Fives Order Post-Conviction DNA Testing Under Innocence Protection Act, Address Burdens and Standards of Review

United States v. Fasano, No. 08-60750 (5th Cir. July 31, 2009; rev. Aug. 4, 2009) (Higginbotham, Smith, Southwick)

In 2002, a gentleman clad in a work shirt, hard hat, and sunglasses strolled into a bank in Morton, Mississippi, presented a demand note to a teller, and departed with $6,600. Minutes later, police found the shirt, hat, and glasses discarded near the bank. Fasano was later charged and convicted of the robbery. The trial evidence consisted of, among other things, the testimony of four eyewitnesses identifying Fasano as the robber, and Fasano's fingerprints on the demand note.

After the Fifth Circuit affirmed Fasano's conviction over a sufficiency challenge, he moved the district court to order DNA testing of the shirt, hat, and sunglasses under the Innocence Protection Act of 2004 (the relevant portion of which is found in 18 U.S.C. § 3600). The district court denied the motion. Fasano appealed.

Only two of the ten requirements for testing were contested: 1) the chain-of-custody requirements of § 3600(a)(4), and 2) the requirement that Fasano "establish that DNA testing would produce a 'reasonable probability' that he did not commit the robbery, as required by § 3600(a)(8)." The court of appeals reviwed the district court's construction of those two requirements de novo, and the factual findings for clear error.

The chain-of-custody requirement of subsection (a)(4) actually has two components: the evidence must 1) be in the Government's possession and subject to a chain of custody, and 2) "retained under conditions sufficient to ensure that such evidence has not been substituted, contaminated, tampered with, replaced, or altered in any respect material to the proposed DNA testing." As to the first component, the court declined to

read the statute to impose a more exacting standard for a showing of the chain of custody in a proceeding under the Innocence Act than would be demanded in a trial itself [under FRE 901]. Indeed there is argument with some purchase, that the trial standard is itself too exacting for an inquiry into whether tests should be ordered. This is because much of the uncertainty inherent in this predictive exercise can be dispelled only by the tests a petitioner is seeking. Looking through the text and structure of the statute, we see the question posed by (a)(4) in such proceedings to be whether testing offers a reasonable possibility of securing sound DNA results from material for which the usual trial demands for chain of custody can be met. This may or may not in a given case prove to make precisely the same demand for authentication as that of admissibility at trial. And of course there may be overlap in the two demands of (a)(4), when for example a break in the chain of custody presents an insurmountable risk of spoilation—alteration material to DNA testing.

The court then concluded that the record did not support a finding of a break in the chain of custody. The local police retrieved the clothing minutes after the robbery, and turned it over to the FBI within a few days. From that point on, "there is no evidence that the items ever left the custody of the FBI or federal prosecutors." And that had important implications for Fasano's burden on this point:

After trial and before sentencing defense counsel obtained permission to reenact the robbery with use of the physical evidence including the shirt, hard hat and glasses but the items could not be located. The district court refused to grant a motion for new trial resting on this inability of the government to locate this evidence. Some time later the government found a paper bag with all the physical evidence in a closet next to the office of the government prosecutor in the case, who had in the meanwhile retired from service. Government had this evidence in its possession within hours of the robbery and it remained there. That it lay quiet in a paper bag in a court house closet may suggest an unwarranted casualness but that it was unseen, forgotten, and untouched is of no moment here. At least there is no evidence one way or the other whether this is so and we cannot place upon the defendant the burden of proving its history while it is held in government custody. To do so would create an entrance gate so difficult to enter as to frustrate the core objective of the statute.

As to the second component of (a)(4)—let's call it the adequate preservation requirement—the district court found no indication that the clothing had been protected from contamination, and concluded that "every government agent who handled the DNA be identified to assure that they 'would provide DNA samples in order to isolate them as potential sources of DNA contamination.'" The court of appeals acknowledged the multiple-handlers problem as a relevant concern, but pointed to expert testimony that "'mixtures [of DNA] have made interpretation impossible in only a narrow set of cases.'" "Any implicit contrary finding by the district court is clearly erroneous."

The court of appeals then turned to the requirement of subsection (a)(8) that the evidence produced by testing "support the theory of defense" and "raise a reasonable probability that that the applicant did not commit the offense." At trial, Fasano had "attacked the reliability of the eyewitness testimony and pointed the finger at" some guy who had been staying with Fasano's brother in Fasano's old room. Fasano also argued that although his "finger prints were on the demand note, the paper on which the demand note was written came from his old room."

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