                       UNITED STATES, Appellee

                                    V.

                   John C. McALLISTER, Specialist
                        U.S. Army, Appellant


                              No. 00-0252


                        Crim. App. No. 9601134



       United States Court of Appeals for the Armed Forces

                       Argued January 10, 2001

                        Decided August 2, 2001

    GIERKE, J., delivered the opinion of the Court, in which
       EFFRON and BAKER, JJ., joined. CRAWFORD, C.J., and
          SULLIVAN, J., each filed a dissenting opinion.

                                 Counsel
For Appellant: Richard T. McNeil (argued); Colonel Adele H.
   Odegard, Lieutenant Colonel David A. Mayfield, and Major
   Jonathan F. Potter (on brief); Captain David S. Hurt.

For Appellee: Captain Arthur L. Rabin (argued); Colonel David L.
   Hayden, Lieutenant Colonel Edith M. Rob, and Major Anthony P.
   Nicastro (on brief); Major Patricia A. Ham.

Military Judges:    Patrick K. Hargus and Debra L. Boudreau (trial)


    This opinion is subject to editorial correction before publication.
United States v. McAllister, No. 00-0252/AR


      Judge GIERKE delivered the opinion of the Court.

      A general court-martial composed of officer and enlisted

members convicted appellant, contrary to his pleas, of

unpremeditated murder and disobeying the order of a superior

commissioned officer, in violation of Articles 118 and 90,

Uniform Code of Military Justice, 10 USC §§ 918 and 890,

respectively.     The adjudged and approved sentence provides for a

dishonorable discharge, confinement for life, total forfeitures,

and reduction to the lowest enlisted grade.     The Court of

Criminal Appeals affirmed the findings and sentence.

      This Court granted review of the following issue:

      WHETHER THE MILITARY JUDGE ABUSED HER DISCRETION IN REFUSING
      TO ALLOW THE DEFENSE TO UTILIZE EXPERT ASSISTANCE AT
      APPELLANT’S COURT-MARTIAL.

In addition, this Court specified the following issues:

                                          I

      WHETHER THE COURT OF CRIMINAL APPEALS MADE FACTUAL FINDINGS
      THAT ARE UNSUPPORTED BY THE RECORD.

                                          II

      WHETHER THE EVIDENCE IS LEGALLY SUFFICIENT TO SUPPORT THE
      FINDINGS OF GUILTY.

                                          III

      WHETHER THE MILITARY JUDGE ERRED TO THE SUBSTANTIAL
      PREJUDICE OF APPELLANT WHEN SHE REFUSED TO ALLOW A RETEST OF
      MATERIALS FOUND UNDER THE VICTIM'S FINGERNAILS WHEN FUNDS
      HAD BEEN PREVIOUSLY MADE AVAILABLE FOR DEFENSE INVESTIGATIVE
      ASSISTANCE AND AN EXPERT TESTIFIED THAT SUCH TESTING WAS
      APPROPRIATE. SEE UNITED STATES V. GARRIES, 22 MJ 288 (CMA
      1986).

For the reasons set out below, we set aside the decision below

and remand for further proceedings.




                                      2
United States v. McAllister, No. 00-0252/AR


                            Factual Background

      This case arose from the prosecution of appellant for the

murder of Private First Class (PFC) Carla Shanklin, who was found

dead in her government quarters at Helemano Military Reservation,

Hawaii.    The cause of death was determined to be “manual

strangulation, either alone or in combination with one of the

other forms of asphyxia,” such as use of a ligature like the

necklace PFC Shanklin was wearing or “burking” -- a combination

of smothering and pressure on the chest.

      Appellant lived with PFC Shanklin, her 3-year-old daughter,

and her 15-year-old sister, Kijafa Walker, until June 23, 1995.

(R. 826, 828-30, 965) On that date, appellant and PFC Shanklin

had a physical altercation in her quarters.      PFC Shanklin called

the Military Police, who apprehended appellant and removed him

from the quarters.      The next day, June 24, appellant’s commander

ordered him to stay away from PFC Shanklin’s quarters.

Appellant’s conviction of willful disobedience of this no-contact

order is not at issue in this appeal.

      On the afternoon of July 7, 1995, the day before her death,

appellant went to PFC Shanklin’s quarters and asked Kijafa when

she would return.     Kijafa told appellant that she would return at

about 1:00 p.m., and appellant waited “outside walking up and

down, up and down.”      PFC Shanklin actually returned between 2:30

and 3:00 p.m., accompanied by Sergeant (SGT) Harris, her squad

leader, who was teaching her how to drive a car with a manual

transmission.     They continued to drive around for about 30

minutes.




                                      3
United States v. McAllister, No. 00-0252/AR


      PFC Shanklin and appellant then conversed sometime between

4:00 p.m. until about 6:00 p.m., when appellant left PFC

Shanklin’s quarters and went to the quarters of Staff Sergeant

(SSG) Kimberly Rogers, with whom he was then living.       Appellant

and SSG Rogers had an argument that evening, which ended when

Rogers told him that she “didn’t want him anymore” because she

thought he was involved with another woman named Carla [PFC

Shanklin’s first name].       According to SSG Rogers, he responded as

if he “didn’t care.”

      Appellant then went to the Noncommissioned Officers’ (NCO)

Club at Schofield Barracks, where he became involved in a

conversation with SSG Michael Jones about Jones’ relationship

with PFC Shanklin.      Although SSG Jones insisted that he was just

“friends” with PFC Shanklin, appellant ended the conversation by

saying, “I love her, she loves me, and may the best man win.”

SSG Jones noticed appellant’s white four-door Cadillac parked in

the NCO Club parking lot.       He last saw appellant between 7:45

p.m. and 8:00 p.m.

      SSG Jones went to PFC Shanklin’s quarters, and from about

9:15 p.m. until 12:45 a.m., they drove around in Jones’ truck.

They had intended to return earlier but were delayed because they

had a flat tire.     Appellant called PFC Shanklin at about 9:30

p.m., but her sister told him that she was not home.

      Kijafa testified that she was awakened during the night by a

female scream that sounded frightened and “like it didn’t get a

chance to finish.”      She looked into the hallway, saw nothing, and

then went back to bed.




                                      4
United States v. McAllister, No. 00-0252/AR


      Between 4:00 and 4:30 a.m., SGT Christopher Robinson, who

shared a common bedroom wall with PFC Shanklin, also heard a

loud, shrill scream that “was cut off.”         He then heard “a

rhythmic thumping” for about 15-30 seconds.         At about 5:00 a.m.

he heard a car door slam.

      At about the same time, Ms. Marion McCloud, who lived across

the street, was awakened by a loud noise.         She looked out the

window and saw a white car parked in the parking lot, “which was

unusual because usually no white cars parked there at night.”

      The next morning, Kijafa attempted to awaken PFC Shanklin by

calling her name.     She noticed that PFC Shanklin was not moving,

had foam coming from her mouth, and had bruises on her arm.         She

went outside and told SGT Robinson, who was working on his car,

that she could not awaken PFC Shanklin. Kijafa asked SGT Robinson

to ask his wife to come outside, and she then asked Mrs. Robinson

to help her awaken PFC Shanklin.          SGT Robinson and his wife went

to PFC Shanklin’s bedroom, where he saw foam and blood coming

from her mouth and noticed that she was was cold and stiff.         He

also noticed that the bedroom window was open with the blinds

down and a dresser seemed out of place.         According to Kijafa, PFC

Shanklin never opened the window.

      SGT Robinson talked to the Military Police, and Kijafa paged

appellant several times.       When appellant called back, Kijafa told

him that “something happened and you need to get over here.”

After appellant repeatedly asked why, SGT Robinson took the

telephone and said, “Something happened to Carla.”         Appellant

responded “almost jokingly,” “Why, is she dead?”         SGT Robinson

said, “Yes,” and appellant “started to cry.”


                                      5
United States v. McAllister, No. 00-0252/AR


      Kijafa testified that she did not tell appellant that PFC

Shanklin was dead.      In cross-examination, however, she admitted

that she initially told an agent from the U.S. Army Criminal

Investigation Command (CID) that she told appellant that PFC

Shanklin “might be dead.”       She testified that she was “shaken up”

and answered without thinking when she talked to the CID, but she

insisted at trial that she did not tell appellant that PFC

Shanklin was dead.

      Another soldier drove appellant to PFC Shanklin’s quarters.

When the soldier asked appellant why he was crying, appellant

said, “Carla’s dead.”      Appellant also told the soldier that “he

knew they were going to try to pin it on him because [she] was

his girlfriend.”

      Appellant was questioned by CID Special Agent (SA) West.

Appellant told SA West that he spent the night with SSG Rogers,

except for about 30 minutes around midnight when he drove his car

to a Texaco station, left it there, and walked back.

Appellant’s alibi was contradicted by SSG Rogers, who testified

that appellant left around 11:00 p.m. and did not return until

daybreak.    Appellant did not testify at trial.

        When he interviewed appellant, SA West observed scratches

on his arms and a gouge on his index finger.      SSG Rogers

testified that, on July 9, appellant pointed to the scratches on

his arm and said, “Girl, you tore me up,” and “Kim, you scratched

me, you did scratch me.”       SSG Rogers denied scratching appellant.

      Mr. George Grady testified that around 9:30 a.m. on July 8,

1995, the day after PFC Shanklin’s death, appellant came to his

house with a container “about the size of a shoe box” and asked


                                      6
United States v. McAllister, No. 00-0252/AR


him to get rid of the box for him.            As they were talking,

appellant seemed nervous and said, “I--I--I did this -- I did

something.”    Mr. Grady threw the box into a dumpster without

opening it.

      Deoxyribonucleic acid (DNA) tests were performed on a

substance found under PFC Shanklin’s fingernails, as well as

blood samples taken from appellant, the other suspect, and PFC

Shanklin’s daughter and sister, to determine their respective DNA

profiles.    The tests did not exclude the possibility that the

material under PFC Shanklin’s fingernails contained the DNA of

more than one person.      The tests excluded all donors of DNA

samples as possible sources of the material, except for appellant

and PFC Shanklin.

      The prosecution’s expert, Ms. Meghan Clement, explained the

testing process.     She testified that the DNA from the material

under PFC Shanklin’s fingernails was tested for eight separate

genetic systems.     Appellant’s DNA and the DNA of the material

under PFC Shanklin’s fingernails matched each other in all eight

genetic systems.     Ms. Clement testified that all the other

suspects, as well as PFC Shanklin’s sister and daughter, were

excluded as possible sources because their DNA did not match the

material under the fingernails in at least one genetic system.

      On cross-examination, Ms. Clement testified that, after the

testing of appellant’s DNA, her laboratory started testing for

two additional genetic systems.           Neither Ms. Clement nor any

other witness stated how many known genetic systems there were at

the time of trial or how many systems could have been reliably

identified by the DNA test used in this case see ___ MJ at (9).


                                      7
United States v. McAllister, No. 00-0252/AR


      The DNA evidence in this case was not tested for the two

additional genetic systems.       Ms. Clement opined that the

possibility of excluding appellant as a donor of the DNA by

testing for the two additional genetic systems was remote,

because she had never seen a case where there were six or seven

matches followed by a failure to match in the eighth, ninth, or

tenth tests.    Defense counsel did not challenge her assertion or

question her regarding the number of cases on which her assertion

was based.

      The DNA evidence was of considerable interest to the

members, as evidenced by questions from six of the eight members.

Their questions pertained to the possibility of contamination of

the samples, the potential for multiple contributors, the

explanation for the limited readings from PFC Shanklin’s right

fingernail, the possibility of mistakes in the chain of custody,

and the possibility of a retest.

    Expert Assistance (Granted Issue and Specified Issue III)
      Before trial, appellant asked the convening authority for

expert assistance.      He specifically asked that Dr. Patrick
Conneally, PhD, be appointed under Mil. R. Evid. 502, Manual for

Courts-Martial, United States (2000 ed.), as a defense consultant

on DNA evidence.     He also asked that Dr. Conneally be produced at

government expense as a defense expert witness.       On April 4,

1996, the convening authority approved the request to employ Dr.

Conneally.

      At a motions hearing on April 23, 1996, defense counsel

informed the military judge that Dr. Conneally had advised

employing someone else who was an expert in Polymerase Chain


                                      8
United States v. McAllister, No. 00-0252/AR


Reaction (PCR) testing.       Defense counsel informed the military

judge that he was “attempting to contact Doctor Conneally to get

his suggestions on someone” to perform the PCR testing.          The

defense filed a motion to preserve the evidence for further DNA

testing and requested the convening authority to provide funds

for DNA testing by an independent laboratory.          The estimated cost

of DNA retesting was $3000-4000.          The military judge granted a

defense motion to preserve the evidence for possible retesting,

but the convening authority denied a defense request for funds to

obtain an independent DNA test.

      Dr. Conneally recommended that Dr. Edward Blake be retained.

Dr. Blake operates a DNA testing laboratory in California and had

indicated his willingness to conduct additional DNA testing.

Dr. Blake informed the defense that LabCorp, the laboratory used

by the Government, had not followed “the standard general

criminal forensic testing standards” in conducting its analysis.

      At a motions hearing on May 15, 1996, the defense asked the

military judge to order that funds be made available to hire Dr.

Blake as a defense consultant and to conduct another DNA test.

When asked by the military judge what would be accomplished by

additional testing, defense counsel explained that they were

concerned with possible contamination of the samples and

misidentification of the sample taken from appellant.          The

military judge cautioned defense counsel, “[D]on’t make this DNA

evidence into something more than it really is.”

      After considerable discussion about the need for DNA

retesting, defense counsel informed the military judge: “The

defense position really is that we would like to substitute


                                      9
United States v. McAllister, No. 00-0252/AR


Doctor Blake for Doctor Conneally[.]”         Defense counsel informed

the military judge that $6000 was approved to retain Dr.

Conneally, but only $1000 had been spent.         Nevertheless, the

military judge denied the defense request, explaining her

decision as follows:

            It’s up to the defense to figure out from the get go
            who they wanted as an expert. The convening authority,
            in good faith, relied upon the defense representation,
            looked at Doctor Conneally’s qualifications. And we
            were litigating the issue of DNA experts earlier on
            face value as it was presented to the convening
            authority, Doctor Conneally appears to have impeccable
            credentials. Now, at the time that you requested the
            expert that was when the time was to decide who could
            provide the defense requested assistance. The
            convening authority gave the defense what they wanted
            and there’s nothing before me to suggest that it’s
            fundamentally unfair to require the defense to go with
            the expert that they asked for and the convening
            authority in good faith gave them for the purposes of
            preparing for trial.


      The military judge left the door open for the defense to ask

the convening authority to substitute Dr. Blake for Dr.

Conneally.    The defense asked the convening authority to

substitute Dr. Blake for Dr. Conneally, but the convening

authority denied the request, prompting the defense to ask for a

continuance “for at least one month.”         In its request, the

defense asserted that the funds allocated for Dr. Conneally were

sufficient to retain Dr. Blake.        Finally, the defense explained

its reasons for the change of experts:

                 The fact of the matter is that the state of Hawaii
            does not have any forensically trained DNA labs of
            testing experts and the defense therefore needed the
            consultation of Dr. Conneally to be pointed in the
            right direction to a forensic expert, such as Dr.
            Blake.




                                      10
United States v. McAllister, No. 00-0252/AR


The military judge denied the defense request for a continuance,

remarking that “there is still nothing new in this appellate

exhibit that would cause me to reconsider my earlier ruling on

this matter.”

      Defense counsel then informed the military judge that he had

not requested that Dr. Conneally be summoned to testify, and he

reiterated that Dr. Conneally had recommended that the defense

retain Dr. Blake to retest the DNA samples “and also because

Doctor Blake has expertise in forensic and criminology where

Doctor Conneally does not.”       The military judge adhered to her

earlier rulings and reiterated:

            [W]hen the defense makes a request to the convening
            authority for an expert by name and the convening
            authority grants it, then the convening authority can
            rely that the defense has done its homework and has
            determined that this defense expert possesses the
            requisite qualifications at that time.

      At oral argument before this Court, appellant government

counsel asserted that a retest would have delayed the trial by

one and a half months.      Appellate defense counsel asserted that

consultation with Dr. Blake would have taken only “a couple of

days,” and a retest could have been accomplished within 24 hours

after Dr. Blake received the samples.

      When trial on the merits began on June 12, 1996, the defense

did not present any expert testimony at trial.       The record does

not reflect whether defense counsel consulted further with Dr.

Conneally after the military judge denied the request to employ

Dr. Blake.




                                      11
United States v. McAllister, No. 00-0252/AR


                                 Discussion

      Appellant now contends that the military judge was arbitrary

and capricious in denying the defense requests to substitute Dr.

Blake for Dr. Conneally, retest the unknown material found under

PFC Shanklin’s fingernails, and verify that the blood samples

used by the Government’s laboratory was actually appellant’s.

The Government argues that appellant was provided with “more than

ample expert assistance” and that the military judge did not

abuse her discretion by denying the request for retesting,

because appellant failed to identify any substantive defects in

the chain of custody or point to any evidence of contamination.

      When an accused asks for expert assistance, “he must

demonstrate the necessity for” it.            United States v. Garries, 22
MJ 288, 291 (CMA), cert. denied, 479 U.S. 985 (1986).           An accused

is not entitled to a specific “expert of his own choosing,” but

is entitled only to “competent assistance.”           United States v.

Burnette, 29 MJ 473, 475 (CMA), cert. denied, 498 U.S. 821

(1990).   We review a military judge’s decisions on requests for

expert assistance for abuse of discretion.           United States v.
Short, 50 MJ 370, 373 (1999), cert. denied, 528 U.S. 1105 (2000).

      The necessity for expert assistance is not at issue in this

case.   The only issue is whether appellant was provided

“competent assistance.”

      In this case, the DNA testing was done in 1995 and appellant

was tried in 1996.      At that time, PCR testing was relatively new.

Indeed, many appellate courts were still struggling to determine

if PCR testing was sufficiently reliable to be admissible.           See 2

Paul C. Giannelli & Edward J. Imwinkelried, Scientific Evidence §


                                      12
United States v. McAllister, No. 00-0252/AR


18-5(A) at 53-54 n. 165 (3d ed. 1999); see also Federal Judicial

Center, Reference Manual on Scientific Evidence [hereafter 1994

Reference Manual] 277 (1994).

      With the rapid growth of forensic-science techniques, it has

become increasingly apparent that complex cases require more than

general practitioners.      See Edward J. Imwinkelried, Expert

Witness: An Unheralded Change, The National Law Journal at A10

(February 5, 2001).      Well before this case was tried, courts

began finding that forensic DNA testing was beyond the ken of

many traditional “experts.”       See 1994 Reference Manual at 63; see
also Federal Judicial Center, Reference Manual on Scientific

Evidence 490 (2d ed. 2000) (“Courts have noted the lack of

familiarity of academic experts--who have done respected work in

other fields--with the scientific literature on forensic DNA

typing.”).

      The prosecution’s DNA expert in this case testified that DNA

initially was used for medical research, to identify genes that

cause diseases.     She testified that her employer, LabCorp,

divided its operation into three functional areas: medical
diagnosis, paternity testing, and forensic testing.      Finally, she

testified that, in the short time between the DNA testing of the

evidence in this case and appellant’s trial, tests for two

additional genetic systems were implemented at her laboratory.

      Defense counsel asserted, without contradiction by the

prosecution, that there were no DNA testing laboratories in

Hawaii.   Thus, the defense was required to find an appropriate

expert in mainland United States.




                                      13
United States v. McAllister, No. 00-0252/AR


      Dr. Conneally’s curriculum vitae demonstrates that his

expertise was in the area of medical genetics, not forensic

testing.    He told appellant’s defense counsel that appellant

needed an expert in forensic PCR testing.         Dr. Blake is an expert

in forensic testing.

      The substitution of Dr. Blake for Dr. Conneally or the

addition of Dr. Blake to the defense team would not have incurred

any increased cost to the Government.         In this case appellate

government counsel have asserted that the trial might have been

delayed 6 weeks, while appellate defense counsel have insisted

that it would have taken only a “couple of days” for defense

counsel to consult with Dr. Blake and 24 hours to retest the

sample.    At trial and on appeal, government counsel did not

assert that a delay of 6-8 weeks would have prejudiced their

case.

      The DNA evidence was the linchpin of the prosecution case.

It excluded all possible suspects except appellant.         Appellant

was on trial for murder, facing a life sentence, and needed the

tools to competently test the prosecution’s DNA evidence.         On its

face, the Government’s DNA evidence appeared incomplete, because

it was not subjected to the tests for two additional genetic

systems that were developed after the Government’s evidence was

first tested.     The two additional tests were evidence of the

rapid pace of development in the area of PCR testing.

      While defense counsel was not as articulate as we would like

in explaining why Dr. Conneally could not provide “competent

assistance,” it is clear from the record as a whole that the

defense needed expert assistance in the technical aspects of PCR


                                      14
United States v. McAllister, No. 00-0252/AR


testing, not the general scientific principles underlying it.             It

is also clear from the military judge’s exhortation -- “[D]on’t

make this DNA evidence into something more than it really is” --

that she did not fully appreciate the complexities or importance

of the DNA evidence and the rapidly advancing technology of DNA

testing.

      Appellant needed more than generalized expertise in genetic

medical diagnosis; he needed specific assistance in the then-new

and rapidly evolving techniques of PCR testing.           Appellant needed

an expert to testify how many genetic systems were capable of

being compared with the technology then available.           He needed an

expert to challenge or contradict Ms. Clement’s assertion that

additional tests probably would not exclude appellant as a

suspect.    Dr. Conneally either could not or would not provide

those tools.    The defense proffer was that Dr. Blake could have

provided those tools at no additional cost to the Government.

      The defense request for Dr. Blake was timely.          Nineteen days

after the request for Dr. Conneally was approved, the defense

informed the military judge that they needed an expert in PCR

testing.    Almost a month before trial, the defense specifically

requested Dr. Blake.      There is no evidence of bad faith or

witness shopping, and no indication that the prosecution would

have been prejudiced by any delay.            See generally United States
v. Miller, 47 MJ 352, 358 (1997) (factors to be considered           in

deciding whether to delay a trial).

      The military judge did not focus on the issue whether Dr.

Conneally was able or willing to provide the needed expertise.

Instead, she focused on taking defense counsel to task for


                                      15
United States v. McAllister, No. 00-0252/AR


requesting an expert who was either unable or unwilling to

provide what the defense needed, i.e., expertise in PCR testing.

See United States v. Weisbeck, 50 MJ 461, 465-66 (1999) (military

judge abused discretion by denying expert assistance that went to

heart of defense and would have delayed trial only 6 weeks, and

military judge focused only on “holding the defense’s feet to the

fire”).

      We conclude that the military judge’s focus on holding the

defense’s feet to the fire arbitrarily deprived appellant of the

tools he needed.     Accordingly, we hold that the military judge

abused her discretion.

      Although appellant did not receive the competent expert

assistance that was necessary, we are unable to determine whether

the court-martial’s findings of guilty were “substantially swayed

by the error.”     Kotteakos v. United States, 328 U.S. 750, 765
(1946).   In our view, the interests of justice will be best

served by returning this case to the Judge Advocate General and

giving appellant an opportunity to demonstrate to the Court of

Criminal Appeals, with the assistance of an expert in PCR
testing, how he would have changed the evidentiary posture of

this case if the military judge had granted his request for Dr.

Blake.    See United States v. Curtis, 31 MJ 395 (CMA 1990).

    Legal and Factual Sufficiency (Specified Issues I and II)

      Appellant asserts that the court below made numerous

findings of fact that are unsupported by the record.     Among the

asserted factual errors are the following:




                                      16
United States v. McAllister, No. 00-0252/AR


      (1) The court below found that “Ms. McCloud saw a white car

driving away” (unpub. op. at 4); she testified only that she saw

a white car in the parking lot.

      (2) The court below found that Kijafa Walker “ran outside

and requested help” from SGT Robinson (unpub. op. at 4).

Appellant asserts that Kijafa made “small talk” with SGT Robinson

and then told him that she could not awaken PFC Shanklin.    The

record of trial reflects that Kijafa “started in with small talk”

and then told SGT Robinson that she could not awaken PFC

Shanklin; and that she then asked to speak with Mrs. Robinson.

      (3) The court below found that appellant responded to SGT

Robinson’s request to “come over to the quarters” by

spontaneously asking, “Why is Carla dead?” (Unpub. op. at 4)

(comma omitted after “Why” in unpublished opinion); the record

reflects that Kijafa initially told the CID that she told

appellant that PFC Shanklin “might be dead,” but that she

recanted that statement at trial.

      (4) The court below stated: “Appellant’s alternative

explanation for the scratches [on his hands and arms] was that

they occurred while he was working on his car.”    Unpub. op. at 6.

Appellant asserts that no member of the defense team ever claimed

that he was scratched while working on his car.

                                 Discussion
      The Courts of Criminal Appeals are unique in that they are

charged with “the duty of determining not only the legal

sufficiency of the evidence but also its factual sufficiency.”

United States v. Turner, 25 MJ 324 (CMA 1987).    They must be

“convinced of” an appellant’s “guilt beyond a reasonable doubt.”


                                      17
United States v. McAllister, No. 00-0252/AR


Id. at 325.    If our Court is in doubt whether the court below

properly determined the factual sufficiency of the evidence, the

remedy is to remand the case for a proper factual review of the

findings of guilty.      Id.   Our Court “will not overturn findings

of fact by a Court of Criminal Appeals unless they are clearly

erroneous or unsupported by the record.”      United States v.

Tollinchi, 54 MJ 80, 82 (2000), citing United States v. Avery, 40

MJ 325, 328 (CMA 1994).

      In this case, we need not decide whether the factual-

sufficiency determination by the court below was defective, in

light of our decision regarding the Granted Issue and Specified

Issue III.

                                  Decision
      The decision of the United States Army Court of Criminal

Appeals is set aside.      The record of trial is returned to the

Judge Advocate General for remand to the Court of Criminal

Appeals.    The Judge Advocate General will provide $5000 to

appellant for employment of Dr. Blake or another equivalent

expert.    Thereafter, appellant will have 90 days to file
supplemental pleadings with the court below, which may order a

factfinding hearing if the additional pleadings make it

necessary.    The court below will reconsider the factual and legal

sufficiency of the evidence in light of any additional matters

submitted by appellant, taking specific cognizance of the factual

errors asserted by appellant as the basis for Specified Issue I.

In the alternative, the court below may order a rehearing.




                                      18
United States v. McAllister, No. 00-0252/AR


CRAWFORD, Chief Judge (dissenting):

     Contrary to the majority’s view that “[t]he necessity for

expert assistance is not at issue in this case,” ___ MJ at (13),

I believe the sole issue is whether appellant demonstrated that

Dr. Blake’s expert assistance was necessary.   A concession that

an appellant is entitled to interpretive assistance from one

expert does not, ipso facto, turn a necessity-for-a-second

expert question into an adequacy-of-expert-assistance inquiry.

That appears to be what the majority has done.   Accordingly, I

respectfully dissent.

     Upon a showing of necessity, any accused is entitled to

competent assistance of an expert.    See Ake v. Oklahoma, 470

U.S. 68 (1985); United States v. Gunkle, 55 MJ 26, 31 (2001);

United States v. Short, 50 MJ 370, 372 (1999), cert. denied, 528

U.S. 1105 (2000); United States v. Ndanyi, 45 MJ 315, 319

(1996); United States v. Burnette, 29 MJ 473, 475 (CMA), cert.

denied, 498 U.S. 821 (1990); United States v. Garries, 22 MJ 288

(CMA), cert. denied, 479 U.S. 985 (1986).   This Court has

adopted a three-pronged test for showing that expert assistance

is necessary.   United States v. Gonzalez, 39 MJ 459, 461, cert.

denied, 513 U.S. 965 (1994).   See United States v. Ford, 51 MJ

445, 455 (1999).   It is the defense’s burden to show (1) why the

expert is needed; (2) what such expert assistance would

accomplish for the defendant; and (3) why   defense counsel is
United States v. McAllister, No. 00-0252/AR


“unable to gather and present the evidence that the expert

assistant would be able to develop.”    Once defense counsel has

met this Gonzalez test and shown necessity, the Government must

provide “competent” expert assistance.    See Ndanyi, 45 MJ at

319.    Additionally, “[d]efense counsel are expected to educate

themselves to obtain competence in defending an issue presented

in a particular case.”    United States v. Kelly, 39 MJ 235, 238

(CMA), cert. denied, 513 U.S. 931 (1994).

       By specifically approving the defense request to hire Dr.

Conneally, the Government conceded that appellant was entitled

to expert assistance in interpreting the DNA findings of

LabCorp, and nothing more.    See RCM 703(d), Manual for Courts-

Martial, United States (1995 ed.).    The Rules for Court-Martial

are not written to provide trial defense counsel with “a credit

card” once necessity for one expert witness is established.      If

Dr. Conneally was unable to provide the advice for which money

was appropriated, then it was incumbent on defense counsel to

demonstrate, anew, necessity, using the Gonzalez test, for Dr.

Blake.    To say that because money had been set aside for one

expert (Dr. Conneally) for a particular purpose, that money

belonged to defense counsel and could automatically go to a

different expert (Dr. Blake) for different assistance is

contrary to RCM 703(d).




                                  2
United States v. McAllister, No. 00-0252/AR


     The sole hypothesis under which trial defense counsel

argued the necessity of Dr. Blake’s expert assistance was that

the victim’s fingernails (and skin under the fingernails from

which DNA analysis was made) were somehow “contaminated.”         Dr.

Blake was not shown to be a relevant and necessary expert

witness on the subject of contamination.       Accordingly, the

military judge properly denied the defense’s request to

substitute Dr. Blake for the previously funded Dr. Conneally.

                               FACTS

     Detailed defense counsel requested the general court-

martial convening authority to approve employment of Dr. Patrick

M. Conneally, Ph.D., an expert consultant in the field of DNA

analysis, on March 20, 1996.   In support of his request,

detailed defense counsel stated:

          Defense believes that it is necessary that an
          expert consultant review the Government’s DNA
          analysis, review the Government’s findings and
          procedures, independently analyze the data, and
          familiarize defense counsel with DNA uses
          generally.

Later in the same request defense counsel wrote:       “Should

Government grant Defense’s request for Dr. Conneally’s services,

there is the probability that Dr. Conneally will testify as a

Defense expert witness in the case of U.S. v. McAllister.”

Defense counsel had been in possession of LabCorp’s (see ___ MJ

at (6), infra) findings and report for 2 months prior to this

request to employ Dr. Conneally.       Presuming defense counsel to

                                   3
United States v. McAllister, No. 00-0252/AR


be both competent and ethical, we must presume that defense

counsel and Dr. Conneally talked about LabCorp’s report and PCR

testing procedures prior to defense counsel’s March 20 request

to employ Dr. Conneally as an expert.    On April 4, 1996, the

convening authority approved Dr. Conneally’s employment, as well

as that of another expert, Dr. Hardman, a forensic pathologist.

     Pursuant to a government motion to admit DNA evidence, the

military judge held a hearing on April 23, 1996.    Prior to

taking testimony, the military judge asked defense counsel

whether they were “satisfied” with their DNA expert (Dr.

Conneally).   Civilian defense counsel responded:

          He was approved at least for -- to act as a
          consultant. There was not approval for him for
          funding for trial testimony. We did send him
          the materials. We did have a consultation. He
          recommended, frankly, that we retain someone who
          is an expert in PCR testing, specifically.

After determining that defense counsel was shopping for an

expert and “attempting to contact Dr. Conneally to get his

suggestions on someone, hopefully out of California,” the

military judge cautioned counsel that they needed to submit the

request for any additional expert witnesses first to the

convening authority and that it was “not up to the Government to

find” their expert witnesses for them.

     Trial counsel later on presented witnesses who were present

at PFC Shanklin’s autopsy.   In particular, evidence was adduced

that explained how Dr. Ingwersen cut the deceased’s fingernails

                                 4
United States v. McAllister, No. 00-0252/AR


and how these fingernails were collected and preserved.             Defense

counsel’s cross-examination clearly focused on the possibility

of contamination during the autopsy process.1           In particular,

counsel explored whether the deceased’s hands had been covered

prior to the autopsy.      Questioning revealed that PFC Shanklin’s

hands and feet had been wrapped in paper bags prior to the

autopsy.    Defense counsel also asked whether any of the

participants in the autopsy coughed or sneezed during the

procedure.

      Mr. Overson, from the CID lab in Atlanta, explained his

receipt of the items to be tested from the CID office in Hawaii

and the transfer of these items to LabCorp for testing.             Again,

the theme of potential contamination played a prominent part in

the examination and cross-examination of Mr. Overson.             Counsel

established that Mr. Overson saw dirt or a substance that

appeared to be dirt under the deceased’s fingernails, and that

the deceased used fingernail polish.         Cross-examination also

established that Mr. Overson “did not see any apparent blood,

apparent skin,” or “any apparent other substance extraneous to

the fingernail scrappings which I would call a definite

biological substance.”


1
  As an example, defense counsel asked whether those assisting the pathologist
and collecting evidence were wearing gloves, medical clothing, masks, or
hairnets; how many other people were in the room; whether the envelope into
which the fingernails were dropped after clipping was sealed; and whether the
CID agents who collected evidence at the autopsy wore medical accoutrement on
their return trip to the office.

                                      5
United States v. McAllister, No. 00-0252/AR


      Following Mr. Overson, Ms. Meghan Clement, Assistant

Director of Forensic Identity Testing at Laboratory Corporation

of America Holdings Incorporated, was qualified as an expert

witness.    Ms. Clement testified that the “scientific community

has been conducting DNA testing probably since the late 70s,

early 80s.”    She noted that “the scientific community has

reached the conclusion that as long as a test is performed

properly and proper controls are employed that DNA testing in a

forensic arena is reliable and acceptable.”           Ms. Clement

explained that the forensic scientific community recognized

three types of DNA testing, one of which, polymerase chain

reaction (PCR), was used in appellant’s case.2           She observed that

there were “numerous major laboratories, including the Federal

Bureau of Investigation,” that were “doing some type of PCR

analysis or initiating it in validation studies.”            She remarked

that LabCorp was certified by the College of American

Pathologists (CAP) and that the laboratory participated in

proficiency testing programs sponsored by CAP as well as Selmark

Diagnostics from London, England.




2
  The technique called polymerase chain reaction was invented by Kary Mullis
in 1985. It enables an examiner to “find and amplify specific segments of
DNA from complex mixtures.” Griffiths et al, Modern Genetic Analysis 21
(W.H. Freeman and Co., New York (1999)). “PRC is very sensitive and can
detect target sequences that are in extremely low copy number in a sample.”
Additionally, this technique requires no lengthy cloning procedures and “no
restriction digestion of the substrate DNA is needed..., because the primers
will hone in on the appropriate sequence of native DNA.” Id. at 326.

                                      6
United States v. McAllister, No. 00-0252/AR


     At trial, Ms. Clement testified that LabCorp tests ten

areas (or particular genetic systems) for DNA.   In the case at

bar, LabCorp examined eight particular DNA target areas -- DQ

Alpha, LDLR, GYPA, HBGG, D7S8, GC, D1S80, HUMTHO1.   When these

specimens were initially submitted for examination, LabCorp was

testing only eight different areas for DNA.   The two other

areas, which LabCorp had added by the time of trial, were not

validated when the samples related to appellant’s case were

undergoing analysis.

     The best answer to the majority’s supposition that

additional testing may create a different result can be found in

the record of trial.   During recross-examination of Ms. Clement,

defense counsel asked “how can it be said with any assurance

that matches would not be found if the tests were carried out to

their fullest extent?”   Ms. Clement answered:

          With DNA analysis if there is a difference
          at a single genetic system, in other words,
          if there is a characteristic which is not
          found in evidentiary materials, then that
          person is excluded immediately. Whether
          you test 1 system or whether you test 10
          systems they will be excluded the minute
          you find one characteristic which is different.

The remainder of defense counsel’s cross-examination focused on

showing that the DNA may have been contaminated through sneezing

or improper handling of the fingernails.    Ms. Clement explained

that “[w]ithin our laboratory there have been a couple instances

of contamination which has been detected.   Generally, the most

                                 7
United States v. McAllister, No. 00-0252/AR


common form of contamination is by the analyst [sic] themselves.

And we have complete profiles on every technologist who works

there.”   If additional DNA testing, as the majority wishes,

found contamination by a technologist at LabCorp, it would

provide no benefit to appellant unless appellant can somehow

make a laboratory analyst in the Research Triangle of North

Carolina a suspect in a murder that took place in Hawaii.

      At the time she announced her findings on the Government’s

motion to admit LabCorp’s DNA testing results, the military

judge informed counsel that any defense request for further DNA

testing would need to be submitted to the United States not

later than close of business on April 29.3          On April 29,

government counsel received a FAX from the accused’s civilian

defense counsel requesting the retesting of “alleged DNA

fingernail material” by Forensic Science Associates in Richmond,

California.

      At an Article 39(a) session on May 15, 1996, civilian

defense counsel asked the military judge to allow substitution

of Dr. Edward Blake for Dr. Conneally as the defense DNA expert.

Counsel informed the military judge that Dr. Blake ran Forensic


3
  Defense counsel informed the judge that Dr. Conneally had not appeared at
the April 23 Article 39(a), UCMJ, 10 USC § 839(a), session due to his
unavailability. Although there was some uncertainty whether Dr. Conneally
would testify because his rates exceeded the amount allowed under the Joint
Travel Regulation, the military judge announced that “money’s not going to be
the determining factor on whether he comes. If he has got pertinent
information, I can order that a subpoena be issued and he testify as a $35.00
a day witness if he’s got matters relevant to a case that the United States
is a party. Marshals can make sure he comes.” R. 366.

                                      8
United States v. McAllister, No. 00-0252/AR


Science Associates, a DNA testing laboratory in California, and

that he would retest the fingernail evidence.     Defense counsel

stated that Dr. Blake had labeled LabCorp as a “paternity

testing lab” without “specific experience in criminal forensic

testing.”    In response to the military judge’s question to

civilian defense counsel as to whether Dr. Blake’s California

lab was certified, the following took place:

            CDC:   I believe so----

            MJ:    Because it’s not listed in the----

            CDC:   ---I would have to----

          MJ:   It is not listed in the offer nor is it listed
     in the qualifications for Doctor Barker [sic] nor-- Mr.
     Barker [sic] nor or [sic] any qualification listed down for
     him.

          CDC:     He is the person who invented one of the DNA
     tests----

          TC: I don’t believe he invented DQ Alpha, ma’am.        The
     person who invented DQ Alpha got the Nobel Prize.

          MJ: Yeah, that’s my recollection too, although it’s
     certainly not in evidence. Because in the, I guess what
     passes to be a curriculum vitae for Doctor Barker [sic], he
     lists only two areas that that lab tests in whereas LabCorp
     tested, according to the exhibits submitted along with the
     government’s response, that the testing was actually done
     like in eight different areas. So, how on earth can this
     lab retest what it doesn’t have the capacity to retest?
     And there’s no showing of any kind of controls that the
     requested lab employees, there’s no showing of any testing,
     I guess that’s done by peer review organizations on any
     sort of regular basis. In other words, I guess what I’m
     asking for is even if this retesting were done, how would
     this-- how would you set a foundation for this under United
     States versus Youngberg or Merrell Dow case? Because that
     was the whole point of Megham Clement coming and testifying
     was to lay the foundation which is required to be laid for

                                      9
United States v. McAllister, No. 00-0252/AR


     scientific testimony. That’s not in the offer here,
     because I think what I’m reading is the basis of your
     motion is you think the convening authority applied an
     incorrect standard in reviewing the request for independent
     testing. So, I guess my question is what do you think the
     standard is for testing DNA evidence? Because what I read
     is that there are some broad statements that you have to,
     you know, clip the nails in half and I don’t recall Meghan
     Clement ever testifying about whether nails were clipped or
     not clipped. What I recall her saying is that the
     materials are still available for retesting. Does the
     government-- do you know?

(Emphasis added.)   At that point defense counsel adopted the

“possibility of contamination” theory as a reason for needing

Dr. Blake’s expertise.    After applying the law announced by this

Court in United States v. Gonzalez, United States v. Kelly, and

United States v. Garries, all supra; and United States v.

Mosley, 42 MJ 300 (1995), the military judge found that defense

counsel had not met his burden of showing what Dr. Blake’s

laboratory would contribute to the defense case other than

providing a mere possibility of something being discovered.

     Having failed to show the necessity for Dr. Blake’s expert

assistance, counsel then argued his alternative theory to

contamination: a failure in the chain of custody that caused

defendant’s blood sample to be mislabeled as a reason for

needing Dr. Blake’s assistance.    Finally, defense counsel argued

“fundamental fairness.”   In reply the military judge stated:

          MJ: I see your point but there still has to be some
     kind of showing of likelihood of error for it to arise to
     an issue of fundamental fairness. Remember Mosley was a
     $250.00 EME test that had never been performed.


                                  10
United States v. McAllister, No. 00-0252/AR


                               * * *

           MJ: So, that is a different situation. That would be
     like you coming in and saying, “Doctor Blake only performed
     DNA for the government on two DNA areas, yet there is a lab
     called LabCorp that could test in eight different areas
     which would reduce the likelihood of an incorrect result.”
     Then I might look at it differently if there are tests that
     would be available that could do more. But that’s not what
     you’re asking for here. And this is not a Mosley type
     issue when you’re talking about $250.00 EME test. This
     does not arise to an issue of fundamental fairness in this
     case.

     Lastly, civilian defense counsel said:   “The defense

position really is that we would like to substitute Dr. Blake

for Dr. Conneally----“   The military judge correctly noted that

this substitution-of-experts issue was not before the court

because the “convening authority, in good faith, relied upon the

defense representation, looked at Dr. Conneally’s qualifications

... [and] gave the defense what they wanted.”   This Court has

never held that once a convening authority funds a necessary

defense expert that those funds then come under the dominion and

control of either defense counsel or the funded expert witness

for use to hire different experts as they see fit.

                            DISCUSSION

     RCM 703(d) clearly states that it is the convening

authority who “authorize[s] the employment” and “fix[es] the

compensation for the expert,” not the defense counsel.    The only

remedy for refusal to provide judicially determined expert help

is abatement of the proceedings.


                                11
United States v. McAllister, No. 00-0252/AR


     Accordingly, one must then look at the military judge’s

findings to see whether she abused her discretion by refusing to

order substitution of Dr. Blake and his Richmond, California,

laboratory for Dr. Conneally.

     When one sorts through the fog surrounding defense

counsel’s three written requests for substitution of DNA expert

assistance, argument of counsel, and responses to questions in

the record of trial, it is obvious that defense counsel wanted a

retest of the victim’s fingernails based on his theories that

the chain of custody which got appellant’s blood sample to

LabCorp in North Carolina was faulty and that there was a

possibility of contamination.   Defense counsel failed to

specifically allege or show that Dr. Conneally was incompetent

to render the assistance for which he was hired.

     There is absolutely no allegation that LabCorp’s findings

were somehow improper unless they had received contaminated

fingernails or tainted blood.   Counsel was unable to identify

any irregularity in the testing of the deceased’s fingernails or

even make an offer of proof that would warrant hiring Dr. Blake

and his laboratory.   For example, counsel never argued how

additional testing might point to another theory of the crime or

cause of death.   Cf. Barnabei v. Angelone, 214 F.3d 463, 474 (4th

Cir.) cert. denied, 530 U.S. 1300 (2000).   Accordingly, defense




                                12
United States v. McAllister, No. 00-0252/AR


counsel did not demonstrate necessity for this second DNA

expert.

     The chain-of-custody issue and the potential mix-up of

vials of blood, to include appellant’s, was thoroughly litigated

at trial.   Defense counsel’s piercing cross-examination failed

to undermine the reliability of the handling and custody of

either the victim’s or appellant’s vials of blood drawn in

Hawaii.

     The issue of potential contamination was more than

thoroughly explored by defense counsel during his cross-

examination of those witnesses who conducted the autopsy, as

well as his cross-examination of Ms. Clement.   The defense

theory was that the deceased’s fingernails had become

contaminated in some manner by those conducting the autopsy

(such as sneezing on them) and as a result of that

contamination, the DNA test was unreliable.   Testimony revealed,

however, that the victim’s hands were wrapped before the autopsy

and palms were facing down after being exposed.   Therefore,

there was much less opportunity for any contaminates (and none

were ever shown to exist) to get under the nails.    Further

questioning showed the victim’s fingernails were short anyway.

     Expert witnesses are not necessary for a knowledgeable

defense counsel to adequately test a chain of custody or the

possibility of sample contamination.   Appellant’s civilian


                                13
United States v. McAllister, No. 00-0252/AR


defense counsel was well prepared and did a good job of

contesting both areas.    The court members obviously decided that

neither was an impediment to finding Specialist McAllister

guilty.   As defense counsel failed to demonstrate why Dr. Blake

was “necessary” under this Court’s Gonzalez test, the military

judge did not err.    The mere possibility of assistance from an

expert does not rise to the level of necessity.      See Mosley, 42

MJ at 307 (Crawford, J., dissenting); Moore v. Kemp, 809 F.2d

702, 712 (11th Cir.), cert. denied, 481 U.S. 1054 (1987).

                     LEGAL AND FACTUAL SUFFICIENCY

     Defense counsel had two theories of the case:     (1) PFC

Shanklin died of natural causes (a seizure); and (2) somebody

murdered her but it wasn’t appellant.

     Counsel’s theory that PFC Shanklin died of natural causes

was premised on the fact that the victim had passed out on one

or two occasions in the Hawaiian heat while standing at

attention during formations.    The findings of the autopsy --

that the victim died as a result of suffocation due to

strangulation -- certainly did not advance this position.

     Appellant’s second theory, that someone other than him

killed PFC Shanklin, can also be put to rest by the evidence.

Contrary to the defense’s assertion, the DNA evidence is not the

only evidence that places appellant at the murder scene or shows




                                  14
United States v. McAllister, No. 00-0252/AR


that he had the opportunity to kill the victim.    Appellant

convicted himself without ever taking the stand.

     Appellant’s statements to his fellow soldiers; past

physical altercations with the victim, which included periods of

choking; his futile attempts to get Staff Sergeant Rogers to

manufacture an alibi for him; his mysterious visit to Sergeant

Grady with a box and a request for Grady to get rid of that box

on the morning after the murder; as well as appellant’s highly

incriminating remark (“Why, is she dead?”) when first told that

“something happened to” PFC Shanklin are legally sufficient for

a rational factfinder to convict appellant of PFC’s Shanklin’s

murder.   See Jackson v. Virginia, 443 U.S. 307, 319 (1979);

United States v. Turner, 25 MJ 324 (CMA 1987).    While I share

the majority’s concern with some of the minor factual

discrepancies in the Court of Criminal Appeals decision, I do

not find the factual-sufficiency determination by the court

below to be defective.




                                15
United States v. McAllister, 00—0252/AR



    SULLIVAN, Judge (dissenting):

    The majority sets aside the Court of Criminal Appeals’

decision in appellant’s case which affirmed his conviction for

murder and a life sentence.    It does so on the basis that the

judge abused her discretion in denying appellant’s request for

expert assistance from Doctor Blake and denying his request for a

continuance and a retest of a DNA sample.    The majority (___ MJ

at (16)) concludes that the judge acted “arbitrarily” in denying

these motions because she “focus[ed] on holding the defense’s

feet to the fire” for “requesting an expert who was either unable

or unwilling to provide” tools to challenge the Government’s DNA

evidence.    See generally United States v. Weisbeck, 50 MJ 461,

466 (1999).    I dissent.


    The premise of the majority opinion is flawed and,

accordingly, I cannot join its conclusion.    In my view, the

military judge was “focused” on the defense’s burden to show its

requests for government assistance were necessary for a fair

trial as required by our case law.    See United States v. Kelly,

39 MJ 235 (CMA), cert. denied, 513 U.S. 931 (1994).      The military

judge stated in this regard:


            [W]hen the defense makes a request to the
            convening authority for an expert by name
            and the convening authority grants it,
            then the convening authority can rely that
            the defense has done its homework and has
            determined that this defense expert
            possesses the requisite qualifications at
United States v. McAllister, 00-0252/AR


           that time. It was stated that Doctor
           Conneally could provide assistance to the
           defense in this case and now you're
           telling me he's not even a forensic
           scientist. Well I guess he teaches DNA
           analysis, it still appears to me that one
           who teaches DNA analysis could review the
           evidence in this case and give a helpful
           opinion, but there’s still nothing in here
           showing why Doctor Blake is necessary in
           this case.

R. 483   (emphasis added).


    Previously, the judge denied a defense request for retesting

appellant’s blood sample, relying on cases from our Court which

require a necessity approach to these requests as well.   She

ruled:

           There’s nothing that has been raised by
           the defense in this motion to show
           anything [more] than the mere possibility
           of something being discovered should there
           be retesting. In other words, what I’m
           saying in a roundabout fashion, is that
           the standards that I must employ in--let
           me see, I’ve got--I guess I should put the
           cases on the record, in United States v.
           Gonzales, at 39 MJ 459; United States v.
           Kelly, at 39 MJ 235; United States v.
           Garries, 23 MJ 288; United States v.
           Mosley, at 42 MJ 300, which applies the
           Supreme Court standards in expert
           assistance provided by the Government for
           the defense case. But those standards
           have not been met in this motion and the
           convening authority applied the right
           standards when he was reviewing under RCM
           703.

    She later said on this same request:

           I’ll make a finding here that Special
           Agent Forringer testified that he took
           custody of Specialist McAllister’s vial of
           blood after watching it been [sic] draw


                                 2
United States v. McAllister, 00-0252/AR


          [sic] and watching the vial. Special
          Agent Benavidez testified that he took
          custody of the Jones’ vial; he saw it
          being labeled; and he [had] custody and
          control over that vial. The two vials
          were transported by different agents in
          different vehicles, stored in different
          locations. The chain of custody has
          already been litigated at the prior
          Article 39(a) session. Maybe all of the
          labeling was not 100% perfect but that’s
          not what a chain of custody requires.
          There is no showing of a likelihood or a
          true possibility of mix-up of those
          samples. On the vial of Specialist
          McAllister, the chain of custody had the
          name McLasiter, that is where Mr. Overson
          called to verify the name of the
          individual to verify that the correct
          sample was about to be tested. And I find
          that he did verify the identity of the
          individual who had actually donated that
          particular sample. So, there is nothing
          to suggest to me that there is any real
          possibility of a mix-up of samples within
          the chain of custody procedures. So, that
          does not support a retest and neither
          does--at government expense, neither does
          the possibility of contamination in a lab
          just because of the difficulty in avoiding
          contamination in that setting when there
          is no real showing of a true possibility
          of contamination in that particular lab
          doing these particular tests. That does
          not say that the defense cannot, at its
          own expense, have a retest, provided it
          can be accomplished by the day of trial in
          this case. Or cannot cross-examine the
          witness on the inherent validity of DNA
          analysis because of the complexities of
          maintaining a contamination free
          environment. Those will be matters for
          the members to determine or to weigh in
          weighing the value of that evidence in
          their own minds. But I am denying the
          defense motion to compel the Government to
          pay for a retest and to grant a
          continuance until such time as that should
          be done. There’s just not a sufficient



                                3
United States v. McAllister, 00-0252/AR


          showing in this case to compel the
          Government to do it.

 R. 446-47    (emphasis added).


    The Court of Criminal Appeals also affirmed appellant’s

conviction.    It said:


            As to the second DNA expert request, we
          apply the same standard, that is,
          appellant must meet his burden of
          demonstrating the necessity for Dr.
          Blake’s services. In approving the
          defense request for Dr. Conneally, the
          convening authority gave the defense more
          than they were entitled to receive, i.e.,
          a specifically named expert consultant.
          Dr. Conneally’s curriculum vitae
          established him as an eminently qualified
          expert with over thirty years experience
          in medical genetics culminating in his
          current position as the Distinguished
          Professor of Medical Genetics and
          Neurology, Indiana University School of
          Medicine. His appointment to the defense
          team gave the appellant more than “the
          ‘basic tools’ necessary to present his
          defense.” Kelly, 39 MJ at 237 (citing
          Ake, 470 U.S. at 77). Appellant failed to
          advance any plausible reason why Dr.
          Conneally could not provide the necessary
          expert assistance. The request for Dr.
          Blake to be substituted for Dr. Conneally
          was not based on any inability on Dr.
          Conneally’s part to provide the necessary
          assistance. It was instead a thinly
          veiled attempt to get the re-test that had
          been denied by the military judge.
          Indeed, as noted by the convening
          authority in his denial of the requested
          substitution, the request for Dr. Blake
          was identical in nineteen of twenty-one
          paragraphs to the request for the re-test
          that had been denied. As the defense
          failed to demonstrate any reasonable
          necessity, the military judge did not
          abuse her discretion in denying the


                                  4
United States v. McAllister, 00-0252/AR


          defense request to substitute Dr. Blake
          for Dr. Conneally.

            As to the defense request for a re-test
          of the DNA specimen, we again apply the
          Garries reasonable necessity standard,
          that is the defense “must demonstrate
          something more than a mere possibility of
          assistance” from a re-test. See Robinson,
          39 MJ at 89. The defense request was
          based on (1) a possible mix-up of
          appellant’s blood specimen with that of
          SSG Jones, and (2) possible contamination
          of the fingernail specimen either at the
          crime scene or at the laboratory. We find
          the possibility of a mix-up of the blood
          specimens to be so infinitesimal as to be
          non-existent. The only “defect” that
          appellant could point to was the slight
          misspelling of his name on the DA Form
          4317. That “defect” was adequately
          explained by SA Forringer and is so de
          minimis as to have absolutely no effect on
          the chain of custody. As to the possible
          contamination, the defense failed to
          produce even a scintilla of evidence of
          any contamination. The defense merely
          asked speculative questions of[,] if
          someone sneezed or coughed on the
          decedent’s fingernails[,] could that have
          contaminated the specimen. That is a far
          cry from producing any evidence that any
          person did cough or sneeze on the
          decedent’s fingernails. The defense’s
          conclusional assertion, that there may
          have been contamination because DNA
          testing is by its nature sensitive, was
          unsupported by any evidence. In addition
          to failing to identify any defect in the
          chain of custody or any contamination of
          the sample, the defense failed to identify
          any laboratory error, any misconduct or
          negligence by any laboratory personnel, or
          any misinterpretation of the test results.
          Unlike the drug test in United States v.
          Mosely, 42 MJ 300 (1995), the DNA retest
          in the instant case would not have been
          minimal in terms of time and resources.
          We find that the military judge did not
          abuse her discretion in denying the


                                5
United States v. McAllister, 00-0252/AR


            defense request for a re-test of the DNA
            specimen.


Unpub. op. at 10-11 (first emphasis added; footnote omitted).



   In sum, the majority’s narrow view of the basis for the

military judge’s rulings in this case dictates the result it

reaches on this appeal.    See United States v. Weisbeck, 50 MJ at

466.   While I agree with the Weisbeck decision, I do not agree it

is applicable in this case.    Moreover, the evidence in this case

is more than sufficient under the test of Jackson v. Virginia,

443 U.S. 307, 319 (1979).    Accordingly, I dissent to the majority

effectively reversing a jury conviction of murder on the slender

reed which mistakes this case for the real injustice suffered in

Weisbeck.    There was no injustice in this trial and the

conviction should be affirmed.




                                  6
