EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Tuesday, April 5, 2016

"No Basis in Fact": Why Thiru's Closing in the Derrick Toomer Case Required a New Trial

In yesterday's episode of Undisclosed, we talked about the questionable nature of the arguments made by Deputy Attorney General Thiru Vignarajah and how similarly questionable arguments he made in the Derrick Toomer case led to Toomer's murder conviction being thrown out. While the Toomer opinion was unpublished, I was able to obtain a copy of it. You can download it here: Download Toomer.

The facts of the Toomer case are simple. Ralph Hall was found dead in a Baltimore parking lot. The State's theory of the case was that Michael Hayes hired Toomer to kill Hall, with Toomer later subcontracting the job out to George Johnson. The State's theory was that Johnson fatally shot Hall in Hall Ford's Expedition, with Toomer then picking Johnson up from the scene of the crime.

Jennifer Ingriton, an expert in the field of DNA analysis, testified at trial. She examined several DNA samples that the police seized from Mr. Hall’s Ford Expedition vehicle and compared them to known samples, including one of appellant’s DNA. She explained that with respect to each sample, she could draw one of the following conclusions:

“Well, we could draw a statement of inclusion where we have identified the person in the sample. There could be a statement of exclusion, where they’re not in the sample. There could be a statement where they can’t be excluded and can’t be excluded also would mean they can’t be included....

Ms. Ingriton testified that she determined that George Johnson contributed to three of the samples. She excluded appellant as a contributor from several of the DNA samples. She found no samples in which appellant was a contributor. She stated that appellant could not be excluded from Sample #15, a sample from the front passenger side door interior hold bar. Ms. Ingriton explained that appellant matched at eight locations in Sample #15, which meant that he could not be excluded as a contributor, but that it was not enough to include him. The minimum for including appellant as a contributor, according to Ms. Ingriton, was a match at ten locations, “but it could be nine as well.” In response to a question from defense counsel, Ms. Ingriton testified that she could not determine whether someone had tried to wipe off DNA in the vehicle or not.

As a point of reference, a study of 65,000 felons in an Arizona database revealed that 122 pairs of felons matched at 9 of 13 locations while 20 matched at 10 of 13 locations. I'm not sure how many would have matched at 8 of 13 locations, as was the case with Toomer. I do know how the Court of Special Appeals of Maryland characterized it: "an inconclusive test is evidence of nothing."

This, however, was not how the prosecutors characterized it. According to ASA Patricia McClane in her closing argument:

“We know that [George Johnson and appellant] met up later. How do we know they met up later? The DNA. James Nelson and the DNA.”

McClane's co-counsel was Thiru, and he doubled down on these claims in his rebuttal closing. Here are some excerpts:

1. “Common sense tells you that [appellant] is the one who picked [Mr. Johnson] up, but the DNA also points at [appellant], because there is one spot where they didn’t erase the evidence well enough, where [appellant] left enough evidence that he couldn’t be excluded.”

2. “I’m going to say it again, ladies and gentlemen, as the DNA expert told you, if there had only been three matches, he could have been excluded; but because there were eight, just short of the threshold where he could have been included, the DNA expert told you that there was enough DNA that [appellant] couldn’t be excluded. They didn’t quite do their job well enough.”

3. “And then the detective continues to investigate. He finds out that the DNA points to George Johnson and [appellant].”

4. “[Michael Hayes] corroborates James Nelson. The DNA corroborates it. James Nelson told the detectives that George Johnson and [appellant] committed this murder months before the DNA analysis had been done. Just a massive coincidence that George Johnson’s DNA is present in the pockets and on the steering wheel and that [appellant’s] DNA can’t be excluded from the passenger armrest?”

I will leave it to the Court of Special Appeals of Maryland to explain why Thiru's comments necessitated a new trial:

Twice in rebuttal argument, the prosecutor argued that the DNA pointed to appellant, even though there was no DNA evidence pointing to appellant at all. Several other times, the prosecutor theorized that appellant’s DNA could not be excluded from the sample because he did not do a good enough job wiping it away. Not only was there no evidence that appellant wiped away any DNA—Ms. Ingriton testified she could not draw such a conclusion—the prosecutor’s argument took Ms. Ingriton’s statement that appellant “could not be excluded” and turned it on its head. The prosecutor was saying essentially that appellant’s DNA was included in the sample initially, but because he tried to wipe it away, the expert was able to determine only that appellant could not be excluded. The prosecutor misrepresented the evidence, creating a picture in which appellant, complicit in the crime, attempted to erase the evidence. The prosecutor’s argument had no basis in fact. It is hard to say that the prosecutor’s argument did not mislead the jury.



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Replace DNA with "cell phone".

Posted by: BruceinPhilly | Apr 5, 2016 9:31:31 AM

It's encouraging that the same court that will hear the inevitable appeal of Adnan's PCR hearing so clearly saw thru Thiru's BS in this case. I wasn't sure up till now that there was any recourse when prosecutors pulled stunts like this unless the defense team called them on it.

Posted by: Dan | Apr 5, 2016 10:13:01 AM

Excellent points raised here, CM. Constructing false dichotomies is a classic technique in misdirection: DNA analysis hasn't proved that Toomer's DNA can be excluded, therefore it must be included. That's complete BS and he knows it.
Aren't there any repercussions for Prosecutors who deliberately attempt to mislead jurors with this doubletalk? I'm astounded that TV hasn't been held accountable for this dishonest misrepresentation of the evidence.
This "win at all costs" approach is tainting our legal system. Prosecutors should be looking for the truth, not just the win.

Posted by: PatrickB | Apr 5, 2016 10:35:33 AM

How long will he be able to get away with this? Will there ever be any repercussions?

Posted by: Christine | Apr 5, 2016 11:10:17 AM

At what point will Thiru decide that lying to a court is not a good idea?? You’d think the fact that he keeps getting called out on it would make a difference, but so far, apparently not. But then, as long as there are no negative consequences to him doing it, why should he stop?

Posted by: Eric Wolff | Apr 5, 2016 1:26:00 PM

TV misrepresents evidence to a court and jurors because what happened in this case is the worst outcome he can reasonably expect: a conviction gets overturned. It's so rare for prosecutors to be personally sanctioned for this kind of misconduct it is essentially a non-existent risk.

Posted by: bacchys | Apr 5, 2016 2:47:53 PM

All of the evidence seems to be overwhelmingly in favor of overturning the Adan's guilty verdict. What's your best guess on why Judge Welch is taking so long is making a ruling?

Posted by: mariel | Apr 5, 2016 6:24:49 PM

We desperately need professional juries. You have to understand Bayes's Rule, Prosecutor's Fallacy, Defense Attorney's Fallacy, etc., to have any hope of weighing this appropriately, and I doubt 1/100 of jurors empanelled are anywhere close.

Posted by: anon | Apr 5, 2016 7:00:21 PM

Two words come to mind, "Mike Nifong". It's almost beyond belief that multiple courts will allow an "Officer of the Court" to get away with playing Three Card Monte on numerous occasions. I'm most curious if a DA (SA or flavor of the week) is immune from slander in MD, especially if they are sanctioned for playing fast and loose with the facts.


Posted by: Guido | Apr 5, 2016 8:42:47 PM

That is the problem: prosecutors never face any consequences for this kind of behavior--only potential benefits.

The more convictions they get, the better they fare career-wise. Seeing some of the letters sent between Urick and others within the state show that the more absurd the untruth they get the jury to swallow the better. "We couldnt have done it without your testimony, medical examiner. We found out from an unimpeachable source that the defense counsel didn't catch on to what you testified to." It's as if he's bragging about just how crazy of a lie they pulled off--sickening.

And never any consequences. Not even a slap on the wrist. Worst case, the conviction gets overturned--but when that happens (the rare case it ever does), so much time has passed that they've already squeezed all the benefit they were going to get from the win. Zero downside, only upside. This is why they keep doing it.

Posted by: Paul | Apr 6, 2016 2:40:02 AM

Very well done. Misstates/misquotes, a common objection. Some trial attorneys give speaking objections so the Jury understands - "No one said that" - then citing Rule when admonished.

Posted by: John Gravina | Apr 6, 2016 7:14:53 AM

I hope attorney general brian frosh is keeping track of the lies spewing out of TV's mouth

Posted by: Linnette | Apr 6, 2016 8:06:33 AM

I can't decide if it would be a good thing or a bad thing for a logic class in law schools. It seems for Thiru, at least, that he uses false positive/negative and inclusive/exclusive results to his advantage depending on what argument he's trying to make. Same in the Avery case.

BTW, is there any agreed number of matches for DNA yet to be reliable? I know the 1 in a billion statement is bogus, but other than x/y, x/x (and even THAT may be suspect!), what is the adequate number of matching loci for assurance of identity? (Leaving aside mixed presence)

[Colin, are you aware you comments section refreshes in the middle of writing? Hint to others if this is happening to you, too: create in a text editor or word processor then copy paste.]

Posted by: JLWhitaker | Apr 8, 2016 5:04:57 AM

A politically based legal system will inevitably produce corruption, because the personal stakes are too high. Appointment to LE/criminal justice roles should be based on merit and qualifications, not on popularity.

Posted by: Squatch | Apr 9, 2016 6:08:18 AM

Squatch: Unless the system is set up to reward qualified people who have merit and punish those who corrupt the justice system, how we choose judges and state/federal prosecutors won't matter. Either they will be elected due to "popularity" or be appointed for other unjust reasons.

Posted by: Dan | Apr 12, 2016 6:12:42 AM

While I do agree Thiru said a lot of things that were misleading, as a juror who sat on this trial, I can tell you this man was not convicted because of the misleading statements. The jury saw right through the lies, and even discussed them. Just so everyone knows the facts.

Posted by: J | Jul 27, 2017 11:32:46 AM

J- actually no despite your comment, we don't know all the facts. Care to elucidate for us? I find it hard to understand why A prosecutor would feel the need to blatantly lie if there was indeed sufficient evidence already. Because let's not mince words here, no statements were absolute blatant lies and knowing mistatements of fact designed to trick jurors, intentionally. These aren't mistaken clumsy slips of the tongue, statements which might slightly mislead. No. There is 0% chance, absolutely no way whatsoever Thiru did not know PRECISELY what he was doing when he said them. Thiru is no dummy, on the contrary he is sharp as a hawk, and he very much understands what basic DNA results mean and don't mean.

So if in fact this was an open and shut case anyways, then that was a pretty irresponsible thing for Thiru to do, giving the defense such a strong and obvious path to appeal. Huh, weird choice if that's true about the other evidence.

Posted by: Paul | Jul 31, 2017 2:35:32 PM

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