Federal Evidence Review

The Fifth Circuit vacates and remands post-conviction denial of DNA testing of the clothing worn by the bank robber; under the Federal Innocence Protection Act, 18 U.S.C. § 3600, the district court erred in concluding that two of ten prerequisites for DNA testing were not satisfied (including chain of custody sufficient to ensure the evidence was not altered in a way that would affect DNA testing and that the proposed DNA testing “may produce new material evidence” raising a reasonable probability the defendant did not commit the offense), in United States v. Fasono, 577 F.3d 572 (5th Cir. July 31, 2009) (No. 08-60750)

In June 2009, a divided Supreme Court clarified that prisoners have no post-conviction procedural or substantive Due Process right to evidence for DNA testing under the Constitution. However, the majority made it clear that a right to material for DNA testing could be provided by the legislative branch. See District Attorney’s Office for the Third Judicial District, et al., v. William G. Osborne, 557 U. S. _, 129 S.Ct. 2308 (June 19, 2009) (No. 08-6). In a recent case, the Fifth Circuit explored the application of Congress’s attempt to provide such a right in the 2004 Innocence Protection Act, 18 U.S.C. § 3600. The Innocence Protection Act was adopted by Congress five years before the Supreme Court’s decision in Osborne. Chief Justice Roberts, writing for the majority in Osborne (which included Justices Scalia, Kennedy, Thomas and Alito) observed:

“Where there is enough other incriminating evidence and an explanation for the DNA result, science alone cannot prove a prisoner innocent. The availability of technologies not available at trial cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt. The dilemma is how to harness DNA’s power to prove innocence without unnecessarily overthrowing the established system of criminal justice. That task belongs primarily to the legislature.”

Osborne, 557 U. S. at _, 129 S.Ct. at 2316 (emphasis added). Many state legislatures have enacted procedures for considering DNA evidence post-conviction, as has Congress – all before the Court’s decision in Osborne.

The Innocence Protection Act of 2004 provides an avenue for a defendant convicted of a federal crime to petition for DNA testing. The statute applies particularly where DNA testing has not been previously completed or where DNA testing has improved with the passage of time. The Act sets out a rigorous method for the convicted defendant to seek a court order to conduct DNA testing to establish innocence, despite having been convicted. See Osborne, 557 U. S. at _, 129 S.Ct. at 2316. Under the federal procedure, the court considers a motion for DNA testing based on ten mandatory elements that must be proven before the court can order DNA testing. 18 U.S.C. § 3600(a) (“[T]he court that entered the judgment of conviction shall order DNA testing of specific evidence if the court finds that all of the following apply....”) (emphasis added).

The ten factors that must be shown include:

1. Assert Innocence: The applicant’s petition states that he is “actually innocent” of the offense of conviction. § 3600(a)(1).
2. Evidence Security: The evidence to be tested for DNA was “secured in relation to the investigation or prosecution” that resulted in the conviction. § 3600(a)(2).
3. No Waiver Or Default: If the evidence was not previously DNA tested, the defendant must not have waived testing or procedurally defaulted his right to testing. § 3600(a)(3).
4. Chain Of Custody: The evidence to be tested must currently be in the possession of the government and remain subject to a chain of custody which insures that the evidence “has not been substituted, contaminated, tampered with, replaced, or altered in any respect material to the proposed DNA testing.” § 3600(a)(4).
5. Reliable Procedure: The proposed DNA testing must be reasonable in scope and use scientifically sound methods consistent with accepted forensic practices. § 3600(a)(5).
6. Sound Defense Theory: The defendant must identify a defense theory that would establish his innocence of the challenged conviction that could be proved through use of the DNA evidence and that this theory does not conflict with an affirmative defense the defendant presented at trial. § 3600(a)(6).
7. Issue At Trial: If the defendant was convicted as the result of a trial, the identity of the perpetrator must have been at issue in the trial. § 3600(a)(7).
8. New Evidence: The proposed DNA testing must have the possibility of revealing new material evidence consistent with the defense theory identified in factor #6 and must raise “a reasonable probability” that the defendant did not commit the offense. § 3600(a)(8).
9. Defendant’s DNA: The defendant must agree to provide a DNA sample for the petitioned test. § 3600(a)(9).
10. Timeliness: The motion for DNA testing under the Innocence Protection Act must be timely. § 3600(a)(10).

In the Fifth Circuit’s Fasono case, the only factors in dispute were the fourth (chain of custody) and the eighth (new evidence) factors.

In the case, defendant Fasono was convicted of being the lone robber of a bank in Mississippi. The robber “wore a white hard hat, a work shirt and black sunglasses” and these items were recovered by police “within minutes of the robbery” from where the robber supposedly cast them aside. The perpetrator got away with $6600 in cash. The jury convicted the defendant in 2005, and his conviction was affirmed on appeal in 2007. See United States v. Fasono, 217 F. App’x 373 (5th Cir. 2007). The Fifth Circuit found that the trial verdict was based on “substantial evidence” of the defendant’s guilt, including:

“(1) bank video camera footage showed a man with Fasono’s build robbing the bank; (2) four eyewitnesses identified Fasono as the robber; (3) vehicle records revealed that Fasono’s vehicle and another vehicle he had access to matched eyewitness descriptions of the robber’s vehicle; and (4) Fasono’s fingerprints were found on the demand note used in the robbery.”

Fasono, __ F.3d at __ (quoting United States v. Fasono, 217 F. App’x 373 (5th Cir. 2007)).

After the end of the post-conviction challenge, the defendant sought DNA testing in order to prove his innocence and that the robbery had been conducted by an acquaintance:

“Fasono’s defense at trial attacked the reliability of the eyewitness testimony and pointed the finger at Mark Westly Hughes. Hughes had a criminal record and had been staying in his old room as a guest of Fasono’s brother. The defense argued that Hughes had access to the green shirt, hard hat and glasses; that although Fasono’s finger prints were on the demand note, the paper on which the demand note was written came from his old room. The state of course put the clothes on Fasono with the eyewitness testimony and Fasono would put them on Hughes. That the robber wore them and presented the note was never at issue.”

Fasono, 577 F.3d at 578.

The Fifth Circuit considered the two disputed factors. On the fourth factor, concerning chain of custody, the circuit noted that it had “two components. First there is the requirement of chain of custody. Second there is the requirement that there has been no alteration of evidence material to DNA testing.” Fasono, 577 F.3d at 576. The circuit found that the trial court had misinterpreted this factor. The trial court concluded that the chain of custody required under the Innocence Protection Act was “narrower” than that imposed under FRE 901. According to the circuit, this was incorrect. The applicant for DNA testing “need only show that the result of testing would be admitted under Fed. R. Evid. 901” which was demonstrated in Fasono’s case by the fact that “the evidence was continuously in the possession of one or more of the parties.” Fasono, 577 F.3d at 576 & n.5 (citing Ballou v. Henri Studios, Inc., 656 F.2d 1147, 1155 (5th Cir. 1981) (FRE 901 requires a “threshold showing that reasonable precautions were taken against the risk of alteration, contamination or adulteration. The proponent of the evidence need not rule out every conceivable chance that somehow the identity or character of the evidence underwent change.... So long as the court is persuaded that as a matter of normal likelihood the evidence has been adequately safeguarded, the jury should be permitted to consider and assess it in light of the surrounding circumstances.”)).

The circuit also found that the trial court was too restrictive in its reading of the second factor in dispute – the eighth factor concerning the creation of new evidence as a result of the DNA testing. This factor also required a showing of two elements. First, a defense theory that might help establish Fasono’s innocence of the robbery and, second, that the new DNA evidence would “raise a reasonable probability” that he did not commit the robbery. Fasono, 577 F.3d at 578 (citing § 3600(a)(6) & (8)).

In assessing the trial court’s finding under a de novo standard, the circuit did not concur with the trial judge’s finding that Fasono did not satisfy this standard. The circuit found that the DNA testing could result in a reasonable probability that the perpetrator of the robbery was Mark Westly Hughes, as the defendant contended at trial. As explained by the circuit:

“The question here is whether testing may produce new material evidence that would raise a reasonable probability that the applicant did not commit the offense. The district court thought not, based on the fingerprints on the demand note and the eyewitness testimony. There is no question but that the conviction is well supported by evidence as we concluded in affirming Fasono’s conviction. If however [DNA] testing does not find Fasono’s DNA on the clothing and glasses but finds the DNA of Hughes the strong case evaporates; here the strength of the evidence by no means makes fanciful a conclusion that there is a reasonable probability that Fasono was not the robber. That is, unless we are to refuse to accept the weakness of eyewitness testimony, a reality that DNA testing has forced upon the legal community. There are myriad possibilities of outcomes from testing. We need not puzzle over their range. Nor do we now address the power of the results of testing. These are fact specific cases and Fasono has brought himself within the reach of the Innocence Protection Act and the tests must be ordered.”

Fasono, 577 F.3d at 578 (emphasis added).

Fasono is one of the first reported circuit cases showing that a defendant is entitled to post-conviction DNA testing under the Federal Innocence Protection Act. It still remains for the trial court in Fasono to determine if, based on the testing, the defendant has shown his innocence. If he can persuade the court, he will join over 200 defendants who have been exonerated over the years through the use of DNA testing.