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People v. Genrich

Court of Appeals of Colorado, First Division

August 29, 2019

The People of the State of Colorado, Plaintiff-Appellee,
v.
James Genrich, Defendant-Appellant.

          Mesa County District Court No. 92CR95 Honorable Richard T. Gurley, Judge

          Philip J. Weiser, Attorney General, Matthew S. Holman, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          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

          OPINION

          TAUBMAN JUDGE

         ¶ 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 Genrich's innocence.

         I. Law 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 hearing.

         ¶ 4 This division expresses no view as to whether Genrich ultimately is entitled to a new trial.

         II. Background

         ¶ 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 manufacturing explosives.

          ¶ 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, [1]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 analysis.

         ¶ 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.[2]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[3] 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 entirely different."

         ¶ 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 person.

         ¶ 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; and
• Genrich was the only person who had possession of or access to those tools; he never loaned them to anyone.

         ¶ 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 he's wrong."

         ¶ 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 detonation.

         ¶ 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, explaining that

[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.

         III. 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.

         IV. 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 murder convictions.

         A. 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.

          B. Applicable Law

         1. Muniz

         ¶ 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.

         2. Farrar

         ¶ 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.

         a. 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 jury.").

         b. 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 innocence" language.

         ¶ 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.

         C. 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. at 167-69.

         ¶ 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.[4]

         ¶ 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 ...


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