If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
LEDURA WATKINS, UNPUBLISHED
October 22, 2020
Plaintiff-Appellant,
V No. 348855
Court of Claims
STATE OF MICHIGAN, LC No. 17-000218-MZ
Defendant-Appellee,
and
WAYNE COUNTY PROSECUTOR,
Intervening Defendant-Appellee.
Before: METER, P.J., and SHAPIRO and RIORDAN, JJ.
PER CURIAM.
Plaintiff, Ledura Watkins, appeals as of right the trial court’s order granting summary
disposition under MCR 2.116(C)(10) (no genuine issue of material fact) in favor of defendant, the
state of Michigan, and intervening defendant, the Wayne County Prosecutor. Plaintiff sought
compensation under the Wrongful Imprisonment Compensation Act (WICA), MCL 691.1751 et
seq., after his first-degree murder conviction was vacated on the basis of new evidence revising
the strength of the conclusions that may be drawn from microscopic hair analysis evidence.
Because the trial court did not err in its ruling that this new evidence did not give rise to a genuine
issue of material fact that plaintiff did not perpetrate or participate in the offense, we affirm.
I. BACKGROUND
Detroit police officers found the body of Yvette Ingram, who had been shot in the head, on
the evening of September 6, 1975. Travis Herndon told police that he had information about the
murder after he was arrested for an unrelated armed robbery. Plaintiff was subsequently arrested
and charged with the murder. At plaintiff’s trial, Herndon testified that he had spent time with
plaintiff and Gary Vazana in September 1975, and that on the evening of September 6, 1975,
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Vazana told plaintiff and Herndon to kill Ingram, who sold drugs. Herndon also said that Vazana
gave plaintiff a gun, that plaintiff drove the two of them to Ingram’s house in Vazana’s car and
gave Herndon the gun. Plaintiff rang the doorbell because he knew Ingram, while Herndon stood
to the side with the gun. When Ingram answered the door, plaintiff pushed her inside, and Herndon
followed them upstairs into the bedroom where he retrieved a stash of drugs. According to
Herndon, plaintiff, who had the gun, told Herndon to hold a pillow over Ingram’s face, and plaintiff
then put the gun to the pillow and shot Ingram twice.
The circuit court heard arguments about the admissibility of microscopic hair analysis
evidence outside the presence of the jury. Detroit Police Officer Ronald Badaczewski and
Sergeant Mary Jarrett, who were both assigned to the serology and trace evidence area of the crime
lab, testified. They both testified that microscopic hair analysis involved the comparison of known
and unknown hair samples on the basis of 15 different characteristics, that a known and unknown
hair could be microscopically similar and have a common origin, and that it was not possible to
say with reasonable scientific certainty that an unknown hair came from a known suspect. Sergeant
Jarrett stated that microscopic hair analysis was more accurately used as a tool of comparison
rather than identification, and she agreed that it should be considered corroborative, not conclusive.
After the circuit court ruled the evidence admissible, Officer Badaczewski testified in front
of the jury about the hair comparison process. He stated that he received known hair samples from
Ingram, plaintiff, and Herndon, as well as unknown hairs from clothing and bedding at the crime
scene. Comparing the unknown hairs from the crime scene that were dissimilar to Ingram’s hair
with the samples taken from plaintiff and Herndon, he confirmed, “within reasonable scientific
certainty,” that the unknown hairs were similar to hairs taken from Herndon and from plaintiff.
Officer Badaczewski testified that hairs taken from the scene and hairs taken from Herndon and
plaintiff “were microscopically similar and could have come from a common origin.” Officer
Badaczewski stated that of the 12 to 15 hairs found on Ingram’s pants, one hair was similar to
plaintiff’s hair. Officer Badaczewski further testified that it was not possible to assign a “degree
of reliability” to make a positive identification, but he agreed that it was possible to state with a
“high degree of probability” that an unknown hair and a known hair sample had “a common
origin.”
Plaintiff was convicted of first-degree premeditated murder and sentenced to life
imprisonment. This Court affirmed the conviction, in part concluding that the trial court had
properly ruled that the microscopic hair analysis evidence was admissible. People v Watkins, 78
Mich App 89, 95-96; 259 NW2d 381 (1977). Herndon subsequently recanted his trial testimony
in June 1980, stating that Vazana, who had since died, was the one who killed Ingram while
Herndon was with Vazana. Plaintiff then filed a motion for a new trial, which the circuit court
denied, rejecting Herndon’s recantation as unreliable. Plaintiff did not appeal this decision. In
2010, plaintiff applied for a pardon, in which he took responsibility for the killing. Attached to
the application were psychological reports from the 1980s, noting that plaintiff had made more
direct statements of responsibility for the killing.
In 2013, the Federal Bureau of Investigation (FBI) agreed that examiners regularly
overstated the conclusions that could be drawn from microscopic hair analysis evidence. It
concluded that a forensic examiner could state that a known hair sample could be included or
excluded as a possible source of unknown hair at a crime scene, but it was not possible to attach a
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probability to this possible inclusion or exclusion because the size of the pool of people who could
have been a source for the hair was unknown. Thus, a forensic examiner who testified that an
unknown hair likely came from a known source would have been overstating the conclusions that
could be drawn from microscopic hair analysis evidence. Julie Howenstine, a forensic biology
and forensic DNA specialist, stated in an affidavit that Officer Badaczewski’s trial testimony
overstated the significance of the evidence in plaintiff’s case when he stated his opinion with a
reasonable scientific certainty.
Plaintiff filed a motion for relief from judgment on the basis of this new evidence regarding
the limitations of microscopic hair analysis evidence. With the parties’ agreement, the circuit court
granted the motion, vacated plaintiff’s conviction and sentence, and dismissed the case without
prejudice because the prosecution did not have sufficient evidence to retry the case. The stipulated
dismissal order noted that the prosecution’s case rested on Herndon’s testimony and the
microscopic hair analysis evidence, that the hair samples had since been destroyed and could not
be DNA tested, and that the new evidence made a different result probable on retrial because
Howenstine’s proposed testimony and the new FBI standards were unrefuted.
Plaintiff subsequently filed a complaint for compensation under the WICA, citing
Herndon’s recantation, the 2013 FBI determination, and the Howenstine affidavit as new evidence
showing that he did not perpetrate the offense. Officer Badaczewski testified that in 1975, when
offering a level of certainty as to how hairs compared to each other, he would state that they were
“microscopically similar and could have had a common origin.” Officer Badaczewski testified
that it was possible to use hair analysis to exclude a suspect, but not to include a suspect. When
presented with the hypothetical scenario of how to describe a hair that was potentially similar to
hair samples from two different people, Officer Badaczewski stated that he would not be able to
eliminate either individual, but he could say it was more likely to be one individual over the other.
In that scenario, Officer Badaczewski stated, hair comparison was not a tool of identification, but
it had “probative value” that he would use to advise an investigator to look more closely at one
suspect over another.
The state filed a motion for summary disposition. The Wayne County Prosecutor
concurred and argued that plaintiff did not produce evidence that showed he did not perpetrate the
crime. It produced a report from David Stephens, a forensic scientist, that criticized Howenstine’s
affidavit. Stephens acknowledged that Officer Badaczewski may have overstated the conclusions
that could be drawn from the microscopic hair analysis evidence at trial and at his 2017 deposition
because Officer Badaczewski did not clarify whether his testimony related only to the three known
sources, Ingram, plaintiff, and Herndon, or to the entire population. Plaintiff responded that
Herndon’s recantation was also new evidence that was corroborated by other evidence in the form
of the discredited microscopic hair analysis evidence, showing that plaintiff was not present during
the offense. Defendants replied that plaintiff supplied no evidence corroborating Herndon’s
recantation and that the microscopic hair analysis evidence remained probative of plaintiff’s
involvement because only Officer Badaczewski’s testimony about the level of certainty was
undermined, and that the hair still connected plaintiff to the murder scene.
The trial court granted summary disposition in favor of defendants. It ruled that the
microscopic hair analysis evidence retained probative value even after correcting for Officer
Badaczewski’s overstatements of the evidence because Officer Badaczewski’s testimony that a
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hair found on Ingram’s pants was microscopically similar to, and could have a common origin
with, plaintiff’s hair remained valid. The trial court ruled that the evidence regarding the
developments in microscopic hair analysis science was the only new evidence that caused
plaintiff’s conviction to be vacated and that it would not consider any other new evidence cited by
plaintiff.
II. DISCUSSION
Plaintiff argues that the trial court erred by continuing to assign probative value to the
microscopic hair analysis evidence and by ruling that there was no genuine issue of material fact
as to whether the new evidence that resulted in the vacation of plaintiff’s conviction showed that
he did not perpetrate the offense. We disagree.
This Court reviews de novo a trial court’s ruling on a motion for summary disposition as
well as matters of statutory interpretation. Sullivan v Michigan, 328 Mich App 74, 80; 935 NW2d
413 (2019). Summary disposition is proper when “there is no genuine issue as to any material
fact, and the moving party is entitled to judgment or partial judgment as a matter of law.” MCR
2.116(C)(10). “A motion for summary disposition pursuant to MCR 2.116(C)(10) tests whether
there is factual support for a claim and is appropriate when there is no genuine issue concerning
any material fact.” Maples v Michigan, 328 Mich App 209, 217; 936 NW2d 857 (2019). This
Court considers all substantively admissible documentary evidence in the light most favorable to
the nonmoving party. Auto-Owners Ins Co v Seils, 310 Mich App 132, 155; 871 NW2d 530
(2015). “When interpreting a statute, the goal is to ascertain and give effect to the intent of the
Legislature. Where the language of the statute is unambiguous, the statute must be applied as
written.” Ricks v Michigan, 330 Mich App 277, ___; ___ NW2d ___ (2019) (Docket No. 342710)
(quotation marks and citation omitted); slip op at 3.
An individual who has been convicted of and imprisoned for a crime “that he or she did
not commit” may seek compensation from the state. MCL 691.1753. To be entitled to judgment
under the WICA, a plaintiff must establish, by clear and convincing evidence, all of the following:
(a) The plaintiff was convicted of 1 or more crimes under the law of this
state, was sentenced to a term of imprisonment in a state correctional facility for
the crime or crimes, and served at least part of the sentence.
(b) The plaintiff’s judgment of conviction was reversed or vacated and
either the charges were dismissed or the plaintiff was determined on retrial to be
not guilty. . . .
(c) New evidence demonstrates that the plaintiff did not perpetrate the crime
and was not an accomplice or accessory to the acts that were the basis of the
conviction, results in the reversal or vacation of the charges in the judgment of
conviction or a gubernatorial pardon, and results in either dismissal of all of the
charges or a finding of not guilty on all of the charges on retrial. [MCL
691.1755(1).]
MCL 691.1752(b) defines “new evidence” as follows:
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(b) “New evidence” means any evidence that was not presented in the
proceedings leading to plaintiff’s conviction, including new testimony, expert
interpretation, the results of DNA testing, or other test results relating to evidence
that was presented in the proceedings leading to plaintiff’s conviction. New
evidence does not include a recantation by a witness unless there is other evidence
to support the recantation or unless the prosecuting attorney for the county in which
the plaintiff was convicted or, if the department of attorney general prosecuted the
case, the attorney general agrees that the recantation constitutes new evidence
without other evidence to support the recantation.
In this case, the parties dispute whether the new evidence clearly and convincingly shows
that plaintiff did not perpetrate or participate in the killing of Ingram, as required by the first clause
of MCL 691.1755(1)(c). The trial court ruled that the new evidence consisted of evidence calling
into question the microscopic hair analysis evidence, as stated in the stipulated order vacating the
conviction. Plaintiff does not contest this ruling. Instead, he argues that the trial court minimized
the effect of Howenstine’s criticism of the evidence given that the circuit court vacated the
conviction on the basis of that criticism with the prosecution’s agreement, ignored Officer
Badaczewski’s deposition testimony that hair comparison evidence served investigative purposes
only, and inflated the significance of Officer Badaczewski’s trial testimony that was discredited
by the new evidence.
Undermining the level of certainty of Officer Badaczewski’s trial testimony about the hair
analysis evidence does not give rise to a genuine issue of material fact that plaintiff did not
perpetrate or participate in the offense. Officer Badaczewski testified in front of the jury that hair
samples obtained from plaintiff and one hair found at the crime scene “were microscopically
similar and could have come from a common origin,” and Officer Badaczewski endorsed the
phrase “reasonable scientific certainty” to describe the strength of that conclusion. Howenstine
criticized the use of the phrase “reasonable scientific certainty” as misleading and not scientifically
supported. Howenstine asserted that microscopic hair analysis cannot be used to conclusively link
or exclude a known hair sample to or from an unknown hair. The FBI likewise criticized assertions
of probability in connection with such evidence, but it would allow forensic examiners to opine
whether a known hair sample could be included or excluded as a source of an unknown hair.1
Microscopic hair analysis evidence may still be useful in stating that an individual may or may not
have been present at a crime scene as long as no probabilities are attached to how likely it was that
the individual may or may not have been present. Consequently, even with the FBI acknowledging
that such evidence had been overstated in the past, such evidence remains viable. Consistent with
the limited usefulness of microscopic hair analysis evidence, Howenstine did not criticize Officer
Badaczewski’s testimony that the unknown hair and plaintiff’s hair were microscopically similar
and could have come from a common origin. Officer Badaczewski’s testimony that the hairs were
“similar” and “could” have had a common origin did not state a conclusive opinion, which is
consistent with the FBI guidance and Howenstine’s affidavit. Accordingly, Officer Badaczewski’s
testimony that the hairs could have been similar was not discredited; rather, the certainty or
1
We need not address plaintiff’s argument that this document was admissible because the trial
court considered the effect of the document before ruling it inadmissible hearsay.
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probability of this conclusion was limited. For this reason, the trial court did not err by continuing
to assign “probative” value to Officer Badaczewski’s testimony.
Plaintiff contests this ruling by citing Officer Badaczewski’s deposition testimony that
microscopic hair analysis evidence has probative value during an investigation but should not be
used at trial. Officer Badaczewski testified that hair analysis could be a useful investigatory tool
when presented with the hypothetical scenario of a hair possibly corresponding to two different
suspects. Officer Badaczewski stated that if he could not eliminate one or the other suspect, he
would tell an investigator that the hair was more similar to suspect A rather than suspect B, but he
would not so testify in court. This hypothetical scenario is different from what Officer
Badaczewski testified to at trial when he stated that one of the hairs was microscopically similar
to and could have a common origin with plaintiff’s hair because Officer Badaczewski did not
testify that the hair was similar to both plaintiff’s hair and Herndon’s hair. Therefore, the trial
court did not err by concluding that Officer Badaczewski’s deposition testimony did not affect the
probative value of the subject evidence.
Additionally, Herndon’s testimony remains an obstacle to plaintiff’s argument that the new
evidence clearly and convincingly established that plaintiff did not perpetrate or participate in the
offense. At trial, Herndon’s testimony about how he and plaintiff committed the murder was the
primary evidence against plaintiff. The hair analysis evidence corroborated Herndon’s testimony
that plaintiff was present, although defense counsel made the point on cross-examination that the
hair could have been present in Ingram’s house for months, consistent with testimony that plaintiff
had been to Ingram’s house before. Plaintiff’s conviction was vacated because of the limitations
on microscopic hair analysis evidence and the prosecution’s inability to test the hair evidence.
Herndon’s recantation, which the circuit court previously rejected as unreliable, did not contribute
to the vacation of the conviction and the dismissal of the charge. Revising the import of the hair
analysis evidence reduced the corroboration for Herndon’s trial testimony, but it does not create a
genuine issue of material fact regarding plaintiff’s involvement.
Plaintiff criticizes the trial court’s reliance on statements made in the 2010 clemency
application because those remarks did not constitute new evidence, contrary to the trial court’s
ruling that the analysis was limited to whether the new evidence regarding the interpretation of the
hair analysis evidence showed that plaintiff did not perpetrate the offense. The trial court’s reliance
on plaintiff’s statements accepting responsibility for the killing in the 2010 clemency application
may have been extraneous to the requirement in MCL 691.1755(1)(c) that a WICA claimant show
that the new evidence clearly and convincingly demonstrates the plaintiff’s innocence, but they do
not detract from its ruling that the new evidence did not show that plaintiff did not perpetrate or
participate in the offense. Therefore, the trial court’s reliance on those statements was not error
requiring reversal.
When the prosecution agreed to the order vacating plaintiff’s conviction, the prosecution
noted that the hair was no longer available for DNA testing, and it agreed that Howenstine’s
unrefuted affidavit and the FBI’s revised standards for evaluating hair evidence were new evidence
that made a different result probable on retrial. The prosecution’s agreement to the order vacating
plaintiff’s conviction reflected its inability to prove guilt beyond a reasonable doubt. This
recognition, however, does not translate to a genuine issue of material fact regarding whether
plaintiff perpetrated or participated in the offense for the purpose of a WICA claim.
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Affirmed.
/s/ Patrick M. Meter
/s/ Michael J. Riordan
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