FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BILL TYRONE JAMES DE WATSON,

Defendant-Appellant.

No. 13-30084

D.C. No.

4:06-cr-00045-

SEH-1

OPINION

Appeal from the United States District Court

for the District of Montana

Sam E. Haddon, District Judge, Presiding

Argued and Submitted

May 16, 2014—Seattle, Washington

Filed July 10, 2015

Before: Diarmuid F. O’Scannlain, Andrew J. Kleinfeld,

and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Kleinfeld
2 UNITED STATES V. WATSON

SUMMARY*

Criminal Law

The panel reversed the district court’s denial of Bill

Watson’s 2013 motion pursuant to the Innocence Protection

Act to order DNA testing of underwear, clothes, and vaginal

swabs in a case in which Watson was convicted in 2006 of

knowingly attempting to engage in a sexual act with a person

physically unable to communicate unwillingness.

The panel held that Watson satisfied the preconditions

that he identify a theory of defense that would establish his

actual innocence, and that the identity of the perpetrator was

at issue in the trial.

The panel held that new DNA tests that make previouslyuseless DNA capable of identification amount to “newly

discovered DNA evidence” under the Act, even though the

underwear and semen are not, thereby rebutting the

presumption of the motion’s untimeliness.

COUNSEL

Elizabeth L. Griffing, Axilon Law Group, PLLC, Missoula,

Montana; Wendy Holton, Helena, Montana; Brendan

McQuillan, Montana Innocence Project, Missoula, Montana,

for Defendant-Appellant.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. WATSON 3

Michael Cotter, United States Attorney, and Laura B. Weiss,

Assistant United States Attorney, Great Falls, Montana, for

Plaintiff-Appellee.

Colin M. Stephens (briefed), The Innocence Network,

Missoula, Montana, and Laura B. Weiss, Assistant United

States Attorney, Great Falls, Montana, for Amicus Curiae

The Innocence Network.

OPINION

KLEINFELD, Senior Circuit Judge:

We address whether new DNA tests that make previously

useless DNA capable of identification amount to “newly

discovered DNA evidence” under the Innocence Protection

Act.

Facts

Bill Watson was indicted for knowingly attempting to

engage in a sexual act with a person physically unable to

communicate unwillingness, as well as for assault of the

victim’s brother with a dangerous weapon. The case came to

federal court because the indictment charged that Watson, “an

Indian person,” committed the crimes “within the boundaries

of the Rocky Boy’s Indian Reservation, being Indian

Country.” He was convicted of the sex crime but not the

assault, and sentenced to 178 months of imprisonment to be

followed by five years of supervised release.

The alleged sex crime and assault occurred at a party at

J.M.B.’s house. Her mother was away, and the teenaged
4 UNITED STATES V. WATSON

children and their friends had obtained two bottles of rum. 

J.M.B., then 14 years old, got so drunk that a friend and her

brother were concerned about her choking on her vomit while

she slept, and gagged her to make her throw up. After she

vomited, they put her to bed in the master bedroom, her

mother’s room. Watson went to that bedroom.

From there, the accounts diverged. J.M.B. was unable to

give an account of what happened. She testified that she did

not remember anything, from when she passed out to when

her brother woke her up afterwards. She did not testify to any

sexual contact with anyone.

Watson testified that he went to that bedroom because he

needed to defecate. He did not want to use the downstairs

bathroom because he “didn’t want to smell up the bathroom

that everybody would go to, and I didn’t want to be laughed

at.” He had to pass through the master bedroom to get to the

upstairs bathroom. He testified that he never touched the

sleeping girl. When J.M.B.’s older brother asked him what

he was doing in the master bedroom, he said he was “coming

from the bathroom,” and the brother said “bull,” and accused

him of raping his sister.

The older brother testified that he went to the room

periodically to check on his sister, and caught Watson with

his pants down, having sex with his unconscious sister. He

testified that Watson had “his penis in [his] sister’s vagina.” 

Watson had his pants and underpants down, his sister’s pants

and underpants down, and was “pumping back and forth.” 

Since J.M.B. was unconscious, Watson would have had to

have pulled down her pants and underpants. When the

brother walked in, Watson withdrew and was visibly

“aroused.” Watson said he was sorry.
UNITED STATES V. WATSON 5

The brother and Watson agree that they got in a brief fight

after the brother encountered Watson in the bedroom, and

then Watson went downstairs. Watson came back with a

hammer and started swinging it at the brother. The brother

told the police and the doctor the next morning that Watson

had hit him with the hammer, but testified at trial that the

hammer never touched him. The doctor who examined him

testified that “he had bruises.”

Watson left the house after the fight. The brother and a

girl who was friends with the brother and with J.M.B. woke

J.M.B. up. The girl brought clothes not smelling of vomit,

including the mother’s underwear from the bathroom floor,

to put on J.M.B. J.M.B. testified that she had never worn

those underwear before, and her mother testified that the

underwear belonged to her.

The medical examination of J.M.B. was inconclusive. In

the exhibits submitted with the motion for DNA testing, the

emergency room physician stated that J.M.B.’s hymen was

not torn. She noted “no evidence of injury or laceration to the

vaginal wall,” and that “[t]he hymen appears only slightly

patulous.1It is not torn. It accommodates a narrow speculum

easily and the patient tolerates speculum examination really

quite well.” The medical report stated that there was no

injury to the vaginal walls. At trial, the physician testified

that she had observed a one millimeter abrasion, four small

skin tears, and bluish discoloration that might be bruising or

J.M.B.’s normal skin coloration of that skin, in the perineal

area.

1 GOULD MEDICALDICTIONARY 1142 (3d ed. 1972)(defining “patulous”

as “expanded, open, loose”).
6 UNITED STATES V. WATSON

The older brother, who was the only eyewitness to the

alleged rape, was drunk himself, having consumed rum from

both bottles that night and three or four beers earlier in the

day. And he testified inconsistently with his prior statement

to the police that Watson had hit him with a hammer.

An FBI DNA examiner testified that there was no semen

on the vaginal swabs. But she found semen in the underwear

J.M.B. was wearing. The FBI examiner testified that “I was

not able to determine the source of the semen in these

underwear, because of the extremely small amount of male

contribution that was identified by DNA analysis.” She

testified that she could not exclude any male from being the

source of the semen, because there was not enough of it to

test. All she could determine from the science then available

was that the DNA she could identify in the crotch of the

underwear came from two women, evidently J.M.B. and her

mother. That DNA was from one or two females, not any

male. The male substance was the semen, but there was not

enough of it to test, in 2006, for DNA.

The jury convicted Watson of attempted sexual assault. 

Seven years later, with the aid of the Innocence Project,

which describes itself as “a national litigation and public

policy organization dedicated to exonerating wrongfully

convicted individuals through DNA testing and reforming the

criminal justice system to prevent future injustice,”2 Watson

filed a motion in the district court to order DNA testing of the

underwear, clothes, and vaginal swabs. Watson and the

Innocence Project propose to pay for the testing themselves,

so the government will not be burdened with the expense.

 

2

 http://www.innocenceproject.org/about-innocence-project.
UNITED STATES V. WATSON 7

An affidavit in support of the motion for DNA testing, by

Dr. Greg Hampikian, a biology professor at Boise State

University, says that DNA testing would now allow

identification not only of the contributor of the tiny amount

of semen in the underwear, but also of even tiny amounts of

DNA from skin cells of anyone who had physical contact

with the inside of J.M.B.’s vagina and even, from his hands,

contact with her clothing. Scientists call this “touch” DNA

testing, that is examining the DNA of someone who merely

touched something with his skin, testing not possible when

Watson was tried. Watson filed an affidavit saying “I am

actually innocent” of the sexual assault, as he testified at trial,

and argues that the DNA from the vagina, underwear, and

outer clothing will show the absence of any contribution from

him.

The district court held a hearing, and denied the motion

as untimely. The reason for the ruling was that the statute

makes a motion presumptively untimely if made more than

three years after conviction. The presumption is overcome by

“newly discovered DNA evidence.” The underwear, vaginal

swabs and outer clothing were all available at the time of

trial, so the district court deemed them not to be “newly

discovered DNA evidence.” Watson appeals.

Analysis

We review the question of statutory interpretation de

novo.

3

3 United States v. Youssef, 547 F.3d 1090, 1093 (9th Cir. 2008)

(“Questions of statutory interpretation are reviewed de novo.”).
8 UNITED STATES V. WATSON

In 2004, Congress passed the Innocence Protection Act.4

It opens the door to revisiting mistaken convictions, when the

new science of identifying people by their DNA left at a

crime scene may exonerate the wrongly convicted. Forensic

evidence can sometimes prove innocence as well as guilt. As

the Supreme Court explained in District Attorney’s Office for

the Third Judicial District v. Osborne, “DNA testing has an

unparalleled ability both to exonerate the wrongly convicted

and to identify the guilty. It has the potential to significantly

improve both the criminal justice system and police

investigative practices.”5

The Innocence Protection Act commands testing. It says

the court “shall order DNA testing,”6not “may” order testing,

in the covered circumstances. The statute requires

satisfaction of ten criteria, of which three are at issue in this

case.

1. Actual Innocence and Identity.

The Act preconditions the mandatory testing requirement

on, among other things, (1) the applicant’s identification of a

theory that would establish his actual innocence,7and (2) if

conviction followed a trial, a showing that the identity of the

perpetrator was at issue in the trial.8 The government argues

 

4

 18 U.S.C. § 3600.

 

5

 557 U.S. 52, 55 (2009).

 

6

 18 U.S.C. § 3600(a).

 

7

Id. § 3600(a)(6)(B).

 

8

Id. § 3600(a)(7).
UNITED STATES V. WATSON 9

that Watson did not identify a theory of defense that would

establish his actual innocence, and also that the identity of the

perpetrator was not at issue.9

9 The ten factors that must be met for a court to order post-conviction

DNA testing under 18 U.S.C. § 3600(a) are:

“(1) The applicant asserts, under penalty of perjury, that

the applicant is actually innocent of–

(A) the Federal offense for which the applicant is

under a sentence of imprisonment or death; or

(B) another Federal or State offense, if–

(i) evidence of such offense was admitted

during a Federal death sentencing hearing and

exoneration of such offense would entitle the

applicant to a reduced sentence or new

sentencing hearing; and

(ii) in the case of a State offense–

(I) the applicant demonstrates that there is

no adequate remedy under State law to

permit DNA testing of the specified

evidence relating to the State offense; and

(II) to the extent available, the applicant

has exhausted all remedies available

under State law for requesting DNA

testing of specified evidence relating to

the State offense.

(2) The specific evidence to be tested was secured in

relation to the investigation or prosecution of the

Federal or State offense referenced in the applicant’s

assertion under paragraph (1).
10 UNITED STATES V. WATSON

(3) The specific evidence to be tested–

(A) was not previously subjected to DNA testing

and the applicant did not–

(i) knowingly and voluntarily waive the right

to request DNA testing of that evidence in a

court proceeding after the date of enactment of

the Innocence Protection Act of 2004; or

(ii) knowingly fail to request DNA testing of

that evidence in a prior motion for

postconviction DNA testing; or

(B) was previously subjected to DNA testing and

the applicant is requesting DNA testing using a

new method or technology that is substantially

more probative than the prior DNA testing.

(4) The specific evidence to be tested is in the

possession of the Government and has been subject to

a chain of custody and retained under conditions

sufficient to ensure that such evidence has not been

substituted, contaminated, tampered with, replaced, or

altered in any respect material to the proposed DNA

testing.

(5) The proposed DNA testing is reasonable in scope,

uses scientifically sound methods, and is consistent

with accepted forensic practices.

(6) The applicant identifies a theory of defense that–

(A) is not inconsistent with an affirmative defense

presented at trial; and

(B) would establish the actual innocence of the

applicant ofthe Federal or State offense referenced

in the applicant's assertion under paragraph (1).
UNITED STATES V. WATSON 11

(7) If the applicant was convicted following a trial, the

identity of the perpetrator was at issue in the trial.

(8) The proposed DNA testing of the specific evidence

may produce new material evidence that would–

(A) support the theory of defense referenced in

paragraph (6); and

(B) raise a reasonable probability that the applicant

did not commit the offense.

(9) The applicant certifies that the applicant will

provide a DNA sample for purposes of comparison.

(10) The motion is made in a timely fashion, subject to

the following conditions:

(A) There shall be a rebuttable presumption of

timeliness if the motion is made within 60 months

of enactment of the Justice For All Act of 2004 or

within 36 months of conviction, whichever comes

later. Such presumption may be rebutted upon a

showing–

(i) that the applicant’s motion for a DNA test

is based solely upon information used in a

previously denied motion; or

(ii) of clear and convincing evidence that the

applicant’s filing is done solely to cause delay

or harass.

(B) There shall be a rebuttable presumption against

timeliness for any motion not satisfying

subparagraph (A) above. Such presumptionmay be

rebutted upon the court’s finding–

(i) that the applicant was or is incompetent
12 UNITED STATES V. WATSON

Watson’s defense was that he did not commit the act

charged. He testified that he used the upstairs bathroom, but

he never touched J.M.B. on his way to or from the bathroom. 

That would indeed be “actual innocence,” so the question is

whether DNA testing with post-trial technology would prove

it. Among the arguments presented to the jury was that one

of the other party-goers might have raped J.M.B. That

argument put the identity of the perpetrator at issue.

The only solid evidence that there was a rape was

J.M.B.’s brother’s testimony. The medical evidence was

and such incompetence substantially

contributed to the delay in the applicant’s

motion for a DNA test;

(ii) the evidence to be tested is newly

discovered DNA evidence;

(iii) that the applicant’s motion is not based

solely upon the applicant’s own assertion of

innocence and, after considering all relevant

facts and circumstances surrounding the

motion, a denial would result in a manifest

injustice; or

(iv) upon good cause shown.

(C) For purposes of this paragraph–

(i) the term “incompetence” has the meaning

as defined in section 4241 of title 18, United

States Code;

(ii) the term “manifest” means that which is

unmistakable, clear, plain, or indisputable and

requires that the opposite conclusion be

clearly evident.”
UNITED STATES V. WATSON 13

inconclusive about whether J.M.B. had been raped and, if so,

who had done it. The small tears and abrasions in the

perineal area suggest that she was, but the intact hymen and

absence of any damage to the vagina suggest that she was not,

considering the brother’s description of how the rape was

perpetrated.

The brother’s credibility was at issue because he was

drunk, and because he told inconsistent stories about whether

Watson had hit him with a hammer. The jury acquitted

Watson on the charge of assaulting the brother. It is hard to

see how they could acquit, unless they doubted the brother’s

ability or inclination to perceive, remember, and relate the

truth.

Since the brother’s credibility was weak and the medical

evidence inconclusive, the semen in the underwear has to

have been important to the jury’s decision whether to believe

J.M.B. had been raped. There was not enough semen to

determine from the DNA testing possible at the time of trial

whose it was. But the semen proved that some male had had

sexual contact with a female who had worn the underwear. 

That corroborated to a degree the brother’s eyewitness

testimony that Watson raped J.M.B., as well as the possible

implication from the medical testimony that J.M.B. could

have been raped.

Now that post-trial DNA testing has made it possible to

test this previously too small sample, it could prove actual

innocence and mistaken identity in at least two ways. The

DNA test might show that one of the other males at the party,

not Watson, had raped J.M.B. Or, in conjunction with the

medical evidence suggesting an unruptured hymen, it might

suggest that no one had raped J.M.B., and some sexual
14 UNITED STATES V. WATSON

relationship of the mother rather than rape of her daughter

explained the semen.

That is not to say Watson’s guilt would be impossible

after the DNA testing, even if none of the DNA found was

his. Impossibility is so rare that it cannot be a requirement

for “actual innocence.” But the probability might be so low

that actual innocence would be the only sensible explanation. 

It would be hard to reconcile DNA proved to be someone’s

other than Watson’s, and no semen or even “touch” DNA

from Watson, with Watson’s having raped J.M.B. The only

sensible explanations consistent with the absence ofWatson’s

DNA would be that someone else, or no one, had raped

J.M.B.

Touch DNA could also be persuasive evidence of

Watson’s innocence. The evidence submitted on the motion

supports that identifiable DNA could now be obtained from

the vaginal swabs and even from J.M.B.’s shorts, showing

who pulled them off. The prosecution’s theory was that

Watson pulled J.M.B.’s shorts off her to rape her. J.M.B.’s

brother testified that when he put J.M.B. to bed she was fully

clothed. Touch DNA only became available after Watson’s

conviction. If touch DNA testing is as good as the evidence

before us suggests, it could also prove Watson’s innocence,

if he is innocent.

Our sister circuits have, like us, looked at the facts of the

particular case to evaluate whether post-conviction DNA

testing could, in the particular circumstances, establish actual

innocence or mistaken identity. The Fifth Circuit in United

States v. Fasano reversed a denial of testing, where

eyewitness testimony established guilt, but a negative DNA

test would undermine the credibility of four eyewitness
UNITED STATES V. WATSON 15

identifications.10 The Tenth Circuit in United States v.

Jordan upheld a denial of testing, where the DNA testing

would not be exculpatory, since the applicant admitted

handling the bloody knife.11 Likewise, in United States v.

Pitera, the Second Circuit upheld a denial because the

absence of Pitera’s DNA on the gun and other items would

not establish that he did not commit the murder together with

the shooter.12 By contrast, in the case before us, if, as her

brother testified, Watson had pulled down J.M.B.’s shorts and

was having sexual intercourse with her, as corroborated by

the semen found in the underpants put on her afterward, the

absence of his DNA and the presence of another male’s DNA

on the shorts and the vaginal swabs, and in the semen, would

indeed be inconsistent with his guilt.

Neither innocence nor guilt can be proved with scientific

certainty, regardless of whether the proof is scientific, and the

significance of evidence necessarily varies from case to case. 

Where the presence or absence of the movant’s DNA would

not show actual innocence, there is no reason to test for it. 

Where it would, the statute compels testing so long as the

movant complies with the Act’s other requirements.

2. Timeliness.

The government’s strongest argument against testing the

semen for identifiable DNA is that Watson’s request is

untimely. He was convicted in 2006, and made his motion,

 

10 577 F.3d 572, 574, 578 (5th Cir. 2009).

 

11 594 F.3d 1265, 1268–69 (10th Cir. 2010).

 

12 675 F.3d 122, 129 (2d Cir. 2012).
16 UNITED STATES V. WATSON

after getting legal assistance from the Innocence Project, in

2013. The Act enabling convicts to get post-conviction DNA

testing makes motions presumptively untimely five years

after its 2004 enactment or three years from conviction.13

13

“The motion is made in a timely fashion, subject to the following

conditions:

(A) There shall be a rebuttable presumption of

timeliness if the motion is made within 60 months of

enactment of the Justice For All Act of 2004 or within

36 months of conviction, whichever comes later. Such

presumption may be rebutted upon a showing–

(i) that the applicant’s motion for a DNA test is

based solely upon information used in a previously

denied motion; or

(ii) of clear and convincing evidence that the

applicant’s filing is done solely to cause delay or

harass.

(B) There shall be a rebuttable presumption against

timeliness for any motion not satisfying subparagraph

(A) above. Such presumption may be rebutted upon the

court’s finding–

(i) that the applicant was or is incompetent and

such incompetence substantially contributed to the

delay in the applicant’s motion for a DNA test;

(ii) the evidence to be tested is newly discovered

DNA evidence;

(iii) that the applicant’s motion is not based solely

upon the applicant’s own assertion of innocence

and, after considering all relevant facts and
UNITED STATES V. WATSON 17

Watson’s motion was, as he concedes, presumptively too late.

Watson’s timeliness argument depends on the statutory

provision that the presumption of untimeliness is rebutted, if

“the evidence to be tested is newly discovered DNA

evidence.”14 Although the district judge articulated a finding

of untimeliness, that finding is actually a legal conclusion. 

The district court determined that the untestable DNA was

not “newly discovered DNA evidence” because the

underwear and other clothing were themselves not newly

discovered. It is uncontested that, as the government’s expert

witness testified, the semen could not then be tested for

DNA evidence. Watson’s motion establishes, without

contradiction, that scientific developments since the trial have

made it possible now, but not then, to get an identification

from the tiny quantity of DNA. So our question is one of

law—does a change in the scientific evidence potentially

available concerning certain objects constitute “newly

discovered evidence” when the objects to be investigated are

not newly discovered?

We conclude that the DNA is “newly discovered DNA

evidence” even though the underwear and semen are not. A

specimen of DNA not usable to identify anyone is not

evidence that anyone in particular deposited it. Semen proves

a deposit from the male half of the population, but not from

circumstances surrounding the motion, a denial

would result in a manifest injustice; or

(iv) upon good cause shown.”

18 U.S.C. § 3600(a)(10).

 

14 Id. § 3600(a)(10)(B)(ii).
18 UNITED STATES V. WATSON

a particular male. Unlike semen, DNA, if capable of being

examined, would be evidence of which male had sexual

contact with a wearer of the underwear. The proposition for

which identifiable DNA would be evidence is an entirely

different proposition from that for which the underwear with

semen would be evidence. The issue critical to Watson’s

guilt or innocence is not the semen, but whose it was. Where

only a single male could be the perpetrator, semen might be

all the evidence needed, but where, as here, the semen could

have come from other males, innocently if by way of J.M.B.’s

mother, or criminally from some other male at the party, a

DNA test identifying which male it came from is the evidence

that makes or breaks the case.

The word “discover” connotes obtaining knowledge of a

thing, not just tripping over it.15It would be an anomalous

use of the word “discover,” as in “newly discovered DNA

evidence,” to apply it to something possessed without the

capability of knowing what it is. Doubtless many people

possessed radium before Marie Curie discovered its

properties, and uranium was used to make yellow glass for

centuries before anyone discovered other uses for it. We

would not say that a seventeenth century Czech glass blower

had discovered radioactive substances, even though theywere

piled in the corner of his shop. It was only subsequent to

1892 that viruses small enough to pass through filters were

discovered to be the causes of many diseases of plants,

15 See THE AMERICAN HERITAGEDICTIONARY 403 (2d college ed. 1985)

(defining “discover” as “[t]o obtain knowledge of through observation,

search, or study”); see also 4 THE OXFORD ENGLISH DICTIONARY 752 (2d

ed. 1989) (defining “discover” as “[t]o obtain sight or knowledge of

(something previously unknown) for the first time; to come to the

knowledge of; to find out”).
UNITED STATES V. WATSON 19

animals and people, though people had possessed the

diseased leaves, cattle and so forth since time immemorial.16

A dead cow would not, before that, have been discoverable

evidence of foot-and-mouth disease, even if one had its

carcass in a laboratory.

17 Wigmore defined “evidence” as a

“knowable” fact “on which the determination of the tribunal

is to be asked.”18

 Here, the “knowable” fact, knowable now

but not at trial, is whose DNA was in the underpants on

J.M.B.’s person and clothing. The fact that matters, whose

semen it was, did not become knowable, so it could not be

evidence, until post-trial scientific advances made its

discovery possible.

Congress provided for scientific advances in one of the

preconditions for mandatory DNA testing. Either the

evidence had not previously been subjected to DNA testing

(as here, because it was too small a sample), or it had been,

but a new method was “substantially more probative.”19 This

phrasing provides for mandatory testing even where the DNA

has been tested before. The government argues that because

the “new method” phrase is used in requirement 3 of the list

of 10 requirements for DNA testing, but not in requirement

 

16 GARY N. CALKINS, THE SMALLEST LIVING THINGS 14 (1932).

 

17 See id. at 15.

18 See 1 WIGMORE ON EVIDENCE § 1 (Tillers rev. 1983) (“Any knowable

fact or group of facts, not a legal or a logical principle, considered with a

view to its being offered before a legal tribunal for the purpose of

producing a persuasion, positive or negative, on the part of the tribunal, as

to the truth of a proposition, not of law or of logic, on which the

determination of the tribunal is to be asked.”).

 

19 18 U.S.C. § 3600(a)(3)(B).
20 UNITED STATES V. WATSON

10, the timeliness and “newly discovered DNA evidence” or

“good cause shown” language, we should infer the negative

pregnant that new methods will not suffice to rebut

untimeliness. We cannot see what purpose Congress might

have had for so providing. The statute does not say that. The

government proposes to read into requirement 10’s silence

about new methods an implied negative pregnant. Some

statements imply a negative pregnant, some do not. 

“Sometimes there is no negative pregnant: ‘get milk, bread,

peanut butter and eggs at the grocery’ probably does not

mean ‘do not get ice cream.’”20

Our reading of “newly discovered DNA evidence” does

pose a risk of subsequent testing on old DNA from many

closed cases. Congress created the statutory remedy, though,

expressly for individuals already under sentence of

imprisonment or death pursuant to a conviction,21thereby

sacrificing finality to accuracy of a conviction. Were the

statute not an intentional Congressional rejection of finality

where innocence could be proved by DNA, Congress would

not have provided a remedy that benefits no one but persons

already convicted.

Another obvious risk created by the statute is the expense

of a flood of post-conviction DNA testing requests. Congress

addressed that as well, by requiring that the applicant, the

20 Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1313 (9th Cir.

1992); see also BLACK’S LAW DICTIONARY 1132 (9th ed. 2009) (defining

a “negative pregnant” as “[a] denial implying its affirmative opposite by

seeming to deny only a qualification of the allegation and not the

allegation itself”).

 

21 18 U.S.C. § 3600(a).
UNITED STATES V. WATSON 21

convicted criminal, pay for the test, except when indigent.22

There are federal grants to the states for post-conviction DNA

testing.

23 As for the indigent applicants, they run a very great

risk in requesting a DNA test if they are guilty, so absence of

a financial burden does not mean they are undeterred. If the

applicant turns out to be the source of the DNA tested, the

government may apply for a contempt of court penalty, the

Bureau of Prisons may deny good time, the Parole

Commission may deny parole, and inculpatoryDNA findings

may be forwarded to appropriate state officials.24 Those

convicted in state court may have even more to lose from

asking for DNA tests when they are guilty than do federal

defendants, because state systems typically offer more good

time and parole. Watson’s lawyers, the Innocence Project,

propose to pay for his DNA test, but even so, he has a lot to

lose if his DNA is found in the semen in J.M.B.’s underwear. 

He risks loss of good time and contempt penalties.

We conclude that Watson successfully rebutted the

rebuttable presumption of untimeliness. The DNA evidence

must be deemed “newly discovered,” since it was not

discoverable before. Because we accept Watson’s “newly

discovered DNA evidence” argument under subsection

(B)(ii), we do not reach his “upon good cause shown”

argument under subsection (B)(iv). Since we do not reach the

“good cause” argument, we do not reach the government’s

counterargument based upon the delay between the post-trial

 

22 Id. § 3600(c)(3).

 

23 42 U.S.C. § 14136(a).

 

24 18 U.S.C. § 3600(f)(2)(B).
22 UNITED STATES V. WATSON

scientific advances and Watson’s motion, or Watson’s

rebuttal arguing that he was appropriately diligent.

Conclusion

No tradition is more firmly established in our system of

law than assuring to the greatest extent that its inevitable

errors are made in favor of the guilty rather than against the

innocent.25 Our legal tradition has always followed

Blackstone’s principle that “it is better that ten guilty persons

escape than that one innocent suffer.”26 The moral force of

our criminal law requires this allocation of the risk of error,

both with respect to standard of proof and to scientific testing

of newly discovered evidence critical to guilt. “It is critical

that the moral force of the criminal law not be diluted by a

standard of proof [or, we suggest, a rejection of scientific

testing] that leaves people in doubt whether innocent men are

being condemned.”27 Not all share our revulsion at

punishment of the innocent, of course. But Americans have

always been revolted by the notion that it is better that the

innocent suffer than that some of the guilty go free.

Consistent with our tradition, Congress has created a

device to end the suffering of the innocent, where their

innocence is scientifically demonstrable by DNA evidence,

even after their convictions have become final. The most

hallowed principle of our criminal law, protecting the

25 See In re Winship, 397 U.S. 358, 368–72 (1970) (Harlan, J.,

concurring).

 

26 WILLIAM BLACKSTONE, 4 COMMENTARIES *358.

 

27 In re Winship, 397 U.S. at 364.
UNITED STATES V. WATSON 23

innocent, requires us to eschew a crabbed, restricted

construction of the statute. Watson moved in timely fashion

for previously unperformed DNA testing, based on newly

discovered evidence—the results of DNA testing not possible

at the time of trial—that could well prove his actual

innocence and mistaken identity. His motion should have

been granted.

REVERSED AND REMANDED.