The appeal hinges on a subtle difference in language used to explain the DNA evidence in the case.
ATLANTA (CN) — An attorney for a Georgia man sentenced to 32 years in federal prison for two armed bank robberies asked an 11th Circuit panel Tuesday to grant him a new trial based on an FBI forensic examiner’s incorrect testimony explaining DNA evidence.
On the morning of Sept. 7, 2016, Darius Caldwell pointed a gun at a Bank of America teller and forced her to load up a black gym bag with money.
Caldwell, who disguised himself using a dreadlock wig and a bandana face mask, escaped the Smyrna, Georgia, bank on foot but was found by police just 10 minutes later thanks to a tracking device placed inside the bag by the teller.
Caldwell was later identified by the FBI as the same man who robbed a North of Atlanta Bank branch in Doraville, Georgia, on Aug. 24, 2016.
He was convicted of both robberies in 2018, sentenced to 32 years in prison plus five years of supervised release and ordered to pay $14,481 in restitution.
On Tuesday, attorney Paul Monnin of Alston & Bird told a three-judge 11th Circuit panel that his client is entitled to a new trial because of an FBI examiner’s misstatements during trial testimony about the DNA evidence in the case.
According to court documents, the examiner testified to explain how she detected Caldwell’s DNA on the bandana, gun and wig. She also explained how she calculated the “likelihood ratio,” which assesses the probability that a suspect contributed their DNA to the evidence.
The examiner testified that Caldwell was the source of the DNA on the bandana and that there was a strong likelihood that Caldwell was a contributor to the DNA on the wig and gun.
During her testimony, the examiner deviated from the FBI’s recommended language when she provided the ratios, using the word “if” when she should have used the word “that.” The subtle difference can change the technical meaning of a likelihood ratio.
“The effect of these incorrect statements was to communicate to the jury that it was 480,000 and 4.6 million times more likely that Caldwell was a contributor to the DNA evidence, as opposed to that the DNA results were 480,000 and 4.6 million times more likely if Caldwell was a contributor,” U.S. District Judge Mark Cohen explained in his June 2019 ruling denying Caldwell’s motion for a new trial.
Cohen, a Barack Obama appointee, found that the examiner’s conclusions regarding the DNA evidence remained the same despite her incorrect use of language.
Monnin urged the panel to reverse Cohen’s decision Tuesday, highlighting the examiner’s error as especially egregious.
“She was not just suggesting, she was dictating that my client was a contributor of DNA to the reference sample,” he argued.
Monnin also questioned whether the government provided enough evidence at trial to prove the federally insured status of the bank and argued that police unfairly drove the Bank of America teller to identify Caldwell at the scene of the arrest.
Assistant U.S. Attorney Bret Hobson asked the panel to deny a new trial.
“There is simply no statistical or practical significance to the deviations [the examiner] made,” Hobson said.
U.S. Circuit Judge Adalberto Jordan, an Obama appointee, immediately questioned Hobson’s argument.
“That can’t be right. You mean to tell me that the testimony didn’t change in any way because of her use of words?” he asked.
“I mean to tell you that the use of words — all it did was make it an awkward delivery… The subtle difference is so subtle that it doesn’t make a difference,” Hobson replied, adding that even if the case were retried, there was substantial proof of Caldwell’s guilt “independent of the DNA evidence.”
Jordan was joined on the panel by Senior U.S. Circuit Judges Frank Hull, a Bill Clinton appointee, and Gerald Tjoflat, a Gerald Ford appointee.
It is unclear when the judges will issue a ruling in the case.