NATIONAL REGISTRY OF EXONERATIONS EDITORIAL NOTE: "Last month, we published the case of John Ausby, who was exonerated on April 20, 2020. He had been released from prison three months earlier, after serving 47 years, 4 months, and 18 days for a murder and rape in Washington, D.C., in December 1971. Ausby's time lost to a wrongful conviction is the most of any case in the Registry, and he joins 247 other men and women who lost at least 25 years in prison to a wrongful conviction. For a wrongful incarceration of nearly 50 years, Ausby's case received very little coverage in the media. After a judge vacated Ausby's conviction for murder in 2019, the case dropped out of sight while his attorneys looked for a procedural path to vacate the rape conviction, which was tied up in complicated jurisdictional issues. These were resolved on April 21, 2020. That was too late for Ausby to savor his victory. He had died three weeks earlier. Part of the state's case against Ausby relied on an analysis of hair found at the victim's home. An FBI agent testified that more than two dozen of the hairs were "microscopically identical" to samples provided by Ausby. In 2015, as part of a sweeping review of hair analysis by FBI agents, the government said the hair testimony in Ausby's case was false and misleading. That led to his release from prison in 2019. Ausby is one of 125 exonerees for whom microscopic hair comparison analysis contributed to their conviction. A Registry report on these cases is expected to be published before the end of this year."
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PASSAGE OF THE DAY: "In September 2016, Ausby’s attorneys at the Public Defender Service for the District of Columbia, led by Adam Thompson, filed a motion to vacate his conviction based on the prosecution’s representation that it would “not contest that the erroneous evidence was false or misleading or that the government as a whole should have known that it was false or misleading.” In August 2017, U.S. District Judge Beryl Howell denied the motion. Judge Howell ruled that the other evidence in the case was “overwhelming” and that even if the false hair testimony had been presented, Ausby still would have been convicted. Ausby appealed, and on March 1, 2019, the U.S. Court of Appeals for the District of Columbia Circuit reversed Judge Howell. The Appeals Court ruled that Judge Howell should have vacated Ausby’s conviction. “Agent Neill’s testimony was the primary evidence that directly contradicted Ausby’s defense theory—that Ausby had been in Noel’s apartment during her two-week absence but not on the day of her rape and murder.” When the case was remanded, Judge Howell vacated Ausby’s conviction for the murder. The judge said that because Ausby had already completed his sentence for the rape conviction, she lacked jurisdiction to vacate that part of the case. Ausby had also completed his sentences for the murders of Tapp and Frahm. The defense then filed a petition for a writ of coram nobis to vacate the rape charge, and in July 2019, Judge Howell denied it, citing the jurisdictional ground. The defense filed an appeal. On January 10, 2020, while the appeal was still pending, the prosecution dismissed the murder charge. Ausby was released, more than 47 years after he was convicted. At that point, the defense filed a renewed motion for a writ of coram nobis to vacate the rape conviction, arguing that because Ausby now was subject to sex offender registration, Judge Howell actually did have jurisdiction. The defense asked Judge Howell for an “indicative ruling” based on Ausby’s changed circumstances should the Appeals Court remand the case. The prosecution filed a response saying it would not oppose the renewed motion. On February 19, 2020, Judge Howell issued an indicative ruling saying she agreed she had jurisdiction and that she would vacate Ausby’s rape conviction if the case were remanded by the Appeals Court. On February 20, 2020, Ausby’s lawyer filed a motion in the Appeals Court requesting the case be remanded and cited Judge Howell’s indicative ruling. The prosecution filed a response the following day, saying it did not oppose the remand of the case. On April 21, 2020, the Appeals court issued an order remanding the case to Judge Howell. The order consisted of a single paragraph: “ORDERED that the appeal be dismissed and the case be remanded to the district court to enable it to enter an order granting the renewed petition for writ of coram nobis, in accordance with the order entered by the district court on February 19, 2020. Ausby was unable to celebrate the ruling. On April 1, 2020—just 20 days earlier—Ausby had died."
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NATIONAL REGISTRY OF EXONERATIONS ENTRY: John Ausby; District of Columbia: By Maurice Possley: Published on July 12, 2023. Contributing Factors: False or misleading forensic evidence.
GIST: "At about 5 p.m. on December 14, 1971, 21-year-old Deborah Noel left work to go to her apartment in northwest Washington, D.C. to make dinner for her boyfriend and boss, Richard Ecroyd. About an hour later, Ecroyd arrived. He knocked and got no response, then knocked again, louder. He heard Noel scream and then a gunshot.
With the help of building personnel, the apartment door was forced open. Noel was found lying on her bed next to an open window of the third floor apartment. She was nude from the waist down and had been shot in the left temple.
Police found vials of scented oil in the room as well as on the ground below the window. The vials were traced to Phoenicia, Ltd., a store specializing in oils, incense and other imported items. Artis Hinson, the owner of the store, identified the handwritten labels as being done in his handwriting. He said that one of his frequent customers was a Black man he knew as “Jahan,” who wore a robe and a fez. Hinson said that he had sold the vials found at the scene on December 6, 1971. He said that the man returned later and purchased more of the oil, which was unusual for a repeat purchase to be made in such a short time. Hinson said the man said he had lost his previous purchases “going through a window.”
Police found witnesses who said they had seen a Black man wearing a robe in the apartment building prior to the crime. One witness was shown a photographic lineup and identified 21-year-old John Ausby as the man she saw.
On December 17, 1971, Ausby was arrested in New York City. Police confiscated a .357 Magnum revolver that contained two empty cartridges and four live bullets. He was charged with murder, rape, and burglary for the death of Noel. He also was charged with the October 1971 murders of two women from Australia who were visiting Washington, D.C.
On November 2, 1971, the bodies of Sharan Tapp, 22, and Sheral Frahm, 24, had been found in their apartment about a mile from Noel’s apartment. They apparently had been fatally shot on October 29. Two witnesses told police that Ausby subsequently had admitted he killed Tapp and Frahm, and referred to them as “white devils.”
In August 1972, Ausby went to trial in U.S. District Court for the District of Columbia for the murder of Noel. The case of Tapp and Frahm had been severed for a separate trial.
Twenty-three witnesses testified for the prosecution during the four day trial. Grace Pyles testified that she lived two doors away from Noel’s apartment. She said that around 5:45 p.m. on the day of the murder, she heard a “blood-curdling scream” followed by a gunshot about 10 minutes later.
Ecroyd testified that he had been Noel’s boss for about two years. He said she left work at about 5 p.m. to go to the apartment to prepare dinner for them. He said she had not been to the apartment for the previous two weeks as she had been staying with her mother. Ecroyd said that when he arrived, he knocked and got no response, then knocked harder. He heard Noel scream and then heard a gunshot.
He said he went to the reception area to get a key, and when the door was unlocked, it was still secured by a chain. A maintenance man was summoned, and the door was forced open. Ecroyd said the bed where Noel was found was unmade. A window in the bedroom was open.
Charles Wesley, the maintenance engineer, testified that he noticed that an external service entrance for building employees was closed but unlocked, and there were “a few scrape marks below the door knob.”
Wesley also testified that on December 10, 1971, four days before the murder, he was taken “by surprise” by a Black man that he did not recognize walking around wearing “one of these African gowns and a fez.”
District of Columbia police officer Donald Cherry testified that other officers were on the scene when he arrived. He said the victim’s coat, pantyhose, shoes, and underwear were at the foot of the bed. He said a small glass vial was protruding from under the coat, and another was on the nightstand. Stockings were tied around the victim’s left wrist and her neck. Cherry said he dusted for fingerprints, but found nothing suitable for comparison in the bedroom. He said he inventoried the victim’s clothing, bedding, loose hairs from the bedspread and body of the victim, as well as a towel from the floor.
Robert Langley, a technician for the District of Columbia mobile crime lab, testified that he saw two footprints in the alley below the apartment. He said he made plaster casts of the prints. The prosecution and defense stipulated that the casts were “worthless for the purpose of comparison” due to lack of detail. He said he took photographs of three vials found below the window as well as a Chapstick. He said he did not dust the vials for fingerprints. He said he dusted the kitchen and the Chapstick with a “negative result.”
Hinson testified and identified Ausby as the man he knew as “Jahan,” and to whom he had sold vials of scented oil obtained from India. Hinson said Ausby was a frequent customer, coming in once or twice a month to buy oils and “once in a while” some “Eastern clothes.” Hinson said on December 6, 1971, Ausby purchased five or six dram-sized bottles, labeled “Fantasia,” “Gardenia,” “Night Queen,” “Jasmine 68,” and “Manoranjan.” Hinson said he hand-wrote the names on the labels. He said that the vials collected at the scene were vials that he had sold.
Hinson also said that about a week later, Ausby returned and bought two more drams. He said that when he asked Ausby why he was purchasing oils so frequently, knowing of the large purchase a week earlier, Ausby replied that he had “lost [them] going through a window.” Hinson said he believed this occurred on December 15, the day after the crime.
Dorothy Rager lived next door to Noel’s apartment. Rager testified that on December 9, she returned home from work and saw a Black man walking in front of Noel’s door wearing a “long robe that was red striped and sort of tan striped…wearing a red fez.” She said she saw the man the following day in the same place wearing a gold and brown tweed jacket and carrying a “fat case.” She testified that on February 17, 1972, she was shown “10 or so” photographs by the prosecutor and two detectives. She said she picked out the photograph of Ausby as the man she saw in the hallway. She said she was “positive.” On the witness stand, she again picked out Ausby from the photographs, and she identified him in court.
During cross-examination, Rager admitted she had seen a photograph of Ausby in the newspaper prior to her initial identification, but denied she was influenced. She said she was certain because she was an artist and sculptor and had an eye for detail. She said that when she saw the photograph in the newspaper, she had drawn a fez, a robe, and a beard on it and concluded that he was the man she saw.
Susan Shook lived two doors down from Noel’s apartment. She said that on December 9, she had arrived at home to find that the top lock on her door—to which she did not have a key—was locked. After retrieving a key from the desk, she entered and found that her cats were hiding and appeared to be fearful. She found milk on one of the cat bowls, which she said she never fed to them. She also said the apartment smelled of perfume. Shook said the following morning she was getting dressed when she heard one of her cats growling. Shook said she walked toward the kitchen and saw the door that led from the kitchen to the hallway “close very slowly and very silently.” Shock said she locked the door and called the apartment building office, but not the police.
George Crockett, a “porter” in the building, testified that he responded to Shook’s call. He said that as he got off the elevator on the third floor, he saw someone coming down the hall “in some robes, cream-colored, with fringe, and a black fez on his head.” Crockett said the man was Black and had a goatee. He said that when he got to Shook’s kitchen door, he noted that some of the paint appeared to have been “scrubbed off” the bolts and lock. He said he left a hammer for Shook.
FBI special agent Robert Neill testified that he was assigned to the FBI’s Microscopic Analysis Unit. He said he had conducted between 35,000 and 40,000 individual microscopic examinations of hair and had testified as an expert between 200 and 250 times. He testified that microscopic hair analysis was “recognized as scientifically valid among scientists.”
Neill said 43 head and pubic hairs had been collected from the crime scene and the victim’s body. He said that 27 were “microscopically identical” to Ausby’s hair samples, nine were fragments not suitable for comparison, and seven were “inconclusive.” He said he based his findings on comparing a total of 19 microscopic characteristics. He said that 19 was “a fairly adequate” number. He further testified that with this number of characteristics being compared, he had never seen a false match. He estimated that two features of Ausby’s hair were unusual and found in “less than five percent” of hairs of Black individuals he had examined.
Neill testified that he could not recall “ever having seen this many characteristics just matched up at random.” He also told the jury that he had been unable to form an opinion about two hairs in only “10 or 15” instances, and in those cases, only 10 or 12 characteristics were involved.
District of Columbia police officer Joseph Mullinax testified that he had examined fingerprints found at the scene. He said that “no two fingerprints of different individuals have ever been found to be alike,” including identical twins. He said that only one print was suitable for comparison—a thumbprint from a doorway to Noel’s apartment. He said it was a right thumb impression from Ausby. He said there was “no doubt” in his mind that the print was left by Ausby.
FBI agent Kenneth Nimmich testified that he performed gas chromatographic analysis of the oil found in a vial taken from Ausby when he was arrested in New York City. He said that he compared it to the vial found under the window to Noel’s apartment. He said they were “similar” and their outputs “matched.”
FBI agent Cortlandt Cunningham testified that the slug found next to Noel’s body was a .38-caliber bullet fired from a gun with a barrel that had five grooves and a right-hand twist. He said that the gun Ausby was carrying when arrested was a .357 Magnum revolver with a barrel that had five grooves and a right-hand twist. He said Ausby’s gun contained two empty cartridges and four live rounds. He said the live rounds were the “same type bullet” as the one that killed Noel. He said the .357 magnum was “the most powerful .38-caliber revolver…commercially manufactured” at that time. He said the recovered bullet was too badly mangled to be able to say whether it was fired by Ausby’s weapon.
Dr. James Luke, chief medical examiner of the District of Columbia, testified that he performed the autopsy. He said Noel died of a close contact bullet wound to the back of the head. He said the wound was caused by a large-caliber weapon with a “very high velocity.” Dr. Luke said the bullet could have been fired by a .357 Magnum, and was not fired by a .22-caliber, .32-caliber or a regular .38-caliber weapon. He also said he found sperm in the victim’s vagina.
Thomas Testaverde, the manager of the Greenwich Hotel where Ausby was arrested, testified that the hotel rooms cost $3 per night. He said he went up to Ausby’s sixth floor room following a report of a disruptive guest. He said that Ausby said people were bothering him and that they were “bothering the wrong person.” Testaverde said Ausby opened his coat and displayed a .357 Magnum strapped to his chest. Testaverde said he gave Ausby a different room and then called the police, who arrested him.
The defense called no witnesses, but argued that Ausby had been squatting in Noel’s empty apartment while she was staying with her mother, but was not present when she came home. The prosecution argued that Ausby was present when she arrived, attacked and raped her, and then killed her when Ecroyd began pounding on the door.
The prosecutor emphasized the hair comparison evidence as proof that Ausby had committed the crime. He cited agent Neill’s testimony that “about five percent of people” would have the two unusual characteristics found in Ausby’s hair. The prosecutor noted that Neill had “never seen the hairs from two different individuals, known individuals to be microscopically alike” when comparing 19 characteristics.
The defense closing argument, which took up nine pages of transcript, less than half of the prosecution’s initial closing argument, noted that the fingerprint and oil found in the apartment didn’t prove Ausby committed the crime. The defense lawyer attacked the hair testimony, saying that the chance of a false match was unknown. He said that essentially agent Neill had said that “90 percent of Negro hair looks to him to be the same.”
In rebuttal, the prosecutor said that the rarity of Ausby’s hair characteristics “amounts to a positive means [of identification] here.”
On August 24, 1972, after 90 minutes of deliberation, the jury convicted Ausby of felony murder, rape, and burglary. Before sentencing, the trial judge, unprompted by either the defense or prosecution, questioned whether Ausby was legally sane at the time of the crime. On August 30, 1972, following a one-day hearing, the jury found Ausby was sane.
Sentencing was delayed until Ausby went to trial on the charges of murdering Tapp and Frahm. That trial, in January 1973, lasted four days and ended with the jury convicting Ausby of two counts of second-degree murder.
Ausby was sentenced for all three murders at the same time. He was sentenced to life in prison for the murder of Noel with a concurrent sentence of 10 to 30 years for the rape conviction. He was sentenced to concurrent terms of 10 to 30 years for the murders of Tapp and Frahm. Those terms were to be served concurrently with the life term for the Noel murder.
In 1973 and 1974, the U.S. Court of Appeals for the District of Columbia affirmed all of the convictions.
In September 2015, the U.S. Attorney’s Office for the District of Columbia notified Ausby that as part of a review of FBI testimony about hair analysis, the testimony by agent Neill had been deemed false. In a letter, the prosecution confirmed that it would “not dispute that [hair evidence] should be treated as false evidence and that knowledge of the falsity should be imputed to the prosecution.”
In September 2016, Ausby’s attorneys at the Public Defender Service for the District of Columbia, led by Adam Thompson, filed a motion to vacate his conviction based on the prosecution’s representation that it would “not contest that the erroneous evidence was false or misleading or that the government as a whole should have known that it was false or misleading.”
In August 2017, U.S. District Judge Beryl Howell denied the motion. Judge Howell ruled that the other evidence in the case was “overwhelming” and that even if the false hair testimony had been presented, Ausby still would have been convicted.
Ausby appealed, and on March 1, 2019, the U.S. Court of Appeals for the District of Columbia Circuit reversed Judge Howell. The Appeals Court ruled that Judge Howell should have vacated Ausby’s conviction. “Agent Neill’s testimony was the primary evidence that directly contradicted Ausby’s defense theory—that Ausby had been in Noel’s apartment during her two-week absence but not on the day of her rape and murder.”
When the case was remanded, Judge Howell vacated Ausby’s conviction for the murder. The judge said that because Ausby had already completed his sentence for the rape conviction, she lacked jurisdiction to vacate that part of the case. Ausby had also completed his sentences for the murders of Tapp and Frahm.
The defense then filed a petition for a writ of coram nobis to vacate the rape charge, and in July 2019, Judge Howell denied it, citing the jurisdictional ground. The defense filed an appeal. On January 10, 2020, while the appeal was still pending, the prosecution dismissed the murder charge. Ausby was released, more than 47 years after he was convicted.
At that point, the defense filed a renewed motion for a writ of coram nobis to vacate the rape conviction, arguing that because Ausby now was subject to sex offender registration, Judge Howell actually did have jurisdiction. The defense asked Judge Howell for an “indicative ruling” based on Ausby’s changed circumstances should the Appeals Court remand the case. The prosecution filed a response saying it would not oppose the renewed motion.
On February 19, 2020, Judge Howell issued an indicative ruling saying she agreed she had jurisdiction and that she would vacate Ausby’s rape conviction if the case were remanded by the Appeals Court.
On February 20, 2020, Ausby’s lawyer filed a motion in the Appeals Court requesting the case be remanded and cited Judge Howell’s indicative ruling. The prosecution filed a response the following day, saying it did not oppose the remand of the case.
On April 21, 2020, the Appeals court issued an order remanding the case to Judge Howell. The order consisted of a single paragraph: “ORDERED that the appeal be dismissed and the case be remanded to the district court to enable it to enter an order granting the renewed petition for writ of coram nobis, in accordance with the order entered by the district court on February 19, 2020.”
Ausby was unable to celebrate the ruling. On April 1, 2020—just 20 days earlier—Ausby had died."
PUBLISHER'S NOTE: I am monitoring this case/issue/resource. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL
https://www.blogger.com/blog/post/edit/120008354894645705/47049136857587929
FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices.
Lawyer Radha Natarajan;
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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YET ANOTHER FINAL WORD:
David Hammond, one of Broadwater’s attorneys who sought his exoneration, told the Syracuse Post-Standard, “Sprinkle some junk science onto a faulty identification, and it’s the perfect recipe for a wrongful conviction.”
https://deadline.com/2021/11/alice-sebold-lucky-rape-conviction-overturned-anthony-broadwater-1234880143/
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