by Dale Chappell

For the second time in the past year, the U.S. Court of Appeals for the D.C. Circuit overturned a decades-old murder conviction after the federal government admitted that it used faulty hair evidence to secure the conviction.

After almost 50 years of sitting in prison on a murder conviction, Dennis Butler was notified by the Government that the hair evidence it used at trial to convict him was faulty, and it agreed to waive any procedural defenses against allowing Butler to move for relief in the district court.

Butler was arrested in 1970 and charged with the murder of Jesse Mears in Northeast Washington, D.C. It was alleged that Butler had tied up Mears and then strangled him with a phone cord. The story was that Mears had caught Butler selling drugs to “two boys” at an apartment complex where Mears worked. At trial, the prosecutor introduced hair evidence that was found on the dead man’s clothing. A so-called expert testified that the hair evidence was “microscopically the same or alike” as Butler’s hair. On the stand, the expert testified,” My report and my testimony is that these hairs are the same. They are alike in all identifiable microscopic characteristics.”

The prosecutor also presented the testimony of two witnesses, who claimed that Butler had confessed to murdering Mears. James Hill and his girlfriend, Phyllis Gail Robinson, were drug users who bought drugs off Butler and would use drugs with him. Hill testified that Butler told him “he had just killed the rent man,” which Hill took to mean Mears. Hill then repeated the story to Robinson, who later recanted and said her testimony was a lie fueled by fear. Hill also later admitted that is wasn’t Butler who called him after the murder but rather he called Butler to buy some drugs.

There was also paint evidence entered by the prosecutor, which supposedly linked Butler to the scene of the crime, because the paint on his clothes matched the “base” type as that found at the crime scene. An expert testified that the paint at the apartment and on Butler’s clothes was all the same.

Not so much relying on its witnesses or the paint, the prosecutor told the jury in closing arguments that Butler’s hair and the ones found on Mears’ clothes, “they were the same in every microscopic detail, the same.” He said the expert testified that out of 10,000 examinations, he recalled “approximately four times” that he was wrong about hairs that matched under his analysis. The prosecutor got the conviction.

But in 2015, the Government reviewed Butler’s case as part of the largest postconviction review in history of convictions obtained using microscopic hair analysis. The National Academy of Sciences published a groundbreaking report in 2009, finding that “no scientifically accepted statistics exist about the frequency with which particular characteristics of hair are distributed in the population” and noted there were no scientific data to support the practice of microscopic hair analysis, which involves comparing two hair samples side-by-side to find their similarities.

Butler’s was one of the cases identified by the Government’s review, and it agreed to let him file a motion to vacate his conviction under 28 U.S.C. § 2255 all these years later. But the Government did not agree that Butler was entitled to relief; instead, it said it “took no position regarding the materiality of the error,” meaning that the court could still deny relief if it found that the hair evidence was not material in the determination of Butler’s guilt. On August 6, 2017, the district court denied Butler’s motion, finding that the hair evidence was not material and therefore did not violate his due process rights under the Constitution.

On appeal, the Government again conceded that the microscopic hair evidence was false and exceeded the limits of science. But it still maintained that the hair evidence was not material to Butler’s conviction.

The D.C. Circuit explained that it had held in a recent case decades-old false hair evidence, not unlike Butler’s, that the evidence was “material” because it “could in any reasonable likelihood have affected the judgment of the jury.” United States v. Ausby, 916 F.3d 1089 (D.C. Cir. 2019). This “reasonable likelihood” standard, the Court said, means that the false evidence “undermines the confidence in the verdict,” which is “quite easily satisfied.” [Writer’s note: John Ausby’s murder conviction based on false hair evidence was vacated in 2019, and the government sought to retry him. It eventually gave up and dropped the murder charge on January 9, 2020, and he was released the next day — almost 50 years after his conviction. United States v. Ausby, 2020 U.S. Dist. LEXIS 27973 (D.D.C. Feb. 19, 2020).]

The Government argued that Hill’s and Robinson’s testimonies were what convicted Butler, not the hair evidence. But during Butler’s direct appeal in 1973, the D.C. Circuit said the testimonies “presented a particular danger of unreliability” and “should have sufficed to put the jury on notice ... it should be weighed with caution.” But it was the hair evidence that negated the harmful effects of those shaky testimonies, the court noted.

Fast-forward more than 40 years, and the Government still wanted to use the “dangerous” testimonies of Hill and Robinson to keep the admittedly false hair evidence. “The government cannot in one breath concede the hair testimony’s falsity and in the next breath urge that the hair testimony was accurate after all,” the Court said on Butler’s § 2255 appeal. “Hair microscopic evidence offered powerful corroboration for Hill’s and Robinson’s testimony pointing to Butler as the perpetrator.” The Court found that the hair evidence was “material.”

Accordingly, the D.C. Circuit reversed the district court’s judgment and remanded with instructions to grant Butler’s motion to vacate his sentence pursuant to § 2255. See: United States v. Butler, 955 F.3d 1052 (D.C. Cir. 2020). 

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