Issues
What is the standard of review for analyzing a sufficiency-of-the-evidence claim under Jackson v. Virginia? May a federal habeas court admit nonrecord evidence to determine the reliability of testimony and evidence given at trial?
Following a state conviction for sexual assault, Troy Brown (“Brown”) filed a petition for writ of habeas corpus in the United States District Court for the District of Nevada. The District Court allowed Brown to present new evidence: a report from Dr. Lawrence Mueller. This report detailed a statistical error (“prosecutor’s fallacy”) made by the prosecution during the presentation of DNA evidence. Based on Dr. Mueller’s report, the District Court dismissed the DNA evidence from consideration, found insufficient evidence to convict Brown, and ordered a retrial. The Ninth Circuit affirmed. Petitioner, Warden E.K. McDaniel (“McDaniel”), argues that, under Jackson v. Virginia’s sufficiency-of-the-evidence standard, a district court may not supplement the trial record. Additionally, McDaniel asserts that the District Court’s analysis was not sufficiently deferential to the state court. Brown agrees with McDaniel that the Ninth Circuit improperly applied Jackson. Brown, however, argues that the lower courts analyzed his case as a due process violation, and, as such, a retrial is the proper remedy to correct flawed DNA evidence.
Questions as Framed for the Court by the Parties
1. What is the standard of review for a federal habeas court for analyzing a sufficiency-of-the-evidence claim under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA)?
2. Does analysis of a sufficiency-of-the-evidence claim pursuant to Jackson v. Virginia, 443 U.S. 307, 318-19 (1979), under 28 U.S.C. § 2254(d)(1) permit a federal habeas court to expand the record or consider nonrecord evidence to determine the reliability of testimony and evidence given at trial?
Facts
In the early hours of January 29, 1994, a nine-year-old girl was sexually assaulted in the bedroom of her home. Troy Brown was arrested that February. The state charged Brown with sexual assault on a child under the age of fourteen resulting in substantial bodily harm, attempted murder, and abuse or neglect of a child less than eighteen years old resulting in substantial bodily harm. At trial, Brown did not call his own DNA expert witness even though the court provided funds for such a witness. With the exception of the attempted murder charge, Brown was convicted on all counts.
The Prosecutor’s Fallacy — Background
The prosecutor’s fallacy occurs when the probability of a random person’s DNA matching the DNA found at a crime scene is used to imply that there is an equal probability of guilt. For example, if there is a one in three million chance that a random person’s DNA would yield a match, the prosecutor’s fallacy occurs when that number is used to imply that there is a one in three million chance that the person is innocent. To further illustrate why this is nontrivial, “[s]uppose the city in which the [defendant] lives has 500,000 adult inhabitants. Given the 1 in 10,000 likelihood of a random DNA match, you’d expect that about 50 people in the city would have DNA that also matches the sample. So this [defendant] is only 1 of 50 people who could have been at the crime scene.” Considering this DNA evidence alone (i.e. without looking at other evidence linking the defendant to the crime), the defendant is likely innocent.
The Prosecutor’s Fallacy — Occurrence
At trial, Renee Romero, a forensic scientist at the Washoe County Crime Lab, testified that the DNA found in the victim’s underwear matched Brown’s DNA; only one in three million people would match the DNA tested. The prosecutor asked Romero to express this statistic as “the likelihood that the DNA found . . . is the same as the DNA found in [Brown’s] blood.” Romero concluded that the likelihood was 99.999967 percent. Based on this statistic, the prosecutor then asked Romero if it would be fair to conclude that there was a 0.000033 percent chance that the DNA did not belong to Brown. Romero agreed with the prosecutor, stating that that this was “not inaccurate.”
Federal Habeas Corpus
Following a series of state appeals, Brown was ultimately sentenced to life in prison.
On December 16, 2003 Brown submitted a pro se petition for writ of habeas corpus to the United States District Court for the District of Nevada. Also, Brown filed a motion to supplement the record with a report by Dr. Lawrence Mueller, a professor of Ecology and Evolutionary Biology at the University of California, Irvine. In the report, Dr. Mueller detailed the occurrence of the prosecutor’s fallacy.
The District Court granted Brown’s motion to supplement the record with Dr. Mueller’s report. While the actual report was not presented to the Nevada Supreme Court, the District Court held that Brown argued the idea behind the report during state proceedings, and, thus, the report was supplementary.
The District Court granted Brown’s habeas petition. See , 525 F.3d 787, 792 (9th Cir. 2008). The District Court concluded that (1) based on the Dr. Mueller’s report, Romero’s testimony was unreliable, (2) absent that testimony, no rational trier of fact could conclude beyond a reasonable doubt that Brown was guilty, and (3) Brown had ineffective assistance of counsel. See id. McDaniel appealed to the Ninth Circuit Court of Appeals. See id. The Court of Appeals affirmed. See . at 798. On January 26, 2009, the U.S. Supreme Court granted certiorari, but on September 7, 2009, the Court removed it from its argument calendar.
Analysis
There lower federal courts addressed two primary issues: (1) whether Dr. Mueller’s report on the prosecutor’s fallacy was admissible in the federal habeas corpus proceeding, and (2) assuming the report was admissible, whether Troy Brown’s conviction met the Jackson v. Virginia, 443 U.S. 307, 318–19 (1979), sufficiency-of-the-evidence standard.
In his appearance before the Supreme Court, Brown has taken an unusual step: instead of defending the Ninth Circuit’s Jackson analysis, Brown argues the Supreme Court should affirm the lower court decision under the due process standard of Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). Because Brown argues that the questions presented are moot and concedes that the Ninth Circuit’s analysis was at least partially incorrect, the Supreme Court may approach the case from a number of different angles.
Federal Habeas Corpus — Looking Outside the Record
The first issue involves whether a federal court can look to evidence from outside the trial court record when evaluating a petition for writ of habeas corpus. The District Court allowed Brown to submit Dr. Mueller’s report which argued that Dr. Romero’s presentation of the DNA evidence was incorrect and prejudicial. The Ninth Circuit affirmed.
McDaniel argues that, under a Jackson review, the federal habeas court is limited to evidence before the jury and could not expand upon the trial record. McDaniel cites the more recent case of Herrara v. Collins, 506 U.S. 390 (1993), for the continued insistence that a federal habeas court cannot consider new evidence not adduced at trial. Therefore, because Brown failed to object to the DNA evidence at the trial level or at his post-conviction hearing, he is barred from introducing Dr. Mueller’s report under Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), because he did not fully exhaust his DNA claims at the state level.
Brown counters that Dr. Mueller’s report merely clarifies the DNA testimony, giving the federal court the opportunity to fully consider his DNA claims. As to whether the DNA claims were fully exhausted in state court, Brown argues that he challenged the validity of the DNA evidence at the Nevada Supreme Court by raising the issue in his brief. Therefore, Brown argues that the federal court properly allowed Dr. Mueller’s report because it simply reiterates that Romero’s statements concerning the DNA were inaccurate and misleading.
Dr. Mueller’s Report: DNA Evidence and the Prosecutor’s Fallacy
Assuming that Dr. Mueller’s report was properly admitted into evidence, the parties next address the value of the report, specifically the value of the DNA evidence based on the occurrence of a prosecutor’s fallacy.
At the trial, Romero testified that Brown’s DNA matched the samples from the victim. Next, she testified that one in three million people from the population at large would match the DNA sample. The prosecutor’s fallacy occurred when Romero, at the urging of the prosecutor, testified that the one in three million probability meant that there was a one in three million chance the DNA evidence was actually from Brown.
In his brief, McDaniel admits that Romero’s testimony constituted a prosecutor’s fallacy. However, McDaniel claims that the fallacy is a “red herring.” He argues that the lower courts went too far in discarding the entire DNA testimony based on this one statement, especially in light of the deference owed to the jury’s findings.
Brown argues that the prosecutor’s fallacy was not a harmless error, and this violation of due process requires a remedy of a new trial. Brown asserts that the prosecutor’s fallacy is far from harmless because it purports to identify the person who committed the crime with extreme certainty. Furthermore, Brown claims that federal courts should not “usurp” a jury by deciding how a theoretical jury would have ruled given proper testimony. Thus, in arguing for a retrial, Brown claims that a jury should decide his guilt or innocence.
Sufficiency of the Evidence or Harmless Error Standard
The last major issue involves whether the Court should view this case under the sufficiency-of-the-evidence standard of Jackson, or as a violation of due process under Brecht. Both the district court and the Ninth Circuit granted the writ under the Jackson sufficiency-of-the-evidence standard. After excluding Romero’s DNA testimony, the court then weighed the remaining evidence against Brown and found that it did not support a conviction. The Ninth Circuit ordered a retrial or Brown’s release from jail.
McDaniel argues that the Ninth Circuit’s application of Jackson was flawed in a number of ways. As previously discussed, McDaniel claims that a federal habeas court cannot expand the record, but can only look to the evidence before the jury. McDaniel also asserts that, under the Jackson standard, the court must view the evidence in the light most favorable to the prosecution, and then ask whether a rational jury could have found the person guilty beyond a reasonable doubt. McDaniel argues that trial evidence, including the DNA evidence presented by Romero, was sufficient for a rational jury to convict. Therefore, when the Ninth Circuit found conflicts within the evidence, it ignored Jackson by reweighing the evidence instead of resolving the conflicts in favor of the prosecution.
Brown agrees that the Ninth Circuit erroneously applied Jackson. However, respondent argues that the prosecutor’s fallacy was a violation of Brown’s due process right under Brecht, because it was not a harmless error. Brown claims that the overly suggestive identification testimony violates due process, because it misled the jury. Brown argues that the prosecutor’s fallacy was not harmless considering inconsistencies in other evidence. Brown urges the court to recognize the questions presented as moot, and either affirm the decision as the correct remedy under Brecht, or send the case back to the Ninth Circuit for a due process analysis.
McDaniel counters that Brown ignores the questions presented by shifting to a due process analysis at a late stage in the litigation. Because Brown argued under the Jackson standard and won, McDaniel argues that Brown cannot now switch to a due process analysis at this stage in the litigation.
Discussion
This case may have an impact on both the significance of the prosecutor’s fallacy in the presentation of DNA evidence, as well as whether federal habeas petitioners may supplement the record to take the error into account. Moreover, this case may shed additional light on the sufficiency-of-the-evidence standard for habeas petitions.
The United States, amicus curiae for McDaniel, is concerned about the implications this ruling may have on the review of federal convictions. If defendants are capable of using newly discovered material to attack trial evidence, defendants will not have the incentive to present this information at the proper time—at trial. It is at the trial level that the prosecutor has the opportunity to correct inaccuracies or present further evidence to bolster the claim. The Court of Appeals granted Brown a retrial, which burdens the party who has already prevailed on the merits and is inconsistent with the standards established by the Supreme Court in Jackson v. Virginia. Moreover, under the Jackson standard, double jeopardy concerns may prevent retrial.
In addition, McDaniel argues that using this nonrecord evidence will essentially undermine the role of juries. The federal courts would have the authority to determine the credibility of witnesses who testified at the state trial court level, but never seen by the federal court.
Brown and amici are concerned with the implications of allowing the jury to be exposed to the “prosecutor’s fallacy” without remedy. According to the NACDL, juries lack the specialized knowledge necessary to scrutinize DNA experts’ testimony. “As a result, an expert DNA witness, cloaked with scientific credibility, may end up presenting a jury with statistics that are simply false, in that they overestimate the likelihood that a defendant is the source of crime-scene DNA.” DNA evidence simply determines whether the defendant had the same set of genetic characteristics that were found on the crime scene evidence. DNA evidence does not determine the probability that the defendant was the source of the DNA. Without training in genetics and statistics, jurors may give improper weight to the faulty DNA statistic and, as a result, not fully consider other evidence.
Outcomes
If Brown is successful, federal habeas petitioners will be able to supplement the trial record more easily when there is erroneous DNA evidence involved. At trial, prosecutors and their expert witnesses would need to exercise care to avoid the prosecutor’s fallacy, lest it come back successfully on appeal or in a habeas petition. If McDaniel prevails, criminal defendants would be compelled to challenge erroneous evidence more vigorously at the trial level. In particular, defense attorneys would need to be on guard to catch occurrences of this complicated statistical error at trial. Regardless of outcome, defense attorneys may wish to keep in mind that the trier of fact may have a natural tendency to engage in the prosecutor’s fallacy when hearing statistical evidence, even absent prompting by the prosecutor or an expert witness.
Conclusion
This case presents questions about the harm of improperly presented DNA evidence and the extent to which a federal habeas court can look outside the trial record. If Brown is successful, federal habeas petitioners will be able to more easily supplement their trial record and challenge incorrect assertions about DNA evidence. If McDaniel is successful, criminal defendants will have a greater responsibility to challenge the presentation of evidence at the trial. However, despite many of the contentious issues raised by the case, the parties agree that, in some respect, the lower court opinions were incorrect. Therefore, the Supreme Court could narrowly focus its analysis on the lower court decisions without addressing the larger issues of federal habeas corpus practice.
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Acknowledgments
Additional Resources
· Jonathan J. Koehler: One in Millions, Billions, Trillions: Lessons from People v. Collins (1968) for People v. Simpson (1995) (Apr. 2006)
· New York Times: The Prosecutor’s Fallacy (May 16, 2007)
· Science & Law Blog, Law Professors Blog Network: The Transposition Fallacy in Brown v. Farwell (May 30, 2008)