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D.C. Circuit Holds Expert’s False Testimony ‘Material,’ Allowing Challenge to Four-Decade-Old Murder Conviction

by Dale Chappell

The Government’s key expert’s false hair-comparison testimony that likely swayed a jury to convict was held to be “material” because it was the primary piece of evidence to contradict the defense theory of the case, the U.S. Court of Appeals for the D.C. Circuit held, which opened the door for a new challenge to a murder conviction from over 45 years ago. 

When Milton Ausby was charged in 1972 with the rape and murder of a woman after a hair the Government said was his was found, among other evidence in the woman’s house, he went to trial and was found guilty by the jury. The Government’s key expert witness testified that the hair found probably belonged to Ausby, based on “microscopic analysis,” and the prosecutor relied heavily on this evidence to convince the jury. Ausby received life in prison, and his appeals were all denied. 

In 2015, the FBI reviewed hair analysis cases and notified Ausby that the Government’s expert in his case gave testimony that exceeded the limits of science. This, the Government conceded, misled the jury by implying that the expert could identify hairs at a crime scene to match Ausby’s hair. Additionally, the Government conceded that it “knew or should have known” the expert’s testimony was false at the time of the trial. 

Ausby then filed a motion to vacate his conviction under 28 U.S.C. § 2255, and the Government agreed to waive any procedural or timeliness affirmative defenses. The Government did, however, argue that the expert’s testimony — though erroneous — was not “material” to the outcome of the case. The District Court agreed: “Because given the overwhelming evidence against him, even absent the false hair matching testimony, there is no reasonable likelihood that the hair evidence could have altered the outcome of the case.” 

On appeal, under the certificate of appealability granted by the District Court, the question was whether the erroneous testimony about the hair was “material.” Relying on the Supreme Court’s decision in Napue v. Illinois, 360 U.S. 264 (1959), holding that the prosecution’s introduction of false testimony deprives a defendant of a fair trial, the Court of Appeals noted that a new trial in this situation is not “automatic.” 

Instead, false testimony is material, the Court explained, if it could “in any reasonable likelihood” have affected the jury’s decision. Even if the testimony may not have affected the verdict, it is still material if it could have affected the verdict, the Court said. 

However, evidence that is redundant or “clearly irrelevant” to the verdict is not material. The Court noted that most evidence will be one extreme or the other. In this case, “Ausby’s defense theory plausibly explained” all the evidence against him other than the expert’s false hair-comparison testimony, the Court stated. Without the false testimony, “there is a reasonable likelihood that the jury could have accepted Ausby’s defense theory,” the Court concluded. This was enough to render the testimony “material,” the Court held. Thus, he “presented a valid claim under Napue that he was convicted in violation of the Fifth and Sixth Amendments.”

Accordingly, the Court reversed the district court’s denial of his motion and remanded for proceedings consistent with its opinion. See: United States v. Ausby, 916 F.3d 1089 (D.C. Cir. 2019). 


Writer’s note: Because this was Ausby’s first § 2255 motion, the posture of the case is different from the obstacles he would have faced had this been a successive motion. Ausby didn’t have to show “by clear and convincing evidence” the jury would not have found him guilty, as a successive § 2255 movant would. When weighing new evidence to support a § 2255 motion, be aware of the difference between first and successive motions to present that evidence properly and avoid dismissal. 

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Related legal case

United States v. Ausby



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