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Argument Preview: McDaniel v. Brown

Below, Erica Goldberg previews McDaniel v. Brown, one of the three cases to be heard by the Supreme Court on Tuesday, October 13. Erica is a graduate of Stanford Law School. Check the McDaniel  v. Brown (08-559) SCOTUSwiki page throughout the summer for additional updates.

At the heart of McDaniel v. Brown is the “prosecutor’s fallacy,” a trial error in which the prosecution equates the probability of the defendant’s DNA randomly matching the DNA found at the crime scene with the probability of the defendant’s innocence.  But it is the possible analytical fallacies contained in the Ninth Circuit’s opinion granting relief to a potentially innocent defendant, that have caused confusion among both sides as to what the court of appeals actually decided.   On October 13, the Court will hear oral argument to determine whether the Ninth Circuit erroneously awarded a convicted child rapist a new trial.


In 1994, a nine-year-old girl, “Jane Doe,” was brutally raped in her home while her mother was at a local bar.  When the police arrived, Jane was covered in blood from the knees down.  Jane’s mother told police that she suspected her former husband, who had threatened to sexually assault Jane to “get back at” her.

Jane could not identify her attacker, but she described his clothes to police and told them that he smelled of alcohol and vomit.  Police arrested Troy Brown, a family friend who had gotten drunk the night of the attack and had vomited on his clothes.  Some of Jane’s description did not match Brown, and he did not have any blood or abrasions on him after the assault.  In addition, Jane sometimes confused Troy Brown with his brother Trent.

Troy Brown was tried in Nevada state court, where a DNA expert for the prosecution told the jury that Brown’s DNA matched the DNA found in the semen in Jane’s underwear.  According to the expert, only one in three million people in the United States would randomly match the rapist’s DNA.  In response to further questioning by the prosecution, the expert testified that this meant that there was only a one in three million chance that Brown was innocent.  This specious logic is referred to as the “prosecutor’s fallacy because the probability that DNA of a random individual will match the DNA at a crime scene is different than the probability that an individual is innocent, given that he is a DNA match.  The “one in three million” number represents the former probability, which is only one factor in determining the latter probability.  (To better understand this, imagine a container holding red balls and white balls.  You are told that 100% of the red balls are made of plastic, and only 1% of the white balls are plastic.  You therefore know that there is a 1% chance that a white ball will be plastic.  However, you do not know the percentage chance that, if a plastic ball is selected, that ball is white because the amount of white balls may far outnumber the amount of red balls.  In this example, red balls represent guilt and white balls represent innocence.  Plastic represents a DNA match.  See  The prosecutor’s fallacy is recognized as inaccurate and prejudicial by many courts, which have held that prosecutors are forbidden from directing juries to conclude that the odds of random matching equal the odds of innocence.

The jury convicted Brown of two counts of sexual assault of a minor.  Brown sought post-conviction relief at the state level, and then petitioned for a writ of habeas corpus in federal court.  The district court granted Brown’s habeas petition on the ground that there was insufficient evidence for a rational juror to find Brown guilty beyond a reasonable doubt.  This holding was based partially on testimony admitted during the habeas proceedings by biology professor Laurence Mueller, who explained the concept of the prosecutor’s fallacy and detailed other errors made by the prosecution’s DNA expert, including an underestimation of the probability that Trent Brown, as Troy’s brother, would also match the DNA found at the crime scene.

The Ninth Circuit affirmed the district court’s holding.  First, it noted that the prosecution twice conceded during state post-conviction relief that, without the DNA evidence, there was insufficient evidence to convict Brown.  It then held that the district court did not err in expanding the record to include Professor’s Mueller’s testimony, and it concluded that the state court improperly applied the test for determining whether sufficient evidence existed to convict Brown.  According to the Ninth Circuit, no reasonable trier of fact could have found Brown guilty in light of the evidence discrediting the DNA testimony presented at trial.

The Ninth Circuit explained that a federal habeas court may exclude evidence if its admission renders the trial fundamentally unfair and thus violates due process; in such a scenario, moreover, this evidence may be ignored when conducting a sufficiency of the evidence analysis.  Considering all of the evidence, the Ninth Circuit determined that 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.”  However, rather than ordering Brown’s release, the court instead ordered a new trial, notwithstanding that the Double Jeopardy Clause precludes a new trial after a finding of insufficient evidence.

Judge O’Scannlain dissented.  He emphasized that, under 28 U.S.C. § 2254, a habeas petition may be granted if the state court unreasonably applied clearly established federal law.  The state court would therefore have to be objectively unreasonable, and not simply erroneous, in its determination that a rational trier of fact could have found Brown guilty of sexual assault.  In his view, there was ample evidence to support Brown’s guilt; instead of focusing on inconsistencies and conflicts in the trial testimony, the majority should have viewed the evidence in the light most favorable to the prosecution.  He also noted that, even if aspects of the DNA evidence were undermined by Professor Mueller’s testimony, this evidence should not have been discarded in its entirety.

Petition for Certiorari

On October 24, 2008, Nevada filed a petition for certiorari in which it asked the Supreme Court to consider questions:  (1) what is the standard of review for a federal habeas court analyzing a challenge to the sufficiency of the evidence, and (2) can a federal habeas court expand the record to discredit evidence presented at trial.

The State argued that the Ninth Circuit erred in expanding the record to include Professor Mueller’s testimony, by using that testimony to disregard evidence at trial, and by failing to review the evidence in the light most favorable to the prosecution.  The State also contended that Brown never challenged the admission of the DNA testimony in his state-court proceedings.

In his brief in opposition, Brown countered that the State had previously conceded that, without the DNA testimony, there was insufficient evidence to convict Brown, and therefore the State was estopped from asking the district court to analyze the evidence in the light most favorable to the prosecution.  In addition, Professor Mueller’s testimony merely clarified and supplemented the DNA evidence given at trial, and did not constitute an impermissible expansion of the record on habeas review.

Certiorari was granted for both of the questions presented on January 26, 2009.

Merits Briefs

The State’s merits brief expanded upon the arguments made in its petition, relying mainly on the position that a federal habeas court must limit its consideration to evidence presented at trial when determining whether evidence is insufficient as a matter of law.  Sufficiency claims are analyzed using only evidence introduced at trial, and a habeas court must consider all of the evidence presented at trial.  Because habeas relief can be granted only if the state court unreasonably applied federal law, a habeas court cannot consider evidence outside of the trial record in assessing a sufficiency claim.  The State asserted that “[r]esolution of this case in Troy’s favor would have the effect of making a state court trial a mere formality, a warm-up for proceedings in federal court.”

Detailing the evidence against Brown, the State contended that the extraordinarily low probability that, if he were innocent, Brown’s DNA would match the DNA found in Jane’s underwear remains significant, even if it is not equivalent to the probability of Brown’s innocence.  Finally, the State contended that crediting Professor Mueller’s testimony would render Brown’s habeas claim unexhausted, because the state court was unable to assess this witness when considering Brown’s sufficiency claim during state post-conviction proceedings.

Brown’s brief on the merits piggybacked off of, but reached a different conclusion than, the amicus brief submitted by the United States, which argued that, based only upon all of the record evidence at trial, a reasonable juror could have found Brown guilty beyond a reasonable doubt.  Importantly for Brown, the United States also contended that the Ninth Circuit’s analysis appears to be based on the view that admission of the DNA testimony violated Brown’s due process rights because it was so unreliable.  The U.S.’s rationale was that the Ninth Circuit ordered a new trial, a remedy for improperly admitted testimony instead of for insufficient evidence.  However, the United States posited that Brown did not properly raise this claim at the state or federal levels.  According to the United States, significant social costs would arise if “defendants [can] relitigate their convictions based on newly submitted evidence, and prohibit[] the State from retrying these individuals if a court finds that new evidence casts sufficient doubt on the evidence at trial.”

Perhaps recognizing that the Ninth Circuit’s sufficiency analysis and relief were seriously flawed, Brown’s brief argued that the Ninth Circuit must have been conducting due process analysis instead of an assessment of the sufficiency of the evidence.  In his view, the Ninth Circuit correctly determined that the improper and prejudicial testimony of the prosecution’s DNA expert violated due process, and that error, in light of the other evidence at trial, was not harmless.  Brown thus recast the Ninth Circuit’s reasoning to fit the due process mold and justified the Ninth Circuit’s decision to award a new trial.  Brown then argued that the questions presented, which pertain to a sufficiency-of-the-evidence analysis, were not relevant.  He asked that the judgment be remanded for the Ninth Circuit to clarify its decision or that the writ be dismissed as improvidently granted.