.

[00:24:13] Speaker 04:
people are convicted in courthouses around the country based on the testimony of drug users every single day.

[00:24:18] Speaker 04:
And so that can't be the answer right there.

[00:24:21] Speaker 04:
But these, they were corroborated both by the physical evidence.

[00:24:25] Speaker 04:
I'm not disputing that the hair evidence was one piece of evidence that the government used and suggested corroborate, is corroborative evidence.

[00:24:33] Speaker 04:
That's a fact.

[00:24:35] Speaker 04:
But we had

[00:24:36] Speaker 04:
Other forensic evidence, we've got the paint.

[00:24:39] Speaker 04:
We've got paint on the decedent's, the inside of the decedent's coat, the defendant's pants, and the Pepsi bottle that was used in the course of the murder.

[00:24:47] Speaker 01:
So the question was a lot of that, and you're right.

[00:24:50] Speaker 01:
I mean, we're trying to unpack the...

[00:24:52] Speaker 01:
extent to which a particular piece of evidence affected the overall picture.

[00:24:57] Speaker 01:
And part of that is informed by the extent to which the other pieces of evidence could have been called into question.

[00:25:03] Speaker 01:
And with the paint, which is obviously probative evidence that supports the government, the response was made that, well,

[00:25:12] Speaker 01:
the paint came from a few days earlier and yeah, Butler and the victim were together a few days earlier when the paint was fresh.

[00:25:19] Speaker 01:
And so that's possible.

[00:25:21] Speaker 04:
Of course it's possible too that the paint was... I think that's a much weaker argument because neither of them were painting on Saturday and it just so happens that the paint is on the inside of his coat with the Pepsi bottle that's used in the murder that also has paint on it.

[00:25:35] Speaker 03:
I may be wrong, but I thought the painting was actually happening on the earlier time and that therefore it was more plausible that the new, fresh, wet painting.

[00:25:43] Speaker 04:
You're right.

[00:25:43] Speaker 04:
No, the paint was happening on Saturday, but these two people weren't painting.

[00:25:46] Speaker 04:
The defendant wasn't painting and Mr. Mears wasn't painting.

[00:25:49] Speaker 04:
Either time, right.

[00:25:49] Speaker 04:
Yes.

[00:25:52] Speaker 04:
And it just so happens that there is that Pepsi bottle with paint on it on top of Mr. Mears' coat and the splatter on the deceased man's pants.

[00:26:00] Speaker 04:
So, but the court's focus ought to be the totality of the evidence.

[00:26:05] Speaker 01:
Sure.

[00:26:05] Speaker 01:
Should we take into account the way that the defense perceived the case?

[00:26:10] Speaker 01:
Because what the defense counsel said at self-medical panic 768 is about the hair testimony.

[00:26:15] Speaker 01:
And next we had Adrian Schulberg, another expert, a hair expert, that he dealt with human hairs.

[00:26:20] Speaker 01:
He told you that there are a series of characteristics about these hairs.

[00:26:23] Speaker 01:
And he heard him testify that he could not be sure, that he could not say to you categorically.

[00:26:27] Speaker 01:
And then now this is it.

[00:26:28] Speaker 01:
If this evidence failed, then the government has failed.

[00:26:30] Speaker 01:
That's right.

[00:26:32] Speaker 04:
He perceived that evidence as wobbly and tried to convince the jury, don't look over here at all this other evidence.

[00:26:37] Speaker 01:
He also perceived it as really, really significant.

[00:26:40] Speaker 01:
Because he says if this failed, the government has failed.

[00:26:43] Speaker 04:
I think he would perceive it as significant had it identified the defendant as the killer.

[00:26:48] Speaker 04:
And his point was, no it doesn't.

[00:26:49] Speaker 01:
But the prosecutor's closing argument does use it to identify.

[00:26:55] Speaker 01:
I guess I understand what you're saying, which is that the defense might have been successful in trying to impugn the hair test of money, but what one can also glean from that statement is the defense thought that the hair test of money was particularly significant.

[00:27:10] Speaker 04:
I think at the end of the day, it's not fair to characterize the hair evidence as argued by the prosecutor is this overwhelming, significant piece of evidence.

[00:27:20] Speaker 04:
What the prosecutor found significant and pivotal, he describes as the belt and the fact that Ellen Johnson doesn't enter the kitchen.

[00:27:28] Speaker 04:
She couldn't have known about the belt.

[00:27:30] Speaker 04:
she couldn't have known about the gag, the stocking used as a gag.

[00:27:35] Speaker 04:
But he also pointed to the other evidence that corroborated the veracity of the confession witnesses.

[00:27:46] Speaker 04:
You had Junior Dean

[00:27:47] Speaker 04:
who has a defendant on the scene at the time of the murder.

[00:27:50] Speaker 04:
He's got a defendant coming back home around 2.30.

[00:27:53] Speaker 04:
The defendant's girlfriend can't put the defendant home, but she does say that he left to go to Hill's house at 3.30.

[00:27:59] Speaker 04:
And Hill says the defendant came over around 3.30, where he made these confessions.

[00:28:03] Speaker 04:
You've got Junior, who then has the defendant coming back around 5 o'clock, consistent with the confession witnesses saying that's when they separated ways.

[00:28:10] Speaker 04:
You've got Mary Dean saying that Hill is a very good friend of the defendant's.

[00:28:14] Speaker 04:
There's no reason

[00:28:15] Speaker 04:
On the day of the murder, there is no reason for Hill and Robinson to falsely frame their very good friend, the defendant.

[00:28:23] Speaker 04:
In fact, when Hill went in to talk to the police initially, he didn't want to tell them what he knew.

[00:28:28] Speaker 04:
He was trying to protect the defendant.

[00:28:31] Speaker 04:
And there was no theory for why they would do this on that day.

[00:28:34] Speaker 04:
And he was with the defendant after the murder, hanging out with his family.

[00:28:38] Speaker 04:
Again, establishing the close relationship that these folks had.

[00:28:42] Speaker 04:
And so the prosecutor, if you look at the prosecutor's closing argument in its totality, it's very clear that the hair of evidence is not driving matters.

[00:28:52] Speaker 04:
That's not how the government argued the case.

[00:28:55] Speaker 01:
It's complicated because these post hoc materiality increases are always difficult.

[00:29:04] Speaker 01:
But it's complicated because what the prosecutor does say over and over and over is look at everything together.

[00:29:10] Speaker 01:
It's not just one thing.

[00:29:11] Speaker 01:
Look at all the stuff together.

[00:29:13] Speaker 01:
And one of the things that is among the things that you're supposed to look at together is the hair.

[00:29:18] Speaker 01:
It's one of them.

[00:29:19] Speaker 01:
There's definitely a lot of other things you're absolutely right about that.

[00:29:22] Speaker 04:
And we don't disagree.

[00:29:23] Speaker 04:
It came in because it was relevant.

[00:29:26] Speaker 04:
But that's not the standard.

[00:29:27] Speaker 04:
The test isn't, is this evidence relevant?

[00:29:30] Speaker 04:
Did it make it a little bit easier?

[00:29:32] Speaker 04:
This evidence has to have some heft and some weight to affect it.

[00:29:35] Speaker 04:
for the court to find a reasonable likelihood that it affected the jury.

[00:29:39] Speaker 01:
And we don't think in the totality... Well, it has to be beyond a reasonable doubt that it didn't, right?

[00:29:44] Speaker 01:
That's the standard that you bought into with Chapman.

[00:29:46] Speaker 01:
And is that... I take it that's true.

[00:29:48] Speaker 01:
It only has to be one juror?

[00:29:50] Speaker 04:
Well, what we agreed with was the notion of the certainty that the court needs to find.

[00:29:56] Speaker 04:
But we don't agree that...

[00:30:00] Speaker 04:
the test that ought to be applied.

[00:30:01] Speaker 04:
We don't agree that the court should rewrite the NAPEW standard.

[00:30:05] Speaker 04:
The defendant should be required in this case to meet his burden of showing a reasonable likelihood that this evidence... Right, and that standard is equivalent to... Yes, yes, but that's the defendant's burden, so the court... Yes, yes, yes.

[00:30:17] Speaker 01:
The burden kicks into play if you're an equipoise.

[00:30:20] Speaker 04:
Yes.

[00:30:20] Speaker 01:
But in terms of the standard, the standard is equivalent to the trial.

[00:30:23] Speaker 04:
Yes, and we think with a mountain of overwhelming

[00:30:26] Speaker 04:
evidence, all of which points to appellant.

[00:30:29] Speaker 04:
There's no alternate theory.

[00:30:30] Speaker 03:
And at this point, you just referred to the mountain of overwhelming evidence.

[00:30:34] Speaker 03:
At this point, were we to find that the error is not harmless, then what happens as a practical matter?

[00:30:43] Speaker 04:
If this court were to find the defendant met his burden of showing materiality, in this case, we have not made a harmless error argument.

[00:30:52] Speaker 04:
We haven't.

[00:30:55] Speaker 00:
So I want to be clear that NAPEW requires... Your theory is that harmlessness is subsumed in materiality.

[00:31:03] Speaker 04:
In this case, yes.

[00:31:05] Speaker 04:
We are not arguing that if the court finds that all the elements of a NAPEW violation have been met,

[00:31:12] Speaker 04:
that it would go on to assess for harmlessness.

[00:31:14] Speaker 01:
There's not an extra harmlessness over the materiality part of it.

[00:31:18] Speaker 01:
I thought the question was what would happen as a practical matter with this case if the court were to conclude that the evidence was material?

[00:31:26] Speaker 04:
Then the court would reverse.

[00:31:28] Speaker 01:
And what would happen with this case?

[00:31:31] Speaker 04:
Retrial?

[00:31:31] Speaker 04:
I mean, it's 48 years old, I think.

[00:31:34] Speaker 04:
Retrial is not something that we've discussed.

[00:31:37] Speaker 04:
So I don't have anything to offer them.

[00:31:39] Speaker 04:
I have no idea whether these witnesses are even alive at this point.

[00:31:44] Speaker 04:
And this was an individual who was sentenced to 20 years?

[00:31:47] Speaker 04:
20 years to life, and then I think 5 to 15 on the robbery.

[00:31:52] Speaker 04:
Concurrent.

[00:31:53] Speaker 04:
I think they were concurrent, yeah, because it was felon.

[00:31:57] Speaker 03:
So the concurrent, so it's

[00:31:59] Speaker 03:
It's not before us.

[00:32:03] Speaker 01:
I'm just puzzling through the materiality part of it and how we're supposed to conceptualize it.

[00:32:10] Speaker 01:
Would we look at it from the perspective of even one juror?

[00:32:13] Speaker 01:
Because even one juror would have been enough at least to hang.

[00:32:16] Speaker 01:
And so is the way we look at it to say we apply the Chapman standard with the burden on the defendant instead of the government.

[00:32:23] Speaker 01:
Let's posit that that's the case.

[00:32:25] Speaker 01:
And then would we look at it from the perspective of whether

[00:32:28] Speaker 01:
Do you have the reasonable possibility slash beyond reasonable doubt part of Chapman satisfied as to one juror?

[00:32:36] Speaker 04:
I'm answering this off the top of my head.

[00:32:37] Speaker 04:
I can't honestly say that this is something that I've given thought to.

[00:32:41] Speaker 04:
Ordinarily, in most cases, you're talking about a different verdict as opposed to a juror hanging the rest of the jury.

[00:32:53] Speaker 04:
have anything more to offer the court on that point.

[00:32:56] Speaker 04:
If there are no further questions, we'd ask that the judge be affirmed.

[00:32:59] Speaker 01:
Thank you.

[00:33:04] Speaker 01:
We'll give you your two minutes that you asked for.

[00:33:09] Speaker 02:
First, to answer the court's question, yes, we will look at this question from the perspective of one juror, because that is an effect on the jury.

[00:33:16] Speaker 02:
If one juror was moved from a position of guilty to undecided, that is an effect on the jury.

[00:33:23] Speaker 02:
And it counts for the fact that you have 12 laypeople who are looking at this evidence from different perspectives.

[00:33:29] Speaker 01:
And what would that one juror have thought here?

[00:33:32] Speaker 01:
Your best case scenario is that the hair evidence was especially critical in putting the defendant and the victim together at the relevant time.

[00:33:44] Speaker 01:
But when one juror is looking at it, or the jury is looking at it, what's the alternate scenario?

[00:33:51] Speaker 02:
Well, the jury, you know, the vets argued that the government had not met its burden.

[00:33:55] Speaker 02:
And that is the alternate scenario, that the juror was not compelled to believe these two witnesses who were drug-addicted witnesses who had motives to lie.

[00:34:07] Speaker 02:
They heard about a contaminated crime scene.

[00:34:09] Speaker 02:
They heard all these things.

[00:34:10] Speaker 02:
They wouldn't be compelled to accept the government's theory or the government's version.

[00:34:15] Speaker 02:
And that's what the one person would say.

[00:34:17] Speaker 02:
It's more than putting, the hair did more than just put them in the same place at the same time.

[00:34:21] Speaker 02:
It also allowed the government to argue, well, common sense will tell you.

[00:34:25] Speaker 02:
Do you get this hair get on someone just through casual contact, or is it through strangulation or standing over someone?

[00:34:32] Speaker 02:
And so it was very compelling evidence in that sense, and the one juror who was not compelled to

[00:34:39] Speaker 02:
accept the government's theory or to accept these flawed witnesses or to accept their version that the paint had to get on Mr. Butler that day as opposed to three days prior when he was in the apartment while it was being painted.

[00:34:51] Speaker 02:
That's what that one juror could easily have done.

[00:34:56] Speaker 03:
So I just want to circle back for a second on the question of whose burden.

[00:35:00] Speaker 03:
I think our case law is not entirely clear about that.

[00:35:03] Speaker 03:
And we're not really talking here about burden of proof in the sense of marshaling evidence.

[00:35:08] Speaker 03:
I mean, maybe it's a burden of persuasion, but it is the defendant's burden in this posture to persuade the court that the error is material, no?

[00:35:21] Speaker 03:
Or do you dispute that?

[00:35:22] Speaker 03:
And if so, how and why?

[00:35:24] Speaker 02:
Well, there are a couple of things I would say about that.

[00:35:26] Speaker 02:
And first, it's my position that the burden here doesn't matter because we're not talking about marshaling evidence.

[00:35:33] Speaker 02:
There's an established record that the court is reviewing and asking, is there any reasonable possibility or likelihood that this evidence affected the judgment of the jury?

[00:35:44] Speaker 02:
So it's the rare case, and the Supreme Court has said this, it's the rare case in which even the burden issue comes into play.

[00:35:50] Speaker 02:
This is not that rare case with the strong evidence in this circumstantial case.

[00:35:56] Speaker 02:
But our position is also that, yes, the government does bear the burden of showing that the false evidence did not harm the outcome of this case.

[00:36:05] Speaker 02:
And that's as it should be, Nate, who is- I'm sorry, why?

[00:36:09] Speaker 00:
Because I thought we're in agreement that

[00:36:13] Speaker 00:
The appropriate way of thinking about the question whether any of this matters is under the rubric of materiality as opposed to harmless error.

[00:36:25] Speaker 00:
And the black letter law is the defendant challenger has to prove materiality, the government would have to prove harmless error.

[00:36:33] Speaker 02:
And our position is that because NAPU is equal to Chapman, it's the beneficiary of the error that bears the burden.

[00:36:40] Speaker 02:
And in this case, that would certainly be the government.

[00:36:43] Speaker 00:
I mean, it's equal to Chapman to the extent you think words like possibility are synonymous with words like likelihood.

[00:36:52] Speaker 00:
But I don't know of any case where we've said the materiality inquiry under NAPU

[00:37:02] Speaker 00:
is converted into a harmless error inquiry through Chapman.

[00:37:08] Speaker 00:
I mean we've said time and again it's a materiality question.

[00:37:13] Speaker 02:
Well certainly we

[00:37:17] Speaker 02:
It's our position that the NAPU standard, the burden under NAPU is the same as it would be under Chapman, and that's for good reason because once the trial process has been corrupted, it makes little sense to have the person who's been affected by that, the individual who's been convicted, be the person who has to bear the burden of showing.

[00:37:35] Speaker 00:
I mean, it may not matter much, right?

[00:37:37] Speaker 00:
It would matter if the case is in perfect equipoise, which is a rare case, and it would matter if

[00:37:44] Speaker 00:
one side or the other fails to raise the issue and we certainly don't have the second of those.

[00:37:50] Speaker 02:
Exactly.

[00:37:50] Speaker 02:
So that's our primary position that in this case it just simply doesn't matter.

[00:37:55] Speaker 01:
And for equipoise purposes it would have to be in perfect equipoise on whether the Chapman standard is met or not.

[00:38:00] Speaker 01:
Not the materiality.

[00:38:02] Speaker 01:
The materiality, the Chapman analog, the materiality Chapman analog standard is met.

[00:38:08] Speaker 01:
You'd have to be in equipoise on that.

[00:38:09] Speaker 01:
And at that point the burden would matter.

[00:38:12] Speaker 02:
And that is not this case.

[00:38:16] Speaker 02:
In this case where false forensic evidence was used to go to the only contested issue, it's clear that we cannot be comfortable that a jury did not rely on this evidence.

[00:38:29] Speaker 02:
Thank you.

[00:38:31] Speaker 02:
And because the false testimony was not harmless, I ask the court to reverse the order of the district court.

[00:38:37] Speaker 02:
Thank you.

[00:38:38] Speaker 01:
Thank you, counsel.

[00:38:39] Speaker 01:
Thank you, counsel.

[00:38:39] Speaker 01:
The case is submitted.