     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                             August 29, 2019

                                   2019COA132

    No. 16CA0651, People v. Genrich — Topical subject
keywords

     In the wake of a report funded by Congress and published by

the National Academy of Science that calls into question the

scientific method underlying toolmark identification, a division of

the court of appeals considers whether a defendant is entitled to an

evidentiary hearing based on newly discovered evidence.

     A majority of the division, including a special concurrence,

holds that the report — coupled with an affidavit of an expert

witness applying the report to the toolmark evidence sustaining the

defendant’s conviction — is sufficient to warrant an evidentiary

hearing under Crim. P. 35(c).

     However, the dissent disagrees, concluding that the report and

accompanying affidavit are not newly discovered evidence, but
rather unapplied academic theories — the content of which the

defense essentially presented at trial, long before the report’s

publication.

     The majority also concludes that the supreme court’s decision

in Farrar v. People, 208 P.3d 802 (Colo. 2009), did not announce a

heightened standard for ordering a new trial based on newly

discovered evidence. The special concurrence takes it a step further

to state that, even if Farrar imposed a heightened standard, it

applies only to victim recantation cases. The dissent counters these

conclusions, asserting that Farrar declared that newly discovered

evidence must be material such that it is affirmatively probative of

innocence, and that the supreme court did not indicate that

recantation should be treated differently than any other type of

newly discovered evidence.

     Finally, the special concurrence concludes, but the dissent

disagrees, that due process concerns also entitle the defendant to

an evidentiary hearing.
COLORADO COURT OF APPEALS                                     2019COA132
______________________________________________________________________________

Court of Appeals No. 16CA0651
Mesa County District Court No. 92CR95
Honorable Richard T. Gurley, Judge
______________________________________________________________________________

The People of the State of Colorado,

Plaintiff-Appellee,

v.

James Genrich,

Defendant-Appellant.

______________________________________________________________________________

               ORDER AFFIRMED IN PART, REVERSED IN PART,
                 AND CASE REMANDED WITH DIRECTIONS

                                         Division I
                             Opinion by JUDGE TAUBMAN
                               Berger, J., specially concurs
                      Tow, J., concurs in part and dissents in part

                         Announced August 29, 2019
______________________________________________________________________________

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
¶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.



                                    1
¶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.



                                     2
         • 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.



                                     3
¶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.



                                   4
¶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.”



                                   5
¶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.

                                     6
  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.



                                     7
¶ 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



  1Jerry Hill, the prosecution’s expert witness in crime scene analysis
  and explosives analysis, testified that all three of the 1991 pipe
  bombs were made with galvanized steel.
                                    8
  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


  2“Toolmarks are generated when a hard object (tool) comes into
  contact with a relatively softer object.” NAS Report, at 150.
                                     9
  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 characteristics3 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


  3 O’Neil explained that certain observable characteristics of
  toolmarks, including the type, shape, and dimension of the
  impression, allow him to determine what type of tool was used to
  make the impression.
                                     10
  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



                                     11
  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.”



                                      12
¶ 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

                                    13
  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

                                     14
  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

                                     15
  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

                                     16
  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

                                    17
  “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.




                                    18
                            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



                                    19
  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.




                                   20
                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

                                    21
  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

                                   22
  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



                                     23
  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

                                      24
  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

                                     25
  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).



                                    26
¶ 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



                                      27
  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.



                                      28
  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

                                     29
  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



  4 We recognize that the NAS Report does not render false all
  toolmark identification evidence; however, we conclude that its
  determination that the lack of precisely defined processes and
  specified standards sufficiently undermines the reliability of
  toolmark identification evidence to warrant an evidentiary hearing.
  The NAS Report concluded that more rigorous scientific studies to
  understand the reliability and the repeatability of these methods is
  required to “make the process of individualization more
  precise . . . .” NAS Report, at 154. Similarly, we do not conclude
  that at a hearing on Genrich’s motion the trial court would or
  should determine that none of O’Neil’s testimony would be
  admissible in the event of a retrial. The extent to which O’Neil
  could testify would be determined by the trial court.
                                    30
¶ 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 witness.

  Genrich’s newly discovered evidence, as in Behn, may effectively

  neutralize the testimony of O’Neil, a key prosecution witness.

¶ 62   We also consider the test, announced in Shreck, 22 P.3d at 82-

  83, to determine the admissibility of expert testimony. Specifically,

  we look to CRE 702 and the focus of the inquiry set forth in Shreck

  — whether the scientific principles underlying the expert’s

  testimony are reliable. See People v. Wilkerson, 114 P.3d 874, 877

  (Colo. 2005). The trial court may consider a multitude of factors in

  its consideration.5 Here, the evidence is akin to that proffered in


  5 The supreme court emphasized that a trial court may consider the
  nonexclusive list of factors set forth in Daubert v. Merrell Dow
  Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993): (1) whether the
  technique can and has been tested; (2) whether the theory or
                                     31
  Han Tak Lee and Behn. Dr. Siegel’s affidavit applying the NAS

  Report offers peer-reviewed, scientifically accepted evidence that

  counters O’Neil’s testimony that furnished the principal evidence

  connecting Genrich to the pipe bombs at trial.

¶ 63   Finally, I conclude that Genrich’s allegations entitle him to an

  evidentiary hearing to establish the fourth element of Muniz — that

  his evidence is likely to bring about an acquittal if presented at a

  new trial. Without a developed record, we cannot hold that

  Genrich’s allegations, if true, are likely to bring about an acquittal,

  but we conclude that they dramatically increase his chances of

  obtaining an acquittal. Once again, this is for the trial court to

  determine following an evidentiary hearing.

¶ 64   Despite the People’s reliance on Bonan to contend that

  unapplied academic theories do not constitute evidence, let alone

  newly discovered evidence under Crim. P. 35(c), we conclude that

  Bonan is distinguishable. There, a division of our court determined




  technique has been subjected to peer review and publication; (3) the
  scientific technique’s known or potential rate of error, and the
  existence and maintenance of standards controlling the technique’s
  operation; and (4) whether the technique has been generally
  accepted. People v. Shreck, 22 P.3d 68, 77-78 (Colo. 2001).
                                     32
  that the defendant’s presentation of an academic theory, without

  having proffered an expert witness to testify as to the theory and

  relate it to the defendant’s case, was not newly discovered evidence

  warranting a new trial. Bonan, ¶ 31, 357 P.3d at 236. Dr. Siegel’s

  assertions in his affidavit apply the findings of the NAS Report to

  the circumstances of Genrich’s case, thus differentiating the

  present facts from those of Bonan.

¶ 65   Moreover, it is probable that, as in Han Tak Lee, O’Neil’s

  testimony tying Genrich’s tools to the marks on the pipe bombs

  served as the prosecution’s pillar of proof, and the other evidence

  presented at trial cannot, alone, sustain a conviction. In fact, the

  prosecutor’s heavy reliance on O’Neil’s toolmark identification

  during closing arguments demonstrates its significance to Genrich’s

  murder convictions.

¶ 66   Most of the other evidence against Genrich was arguably

  insufficient to establish his guilt. 6 That evidence — including the



  6 We disagree with Genrich’s statement that “the sole evidence
  connecting him to the deadly pipe bombs was the same type of
  faux-expert opinions discussed and condemned in the NAS report.”
  As noted in the text, some circumstantial evidence supported his
  convictions.
                                    33
  notes and tools seized from his home, the locations of the bombs,

  his proximity to the hardware store that carried the bombmaking

  components, his familiarity with the Anarchist Cookbook, and his

  late-night walks around town — placed Genrich as a suspect but

  may not have sufficiently proved his guilt beyond a reasonable

  doubt. Here, Dr. Siegel’s testimony could counter the prosecution’s

  expert witness testimony that provided the only direct connection

  between Genrich and the pipe bombs. Genrich’s Rule 35(c)

  allegations and proffered scientific evidence have the potential to

  weaken O’Neil’s testimony about individualization, which the trial

  court could conclude would likely lead to an acquittal, given the

  lack of other direct evidence presented at trial. However, we need

  not determine the precise effect the newly discovered evidence

  would have on a jury in a new trial for us to remand to the trial

  court for an evidentiary hearing.

¶ 67   Given the proffered expert testimony presented in Genrich’s

  Rule 35(c) motion, which, if true, would undermine the cornerstone

  of the prosecution’s case, we conclude that Genrich is entitled to an

  evidentiary hearing.



                                      34
                  V. Genrich’s Due Process Argument

¶ 68   Because I conclude that Genrich is entitled to an evidentiary

  hearing under Crim. P. 35(c), I need not reach the question of

  whether the trial court deprived him of due process in denying his

  motion without a hearing.

                              VI. Conclusion

¶ 69   Accordingly, the order is reversed, and we remand to the

  district court for an evidentiary hearing.

       JUDGE BERGER specially concurs.

       JUDGE TOW concurs in part and dissents in part.




                                    35
       JUDGE BERGER, specially concurring.

¶ 70   I agree that James Genrich is entitled to an evidentiary

  hearing on his Crim. P. 35(c) motion. But I cannot join Judge

  Taubman’s opinion in full. Therefore, I write separately to explain

  why Genrich is entitled to a hearing.

¶ 71   Genrich was convicted of multiple felonies, including murder,

  in connection with the detonations of three pipe bombs in Grand

  Junction, Colorado. Years later, he moved for a new trial under

  Crim. P. 35(c), arguing that scientific developments since his trial

  demonstrated that expert testimony against him, which concluded

  that Genrich’s tools were the only tools that could have made

  certain toolmarks left on the pipe bombs, was scientifically

  baseless.

¶ 72   The district court denied his motion without an evidentiary

  hearing. Relying on cases from other jurisdictions, the court held

  that the weight of authority supported the admissibility of the

  toolmark identification testimony at the time of Genrich’s trial, as

  well as today.

¶ 73   Because I conclude that, taking Genrich’s factual allegations

  as true, the record does not clearly establish that Genrich was not

                                    36
  entitled to a new trial, I agree with the reversal of the postconviction

  court’s denial of Genrich’s Crim. P. 35(c) motion and the remand for

  an evidentiary hearing.

                            I.    Background

¶ 74   In April 1989, a pipe bomb was discovered in a motel parking

  lot in Grand Junction and disarmed by police. The ensuing

  investigation did not identify the bomb maker.

¶ 75   In 1991, three pipe bombs were detonated in Grand Junction

  –– the first in February, the second in April, and the third in June

  — killing two and injuring another. Investigators recovered pieces

  of the detonated pipe bombs and concluded that there were

  multiple similarities between the 1989 bomb and each of the 1991

  bombs, including that each detonator was powered by an electric

  battery and that each bomb’s wiring was soldered to the battery. 1

¶ 76   The investigators identified Genrich as a suspect based on a

  tip. Investigators contacted Genrich twice, and on both occasions

  he invited them into his apartment. During the second visit, with



  1
   Investigators in this case included both local police officers and
  agents of the Federal Bureau of Alcohol, Tobacco, Firearms and
  Explosives (ATF).
                                     37
  Genrich’s permission, the investigators conducted a search and

  recovered a handwritten note in which Genrich expressed his

  frustration with his interactions with women, stating, among other

  things, “[i]f I end up killing some stuckup bitch don’t blame me,”

  and “[t]hese bitches still won’t even talk to me. If I can’t be happy, I

  might as well kill one.”

¶ 77   After this visit, investigators obtained and executed a search

  warrant for Genrich’s apartment. From the apartment,

  investigators took into evidence various tools and equipment,

  including a pair of needle-nose pliers, a pair of wire strippers, a pair

  of slip-joint pliers, assorted wires, a soldering iron, two Buss-type

  fuses of the type used in the 1989 bomb, and a home and auto

  electrical repair kit.

¶ 78   Genrich was arrested and charged with first degree murder,

  use of explosives to commit a felony, and other related charges.

¶ 79   At trial, the prosecution presented, among other evidence,

  expert testimony from John O’Neil, a firearms toolmark examiner

  for ATF. O’Neil testified that based on general characteristics of

  toolmarks left on components of the pipe bombs, Genrich’s tools

  were capable of making certain of those marks. O’Neil then went

                                     38
  further, testifying that based on his microscopic analysis and “to

  the exclusion of any other tool,” a pair of needle-nose pliers taken

  from Genrich’s apartment cut two of the wires used in the 1989

  bomb, a pair of wire strippers taken from Genrich’s apartment cut a

  wire used in the February 1991 bomb, and a pair of slip-joint pliers

  taken from Genrich’s apartment were applied to fragments of the

  end caps from the April 1991 and June 1991 bombs (the

  individualization testimony). Prompted by the prosecutor, O’Neil

  clarified that “to the exclusion of any other tool” meant that “no

  other . . . tool could have made those toolmarks.”

¶ 80   As the underlying basis for the individualization testimony,

  O’Neil stated that he had once examined two tools of the same make

  and model from the same assembly line and concluded that there

  were differences between the two. He also stated that in his many

  years as a toolmark examiner, he had never come across, or heard

  of, two tools being identical at a microscopic level so that they

  would leave the same marks.

¶ 81   The defense presented, among other evidence, expert

  testimony of Don Searls, a professor with a Ph.D. in statistics and

  expertise in experimental design, to rebut O’Neil’s testimony. Searls

                                    39
  testified that the toolmark analysis conducted by O’Neil did “not

  have a scientific basis,” and that, for the testing to be reliable,

  O’Neil would have needed to test multiple tools of the same make

  and wear without knowing which one belonged to Genrich, and

  have three other investigators perform the same blind test.

¶ 82   The jury convicted Genrich of two counts of first degree

  murder, multiple counts of use of an explosive or incendiary device

  in the commission of a felony, and third degree assault.

¶ 83   Genrich appealed on multiple grounds, and a division of this

  court affirmed, concluding that “experts in the use and analysis of

  tools have long been permitted to testify concerning the marks left

  by those instruments” and that Genrich’s concerns regarding the

  reliability of O’Neil’s testimony went to its weight rather than its

  admissibility. People v. Genrich, 928 P.2d 799, 802 (Colo. App.

  1996) (Genrich I). The supreme court denied certiorari.

¶ 84   In 2016, Genrich moved for a new trial under Crim. P. 35(c)

  and requested an evidentiary hearing. He alleged that, after his

  trial, the relevant scientific community had concluded that

  toolmark individualization testimony was scientifically baseless

  because the underlying science had not been sufficiently tested and

                                     40
  validated. To support this claim, Genrich attached an affidavit from

  Dr. Jay Siegel, a former professor of forensic science and one of the

  authors of a 2009 report issued by the National Research Council,

  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 (NAS Report), assessing the

  reliability of, among other forensic evidence, firearms and toolmark

  identification. In the affidavit, Dr. Siegel stated that a conclusion

  that a specific tool made a toolmark to the exclusion of all other

  tools was “unprovable” and had “no scientific support,” citing the

  NAS Report to support his claims.

¶ 85   Genrich argued that this new understanding of the reliability

  of toolmark individualization testimony (1) demonstrated that he

  was convicted on the basis of unreliable forensic evidence in

  violation of the United States and Colorado Constitutions’ Due

  Process Clauses and (2) constituted new evidence that required a

  new trial.

¶ 86   The district court denied the motion without a hearing, noting

  the division’s holding in Genrich I and concluding that multiple

  courts outside of Colorado had considered the admissibility of

                                    41
  toolmark and firearms identification analysis in light of the NAS

  Report and had admitted that evidence.

¶ 87    Genrich moved for reconsideration, which the postconviction

  court also denied. He then filed this appeal.

                              II.    Analysis

¶ 88    Genrich argues that the court erred when it denied his motion

  for a new trial based on newly discovered evidence and due process

  violations without holding an evidentiary hearing. I agree.

                         A.     Preliminary Matters

   1.     Genrich’s Challenges to Convictions for Felonies That Are Not
                       Class 1 Felonies Are Time Barred

¶ 89    I agree with Judge Taubman’s conclusion and analysis that

  Genrich’s challenges to his convictions for felonies that are not

  class 1 felonies are time barred under section 16-5-402(1), C.R.S.

  2018.

  2.    Genrich’s Motion for a New Trial Can Be Dismissed Without an
          Evidentiary Hearing Only If the Record Clearly Establishes
                       That He Is Not Entitled to Relief

¶ 90    It is important that we limit our focus to the question before

  us — whether the district court erred in denying Genrich’s motion

  without an evidentiary hearing — rather than considering whether


                                     42
  Genrich’s motion and affidavit, standing alone, entitle him to a new

  trial.

¶ 91       We review de novo a postconviction court’s decision denying 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 defendant’s Crim. P. 35(c) motion without an

  evidentiary hearing ‘only where the motion, files, and record in the

  case clearly establish that the allegations presented in the

  defendant’s motion are without merit and do not warrant

  postconviction relief.’” People v. Chalchi-Sevilla, 2019 COA 75, ¶ 7

  (emphasis added) (quoting Ardolino v. People, 69 P.3d 73, 77 (Colo.

  2003)). “But where the defendant alleges sufficient facts that, if

  true, may warrant relief, the court must conduct an evidentiary

  hearing.” Id. (emphasis added).

¶ 92       Thus, the threshold for Genrich to establish that he is entitled

  to an evidentiary hearing is lower than the threshold to establish

  that he is entitled to a new trial. I conclude he meets that lower bar

  with respect to both claims.




                                       43
       B.     Genrich Is Entitled to an Evidentiary Hearing Based on his
                          Newly Discovered Evidence Claim

¶ 93        Expert testimony constitutes potent evidence. The imprimatur

  of the trial court in qualifying a witness to give expert testimony is

  powerful medicine and gives experts an “aura of trustworthiness

  and reliability” that few lay witnesses enjoy. People v. Cook, 197

  P.3d 269, 277 (Colo. App. 2008). When later developments in

  science demonstrate convincingly that so-called expert opinions

  were nothing more than uninformed guesses or junk science,

  serious miscarriages of justice are possible.

¶ 94        Accordingly, to the extent that the partial dissent contends

  that advances in science can never be the basis for a new trial, I

  disagree. The difficult question, however, is when such scientific

  advances rise to the level that requires a court to reassess a prior

  conviction rendered on such faulty evidence. This case well

  illustrates the problem.

¶ 95        The partial dissent cites two cases in which courts rejected

  newly discovered evidence claims on the grounds that courts cannot

  retry cases every time a defendant is able to “find a credible expert

  with new research results,” Commonwealth v. LeFave, 714 N.E.2d


                                        44
  805, 813 (Mass. 1999), or there is a new “‘advancement’ in scientific

  research,” State v. Gillispie, Nos. 22877, 22912, 2009 WL 2197052,

  at *26 (Ohio Ct. App. July 24, 2009) (unpublished opinion). But

  those cases involved experts testifying based on new academic

  studies, of which there are presumably thousands produced each

  year.

¶ 96      The new evidence in this case is markedly different. It involves

  an alleged scientific consensus — evidenced by a federally

  mandated report representing the conclusions of dozens of experts

  in the field — and the application of that consensus to the evidence

  in this case by one of the report’s authors. While there will always

  be new studies and scientific advances, the new evidence alleged in

  this case goes many degrees further.

¶ 97      So while I agree with the partial dissent that not every advance

  in science will justify a new trial decades after the conviction (and

  most advances certainly will not), this is not one of those cases that

  can be dismissed so easily.




                                      45
  1.    The Evidence Alleged by Genrich Constitutes New Evidence for
                          Purposes of Crim. P. 35(c)

¶ 98    The partial dissent would affirm the denial of Genrich’s motion

  without an evidentiary hearing because the NAS Report is not new

  evidence for purposes of Crim. P. 35(c). I agree with the partial

  dissent that, standing alone, the NAS Report does not constitute

  new evidence. However, that is not the evidence at issue here.

¶ 99    Crim. P. 35(c)(2)(V) states that a convicted defendant may

  apply for postconviction review if

             there exists evidence of material facts, not
             theretofore presented and heard, which, by the
             exercise of reasonable diligence, could not
             have been known to or learned by the
             defendant or his attorney prior to the
             submission of the issues to the court or jury,
             and which requires vacation of the conviction
             or sentence in the interest of justice.

¶ 100   The “material fact[]” alleged by Genrich is that there is a

  consensus in the relevant scientific community that

  individualization testimony, like O’Neil’s individualization

  testimony, is scientifically baseless. Crim. P. 35(c)(2)(V). The

  “evidence of [that] material fact[]” is an affidavit from one of the

  authors of the NAS Report, an indisputably well-qualified expert



                                       46
  witness, applying the NAS Report’s conclusions to the

  individualization testimony in Genrich’s case. Id.

¶ 101   That evidence is “new” because, although Genrich’s lawyers

  vigorously attacked the reliability of O’Neil’s individualization

  opinions and called their own expert (though not a toolmark expert)

  to attack the scientific basis and reliability of toolmark

  individualization opinions during trial in 1992, the alleged scientific

  consensus regarding the scientific validity of O’Neil’s

  individualization testimony did not exist at that time.

¶ 102   Under the circumstances presented, even skilled cross-

  examination pointing out purported weaknesses in the underlying

  basis for an expert opinion and counter expert opinions challenging

  the scientific validity of expert opinions are hardly the same as the

  opinions (evidence) of one of the authors of a congressionally

  mandated study addressing forensic evidence.

¶ 103   Contrary to the partial dissent’s and the Attorney General’s

  position, the evidence at issue is not an unapplied academic theory

  like that in People v. Bonan, 2014 COA 156. In that case, the

  division stated that “[a]cademic theories merely form the basis for

  interpreting evidence when they are applied to existing evidence.”

                                     47
  Id. at ¶ 31. “Unapplied, academic theories do not constitute

  evidence” that would support a motion for a new trial. Id. The

  division concluded that four academic studies did not, in and of

  themselves, merit a new trial under Crim. P. 35(c) because Bonan

  “proffered no expert who ha[d] applied the theories he identified to

  the evidence presented at his trial.” Id. at ¶ 33. I do not dispute

  Bonan’s holding.

¶ 104   Genrich, on the other hand, does not rely solely on the NAS

  Report; rather, he relies on the application of the NAS Report to the

  evidence in this case. He submitted an affidavit by one of the

  authors of the NAS Report specifically applying the conclusions of

  the NAS Report to the type of toolmark individualization testimony

  presented against Genrich. 2 In the affidavit, Dr. Siegel stated his

  understanding that an expert had testified that Genrich’s tools were

  the tools used on certain pieces of the pipe bombs to the exclusion

  of all other tools in the world. Dr. Siegel opined that this



  2
   I do not consider the second affidavit of Dr. Siegel, filed with
  Genrich’s motion for reconsideration, because it was not included
  with the Crim. P. 35(c) motion, and because motions for
  reconsideration of a denied Crim. P. 35(c) motion are not authorized
  by law. People v. Thomas, 195 P.3d 1162, 1164 (Colo. App. 2008).
                                    48
  conclusion is “unprovable” and has “no scientific support.” Thus,

  Dr. Siegel’s opinion is not an unapplied academic theory.

   2.    Standard for Prevailing on a Motion for a New Trial Based on
                         Newly Discovered Evidence

¶ 105   The supreme court has, on multiple occasions, articulated

  what a defendant must show to warrant a new trial based on newly

  discovered evidence:

        (1)   “that the evidence was discovered after the trial;”

        (2)   “that defendant and his counsel exercised diligence to

              discover all possible evidence favorable to the defendant

              prior to and during the trial;”

        (3)   “that the newly discovered evidence is material to the

              issues involved, and not merely cumulative or

              impeaching; and”

        (4)   “that on retrial the newly discovered evidence would

              probably produce an acquittal.”

  Rodriguez, 914 P.2d at 292 (quoting Gutierrez, 622 P.2d at 559).

¶ 106   Contrary to the partial dissent’s position, Farrar, 208 P.3d at

  706-07, did not modify this standard by adding a requirement that

  the newly discovered evidence be “affirmatively probative of the


                                     49
  defendant’s innocence.” Farrar described the third and fourth

  prongs of the existing standard as follows:

             We have also required that the newly
             discovered evidence must not only be relevant
             to material issues at trial but that it must also
             be of consequence to the outcome. Moreover,
             the newly discovered evidence must be of
             sufficient consequence for reasons other than
             its ability to impeach, or cast doubt upon, the
             evidence already presented at trial. It 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. We have described the
             required materiality of newly discovered
             evidence, or the extent to which it must be
             consequential to the outcome, in various
             terms, with varying degrees of precision, but at
             least since Digiallonardo, we have specified
             that it must be such that it would probably
             produce an acquittal.

  Id. (citations omitted).

¶ 107   A requirement that newly discovered evidence be affirmatively

  probative of the defendant’s innocence (an actual innocence

  standard) significantly narrows the types of evidence that merit a

  new trial. For instance, consider a scenario in which a defendant

  was convicted of robbery solely on the basis of a video showing him

                                    50
  committing the robbery, and, after the conviction, new evidence was

  discovered demonstrating that the video was entirely fake. That

  evidence would not meet the partial dissent’s affirmatively probative

  of innocence standard because, while it demonstrates that there

  was no basis for the conviction, it does not demonstrate that the

  defendant did not commit the crime.

¶ 108   There is no indication in Farrar that this was the court’s

  intent. The Farrar court did not state that it was modifying the

  existing standard; rather, it repeatedly cited (and applied)

  Rodriguez, Gutierrez, Scheidt, and Digiallonardo –– the cases setting

  out the existing standard that I (and Judge Taubman) rely on here.

  The Farrar court went on to discuss the existing standard’s

  materiality requirement in greater detail, but did not restate or

  apply the “affirmatively probative” language. The opinion does not

  mention it again.

¶ 109   Not only does Farrar cite the existing standard and then apply

  it without reference to an actual innocence standard, it explicitly

  recognizes that it imposes no heightened requirement that the

  charges against the defendant actually be false or unfounded.

  Farrar contrasts the test it applies with the test applied when a

                                    51
  defendant who has pleaded guilty moves for withdrawal of that plea

  based on newly discovered evidence. That test differs from the

  existing standard applied in Farrar only because it applies an actual

  innocence standard. In order for such a defendant to successfully

  withdraw a guilty plea, the defendant must demonstrate that

             (1) the newly discovered evidence was
             discovered after the entry of the plea, and, in
             the exercise of reasonable diligence by the
             defendant and his or her counsel, could not
             have been earlier discovered; (2) the charges
             that the People filed against the defendant, or
             the charge(s) to which the defendant pleaded
             guilty were actually false or unfounded; and (3)
             the newly discovered evidence would probably
             bring about a verdict of acquittal in a trial.

  People v. Schneider, 25 P.3d 755, 762 (Colo. 2001) (emphasis

  added).

¶ 110   The first and third prongs of the Schneider test parallel prongs

  of the Gutierrez test applied in Farrar. The distinguishing factor is

  Schneider’s requirement that the charges against the defendant who

  has pleaded guilty actually be false or unfounded. By recognizing

  that Schneider set out a new standard “applicable only to

  convictions resulting from guilty pleas,” the Farrar court established




                                    52
  that there is no similar requirement for defendants who, like

  Genrich, went to trial. 3

¶ 111   The partial dissent contends that the difference highlighted by

  Farrar between the two tests is instead that Schneider requires proof

  of actual innocence, whereas Farrar only requires that the evidence

  support actual innocence. I think this makes too fine a distinction.

¶ 112   Furthermore, although we are typically reluctant to rely on a

  dissenting opinion’s interpretation of a majority opinion, the dissent

  in Farrar is instructive because it makes the same distinction

  between the standard applied by the majority and the standard

  applicable in a case in which a defendant seeks to withdraw a guilty

  plea based on new evidence, recognizing that such a defendant

  bears a “higher burden.” Farrar, 208 P.3d at 711 (Bender, J.,

  dissenting) (quoting Schneider, 25 P.3d at 761).



  3
   Two later Colorado Court of Appeals cases cite the “affirmatively
  probative of . . . innocence” language from Farrar v. People, 208
  P.3d 702, 707 (Colo. 2009). One, People v. Poindexter, 2013 COA
  93, does not apply that language. The other, People v. Hopper, 284
  P.3d 87, 92-93 (Colo. App. 2011), does so without needing to.
  Without considering whether the testimony at issue was
  affirmatively probative of innocence, that testimony was not
  material because it lacked any potential to undermine the
  conviction.
                                    53
¶ 113   In addition, facts and context matter. The Farrar court

  engaged in extensive discussion regarding the unique nature of

  victim recantations as the basis for newly discovered evidence

  claims, noting “the concerns inherent in the recantation of an

  alleged incest or child sexual assault victim,” “the suspicion with

  which recantations should be examined,” and “the court’s role in

  making an objective assessment of the recanting witness’s

  credibility.” Farrar, 208 P.3d at 707. The Farrar court went on to

  describe in detail the materiality standard applicable in victim

  recantation cases. To the extent Farrar imposed a heightened

  materiality standard requiring an actual innocence claim, that

  heightened standard only applies in victim recantation cases.

   3.    The Record Does Not Clearly Establish That Genrich’s Newly
                  Discovered Evidence Motion Would Fail

¶ 114   Taking Genrich’s factual allegations as true, the record does

  not “clearly establish” that Genrich has not met the standard set

  out in Rodriguez, Gutierrez, and earlier precedent, and therefore

  those allegations, if true, “may warrant relief.” Chalchi-Sevilla, ¶ 7.

¶ 115   First, the new evidence alleged was discovered after trial

  because the scientific consensus alleged by Genrich did not emerge


                                     54
  until years after his conviction. Second, for the same reason, no

  amount of due diligence on the part of Genrich and his counsel

  could have discovered this evidence before trial.

¶ 116   Third, the new evidence alleged is material to the issues

  involved because it would gut the strongest evidence supporting

  Genrich’s conviction –– the individualization testimony. It is not

  cumulative because, although Genrich did present the testimony of

  a statistician at his trial that O’Neil’s methods were not scientifically

  reliable, the testimony of a single defense expert with admittedly no

  experience in toolmarks is decidedly different in character and

  impact than a report of the National Research Council that

  represents the conclusions of dozens of experts in the field and the

  testimony of one of its authors applying those conclusions

  specifically to the evidence in this case.

¶ 117   The alleged new evidence does more than impeach O’Neil’s

  individualization testimony because it is relevant not only to

  credibility, but also reliability. Credibility determinations are a

  function of the jury. Hildebrand v. New Vista Homes II, LLC, 252

  P.3d 1159, 1166 (Colo. App. 2010). Reliability determinations are

  at least initially a function of the court, and for expert testimony to

                                     55
  be admissible, the court must conclude the scientific principles

  underlying it are reliable under CRE 702. Kutzly v. People, 2019

  CO 55, ¶¶ 10-12. This determination is separate and apart from

  any attempt by a party to impeach a witness. If the trial court

  determines under CRE 702 that the opinions are unreliable, the

  jury would not hear them at all.

¶ 118        Fourth, because, taking the allegations in Genrich’s motion as

  true, the alleged new evidence would likely result in the exclusion of

  O’Neil’s individualization testimony, it would significantly increase

  the probability of an acquittal.

        a.     Based on the Alleged New Evidence, the Individualization
                         Testimony Would Not Be Admissible

¶ 119        To determine whether scientific or other expert testimony is

  admissible under CRE 702, the court should “focus on the

  reliability and relevance of the proffered evidence” and must make

  determinations as to “(1) the reliability of the scientific principles,

  (2) the qualifications of the witness, and (3) the usefulness of the

  testimony to the jury.” People v. Shreck, 22 P.3d 68, 70 (Colo.

  2001).




                                         56
¶ 120   First, accepting Genrich’s allegations as true, there were at the

  time of trial, and there are now, no scientific principles underlying

  O’Neil’s individualization testimony. Therefore, based on a

  straightforward application of CRE 702, O’Neil’s individualization

  opinions are not reliable, and that testimony is inadmissible.4

¶ 121   I disagree with the district court’s conclusion that “the weight

  of authority from other jurisdictions holds that toolmark

  identification testimony is reliable despite the criticisms stated in

  the NAS Report.” Each of the cases relied upon by the district court

  dealt with matching bullets and cartridge casings to a specific

  firearm. United States v. Adams, No. 15-CR-0106 (PJS/FLN), 2016

  WL 424967 (D. Minn. Feb. 3, 2016); United States v. Ashburn, 88 F.

  Supp. 3d 239, 243-44 (E.D.N.Y. 2015); United States v. Otero, 849

  F. Supp. 2d 425, 438 (D.N.J. 2012), aff’d, 557 F. App’x 146 (3d Cir.

  2014); People v. Robinson, 2 N.E.3d 383, 395-402 (Ill. App. Ct.




  4
   I do not address, because it is not implicated by the evidence
  alleged by Genrich, whether some form of less conclusive testimony
  as to the relationship between the tools and the marks, such as, “I
  cannot conclude, based on this evidence, that these tools did not
  make these marks,” would be admissible.
                                     57
  2013); Commonwealth v. Pytou Heang, 942 N.E.2d 927, 937-38

  (Mass. 2011).

¶ 122   With respect to ballistics opinions, numerous courts have

  prohibited experts from testifying that bullets or cartridge casings

  were fired from a specific firearm to the exclusion of all other

  firearms in the world. E.g., Ashburn, 88 F. Supp. 3d at 249; United

  States v. Taylor, 663 F. Supp. 2d 1170, 1180 (D.N.M. 2009); United

  States v. Glynn, 578 F. Supp. 2d 567 (S.D.N.Y. 2008); United States

  v. Monteiro, 407 F. Supp. 2d 351, 372 (D. Mass. 2006) (“Because an

  examiner’s bottom line opinion as to an identification is largely a

  subjective one, there is no reliable statistical or scientific

  methodology which will currently permit the expert to testify that it

  is a ‘match’ to an absolute certainty, or to an arbitrary degree of

  statistical certainty.”). The courts in those cases concluded that

  such testimony lacked scientific reliability.

¶ 123   More importantly, none of the cases relied on by the district

  court involved marks left by a hand tool, and the Attorney General

  has cited no cases since the release of the NAS Report involving

  marks left by a hand tool. Similarly, while Genrich I previously

  concluded that the analysis of marks left by hand tools was reliable

                                      58
  based on existing precedent from other jurisdictions, the division’s

  opinion predated the alleged scientific consensus damning toolmark

  individualization evidence.

¶ 124   Opinions from other jurisdictions concluding that firearms

  identification testimony is admissible bear little weight here because

  of the differences between toolmark identification analysis for

  firearms and hand tools. The analysis of toolmarks left on a surface

  by a hand tool is inherently more subjective than the analysis of

  toolmarks left by a gun on bullets or cartridge casings. While a gun

  fires in the same manner each time, there is significantly more

  variability in the application of a hand tool, including the angle at

  which it is applied, the portion of the blade used, and the force with

  which it is applied.

¶ 125   Examiners of toolmarks created by hand tools, as opposed to

  those examining bullets and cartridge casings, set out to recreate

  the particular way in which a tool was applied to a surface. While a

  gun need only be fired once to recreate the markings it would leave

  on a bullet, a toolmark examiner might need to make dozens of test

  cuts (as was the case here) in order to create a cut that the



                                    59
  examiner believes matches, introducing further layers of

  subjectivity and variability.

¶ 126   Continued reliance on precedents that predate the

  development of an alleged scientific consensus regarding the

  reliability of toolmark individualization testimony runs the risk of

  “grandfathering in irrationality.” United States v. Green, 405 F.

  Supp. 2d 104, 123-24 (D. Mass. 2005) (excluding expert testimony

  that a specific gun fired a bullet to “the exclusion of all other guns”).

  I decline the Attorney General’s invitation to do so.

¶ 127   Second, again accepting Genrich’s allegations as true, there

  are no expert qualifications that would render someone competent

  to testify that only one tool in the world could have made a certain

  mark. And finally, expert testimony that is unreliable has no

  probative value, and therefore would not be useful to a jury.

  b.    I Cannot Conclude That Genrich Would Be Convicted Without
                      the Individualization Testimony

¶ 128   On the present record, it is impossible for us to determine

  whether exclusion of the toolmark individualization testimony

  would likely result in an acquittal. O’Neil testified over a period of

  several days, expressing multiple opinions. Some of those opinions


                                     60
  undoubtedly would withstand the attack made by Genrich, while

  the individualization opinions probably would not. Without a full

  analysis of all of O’Neil’s testimony (as well as the other toolmark

  expert who testified at trial), I cannot reach a conclusion whether

  the exclusion of some or all of this testimony likely would have

  resulted in an acquittal. This determination must be made, at least

  in the first instance, by the postconviction court after an evidentiary

  hearing.

¶ 129   The determination of whether newly discovered evidence would

  probably bring about an acquittal “should be premised on whether

  the new evidence, as developed in trial, when considered with all

  the other evidence, is such that a reasonable jury would probably

  conclude that there existed a reasonable doubt as to defendant’s

  guilt and thereby bring about an acquittal verdict.” Rodriguez, 914

  P.2d at 292.

¶ 130   Turning to the evidence here and excluding the

  individualization testimony, the prosecutor introduced the following

  evidence:

        (1)   there were numerous similarities between the four pipe

              bombs, including that each lacked a safety mechanism,

                                    61
           was a booby-trap device triggered by movement, was

           powered by a battery with wires soldered to it, used the

           same type of powder, and used Coin brand end caps;

     (2)   Genrich lived within easy walking distance of the

           locations where two of the three 1991 pipe bombs were

           detonated;

     (3)   Genrich had been seen near some of the areas where the

           1991 bombs were detonated;

     (4)   Genrich had threatened in the past to kill people out of

           frustrations with women and a perceived lack of respect;

     (5)   Genrich was familiar with the Anarchist Cookbook, which

           includes descriptions of how to make bombs;

     (6)   Genrich lived five blocks from, and was seen in, Surplus

           City, the only hardware store of twenty-five in the area to

           carry the type of Coin brand end caps used in the

           bombs; 5




5
  Law enforcement agents who conducted the search testified to
this. The Coin brand end caps recovered were not in evidence at
trial.
                                  62
         (7)   two Buss-type fuses were recovered from Genrich’s

               apartment, and that is the type of fuse used in the 1989

               bomb;

         (8)   the bombs employed an electronic detonation system,

               and Genrich was familiar with electronics from

               coursework at DeVry Technical Trade Institute; and

         (9)   Genrich had tools capable of making the marks that

               appeared on certain of the wires and caps used in the

               bombs.6

¶ 131    Countering the prosecutor’s case, Genrich introduced evidence

  that

         (1)   he was in Phoenix working at a bookstore when the 1989

               bomb was placed; 7




  6
    I am concerned that Genrich’s attorney ignores virtually all this
  evidence. His contention that the only evidence of guilt was O’Neil’s
  opinion testimony is demonstrably untrue.
  7
    Evidence included testimony of Genrich’s coworkers in Phoenix at
  the time, a timesheet from his place of employment with
  handwritten entries from the bookstore’s employees, and a record of
  books returned to the publisher filled out by Genrich on April 14,
  1989, the date the first pipe bomb was discovered in Grand
  Junction.
                                     63
     (2)   he was at his mother and stepfather’s house when each

           of the 1991 bombs detonated;8

     (3)   there was no gunpowder residue found at Genrich’s

           apartment or his mother and stepfather’s house, and

           Genrich did not rent a storage unit in the area;

     (4)   two other toolmark examiners reviewed O’Neil’s work and

           were able to confirm only one of the matches identified by

           O’Neil, agreeing that the other purported matches were

           inconclusive;

     (5)   the highly hazardous nature of the bombs (detonated by

           movement without a safety switch) suggested that the

           maker had bombmaking expertise, which, beyond

           testimony that Genrich was familiar with the Anarchist

           Cookbook, there is no evidence Genrich had;




8
  Both Genrich’s mother and stepfather testified to this and
provided documentary evidence corroborating portions of their
testimony.
                                  64
           (6)   the only end caps available at Surplus City from a period

                 in 1990 through the time the bombs were detonated were

                 not Coin brand;9

           (7)   there were multiple alternate suspects familiar with

                 building explosives; and

           (8)   there was a white vehicle seen at each of the 1991

                 bombings, and Genrich did not own or have access to a

                 vehicle.

¶ 132      I conclude that in light of all the evidence, if O’Neil’s

  individualization testimony were excluded as the result of the new

  evidence alleged, the record does not clearly establish that Genrich

  would probably still be convicted.

      C.    Genrich Is Entitled to an Evidentiary Hearing on the Basis of
                               His Due Process Claim

¶ 133      In his motion for a new trial, Genrich contended that the

  “jury’s verdicts were based on what we now know to be unreliable

  forensic evidence, in violation of both the Colorado and United


  9
   The Surplus City employee responsible for ordering this kind of
  part testified that the end caps were slow sellers, and therefore he
  knew from his records that the only end caps in stock from the time
  he ordered them in 1990 until after the bombings were the non-
  Coin brand type.
                                         65
  States Constitutions.” I conclude that Genrich has alleged facts

  that warrant an evidentiary hearing because the record does not

  “clearly establish,” Chalchi-Sevilla, ¶ 7 (quoting Ardolino, 69 P.3d at

  77), the absence of a due process violation, and his allegations “may

  warrant relief,” id.

¶ 134   Crim. P. 35(c)(2)(I) authorizes postconviction review when “the

  conviction was obtained or sentence imposed in violation of the

  Constitution or laws of the United States or the constitution or laws

  of this state.”

¶ 135   Colorado appellate courts have not previously considered

  whether the admission of scientifically unreliable expert testimony

  results in a due process violation. However, in Han Tak Lee v.

  Houtzdale SCI, 798 F.3d 159, 166 (3d Cir. 2015) (quoting Han Tak

  Lee v. Glunt, 667 F.3d 397, 403 (3d Cir. 2012)), the Third Circuit

  Court of Appeals held that the admission of scientifically unreliable

  expert testimony would violate due process guarantees if the “expert

  testimony undermined the fundamental fairness of the entire trial

  because the probative value of [that] evidence, though relevant,

  [was] greatly outweighed by the prejudice to the accused from its



                                    66
  admission.” The Ninth Circuit Court of Appeals adopted this

  approach in Gimenez v. Ochoa, 821 F.3d 1136 (9th Cir. 2016).

¶ 136   Habeas relief for a due process violation is not available,

  however, if there was “ample other evidence of guilt.” Glunt, 667

  F.3d at 407 n.13 (quoting Albrecht v. Horn, 485 F.3d 103, 126 (3d

  Cir. 2007)).

¶ 137   I conclude that Colorado law recognizes the due process

  claims recognized by both the Third and Ninth Circuits.

¶ 138   Given the significant potential for O’Neil’s expert

  individualization testimony to have swayed the jury to convict

  Genrich, I consider the elements of the Han Tak Lee test and

  conclude that Genrich’s due process claims warrant an evidentiary

  hearing.

                             1.   Han Tak Lee

¶ 139   In Han Tak Lee, 798 F.3d at 161, a jury convicted a father of

  first degree murder and arson after his daughter died in a house

  fire. At trial, the prosecutor relied heavily on “fire-science and gas-

  chromatography evidence” introduced through expert testimony.

  Id. at 161-62. Years later, the father filed a petition for habeas

  corpus arguing that his conviction violated due process because the

                                     67
  expert testimony had been based on what he claimed was

  unreliable science. Id. at 162.

¶ 140   The federal district court denied the petition, but the Third

  Circuit reversed. Id. The father then prevailed on remand following

  an evidentiary hearing. Id. The district court concluded that “the

  admission of the fire expert testimony undermined the fundamental

  fairness of the entire trial” because the verdict “rest[ed] almost

  entirely upon scientific pillars which have now eroded.” Id. (quoting

  Han Tak Lee v. Tennis, No. 4:08-CV-1972, 2014 WL 3894306, at

  *15-16 (M.D. Pa. June 13, 2014)).

¶ 141   The district court also concluded, despite the fact that the

  Commonwealth of Pennsylvania had introduced evidence that the

  father had strangled his daughter before the fire, had shown little

  grief after the incident, and had provided conflicting accounts of the

  fire, that the Commonwealth had failed to demonstrate that there

  was ample other evidence of guilt. Id. The Third Circuit affirmed.

                       2.    Due Process Violation

¶ 142   Assuming the truth of Genrich’s allegations in his Crim. P.

  35(c) motion, the prejudicial effect of the individualization testimony

  significantly outweighs its probative value. The individualization

                                    68
  testimony was allegedly scientifically baseless and therefore, as

  discussed above, had no probative value. It was highly prejudicial

  because (1) it was the strongest piece of evidence against Genrich;

  (2) it was offered by an expert witness whose opinion, as an expert

  witness for the State, bore an “aura of trustworthiness and

  reliability” not typically afforded that of lay witnesses, Cook, 197

  P.3d at 277; and (3) the prosecutor relied heavily on the

  individualization testimony in opening statement and closing

  argument.

                   3.   Ample Other Evidence of Guilt

¶ 143   As discussed above, I disagree with Genrich that the “sole

  evidentiary basis” for his conviction was the individualization

  testimony. However, whether there was ample other evidence of his

  guilt such that he would not be entitled to, at the very least, an

  evidentiary hearing is a closer question. As detailed above, both the

  prosecutor and Genrich introduced significant evidence apart from

  the individualization testimony.

¶ 144   The partial dissent takes the position that because there is

  some other evidence of Genrich’s guilt, his due process claim must

  be rejected. But that is not the test. There must be “ample other

                                     69
  evidence of guilt.” Han Tak Lee, 798 F.3d at 166 (emphasis added)

  (quoting Glunt, 667 F.3d at 407 n.13). Further, in order to reject

  the due process claim without an evidentiary hearing, the record

  must “clearly establish” that there is ample evidence of guilt.

  Chalchi-Sevilla, ¶ 7 (emphasis added) (quoting Ardolino, 69 P.3d at

  77). I conclude it does not. The ultimate determination of whether

  ample other evidence of guilt was presented is for the postconviction

  court on remand after an evidentiary hearing.

¶ 145   Finally, the partial dissent seems to contend that Genrich has

  not alleged deficiencies in the expert testimony that would

  constitute a due process violation. I disagree because Genrich’s

  undeniable base contention is that the individualization testimony

  is scientifically unreliable, and multiple courts have concluded that

  the admission of such unreliable testimony can constitute a due

  process violation. Gimenez, 821 F.3d at 1145; Han Tak Lee, 798 at

  161. Such a due process claim, unlike a new evidence claim under

  the partial dissent’s reading of Farrar, “does not require a showing

  of innocence.” Han Tak Lee, 798 F.3d at 162. Thus, Genrich’s due

  process claim entitles him to an evidentiary hearing.



                                    70
                          III.    Conclusion

¶ 146   I vote to reverse the postconviction court’s order in part and to

  remand to that court for an evidentiary hearing on Genrich’s Crim.

  P. 35(c) motion as it pertains to his class 1 felony convictions.




                                    71
        JUDGE TOW, concurring in part and dissenting in part.

¶ 147   A quarter century after his conviction for multiple counts of

  murder and other crimes stemming from a bombing spree, James

  Genrich seeks a new trial, asserting newly discovered evidence. His

  motion for a new trial, filed in 2016, is based on a 2009 report of

  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 (the NAS

  Report) — which concluded that much of the forensic science relied

  upon by law enforcement officials throughout the country lacked

  sufficient scientific validation studies — and a proffered expert

  witness’s opinion purporting to explain the impact of the NAS

  Report on Genrich’s case. The majority concludes that Genrich’s

  allegations are sufficient to warrant a hearing on his motion for a

  new trial on the class 1 felony charges. Because I believe that

  Genrich’s proffered evidence, as a matter of law, is neither new nor

  of sufficient consequence to the outcome to meet the threshold for

  obtaining a new trial, I respectfully dissent in part. 1


  1
   I agree with both of my colleagues that any claim for a new trial on
  the lesser felonies is time barred. § 16-5-402, C.R.S. 2018. See
                                     72
                    I.   Background and Applicable Law


¶ 148   As a threshold matter, I agree with, and adopt without

  repeating, Judge Berger’s recitation of the factual and procedural

  background in this matter. Supra ¶¶ 75-84 (Berger, J., specially

  concurring). I also agree with both of my colleagues’ recitations of

  the four elements a defendant must show to obtain a new trial

  based on newly discovered evidence. Supra ¶ 41 (majority opinion);

  ¶ 106 (Berger, J., specially concurring). This, however, is where I

  part company with my colleagues, because in my view, Genrich has

  failed to sufficiently set forth allegations that entitle him to a

  hearing on his motion for new trial.

                            II.   The NAS Report


¶ 149   The NAS Report was the result of a study commissioned in

  2005 by Congress, which had recognized the need for significant

  improvements in the nation’s forensic science system. NAS Report,

  at xix. Specifically, by statute, Congress “direct[ed] the Attorney

  General to provide [funds] to the National Academy of Sciences to



  People v. Stovall, 2012 COA 7M, ¶ 37. Thus, I concur in that
  portion of the decision.
                                      73
  create an independent Forensic Science Committee.” S. Rep. No.

  109-88, at 46 (2005); see Act of Nov. 22, 2005, Pub. L. No. 109-108,

  119 Stat. 2290. That committee then studied numerous forensic

  science disciplines, including biological evidence, analysis of

  controlled substances, friction ridge analysis, hair and fiber

  analysis, shoe print and tire track impressions, forensic odontology,

  bloodstain pattern analysis, and (relevant to this dispute) firearms

  and toolmark identification. After a lengthy study, the committee

  issued the NAS Report.

¶ 150   The report describes toolmarks as follows: “Toolmarks are

  generated when a hard object (tool) comes into contact with a

  relatively softer object. Such toolmarks may occur in the

  commission of a crime when an instrument such as a screwdriver,

  crowbar, or wire cutter is used . . . .” NAS Report, at 150.

  Toolmark identification focuses on both “class characteristics” and

  “individual characteristics” of tools. The former are “distinctive

  features that are shared by many items of the same type.” Id. at

  152. This would include things like “the width of the head of a

  screwdriver or the pattern of serrations in the blade of a knife . . .

  common to all screwdrivers or knives of a particular manufacturer

                                     74
  and/or model.” Id. Individual characteristics, on the other hand,

  are “the fine microscopic markings and textures that are said to be

  unique to an individual tool.” Id.

¶ 151   The committee studied how the process of toolmark

  identification is undertaken and reported on the shortcomings in

  the interpretation of toolmarks. For example, the committee noted

  that it was “not able to specify how many points of similarity are

  necessary for a given level of confidence in the result.” Id. at 154.

  Further, the committee expressed concern regarding the “heavy

  reliance on the subjective findings of examiners rather than on the

  rigorous quantification and analysis of sources of variability.” Id. at

  155. Ultimately, the committee concluded that “[s]ufficient studies

  have not been done to understand the reliability and repeatability of

  the methods.” Id. at 154.

¶ 152   Notably, however, the committee did not opine that the

  discipline could never or would never be established as reliable.

  Indeed, the committee acknowledged that “class characteristics are

  helpful in narrowing the pool of tools that may have left a distinctive

  mark,” and that “[i]ndividual patterns from manufacture or from

  wear might, in some cases, be distinctive enough to suggest one

                                       75
  particular source.” Id. Rather, the NAS Report merely concluded

  that “additional studies should be performed to make the process of

  individualization more precise and repeatable.” Id.

                     III.   The Motion for a New Trial

¶ 153   Genrich argues that the NAS Report is new evidence, was not

  obtainable prior to his trial, is material and not merely cumulative

  or impeaching, and would probably produce an acquittal. In my

  view, even taking his factual allegations as true, Genrich’s motion

  fails to establish that he is entitled to a new trial, or even to an

  evidentiary hearing.

                   A. The NAS Report Is Not New Evidence

¶ 154   Implicit in the first two prongs of the test — that the evidence

  was discovered after trial, and not before trial despite the exercise of

  due diligence by a defendant and his or her counsel — is the

  requirement that the evidence must actually be new. The

  information in the NAS Report is neither evidence nor new.

¶ 155   As a division of this court has previously held in another

  context, “[a]cademic theories merely form the basis for interpreting

  evidence when they are applied to existing evidence.” People v.

  Bonan, 2014 COA 156, ¶ 31. “Unapplied, academic theories do not

                                     76
  constitute evidence.” Id. Genrich has not proffered any testimony

  or evidence that would apply the purportedly new scientific

  information in the NAS Report to the circumstances of this case.

  Instead, he proffers an affidavit from Jay Siegel (a member of the

  committee that wrote the 2009 NAS Report), in which Siegel merely

  recites the conclusion of the report: that the forensic science of

  toolmark identification “has not been sufficiently studied nor

  scientifically validated.” At no point in the affidavit does Siegel

  opine that Genrich’s tools did not make the marks on the bomb

  parts. 2

¶ 156   The affidavit attached to Genrich’s motion for new trial is not

  evidence. See Commonwealth v. LeFave, 714 N.E.2d 805, 813

  (Mass. 1999) (holding that to treat expert testimony relying on

  studies released after trial as evidence “would provide convicted

  defendants with a new trial whenever they could find a credible


  2
   Though Genrich submitted a supplemental affidavit to the trial
  court as part of a motion to reconsider, neither the trial court nor
  this court is required to consider information first presented in a
  motion to reconsider. See Fox v. Alfini, 2018 CO 94, ¶ 36. In fact,
  where, as here, the motion to reconsider merely advanced the same
  arguments in the original postconviction petition, it is essentially a
  successive petition and will not be considered. See People v.
  Thomas, 195 P.3d 1162, 1165 (Colo. App. 2008).
                                     77
  expert with new research results supporting claims that the

  defendant made or could have made at trial”); State v. Gillispie, Nos.

  22877, 22912, 2009 WL 2197052, at *26 (Ohio Ct. App. July 24,

  2009) (unpublished opinion) (“A case cannot be retried based on

  every ‘advancement’ in scientific research.”). Notably, both LaFave

  and Gillespie were cited with approval in Bonan, ¶ 35.

¶ 157   Nor is the information new. Again, the gravamen of the report

  is that “[s]ufficient studies have not been done to understand the

  reliability and repeatability of the methods.” NAS Report, at 154.

  In other words, the report concludes that the science of toolmark

  identification lacks a sufficient scientific method and basis. In his

  motion for new trial and the accompanying affidavit, Genrich and

  his expert, Siegel, parrot this conclusion, arguing that the forensic

  science of toolmark identification “has not been sufficiently studied

  nor scientifically validated.”

¶ 158   Significantly, the jury heard this exact evidence during

  Genrich’s trial. Genrich presented an expert witness in scientific

  methods. The defense expert pointed out that there were no data

  banks supporting the assumption that each tool is unique, there

  had been no experiments conducted to determine the probability of

                                    78
  misidentification of a tool, the toolmark examiner’s opinion was

  subjective, the toolmark analysis process has no scientific basis,

  and the fact that the test was not conducted in a blind fashion

  exposed the conclusion to confirmation bias by the examiner. The

  prosecution offered no evidence to the contrary.

¶ 159   Because Genrich’s motion offers only unapplied academic

  theories, and in any event the jury heard and had the opportunity

  to consider essentially the same information as that presented in

  the NAS Report, Genrich has not presented any new evidence.

  Thus, because he has failed to sufficiently allege that new evidence

  exists, he cannot be entitled to a hearing on whether this

  information would warrant a new trial.

¶ 160   Indeed, for the same reason, he has failed to sufficiently allege

  facts that, if true, would establish the second prong. In one

  iteration of the second prong, our supreme court has stated that

  the evidence must be “unknown to the defendant and his counsel in

  time to be meaningfully confronted at trial and unknowable through

  the exercise of due diligence.” Farrar v. People, 208 P.3d 702, 706

  (Colo. 2009). Genrich’s purportedly new evidence was not only

  knowable, but known to Genrich’s counsel, who developed and

                                     79
  presented it to the jury in a meaningful confrontation of the

  prosecution’s expert. Thus, again, even taking the allegations as

  true, the motion fails to set forth sufficient grounds to warrant a

  hearing.

          B. The Evidence Is Merely Cumulative and Impeaching

¶ 161   Even if the NAS Report constitutes new evidence, Genrich

  must show that it is “material to the issues involved, and not merely

  cumulative or impeaching.” People v. Rodriguez, 914 P.2d 230, 292

  (Colo. 1996).

                  1. Farrar and the Definition of Material

¶ 162   In Farrar, the supreme court explained that to be material,

  new evidence “must be of sufficient consequence for reasons other

  than its ability to impeach, or cast doubt upon, the evidence

  already presented at trial.” Farrar, 208 P.3d at 707. To be

  consequential, the court continued, the evidence must be

  “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.” Id.

                                    80
¶ 163   Both of my colleagues conclude that Farrar has no application

  here. Specifically, they conclude that though the supreme court

  announced this language, it did not apply it. I respectfully disagree.

¶ 164   After providing this guidance on what materiality means in the

  context of new evidence, the court reiterated, “we have for some

  time emphasized that a defendant can be entitled to a new trial as

  the result of newly discovered evidence only if that evidence would

  be likely to result in acquittal for reasons beyond simply

  impeaching the earlier conviction.” Id. In the context of that case,

  which involved a witness recantation, the court stated that a new

  trial would not be warranted “[u]nless the victim’s testimony that

  the defendant did not commit the sexual assault will probably be

  believed.” Id. at 708 (emphasis added). Clearly, this is an

  invocation of the “affirmatively probative of innocence” test the

  court had announced appearing just moments before. The court

  further stated that the district court “properly evaluated the effect of

  the victim’s recantation apart from its impeachment value.” Id. at

  709. And finally, the court reiterated that a new trial may only be

  granted “upon the discovery of meaningfully contradictory evidence.”

  Id. (emphasis added). There is simply no reason to believe that

                                    81
  “meaningfully contradictory” was meant to be read in the context of

  the test for “sufficient consequence” or materiality appearing just

  three pages earlier in the court’s decision.

¶ 165   Judge Berger seeks to distinguish Farrar on two additional

  grounds, both of which I disagree with. First, he posits that Farrar

  itself disavows any effort to impose a heightened standard when it

  discusses the test for withdrawing a guilty plea based on new

  evidence set forth in People v. Schneider, 25 P.3d 755 (Colo. 2001).

  Supra ¶¶ 110-111 (Berger, J., specially concurring). Judge Berger

  states that the existing standard for obtaining a new trial differs

  from the test for withdrawal of a guilty plea based on new evidence

  only because the latter requires proof that the charges be “actually

  false or unfounded.” Schneider, 25 P.3d at 762. However, I do not

  believe the Farrar standard is an “actual innocence” test. To

  require a defendant to prove — as a threshold to being permitted to

  withdraw a plea — that the charges were actually false is far

  different than to require a defendant to prove — as a threshold for

  obtaining a new trial — that evidence is “affirmatively probative of

  innocence.” The latter only requires a threshold showing that the

  charges might actually be false or unfounded. Thus, Schneider does

                                    82
  not necessitate any limitation on the clarification of the materiality

  test announced in Farrar.

¶ 166   Next, Judge Berger asserts that to the extent Farrar imposes a

  new test for materiality, that test is limited to recantations. I do not

  believe this is a fair reading of the case.

¶ 167   When the supreme court set forth its clarification of what is

  required for new evidence to be consequential, it had not yet turned

  to the analysis of the specific facts of the case; rather, it was setting

  forth the applicable law. Farrar, 208 P.3d at 706-07. In doing so,

  the court discussed the historical treatment of the materiality prong

  of the test by referring to two cases, neither of which is a

  recantation case. Id. (first citing People v. Scheidt, 187 Colo. 20, 22,

  528 P.2d 232, 233 (1974); then citing Digiallonardo v. People, 175

  Colo. 560, 567, 488 P.2d 1109, 1113 (1971)).

¶ 168   The new evidence in Scheidt involved an allegation that before

  the defendant’s trial, the prosecution possessed but did not disclose

  a statement by a different person confessing to the killing for which

  the defendant had been convicted. 187 Colo. at 21, 528 P.2d at

  233. No witness recanted any testimony.



                                     83
¶ 169   The new evidence in Digiallonardo involved a post-trial

  statement from the victim of a robbery by two men he had just been

  introduced to, in which the victim stated that at some point after

  the trial, he had seen the defendant and another man at a social

  event, and “in viewing the two men he now feels that his absolute

  identification of defendant . . . is doubtful and that his testimony

  may have been mistaken.” 175 Colo. at 567, 488 P.2d at 1113.

  While this statement might be classified as a recantation, even the

  court was hesitant to do so, stating that the witness “merely states

  that he may have been mistaken.” Id. at 569, 488 P.2d at 1114.

  Such a statement does not amount to the witness withdrawing or

  renunciating his testimony. See Black’s Law Dictionary 1521 (11th

  ed. 2019) (defining recant).3

¶ 170   Finally, after setting forth the law in this area, the supreme

  court in Farrar noted that “[n]ewly discovered evidence in this sense

  can, and often does, arise from the recantation of a witness who

  testified at trial.” Farrar, 208 P.3d at 707 (emphasis added). The

  court further explained that “some jurisdictions treat recantations


  3
   Interestingly, in both cases, the supreme court affirmed the trial
  court’s denial of a new trial.
                                     84
  as a distinct ground for ordering a new trial, subject to different

  standards of proof altogether.” Id. However, the court stated that it

  has “never singled out recantation for this kind of special

  treatment.” Id. In short, nothing in the court’s discussion suggests

  that recantation is to be treated differently than any other type of

  new evidence.

                    2. The Materiality of the NAS Report

¶ 171   Nothing in the NAS Report demonstrates, or even suggests,

  that Genrich did not commit the crimes, or that someone else

  probably did. 4 The evidence demonstrates nothing more than that,

  after Genrich’s trial, a consensus has developed in a significant

  portion of the scientific community that agrees with Genrich’s

  expert’s view of the state and quality of the forensic science of

  toolmark identification. Similarly, nowhere in Siegel’s original

  affidavit does he state that the examiner’s opinion in this case was

  definitively wrong. Rather, Siegel only opines that there is no

  scientific support for the examiner’s opinion — a point

  unequivocally made to the jury by Genrich’s trial expert.


  4
   Of course, there can be no argument in this case that the crime
  did not actually occur.
                                    85
¶ 172   In other words, the NAS Report shows nothing more than that

  additional experts would support Genrich’s trial expert and refute

  the prosecution’s. Therefore, the information in the report is not

  material — i.e., not sufficiently consequential; rather, the evidence

  is merely cumulative of Genrich’s trial expert’s testimony and serves

  only to impeach the prosecution’s expert. Genrich’s allegations,

  taken as true, fail to establish the third prong of the test as well.

  Thus, because he would not be entitled to relief, he is not entitled to

  a hearing.

          C.    The Record Clearly Demonstrates that the Evidence
                 Would Probably Not Produce an Acquittal

¶ 173   Finally, again assuming the NAS Report qualifies as new

  evidence, the record as a whole clearly demonstrates that the

  evidence would probably not produce an acquittal. First, unlike my

  colleagues, I am not convinced that the NAS Report would

  necessarily exclude much, if any, of the toolmark examiner’s

  testimony, the vast majority of which was informed by his own

  extensive personal experience from sixteen years examining

  toolmarks. See Kutzly v. People, 2019 CO 55, ¶ 17 (holding that

  experience-based expert testimony need not always be based on


                                     86
  statistical analysis). Indeed, Judge Harry Edwards, the co-chair of

  the committee that authored the NAS Report, has made it clear that

  “nothing in the Report was intended to answer the ‘question

  whether forensic evidence in a particular case is admissible under

  applicable law.’” United States v. Rose, 672 F. Supp. 2d 723, 725

  (D. Md. 2009) (quoting Hon. Harry T. Edwards, Statement before

  U.S. Senate Judiciary Committee (Mar. 18, 2009)).

¶ 174   Yet, even if the individualization testimony were excluded, the

  jury would nevertheless have heard testimony from a very

  experienced toolmark examiner that the toolmarks on the bomb

  parts were consistent with marks made by Genrich’s tools. (It bears

  repeating that nothing in the NAS Report or Genrich’s motion

  refutes the accuracy of that testimony.) Combined with the weighty

  circumstantial evidence of Genrich’s guilt, the probability that the

  individualization testimony was the linchpin of the jury’s

  deliberation appears quite low.5




  5
   I note that Genrich has not identified any case in which the 2009
  NAS Report was determined to be sufficiently material new evidence
  regarding toolmark analysis that a new trial was ordered. And,
  despite a nationwide search, I have discovered no such case.
                                     87
                   IV.   Genrich’s Due Process Claim

¶ 175   Genrich also claims that permitting a conviction to stand

  despite the fact that some of the scientific testimony supporting

  that conviction has fallen out of favor would run afoul of his due

  process rights. While I do not necessarily disagree with his

  premise, I do not believe he has sufficiently pleaded facts to warrant

  a hearing on the issue.

¶ 176   Some federal courts have considered a defendant’s due

  process claim based on subsequently debunked scientific

  testimony.

¶ 177   In Han Tak Lee v. Houtzdale SCI, 798 F.3d 159 (3d Cir. 2015),

  the defendant was convicted of murder and arson, based in part on

  the testimony of an expert in fire science. Id. at 161. During a

  postconviction hearing, the defendant presented “evidence about

  developments in the field of fire science that . . . ‘provided ample

  reason to question the reliability of the arson investigation.’” Id.

  (quoting Han Tak Lee v. Glunt, 667 F.3d 397, 401 (3d Cir. 2012)).

  The defendant then filed a habeas corpus petition, claiming that his

  conviction violated due process because it was based on inaccurate

  and unreliable evidence. Id. at 162. The Third Circuit Court of

                                     88
  Appeals held that, to prevail, the defendant “must show that the

  admission of the fire expert testimony undermined the fundamental

  fairness of the entire trial because the probative value of [the fire

  expert] evidence, though relevant, is greatly outweighed by the

  prejudice to the accused from its admission.” Id. (quoting Glunt,

  667 F.3d at 403). However, habeas relief is not available where

  there is “ample other evidence of guilt.” Id. (quoting Glunt, 667 F.3d

  at 407 n.13).

¶ 178   In Gimenez v. Ochoa, 821 F.3d 1136 (9th Cir. 2016), the Ninth

  Circuit Court of Appeals reviewed a challenge to a child abuse

  conviction based on testimony regarding the connection between a

  specific triad of injuries (subdural hematoma, brain swelling, and

  retinal hemorrhage) and a diagnosis of Shaken Baby Syndrome

  (SBS). Id. at 1143. The defendant pursued habeas relief, asserting

  that numerous scientific articles published following his conviction

  had altered the reliance of the forensic pathology community on

  this triad, and that now the medical community requires some

  evidence of impact injuries before diagnosing SBS. Id. The Ninth

  Circuit Court of Appeals adopted the test adopted by the Third



                                     89
  Circuit in Han Tak Lee. Id. at 1145. However, the court denied

  habeas relief based on the strength of the remaining evidence. Id.

¶ 179   I note that neither the Colorado Supreme Court nor the Tenth

  Circuit Court of Appeals has adopted the Han Tak Lee test.

  However, even if I assume that a due process challenge to a

  conviction based on subsequently discredited science is cognizable

  in theory, such a claim would not be applicable here.

¶ 180   The flaw in Genrich’s proposition is not in its premise, but in

  the applicability of that premise to his situation. He formulates the

  issue in his opening brief: “Is Due Process violated where the sole

  evidentiary basis for conviction is expert testimony that is later

  revealed to be patently false and contrary to science?” (Emphasis

  added.) As both Judge Berger and I have pointed out, the

  individualization testimony at trial is far from the sole evidentiary

  basis for the conviction. Supra ¶ 131 & n.6 (Berger, J., specially

  concurring). While the weight and sufficiency of the circumstantial

  evidence of Genrich’s guilt might be subject to debate, its existence

  is not, notwithstanding Genrich’s counsels’ refusal to acknowledge

  it. Further, as I have discussed, nothing in either the NAS Report

  or the Siegel affidavit supports the allegation that the toolmark

                                    90
  analysis testified to at trial is either “patently false” or “contrary to

  science.” Again, the only conclusion of the report is that more

  testing is needed to ensure reliability.

¶ 181   Again, I do not reject the premise underlying Han Tak Lee —

  that a conviction that rests exclusively, or even primarily, on

  scientific testimony that is later determined to be demonstrably

  false cannot stand. This, however, is not that case. Even if the Han

  Tak Lee test were applicable, Genrich fails to satisfy it, or even

  sufficiently invoke it to be entitled to a hearing. He has not alleged

  facts that would demonstrate that the admission of the

  individualization testimony at trial undermined the fundamental

  fairness of the trial, particularly in light of (1) the fact that his

  expert witness exposed all of the same flaws in the testing that the

  NAS Report later identified and (2) the strength of the remaining

  evidence against him.

                                V. Conclusion


¶ 182   I concur in the decision affirming the district court’s denial of

  the request for a new trial on the non-class-1 felony charges. But

  because — taking as true all of Genrich’s factual allegations — I do


                                      91
not believe he has brought forth new material evidence that would

likely result in acquittal, I respectfully dissent from the decision to

require the district court to conduct a hearing on Genrich’s motion

for new trial.




                                   92
