A man who has spent nearly half a century in prison is entitled to a new trial because of bogus forensic evidence that the government introduced at his first trial, the D.C. Circuit ruled Friday (March 1).
John Ausby, 66, was convicted in 1972 of the rape and murder of Deborah Noel—a crime that occurred in Noel’s apartment in northwest D.C. Ausby received a life sentence that he continues to serve.
At trial, the prosecution relied on evidence from an FBI forensic expert, who testified that hairs taken from Noel’s body were “microscopically identical” to Ausby’s hairs. The expert arrived at that conclusion by examining hair samples under a microscope and comparing them side-by-side based on 15 to 25 characteristics that, according to the expert, were “more or less unique to a particular individual.”
The government now admits the expert’s testimony was false. In 2012, the Department of Justice began reviewing old cases in which prosecutors relied on microscopic hair-comparison analysis. The purpose of the review was to identify cases in which the hair-comparison evidence exceeded the limits of science. In Ausby’s case, the government now concedes that the expert misled the jury by suggesting that he could identify Ausby based on the hairs taken from the victim’s body. The government further concedes that the prosecution knew or should have known at the time of the trial that the expert’s testimony was false.
In light of those concessions, Ausby sought to have his conviction vacated. In 2017, the chief judge of the D.C. district court, Beryl Howell, ruled against him. A guilty verdict can be overturned based on false evidence only if the false evidence was material to the verdict, and Howell determined that, in Ausby’s case, it was not. She wrote that there was an “overwhelming” amount of other evidence pointing to Ausby’s guilt, including his fingerprint in Noel’s apartment and vials of oils he left there. Howell ruled that there was no “reasonable likelihood” that the false hair-matching evidence could have changed the outcome of the case.
On appeal in United States v. Ausby, the D.C. Circuit disagreed. Judges Henderson, Srinivasan and Millett—in an unsigned, 11-page opinion—reversed Howell and ordered Ausby’s conviction vacated. The panel concluded that the hair-comparison analysis was material to the verdict because it was the primary evidence that rebutted Ausby’s defense theory. Ausby admitted at trial that he had been in Noel’s apartment in the two weeks before the crime while Noel was not home, but he denied being there on the day of the crime. The other evidence used against Ausby was consistent with that account—but the hair-matching evidence, based on hairs taken from the victim’s body, was not. Without that false evidence, the D.C. Circuit panel wrote, “there is a reasonable likelihood that the jury could have accepted Ausby’s defense theory.”
Howell’s 2017 opinion upholding Ausby’s conviction is here. The D.C. Circuit opinion ordering a new trial is here.
