Background
Richard Anthony Herod was convicted in Texas state court of aggravated sexual assault and aggravated robbery and sentenced to 99 years in prison. At trial, a state DNA analyst testified that Herod could not be excluded as a contributor to a DNA mixture found on a white T-shirt used to blindfold a victim. Herod’s defense expert agreed that he technically could not be excluded under the method used, although she testified that he realistically should have been excluded.
Years later, the Texas Department of Public Safety issued a supplemental report applying updated interpretation protocols and excluding Herod from all DNA evidence, including the mixture on the T-shirt. After the Texas Court of Criminal Appeals dismissed his second state habeas application on procedural grounds, Herod pursued federal relief under 28 U.S.C. § 2254. The district court found constitutional violations under Brady v. Maryland and Napue v. Illinois and granted habeas relief.
The Court’s Holding
On rehearing, the panel granted panel rehearing, denied rehearing en banc, withdrew its prior opinion, and substituted Judge Engelhardt’s opinion. Judge Richman concurred in the judgment only. The substituted opinion agreed with the district court that Herod had shown sufficient prejudice to overcome the procedural default because the DNA evidence was central to the prosecution’s case and the remaining evidence was contested.
The opinion nevertheless held that habeas relief was unavailable on the asserted Brady theories. Treating the later exclusion result as suppressed evidence would require a new constitutional rule barred by Teague v. Lane because Herod identified no evidence that the prosecution knew or believed at trial that he was excluded. His separate claim concerning scientific criticism of the DNA-mixture methodology failed because that debate was publicly available, and any undisclosed DPS awareness of the debate was not material.
The opinion also rejected the Napue claim. It concluded that Herod had not shown the challenged testimony was actually false and known, or chargeable as known, to be false when presented. Although the opinion assumed without deciding that DPS knowledge might be imputed to the prosecution for purposes of its analysis, it expressly left unresolved how far that principle extends. The panel reversed the grant of habeas relief on the Brady and Napue claims and remanded for proceedings on Herod’s remaining habeas claims.
Key Takeaways
- A habeas petitioner may overcome procedural default by showing that allegedly withheld or false forensic evidence caused actual prejudice, yet still lose because Teague or the merits foreclose relief.
- Brady did not require the prosecution to create a later-developed DNA exclusion result, and publicly available scientific criticism was not suppressed evidence.
- Later disagreement with a forensic expert’s methods or conclusions does not by itself establish that the expert gave false testimony actionable under Napue.
Why It Matters
The decision distinguishes evidence that later scientific developments cast doubt on a conviction from evidence establishing a federal constitutional violation at the time of trial. Even where updated testing excludes a defendant from the only physical evidence linking him to a crime scene, federal habeas relief still depends on satisfying the specific requirements of Brady, Napue, and Teague.
The ruling also cautions against treating evolving forensic standards as proof that prosecutors knowingly presented false testimony, while leaving the district court to address Herod’s other habeas claims on remand.