                       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 October 17, 2006

                       Decided January 10, 2007

ERDMANN, J., delivered the opinion of the court, in which
EFFRON, C.J., and BAKER, J., joined.


STUCKY and RYAN, JJ., did not participate.


                                 Counsel

For Appellant: David P. Sheldon, Esq. (argued); Captain Julie
A. Caruso (on brief); Major Fansu Ku and Captain Charles A.
Kuhfahl.

For Appellee: Captain Larry W. Downend, (argued); Colonel John
W. Miller, Lieutenant Colonel Natalie A. Kolb, and Major William
J. Nelson (on brief).

Military Judges: Patrick K. Hargus (trial), Debra L. Boudreau
(trial), and Donna L. Wilkins (DuBay hearing).


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

     Judge ERDMANN delivered the opinion of the court.

     Specialist John C. McAllister was convicted at a general

court-martial of disobeying a superior commissioned officer and

unpremeditated murder, in violation of Articles 90 and 118,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. §§ 890, 918

(2000).   He was sentenced to a dishonorable discharge,

confinement for life, forfeiture of all pay and allowances, and

reduction to the lowest enlisted grade.   The convening authority

approved the sentence and the United States Army Court of

Criminal Appeals affirmed the findings and sentence.   United

States v. McAllister, No. ARMY 9601134 (A. Ct. Crim. App. Dec.

3, 1999).

     On August 2, 2001, this court determined that the military

judge erred by denying McAllister’s request for expert

assistance and refusing to permit a re-test of certain evidence

for the presence of deoxyribonucleic acid (DNA).   United States

v. McAllister (McAllister I), 55 M.J. 270, 276 (C.A.A.F. 2001).

We remanded the case, directing that the Judge Advocate General

of the Army provide funds for employment of an expert and that

the Court of Criminal Appeals “order a factfinding hearing if

the additional pleadings make it necessary.”   Id. at 277.    After

receiving a declaration prepared by an expert retained by the

defense which set forth laboratory results of a DNA re-test, the

Court of Criminal Appeals ordered a factfinding hearing pursuant



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

to United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).

United States v. McAllister (McAllister II), No. ARMY 9601134

(A. Ct. Crim. App. Dec. 9, 2003) (memorandum opinion on remand).

After the factfinding hearing, the Court of Criminal Appeals

again affirmed the findings and sentence.    United States v.

McAllister (McAllister III), No. ARMY 9601134 (A. Ct. Crim. App.

Oct. 28, 2005) (memorandum opinion on remand).    We granted

review to determine whether the denial of expert assistance to

the defense constituted a violation of McAllister’s right to

present a defense.1

       “Just as an accused has the right to confront the

prosecution’s witnesses for the purpose of challenging their

testimony, he has the right to present his own witnesses to

establish a defense.    This right is a fundamental element of due

process of law.”    Washington v. Texas, 388 U.S. 14, 19 (1967).

McAllister contends the factfinding hearing revealed that he was

improperly denied material evidence when the military judge

denied his request for expert assistance and DNA re-testing.    He

claims that this error “directly impacted [his] ability to

present a defense . . . [and] is clearly an error of

1
    On May 2, 2006, we granted review of the following issue:

       WHETHER APPELLANT’S RIGHT TO PRESENT HIS DEFENSE WAS
       VIOLATED WHEN HE WAS PREVENTED FROM EMPLOYING AND
       UTILIZING A NECESSARY DNA EXPERT AT HIS TRIAL AND
       WHETHER THAT ERROR WAS HARMLESS.



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

constitutional dimension.”     In light of the evidence derived

from DNA re-testing and revealed at the factfinding hearing, we

conclude that the military judge’s error had the effect of

denying McAllister the due process right to present evidence

establishing a defense.   Because we conclude that this error was

not harmless beyond a reasonable doubt, we reverse.

                               Background

     The facts relating to our determination that the military

judge erred by denying expert assistance to McAllister’s defense

are set forth in our initial opinion and will not be restated in

this opinion.    See McAllister I, 55 M.J. at 271-74.    In that

opinion, we remanded the case to provide McAllister “an

opportunity to demonstrate to the Court of Criminal Appeals,

with the assistance of an expert in [polymerase chain reaction]

testing, how he would have changed the evidentiary posture of

this case if the military judge had granted his request for [a

DNA expert].”    Id. at 276.

     Following that decision, McAllister employed Technical

Associates, Inc. (TAI), to review the previous DNA testing of

material found under the victim’s fingernails and to re-test

that material.   Mr. Marc Taylor, laboratory director for TAI,

provided a declaration setting forth his conclusions and results

of TAI’s new DNA testing.      Based on the content of that



63 M.J. 281 (C.A.A.F. 2006).

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

declaration, the Court of Criminal Appeals determined there were

“material questions of fact that might give rise to relief” and

directed a factfinding hearing.   McAllister II, No. Army

9601134, slip op. at 14.

     At the factfinding hearing, the military judge heard

testimony from Mr. Taylor concerning his review of the

Government’s original DNA tests and the TAI re-test.   The

Government’s DNA expert from the initial trial, Ms. Meghan

Clement, also testified about the initial DNA tests and her

review of Mr. Taylor’s re-test.   At the conclusion of the

factfinding hearing the military judge made extensive findings

of fact as well as conclusions of law.   The military judge found

that “the government has established beyond a reasonable doubt

that the court members’ findings of guilty would not have been

substantially swayed by the ‘alleged errors’ enunciated in Mr.

Taylor’s declaration” and that “[i]f the ‘new’ evidence had been

presented to the members at the trial in relation to other

evidence presented at trial, the members’ findings would have

been the same.”

     The Court of Criminal Appeals again affirmed the findings

and sentence, finding that “the verdict was not substantially

impacted by the military judge’s erroneous denial of expert

assistance for the defense at trial or by the fact that the




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

panel members did not hear the testimony of the defense DNA

expert.”   McAllister III, No. Army 9601134, slip op. at 16-17.

                              Standard

     Initially we must determine what standard we should apply

to review the impact of the DNA re-test and the other evidence

disclosed at the factfinding hearing.    McAllister argues that

the factfinding hearing demonstrated that “material and relevant

evidence was improperly excluded by the military judge and

[since] this exclusion directly impacted [his] ability to

present a defense, the denial of the relevant and necessary

defense expert [was] clearly an error of constitutional

dimension.”   As a result, McAllister argues that we cannot

affirm his conviction unless the Government demonstrates beyond

a reasonable doubt that the error was harmless.

     The Government argues that the military judge’s error in

denying McAllister expert assistance was “error . . . of an

evidentiary nature subject to a nonconstitutional harmless error

analysis.”    The Government further asserts that because the

post-trial testing did not present evidence that excluded

McAllister as a suspect, the error was harmless.

     Our initial opinion in this case did not identify the

standard under which any new evidence should be judged, since at

that juncture it was not possible to determine the significance

of any evidence that might have been presented at the DuBay



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

hearing.    If the military judge’s error was not of

constitutional dimension, the appropriate standard is whether

the court-martial’s findings of guilty were substantially

influenced by the error.   We have applied a four-part test to

evaluate prejudice under this standard:   “‘(1) the strength of

the Government’s case, (2) the strength of the defense case, (3)

the materiality of the evidence in question, and (4) the quality

of the evidence in question.’”    United States v. Clark, 62 M.J.

195, 200-01 (C.A.A.F. 2005) (quoting United States v. Kerr, 51

M.J. 401, 405 (C.A.A.F. 1999)).   On the other hand, “[i]f the

military judge commits constitutional error by depriving an

accused of his right to present a defense, the test for

prejudice on appellate review is whether the appellate court is

‘able to declare a belief that it was harmless beyond a

reasonable doubt.’”   United States v. Buenaventura, 45 M.J. 72,

79 (C.A.A.F. 1996) (citing United States v. Bins, 43 M.J. 79, 86

(C.A.A.F. 1995) (quoting Chapman v. California, 386 U.S. 18, 24

(1967))).

                             Discussion

     McAllister asserts that had he been provided the assistance

and testimony of a forensic examiner at his court-martial, the

defense would have been able to dramatically alter the

evidentiary landscape.   He argues that with the new evidence he

could have undermined the weight of the Government’s expert



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

testimony and its evidence and also could have presented the

evidence that there were other contributors of DNA on the

victim’s fingernails to raise a reasonable doubt.   As the

military judge’s ruling adversely impacted his ability to

present a defense, McAllister argues that the error was of

constitutional dimension and was not harmless beyond a

reasonable doubt.

     The Government argues that the factfinding hearing revealed

that any new evidence was “neither relevant nor necessary.”    The

Government asserts McAllister was not prevented from arguing

that some unknown person committed the offense at trial and that

the TAI DNA analysis merely confirmed what was known before --

that all known suspects other than McAllister were excluded.

Finally, the Government asserts that its strong circumstantial

case renders any error harmless regardless of whether that error

is tested under a constitutional or nonconstitutional standard.

     Mr. Taylor’s declaration and testimony addressed the

following:   the impact of the discovery of DNA from three

unidentified individuals on the victim’s fingernails; the

inability of the defense to properly rebut the Government’s DNA

expert regarding the significance of McAllister’s DNA being

found on the victim’s fingernails and the implication that dried

blood associated with McAllister’s DNA had been found on her

fingernails; and the inability of the defense to challenge the



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

procedures utilized by the Government’s expert in conducting the

initial test.   As we find the impact of the discovery of DNA

from three unidentified individuals to be dispositive of this

case, we need not address other aspects of Mr. Taylor’s evidence

or testimony.

     The military judge’s findings, as supported by evidence

presented at the factfinding hearing, reveal substantive

evidence that could have been beneficial to the defense at

trial.    During the re-test by TAI, DNA material from the

victim’s fingernails was again compared to known DNA samples

from McAllister, the victim, other potential suspects, and

individuals who may have been involved in some manner with the

victim.   In relative terms, McAllister’s DNA was present on the

victim’s fingernails in greater amounts than others.

Additionally, the re-test confirmed the DNA of the victim and

her two-year-old daughter on the fingernails.

     Significantly, TAI’s re-examination of the fingernails

revealed the presence of DNA from three previously unreported

contributors:   an unknown male contributor on a nail of the left

hand; an unknown female contributor on a nail of the right hand;

and an unknown contributor on a nail of the right hand.      Ms.




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

Clement, the Government expert from the original trial, agreed

that there was DNA from an unknown male and unknown female.2

        While noting that some of the difference between the

original DNA analysis presented at trial and the post-trial

analysis was the result of laboratory policy on reporting or not

reporting results, the military judge found:

        If a defense DNA expert had examined and tested this
        evidence prior to trial, the members would have been
        informed that there were profiles for at least two
        other unknown individuals present on [the victim’s]
        nails. The members would have also been told that
        there exists some trace alleles on [the victim’s]
        nails that belonged to a third unknown person.

        Had the defense been properly afforded expert assistance

prior to and at the original trial, the discovery of DNA from

three previously unidentified individuals would have been

presented to the members.    This new evidence could have been

used by the defense to attack the thoroughness of the original

test and the weight that the members should accord that

Government evidence.

        The new evidence, however, had a more significant potential

role.    The discovery of DNA from three unidentified individuals

-- evidence that was unavailable to the defense at trial -–

would have changed the evidentiary posture of the case.    The

2
  The disagreement between Mr. Taylor and Ms. Clement with
respect to the third unknown contributor involved the strength
of the indications that DNA was present in the sample. Ms.
Clement indicated that because of the absence of certain



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

original trial proceeded with nothing to contradict the

exclusive character of the Government’s DNA evidence.     The

apparent fact that all known suspects other than McAllister were

excluded stood as an unrebutted scientific fact.   The trial

counsel’s closing argument capitalized on this evidence, arguing

that all the suspects other than McAllister were excluded as if

the DNA evidence sealed McAllister’s guilt.   As we noted in our

initial disposition of this case, the nature of this evidence

and the manner in which it was used at the original trial made

the Government’s DNA evidence “the linchpin of the prosecution

case.”   McAllister I, 55 M.J. at 276 (emphasis added).

     Not only could this new DNA evidence potentially undermine

the conclusiveness and weight of the Government’s DNA evidence

and the Government’s original trial position, it takes on an

importance of its own in this otherwise circumstantial case.

There is now hard evidence from which to conclude that someone

other than McAllister or any other known suspect was in physical

contact with the victim at or near the time of her demise.      In

turn, this new DNA evidence could be argued to support a

conclusion that someone else committed the murder and thereby

raise a reasonable doubt about McAllister’s guilt.

     Having reviewed the evidence that would have been developed

absent the military judge’s error in denying McAllister expert


indicators in the DNA test results, she would not have reported


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

assistance, and having determined that this evidence could raise

a reasonable doubt as to guilt, we conclude that McAllister was

deprived of “relevant and material, and . . . vital” testimony

and evidence.   Washington, 388 U.S. at 16.   The effect of the

military judge’s ruling denying McAllister expert assistance was

to deny him the right to present a defense -– a defense to “the

linchpin of the prosecution case.”    McAllister I, 55 M.J. at

276.   The right to present a defense “is a fundamental element

of due process of law.”   Washington, 388 U.S. at 19; Webb v.

Texas, 409 U.S. 95, 98 (1972) (“[J]udge’s threatening remarks,

directed only at the single witness for the defense, effectively

drove that witness off the stand, and thus deprived the

petitioner of due process of law under the Fourteenth

Amendment.”).   We conclude that McAllister was deprived of his

constitutional right to a fair hearing as required by the Due

Process Clause.   Jenkins v. McKeithen, 395 U.S. 411, 429 (1969)

(citing Morgan v. United States, 304 U.S. 1, 18 (1938);

Baltimore & Ohio R.R. Co. v. United States, 298 U.S. 349, 368-69

(1936)).

       We must next determine whether the Government has sustained

its burden of demonstrating that this constitutional error was

harmless beyond a reasonable doubt.   Chapman, 386 U.S. at 24;

United States v. Simmons, 59 M.J. 485, 489 (C.A.A.F. 2004).      The



positively the presence of DNA from a third unknown individual.

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

Government must demonstrate that there was “no reasonable

possibility” that the absence of this potentially exculpatory

DNA evidence “contributed to the contested findings of guilty.”

United States v. Kreutzer, 61 M.J. 293, 300 (C.A.A.F. 2005)

(citing Gutierrez v. McGinnis, 389 F.3d. 300, 307-08 (2d Cir.

2004).   It has not.

     We review de novo the question of whether a constitutional

error was harmless beyond a reasonable doubt.    United States v.

Long, 64 M.J. 57, 66 (C.A.A.F. 2006); Kreutzer, 61 M.J. at 299.

The Government relies upon the four factor test for harmless

error in arguing that this error was harmless under either the

constitutional or nonconstitutional standard:    “the strength of

the Government’s case, the weakness of [McAllister’s] case, the

immateriality of Mr. Taylor’s proffered testimony, and the

ultimate fact that [McAllister] could not be excluded as a major

contributor of DNA even after additional DNA testing.”

     In each respect, this new DNA evidence undermines the

Government’s argument that the error was harmless and we

conclude the error was clearly not harmless beyond a reasonable

doubt.   The DNA evidence of three unknown contributors directly

attacks the strength of the Government’s case.   That same

evidence enhances the defense and potentially casts doubt upon

McAllister’s guilt.    Mr. Taylor is an essential witness to

explain the new DNA analysis and explain the significance of



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

those findings.   Finally, while McAllister is not excluded as a

contributor of DNA, he is no longer the sole contributor as the

Government portrayed him to be.

     At trial, McAllister’s DNA was the hard evidence

solidifying a primarily circumstantial case.    Its importance in

this context was significant and the members displayed great

interest in the DNA evidence by asking numerous questions.

McAllister I, 55 M.J. at 273.     The fact that the members did not

have before them scientific evidence that three other persons

contributed DNA to the victim’s fingernails precluded the

defense from presenting an entire line of defense to the

members.   This new DNA evidence would have allowed the defense

an opportunity to raise a reasonable doubt.    Therefore, we

conclude that the error in denying the defense request for

expert assistance prevented the defense from presenting critical

evidence and was not harmless beyond a reasonable doubt.

                             Decision

     The decision of the United States Army Court of Criminal

Appeals is reversed.   The findings of guilty of Charge II and

its specification and the sentence are set aside.    The remaining

findings are affirmed.   The record is returned to the Judge

Advocate General of the Army.   A rehearing is authorized on the

affected charge and the sentence.




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