                             District of Columbia
                              Court of Appeals
No. 13-CF-1312
                                                                      JAN 21 2016
MARLON WILLIAMS,
                                          Appellant,

       v.                                                CF1-18032-10


UNITED STATES,
                                          Appellee.


             On Appeal from the Superior Court of the District of Columbia
                                  Criminal Division

       BEFORE: Thompson and Easterly, Associate Judges; and Nebeker, Senior Judge.

                                    JUDGMENT

                This case came to be heard on the transcript of record, the briefs filed, and
was argued by counsel. On consideration whereof, and as set forth in the opinion filed
this date, it is now hereby

             ORDERED and ADJUDGED that the case is remanded with instructions for
the trial court to vacate appellant’s convictions for attempted robbery and the associated
count of possession of a firearm during a crime of violence (“PFCV”). In all other
respects, the judgment of the trial court is affirmed.

                                          For the Court:




Dated: January 21, 2016.

Opinion by Associate Judge Catharine Easterly.

Concurring opinion by Associate Judge Catharine Easterly.
Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

            DISTRICT OF COLUMBIA COURT OF APPEALS

                                   No. 13-CF-1312                 1/21/16


                        MARLON WILLIAMS, APPELLANT,

                                        V.

                           UNITED STATES, APPELLEE.


                         Appeal from the Superior Court
                          of the District of Columbia
                                (CF1-18032-10)

                      (Hon. Russell F. Canan, Trial Judge)

(Argued September 29, 2015                            Decided January 21, 2016)

      Enid Hinkes for appellant.

      John Cummings, Assistant United States Attorney, with whom Ronald C.
Machen, Jr., United States Attorney at the time the brief was filed, Elizabeth
Trosman, John P. Mannarino, and Gary Wheeler, Assistant United States
Attorneys, were on the brief, for appellee.

      Before THOMPSON and EASTERLY, Associate Judges, and NEBEKER, Senior
Judge.

      Opinion for the court by Associate Judge EASTERLY. Concurring opinion by
Associate Judge EASTERLY at page 16.
                                         2

      EASTERLY, Associate Judge: Marlon Williams was arrested and prosecuted

for the shooting death of Min Soo Kang. As no eyewitnesses to the crime were

discovered and as Mr. Williams had no known relationship with Mr. Kang, it took

a number of investigative steps for the police to connect Mr. Williams with the

crime: after finding Mr. Kang’s body, the police located his car; after examining

fingerprints recovered from Mr. Kang’s car, the police identified Mr. Williams as a

potential suspect; and after searching Mr. Williams’s apartment, the police

recovered a gun that, when test-fired, left markings on the bullets that appeared to

match the markings on bullets recovered from Mr. Kang’s car. This evidence, in

conjunction with the testimony of an individual to whom Mr. Williams had made

incriminating statements while they were in the courthouse cellblock, formed the

bulk of the government’s case. After considering this evidence, a jury convicted

Mr. Williams of first-degree felony murder while armed,1 attempt to commit

robbery while armed,2 two counts of possession of a firearm during a crime of

violence (PFCV),3 and carrying a pistol without a license.4        He received an

aggregate sentence of 480 months’ imprisonment.


      1
          D.C. Code §§ 22-2101, -4502 (2001).
      2
          D.C. Code §§ 22-2802, -4502, -1801 (2001).
      3
          D.C. Code § 22-4504 (b) (2001).
      4
          D.C. Code § 22-4504 (a) (2001).
                                            3

      On appeal Mr. Williams primarily attacks the firearms and toolmark

evidence presented against him, arguing among other things that, although defense

counsel never objected, the examiner should not have been permitted to testify that

the markings on the bullets recovered from Mr. Kang’s car were “unique” to the

gun recovered from Mr. Williams’s apartment and thus that he did not have any

doubt of their source. Because, to date, this court has only assumed without

deciding that such testimony of absolute certainty is impermissible, we conclude

that Mr. Williams has failed to establish that it was plain error for the trial court to

permit the jury to hear it. We discern no other error warranting reversal, although

we agree that Mr. Williams’s attempted robbery conviction and associated PFCV

conviction merge with his felony murder conviction and must be vacated.



                                       I.       Facts



      In the early morning hours of September 13, 2010, the bullet-riddled body of

Min Soo Kang was discovered lying on the side of the road in Southeast D.C.

The Metropolitan Police Department (MPD) began investigating and learned that

Mr. Kang drove a Cadillac Escalade equipped with OnStar, a service that could

remotely disable the vehicle. At MPD’s request, OnStar disabled Mr. Kang’s
                                            4

Escalade by the evening of September 13 and directed MPD officers to the

vehicle’s location in Northeast D.C.



      An MPD officer inspected the Escalade. He found no damage to the exterior

of the car but discovered what he suspected were bullet holes in the backrest of the

driver’s seat. The officer cut into the seat and recovered three bullets. He also

collected fingerprints from the Escalade.



       An MPD fingerprint examiner entered the fingerprints lifted from the

Escalade into the national Automated Fingerprint Identification System (AFIS),

which connects unknown prints to known prints in a digital database.          AFIS

identified Mr. Williams as a possible source of the fingerprints. Based on the

fingerprint examiner’s preliminary conclusion that the prints on the Escalade

belonged to Mr. Williams, MPD applied for and was granted a search warrant for

Mr. Williams’s residence. Executing this warrant, MPD officers recovered a High

Point brand firearm from Mr. Williams’s bedroom.
                                          5

      At trial,5 the government relied almost exclusively on forensic evidence,

presenting expert testimony from a fingerprint examiner and a firearms and

toolmark examiner.6 The fingerprint examiner testified to his conclusion that the

prints recovered from the Escalade belonged to Mr. Williams. The firearms and

toolmark examiner, Luciano Morales, testified on direct examination that when a

bullet is fired from a particular gun, the gun leaves “unique” identifying marks,

“similar to a fingerprint, basically.” He then testified that he had compared the

markings on the bullets recovered from Mr. Kang’s car with the markings on the

bullets test-fired from the gun recovered from Mr. Williams’s apartment

(manufactured by High Point and admitted as Exhibit No. 58), and he had

concluded that the bullets were fired by the same gun. On redirect, when the

prosecutor asked whether there was “any doubt in [his] mind” that the bullets

recovered from Mr. Kang’s Escalade were fired from the gun found in

      5
          This was Mr. Williams’s second trial; the first trial ended in a mistrial
after the jury was unable to reach a verdict.
      6
         The government also called a witness who had agreed to testify against
Mr. Williams in return for the government’s assistance at the witness’s pending
sentencing for aggravated assault, a charge carrying up to thirty years
imprisonment. The witness testified that, after he met Mr. Williams for the first
time in the cellblock at the courthouse, Mr. Williams told the witness that he was
“fighting a body”; that the police had recovered his fingerprints from the victim’s
car even though he had tried to wipe it clean; that the police had recovered a gun,
but he had wiped his prints off the gun; and that “it was in his favor” that the police
had not tested bullets recovered from the victim to see if they matched bullets fired
from his gun.
                                         6

Mr. Williams’s room, the examiner responded, “[n]o sir.”        He elaborated that

“[t]hese three bullets were identified as being fired out of Exhibit No. 58. And it

doesn’t matter how many firearms High Point made. Those markings are unique

to that gun and that gun only.” The prosecutor then asked the examiner whether,

“judging from the markings that you find in 58, it’s your conclusion that those

three bullets were fired from 58?” The examiner was unequivocal: “Item Number

58 fired these three bullets.”



      Counsel for Mr. Williams did not object to any of this testimony. The jury

also heard stipulations that a print lifted from the gun did not match Mr. Williams

and that the blood and DNA recovered from the gun did not match Mr. Kang or

Mr. Williams. The jury convicted Mr. Williams on all charges.



                                   II.     Analysis



      A.     Sufficiency of the Evidence



      We first address Mr. Williams’s argument that the government did not

present sufficient evidence to support his felony murder conviction because it

failed to establish the underlying felony of attempted robbery, and specifically
                                        7

failed to prove that Mr. Williams, and not another person, had stolen Mr. Kang’s

Escalade. Reviewing the sufficiency of the evidence de novo, Nero v. United

States, 73 A.3d 153, 157 (D.C. 2013), we disagree.             As Mr. Williams

acknowledges in his brief, the government presented the following evidence to

support an attempted robbery conviction: (1) testimony by the fingerprint examiner

that the fingerprints lifted from both the exterior and interior of Mr. Kang’s

Escalade matched Mr. Williams; (2) eyewitness testimony that a person consistent

with Mr. Williams’s physical description was seen opening and closing the hood of

the Escalade around the time it was disabled; and (3) testimony by the firearms and

toolmark examiner that the bullets recovered from the Escalade matched bullets

fired from Mr. Williams’s gun.      From this evidence, drawing all reasonable

inferences in favor of the government as we must, Nero, 73 A.3d at 157, we

conclude that the jury reasonably could have determined that Mr. Williams stole

Mr. Kang’s car, and thus necessarily committed the crime of attempted robbery. 7

See Ray v. United States, 575 A.2d 1196, 1199 (D.C. 1990) (“Every completed


      7
         We question whether the government presented sufficient evidence that
Mr. Williams intended to steal Mr. Kang’s car before he shot him. See Head v.
United States, 451 A.2d 615, 625 (D.C. 1982) (“[M]ere coincidence in time of a
robbery and a murder is insufficient to support a felony murder conviction.”); see
also United States v. Bolden, 514 F.2d 1301, 1307 (D.C. Cir. 1975) (holding that
the intent to rob must be formed before the homicide to convict a defendant of
felony murder). But Mr. Williams did not raise that argument on appeal.
                                          8

criminal offense necessarily includes an attempt to commit that offense.”). But see

(Richard) Jones v. United States, 124 A.3d 127, 132-34 (D.C. 2015) (Beckwith, J.,

concurring) (highlighting conflicting precedent from this court indicating that for

general intent crimes, an attempt conviction requires proof of a higher mens rea

than conviction for the completed offense).



      B.     The Firearms and Toolmark Examiner’s Opinion Testimony



      Mr. Williams argues that the firearms and toolmark examiner should not

have been able to testify that the markings on the bullets recovered from Mr.

Kang’s Escalade were unique or that he was without “any doubt” that these bullets

were fired from the gun found in Mr. Williams’s room. Because Mr. Williams did

not object at trial to this testimony, we review only for plain error. See (John)

Jones v. United States, 990 A.2d 970, 980-81 (D.C. 2010). To prevail under this

test, it is not enough for an appellant to demonstrate error; the appellant must also

show that the error is plain, i.e., that the error is “so egregious and obvious as to

make the trial judge and prosecutor derelict in permitting it, despite the defendant’s

failure to object.” Id. at 981. We attribute such dereliction to the trial court only
                                         9

when an error is “clear under current law.” 8 Conley v. United States, 79 A.3d 270,

289 (D.C. 2013) (quoting United States v. Olano, 507 U.S. 725, 734 (1993)).

Applying this standard, we cannot say the trial court plainly erred by permitting the

jury to hear the examiner’s certainty statements.



      There is no precedent in this jurisdiction that limits a toolmark and firearms

examiner’s testimony about the certainty of his pattern-matching conclusions. The

closest this court has come to addressing this issue was in (Ricardo) Jones v.

United States, 27 A.3d 1130 (D.C. 2011). In that case the defense argued inter alia

that toolmark and firearms examiners could not “stat[e] their conclusions with

‘absolute certainty excluding all other possible firearms.’”      Id. at 1138.    In

response, the government assured this court, both in its appellate brief and at oral

argument, that it was the government’s policy not to present such testimony. “In

light of the government’s representation,” this court “assume[d], without deciding,

that such experts should not be permitted to testify that they are 100% certain of a

match, to the exclusion of all other firearms.”      Id. at 1139. The court then

determined that any such error was harmless. Id. Jones did not plainly bar the

      8
         This assessment is made by examining the state of the law at the time of
appellate review. Henderson v. United States, 133 S. Ct. 1121, 1127 (2013).
Accord, Muir v. District of Columbia, No. 11-CT-1619, 2016 WL 187941, at *1,
*6-7 (D.C. Jan. 14, 2016).
                                         10

toolmark examiner in this case from testifying as he did and does not provide a

foundation for a determination of plain error.



      Nor can we say that the weight of non-binding authority outside this

jurisdiction is a sufficient foundation for a determination that the trial court

“plainly” erred by not sua sponte limiting the toolmark examiner’s testimony. See

Euceda v. United States, 66 A.3d 994, 1012 (D.C. 2013) (holding that error cannot

be plain where neither this court nor the Supreme Court has decided the issue, and

other courts are split on the issue). We are aware of only one state supreme court

decision9 and no federal appellate decisions limiting the opinion testimony of

firearms and toolmark examiners. Indeed, as one federal district court judge has

observed, “[a]lthough the scholarly literature is extraordinarily critical” of

toolmark pattern-matching, it appears that courts have made little effort to limit or

qualify the admission of such evidence.10 United States v. Green, 405 F. Supp. 2d

104, 122 (D. Mass. 2005).


      9
           Commonwealth v. Heang, 942 N.E.2d 927, 944-45 & n.29 (Mass. 2011).
      10
          Even in the absence of binding precedent or a raft of persuasive authority
on point, we may find plain error where a trial court acts in contravention of “well-
settled legal principles.” See Conley, 79 A.3d at 290 (“‘[P]lainness’ of [an] error
can depend on well-settled legal principles as much as well-settled legal
precedents.” (quoting United States v. Brown, 352 F.3d 654, 664 (2d Cir. 2003))).
Mr. Williams has made no argument that the trial court plainly erred on this basis.
                                         11

      Mr. Williams refers us to the policy representation made by the government

in Jones. The government concedes that, at Mr. Williams’s trial, it violated its

policy “to only elicit firearms examiners’ opinions to a reasonable degree of

scientific certainty.” But this concession cannot serve as the sole foundation for a

determination of plain error. The government’s internal policy does not constitute

binding law11—let alone a “clear” or “obvious” rule—that a trial court should be

presumed to know.12 Cf. Rose v. United States, 49 A.3d 1252, 1256, 1258 (D.C.

2012) (holding that a trial court’s error could not be plain when there was “no clear



      11
          Moreover, we question whether this court would want to endorse a policy
of “only elicit[ing] firearms examiners’ opinions to a reasonable degree of
scientific certainty,” in light of criticism that firearms examination does not
involve any “scientific” measure of certainty. See NATIONAL RESEARCH COUNCIL,
COMMITTEE ON IDENTIFYING THE NEEDS OF THE FORENSIC SCIENCES COMMUNITY,
STRENGTHENING FORENSIC SCIENCE IN THE UNITED STATES: A PATH FORWARD 154-55
(2009); NATIONAL RESEARCH COUNCIL, COMMITTEE TO ASSESS THE FEASIBILITY,
ACCURACY, AND TECHNICAL CAPABILITY OF A NATIONAL BALLISTICS DATABASE,
BALLISTIC IMAGING 3, 81-82 (2008).
      12
          Mr. Williams appears to concede that Jones itself did not plainly establish
that statements of absolute certainty were prohibited and argues instead that
“because of its prior assurances” in Jones, the government should be estopped
from arguing that the admission of certainty statements of the sort elicited in this
case is not plain error. But the government in Jones never took a position as to
plain error review (because the challenge to the firearms and toolmark examiner’s
testimony was preserved). Meanwhile, in this appeal, the government has not
disavowed its policy and concedes it was violated at Mr. Williams’s trial. Ward v.
Wells Fargo Bank, N.A., 89 A.3d 115, 126-27 (D.C. 2014) (reviewing the elements
of judicial estoppel and explaining inter alia that it will apply only if the party’s
later position is clearly inconsistent with its earlier position).
                                          12

case law” in our jurisdiction and that a published concurrence from a judge of this

court, while on point, “is not the law of our jurisdiction”).



       Since Mr. Williams has not shown that the state of the law is such that the

trial court plainly should have sua sponte precluded or struck the certainty

statements of the firearms and toolmark examiner in this case, Mr. Williams’s

unpreserved challenge to these certainty statements cannot prevail under our test

for plain error.



       C.     Confrontation Clause and Hearsay Challenges to the Firearms
              and Toolmark Evidence


       Regarding the firearm and toolmark evidence presented in this case, Mr.

Williams also challenges the admission, over objection, of two “worksheets”

documenting the analysis of the bullets. These worksheets were signed by the

firearms and toolmark examiner who testified at trial, Mr. Morales, but they also

bore the signature and initials of his colleague, the “lead examiner on that

particular case,” Rosalyn Brown.13 The government did not call Ms. Brown to


       13
          Mr. Morales explained that the lead examiner is “basically the examiner
that’s assigned and responsible for the examination” of toolmarks; he was
designated the “second examiner.” He further explained that, at the time the
firearms evidence was received, Ms. Brown “was not available; it was early in the
                                                                    (continued…)
                                        13

testify because she had since been fired. On appeal, Mr. Williams argues that the

admission of the worksheets violated his Sixth Amendment right to confrontation.



      The Confrontation Clause of the Sixth Amendment, U.S. CONST. amend. VI,

prohibits the government from introducing “testimonial” hearsay at a criminal trial,

unless the declarant is unavailable and the defendant has had a prior opportunity to

cross-examine him. Crawford v. Washington, 541 U.S. 36, 53-54 (2004).             A

hearsay statement is considered testimonial if it is “‘a solemn declaration or

affirmation made for the purpose of establishing or proving some fact’ . . . in the

prosecution or investigation of a crime.” Young v. United States, 63 A.3d 1033,

1039-40 (D.C. 2013) (quoting Crawford, 541 U.S. at 51). Forensic evidence is

also subject to the Confrontation Clause, which means a defendant must have an

opportunity to cross-examine the analyst who actually conducted or observed the

forensic testing. Id. at 1039.



       Assuming the ballistics worksheets contained Ms. Brown’s testimonial

hearsay statements, we conclude that their erroneous admission was harmless. See

Duvall v. United States, 975 A.2d 839, 843 (D.C. 2009) (applying the test for

(…continued)
morning.” “[S]ince I was the second, I was the reviewer . . . of that case. My
responsibility was to perform the examination between the items.”
                                          14

harmless error under Chapman v. California, 386 U.S. 18 (1967) to admission of a

lab report in violation of the Confrontation Clause). To begin with, the jury never

heard any testimony about Ms. Brown’s observations and conclusions in Mr.

Williams’ case and thus had no reason to think that the worksheets might

document her examination of the bullet and firearm evidence. On the contrary,

Mr. Morales testified (without “any doubt”, see supra Part II.B) only as to his own

observations and conclusions. Meanwhile, the prosecution made no reference to

another examiner in closing or rebuttal.        Lastly, nothing on the worksheets

themselves indicated that they reflected the independent conclusions of another,

absent examiner. Thus, at most, the jury saw an ambiguous extra signature at the

bottom of a document that Mr. Morales had testified reflected his work product.

Based on these particular facts, we cannot discern any harm to Mr. Williams from

admission at his trial of these worksheets.14



      14
           Mr. Williams additionally contends that he was deprived of his Sixth
Amendment right to a jury trial because Mr. Morales gave overly conclusory
testimony, failed to present the images or other “documentation” underlying his
opinions, and “deprived the jury of the ability to make a decision based on the
evidence.” Again, this argument was never made in the trial court and we review
for plain error. We discern none. We acknowledge that at least one federal district
court has ruled that the government’s presentation of pattern-matching testimony
by a forensic expert is contingent on its presentation of sufficient documentation to
permit the jury to meaningfully evaluate the expert’s subjective conclusions. See
United States v. Glynn, 578 F. Supp. 2d 567, 574 n.13 (S.D.N.Y. 2008); see also
Heang, 942 N.E.2d at 945 n.30 (urging but not requiring firearms and toolmark
                                                                        (continued…)
                                        15

      D.      Other Issues



      With one exception, Mr. Williams’s remaining arguments fail.              His

unpreserved challenge to the admission of fingerprint evidence fails the third prong

of the test for plain error where trial counsel conceded, both in opening and in

closing, that the fingerprints on the Escalade belonged to Mr. Williams.15 Mr.

Williams’s new argument that he is entitled to a Franks hearing16 also fails; the

trial court did not plainly err by overlooking the discrepancy between the affidavit

in support of the search warrant for Mr. Williams’s apartment, which cited

fingerprint evidence as a basis for probable cause, and the fingerprint examiner’s

testimony that he reviewed the prints and linked them to Mr. Williams on a date

after the search warrant was executed.       Instead, given other documentation

indicating that the fingerprint examiner was asked to analyze the latent prints

before the police sought and obtained the warrant, it would have been reasonable

(…continued)
examiners to “explain the basis of any opinion with sketches, photographs, or, best
of all, comparison photographs”). But, to date, this court has not so held.
      15
          Conley, 79 A.3d at 276, 290 (explaining that the third prong of the plain
error standard requires the appellant to identify an error that “affected his
substantial rights”). In light of our above resolution of Mr. Williams’s challenges
to the toolmark and fingerprint evidence, we reject Mr. Williams’s argument that
the trial court’s cumulative errors regarding the admission of the government’s
toolmark and fingerprint evidence require reversal.
      16
           Franks v. Delaware, 438 U.S. 154 (1978).
                                             16

    for the trial court to conclude that the examiner was simply mistaken as to the date

    on which he first examined the latent prints and connected them to Mr. Williams.



          Mr. Williams prevails on his argument that this court must merge his

    attempted robbery and corresponding PFCV conviction with his felony murder

    conviction.   “[A] person cannot be convicted of both felony murder and the

    underlying felony that supported the felony murder conviction.”           Matthews v.

    United States, 13 A.3d 1181, 1191 (D.C. 2011). Accordingly, we remand the case

    with instructions for the trial court to vacate Mr. Williams’s convictions for

    attempted robbery and the associated count of PFCV. See Morris v. United States,

    622 A.2d 1116, 1130 (D.C. 1993) (holding that when two predicate crimes for

    PFCV merge into one, the PFCV offenses also merge).



          In all other respects, we affirm the judgment of the trial court.



                                                         So ordered.

1

          EASTERLY, Associate Judge, concurring: In our adversarial system, we do

    not expect trial courts to “recognize on [their] own” that an expert’s testimony is

    “scientifically unorthodox or controversial.” (John) Jones v. United States, 990
                                          17

A.2d 970, 980-82 (D.C. 2010). In the absence of any objection at Mr. Williams’s

trial to the admission of the firearms and toolmark examiner’s certainty statements,

we could only reverse if the law were clear that the expert could not make these

statements. See supra Majority Opinion, Part II.B. As discussed above, the law in

this jurisdiction does not clearly preclude a firearms and toolmark examiner from

testifying with unqualified, absolute certainty.1 But it should.



      A statement that markings on a bullet are “unique” to a particular gun is a

statement that the probability of finding another gun that can create identical bullet

markings is zero. If purportedly unique patterns on bullets are declared a match,

that declaration likewise negates the possibility that more than one gun could have

fired the bullets—it is a statement of unqualified certainty that the bullets were

fired from a specific gun to the exclusion of all others. Here the firearms and

toolmark examiner testified that he had identified matching “unique” patterns; he

also declared that he did not have “any doubt” that the bullets recovered from Mr.

Kang’s car had been fired by the gun recovered from Mr. Williams’s apartment.


      1
         To avoid the constraints of plain error review, Mr. Williams could have
filed a motion under D.C. Code § 23-110 and argued that trial counsel provided
him constitutionally ineffective assistance by failing to challenge the firearms and
toolmark examiner’s certainty statements as scientifically unfounded. See infra.
Mr. Williams did not do this.
                                        18

      The government has a policy, admittedly violated here, not to elicit such

certainty statements. This court was advised of the government’s policy in Jones.

At oral argument in that case, in November 2011, counsel for the government

stated that, as “concede[d]” in its brief, it was the government’s “position that

practitioners should not state their conclusions to 100% scientific certainty.” The

government further noted that it had “conceded in every hearing, starting two to

three years ago when we first started having Frye hearings on this issue, that

firearms examiners should not state their conclusions with absolute certainty.”2 Id.

Which raises the question: why did the government adopt a policy to limit the

opinion testimony of firearms and toolmark examiners? What happened “two to

three” years before the Jones oral argument that prompted the creation of this

policy?



      In 2008, a committee of scientists and statisticians assembled by the

National Research Council (NRC),3 which was in turn acting at the behest of the


      2
          The government was represented in Jones by the Special Counsel for
DNA and Forensic Evidence at the United States Attorney’s Office for the District
of Columbia; this Special Counsel has corresponded on the government’s behalf
with Superior Court regarding other problems arising from the reliance on faulty
forensic evidence. See infra note 10.
      3
         The NRC is a component of the National Academy of Sciences, which
was created by congressional charter in 1863 to “investigate, examine, experiment,
                                                                    (continued…)
                                          19

Department of Justice, issued a report on bullet pattern-matching analysis, Ballistic

Imaging.4 Although the NRC Committee’s charge was to assess the feasibility and

utility of establishing “a national reference ballistic image database . . . that would

house images from firings of all newly manufactured or imported firearms,” it

recognized that the “[u]nderlying . . . question” is “whether firearms-related

toolmarks are unique: that is, whether a particular set of toolmarks can be shown to

come from one weapon to the exclusion of all others.” Ballistic Imaging, supra

note 3, at 1, 3. The NRC Committee determined that there was no data-based

foundation to declare, with any certainty, individualization based on toolmark

pattern matching.



      Specifically, the NRC Committee made a “finding” that the “validity of the

fundamental assumptions of uniqueness and reproducibility of firearms-related

(…continued)
and report upon any subject of science.” Act to Incorporate the National Academy
of Sciences, sec. 3, 12 Stat. 806 (1863), http://www.nasonline.org/about-
nas/leadership/governing-documents/act-of-incorporation.html. The NRC was
established in 1916 “to associate the broad community of science and technology
with the Academy’s purposes of furthering knowledge and advising the federal
government.” NATIONAL RESEARCH COUNCIL, COMMITTEE TO ASSESS THE
FEASIBILITY, ACCURACY, AND TECHNICAL CAPABILITY OF A NATIONAL BALLISTICS
DATABASE, BALLISTIC IMAGING iii (2008).
      4
       Ballistic Imaging, supra note 3. Specifically, the project was sponsored
by the National Institute of Justice (NIJ), Office of Justice Programs, U.S.
Department of Justice. Id. at xi.
                                          20

toolmarks has not yet been fully demonstrated.” Ballistic Imaging, supra note 3, at

3, 81. The NRC Committee noted that “derivation of an objective, statistical basis

for rendering decisions [about matches] is hampered by the fundamentally random

nature of parts of the firing process. The exact same conditions—of ammunition,

of wear and cleanliness of firearms parts, of burning of propellant particles and the

resulting gas pressure, and so forth—do not necessarily apply for every shot from

the same gun.” Id. at 55. The NRC Committee concluded that “[a] significant

amount of research would be needed to scientifically determine the degree to

which firearms-related toolmarks are unique or even to quantitatively characterize

the probability of uniqueness.” Id. at 3, 82.




      The NRC Committee further expressed concern that, notwithstanding the

absence of data and the corresponding statistical unknowns, firearms and toolmark

examiners “tend to cast their assessments in bold absolutes, commonly asserting

that a match can be made ‘to the exclusion of all other firearms in the world.’”

Ballistic Imaging, supra note 3, at 82. The NRC Committee denounced this sort of

testimony, explaining that “[s]uch comments cloak an inherently subjective

assessment of a match with an extreme probability statement that has no firm

grounding and unrealistically implies an error rate of zero.” Id. “[S]topping short

of commenting on whether firearms toolmark evidence should be admissible” in
                                         21

court, the NRC Committee determined that “[c]onclusions drawn in firearms

identification should not be made to imply the presence of a firm statistical basis

when none has been demonstrated.” Id. (emphasis in original).



      In a subsequent report commissioned by Congress and issued in 2009,

Strengthening Forensic Science in the United States: A Path Forward,5 another

NRC Committee published similar words of warning regarding firearms and

toolmark evidence.6 This Committee explained that “[i]ndividual patterns from

manufacture or from wear might, in some cases, be distinctive enough to suggest

one particular source.” Id. at 154 (emphasis added). But “[b]ecause not enough is

known about the variabilities among individual tools and guns,” the Committee

was “not able to specify how many points of similarity are necessary for a given

level of confidence in the result.”7 In other words, there is currently no statistical


      5
        NATIONAL RESEARCH COUNCIL, COMMITTEE ON IDENTIFYING THE NEEDS
OF THE FORENSIC SCIENCES COMMUNITY, STRENGTHENING FORENSIC SCIENCE IN
THE UNITED STATES: A PATH FORWARD xix (2009) [hereinafter Strengthening
Forensic Science].
      6
          The report comprehensively reviewed a range of forensic analyses,
including toolmark and firearms identification, and made a number of
recommendations “to improve the forensic science disciplines and to allow the
forensic science community to serve society more effectively.” Id. at xix, 1-2.
      7
        More generally, the NRC Committee observed that “[w]ith the exception
of nuclear DNA analysis . . . no forensic method has been rigorously shown to
have the capacity to consistently, and with a high degree of certainty, demonstrate
                                                                      (continued…)
                                         22

basis to declare with any degree of certainty that toolmarks on a bullet connect that

bullet to a particular gun or “match” the markings on other bullets fired from that

gun.8



(…continued)
a connection between evidence and a specific individual or source.” Id. at 7. With
respect to these other forensic analyses, the NRC Committee stated that “[a] body
of research . . . to establish the limits and measures of performance and to address
the impact of sources of variability and potential bias . . . is sorely needed, but it
seems to be lacking in most of the forensic disciplines that rely on subjective
assessments of matching characteristics.” Id. at 8. The NRC Committee called for
the development of “rigorous protocols to guide these subjective interpretations
and pursue equally rigorous research and evaluation programs.” Id. The NRC
Committee particularly recommended that “[f]orensic reports, and any courtroom
testimony stemming from them, must include clear characterizations of the
limitations of the analyses, including measures of uncertainty in reported results
and associated estimated probabilities where possible.” Id. at 21-22.
        8
          Thus, even the policy the government endorsed in Jones, permitting
firearms and toolmark examiners to testify to “a reasonable degree of scientific
certainty,” is an inadequate limitation on firearms and toolmark examiners’
testimony. See Brief for Appellee at 36, Jones v. United States, 27 A.3d 1130
(D.C. 2011) (No. 08-CF-716). This phrase “has no scientific meaning.” Paul C.
Giannelli, Reasonable Scientific Certainty: A Phrase in Search of a Meaning, 25
CRIM. JUST. 40, 40-41 (2010-2011); see also NATIONAL INSTITUTE OF STANDARDS
AND TECHNOLOGY, EXPERT WORKING GROUP ON HUMAN FACTORS IN LATENT
PRINT ANALYSIS, LATENT PRINT EXAMINATION AND HUMAN FACTORS: IMPROVING
THE PRACTICE THROUGH A SYSTEMS APPROACH 119 (2012) (“Outside the
courtroom . . . scientists do not communicate their findings in this fashion . . .
there is no generally accepted or working definition of a ‘reasonable degree of
certainty’ in scientific discourse.”). Meanwhile “[i]ts legal meaning is at best
ambiguous, at worst misleading.” Giannelli, supra at 41. “A reasonable degree of
scientific certainty” unquestionably implies a data-based foundation for a
conclusion that is objectively unfounded.
       To adequately account for the current limitations of toolmark analysis, at
least one federal district court has ruled that an examiner cannot “claim that he
                                                                    (continued…)
                                          23

      Against this backdrop, there is only one permissible answer to the question

left undecided in Jones regarding firearms and toolmark examiners’ assertions of

certainty in their pattern-matching conclusions: the District of Columbia courts

should not allow them. It is well established that expert opinion evidence is

admissible if “it will not mislead the jury and will prove useful in understanding

the facts in issue.” Clifford v. United States, 532 A.2d 628, 632 (D.C. 1987)

(citing Dyas v. United States, 376 A.2d 827, 831 (D.C. 1977)); cf. Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993) (“[T]he trial judge

must ensure that any and all scientific testimony or evidence admitted is not only

relevant, but reliable.”).   Certainty statements such as those elicited by the

government in this case are misleading and lack any legitimate utility in criminal

trials; they express a solid statistical foundation for individualization that does not

currently (and may never) exist.



      The government states in its brief to this court that it is “regrettable” that its

expert was permitted to state his pattern-matching conclusion with absolute

certainty. It is more than regrettable. It is alarming. We know that faulty forensic

(…continued)
reached his conclusions to any degree of ‘certainty.’” Glynn, 578 F. Supp. 2d at
569. Another federal district court has limited an examiner’s testimony to a report
of observed similarities and has declined to allow the examiner to testify as to any
conclusion of a match. See Green, 405 F. Supp.2d at 108 & n.3, 123-24.
                                          24

evidence, and in particular, objectively unfounded statements of certainty

regarding forensic analysis, can contribute to wrongful convictions. See

Strengthening Forensic Science, supra note 5, at 45; Brandon L. Garrett, Judging

Innocence, 108 COLUM. L. REV. 55, 83-84 (2008).



      Take the case of Donald Gates, who was wrongfully convicted of rape and

murder and needlessly served twenty-seven years in prison.9 To persuade a jury of

Mr. Gates’s guilt, the government relied on the similarly subjective pattern-

matching analysis of hair evidence. The hair examiner in Mr. Gates’s case testified

with only slightly more restraint than the firearms and toolmark examiner in this

case, acknowledging that “it cannot be said that a hair came from one person to the

exclusion of all others,” but nonetheless asserting that it was “‘highly unlikely’ that

the hair found on the victim came from someone other than [Mr. Gates].” Brief for

Appellee at 8, Donald E. Gates v. United States, 481 A.2d 120 (1984) (No. 82-




      9
          This miscarriage of justice was costly to the District of Columbia.
Mr. Gates recently received $16.65 million from the District to settle his civil suit.
Spencer S. Hsu, District to Pay $16.65 Million to Wrongly Imprisoned Man,
Attorneys       Say,        WASH.        POST,       Nov.          19,         2015,
https://www.washingtonpost.com/local/public-safety/district-to-pay-1665-million-
to-wrongly-imprisoned-man-attorneys-say/2015/11/19/2f62fd58-8ecf-11e5-baf4-
bdf37355da0c_story.html.
                                         25

1529) (transcript citations omitted). But, just as in this case, there was no data-

based foundation for the expert’s expression of certainty in his opinion.10




      The use of these subjective certainty statements not only implicates the

government’s “duty to refrain from improper methods calculated to produce a

wrongful conviction,”11 it also calls into question the “fairness, integrity [and]




      10
           See Strengthening Forensic Science, supra note 5, at 160-61. The
government later “acknowledged” that the hair examiner in Mr. Gates’s case
“offered unfounded testimony at trial that exaggerated the probative value of the
hair match.” Letter from Lee F. Satterfield, Chief Judge, Superior Court of the
District of Columbia to Avis E. Buchanan and Ronald C. Machen Jr., (Jan. 11,
2011) (quoting Letter from Michael T. Ambrosino, Counsel to the United States
Attorney, to Chief Judge Satterfield, n.3 (Nov. 15, 2010)) available at
http://www.dccourts.gov/internet/documents/OIGReportLetterFromChiefJudgeSatt
erfield.pdf.
      11
          Berger v. United States, 295 U.S. 78, 88 (1935). Under Napue v. Illinois,
360 U.S. 264 (1959), the government may not knowingly present false or
misleading evidence or allow admission of such evidence to go uncorrected.
Longus v. United States, 52 A.3d 836, 847-48 (D.C. 2012); see also id. at 847
(explaining that the “underlying purpose of Napue” is “to ensure the jury is not
misled by falsehoods”). “[A]s with Brady, the government’s obligation under
Napue turns not on the personal knowledge of an individual prosecutor, but on
what the ‘government,’ under a collective knowledge theory, knew or should have
known.” Id. at 848. The government’s policy regarding firearms and toolmark
matching testimony indicates that the government, collectively, knew that the
certainty statements of the expert in this case had no foundation and would only
mislead the jury to think that the government’s case was stronger than it actually
was.
                                         26

public reputation of judicial proceedings.”12 Courts are our society’s chosen forum

for ascertaining guilt in criminal cases. Our justice system can only function if it

maintains the trust of the community. We rely on judges—as the umpires in our

adversarial system—to prohibit the admission of evidence that is clearly without

foundation. As matters currently stand, a certainty statement regarding toolmark

pattern matching has the same probative value as the vision of a psychic: it reflects

nothing more than the individual’s foundationless faith in what he believes to be

true. This is not evidence on which we can in good conscience rely, particularly in

criminal cases, where we demand proof—real proof—beyond a reasonable doubt,

precisely because the stakes are so high. To uphold the public’s trust, the District

of Columbia courts must bar the admission of these certainty statements, whether

or not the government has a policy that prohibits their elicitation. We cannot be

complicit in their use.




      12
         Puckett v. United States, 556 U.S. 129, 135 (2009) (quoting United States
v. Olano, 507 U.S. 725, 736 (1993)).
