SUMMARY

August 29, 2019

2019COA132

No. 16CA0651, People v. Genrich — Topical subject 

keywords

In the wake of a report funded by Congress and published by 

the National Academy of Science that calls into question the 

scientific method underlying toolmark identification, a division of 

the court of appeals considers whether a defendant is entitled to an 

evidentiary hearing based on newly discovered evidence. 

A majority of the division, including a special concurrence, 

holds that the report — coupled with an affidavit of an expert 

witness applying the report to the toolmark evidence sustaining the 

defendant’s conviction — is sufficient to warrant an evidentiary 

hearing under Crim. P. 35(c). 

However, the dissent disagrees, concluding that the report and 

accompanying affidavit are not newly discovered evidence, but 

The summaries of the Colorado Court of Appeals published opinions 

constitute no part of the opinion of the division but have been prepared by 

the division for the convenience of the reader. The summaries may not be 

cited or relied upon as they are not the official language of the division. 

Any discrepancy between the language in the summary and in the opinion 

should be resolved in favor of the language in the opinion.
rather unapplied academic theories — the content of which the 

defense essentially presented at trial, long before the report’s 

publication.

The majority also concludes that the supreme court’s decision 

in Farrar v. People, 208 P.3d 802 (Colo. 2009), did not announce a 

heightened standard for ordering a new trial based on newly 

discovered evidence. The special concurrence takes it a step further 

to state that, even if Farrar imposed a heightened standard, it 

applies only to victim recantation cases. The dissent counters these 

conclusions, asserting that Farrar declared that newly discovered 

evidence must be material such that it is affirmatively probative of 

innocence, and that the supreme court did not indicate that 

recantation should be treated differently than any other type of 

newly discovered evidence. 

Finally, the special concurrence concludes, but the dissent 

disagrees, that due process concerns also entitle the defendant to 

an evidentiary hearing.
COLORADO COURT OF APPEALS 2019COA132

______________________________________________________________________________

 

Court of Appeals No. 16CA0651

Mesa County District Court No. 92CR95

Honorable Richard T. Gurley, Judge

______________________________________________________________________________

The People of the State of Colorado,

Plaintiff-Appellee,

v. 

James Genrich,

Defendant-Appellant.

______________________________________________________________________________

ORDER AFFIRMED IN PART, REVERSED IN PART,

AND CASE REMANDED WITH DIRECTIONS

Division I

Opinion by JUDGE TAUBMAN

Berger, J., specially concurs

Tow, J., concurs in part and dissents in part

Announced August 29, 2019

______________________________________________________________________________

Philip J. Weiser, Attorney General, Matthew S. Holman, First Assistant 

Attorney General, Denver, Colorado, for Plaintiff-Appellee

Cummins Krulewitch, Beth L. Krulewitch, Aspen, Colorado; Weil, Gotshal & 

Manges, LLP, Irwin H. Warren, Edward Soto, New York, New York; M. Chris 

Fabricant, Dana M. Delger, New York, New York, for Defendant-Appellant
1

¶ 1 Defendant, James Genrich, appeals the district court’s denial 

of his Crim. P. 35(c) motion for postconviction relief. He contends

that the district court erred in denying him an evidentiary hearing 

to prove allegations set forth in his motion and incorporated 

affidavit. In support of his argument, he points to a 2009 report, 

commissioned by Congress and published by the National Academy 

of Sciences, Nat’l Research Council of the Nat’l Acads., 

Strengthening Forensic Science in the United States: A Path Forward

(2009), https://perma.cc/8H3Q-S9SU (hereinafter NAS Report), 

that found toolmark identification evidence — which served as a 

linchpin in the prosecution’s case against him — had not been 

scientifically validated. He also alleges that the district court 

violated his right to due process by admitting such evidence to 

support his conviction. In addition, he contends that the opinions 

of a forensic scientist, premised on extensive scholarship, review of 

the evidence, knowledge of contemporary scientific consensus, and 

authorship of the NAS Report, constitute newly discovered evidence 

that undermines confidence in the jury’s verdicts. We agree in part 

and remand for a new evidentiary hearing.
2

¶ 2 Following oral arguments, we requested that the parties file 

supplemental briefs addressing (1) whether Farrar v. People, 208 

P.3d 702 (Colo. 2009), establishes a new standard for granting a 

new trial based on a claim of newly discovered evidence; and, if so,

(2) whether the proffered newly discovered evidence set forth in the 

petition for postconviction relief is affirmatively probative of 

Genrich’s innocence. 

I. Law of this Case

¶ 3 Based on my opinion, Judge Berger’s concurring opinion, and 

Judge Tow’s partially dissenting opinion, we believe that the law of 

this case is as follows:

• The postconviction court’s order denying Genrich’s Crim. 

P. 35(c) motion is affirmed in part and reversed in part. 

It is affirmed as to all of Genrich’s convictions other than 

his convictions for class 1 felonies. It is reversed as to 

the class 1 felonies, and the case is remanded to the 

postconviction court for an evidentiary hearing and for 

findings of fact and conclusions of law following the 

hearing.
3

• Farrar v. People, 208 P.3d 702, 706-07 (Colo. 2009), did 

not establish a heightened standard for Genrich’s Crim. 

P. 35(c) newly discovered evidence claim. Instead, on 

remand the postconviction court should apply the 

supreme court’s holdings in People v. Rodriguez, 914 

P.2d 230, 292 (Colo. 1996); People v. Gutierrez, 622 P.2d 

547, 559 (Colo. 1981); People v. Scheidt, 187 Colo. 20, 

22, 528 P.2d 232, 233 (1974); and Digiallonardo v. 

People, 175 Colo. 560, 568, 488 P.2d 1109, 1113 (1971).

• This division has not made a determination whether the 

exclusion of O’Neil’s testimony would likely result in an 

acquittal; that determination is for the postconviction 

court to make following the evidentiary hearing.

¶ 4 This division expresses no view as to whether Genrich 

ultimately is entitled to a new trial.

II. Background

¶ 5 Genrich was convicted of two counts of first degree murder, 

and multiple other felonies, arising from a series of pipe bombs 

detonated in Grand Junction, Colorado, in 1991.
4

¶ 6 In April 1989, law enforcement officers launched an 

investigation in connection with a pipe bomb discovered and 

disarmed in the parking lot of the La Court Motor Lodge in Grand 

Junction. Investigators did not identify the perpetrator, and the 

case lay dormant until three pipe bombs exploded within months of 

each other in the spring of 1991. The bombs — set off at the Two 

Rivers Convention Center, a residence, and the Feedlot Restaurant 

— left one injured and two dead, spurring terror in Grand Junction 

and a joint investigation by the Bureau of Alcohol, Tobacco, 

Firearms and Explosives (ATF) and local police.

¶ 7 ATF investigators connected the bombings to a serial bomber,

with Genrich as their primary suspect. They based their suspicions 

on reports of his unusual behavior, including his former 

employment at the convention center and his presence near the 

area of the explosion hours before the detonation of the first of the 

three 1991 bombs. Investigators learned that Genrich had inquired 

at a local bookstore about the Anarchist Cookbook — a book that, 

among other things, contained instructions for manufacturing 

explosives.
5

¶ 8 Officer Robert Russell and ATF Agent Larry Kresl spoke with

Genrich twice during the summer of 1991. On both occasions, 

Genrich invited them into his one-room apartment in a boarding 

house and voluntarily answered their questions. During the first 

conversation, Genrich indicated that he was aware of the bombs at 

the convention center and the Feedlot Restaurant, stating that he 

had heard the explosion at the Feedlot from his apartment, but that 

he did not know any details about the incidents. Genrich also 

shared his background with Officer Russell and Agent Kresl. He 

said he had studied electronics at DeVry Technical Trade Institute 

in Phoenix, Arizona, after he graduated from high school and 

continued to live in Phoenix for a time (including during April 1989, 

when the first pipe bomb was discovered). Genrich explained that 

he had worked at the convention center but quit because there was 

not much work. He denied ordering the Anarchist Cookbook but 

admitted that he was familiar with it because he had seen it in a 

Phoenix bookstore where he had worked. When Officer Russell 

asked about his relationship with women, he said that he “gets 

upset with women easy.”
6

¶ 9 During Genrich’s second conversation with Officer Russell, 

and ATF Agents Kresl and Jeffrey Brouse, Genrich allowed the 

agents to search his room. The agents discovered two electrical 

Buss-type fuses and a handwritten note expressing anger, 

frustration, and threatening violence against women. Genrich 

admitted writing the note. 

¶ 10 Based on this investigation, Officer Russell obtained and 

executed a search warrant for Genrich’s apartment. During this 

formal search, he found a second note, similar to the first, also 

threatening to kill unspecified persons, as well as an electrical fuse,

a pair of yellow-handled needle-nose pliers with wire cutters, metal 

wires, a plastic toolbox containing a soldering iron and greenhandled pliers, a second toolbox containing yellow-handled pliers 

and other tools, a home and auto electrical repair kit, wire 

strippers, and an electrical circuit board. However, investigators 

did not find traces of gunpowder or other explosives; mercury 

switches; bombmaking instructions; or diagrams, drawings, or 

prototypes of plans to construct bombs.

¶ 11 While Officer Russell conducted his search of Genrich’s 

apartment, Genrich agreed to speak with ATF Agent Debra Dassler. 
7

She testified that he told her he had moved back to Grand Junction 

two and a half years earlier and that, since he had been back, he 

often walked around alone late at night. He also told her that he 

had attempted to order the Anarchist Cookbook at a bookstore to 

“piss the lady off at the bookstore.” 

¶ 12 During their conversation, he volunteered that he would not 

blow up the convention center because he had two friends who 

worked there. When she asked him what he thought the agents 

were looking for in their search of his apartment, he replied that 

they would probably take his electronics tools because they could 

be used to make a bomb. 

¶ 13 He also said he knew that a bomb had exploded at a 

residence. He recognized the address but indicated that because he 

did not own a car, “it would be a long way for him to walk.” 

Following the search, the items seized were sent to labs and ATF 

agents commenced round-the-clock, covert surveillance. However, 

at some point, Genrich realized that he was being watched and 

engaged ATF agents in conversation, insisting that he was not the 

bomber. 
8

¶ 14 Meanwhile, Agent Brouse visited twenty-five hardware stores 

in the Grand Junction area to determine which stores carried pipe 

fittings, specifically “Coin brand end caps,” which were used in the 

construction of the bombs. Agent Brouse found only one store 

carrying that brand of end caps, Surplus City; it was located five 

blocks from Genrich’s apartment. An employee recalled having 

seen Genrich wandering the aisles where the galvanized pipe,1

ammunition, and guns were stocked.

¶ 15 The surveillance of Genrich did not result in any inculpatory 

evidence. Further, no crime lab tests showed any trace of 

gunpowder or other explosive residue on Genrich’s seized 

belongings, and no fingerprints were found on the bombs. 

¶ 16 In an effort to obtain a confession, agents asked Genrich’s 

parents to wear an electronic recording device to allow them to 

listen in on a rehearsed conversation with Genrich, which invited 

Genrich to admit that he had committed the crimes. However,

Genrich denied involvement and instead expressed dismay that his 

 

1 Jerry Hill, the prosecution’s expert witness in crime scene analysis 

and explosives analysis, testified that all three of the 1991 pipe 

bombs were made with galvanized steel.
9

mother and stepfather could believe he was capable of carrying out 

the bombings.

¶ 17 Based on the evidence described above, a grand jury indicted 

him on two counts of murder and related felonies.

¶ 18 The trial at which he was convicted took place in 1993. The 

prosecution called two principal expert witnesses at trial, John 

O’Neil — an ATF expert in firearms and, as relevant here, toolmark 

identification — and Agent Jerry Taylor — an expert in bomb 

technology and explosives analysis.

¶ 19 O’Neil was qualified as an expert based on his on-the-job 

training as a firearms and toolmark examiner during lengthy 

employment with the ATF. Although he lacked an advanced degree, 

he had testified as an expert approximately 465 times and used 

scientific techniques accepted at the time to identify toolmarks.2 

O’Neil testified regarding the basis for his analysis of toolmarks, 

telling the jury that all tools possess unique identifiers at a 

microscopic level, and these unique characteristics imprint a 

signature mark on other substances, such as wire, that come into 

 

2 “Toolmarks are generated when a hard object (tool) comes into 

contact with a relatively softer object.” NAS Report, at 150.
10

contact with the tool. According to O’Neil, these signature marks 

enabled him to determine whether a particular tool made a 

particular mark. He explained that, during his examination, he 

must “figure out how that tool was used, how it was applied to the 

object. If it’s a cutting type of tool, was it cut at an angle? Was it 

perpendicular to the object? Did he move it as he cut through the 

wire?”

¶ 20 He also told the jury that he was the first person in his field to 

distinguish the characteristics3 for “cutting type” tools and 

“gripping type” tools. He further testified that, after determining to

what class a tool belongs and how it was used, an examiner can 

microscopically determine whether a “suspect tool” was responsible 

for the striations made on a wire that are caused by the unique

manufacturing marks left on the tool. 

¶ 21 He further opined that he had never encountered a situation 

in which the mark left by a tool was not unique. He based this 

opinion on an experiment he had conducted by examining two tools 

 

3 O’Neil explained that certain observable characteristics of 

toolmarks, including the type, shape, and dimension of the 

impression, allow him to determine what type of tool was used to 

make the impression.
11

manufactured consecutively on the same assembly line. He 

observed that “although there [were] similarities between [the] two 

tools, it was very easy to determine that [the] marks that were left 

behind were entirely different.” 

¶ 22 He admitted that he had no background in statistical theory, 

inferential statistics, mathematical statistics, probability theory, 

experiment design, sampling methods, sampling techniques, quality 

control, or bias in experiment design. Nevertheless, he told the jury 

that he had identified three tools seized from Genrich’s room — to 

the exclusion of any other tool — as the tools used in the creation of 

one or more of the bombs. The prosecution relied on O’Neil’s 

testimony about “individualization” — the unique marks made by 

each cutting tool — to support its theory that Genrich constructed 

each of the bombs.

¶ 23 After O’Neil’s testimony, Agent Taylor testified, based on his 

analysis of the unexploded 1989 bomb and reconstructions of the 

other three, that a serial bomber was responsible for all four bombs 

found in 1989 and 1991. Agent Taylor testified that, in his 

experience in examining 10,000 bombs, the four bombs in question 
12

were unlike any he had seen, which led him to conclude they were 

made by the same person. 

¶ 24 He further recounted that Surplus City — the store located a 

few blocks from Genrich’s residence — carried all the items required 

to construct the bombs.

¶ 25 During closing arguments, the People focused on the 

interconnectedness of the detonations, relying on O’Neil’s expert 

testimony: 

• all four bombs were identically constructed; 

• three specific tools — [Genrich’s] needle-nose wire

cutters, his wire strippers with the chip in the blade, and 

his yellow-handled pliers — were used to build the 

bombs; and 

• Genrich was the only person who had possession of or 

access to those tools; he never loaned them to anyone. 

¶ 26 The prosecutor added, “If you need further proof that all three 

of these are linked together, you get that from John O’Neil . . . 

[n]one of the 700 people who were in the Association of Firearms 

and Toolmark Examiners will say he’s wrong.” 
13

¶ 27 To counter this expert testimony, the defense presented 

evidence that two of the four bombings appeared to have been

aimed at specific targets apparently unknown to Genrich; law 

enforcement officials had not investigated alternate suspects who, 

unlike Genrich, had experience with explosives; Genrich lived in 

Phoenix at the time of the first explosion in 1989 and so could not 

have placed a bomb in Grand Junction then; and Genrich did not 

drive or own a car, making it difficult to transport and place the 

volatile explosive devices without detonation.

¶ 28 The jury returned guilty verdicts after four days of 

deliberation, convicting Genrich of two counts of first degree 

murder, three counts of use of an explosive or incendiary device in 

the commission of a felony, and one count of third degree assault. 

¶ 29 Genrich directly appealed, and a division of this court 

affirmed. The division specifically held that toolmark identification 

evidence was widely accepted by courts across the country and that 

the admission of O’Neil’s opinions did not constitute error. People 

v. Genrich, 928 P.2d 799 (Colo. App. 1996).

¶ 30 In February 2016, nearly two decades after the supreme court 

denied certiorari, Genrich moved under Crim. P. 35(c) for a new 
14

trial based on newly discovered evidence. He supported his motion 

with an affidavit of a scientist who opined that years after Genrich’s 

trial, scientists had concluded that there was no scientific basis for 

most of O’Neil’s opinions. The expert relied on the 2009 NAS 

Report, which concluded that there was no scientific underpinning 

for the types of opinions given by O’Neil. Specifically, the report 

determined, among other things, that conclusions reached on the 

foundational theory of toolmark identification (used by O’Neil) —

especially the association of evidence to a known source — had no 

basis in scientifically validated principles.

¶ 31 A sworn affidavit from Dr. Jay Siegel, a member of the 

committee that authored the NAS Report, explained that he could 

provide expert testimony to explain the relevance of the NAS Report 

to Genrich’s case and relate it to the toolmark identification relied 

on by the prosecution. Dr. Siegel’s affidavit stated that the NAS 

Report “calls into question whether the conclusion of 

individualization — the exclusive sourcing of a tool mark to one 

particular tool — is ever justified.”

¶ 32 In his motion for a new trial, Genrich alleged that, because the 

sole evidence (Dr. Siegel’s tool characterization) tying him to the 
15

pipe bombs was faulty science now condemned nationally by 

forensic science experts, his conviction had been based on false 

evidence and was invalid. Genrich requested an evidentiary hearing 

on these issues, but by written order the district court denied his 

motion without a hearing. 

¶ 33 In its order, the district court relied on several cases in which 

courts outside of Colorado had concluded that toolmark evidence, 

at least the marks left by a firearm, remained sufficiently reliable to 

justify its admission in a criminal trial. In applying the test for a 

new trial based on newly discovered evidence, the court concluded 

that Genrich’s claims did not satisfy the third and fourth prongs of 

People v. Muniz, 928 P.2d 1352 (Colo. App. 1996). Applying People 

v. Shreck, 22 P.3d 68 (Colo. 2001), which established Colorado’s 

test for the admission of expert testimony, the court concluded that 

both at the time of Genrich’s trial and at the time the court decided

Genrich’s Crim. P. 35(c) motion, O’Neil’s testimony remained 

sufficiently reliable to be presented to a jury. According to the 

court, the NAS Report and Dr. Siegel’s opinions merely impeached 

O’Neil’s opinions, and newly discovered evidence that is merely 

impeaching does not warrant a new trial under Muniz. Genrich 
16

moved for reconsideration of the order denying his motion for a new 

trial, presenting a second affidavit from Dr. Siegel. In that affidavit 

Dr. Siegel distinguished firearm identification from toolmark 

identification, explaining that 

[s]ince there is only one way for a bullet to 

travel down the barrel of a gun, so long as the 

same weapon is used with the same type of 

ammunition, the markings on a bullet or 

cartridge will be relatively reproducible 

through many consecutive firings. Thus . . .

there is some basis to express opinions 

regarding the probability that the subject gun 

fired the recovered evidence. The same is not 

true . . . where the tool at issue is . . . a 

common hand tool, such as a wire cutter. The 

marks made by a wire cutter are impacted by 

numerous variables that include the 

examiner’s ability to replicate the exact 

manner in which the tool was used . . . . 

The court, noting that nothing in Crim. P. 35(c) permits a 

motion for reconsideration, treated the motion for 

reconsideration as a C.R.C.P. 60(b) motion, and denied it, 

concluding that it was merely a reiteration of the original 

Crim. P. 35(c) motion.

III. Preliminary Preservation Matters

¶ 34 Section 16-5-402, C.R.S. 2018, imposes a three-year time 

limitation for collateral attacks on felonies other than class 1 
17

felonies. (No time limit applies to challenges to convictions of class 

1 felonies.) If a defendant files a motion after the applicable time 

limit runs, he or she must assert justifiable excuse or excusable 

neglect. Id.; People v. Wiedemer, 852 P.2d 424, 428 (Colo. 1993). If 

no such exception is alleged, our review is limited to claims and 

allegations presented to the district court in the original Crim. P. 

35(c) motion. Therefore, we may not consider claims or allegations

in a Rule 35(c) motion raised for the first time on appeal. People v. 

Stovall, 2012 COA 7M, ¶ 3, 284 P.3d 151, 153. 

¶ 35 With this standard in mind, we agree with the People that 

Genrich failed to set forth an exception to the time limitation 

imposed on his three convictions for the use of an explosive or 

incendiary device in the commission of a felony and his conviction 

for third degree assault. Accordingly, we limit his challenge to his 

murder convictions.

¶ 36 We also agree that his argument regarding a 2016 report, 

President’s Council of Advisors on Sci. & Tech., Exec. Office of the 

President, Forensic Science in Criminal Courts: Ensuring Scientific 

Validity of Feature-Comparison Methods (2016), 

https://perma.cc/J3EA-QP7V, that purportedly undermines the 
18

“degree of certainty to the exclusion of any other tool” and that

O’Neil asserted in support of his theory of individualization was not 

preserved. Stovall, ¶ 3, 284 P.3d at 153. Therefore, we may not 

consider this report.

IV. Validity of Expert Testimony Used to Convict

¶ 37 Genrich contends that the district court erred in denying him 

an evidentiary hearing. We agree with respect to his murder 

convictions.

A. Standard of Review

¶ 38 We review de novo a postconviction court’s decision to deny a 

Crim. P. 35(c) motion without holding an evidentiary hearing. 

People v. Gardner, 250 P.3d 1262, 1266 (Colo. App. 2010). A court 

may deny a Crim. P. 35(c) motion without a hearing only if “the 

motion and the files and record of the case” establish that the 

allegations lack merit and do not entitle the defendant to relief. 

Crim. P. 35(c)(3)(IV); Kazadi v. People, 2012 CO 73, ¶ 17, 291 P.3d 

16, 22. 
19

B. Applicable Law

1. Muniz

¶ 39 While motions for a new trial based on newly discovered 

evidence are disfavored, in some cases injustice can only be avoided 

by granting a new trial. The bar to prevail on a motion for a new 

trial based on newly discovered evidence is high but not 

insurmountable. “Depending upon such things as the nature of the 

additional evidence, the circumstances of its discovery, and the 

strength of the existing evidence supporting conviction, we have at 

times highlighted different considerations in making the 

determination and have articulated the applicable standards in a 

variety of terms.” Farrar, 208 P.3d at 706.

¶ 40 The traditional standard applied by Colorado courts to a 

motion for a new trial based on newly discovered evidence requires 

a defendant to show that (1) the evidence was discovered after trial; 

(2) the defendant and his attorney exercised due diligence to 

discover all possible favorable evidence prior to and during trial; (3) 

the newly discovered evidence is material to the issues involved and 

not merely cumulative or impeaching; and (4) the newly discovered 
20

evidence is of such character as probably to bring about an 

acquittal if presented at another trial. Muniz, 928 P.2d at 1357.

2. Farrar

¶ 41 In Farrar, a case involving the recantation of testimony by a 

sexual assault victim, the supreme court stated that newly 

discovered evidence

must be consequential in the sense of being 

affirmatively probative of the defendant’s 

innocence, whether that is accomplished by 

helping to demonstrate that someone else 

probably committed the crime; that the 

defendant probably could not have committed 

the crime; or even that the crime was probably 

not committed at all. 

Farrar, 208 P.3d at 707. 

¶ 42 In his supplemental brief, the Attorney General argues that 

whatever the reach of the allegations in Genrich’s postconviction 

motion, they are not affirmatively probative of his innocence. 

¶ 43 We conclude that the above-quoted language in Farrar did not 

establish a new test for granting a motion for a new trial based on 

newly discovered evidence and that the test announced in Muniz

remains the law.
21

a. Farrar Did Not Announce a New Test

¶ 44 While the Farrar court stated that the new evidence must be 

affirmatively probative of the defendant’s innocence, a careful 

reading of Farrar reveals that the court did not apply any such 

heightened test. The court actually applied the Muniz test set forth 

in Digiallonardo v. People, 175 Colo. 560, 567-68, 488 P.2d 1109, 

1113 (1971), and People v. Scheidt, 187 Colo. 20, 22, 528 P.2d 232, 

233 (1974). 

¶ 45 Supporting this reading of Farrar is the following statement: 

“In addition to probably being believed by reasonable jurors, the 

witness’s new version of events must be of such significance in its 

own right as to probably cause reasonable jurors to acquit the 

defendant.” Farrar, 208 P.3d at 708. This language mirrors the 

traditional standard set forth in Muniz — “the newly discovered 

evidence is of such character as probably to bring about an 

acquittal verdict if presented at another trial.” 928 P.2d at 1357. 

Further, the dissent in Farrar did not interpret the majority’s 

opinion as articulating a new standard displacing Muniz; instead, it 

argued that the evidence there was of such significance as to 

probably bring about Farrar’s acquittal on retrial. Farrar, 208 P.3d
22

at 710 (Bender, J., dissenting) (“The majority states that new 

impeachment evidence can justify a new trial only when it is of 

such significance that it would probably bring about an acquittal 

before a new jury.”). 

b. Application of Farrar by Other Divisions

¶ 46 Since Farrar, divisions of our court have consistently applied

the Muniz test. See People v. Gee, 2015 COA 151, ¶ 73, 371 P.3d 

714, 725-26 (citing Muniz as the applicable standard to analyze 

whether newly discovered evidence warrants a new trial). Though

two divisions of our court have cited the above-quoted language in 

Farrar, neither applied its “actual innocence” language. 

¶ 47 In People v. Hopper, 284 P.3d 87 (Colo. App. 2011), the 

defendant was charged with two counts of possession of a 

controlled substance, two special offender sentencing counts, and 

one count of possession of a dangerous weapon in connection with 

a search of the vehicle in which the defendant was riding that 

uncovered firearms, drug paraphernalia, and drugs. Id. at 89. At 

trial, he argued that the other men he was riding with planted the 

illegal items in the vehicle — unbeknownst to him — and 

repositioned them to implicate him in the crime. Id. In a motion for 
23

a new trial, the defendant offered newly discovered witness 

testimony from two inmates housed in the same facility as the men 

who purportedly framed the defendant for the crimes. Id. at 92-93. 

The inmates were prepared to testify that the other men had 

admitted allowing the defendant to “go[] down for something [one of 

the men] had done,” one of the other men had transferred the guns 

and drugs into the vehicle, and the guns and drugs belonged to one 

of the other men. Id. at 93. The division concluded that none of the 

testimony offered was material or affirmatively probative of the 

defendant’s innocence because, along with part of it being 

cumulative, the defendant’s possession and ownership of the 

weapons and drugs were not at issue in the trial. Thus, the 

proffered evidence was not material under any standard because it 

would not have undermined the conviction.

¶ 48 Significantly, the Hopper division did not address whether the 

above-quoted Farrar language set forth a new standard. Id. at 92-

93. Although the division cited the above-quoted Farrar language, 

it does not appear that it actually relied on it. Instead, it relied on 

three other grounds to dismiss the defendant’s petition — the 
24

proffered new evidence was cumulative, not probative of a matter at 

issue, and lacked any potential to undermine the conviction. 

¶ 49 Similarly, in People v. Poindexter, the division cited the abovequoted language in Farrar, but ultimately applied the standard 

articulated in Muniz. 2013 COA 93, ¶¶ 44, 51, 338 P.3d 352, 360, 

361.

¶ 50 Accordingly, we conclude that Farrar did not establish a new 

standard for motions for a new trial based on newly discovered 

evidence.

C. Analysis: Muniz Applies Here

¶ 51 Concluding that the standard articulated in Muniz, 928 P.2d 

at 1357, applies here, I must first determine what constitutes new 

evidence. Academic theories may form the basis for an expert to 

interpret existing evidence. See People v. Bonan, 2014 COA 156, 

¶ 31, 357 P.3d 231, 236 (explaining that, while academic theories 

applied to existing evidence may form the basis for interpreting 

evidence, unapplied academic theories do not constitute evidence at 

all). The new evidence must demonstrate sufficient materiality to 

suggest that, when considered with all evidence presented at trial,

“a reasonable jury would probably conclude that there existed a 
25

reasonable doubt as to defendant’s guilt and thereby bring about an 

acquittal verdict.” People v. Tomey, 969 P.2d 785, 787 (Colo. App. 

1998); see also Mason v. People, 25 P.3d 764, 768 (Colo. 2001). We 

must consider this standard through the lens of the district court’s 

threshold determination in a Crim. P. 35(c) motion: Can the 

defendant’s petition for postconviction relief be denied without the 

benefit of an evidentiary hearing? It is the trial court’s 

responsibility to determine the weight of the proffered evidence, and 

based on that, to conclude whether the evidence would probably 

result in acquittal if presented at another trial. Thus, if the facts 

alleged in the Crim. P. 35(c) motion, taken as true, may entitle the 

defendant to a new trial, the court must conduct an evidentiary 

hearing.

¶ 52 Scientific advances in forensic evidence have been the basis 

for new evidentiary hearings and new trials throughout the country. 

See Andrea Roth, Safety in Numbers? Deciding When DNA Alone Is 

Enough to Convict, 85 N.Y.U. L. Rev. 1130 (2010). Significantly, the 

United States Supreme Court has relied on the NAS Report’s 

findings and analysis by other legal scholars, observing that

“[s]erious deficiencies have been found in the forensic evidence used 
26

in criminal trials.” Melendez-Diaz v. Massachusetts, 557 U.S. 305, 

319 (2009). Writing for the majority in Melendez-Diaz, Justice 

Scalia quoted the report’s conclusion that “[t]he forensic science 

system, encompassing both research and practice, has serious 

problems that can only be addressed by a national commitment to 

overhaul the current structure that supports the forensic science 

community in this country.” Id. (quoting NAS Report, at xx). The 

Court also pointed out that “[o]ne study of cases in which 

exonerating evidence resulted in the overturning of criminal 

convictions concluded that invalid forensic testimony contributed to 

the convictions in 60% of the cases.” Id. (citing Brandon L. Garrett 

& Peter J. Neufeld, Invalid Forensic Science Testimony and Wrongful 

Convictions, 95 Va. L. Rev. 1, 14 (2009)).

¶ 53 In State v. Behn, a New Jersey court recognized that a study 

calling into question an expert witness’s opinion as to the 

uniqueness and source of bullet lead, conducted after the 

defendant’s conviction, constituted new evidence entitling the 

defendant to a new trial. 868 A.2d 329, 344 (N.J. Super. Ct. App. 

Div. 2005). 
27

¶ 54 I next turn to the question of whether the evidence could have 

been discovered prior to or during trial with due diligence. Muniz, 

928 P.2d at 1357. However, for our purposes, a report issued 

nineteen years after a defendant’s conviction indisputably could not 

have been discovered prior to or during the trial. Though Genrich 

proffered his own expert to rebut O’Neil’s testimony, the toolmark 

identification methods used by O’Neil were generally accepted at the 

time. 

¶ 55 Turning to the third and fourth prongs of the Muniz analysis, I 

address the questions of materiality and magnitude.

¶ 56 In Farrar, the supreme court declared that a witness’s 

recantation necessarily impeaches the recanting witness’s 

credibility; thus, witness recantation justifies a new trial only when 

it contradicts the prior testimony with a different and more credible 

account. 208 P.3d at 708. Similarly, in Tomey, a division of our 

court concluded that newly discovered evidence consisting of a 

victim’s hearsay statement that was inconsistent with the victim’s 

former testimony necessitated a new trial. 969 P.2d at 787. The 

division reasoned that the statement presented more than mere 
28

impeachment evidence because, if believed, it would mean that the 

victim had lied about key facts at trial. Id. 

¶ 57 The Behn court applied an analysis similar to that required by 

Muniz and determined that the report at issue there demonstrated 

sufficient materiality because it called into question key evidence 

relied on at trial. 868 A.2d at 344. In deciding whether the report 

was mere impeachment evidence, the court considered the test 

concerning materiality of undisclosed exculpatory evidence 

established in Brady v. Maryland, 373 U.S. 83 (1963). Id. “Under 

the Brady standard, ‘withheld evidence that is material may be that 

which impeaches a witness where the issue of the witness’

reliability and credibility is crucial.’” Id. at 345 (quoting State v. 

Henries, 704 A.2d 24, 35 (N.J. Super. Ct. App. Div. 1997)). 

Concluding that the results of the study would have effectively 

neutralized the testimony of a key expert in the prosecution’s case, 

the court determined that the study probably could have changed 

the jury’s verdict. Id. It reasoned that “[w]hile the State’s case, 

although circumstantial, was strong, it was ‘far from 

overwhelming.’” Id. (quoting State v. Ways, 850 A.2d 440, 453 (N.J. 
29

2004)). Thus, the court granted a new trial based on the newly 

discovered evidence. Id. at 346.

¶ 58 The Third and Ninth Circuits have also allowed a defendant to 

seek relief from convictions based on flawed forensic evidence by 

alleging a constitutional violation. Gimenez v. Ochoa, 821 F.3d 

1136, 1144 (9th Cir. 2016); Han Tak Lee v. Houtzdale SCI, 798 F.3d 

159, 162 (3d Cir. 2015); Albrecht v. Horn, 485 F.3d 103, 124 n.7 (3d 

Cir. 2007). The Han Tak Lee court granted habeas corpus relief to a 

defendant based on new developments in the field of fire science 

that undermined the reliability of expert testimony about arson 

provided at the defendant’s trial. 798 F.3d at 167. There, the Third 

Circuit determined that the expert testimony on arson “constituted 

the principal pillar of proof tying [the defendant] to th[e] arson fire 

and the death of [the victim],” and the remaining evidence at his 

trial was insufficient to prove the defendant’s guilt beyond a 

reasonable doubt. Id. at 167-69. 

¶ 59 Though we need not conclude here that forensic evidence later 

deemed flawed violates a defendant’s constitutional rights, we find 

it instructive in connection with our analysis of whether newly 

discovered evidence based on the motion, files, and record, taken as 
30

true, entitles a defendant to a new evidentiary hearing. See Crim. 

P. 35(c); cf. Farrar, 208 P.3d at 706 (stating that newly discovered 

evidence upsetting a guilty verdict does not implicate the 

constitutionality of a conviction, and declaring that the decision to 

grant a new trial based on new evidence instead rests on the 

“balance between the need for finality and the state’s interest in 

ensuring the fairness and accuracy of its proceedings”).

¶ 60 The affidavit based on the NAS Report, satisfies the first and 

second prongs of the Muniz test. The affidavit, applying the report 

to the facts of the case, provides relevant evidence that would be 

helpful to the jury, and the report’s publication followed Genrich’s 

convictions by almost two decades.4 

 

4 We recognize that the NAS Report does not render false all 

toolmark identification evidence; however, we conclude that its 

determination that the lack of precisely defined processes and 

specified standards sufficiently undermines the reliability of 

toolmark identification evidence to warrant an evidentiary hearing. 

The NAS Report concluded that more rigorous scientific studies to 

understand the reliability and the repeatability of these methods is 

required to “make the process of individualization more 

precise . . . .” NAS Report, at 154. Similarly, we do not conclude 

that at a hearing on Genrich’s motion the trial court would or 

should determine that none of O’Neil’s testimony would be 

admissible in the event of a retrial. The extent to which O’Neil 

could testify would be determined by the trial court.
31

¶ 61 Though Genrich’s petition satisfies the first two prongs of the 

test for a motion for a new trial, the third and fourth prongs 

encompass the crux of the dispute. The district court ruled that

Genrich’s proffered evidence was merely impeaching. However, we 

conclude that the evidence offered bears similarity to the evidence 

alleged in Behn. Though it may serve to impeach O’Neil’s 

testimony, the proffered evidence, if believed, is of the sort that calls 

into question the reliability and credibility of a key witness. 

Genrich’s newly discovered evidence, as in Behn, may effectively 

neutralize the testimony of O’Neil, a key prosecution witness. 

¶ 62 We also consider the test, announced in Shreck, 22 P.3d at 82-

83, to determine the admissibility of expert testimony. Specifically, 

we look to CRE 702 and the focus of the inquiry set forth in Shreck

— whether the scientific principles underlying the expert’s 

testimony are reliable. See People v. Wilkerson, 114 P.3d 874, 877 

(Colo. 2005). The trial court may consider a multitude of factors in 

its consideration.5 Here, the evidence is akin to that proffered in 

 

5 The supreme court emphasized that a trial court may consider the 

nonexclusive list of factors set forth in Daubert v. Merrell Dow 

Pharmaceuticals, Inc., 509 U.S. 579, 597 (1993): (1) whether the 

technique can and has been tested; (2) whether the theory or 
32

Han Tak Lee and Behn. Dr. Siegel’s affidavit applying the NAS 

Report offers peer-reviewed, scientifically accepted evidence that 

counters O’Neil’s testimony that furnished the principal evidence 

connecting Genrich to the pipe bombs at trial. 

¶ 63 Finally, I conclude that Genrich’s allegations entitle him to an 

evidentiary hearing to establish the fourth element of Muniz — that 

his evidence is likely to bring about an acquittal if presented at a 

new trial. Without a developed record, we cannot hold that 

Genrich’s allegations, if true, are likely to bring about an acquittal, 

but we conclude that they dramatically increase his chances of 

obtaining an acquittal. Once again, this is for the trial court to 

determine following an evidentiary hearing. 

¶ 64 Despite the People’s reliance on Bonan to contend that 

unapplied academic theories do not constitute evidence, let alone 

newly discovered evidence under Crim. P. 35(c), we conclude that 

Bonan is distinguishable. There, a division of our court determined 

 

technique has been subjected to peer review and publication; (3) the 

scientific technique’s known or potential rate of error, and the 

existence and maintenance of standards controlling the technique’s 

operation; and (4) whether the technique has been generally 

accepted. People v. Shreck, 22 P.3d 68, 77-78 (Colo. 2001). 
33

that the defendant’s presentation of an academic theory, without 

having proffered an expert witness to testify as to the theory and 

relate it to the defendant’s case, was not newly discovered evidence 

warranting a new trial. Bonan, ¶ 31, 357 P.3d at 236. Dr. Siegel’s 

assertions in his affidavit apply the findings of the NAS Report to 

the circumstances of Genrich’s case, thus differentiating the 

present facts from those of Bonan. 

¶ 65 Moreover, it is probable that, as in Han Tak Lee, O’Neil’s 

testimony tying Genrich’s tools to the marks on the pipe bombs

served as the prosecution’s pillar of proof, and the other evidence 

presented at trial cannot, alone, sustain a conviction. In fact, the 

prosecutor’s heavy reliance on O’Neil’s toolmark identification 

during closing arguments demonstrates its significance to Genrich’s 

murder convictions.

¶ 66 Most of the other evidence against Genrich was arguably 

insufficient to establish his guilt.6 That evidence — including the 

 

6 We disagree with Genrich’s statement that “the sole evidence 

connecting him to the deadly pipe bombs was the same type of 

faux-expert opinions discussed and condemned in the NAS report.” 

As noted in the text, some circumstantial evidence supported his 

convictions.
34

notes and tools seized from his home, the locations of the bombs,

his proximity to the hardware store that carried the bombmaking 

components, his familiarity with the Anarchist Cookbook, and his 

late-night walks around town — placed Genrich as a suspect but 

may not have sufficiently proved his guilt beyond a reasonable 

doubt. Here, Dr. Siegel’s testimony could counter the prosecution’s 

expert witness testimony that provided the only direct connection 

between Genrich and the pipe bombs. Genrich’s Rule 35(c) 

allegations and proffered scientific evidence have the potential to 

weaken O’Neil’s testimony about individualization, which the trial 

court could conclude would likely lead to an acquittal, given the 

lack of other direct evidence presented at trial. However, we need 

not determine the precise effect the newly discovered evidence 

would have on a jury in a new trial for us to remand to the trial 

court for an evidentiary hearing.

¶ 67 Given the proffered expert testimony presented in Genrich’s 

Rule 35(c) motion, which, if true, would undermine the cornerstone 

of the prosecution’s case, we conclude that Genrich is entitled to an 

evidentiary hearing. 
35

V. Genrich’s Due Process Argument

¶ 68 Because I conclude that Genrich is entitled to an evidentiary 

hearing under Crim. P. 35(c), I need not reach the question of 

whether the trial court deprived him of due process in denying his 

motion without a hearing.

VI. Conclusion

¶ 69 Accordingly, the order is reversed, and we remand to the 

district court for an evidentiary hearing.

JUDGE BERGER specially concurs.

JUDGE TOW concurs in part and dissents in part.
36

JUDGE BERGER, specially concurring.

¶ 70 I agree that James Genrich is entitled to an evidentiary 

hearing on his Crim. P. 35(c) motion. But I cannot join Judge 

Taubman’s opinion in full. Therefore, I write separately to explain 

why Genrich is entitled to a hearing.

¶ 71 Genrich was convicted of multiple felonies, including murder, 

in connection with the detonations of three pipe bombs in Grand 

Junction, Colorado. Years later, he moved for a new trial under 

Crim. P. 35(c), arguing that scientific developments since his trial 

demonstrated that expert testimony against him, which concluded 

that Genrich’s tools were the only tools that could have made 

certain toolmarks left on the pipe bombs, was scientifically 

baseless. 

¶ 72 The district court denied his motion without an evidentiary 

hearing. Relying on cases from other jurisdictions, the court held 

that the weight of authority supported the admissibility of the 

toolmark identification testimony at the time of Genrich’s trial, as 

well as today. 

¶ 73 Because I conclude that, taking Genrich’s factual allegations 

as true, the record does not clearly establish that Genrich was not 
37

entitled to a new trial, I agree with the reversal of the postconviction 

court’s denial of Genrich’s Crim. P. 35(c) motion and the remand for 

an evidentiary hearing.

I. Background

¶ 74 In April 1989, a pipe bomb was discovered in a motel parking 

lot in Grand Junction and disarmed by police. The ensuing 

investigation did not identify the bomb maker. 

¶ 75 In 1991, three pipe bombs were detonated in Grand Junction 

–– the first in February, the second in April, and the third in June 

— killing two and injuring another. Investigators recovered pieces 

of the detonated pipe bombs and concluded that there were 

multiple similarities between the 1989 bomb and each of the 1991 

bombs, including that each detonator was powered by an electric 

battery and that each bomb’s wiring was soldered to the battery.1

 

¶ 76 The investigators identified Genrich as a suspect based on a 

tip. Investigators contacted Genrich twice, and on both occasions 

he invited them into his apartment. During the second visit, with 

 

1 Investigators in this case included both local police officers and 

agents of the Federal Bureau of Alcohol, Tobacco, Firearms and 

Explosives (ATF).
38

Genrich’s permission, the investigators conducted a search and 

recovered a handwritten note in which Genrich expressed his 

frustration with his interactions with women, stating, among other 

things, “[i]f I end up killing some stuckup bitch don’t blame me,” 

and “[t]hese bitches still won’t even talk to me. If I can’t be happy, I 

might as well kill one.” 

¶ 77 After this visit, investigators obtained and executed a search 

warrant for Genrich’s apartment. From the apartment, 

investigators took into evidence various tools and equipment, 

including a pair of needle-nose pliers, a pair of wire strippers, a pair 

of slip-joint pliers, assorted wires, a soldering iron, two Buss-type 

fuses of the type used in the 1989 bomb, and a home and auto 

electrical repair kit. 

¶ 78 Genrich was arrested and charged with first degree murder, 

use of explosives to commit a felony, and other related charges.

¶ 79 At trial, the prosecution presented, among other evidence, 

expert testimony from John O’Neil, a firearms toolmark examiner 

for ATF. O’Neil testified that based on general characteristics of 

toolmarks left on components of the pipe bombs, Genrich’s tools 

were capable of making certain of those marks. O’Neil then went 
39

further, testifying that based on his microscopic analysis and “to 

the exclusion of any other tool,” a pair of needle-nose pliers taken 

from Genrich’s apartment cut two of the wires used in the 1989 

bomb, a pair of wire strippers taken from Genrich’s apartment cut a 

wire used in the February 1991 bomb, and a pair of slip-joint pliers 

taken from Genrich’s apartment were applied to fragments of the 

end caps from the April 1991 and June 1991 bombs (the 

individualization testimony). Prompted by the prosecutor, O’Neil 

clarified that “to the exclusion of any other tool” meant that “no 

other . . . tool could have made those toolmarks.” 

¶ 80 As the underlying basis for the individualization testimony, 

O’Neil stated that he had once examined two tools of the same make 

and model from the same assembly line and concluded that there 

were differences between the two. He also stated that in his many 

years as a toolmark examiner, he had never come across, or heard 

of, two tools being identical at a microscopic level so that they 

would leave the same marks. 

¶ 81 The defense presented, among other evidence, expert 

testimony of Don Searls, a professor with a Ph.D. in statistics and 

expertise in experimental design, to rebut O’Neil’s testimony. Searls 
40

testified that the toolmark analysis conducted by O’Neil did “not 

have a scientific basis,” and that, for the testing to be reliable, 

O’Neil would have needed to test multiple tools of the same make 

and wear without knowing which one belonged to Genrich, and 

have three other investigators perform the same blind test. 

¶ 82 The jury convicted Genrich of two counts of first degree 

murder, multiple counts of use of an explosive or incendiary device 

in the commission of a felony, and third degree assault. 

¶ 83 Genrich appealed on multiple grounds, and a division of this

court affirmed, concluding that “experts in the use and analysis of 

tools have long been permitted to testify concerning the marks left 

by those instruments” and that Genrich’s concerns regarding the 

reliability of O’Neil’s testimony went to its weight rather than its 

admissibility. People v. Genrich, 928 P.2d 799, 802 (Colo. App. 

1996) (Genrich I). The supreme court denied certiorari. 

¶ 84 In 2016, Genrich moved for a new trial under Crim. P. 35(c) 

and requested an evidentiary hearing. He alleged that, after his 

trial, the relevant scientific community had concluded that 

toolmark individualization testimony was scientifically baseless 

because the underlying science had not been sufficiently tested and 
41

validated. To support this claim, Genrich attached an affidavit from 

Dr. Jay Siegel, a former professor of forensic science and one of the 

authors of a 2009 report issued by the National Research Council, 

Nat’l Research Council of the Nat’l Acads., Strengthening Forensic 

Science in the United States: A Path Forward (2009), 

https://perma.cc/8H3Q-S9SU (NAS Report), assessing the 

reliability of, among other forensic evidence, firearms and toolmark 

identification. In the affidavit, Dr. Siegel stated that a conclusion 

that a specific tool made a toolmark to the exclusion of all other 

tools was “unprovable” and had “no scientific support,” citing the 

NAS Report to support his claims.

¶ 85 Genrich argued that this new understanding of the reliability 

of toolmark individualization testimony (1) demonstrated that he 

was convicted on the basis of unreliable forensic evidence in 

violation of the United States and Colorado Constitutions’ Due 

Process Clauses and (2) constituted new evidence that required a 

new trial. 

¶ 86 The district court denied the motion without a hearing, noting 

the division’s holding in Genrich I and concluding that multiple 

courts outside of Colorado had considered the admissibility of 
42

toolmark and firearms identification analysis in light of the NAS 

Report and had admitted that evidence. 

¶ 87 Genrich moved for reconsideration, which the postconviction 

court also denied. He then filed this appeal. 

II. Analysis

¶ 88 Genrich argues that the court erred when it denied his motion 

for a new trial based on newly discovered evidence and due process 

violations without holding an evidentiary hearing. I agree.

A. Preliminary Matters 

1. Genrich’s Challenges to Convictions for Felonies That Are Not 

Class 1 Felonies Are Time Barred

¶ 89 I agree with Judge Taubman’s conclusion and analysis that 

Genrich’s challenges to his convictions for felonies that are not 

class 1 felonies are time barred under section 16-5-402(1), C.R.S. 

2018. 

2. Genrich’s Motion for a New Trial Can Be Dismissed Without an 

Evidentiary Hearing Only If the Record Clearly Establishes 

That He Is Not Entitled to Relief

¶ 90 It is important that we limit our focus to the question before 

us — whether the district court erred in denying Genrich’s motion 

without an evidentiary hearing — rather than considering whether 
43

Genrich’s motion and affidavit, standing alone, entitle him to a new 

trial. 

¶ 91 We review de novo a postconviction court’s decision denying a 

Crim. P. 35(c) motion without holding an evidentiary hearing. 

People v. Gardner, 250 P.3d 1262, 1266 (Colo. App. 2010). “A court 

may deny a defendant’s Crim. P. 35(c) motion without an 

evidentiary hearing ‘only where the motion, files, and record in the 

case clearly establish that the allegations presented in the 

defendant’s motion are without merit and do not warrant 

postconviction relief.’” People v. Chalchi-Sevilla, 2019 COA 75, ¶ 7 

(emphasis added) (quoting Ardolino v. People, 69 P.3d 73, 77 (Colo. 

2003)). “But where the defendant alleges sufficient facts that, if 

true, may warrant relief, the court must conduct an evidentiary 

hearing.” Id. (emphasis added).

¶ 92 Thus, the threshold for Genrich to establish that he is entitled 

to an evidentiary hearing is lower than the threshold to establish 

that he is entitled to a new trial. I conclude he meets that lower bar 

with respect to both claims.
44

B. Genrich Is Entitled to an Evidentiary Hearing Based on his 

Newly Discovered Evidence Claim

¶ 93 Expert testimony constitutes potent evidence. The imprimatur 

of the trial court in qualifying a witness to give expert testimony is 

powerful medicine and gives experts an “aura of trustworthiness 

and reliability” that few lay witnesses enjoy. People v. Cook, 197 

P.3d 269, 277 (Colo. App. 2008). When later developments in 

science demonstrate convincingly that so-called expert opinions 

were nothing more than uninformed guesses or junk science, 

serious miscarriages of justice are possible.

¶ 94 Accordingly, to the extent that the partial dissent contends 

that advances in science can never be the basis for a new trial, I 

disagree. The difficult question, however, is when such scientific 

advances rise to the level that requires a court to reassess a prior 

conviction rendered on such faulty evidence. This case well 

illustrates the problem. 

¶ 95 The partial dissent cites two cases in which courts rejected 

newly discovered evidence claims on the grounds that courts cannot 

retry cases every time a defendant is able to “find a credible expert 

with new research results,” Commonwealth v. LeFave, 714 N.E.2d 
45

805, 813 (Mass. 1999), or there is a new “‘advancement’ in scientific 

research,” State v. Gillispie, Nos. 22877, 22912, 2009 WL 2197052, 

at *26 (Ohio Ct. App. July 24, 2009) (unpublished opinion). But 

those cases involved experts testifying based on new academic 

studies, of which there are presumably thousands produced each 

year. 

¶ 96 The new evidence in this case is markedly different. It involves 

an alleged scientific consensus — evidenced by a federally 

mandated report representing the conclusions of dozens of experts 

in the field — and the application of that consensus to the evidence 

in this case by one of the report’s authors. While there will always 

be new studies and scientific advances, the new evidence alleged in 

this case goes many degrees further.

¶ 97 So while I agree with the partial dissent that not every advance 

in science will justify a new trial decades after the conviction (and 

most advances certainly will not), this is not one of those cases that 

can be dismissed so easily. 
46

1. The Evidence Alleged by Genrich Constitutes New Evidence for 

Purposes of Crim. P. 35(c)

¶ 98 The partial dissent would affirm the denial of Genrich’s motion 

without an evidentiary hearing because the NAS Report is not new 

evidence for purposes of Crim. P. 35(c). I agree with the partial 

dissent that, standing alone, the NAS Report does not constitute 

new evidence. However, that is not the evidence at issue here. 

¶ 99 Crim. P. 35(c)(2)(V) states that a convicted defendant may 

apply for postconviction review if 

there exists evidence of material facts, not 

theretofore presented and heard, which, by the 

exercise of reasonable diligence, could not 

have been known to or learned by the 

defendant or his attorney prior to the 

submission of the issues to the court or jury, 

and which requires vacation of the conviction 

or sentence in the interest of justice. 

¶ 100 The “material fact[]” alleged by Genrich is that there is a 

consensus in the relevant scientific community that 

individualization testimony, like O’Neil’s individualization 

testimony, is scientifically baseless. Crim. P. 35(c)(2)(V). The 

“evidence of [that] material fact[]” is an affidavit from one of the 

authors of the NAS Report, an indisputably well-qualified expert 
47

witness, applying the NAS Report’s conclusions to the 

individualization testimony in Genrich’s case. Id.

¶ 101 That evidence is “new” because, although Genrich’s lawyers 

vigorously attacked the reliability of O’Neil’s individualization 

opinions and called their own expert (though not a toolmark expert) 

to attack the scientific basis and reliability of toolmark 

individualization opinions during trial in 1992, the alleged scientific 

consensus regarding the scientific validity of O’Neil’s 

individualization testimony did not exist at that time. 

¶ 102 Under the circumstances presented, even skilled crossexamination pointing out purported weaknesses in the underlying 

basis for an expert opinion and counter expert opinions challenging 

the scientific validity of expert opinions are hardly the same as the 

opinions (evidence) of one of the authors of a congressionally 

mandated study addressing forensic evidence. 

¶ 103 Contrary to the partial dissent’s and the Attorney General’s 

position, the evidence at issue is not an unapplied academic theory 

like that in People v. Bonan, 2014 COA 156. In that case, the 

division stated that “[a]cademic theories merely form the basis for 

interpreting evidence when they are applied to existing evidence.” 
48

Id. at ¶ 31. “Unapplied, academic theories do not constitute 

evidence” that would support a motion for a new trial. Id. The 

division concluded that four academic studies did not, in and of 

themselves, merit a new trial under Crim. P. 35(c) because Bonan 

“proffered no expert who ha[d] applied the theories he identified to 

the evidence presented at his trial.” Id. at ¶ 33. I do not dispute 

Bonan’s holding.

¶ 104 Genrich, on the other hand, does not rely solely on the NAS 

Report; rather, he relies on the application of the NAS Report to the 

evidence in this case. He submitted an affidavit by one of the 

authors of the NAS Report specifically applying the conclusions of 

the NAS Report to the type of toolmark individualization testimony 

presented against Genrich.2

 In the affidavit, Dr. Siegel stated his 

understanding that an expert had testified that Genrich’s tools were 

the tools used on certain pieces of the pipe bombs to the exclusion 

of all other tools in the world. Dr. Siegel opined that this 

 

2 I do not consider the second affidavit of Dr. Siegel, filed with 

Genrich’s motion for reconsideration, because it was not included 

with the Crim. P. 35(c) motion, and because motions for 

reconsideration of a denied Crim. P. 35(c) motion are not authorized 

by law. People v. Thomas, 195 P.3d 1162, 1164 (Colo. App. 2008). 
49

conclusion is “unprovable” and has “no scientific support.” Thus, 

Dr. Siegel’s opinion is not an unapplied academic theory. 

2. Standard for Prevailing on a Motion for a New Trial Based on 

Newly Discovered Evidence

¶ 105 The supreme court has, on multiple occasions, articulated 

what a defendant must show to warrant a new trial based on newly 

discovered evidence:

(1) “that the evidence was discovered after the trial;”

(2) “that defendant and his counsel exercised diligence to 

discover all possible evidence favorable to the defendant 

prior to and during the trial;” 

(3) “that the newly discovered evidence is material to the 

issues involved, and not merely cumulative or 

impeaching; and” 

(4) “that on retrial the newly discovered evidence would 

probably produce an acquittal.” 

Rodriguez, 914 P.2d at 292 (quoting Gutierrez, 622 P.2d at 559).

¶ 106 Contrary to the partial dissent’s position, Farrar, 208 P.3d at 

706-07, did not modify this standard by adding a requirement that 

the newly discovered evidence be “affirmatively probative of the 
50

defendant’s innocence.” Farrar described the third and fourth 

prongs of the existing standard as follows: 

We have also required that the newly 

discovered evidence must not only be relevant 

to material issues at trial but that it must also 

be of consequence to the outcome. Moreover, 

the newly discovered evidence must be of 

sufficient consequence for reasons other than 

its ability to impeach, or cast doubt upon, the 

evidence already presented at trial. It must be 

consequential in the sense of being 

affirmatively probative of the defendant’s 

innocence, whether that is accomplished by 

helping to demonstrate that someone else 

probably committed the crime; that the 

defendant probably could not have committed 

the crime; or even that the crime was probably 

not committed at all. We have described the 

required materiality of newly discovered 

evidence, or the extent to which it must be 

consequential to the outcome, in various 

terms, with varying degrees of precision, but at 

least since Digiallonardo, we have specified 

that it must be such that it would probably 

produce an acquittal.

Id. (citations omitted).

¶ 107 A requirement that newly discovered evidence be affirmatively 

probative of the defendant’s innocence (an actual innocence 

standard) significantly narrows the types of evidence that merit a 

new trial. For instance, consider a scenario in which a defendant 

was convicted of robbery solely on the basis of a video showing him 
51

committing the robbery, and, after the conviction, new evidence was 

discovered demonstrating that the video was entirely fake. That 

evidence would not meet the partial dissent’s affirmatively probative 

of innocence standard because, while it demonstrates that there 

was no basis for the conviction, it does not demonstrate that the 

defendant did not commit the crime. 

¶ 108 There is no indication in Farrar that this was the court’s 

intent. The Farrar court did not state that it was modifying the 

existing standard; rather, it repeatedly cited (and applied) 

Rodriguez, Gutierrez, Scheidt, and Digiallonardo –– the cases setting 

out the existing standard that I (and Judge Taubman) rely on here. 

The Farrar court went on to discuss the existing standard’s 

materiality requirement in greater detail, but did not restate or 

apply the “affirmatively probative” language. The opinion does not 

mention it again. 

¶ 109 Not only does Farrar cite the existing standard and then apply 

it without reference to an actual innocence standard, it explicitly 

recognizes that it imposes no heightened requirement that the 

charges against the defendant actually be false or unfounded. 

Farrar contrasts the test it applies with the test applied when a 
52

defendant who has pleaded guilty moves for withdrawal of that plea 

based on newly discovered evidence. That test differs from the 

existing standard applied in Farrar only because it applies an actual 

innocence standard. In order for such a defendant to successfully 

withdraw a guilty plea, the defendant must demonstrate that 

(1) the newly discovered evidence was 

discovered after the entry of the plea, and, in 

the exercise of reasonable diligence by the 

defendant and his or her counsel, could not 

have been earlier discovered; (2) the charges 

that the People filed against the defendant, or 

the charge(s) to which the defendant pleaded 

guilty were actually false or unfounded; and (3) 

the newly discovered evidence would probably 

bring about a verdict of acquittal in a trial.

People v. Schneider, 25 P.3d 755, 762 (Colo. 2001) (emphasis 

added).

¶ 110 The first and third prongs of the Schneider test parallel prongs 

of the Gutierrez test applied in Farrar. The distinguishing factor is 

Schneider’s requirement that the charges against the defendant who 

has pleaded guilty actually be false or unfounded. By recognizing 

that Schneider set out a new standard “applicable only to 

convictions resulting from guilty pleas,” the Farrar court established 
53

that there is no similar requirement for defendants who, like 

Genrich, went to trial.3

 

¶ 111 The partial dissent contends that the difference highlighted by 

Farrar between the two tests is instead that Schneider requires proof

of actual innocence, whereas Farrar only requires that the evidence 

support actual innocence. I think this makes too fine a distinction.

¶ 112 Furthermore, although we are typically reluctant to rely on a 

dissenting opinion’s interpretation of a majority opinion, the dissent 

in Farrar is instructive because it makes the same distinction 

between the standard applied by the majority and the standard 

applicable in a case in which a defendant seeks to withdraw a guilty 

plea based on new evidence, recognizing that such a defendant 

bears a “higher burden.” Farrar, 208 P.3d at 711 (Bender, J., 

dissenting) (quoting Schneider, 25 P.3d at 761).

 

3 Two later Colorado Court of Appeals cases cite the “affirmatively 

probative of . . . innocence” language from Farrar v. People, 208 

P.3d 702, 707 (Colo. 2009). One, People v. Poindexter, 2013 COA 

93, does not apply that language. The other, People v. Hopper, 284 

P.3d 87, 92-93 (Colo. App. 2011), does so without needing to. 

Without considering whether the testimony at issue was 

affirmatively probative of innocence, that testimony was not 

material because it lacked any potential to undermine the 

conviction. 
54

¶ 113 In addition, facts and context matter. The Farrar court 

engaged in extensive discussion regarding the unique nature of 

victim recantations as the basis for newly discovered evidence 

claims, noting “the concerns inherent in the recantation of an 

alleged incest or child sexual assault victim,” “the suspicion with 

which recantations should be examined,” and “the court’s role in 

making an objective assessment of the recanting witness’s 

credibility.” Farrar, 208 P.3d at 707. The Farrar court went on to 

describe in detail the materiality standard applicable in victim 

recantation cases. To the extent Farrar imposed a heightened 

materiality standard requiring an actual innocence claim, that 

heightened standard only applies in victim recantation cases. 

3. The Record Does Not Clearly Establish That Genrich’s Newly 

Discovered Evidence Motion Would Fail

¶ 114 Taking Genrich’s factual allegations as true, the record does 

not “clearly establish” that Genrich has not met the standard set 

out in Rodriguez, Gutierrez, and earlier precedent, and therefore 

those allegations, if true, “may warrant relief.” Chalchi-Sevilla, ¶ 7. 

¶ 115 First, the new evidence alleged was discovered after trial 

because the scientific consensus alleged by Genrich did not emerge 
55

until years after his conviction. Second, for the same reason, no 

amount of due diligence on the part of Genrich and his counsel 

could have discovered this evidence before trial. 

¶ 116 Third, the new evidence alleged is material to the issues 

involved because it would gut the strongest evidence supporting 

Genrich’s conviction –– the individualization testimony. It is not 

cumulative because, although Genrich did present the testimony of 

a statistician at his trial that O’Neil’s methods were not scientifically 

reliable, the testimony of a single defense expert with admittedly no 

experience in toolmarks is decidedly different in character and 

impact than a report of the National Research Council that 

represents the conclusions of dozens of experts in the field and the 

testimony of one of its authors applying those conclusions 

specifically to the evidence in this case. 

¶ 117 The alleged new evidence does more than impeach O’Neil’s 

individualization testimony because it is relevant not only to 

credibility, but also reliability. Credibility determinations are a 

function of the jury. Hildebrand v. New Vista Homes II, LLC, 252 

P.3d 1159, 1166 (Colo. App. 2010). Reliability determinations are 

at least initially a function of the court, and for expert testimony to 
56

be admissible, the court must conclude the scientific principles 

underlying it are reliable under CRE 702. Kutzly v. People, 2019 

CO 55, ¶¶ 10-12. This determination is separate and apart from 

any attempt by a party to impeach a witness. If the trial court 

determines under CRE 702 that the opinions are unreliable, the 

jury would not hear them at all.

¶ 118 Fourth, because, taking the allegations in Genrich’s motion as 

true, the alleged new evidence would likely result in the exclusion of 

O’Neil’s individualization testimony, it would significantly increase 

the probability of an acquittal. 

a. Based on the Alleged New Evidence, the Individualization 

Testimony Would Not Be Admissible

¶ 119 To determine whether scientific or other expert testimony is 

admissible under CRE 702, the court should “focus on the 

reliability and relevance of the proffered evidence” and must make 

determinations as to “(1) the reliability of the scientific principles,

(2) the qualifications of the witness, and (3) the usefulness of the 

testimony to the jury.” People v. Shreck, 22 P.3d 68, 70 (Colo. 

2001).
57

¶ 120 First, accepting Genrich’s allegations as true, there were at the 

time of trial, and there are now, no scientific principles underlying 

O’Neil’s individualization testimony. Therefore, based on a 

straightforward application of CRE 702, O’Neil’s individualization 

opinions are not reliable, and that testimony is inadmissible.4

 

¶ 121 I disagree with the district court’s conclusion that “the weight 

of authority from other jurisdictions holds that toolmark 

identification testimony is reliable despite the criticisms stated in 

the NAS Report.” Each of the cases relied upon by the district court 

dealt with matching bullets and cartridge casings to a specific 

firearm. United States v. Adams, No. 15-CR-0106 (PJS/FLN), 2016 

WL 424967 (D. Minn. Feb. 3, 2016); United States v. Ashburn, 88 F. 

Supp. 3d 239, 243-44 (E.D.N.Y. 2015); United States v. Otero, 849 

F. Supp. 2d 425, 438 (D.N.J. 2012), aff’d, 557 F. App’x 146 (3d Cir. 

2014); People v. Robinson, 2 N.E.3d 383, 395-402 (Ill. App. Ct. 

 

4 I do not address, because it is not implicated by the evidence 

alleged by Genrich, whether some form of less conclusive testimony 

as to the relationship between the tools and the marks, such as, “I 

cannot conclude, based on this evidence, that these tools did not 

make these marks,” would be admissible.
58

2013); Commonwealth v. Pytou Heang, 942 N.E.2d 927, 937-38 

(Mass. 2011). 

¶ 122 With respect to ballistics opinions, numerous courts have 

prohibited experts from testifying that bullets or cartridge casings 

were fired from a specific firearm to the exclusion of all other 

firearms in the world. E.g., Ashburn, 88 F. Supp. 3d at 249; United 

States v. Taylor, 663 F. Supp. 2d 1170, 1180 (D.N.M. 2009); United 

States v. Glynn, 578 F. Supp. 2d 567 (S.D.N.Y. 2008); United States 

v. Monteiro, 407 F. Supp. 2d 351, 372 (D. Mass. 2006) (“Because an 

examiner’s bottom line opinion as to an identification is largely a 

subjective one, there is no reliable statistical or scientific 

methodology which will currently permit the expert to testify that it 

is a ‘match’ to an absolute certainty, or to an arbitrary degree of 

statistical certainty.”). The courts in those cases concluded that 

such testimony lacked scientific reliability. 

¶ 123 More importantly, none of the cases relied on by the district 

court involved marks left by a hand tool, and the Attorney General 

has cited no cases since the release of the NAS Report involving 

marks left by a hand tool. Similarly, while Genrich I previously 

concluded that the analysis of marks left by hand tools was reliable 
59

based on existing precedent from other jurisdictions, the division’s 

opinion predated the alleged scientific consensus damning toolmark 

individualization evidence.

¶ 124 Opinions from other jurisdictions concluding that firearms 

identification testimony is admissible bear little weight here because 

of the differences between toolmark identification analysis for 

firearms and hand tools. The analysis of toolmarks left on a surface 

by a hand tool is inherently more subjective than the analysis of 

toolmarks left by a gun on bullets or cartridge casings. While a gun 

fires in the same manner each time, there is significantly more 

variability in the application of a hand tool, including the angle at 

which it is applied, the portion of the blade used, and the force with 

which it is applied.

¶ 125 Examiners of toolmarks created by hand tools, as opposed to 

those examining bullets and cartridge casings, set out to recreate 

the particular way in which a tool was applied to a surface. While a 

gun need only be fired once to recreate the markings it would leave 

on a bullet, a toolmark examiner might need to make dozens of test 

cuts (as was the case here) in order to create a cut that the 
60

examiner believes matches, introducing further layers of 

subjectivity and variability. 

¶ 126 Continued reliance on precedents that predate the 

development of an alleged scientific consensus regarding the 

reliability of toolmark individualization testimony runs the risk of 

“grandfathering in irrationality.” United States v. Green, 405 F. 

Supp. 2d 104, 123-24 (D. Mass. 2005) (excluding expert testimony 

that a specific gun fired a bullet to “the exclusion of all other guns”). 

I decline the Attorney General’s invitation to do so. 

¶ 127 Second, again accepting Genrich’s allegations as true, there 

are no expert qualifications that would render someone competent 

to testify that only one tool in the world could have made a certain 

mark. And finally, expert testimony that is unreliable has no 

probative value, and therefore would not be useful to a jury. 

b. I Cannot Conclude That Genrich Would Be Convicted Without 

the Individualization Testimony

¶ 128 On the present record, it is impossible for us to determine 

whether exclusion of the toolmark individualization testimony 

would likely result in an acquittal. O’Neil testified over a period of 

several days, expressing multiple opinions. Some of those opinions 
61

undoubtedly would withstand the attack made by Genrich, while 

the individualization opinions probably would not. Without a full 

analysis of all of O’Neil’s testimony (as well as the other toolmark 

expert who testified at trial), I cannot reach a conclusion whether 

the exclusion of some or all of this testimony likely would have 

resulted in an acquittal. This determination must be made, at least 

in the first instance, by the postconviction court after an evidentiary 

hearing.

¶ 129 The determination of whether newly discovered evidence would 

probably bring about an acquittal “should be premised on whether 

the new evidence, as developed in trial, when considered with all 

the other evidence, is such that a reasonable jury would probably 

conclude that there existed a reasonable doubt as to defendant’s 

guilt and thereby bring about an acquittal verdict.” Rodriguez, 914 

P.2d at 292. 

¶ 130 Turning to the evidence here and excluding the 

individualization testimony, the prosecutor introduced the following 

evidence:

(1) there were numerous similarities between the four pipe 

bombs, including that each lacked a safety mechanism, 
62

was a booby-trap device triggered by movement, was 

powered by a battery with wires soldered to it, used the 

same type of powder, and used Coin brand end caps;

(2) Genrich lived within easy walking distance of the 

locations where two of the three 1991 pipe bombs were 

detonated;

(3) Genrich had been seen near some of the areas where the 

1991 bombs were detonated;

(4) Genrich had threatened in the past to kill people out of 

frustrations with women and a perceived lack of respect; 

(5) Genrich was familiar with the Anarchist Cookbook, which 

includes descriptions of how to make bombs;

(6) Genrich lived five blocks from, and was seen in, Surplus 

City, the only hardware store of twenty-five in the area to 

carry the type of Coin brand end caps used in the 

bombs;

5

 

5 Law enforcement agents who conducted the search testified to 

this. The Coin brand end caps recovered were not in evidence at 

trial. 
63

(7) two Buss-type fuses were recovered from Genrich’s 

apartment, and that is the type of fuse used in the 1989 

bomb;

(8) the bombs employed an electronic detonation system, 

and Genrich was familiar with electronics from 

coursework at DeVry Technical Trade Institute; and 

(9) Genrich had tools capable of making the marks that 

appeared on certain of the wires and caps used in the 

bombs.6

¶ 131 Countering the prosecutor’s case, Genrich introduced evidence 

that

(1) he was in Phoenix working at a bookstore when the 1989 

bomb was placed;

7

 

6 I am concerned that Genrich’s attorney ignores virtually all this 

evidence. His contention that the only evidence of guilt was O’Neil’s 

opinion testimony is demonstrably untrue.

7 Evidence included testimony of Genrich’s coworkers in Phoenix at 

the time, a timesheet from his place of employment with 

handwritten entries from the bookstore’s employees, and a record of 

books returned to the publisher filled out by Genrich on April 14,

1989, the date the first pipe bomb was discovered in Grand 

Junction. 
64

(2) he was at his mother and stepfather’s house when each 

of the 1991 bombs detonated;

8

(3) there was no gunpowder residue found at Genrich’s 

apartment or his mother and stepfather’s house, and 

Genrich did not rent a storage unit in the area;

(4) two other toolmark examiners reviewed O’Neil’s work and 

were able to confirm only one of the matches identified by 

O’Neil, agreeing that the other purported matches were 

inconclusive;

(5) the highly hazardous nature of the bombs (detonated by 

movement without a safety switch) suggested that the 

maker had bombmaking expertise, which, beyond 

testimony that Genrich was familiar with the Anarchist 

Cookbook, there is no evidence Genrich had;

 

8 Both Genrich’s mother and stepfather testified to this and 

provided documentary evidence corroborating portions of their 

testimony. 
65

(6) the only end caps available at Surplus City from a period 

in 1990 through the time the bombs were detonated were 

not Coin brand;

9

(7) there were multiple alternate suspects familiar with 

building explosives; and

(8) there was a white vehicle seen at each of the 1991 

bombings, and Genrich did not own or have access to a 

vehicle.

¶ 132 I conclude that in light of all the evidence, if O’Neil’s 

individualization testimony were excluded as the result of the new 

evidence alleged, the record does not clearly establish that Genrich 

would probably still be convicted. 

C. Genrich Is Entitled to an Evidentiary Hearing on the Basis of 

His Due Process Claim

¶ 133 In his motion for a new trial, Genrich contended that the 

“jury’s verdicts were based on what we now know to be unreliable 

forensic evidence, in violation of both the Colorado and United 

 

9 The Surplus City employee responsible for ordering this kind of 

part testified that the end caps were slow sellers, and therefore he 

knew from his records that the only end caps in stock from the time 

he ordered them in 1990 until after the bombings were the nonCoin brand type.
66

States Constitutions.” I conclude that Genrich has alleged facts 

that warrant an evidentiary hearing because the record does not 

“clearly establish,” Chalchi-Sevilla, ¶ 7 (quoting Ardolino, 69 P.3d at 

77), the absence of a due process violation, and his allegations “may 

warrant relief,” id. 

¶ 134 Crim. P. 35(c)(2)(I) authorizes postconviction review when “the 

conviction was obtained or sentence imposed in violation of the 

Constitution or laws of the United States or the constitution or laws 

of this state.” 

¶ 135 Colorado appellate courts have not previously considered 

whether the admission of scientifically unreliable expert testimony 

results in a due process violation. However, in Han Tak Lee v. 

Houtzdale SCI, 798 F.3d 159, 166 (3d Cir. 2015) (quoting Han Tak 

Lee v. Glunt, 667 F.3d 397, 403 (3d Cir. 2012)), the Third Circuit 

Court of Appeals held that the admission of scientifically unreliable 

expert testimony would violate due process guarantees if the “expert 

testimony undermined the fundamental fairness of the entire trial 

because the probative value of [that] evidence, though relevant, 

[was] greatly outweighed by the prejudice to the accused from its 
67

admission.” The Ninth Circuit Court of Appeals adopted this 

approach in Gimenez v. Ochoa, 821 F.3d 1136 (9th Cir. 2016). 

¶ 136 Habeas relief for a due process violation is not available, 

however, if there was “ample other evidence of guilt.” Glunt, 667 

F.3d at 407 n.13 (quoting Albrecht v. Horn, 485 F.3d 103, 126 (3d 

Cir. 2007)). 

¶ 137 I conclude that Colorado law recognizes the due process 

claims recognized by both the Third and Ninth Circuits.

¶ 138 Given the significant potential for O’Neil’s expert 

individualization testimony to have swayed the jury to convict 

Genrich, I consider the elements of the Han Tak Lee test and 

conclude that Genrich’s due process claims warrant an evidentiary 

hearing. 

1. Han Tak Lee

¶ 139 In Han Tak Lee, 798 F.3d at 161, a jury convicted a father of 

first degree murder and arson after his daughter died in a house 

fire. At trial, the prosecutor relied heavily on “fire-science and gaschromatography evidence” introduced through expert testimony. 

Id. at 161-62. Years later, the father filed a petition for habeas 

corpus arguing that his conviction violated due process because the 
68

expert testimony had been based on what he claimed was 

unreliable science. Id. at 162. 

¶ 140 The federal district court denied the petition, but the Third 

Circuit reversed. Id. The father then prevailed on remand following 

an evidentiary hearing. Id. The district court concluded that “the 

admission of the fire expert testimony undermined the fundamental 

fairness of the entire trial” because the verdict “rest[ed] almost 

entirely upon scientific pillars which have now eroded.” Id. (quoting 

Han Tak Lee v. Tennis, No. 4:08-CV-1972, 2014 WL 3894306, at 

*15-16 (M.D. Pa. June 13, 2014)). 

¶ 141 The district court also concluded, despite the fact that the 

Commonwealth of Pennsylvania had introduced evidence that the 

father had strangled his daughter before the fire, had shown little 

grief after the incident, and had provided conflicting accounts of the 

fire, that the Commonwealth had failed to demonstrate that there 

was ample other evidence of guilt. Id. The Third Circuit affirmed. 

2. Due Process Violation

¶ 142 Assuming the truth of Genrich’s allegations in his Crim. P. 

35(c) motion, the prejudicial effect of the individualization testimony 

significantly outweighs its probative value. The individualization 
69

testimony was allegedly scientifically baseless and therefore, as 

discussed above, had no probative value. It was highly prejudicial 

because (1) it was the strongest piece of evidence against Genrich; 

(2) it was offered by an expert witness whose opinion, as an expert 

witness for the State, bore an “aura of trustworthiness and 

reliability” not typically afforded that of lay witnesses, Cook, 197 

P.3d at 277; and (3) the prosecutor relied heavily on the 

individualization testimony in opening statement and closing 

argument. 

3. Ample Other Evidence of Guilt

¶ 143 As discussed above, I disagree with Genrich that the “sole 

evidentiary basis” for his conviction was the individualization 

testimony. However, whether there was ample other evidence of his 

guilt such that he would not be entitled to, at the very least, an 

evidentiary hearing is a closer question. As detailed above, both the 

prosecutor and Genrich introduced significant evidence apart from 

the individualization testimony. 

¶ 144 The partial dissent takes the position that because there is 

some other evidence of Genrich’s guilt, his due process claim must 

be rejected. But that is not the test. There must be “ample other 
70

evidence of guilt.” Han Tak Lee, 798 F.3d at 166 (emphasis added) 

(quoting Glunt, 667 F.3d at 407 n.13). Further, in order to reject 

the due process claim without an evidentiary hearing, the record 

must “clearly establish” that there is ample evidence of guilt. 

Chalchi-Sevilla, ¶ 7 (emphasis added) (quoting Ardolino, 69 P.3d at 

77). I conclude it does not. The ultimate determination of whether 

ample other evidence of guilt was presented is for the postconviction

court on remand after an evidentiary hearing.

¶ 145 Finally, the partial dissent seems to contend that Genrich has 

not alleged deficiencies in the expert testimony that would 

constitute a due process violation. I disagree because Genrich’s 

undeniable base contention is that the individualization testimony 

is scientifically unreliable, and multiple courts have concluded that 

the admission of such unreliable testimony can constitute a due 

process violation. Gimenez, 821 F.3d at 1145; Han Tak Lee, 798 at 

161. Such a due process claim, unlike a new evidence claim under 

the partial dissent’s reading of Farrar, “does not require a showing 

of innocence.” Han Tak Lee, 798 F.3d at 162. Thus, Genrich’s due 

process claim entitles him to an evidentiary hearing.
71

III. Conclusion

¶ 146 I vote to reverse the postconviction court’s order in part and to 

remand to that court for an evidentiary hearing on Genrich’s Crim. 

P. 35(c) motion as it pertains to his class 1 felony convictions.
72

JUDGE TOW, concurring in part and dissenting in part. 

¶ 147 A quarter century after his conviction for multiple counts of 

murder and other crimes stemming from a bombing spree, James 

Genrich seeks a new trial, asserting newly discovered evidence. His 

motion for a new trial, filed in 2016, is based on a 2009 report of 

the National Academy of Sciences, Nat’l Research Council of the 

Nat’l Acads., Strengthening Forensic Science in the United States: A 

Path Forward (2009), https://perma.cc/8H3Q-S9SU (the NAS 

Report) — which concluded that much of the forensic science relied 

upon by law enforcement officials throughout the country lacked 

sufficient scientific validation studies — and a proffered expert 

witness’s opinion purporting to explain the impact of the NAS 

Report on Genrich’s case. The majority concludes that Genrich’s 

allegations are sufficient to warrant a hearing on his motion for a 

new trial on the class 1 felony charges. Because I believe that 

Genrich’s proffered evidence, as a matter of law, is neither new nor 

of sufficient consequence to the outcome to meet the threshold for 

obtaining a new trial, I respectfully dissent in part.1

 

 

1 I agree with both of my colleagues that any claim for a new trial on 

the lesser felonies is time barred. § 16-5-402, C.R.S. 2018. See 
73

I. Background and Applicable Law

¶ 148 As a threshold matter, I agree with, and adopt without 

repeating, Judge Berger’s recitation of the factual and procedural 

background in this matter. Supra ¶¶ 75-84 (Berger, J., specially 

concurring). I also agree with both of my colleagues’ recitations of 

the four elements a defendant must show to obtain a new trial 

based on newly discovered evidence. Supra ¶ 41 (majority opinion); 

¶ 106 (Berger, J., specially concurring). This, however, is where I 

part company with my colleagues, because in my view, Genrich has 

failed to sufficiently set forth allegations that entitle him to a 

hearing on his motion for new trial. 

II. The NAS Report

¶ 149 The NAS Report was the result of a study commissioned in 

2005 by Congress, which had recognized the need for significant 

improvements in the nation’s forensic science system. NAS Report, 

at xix. Specifically, by statute, Congress “direct[ed] the Attorney

General to provide [funds] to the National Academy of Sciences to 

 

People v. Stovall, 2012 COA 7M, ¶ 37. Thus, I concur in that 

portion of the decision. 
74

create an independent Forensic Science Committee.” S. Rep. No. 

109-88, at 46 (2005); see Act of Nov. 22, 2005, Pub. L. No. 109-108, 

119 Stat. 2290. That committee then studied numerous forensic 

science disciplines, including biological evidence, analysis of 

controlled substances, friction ridge analysis, hair and fiber 

analysis, shoe print and tire track impressions, forensic odontology, 

bloodstain pattern analysis, and (relevant to this dispute) firearms 

and toolmark identification. After a lengthy study, the committee 

issued the NAS Report. 

¶ 150 The report describes toolmarks as follows: “Toolmarks are 

generated when a hard object (tool) comes into contact with a 

relatively softer object. Such toolmarks may occur in the 

commission of a crime when an instrument such as a screwdriver, 

crowbar, or wire cutter is used . . . .” NAS Report, at 150. 

Toolmark identification focuses on both “class characteristics” and 

“individual characteristics” of tools. The former are “distinctive 

features that are shared by many items of the same type.” Id. at 

152. This would include things like “the width of the head of a 

screwdriver or the pattern of serrations in the blade of a knife . . . 

common to all screwdrivers or knives of a particular manufacturer 
75

and/or model.” Id. Individual characteristics, on the other hand, 

are “the fine microscopic markings and textures that are said to be 

unique to an individual tool.” Id. 

¶ 151 The committee studied how the process of toolmark 

identification is undertaken and reported on the shortcomings in 

the interpretation of toolmarks. For example, the committee noted 

that it was “not able to specify how many points of similarity are 

necessary for a given level of confidence in the result.” Id. at 154. 

Further, the committee expressed concern regarding the “heavy 

reliance on the subjective findings of examiners rather than on the 

rigorous quantification and analysis of sources of variability.” Id. at 

155. Ultimately, the committee concluded that “[s]ufficient studies 

have not been done to understand the reliability and repeatability of 

the methods.” Id. at 154.

¶ 152 Notably, however, the committee did not opine that the 

discipline could never or would never be established as reliable. 

Indeed, the committee acknowledged that “class characteristics are 

helpful in narrowing the pool of tools that may have left a distinctive 

mark,” and that “[i]ndividual patterns from manufacture or from 

wear might, in some cases, be distinctive enough to suggest one 
76

particular source.” Id. Rather, the NAS Report merely concluded 

that “additional studies should be performed to make the process of 

individualization more precise and repeatable.” Id. 

III. The Motion for a New Trial

¶ 153 Genrich argues that the NAS Report is new evidence, was not 

obtainable prior to his trial, is material and not merely cumulative 

or impeaching, and would probably produce an acquittal. In my 

view, even taking his factual allegations as true, Genrich’s motion 

fails to establish that he is entitled to a new trial, or even to an 

evidentiary hearing. 

A. The NAS Report Is Not New Evidence

¶ 154 Implicit in the first two prongs of the test — that the evidence 

was discovered after trial, and not before trial despite the exercise of 

due diligence by a defendant and his or her counsel — is the 

requirement that the evidence must actually be new. The 

information in the NAS Report is neither evidence nor new. 

¶ 155 As a division of this court has previously held in another 

context, “[a]cademic theories merely form the basis for interpreting 

evidence when they are applied to existing evidence.” People v. 

Bonan, 2014 COA 156, ¶ 31. “Unapplied, academic theories do not 
77

constitute evidence.” Id. Genrich has not proffered any testimony 

or evidence that would apply the purportedly new scientific 

information in the NAS Report to the circumstances of this case. 

Instead, he proffers an affidavit from Jay Siegel (a member of the 

committee that wrote the 2009 NAS Report), in which Siegel merely

recites the conclusion of the report: that the forensic science of 

toolmark identification “has not been sufficiently studied nor 

scientifically validated.” At no point in the affidavit does Siegel 

opine that Genrich’s tools did not make the marks on the bomb 

parts.2

 

¶ 156 The affidavit attached to Genrich’s motion for new trial is not 

evidence. See Commonwealth v. LeFave, 714 N.E.2d 805, 813 

(Mass. 1999) (holding that to treat expert testimony relying on 

studies released after trial as evidence “would provide convicted 

defendants with a new trial whenever they could find a credible 

 

2 Though Genrich submitted a supplemental affidavit to the trial 

court as part of a motion to reconsider, neither the trial court nor 

this court is required to consider information first presented in a 

motion to reconsider. See Fox v. Alfini, 2018 CO 94, ¶ 36. In fact, 

where, as here, the motion to reconsider merely advanced the same 

arguments in the original postconviction petition, it is essentially a 

successive petition and will not be considered. See People v. 

Thomas, 195 P.3d 1162, 1165 (Colo. App. 2008). 
78

expert with new research results supporting claims that the 

defendant made or could have made at trial”); State v. Gillispie, Nos. 

22877, 22912, 2009 WL 2197052, at *26 (Ohio Ct. App. July 24, 

2009) (unpublished opinion) (“A case cannot be retried based on 

every ‘advancement’ in scientific research.”). Notably, both LaFave 

and Gillespie were cited with approval in Bonan, ¶ 35. 

¶ 157 Nor is the information new. Again, the gravamen of the report 

is that “[s]ufficient studies have not been done to understand the 

reliability and repeatability of the methods.” NAS Report, at 154. 

In other words, the report concludes that the science of toolmark 

identification lacks a sufficient scientific method and basis. In his 

motion for new trial and the accompanying affidavit, Genrich and 

his expert, Siegel, parrot this conclusion, arguing that the forensic 

science of toolmark identification “has not been sufficiently studied 

nor scientifically validated.” 

¶ 158 Significantly, the jury heard this exact evidence during 

Genrich’s trial. Genrich presented an expert witness in scientific 

methods. The defense expert pointed out that there were no data 

banks supporting the assumption that each tool is unique, there 

had been no experiments conducted to determine the probability of 
79

misidentification of a tool, the toolmark examiner’s opinion was 

subjective, the toolmark analysis process has no scientific basis,

and the fact that the test was not conducted in a blind fashion 

exposed the conclusion to confirmation bias by the examiner. The 

prosecution offered no evidence to the contrary. 

¶ 159 Because Genrich’s motion offers only unapplied academic 

theories, and in any event the jury heard and had the opportunity 

to consider essentially the same information as that presented in 

the NAS Report, Genrich has not presented any new evidence. 

Thus, because he has failed to sufficiently allege that new evidence 

exists, he cannot be entitled to a hearing on whether this 

information would warrant a new trial. 

¶ 160 Indeed, for the same reason, he has failed to sufficiently allege 

facts that, if true, would establish the second prong. In one 

iteration of the second prong, our supreme court has stated that 

the evidence must be “unknown to the defendant and his counsel in 

time to be meaningfully confronted at trial and unknowable through 

the exercise of due diligence.” Farrar v. People, 208 P.3d 702, 706 

(Colo. 2009). Genrich’s purportedly new evidence was not only 

knowable, but known to Genrich’s counsel, who developed and 
80

presented it to the jury in a meaningful confrontation of the 

prosecution’s expert. Thus, again, even taking the allegations as 

true, the motion fails to set forth sufficient grounds to warrant a 

hearing. 

B. The Evidence Is Merely Cumulative and Impeaching

¶ 161 Even if the NAS Report constitutes new evidence, Genrich

must show that it is “material to the issues involved, and not merely 

cumulative or impeaching.” People v. Rodriguez, 914 P.2d 230, 292 

(Colo. 1996). 

1. Farrar and the Definition of Material

¶ 162 In Farrar, the supreme court explained that to be material, 

new evidence “must be of sufficient consequence for reasons other 

than its ability to impeach, or cast doubt upon, the evidence 

already presented at trial.” Farrar, 208 P.3d at 707. To be 

consequential, the court continued, the evidence must be 

“affirmatively probative of the defendant’s innocence, whether that 

is accomplished by helping to demonstrate that someone else 

probably committed the crime; that the defendant probably could 

not have committed the crime; or even that the crime was probably 

not committed at all.” Id. 
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¶ 163 Both of my colleagues conclude that Farrar has no application 

here. Specifically, they conclude that though the supreme court 

announced this language, it did not apply it. I respectfully disagree. 

¶ 164 After providing this guidance on what materiality means in the 

context of new evidence, the court reiterated, “we have for some 

time emphasized that a defendant can be entitled to a new trial as 

the result of newly discovered evidence only if that evidence would 

be likely to result in acquittal for reasons beyond simply 

impeaching the earlier conviction.” Id. In the context of that case, 

which involved a witness recantation, the court stated that a new 

trial would not be warranted “[u]nless the victim’s testimony that 

the defendant did not commit the sexual assault will probably be 

believed.” Id. at 708 (emphasis added). Clearly, this is an 

invocation of the “affirmatively probative of innocence” test the 

court had announced appearing just moments before. The court 

further stated that the district court “properly evaluated the effect of 

the victim’s recantation apart from its impeachment value.” Id. at 

709. And finally, the court reiterated that a new trial may only be 

granted “upon the discovery of meaningfully contradictory evidence.” 

Id. (emphasis added). There is simply no reason to believe that 
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“meaningfully contradictory” was meant to be read in the context of 

the test for “sufficient consequence” or materiality appearing just 

three pages earlier in the court’s decision. 

¶ 165 Judge Berger seeks to distinguish Farrar on two additional 

grounds, both of which I disagree with. First, he posits that Farrar

itself disavows any effort to impose a heightened standard when it 

discusses the test for withdrawing a guilty plea based on new 

evidence set forth in People v. Schneider, 25 P.3d 755 (Colo. 2001). 

Supra ¶¶ 110-111 (Berger, J., specially concurring). Judge Berger 

states that the existing standard for obtaining a new trial differs 

from the test for withdrawal of a guilty plea based on new evidence 

only because the latter requires proof that the charges be “actually 

false or unfounded.” Schneider, 25 P.3d at 762. However, I do not 

believe the Farrar standard is an “actual innocence” test. To 

require a defendant to prove — as a threshold to being permitted to 

withdraw a plea — that the charges were actually false is far 

different than to require a defendant to prove — as a threshold for 

obtaining a new trial — that evidence is “affirmatively probative of 

innocence.” The latter only requires a threshold showing that the 

charges might actually be false or unfounded. Thus, Schneider does 
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not necessitate any limitation on the clarification of the materiality 

test announced in Farrar. 

¶ 166 Next, Judge Berger asserts that to the extent Farrar imposes a 

new test for materiality, that test is limited to recantations. I do not 

believe this is a fair reading of the case. 

¶ 167 When the supreme court set forth its clarification of what is 

required for new evidence to be consequential, it had not yet turned 

to the analysis of the specific facts of the case; rather, it was setting 

forth the applicable law. Farrar, 208 P.3d at 706-07. In doing so, 

the court discussed the historical treatment of the materiality prong 

of the test by referring to two cases, neither of which is a 

recantation case. Id. (first citing People v. Scheidt, 187 Colo. 20, 22, 

528 P.2d 232, 233 (1974); then citing Digiallonardo v. People, 175 

Colo. 560, 567, 488 P.2d 1109, 1113 (1971)). 

¶ 168 The new evidence in Scheidt involved an allegation that before 

the defendant’s trial, the prosecution possessed but did not disclose 

a statement by a different person confessing to the killing for which 

the defendant had been convicted. 187 Colo. at 21, 528 P.2d at 

233. No witness recanted any testimony. 
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¶ 169 The new evidence in Digiallonardo involved a post-trial 

statement from the victim of a robbery by two men he had just been 

introduced to, in which the victim stated that at some point after 

the trial, he had seen the defendant and another man at a social 

event, and “in viewing the two men he now feels that his absolute 

identification of defendant . . . is doubtful and that his testimony 

may have been mistaken.” 175 Colo. at 567, 488 P.2d at 1113. 

While this statement might be classified as a recantation, even the 

court was hesitant to do so, stating that the witness “merely states 

that he may have been mistaken.” Id. at 569, 488 P.2d at 1114. 

Such a statement does not amount to the witness withdrawing or 

renunciating his testimony. See Black’s Law Dictionary 1521 (11th 

ed. 2019) (defining recant).3

 

¶ 170 Finally, after setting forth the law in this area, the supreme 

court in Farrar noted that “[n]ewly discovered evidence in this sense 

can, and often does, arise from the recantation of a witness who 

testified at trial.” Farrar, 208 P.3d at 707 (emphasis added). The 

court further explained that “some jurisdictions treat recantations 

 

3 Interestingly, in both cases, the supreme court affirmed the trial 

court’s denial of a new trial. 
85

as a distinct ground for ordering a new trial, subject to different 

standards of proof altogether.” Id. However, the court stated that it 

has “never singled out recantation for this kind of special 

treatment.” Id. In short, nothing in the court’s discussion suggests 

that recantation is to be treated differently than any other type of 

new evidence.

2. The Materiality of the NAS Report

¶ 171 Nothing in the NAS Report demonstrates, or even suggests, 

that Genrich did not commit the crimes, or that someone else 

probably did.4

 The evidence demonstrates nothing more than that, 

after Genrich’s trial, a consensus has developed in a significant 

portion of the scientific community that agrees with Genrich’s 

expert’s view of the state and quality of the forensic science of 

toolmark identification. Similarly, nowhere in Siegel’s original 

affidavit does he state that the examiner’s opinion in this case was 

definitively wrong. Rather, Siegel only opines that there is no 

scientific support for the examiner’s opinion — a point 

unequivocally made to the jury by Genrich’s trial expert. 

 

4 Of course, there can be no argument in this case that the crime 

did not actually occur. 
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¶ 172 In other words, the NAS Report shows nothing more than that 

additional experts would support Genrich’s trial expert and refute 

the prosecution’s. Therefore, the information in the report is not 

material — i.e., not sufficiently consequential; rather, the evidence 

is merely cumulative of Genrich’s trial expert’s testimony and serves 

only to impeach the prosecution’s expert. Genrich’s allegations, 

taken as true, fail to establish the third prong of the test as well. 

Thus, because he would not be entitled to relief, he is not entitled to 

a hearing. 

C. The Record Clearly Demonstrates that the Evidence 

Would Probably Not Produce an Acquittal

¶ 173 Finally, again assuming the NAS Report qualifies as new 

evidence, the record as a whole clearly demonstrates that the 

evidence would probably not produce an acquittal. First, unlike my 

colleagues, I am not convinced that the NAS Report would 

necessarily exclude much, if any, of the toolmark examiner’s 

testimony, the vast majority of which was informed by his own 

extensive personal experience from sixteen years examining 

toolmarks. See Kutzly v. People, 2019 CO 55, ¶ 17 (holding that 

experience-based expert testimony need not always be based on 
87

statistical analysis). Indeed, Judge Harry Edwards, the co-chair of 

the committee that authored the NAS Report, has made it clear that 

“nothing in the Report was intended to answer the ‘question 

whether forensic evidence in a particular case is admissible under 

applicable law.’” United States v. Rose, 672 F. Supp. 2d 723, 725 

(D. Md. 2009) (quoting Hon. Harry T. Edwards, Statement before 

U.S. Senate Judiciary Committee (Mar. 18, 2009)). 

¶ 174 Yet, even if the individualization testimony were excluded, the 

jury would nevertheless have heard testimony from a very 

experienced toolmark examiner that the toolmarks on the bomb 

parts were consistent with marks made by Genrich’s tools. (It bears 

repeating that nothing in the NAS Report or Genrich’s motion 

refutes the accuracy of that testimony.) Combined with the weighty 

circumstantial evidence of Genrich’s guilt, the probability that the 

individualization testimony was the linchpin of the jury’s 

deliberation appears quite low.5

 

 

5 I note that Genrich has not identified any case in which the 2009 

NAS Report was determined to be sufficiently material new evidence 

regarding toolmark analysis that a new trial was ordered. And, 

despite a nationwide search, I have discovered no such case. 
88

IV. Genrich’s Due Process Claim

¶ 175 Genrich also claims that permitting a conviction to stand 

despite the fact that some of the scientific testimony supporting 

that conviction has fallen out of favor would run afoul of his due 

process rights. While I do not necessarily disagree with his 

premise, I do not believe he has sufficiently pleaded facts to warrant 

a hearing on the issue. 

¶ 176 Some federal courts have considered a defendant’s due 

process claim based on subsequently debunked scientific 

testimony. 

¶ 177 In Han Tak Lee v. Houtzdale SCI, 798 F.3d 159 (3d Cir. 2015), 

the defendant was convicted of murder and arson, based in part on 

the testimony of an expert in fire science. Id. at 161. During a 

postconviction hearing, the defendant presented “evidence about 

developments in the field of fire science that . . . ‘provided ample 

reason to question the reliability of the arson investigation.’” Id.

(quoting Han Tak Lee v. Glunt, 667 F.3d 397, 401 (3d Cir. 2012)). 

The defendant then filed a habeas corpus petition, claiming that his 

conviction violated due process because it was based on inaccurate 

and unreliable evidence. Id. at 162. The Third Circuit Court of 
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Appeals held that, to prevail, the defendant “must show that the 

admission of the fire expert testimony undermined the fundamental 

fairness of the entire trial because the probative value of [the fire 

expert] evidence, though relevant, is greatly outweighed by the 

prejudice to the accused from its admission.” Id. (quoting Glunt, 

667 F.3d at 403). However, habeas relief is not available where 

there is “ample other evidence of guilt.” Id. (quoting Glunt, 667 F.3d 

at 407 n.13). 

¶ 178 In Gimenez v. Ochoa, 821 F.3d 1136 (9th Cir. 2016), the Ninth 

Circuit Court of Appeals reviewed a challenge to a child abuse 

conviction based on testimony regarding the connection between a 

specific triad of injuries (subdural hematoma, brain swelling, and 

retinal hemorrhage) and a diagnosis of Shaken Baby Syndrome 

(SBS). Id. at 1143. The defendant pursued habeas relief, asserting 

that numerous scientific articles published following his conviction 

had altered the reliance of the forensic pathology community on 

this triad, and that now the medical community requires some 

evidence of impact injuries before diagnosing SBS. Id. The Ninth 

Circuit Court of Appeals adopted the test adopted by the Third 
90

Circuit in Han Tak Lee. Id. at 1145. However, the court denied 

habeas relief based on the strength of the remaining evidence. Id. 

¶ 179 I note that neither the Colorado Supreme Court nor the Tenth 

Circuit Court of Appeals has adopted the Han Tak Lee test. 

However, even if I assume that a due process challenge to a 

conviction based on subsequently discredited science is cognizable 

in theory, such a claim would not be applicable here. 

¶ 180 The flaw in Genrich’s proposition is not in its premise, but in 

the applicability of that premise to his situation. He formulates the 

issue in his opening brief: “Is Due Process violated where the sole 

evidentiary basis for conviction is expert testimony that is later 

revealed to be patently false and contrary to science?” (Emphasis 

added.) As both Judge Berger and I have pointed out, the 

individualization testimony at trial is far from the sole evidentiary

basis for the conviction. Supra ¶ 131 & n.6 (Berger, J., specially 

concurring). While the weight and sufficiency of the circumstantial 

evidence of Genrich’s guilt might be subject to debate, its existence 

is not, notwithstanding Genrich’s counsels’ refusal to acknowledge 

it. Further, as I have discussed, nothing in either the NAS Report 

or the Siegel affidavit supports the allegation that the toolmark 
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analysis testified to at trial is either “patently false” or “contrary to 

science.” Again, the only conclusion of the report is that more 

testing is needed to ensure reliability. 

¶ 181 Again, I do not reject the premise underlying Han Tak Lee —

that a conviction that rests exclusively, or even primarily, on 

scientific testimony that is later determined to be demonstrably 

false cannot stand. This, however, is not that case. Even if the Han 

Tak Lee test were applicable, Genrich fails to satisfy it, or even 

sufficiently invoke it to be entitled to a hearing. He has not alleged 

facts that would demonstrate that the admission of the 

individualization testimony at trial undermined the fundamental 

fairness of the trial, particularly in light of (1) the fact that his 

expert witness exposed all of the same flaws in the testing that the 

NAS Report later identified and (2) the strength of the remaining 

evidence against him. 

V. Conclusion

¶ 182 I concur in the decision affirming the district court’s denial of 

the request for a new trial on the non-class-1 felony charges. But 

because — taking as true all of Genrich’s factual allegations — I do 
92

not believe he has brought forth new material evidence that would 

likely result in acquittal, I respectfully dissent from the decision to 

require the district court to conduct a hearing on Genrich’s motion 

for new trial.