v. Genrich
2019 COA 132 (2019)
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Rule of Law:
A defendant is entitled to an evidentiary hearing on a Crim. P. 35(c) motion for postconviction relief alleging newly discovered scientific evidence when a post-conviction report by a national scientific body, coupled with an expert affidavit applying the report's findings, calls into question the scientific validity of expert testimony that served as a linchpin in the prosecution's case.
Facts:
- In April 1989, law enforcement discovered and disarmed a pipe bomb in the parking lot of the La Court Motor Lodge in Grand Junction, Colorado, but did not identify a perpetrator.
- In the spring of 1991, three more pipe bombs exploded within months of each other at the Two Rivers Convention Center, a residence, and the Feedlot Restaurant in Grand Junction, resulting in one injury and two deaths.
- ATF investigators identified James Genrich as a primary suspect based on reports of unusual behavior, his former employment at the convention center, his presence near a bomb site, and inquiries about the "Anarchist Cookbook."
- Investigators searched Genrich's apartment, with his consent and later with a warrant, finding two electrical Buss-type fuses (similar to the 1989 bomb), two handwritten notes threatening violence against women, needle-nose pliers with wire cutters, wire strippers, slip-joint pliers, and other electrical tools, but no traces of gunpowder or explosives.
- An ATF agent visited twenty-five hardware stores and found only one, Surplus City (five blocks from Genrich's apartment), that carried "Coin brand end caps" used in the bomb construction, and an employee recalled seeing Genrich in the store.
- At Genrich's 1993 trial, John O'Neil, an ATF toolmark identification expert, testified that three specific tools seized from Genrich's room were, "to the exclusion of any other tool," the tools used in the creation of one or more of the bombs, relying on "individualization" of toolmarks.
- Agent Jerry Taylor, a bomb technology expert, testified that all four bombs (1989 and 1991) were made by the same person due to their unique characteristics and that all bomb components were available at Surplus City.
- The defense presented expert testimony from Don Searls, a statistician, who opined that O'Neil's toolmark analysis "did not have a scientific basis" and lacked proper scientific testing and blind examination.
Procedural Posture:
- A grand jury indicted James Genrich on two counts of murder and related felonies following an investigation into the 1991 pipe bombings.
- At trial in 1993, a jury convicted 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.
- Genrich directly appealed his convictions, and a division of the Colorado Court of Appeals (appellate court) affirmed the convictions, specifically holding that toolmark identification evidence was widely accepted and its admission was not error (People v. Genrich, 928 P.2d 799 (Colo. App. 1996)).
- The Colorado Supreme Court (highest court) denied certiorari on Genrich's direct appeal.
- In February 2016, Genrich filed a Crim. P. 35(c) motion for postconviction relief in the Mesa County District Court (trial court), seeking a new trial based on newly discovered evidence, relying on the 2009 NAS Report and an expert affidavit.
- The district court denied Genrich's Crim. P. 35(c) motion without an evidentiary hearing, concluding that the claims lacked merit and the NAS Report and accompanying expert opinions merely impeached the trial testimony and did not satisfy the Muniz test for newly discovered evidence.
- Genrich moved for reconsideration, presenting a second affidavit from Dr. Siegel; the district court denied this motion, treating it as an unauthorized C.R.C.P. 60(b) motion.
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Issue:
Does a defendant's Crim. P. 35(c) motion for postconviction relief, supported by a post-conviction report from the National Academy of Sciences questioning the scientific validity of toolmark identification evidence and an expert affidavit applying the report's findings, constitute "newly discovered evidence" sufficient to warrant an evidentiary hearing under the Muniz test, and is a heightened "affirmatively probative of innocence" standard from Farrar v. People applicable to such a claim?
Opinions:
Majority - Judge Taubman
Yes, a defendant's Crim. P. 35(c) motion, supported by the NAS Report and an expert affidavit applying its findings, constitutes "newly discovered evidence" sufficient to warrant an evidentiary hearing under the Muniz test, and the heightened "affirmatively probative of innocence" standard from Farrar v. People is not applicable. The court reversed the district court's denial of Genrich's motion as to the class 1 felonies (murder convictions), remanding for an evidentiary hearing. It affirmed the denial as to other felonies because they were time-barred. The court found that the 2009 NAS Report, coupled with Dr. Jay Siegel's affidavit (a member of the NAS Report committee) applying the report's conclusions to the trial evidence, satisfied the first two prongs of the Muniz test (evidence discovered after trial, due diligence exercised) because the report was published nineteen years post-conviction and toolmark identification methods were generally accepted at trial. The court clarified that Farrar v. People (208 P.3d 702 (Colo. 2009)) did not establish a new, heightened "affirmatively probative of innocence" standard for newly discovered evidence claims but rather reiterated the existing Muniz standard requiring evidence to "probably bring about an acquittal." Distinguishing People v. Bonan (2014 COA 156), the court noted Dr. Siegel's affidavit applied the NAS Report's findings to Genrich's case, thus constituting more than an unapplied academic theory. It reasoned that the proffered evidence, though potentially impeaching, called into question the reliability and credibility of a key prosecution witness (O'Neil), akin to evidence warranting a new trial in cases like State v. Behn (868 A.2d 329 (N.J. Super. Ct. App. Div. 2005)) and Han Tak Lee v. Houtzdale SCI (798 F.3d 159 (3d Cir. 2015)). Given the prosecution's heavy reliance on O'Neil's toolmark individualization testimony as a "principal pillar of proof" and the mostly circumstantial nature of other evidence, the court found the new evidence to be material and to "dramatically increase his chances of obtaining an acquittal," thus satisfying the third and fourth Muniz prongs to warrant a hearing.
Concurring - Judge Berger
Yes, James Genrich is entitled to an evidentiary hearing on his Crim. P. 35(c) motion, and the heightened "affirmatively probative of innocence" standard from Farrar v. People is not applicable, or if it is, it's limited to victim recantation cases. Judge Berger agreed with remanding for an evidentiary hearing, specifically concurring on the time-barring of non-class 1 felony claims. He emphasized that the threshold for an evidentiary hearing is lower than for a new trial itself. He distinguished the NAS Report and Dr. Siegel's affidavit from "unapplied academic theories" in Bonan because Dr. Siegel's affidavit applied the report's conclusions to the specific toolmark individualization testimony in Genrich's case, representing a "scientific consensus" rather than mere new studies. He argued that Farrar v. People did not introduce a new "actual innocence" standard for newly discovered evidence claims, but rather clarified the existing Muniz standard; alternatively, if Farrar did impose a heightened standard, it applies only to victim recantation cases. He concluded that Genrich's alleged new evidence satisfied the Muniz prongs: it was new and undiscoverable with diligence, material (as it challenges reliability, not just credibility, of the "individualization testimony"), and would likely lead to exclusion of O'Neil's testimony, thus increasing the probability of an acquittal given the circumstantial nature of the remaining evidence. He further asserted that Genrich's due process claims also warrant a hearing, adopting the Han Tak Lee standard where admission of scientifically unreliable expert testimony violates due process if it undermines trial fairness and is not outweighed by "ample other evidence of guilt."
Dissenting - Judge Tow
No, James Genrich's Crim. P. 35(c) motion, supported by the NAS Report and an expert affidavit, does not constitute "newly discovered evidence" sufficient to warrant an evidentiary hearing, as the report is not new evidence and the Farrar v. People heightened standard for materiality applies and is not met. Judge Tow concurred in affirming the denial of postconviction relief for non-class 1 felonies due to time-barring but dissented regarding the class 1 felonies. He argued that the NAS Report and Dr. Siegel's affidavit do not constitute "new evidence." He contended that the NAS Report is an "unapplied academic theory" (citing People v. Bonan) and that its core premise—that toolmark identification lacks sufficient scientific validation—was already presented to the jury by Genrich's own expert witness at trial. Therefore, the information is not new, nor was it unknowable through due diligence. He also asserted that the evidence is "merely cumulative and impeaching" and not "material" under Farrar v. People, which he believed established a heightened standard requiring evidence to be "affirmatively probative of the defendant’s innocence." Judge Tow concluded that the NAS Report neither demonstrates Genrich's innocence nor suggests someone else committed the crime. Even if it were considered new evidence, he argued it would probably not lead to an acquittal given the substantial circumstantial evidence of Genrich's guilt and the fact that an experienced toolmark examiner could still testify about consistency of marks. He also dismissed the due process claim, stating that the individualization testimony was not the "sole evidentiary basis" for conviction and Genrich's trial expert had already raised similar flaws.
Analysis:
This case has significant implications for postconviction relief, particularly concerning the evolving nature of forensic science. It demonstrates a judicial willingness to re-examine convictions based on scientific evidence that later comes under scrutiny by the broader scientific community. The decision underscores the importance of the reliability of expert testimony and may pave the way for other defendants to challenge convictions where foundational forensic methods have since been questioned. Furthermore, the split on the interpretation of Farrar v. People highlights an ongoing debate within Colorado jurisprudence regarding the threshold for granting a new trial based on newly discovered evidence, especially in non-recantation contexts, and could invite further clarification from the state supreme court.
