County District Court No. 92CR95 Honorable Richard T. Gurley,
J. Weiser, Attorney General, Matthew S. Holman, First
Assistant Attorney General, Denver, Colorado, for
Cummins Krulewitch, Beth L. Krulewitch, Aspen, Colorado;
Weil, Gotshal & Manges, LLP, Irwin H. Warren, Edward
Soto, New York, New York; M. Chris Fabricant, Dana M. Delger,
New York, New York, for Defendant-Appellant
1 Defendant, James Genrich, appeals the district court's
denial of his Crim. P. 35(c) motion for postconviction
relief. He contends that the district court erred in denying
him an evidentiary hearing to prove allegations set forth in
his motion and incorporated affidavit. In support of his
argument, he points to a 2009 report, commissioned by
Congress and published by the National Academy of Sciences,
Nat'l Research Council of the Nat'l Acads.,
Strengthening Forensic Science in the United States: A
Path Forward (2009), https://perma.cc/8H3Q-S9SU
(hereinafter NAS Report), that found toolmark identification
evidence - which served as a linchpin in the
prosecution's case against him - had not been
scientifically validated. He also alleges that the district
court violated his right to due process by admitting such
evidence to support his conviction. In addition, he contends
that the opinions of a forensic scientist, premised on
extensive scholarship, review of the evidence, knowledge of
contemporary scientific consensus, and authorship of the NAS
Report, constitute newly discovered evidence that undermines
confidence in the jury's verdicts. We agree in part and
remand for a new evidentiary hearing.
2 Following oral arguments, we requested that the parties
file supplemental briefs addressing (1) whether Farrar v.
People, 208 P.3d 702 (Colo. 2009), establishes a new
standard for granting a new trial based on a claim of newly
discovered evidence; and, if so, (2) whether the proffered
newly discovered evidence set forth in the petition for
postconviction relief is affirmatively probative of
of this Case
3 Based on my opinion, Judge Berger's concurring opinion,
and Judge Tow's partially dissenting opinion, we believe
that the law of this case is as follows:
• The postconviction court's order denying
Genrich's Crim. P. 35(c) motion is affirmed in part and
reversed in part. It is affirmed as to all of Genrich's
convictions other than his convictions for class 1 felonies.
It is reversed as to the class 1 felonies, and the case is
remanded to the postconviction court for an evidentiary
hearing and for findings of fact and conclusions of law
following the hearing.
• Farrar v. People, 208 P.3d 702, 706-07 (Colo.
2009), did not establish a heightened standard for
Genrich's Crim. P. 35(c) newly discovered evidence claim.
Instead, on remand the postconviction court should apply the
supreme court's holdings in People v. Rodriguez,
914 P.2d 230, 292 (Colo. 1996); People v. Gutierrez,
622 P.2d 547, 559 (Colo. 1981); People v. Scheidt,
187 Colo. 20, 22, 528 P.2d 232, 233 (1974); and
Digiallonardo v. People, 175 Colo. 560, 568, 488
P.2d 1109, 1113 (1971).
• This division has not made a determination
whether the exclusion of O'Neil's testimony would
likely result in an acquittal; that determination is for the
postconviction court to make following the evidentiary
4 This division expresses no view as to whether Genrich
ultimately is entitled to a new trial.
5 Genrich was convicted of two counts of first degree murder,
and multiple other felonies, arising from a series of pipe
bombs detonated in Grand Junction, Colorado, in 1991.
6 In April 1989, law enforcement officers launched an
investigation in connection with a pipe bomb discovered and
disarmed in the parking lot of the La Court Motor Lodge in
Grand Junction. Investigators did not identify the
perpetrator, and the case lay dormant until three pipe bombs
exploded within months of each other in the spring of 1991.
The bombs - set off at the Two Rivers Convention Center, a
residence, and the Feedlot Restaurant - left one injured and
two dead, spurring terror in Grand Junction and a joint
investigation by the Bureau of Alcohol, Tobacco, Firearms and
Explosives (ATF) and local police.
7 ATF investigators connected the bombings to a serial
bomber, with Genrich as their primary suspect. They based
their suspicions on reports of his unusual behavior,
including his former employment at the convention center and
his presence near the area of the explosion hours before the
detonation of the first of the three 1991 bombs.
Investigators learned that Genrich had inquired at a local
bookstore about the Anarchist Cookbook - a book
that, among other things, contained instructions for
8 Officer Robert Russell and ATF Agent Larry Kresl spoke with
Genrich twice during the summer of 1991. On both occasions,
Genrich invited them into his one-room apartment in a
boarding house and voluntarily answered their questions.
During the first conversation, Genrich indicated that he was
aware of the bombs at the convention center and the Feedlot
Restaurant, stating that he had heard the explosion at the
Feedlot from his apartment, but that he did not know any
details about the incidents. Genrich also shared his
background with Officer Russell and Agent Kresl. He said he
had studied electronics at DeVry Technical Trade Institute in
Phoenix, Arizona, after he graduated from high school and
continued to live in Phoenix for a time (including during
April 1989, when the first pipe bomb was discovered). Genrich
explained that he had worked at the convention center but
quit because there was not much work. He denied ordering the
Anarchist Cookbook but admitted that he was familiar
with it because he had seen it in a Phoenix bookstore where
he had worked. When Officer Russell asked about his
relationship with women, he said that he "gets upset
with women easy."
9 During Genrich's second conversation with Officer
Russell, and ATF Agents Kresl and Jeffrey Brouse, Genrich
allowed the agents to search his room. The agents discovered
two electrical Buss-type fuses and a handwritten note
expressing anger, frustration, and threatening violence
against women. Genrich admitted writing the note.
10 Based on this investigation, Officer Russell obtained and
executed a search warrant for Genrich's apartment. During
this formal search, he found a second note, similar to the
first, also threatening to kill unspecified persons, as well
as an electrical fuse, a pair of yellow-handled needle-nose
pliers with wire cutters, metal wires, a plastic toolbox
containing a soldering iron and green-handled pliers, a
second toolbox containing yellow-handled pliers and other
tools, a home and auto electrical repair kit, wire strippers,
and an electrical circuit board. However, investigators did
not find traces of gunpowder or other explosives; mercury
switches; bombmaking instructions; or diagrams, drawings, or
prototypes of plans to construct bombs.
11 While Officer Russell conducted his search of
Genrich's apartment, Genrich agreed to speak with ATF
Agent Debra Dassler. She testified that he told her he had
moved back to Grand Junction two and a half years earlier and
that, since he had been back, he often walked around alone
late at night. He also told her that he had attempted to
order the Anarchist Cookbook at a bookstore to
"piss the lady off at the bookstore."
12 During their conversation, he volunteered that he would
not blow up the convention center because he had two friends
who worked there. When she asked him what he thought the
agents were looking for in their search of his apartment, he
replied that they would probably take his electronics tools
because they could be used to make a bomb.
13 He also said he knew that a bomb had exploded at a
residence. He recognized the address but indicated that
because he did not own a car, "it would be a long way
for him to walk." Following the search, the items seized
were sent to labs and ATF agents commenced round-the-clock,
covert surveillance. However, at some point, Genrich realized
that he was being watched and engaged ATF agents in
conversation, insisting that he was not the bomber.
14 Meanwhile, Agent Brouse visited twenty-five hardware
stores in the Grand Junction area to determine which stores
carried pipe fittings, specifically "Coin brand end
caps," which were used in the construction of the bombs.
Agent Brouse found only one store carrying that brand of end
caps, Surplus City; it was located five blocks from
Genrich's apartment. An employee recalled having seen
Genrich wandering the aisles where the galvanized pipe,
ammunition, and guns were stocked.
15 The surveillance of Genrich did not result in any
inculpatory evidence. Further, no crime lab tests showed any
trace of gunpowder or other explosive residue on
Genrich's seized belongings, and no fingerprints were
found on the bombs.
16 In an effort to obtain a confession, agents asked
Genrich's parents to wear an electronic recording device
to allow them to listen in on a rehearsed conversation with
Genrich, which invited Genrich to admit that he had committed
the crimes. However, Genrich denied involvement and instead
expressed dismay that his mother and stepfather could believe
he was capable of carrying out the bombings.
17 Based on the evidence described above, a grand jury
indicted him on two counts of murder and related felonies.
18 The trial at which he was convicted took place in 1993.
The prosecution called two principal expert witnesses at
trial, John O'Neil - an ATF expert in firearms and, as
relevant here, toolmark identification - and Agent Jerry
Taylor - an expert in bomb technology and explosives
19 O'Neil was qualified as an expert based on his
on-the-job training as a firearms and toolmark examiner
during lengthy employment with the ATF. Although he lacked an
advanced degree, he had testified as an expert approximately
465 times and used scientific techniques accepted at the time
to identify toolmarks.O'Neil testified regarding the basis
for his analysis of toolmarks, telling the jury that all
tools possess unique identifiers at a microscopic level, and
these unique characteristics imprint a signature mark on
other substances, such as wire, that come into contact with
the tool. According to O'Neil, these signature marks
enabled him to determine whether a particular tool made a
particular mark. He explained that, during his examination,
he must "figure out how that tool was used, how it was
applied to the object. If it's a cutting type of tool,
was it cut at an angle? Was it perpendicular to the object?
Did he move it as he cut through the wire?"
20 He also told the jury that he was the first person in his
field to distinguish the characteristics for "cutting
type" tools and "gripping type" tools. He
further testified that, after determining to what class a
tool belongs and how it was used, an examiner can
microscopically determine whether a "suspect tool"
was responsible for the striations made on a wire that are
caused by the unique manufacturing marks left on the tool.
21 He further opined that he had never encountered a
situation in which the mark left by a tool was not unique. He
based this opinion on an experiment he had conducted by
examining two tools manufactured consecutively on the same
assembly line. He observed that "although there [were]
similarities between [the] two tools, it was very easy to
determine that [the] marks that were left behind were
22 He admitted that he had no background in statistical
theory, inferential statistics, mathematical statistics,
probability theory, experiment design, sampling methods,
sampling techniques, quality control, or bias in experiment
design. Nevertheless, he told the jury that he had identified
three tools seized from Genrich's room - to the exclusion
of any other tool - as the tools used in the
creation of one or more of the bombs. The prosecution relied
on O'Neil's testimony about
"individualization" - the unique marks made by each
cutting tool - to support its theory that Genrich constructed
each of the bombs.
23 After O'Neil's testimony, Agent Taylor testified,
based on his analysis of the unexploded 1989 bomb and
reconstructions of the other three, that a serial bomber was
responsible for all four bombs found in 1989 and 1991. Agent
Taylor testified that, in his experience in examining 10, 000
bombs, the four bombs in question were unlike any he had
seen, which led him to conclude they were made by the same
24 He further recounted that Surplus City - the store located
a few blocks from Genrich's residence - carried all the
items required to construct the bombs.
25 During closing arguments, the People focused on the
interconnectedness of the detonations, relying on
O'Neil's expert testimony:
• all four bombs were identically constructed;
• three specific tools - [Genrich's] needle-nose
wire cutters, his wire strippers with the chip in the blade,
and his yellow-handled pliers - were used to build the bombs;
• Genrich was the only person who had
possession of or access to those tools; he never loaned them
26 The prosecutor added, "If you need further proof that
all three of these are linked together, you get that from
John O'Neil . . . [n]one of the 700 people who were in
the Association of Firearms and Toolmark Examiners will say
27 To counter this expert testimony, the defense presented
evidence that two of the four bombings appeared to have been
aimed at specific targets apparently unknown to Genrich; law
enforcement officials had not investigated alternate suspects
who, unlike Genrich, had experience with explosives; Genrich
lived in Phoenix at the time of the first explosion in 1989
and so could not have placed a bomb in Grand Junction then;
and Genrich did not drive or own a car, making it difficult
to transport and place the volatile explosive devices without
28 The jury returned guilty verdicts after four days of
deliberation, convicting Genrich of two counts of first
degree murder, three counts of use of an explosive or
incendiary device in the commission of a felony, and one
count of third degree assault.
29 Genrich directly appealed, and a division of this court
affirmed. The division specifically held that toolmark
identification evidence was widely accepted by courts across
the country and that the admission of O'Neil's
opinions did not constitute error. People v.
Genrich, 928 P.2d 799 (Colo.App. 1996).
30 In February 2016, nearly two decades after the supreme
court denied certiorari, Genrich moved under Crim. P. 35(c)
for a new trial based on newly discovered evidence. He
supported his motion with an affidavit of a scientist who
opined that years after Genrich's trial, scientists had
concluded that there was no scientific basis for most of
O'Neil's opinions. The expert relied on the 2009 NAS
Report, which concluded that there was no scientific
underpinning for the types of opinions given by O'Neil.
Specifically, the report determined, among other things, that
conclusions reached on the foundational theory of toolmark
identification (used by O'Neil) - especially the
association of evidence to a known source - had no basis in
scientifically validated principles.
31 A sworn affidavit from Dr. Jay Siegel, a member of the
committee that authored the NAS Report, explained that he
could provide expert testimony to explain the relevance of
the NAS Report to Genrich's case and relate it to the
toolmark identification relied on by the prosecution. Dr.
Siegel's affidavit stated that the NAS Report "calls
into question whether the conclusion of individualization -
the exclusive sourcing of a tool mark to one particular tool
- is ever justified."
32 In his motion for a new trial, Genrich alleged that,
because the sole evidence (Dr. Siegel's tool
characterization) tying him to the pipe bombs was faulty
science now condemned nationally by forensic science experts,
his conviction had been based on false evidence and was
invalid. Genrich requested an evidentiary hearing on these
issues, but by written order the district court denied his
motion without a hearing.
33 In its order, the district court relied on several cases
in which courts outside of Colorado had concluded that
toolmark evidence, at least the marks left by a firearm,
remained sufficiently reliable to justify its admission in a
criminal trial. In applying the test for a new trial based on
newly discovered evidence, the court concluded that
Genrich's claims did not satisfy the third and fourth
prongs of People v. Muniz, 928 P.2d 1352 (Colo.App.
1996). Applying People v. Shreck, 22 P.3d 68 (Colo.
2001), which established Colorado's test for the
admission of expert testimony, the court concluded that both
at the time of Genrich's trial and at the time the court
decided Genrich's Crim. P. 35(c) motion, O'Neil's
testimony remained sufficiently reliable to be presented to a
jury. According to the court, the NAS Report and Dr.
Siegel's opinions merely impeached O'Neil's
opinions, and newly discovered evidence that is merely
impeaching does not warrant a new trial under Muniz.
Genrich moved for reconsideration of the order denying his
motion for a new trial, presenting a second affidavit from
Dr. Siegel. In that affidavit Dr. Siegel distinguished
firearm identification from toolmark identification,
[s]ince there is only one way for a bullet to travel down the
barrel of a gun, so long as the same weapon is used with the
same type of ammunition, the markings on a bullet or
cartridge will be relatively reproducible through many
consecutive firings. Thus . . . there is some basis to
express opinions regarding the probability that the subject
gun fired the recovered evidence. The same is not true . . .
where the tool at issue is . . . a common hand tool, such as
a wire cutter. The marks made by a wire cutter are impacted
by numerous variables that include the examiner's ability
to replicate the exact manner in which the tool was used . .
The court, noting that nothing in Crim. P. 35(c) permits a
motion for reconsideration, treated the motion for
reconsideration as a C.R.C.P. 60(b) motion, and denied it,
concluding that it was merely a reiteration of the original
Crim. P. 35(c) motion.
Preliminary Preservation Matters
34 Section 16-5-402, C.R.S. 2018, imposes a three-year time
limitation for collateral attacks on felonies other than
class 1 felonies. (No time limit applies to challenges to
convictions of class 1 felonies.) If a defendant files a
motion after the applicable time limit runs, he or she must
assert justifiable excuse or excusable neglect. Id.;
People v. Wiedemer, 852 P.2d 424, 428 (Colo. 1993).
If no such exception is alleged, our review is limited to
claims and allegations presented to the district court in the
original Crim. P. 35(c) motion. Therefore, we may not
consider claims or allegations in a Rule 35(c) motion raised
for the first time on appeal. People v. Stovall,
2012 COA 7M, ¶ 3, 284 P.3d 151, 153.
35 With this standard in mind, we agree with the People that
Genrich failed to set forth an exception to the time
limitation imposed on his three convictions for the use of an
explosive or incendiary device in the commission of a felony
and his conviction for third degree assault. Accordingly, we
limit his challenge to his murder convictions.
36 We also agree that his argument regarding a 2016 report,
President's Council of Advisors on Sci. & Tech.,
Exec. Office of the President, Forensic Science in
Criminal Courts: Ensuring Scientific Validity of
Feature-Comparison Methods (2016),
https://perma.cc/J3EA-QP7V, that purportedly undermines the
"degree of certainty to the exclusion of any other
tool" and that O'Neil asserted in support of his
theory of individualization was not preserved.
Stovall, ¶ 3, 284 P.3d at 153. Therefore, we
may not consider this report.
Validity of Expert Testimony Used to Convict
37 Genrich contends that the district court erred in denying
him an evidentiary hearing. We agree with respect to his
Standard of Review
38 We review de novo a postconviction court's decision to
deny a Crim. P. 35(c) motion without holding an evidentiary
hearing. People v. Gardner, 250 P.3d 1262, 1266
(Colo.App. 2010). A court may deny a Crim. P. 35(c) motion
without a hearing only if "the motion and the files and
record of the case" establish that the allegations lack
merit and do not entitle the defendant to relief. Crim. P.
35(c)(3)(IV); Kazadi v. People, 2012 CO 73, ¶
17, 291 P.3d 16, 22.
39 While motions for a new trial based on newly discovered
evidence are disfavored, in some cases injustice can only be
avoided by granting a new trial. The bar to prevail on a
motion for a new trial based on newly discovered evidence is
high but not insurmountable. "Depending upon such things
as the nature of the additional evidence, the circumstances
of its discovery, and the strength of the existing evidence
supporting conviction, we have at times highlighted different
considerations in making the determination and have
articulated the applicable standards in a variety of
terms." Farrar, 208 P.3d at 706.
40 The traditional standard applied by Colorado courts to a
motion for a new trial based on newly discovered evidence
requires a defendant to show that (1) the evidence was
discovered after trial; (2) the defendant and his attorney
exercised due diligence to discover all possible favorable
evidence prior to and during trial; (3) the newly discovered
evidence is material to the issues involved and not merely
cumulative or impeaching; and (4) the newly discovered
evidence is of such character as probably to bring about an
acquittal if presented at another trial. Muniz, 928
P.2d at 1357.
41 In Farrar, a case involving the recantation of
testimony by a sexual assault victim, the supreme court
stated that newly discovered evidence
must be consequential in the sense of being affirmatively
probative of the defendant's innocence, whether that is
accomplished by helping to demonstrate that someone else
probably committed the crime; that the defendant probably
could not have committed the crime; or even that the crime
was probably not committed at all.
Farrar, 208 P.3d at 707.
42 In his supplemental brief, the Attorney General argues
that whatever the reach of the allegations in Genrich's
postconviction motion, they are not affirmatively probative
of his innocence.
43 We conclude that the above-quoted language in
Farrar did not establish a new test for granting a
motion for a new trial based on newly discovered evidence and
that the test announced in Muniz remains the law.
Farrar Did Not Announce a New Test
44 While the Farrar court stated that the new
evidence must be affirmatively probative of the
defendant's innocence, a careful reading of
Farrar reveals that the court did not apply any such
heightened test. The court actually applied the
Muniz test set forth in Digiallonardo v.
People, 175 Colo. 560, 567-68, 488 P.2d 1109, 1113
(1971), and People v. Scheidt, 187 Colo. 20, 22, 528
P.2d 232, 233 (1974).
45 Supporting this reading of Farrar is the
following statement: "In addition to probably being
believed by reasonable jurors, the witness's new version
of events must be of such significance in its own right as to
probably cause reasonable jurors to acquit the
defendant." Farrar, 208 P.3d at 708. This
language mirrors the traditional standard set forth in
Muniz - "the newly discovered evidence is of
such character as probably to bring about an acquittal
verdict if presented at another trial." 928 P.2d at
1357. Further, the dissent in Farrar did not
interpret the majority's opinion as articulating a new
standard displacing Muniz; instead, it argued that
the evidence there was of such significance as to probably
bring about Farrar's acquittal on retrial.
Farrar, 208 P.3d at 710 (Bender, J., dissenting)
("The majority states that new impeachment evidence can
justify a new trial only when it is of such significance that
it would probably bring about an acquittal before a new
Application of Farrar by Other Divisions
46 Since Farrar, divisions of our court have
consistently applied the Muniz test. See People
v. Gee, 2015 COA 151, ¶ 73, 371 P.3d 714, 725-26
(citing Muniz as the applicable standard to analyze
whether newly discovered evidence warrants a new trial).
Though two divisions of our court have cited the above-quoted
language in Farrar, neither applied its "actual
47 In People v. Hopper, 284 P.3d 87 (Colo.App.
2011), the defendant was charged with two counts of
possession of a controlled substance, two special offender
sentencing counts, and one count of possession of a dangerous
weapon in connection with a search of the vehicle in which
the defendant was riding that uncovered firearms, drug
paraphernalia, and drugs. Id. at 89. At trial, he
argued that the other men he was riding with planted the
illegal items in the vehicle - unbeknownst to him - and
repositioned them to implicate him in the crime. Id.
In a motion for a new trial, the defendant offered newly
discovered witness testimony from two inmates housed in the
same facility as the men who purportedly framed the defendant
for the crimes. Id. at 92-93. The inmates were
prepared to testify that the other men had admitted allowing
the defendant to "go down for something [one of the
men] had done," one of the other men had transferred the
guns and drugs into the vehicle, and the guns and drugs
belonged to one of the other men. Id. at 93. The
division concluded that none of the testimony offered was
material or affirmatively probative of the defendant's
innocence because, along with part of it being cumulative,
the defendant's possession and ownership of the weapons
and drugs were not at issue in the trial. Thus, the proffered
evidence was not material under any standard because it would
not have undermined the conviction.
48 Significantly, the Hopper division did not
address whether the above-quoted Farrar language set
forth a new standard. Id. at 92-93. Although the
division cited the above-quoted Farrar language, it
does not appear that it actually relied on it. Instead, it
relied on three other grounds to dismiss the defendant's
petition - the proffered new evidence was cumulative, not
probative of a matter at issue, and lacked any potential to
undermine the conviction.
49 Similarly, in People v. Poindexter, the division
cited the above-quoted language in Farrar, but
ultimately applied the standard articulated in
Muniz. 2013 COA 93, ¶¶ 44, 51, 338 P.3d
352, 360, 361.
50 Accordingly, we conclude that Farrar did not
establish a new standard for motions for a new trial based on
newly discovered evidence.
Analysis: Muniz Applies Here
51 Concluding that the standard articulated in
Muniz, 928 P.2d at 1357, applies here, I must first
determine what constitutes new evidence. Academic theories
may form the basis for an expert to interpret existing
evidence. See People v. Bonan, 2014 COA 156, ¶
31, 357 P.3d 231, 236 (explaining that, while academic
theories applied to existing evidence may form the basis for
interpreting evidence, unapplied academic theories
do not constitute evidence at all). The new evidence must
demonstrate sufficient materiality to suggest that, when
considered with all evidence presented at trial, "a
reasonable jury would probably conclude that there existed a
reasonable doubt as to defendant's guilt and thereby
bring about an acquittal verdict." People v.
Tomey, 969 P.2d 785, 787 (Colo.App. 1998); see also
Mason v. People, 25 P.3d 764, 768 (Colo. 2001). We must
consider this standard through the lens of the district
court's threshold determination in a Crim. P. 35(c)
motion: Can the defendant's petition for postconviction
relief be denied without the benefit of an evidentiary
hearing? It is the trial court's responsibility to
determine the weight of the proffered evidence, and based on
that, to conclude whether the evidence would probably result
in acquittal if presented at another trial. Thus, if the
facts alleged in the Crim. P. 35(c) motion, taken as true,
may entitle the defendant to a new trial, the court must
conduct an evidentiary hearing.
52 Scientific advances in forensic evidence have been the
basis for new evidentiary hearings and new trials throughout
the country. See Andrea Roth, Safety in Numbers?
Deciding When DNA Alone Is Enough to Convict, 85 N.Y.U.
L. Rev. 1130 (2010). Significantly, the United States Supreme
Court has relied on the NAS Report's findings and
analysis by other legal scholars, observing that
"[s]erious deficiencies have been found in the forensic
evidence used in criminal trials." Melendez-Diaz v.
Massachusetts, 557 U.S. 305, 319 (2009). Writing for the
majority in Melendez-Diaz, Justice Scalia quoted the
report's conclusion that "[t]he forensic science
system, encompassing both research and practice, has serious
problems that can only be addressed by a national commitment
to overhaul the current structure that supports the forensic
science community in this country." Id.
(quoting NAS Report, at xx). The Court also pointed out that
"[o]ne study of cases in which exonerating evidence
resulted in the overturning of criminal convictions concluded
that invalid forensic testimony contributed to the
convictions in 60% of the cases." Id. (citing
Brandon L. Garrett & Peter J. Neufeld, Invalid
Forensic Science Testimony and Wrongful Convictions, 95
Va.L.Rev. 1, 14 (2009)).
53 In State v. Behn, a New Jersey court recognized
that a study calling into question an expert witness's
opinion as to the uniqueness and source of bullet lead,
conducted after the defendant's conviction, constituted
new evidence entitling the defendant to a new trial. 868 A.2d
329, 344 ( N.J.Super.Ct.App.Div. 2005).
54 I next turn to the question of whether the evidence could
have been discovered prior to or during trial with due
diligence. Muniz, 928 P.2d at 1357. However, for our
purposes, a report issued nineteen years after a
defendant's conviction indisputably could not have been
discovered prior to or during the trial. Though Genrich
proffered his own expert to rebut O'Neil's testimony,
the toolmark identification methods used by O'Neil were
generally accepted at the time.
55 Turning to the third and fourth prongs of the
Muniz analysis, I address the questions of
materiality and magnitude.
56 In Farrar, the supreme court declared that a
witness's recantation necessarily impeaches the recanting
witness's credibility; thus, witness recantation
justifies a new trial only when it contradicts the prior
testimony with a different and more credible account. 208
P.3d at 708. Similarly, in Tomey, a division of our
court concluded that newly discovered evidence consisting of
a victim's hearsay statement that was inconsistent with
the victim's former testimony necessitated a new trial.
969 P.2d at 787. The division reasoned that the statement
presented more than mere impeachment evidence because, if
believed, it would mean that the victim had lied about key
facts at trial. Id.
57 The Behn court applied an analysis similar to
that required by Muniz and determined that the
report at issue there demonstrated sufficient materiality
because it called into question key evidence relied on at
trial. 868 A.2d at 344. In deciding whether the report was
mere impeachment evidence, the court considered the test
concerning materiality of undisclosed exculpatory evidence
established in Brady v. Maryland, 373 U.S. 83
(1963). Id. "Under the Brady standard,
'withheld evidence that is material may be that which
impeaches a witness where the issue of the witness'
reliability and credibility is crucial.'"
Id. at 345 (quoting State v. Henries, 704
A.2d 24, 35 ( N.J.Super.Ct.App.Div. 1997)). Concluding that
the results of the study would have effectively neutralized
the testimony of a key expert in the prosecution's case,
the court determined that the study probably could have
changed the jury's verdict. Id. It reasoned that
"[w]hile the State's case, although circumstantial,
was strong, it was 'far from overwhelming.'"
Id. (quoting State v. Ways, 850 A.2d 440,
453 (N.J. 2004)). Thus, the court granted a new trial based
on the newly discovered evidence. Id. at 346.
58 The Third and Ninth Circuits have also allowed a defendant
to seek relief from convictions based on flawed forensic
evidence by alleging a constitutional violation. Gimenez
v. Ochoa, 821 F.3d 1136, 1144 (9th Cir. 2016); Han
Tak Lee v. Houtzdale SCI, 798 F.3d 159, 162 (3d Cir.
2015); Albrecht v. Horn, 485 F.3d 103, 124 n.7 (3d
Cir. 2007). The Han Tak Lee court granted habeas
corpus relief to a defendant based on new developments in the
field of fire science that undermined the reliability of
expert testimony about arson provided at the defendant's
trial. 798 F.3d at 167. There, the Third Circuit determined
that the expert testimony on arson "constituted the
principal pillar of proof tying [the defendant] to th[e]
arson fire and the death of [the victim]," and the
remaining evidence at his trial was insufficient to prove the
defendant's guilt beyond a reasonable doubt. Id.
59 Though we need not conclude here that forensic evidence
later deemed flawed violates a defendant's constitutional
rights, we find it instructive in connection with our
analysis of whether newly discovered evidence based on the
motion, files, and record, taken as true, entitles a
defendant to a new evidentiary hearing. See Crim. P.
35(c); cf. Farrar, 208 P.3d at 706 (stating that
newly discovered evidence upsetting a guilty verdict does not
implicate the constitutionality of a conviction, and
declaring that the decision to grant a new trial based on new
evidence instead rests on the "balance between the need
for finality and the state's interest in ensuring the
fairness and accuracy of its proceedings").
60 The affidavit based on the NAS Report, satisfies the first
and second prongs of the Muniz test. The affidavit,
applying the report to the facts of the case, provides
relevant evidence that would be helpful to the jury, and the
report's publication followed Genrich's convictions
by almost two decades.
61 Though Genrich's petition satisfies the first two
prongs of the test for a motion for a new trial, the third
and fourth prongs encompass the crux of the dispute. The
district court ruled that Genrich's proffered evidence
was merely impeaching. However, we conclude that the evidence
offered bears similarity to the evidence alleged in
Behn. Though it may serve to impeach
O'Neil's testimony, the proffered evidence, if
believed, is of the sort that calls into question the
reliability and credibility of a key ...