“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 While the Toomer opinion was unpublished, I was able to obtain a copy of it.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.

-CM