NV- Appeals court tosses rape conviction, criticizes scientist's DNA testimony

5-7-2008 Nevada:

A federal appeals court Monday threw out the conviction of a 36-year-old Carlin man found guilty of raping a 9-year-old girl in 1994, saying DNA testimony from a Washoe County Crime Laboratory scientist was "misleading" and "unreliable."

The three-judge panel of the 9th U.S. Circuit Court of Appeals (Case no: 07-15592 Brown -v- Farwell) said prosecutors have 180 days to retry Troy Don Brown or release him after his 14 years in prison.

Paul Turner, an assistant federal public defender who handled the appeal, said he was pleased for his client but said "the case isn't over."

Deputy Attorney General Erik Levin said he was reviewing the order to decide whether to ask the panel to reconsider its decision or ask for a review by the full court.

"I respectfully disagree with their ruling," he said, adding that even without the DNA, "there was sufficient evidence to convict Troy Brown."

Brown was accused of raping the girl at her trailer while her mother was at a tavern.

At the trial, Renee Romero, a DNA expert and head of the Washoe County crime lab, testified that "Troy's DNA matched the DNA found in (the victim's) underwear, and that 1 in 3 million people randomly selected from the population would also match" that DNA, the court order said.

After the prosecutor pressed her to put this another way, Romero testified "there was a 99.99967 percent chance that the DNA found in (her) underwear was from Troy's blood," the order said.

The Elko County jury found Brown guilty of two counts of sexual assault, for which he received two consecutive life sentences. Brown appealed twice to the Nevada Supreme Court and lost, and then went to U.S. District Court in 2004.

Misleading testimony

After reviewing a report challenging Romero's testimony, a federal judge ruled in Brown's favor.

The state appealed, and in a 2-1 decision, the panel ruled that Romero's testimony on the nearly 100 percent likelihood it was Brown created a "fallacy" that misled the jury.

"In fact, the former testimony (1 in 3 million) is the probability of a match between an innocent person selected randomly from the population; this is not the same as the probability that Troy's DNA was the same as the DNA found in (her ) underwear, which would prove his guilt," the judges said.

'Prosecutor's fallacy'

This claim creates what is known as the 'prosecutor's fallacy'," the judges said, which "occurs when the prosecutor elicits testimony that confuses source probability with random match probability."

"Put another way, a prosecutor errs when he 'presents statistical evidence to suggest that the (DNA) evidence indicates the likelihood of the defendant's guilt rather than the odds of the evidence having been found in a randomly selected sample," the court said.

"In sum, Romero's testimony that Troy was 99.99967 percent likely to be guilty was based on her scientifically flawed DNA analysis, which means that Troy was most probably convicted based on the jury's consideration of false, but highly persuasive, evidence."

Romero said she did not recall testifying to the 99.99967 percent figure.

"Normally we say 'frequency of occurrence," she said, adding that gives a more accurate picture. "I must have been asked the question that way. I'll have to look at my transcripts."

The appeals judges also said the evidence beyond the DNA was weak. One witness said Brown was still at the bar 30 to 90 minutes after the assault; the victim sometimes identified Brown, and at other times said it was another man; her description of Brown's clothing that night did not match his attire, the judges said.

"The conflicts in the evidence are simply too stark for any rational trier of fact to believe that Troy was the assailant beyond a reasonable doubt," the appeals court said. ..more.. by MARTHA BELLISLE