                         UNITED STATES, Appellee

                                         v.

          Ivor G. LUKE, Hospital Corpsman Second Class
                      U.S. Navy, Appellant

                                  No. 05-0157
                        Crim. App. No. 200000481

       United States Court of Appeals for the Armed Forces

         Argued September 22, 2005, and February 7, 2006

                          Decided April 7, 2006

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

                                     Counsel


For Appellant: Captain Peter H. Griesch, USMC (argued); Captain
James D. Valentine, USMC (on brief).


For Appellee: Major Wilbur Lee, USMC (argued); Commander
Charles N. Purnell II, JAGC, USN (on brief); Lieutenant Colonel
William K. Lietzau, USMC.


Amicus Curiae: Christopher A. Turtzo (law student)(argued);
Shaun P. Martin, Esq. (professor) (on brief) – the University of
San Diego School of Law at the September 22, 2005, oral
argument.

Military Judge:   Charles A. Porter


            THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Luke, No. 05-0157/NA


         Judge EFFRON delivered the opinion of the Court.

         At a general court-martial composed of officer and enlisted

members, Appellant was convicted, contrary to his pleas, of two

specifications of indecent assault, in violation of Article 134,

Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 934 (2000).

He was sentenced to a bad-conduct discharge and confinement for

two years.       The convening authority approved these results, and

the United States Navy-Marine Corps Court of Criminal Appeals

affirmed in an unpublished opinion.            United States v. Luke, No.

NMCCA 200000481, 2004 CCA LEXIS 218, 2004 WL 2187577 (N-M. Ct.

Crim. App. Sept. 28, 2004).

         On Appellant’s petition, we granted review and held oral

argument on two issues.1          Subsequently, we granted review of the

following supplemental issue:

               WHETHER APPELLANT’S CONVICTION CAN BE
               AFFIRMED BY THIS COURT IN LIGHT OF THE FACT
               THAT EVIDENCE OF FRAUDULENT TESTING OF DNA
               HAS BEEN NEWLY DISCOVERED.



1
    I.    WHETHER THE LOWER COURT ERRED WHEN IT UPHELD THE TRIAL
          JUDGE’S EXCLUSION, DURING CROSS-EXAMINATION, OF AN ALLEGED
          VICTIM’S ABORTION AFTER IT BECAME RELEVANT AND MATERIAL
          REBUTTAL TO THE VICTIM’S TESTIMONY.

    II. WHETHER THE LOWER COURT ERRED WHEN IT UPHELD THE
        GOVERNMENT’S FAILURE TO DISCLOSE EVIDENCE THAT IT HAD
        PREPARED TO USE ON RE-DIRECT EXAMINATION OF A GOVERNMENT
        WITNESS.

   We heard argument on these two issues on September 22, 2005, at the
University of San Diego School of Law in San Diego, California, as part of
this Court’s “Project Outreach.” See United States v. Mahoney, 58 M.J. 346,
347 n.1 (C.A.A.F. 2003).



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United States v. Luke, No. 05-0157/NA


        For the reasons set forth below, we hold that Appellant has

brought forth sufficient evidence to warrant further inquiry

under United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411

(1967), as to whether a Government forensic examiner

contaminated Appellant’s DNA sample or otherwise falsified

pertinent test results.    In view of our disposition on the

supplemental issue, it would be premature to address the first

two granted issues at this time.



                                 I.   FACTS

                            A.    BACKGROUND

        Appellant served as a hospital corpsman aboard the USS PORT

ROYAL.    Appellant was charged with indecently assaulting a

female shipmate, Seaman Recruit N.        The chain of events leading

to the charged offense began when Seaman Recruit N’s boyfriend,

Fireman A, sought medical treatment from Appellant for a stomach

pain.    Appellant, in the course of examining Fireman A, noticed

a skin rash on Fireman A.    During a discussion about possible

causes of the rash, Fireman A told Appellant that he was in a

sexual relationship with Seaman Recruit N.

        Seaman Recruit N testified that she went to the ship’s

medical spaces later that day because Appellant told her that

she needed to be examined for a sexually transmitted disease.

According to Seaman Recruit N, Appellant directed her into a


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United States v. Luke, No. 05-0157/NA


back room, where he had her lie on a bed.    She stated that

Appellant, under the guise of performing a medical examination,

sexually assaulted her.

       Appellant’s testimony provided a different version of what

happened after Fireman A revealed his relationship with Seaman

Recruit N.    According to Appellant, he informed Fireman A that

he would have to report the relationship to the command.

Fireman A tried to dissuade Appellant from making a report and

then left the medical spaces.    Appellant stated that Seaman

Recruit N later arrived at the medical spaces because she was

looking for Fireman A.    According to Appellant, she went into

the back room of the medical spaces, and then emerged teary-eyed

and stated that she was tired of the Navy and was ready to get

out.   Appellant testified that she then left the medical spaces

and that he went to sleep on the bed in the back room.

       Seaman Recruit N and Fireman A both testified about the

ship’s policy prohibiting relationships with other members of

the ship’s company.    Each stated that they knew at the time of

the charged incident that the relationship was in violation of

the policy.

                 B.   DNA EVIDENCE PRESENTED AT TRIAL

       In addition to the testimony of Fireman A and Seaman

Recruit N, the Government relied upon DNA evidence to convict

Appellant.    Naval Criminal Investigative Service agents


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United States v. Luke, No. 05-0157/NA


collected the bra that Seaman Recruit N wore on the day of the

alleged assault and a bed sheet from the bed where the alleged

assault took place.    Both were sent to the United States Army

Criminal Investigation Laboratory (USACIL) at Fort Gillem,

Georgia, for analysis.

     Mr. Phillip Mills, then a forensic chemist at USACIL, Fort

Gillem, Georgia, testified for the prosecution.       Mr. Mills

explained that he examined the bed sheet and the bra for stains

that contained saliva.      He stated that each contained cells from

which DNA could be obtained, so a portion of each was preserved

for another examiner who would perform DNA tests.

     The forensic chemist who examined the DNA also testified

for the prosecution.       She stated that the DNA on the sheet and

bra was consistent with a mixture of DNA taken from blood

samples of Appellant and Seaman Recruit N.      The prosecution also

introduced an expert in statistical genetics to interpret the

DNA evidence.   The expert testified regarding the likelihood

that the DNA was from Appellant and Seaman Recruit N, as

compared to unknown individuals.

                      C.    POST-TRIAL DEVELOPMENTS

     On August 25, 2005, over six years after Appellant’s court-

martial and one month prior to the oral argument on the two

issues originally granted by this Court, USACIL at Fort Gillem,




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Georgia, issued a memorandum to all staff judge advocates.   The

memorandum stated in pertinent part:

          2. In April 2005, an internal quality
          control review detected a suspected false
          entry made by a DNA examiner that made the
          test invalid. The examiner was suspended
          from his DNA casework on 3 May 2005. In an
          inquiry initiated on 2 June 2005, the
          examiner admitted the false entry.

          3. In January 2004, the same examiner was
          suspended from DNA casework after permitting
          contamination in his testing process. After
          retraining, he was returned to casework on
          13 September 2004, initially working one
          case at a time under supervision.

The memorandum contained an attachment that listed the cases in

which the examiner performed tests.    The list included

Appellant’s case.

     On October 17, 2005, USACIL at Fort Gillem, Georgia, issued

another memorandum to all staff judge advocates detailing

improper practices of the examiner.    The memorandum stated, in

pertinent part:

          2. In December 2003, Mr. Phillip R. Mills,
          a USACIL Forensic DNA Examiner, cross-
          contaminated and/or switched samples within
          and between the following cases . . . .

          3. Consequently, Mr. Phillip R. Mills, a
          USACIL Forensic DNA Examiner, was suspended
          from performing DNA case work from January
          2004 through September 2004.

          4. In April 2005, Mr. Phillip R. Mills, a
          USACIL Forensic DNA Examiner, altered
          documentary evidence in USACIL case number .
          . . .


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United States v. Luke, No. 05-0157/NA



          5. In April 2005, Mr. Phillip R. Mills, a
          USACIL Forensic DNA Examiner, entered false
          data regarding a control sample in USACIL
          case number . . . .

          6. Mr. Phillip R. Mills, a USACIL Forensic
          DNA Examiner, was suspended from performing
          forensic DNA analysis at USACIL on 3 May
          2005; however, he remained an USACIL
          employee.

          7. Mr. Phillip R. Mills, a USACIL Forensic
          DNA Examiner, admitted to making a false
          data entry and creating a false document in
          USACIL case number . . . in a written
          statement made on 2 June 2005.

          8. On 9 June 2005, Mr. Phillip R. Mills, a
          USACIL Forensic DNA Examiner, wrote a
          memorandum response to the technical review
          findings in USACIL case number . . . ;
          therein, he misrepresented he had examined
          evidence when he had not.

          9. Mr. Phillip R. Mills, a USACIL Forensic
          DNA Examiner, in USACIL case number . . . ,
          examined only a single swab which had been
          submitted for evidence along with additional
          swabs. On 13 April 2005, Mr. Mills
          represented he had examined evidence and
          found negative results. Mr. Mills had not
          examined all available evidence. The
          evidence in USACIL case number . . . , when
          tested by another a USACIL Forensic DNA
          Examiner, yielded positive DNA results.

The forensic examiner whose activities were described in this

memorandum was the same examiner who testified about the saliva

tests and presence of DNA in the bed sheet and bra for the

Government at Appellant’s court-martial.




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United States v. Luke, No. 05-0157/NA


                           II.   ANALYSIS

     The supplemental issue asks whether Appellant’s conviction

can be affirmed in light of the newly discovered evidence

regarding DNA testing at the laboratory that tested Appellant’s

DNA, which included problems of cross-contamination,

misrepresentation, false data entries, and analytical

deficiencies.   The critical question is whether the results of

trial are reliable in view of the newly discovered evidence.

See United States v. Murphy, 50 M.J. 4, 15-16 (C.A.A.F. 1998).

     The defense has identified two memoranda issued by the

laboratory detailing improper practices by Mr. Mills.   At trial,

Mr. Mills testified that he performed saliva tests on the bed

sheet and bra and that the evidentiary samples of DNA collected

from the items came from the stains he examined.   DNA testing

involves comparing an evidentiary sample with a known sample.

Mr. Mills’ testimony revealed he had access to the evidentiary

samples tested in Appellant’s case.   This access could have

provided Mr. Mills with the opportunity to engage in the

improper practices described in the USACIL memoranda, such as

cross-contamination, alteration of evidence, and entry of false

data -- matters that could have a direct bearing on the

reliability of the findings.

     The Government has not challenged the defense position that

Mr. Mills had access to and participated in testing the samples


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United States v. Luke, No. 05-0157/NA


from which DNA was extracted in Appellant’s case.   The

Government contends that Appellant is not entitled to relief

because the memoranda do not conclude that Mr. Mills’ testing

was flawed in Appellant’s case -- only in subsequent, unrelated

cases.

     Whether Mr. Mills engaged in the improper activities

detailed in the memoranda in Appellant’s case is a factual

question that this Court is not in a position to resolve.     At

this stage, Appellant has demonstrated that there are material

questions of fact that could give rise to relief in the context

of his case.   See Murphy, 50 M.J. at 16.   Appellant’s showing

that Mr. Mills is known to have been involved in such behavior

and that Mr. Mills had access to the evidentiary samples tested

in Appellant’s case is sufficient to trigger an evidentiary

hearing into whether Appellant’s sample was contaminated or the

test results were otherwise falsified.



                          III.   DECISION

     The decision of the United States Navy-Marine Corps Court

of Criminal Appeals is set aside.    The record of trial is

returned to the Judge Advocate General of the Navy for

submission to an appropriate convening authority for a

factfinding hearing on Appellant’s claim of contamination of his

DNA sample and falsification of his test results.   See DuBay, 17


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United States v. Luke, No. 05-0157/NA

C.M.A. at 149, 37 C.M.R. at 412.    In light of the potential

implications for other cases involving the same Government

examiner, we urge completion of the DuBay hearing within ninety

days of the issuance of this opinion, if practicable.

Thereafter, the record will be returned directly to this Court

for further review in accordance with Article 67, UCMJ, 10

U.S.C. § 867 (2000).




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United States v. Luke, 05-0157/NA


     ERDMANN, Judge (dissenting):

     The majority concludes that the post-trial materials

relating to Mr. Mills’ alleged misconduct raise material

questions of fact that could give rise to relief and that

further inquiry is warranted.   As I find that the circumstances

of this case do not warrant extending the period within which to

seek a new trial on the basis of newly discovered evidence, I do

not agree that a factfinding hearing under United States v.

DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967), is warranted.     I

therefore respectfully dissent.

     In the context of a petition for new trial under Article

73, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 873

(2000), a petitioner has two years after the convening authority

takes action within which to bring a petition for new trial

based on newly discovered evidence.   Since the new evidence in

Luke’s case did not come to light until almost five years and

five months after the convening authority’s action, this new

evidence does not support a petition for new trial under Article

73, UCMJ.

     Luke argues that despite this statutory language, a motion

for a new trial based on newly discovered evidence may be bought

if a case is in the course of appeal, relying on United States

v. Harris, 61 M.J. 391 (C.A.A.F. 2005), and United States v.
United States v. Luke, 05-0157/NA


Murphy, 50 M.J. 4 (C.A.A.F. 1998).1   Murphy was a capital case in

which Murphy sought a new trial based on newly discovered expert

scientific evidence bearing on his mental responsibility.   50

M.J. at 13-14.   Despite the fact that this evidence arose well

after the two-year time period under Article 73, UCMJ, this

court applied the Rule for Courts-Martial (R.C.M.) 1210(f)(2)

new trial analysis to his request for a new trial.   Id. at 15.

We did so because it was a capital case calling for this court

to carefully scrutinize the case for “reliability of result.”

Id. at 14.2   Capital litigation is unquestionably different and

the need to assure a reliable result warrants different

treatment.    See Ring v. Arizona, 536 U.S. 584, 605-06 (2002)

(“There is no doubt that ‘death is different’.”); Loving v.

United States, 62 M.J. 235, 236 (C.A.A.F. 2005); United States

v. Curtis, 32 M.J. 252, 255 (C.M.A. 1991).

     Harris, on the other hand, does not support the proposition

that R.C.M. 1210(f)(2) should be applied beyond the two-year


1
  Luke asserts that the test to be applied in this circumstance
is the same test as set forth in Rule of Courts-Martial
1210(f)(2) for a petition for new trial based on newly
discovered evidence under Article 73, UCMJ.
2
  In addition, “mental responsibility” occupies a preferred
position in military jurisprudence. See United States v.
Massey, 27 M.J. 371, 373 (C.M.A. 1989); United States v. Jacks,
8 C.M.A. 574, 577, 25 C.M.R. 78, 81 (1958); Manual for Courts-
Martial, United States, Analysis of the Military Rules of
Evidence app. 22 at A22-7 (2005 ed.).


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United States v. Luke, 05-0157/NA


Article 73, UCMJ, period.    Although dealing with evidence of

mental responsibility discovered after trial, Harris actually

filed a petition for new trial within two years of the convening

authority’s action.    60 M.J. at 394.3

        I do not find that either Murphy or Harris support a broad

extension of the right to a new trial based on newly discovered

evidence simply because a case remains in appellate channels

more than two years after the convening authority’s action.      Nor

does this case present the compelling circumstances that we

faced in Murphy.     In this non-capital case the new evidence of

Mr. Mills’ misconduct could at most be offered under Military

Rule of Evidence 608(b) to impeach his trial testimony.     This is

not evidence rising to the level of a defense as does evidence

of lack of mental responsibility.      See R.C.M. 916(k).

        I would hold that a DuBay hearing is not appropriate and

would proceed to consideration of the remaining issues in this

case.




3
  Even though Harris did file a timely petition for new trial, I
am open to the possibility of applying the new trial analysis in
non-capital cases where the proffered new evidence goes to the
reliability of the findings of guilt rather than the credibility
of a witness.

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