State v. Fair
A-15-798
| Neb. Ct. App. | Aug 22, 2017Background
- John H. Fair was convicted by jury of attempted murder, assault on an officer, felon in possession of a weapon, flight to avoid arrest, and two counts of using a firearm; sentence 41–67 years; convictions affirmed on direct appeal.
- Fair obtained DNA testing under Nebraska’s DNA Testing Act on Exhibit 29 (a black hooded sweatshirt) and related swabs; SERI testing produced mixed and partial profiles: Fair excluded as major contributor, excluded on sleeves, but testing was inconclusive as to whether Fair could be a minor/trace contributor in the hood area.
- The district court held a hearing after stipulation and received expert affidavits (SERI and Nebraska Crime Lab) explaining the inconclusive results and limits of interpretation of trace DNA.
- The district court found the DNA results did not exonerate Fair, did not falsify or sufficiently discredit the critical eyewitness identification by Officer Urkevich, and were “inconclusive” such that a new trial would likely not produce a different result.
- Fair appealed, arguing the court erred by considering inconclusive DNA results, by denying vacatur under the DNA Testing Act, and by denying a new trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court abused discretion by considering inconclusive DNA results | Fair: inconclusive results would be inadmissible at trial and should not be considered to deny relief | State: DNA Testing Act requires the court to consider all testing results, including inconclusive ones | Court: No abuse; prior Nebraska cases permit consideration of inconclusive results |
| Whether DNA results warranted vacatur under the DNA Testing Act | Fair: testing excludes his DNA on Exhibit 29 and thus conclusively establishes innocence | State: results do not falsify or discredit essential trial evidence (eyewitness ID and circumstantial proof) | Court: Denied vacatur; results do not conclusively establish innocence |
| Whether DNA results warranted a new trial under the DNA Testing Act | Fair: exclusion/inconclusive results would have altered the jury’s assessment of ID | State: DNA does not create reasonable doubt or show a different factual scenario given strong ID and other evidence | Court: Denied new trial; results would likely not produce a substantially different result |
Key Cases Cited
- State v. Parmar, 283 Neb. 247 (explains standards for vacatur and new trial under Nebraska DNA Testing Act)
- State v. Poe, 271 Neb. 858 (inconclusive postconviction DNA testing may be considered and may fail to exonerate)
- State v. Buckman, 267 Neb. 505 (inconclusive DNA results do not necessarily require vacatur or new trial)
- State v. Bronson, 267 Neb. 103 (partial/inconclusive profiles not inconsistent with trial evidence; no new trial)
- State v. Johnson, 290 Neb. 862 (limitations on admission of DNA evidence on direct appeal when statistical significance absent)
- State v. Young, 287 Neb. 749 (burden of proof in collateral DNA actions is on the movant)