People v. Genrich

2025 COA 49

• Court: Colorado Court of Appeals
• Decided: May 15, 2025
• Docket: 23CA1183
• Status: Published

Opinion

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.

SUMMARY May 15, 2025

2025COA49

No. 23CA1183, People v. Genrich — Criminal Procedure — Postconviction Remedies — New Trial Based on Newly Discovered Evidence

In the underlying case of this postconviction appeal, the

defendant was convicted of two counts of first degree extreme

indifference murder and multiple other felonies in connection with a

series of pipe bombings from 1989 to 1991 in Grand Junction,

Colorado. Nearly two decades after his conviction was finalized, the

defendant filed a postconviction motion based on newly discovered

evidence that the toolmark expert testimony presented at his

original trial was no longer admissible. The postconviction court

determined that the expert testimony from the original trial was

“neutralized” by the new evidence and it granted a new trial.

On appeal, a division of the court of appeals holds that the

postconviction court did not abuse its discretion when it granted a new trial. The division concludes that the new evidence was

sufficiently material, and not merely cumulative or impeaching of

the evidence presented at the original trial. Specifically, the expert’s

conclusion that he matched tools found in the defendant’s boarding

house room to toolmarks on the bombs “to the exclusion of any

other tool” and his remaining testimony was completely

undermined by the new scientific evidence. The division further

holds that, without the toolmark analysis testimony, there was

support in the record for the postconviction court to conclude that

it was probable for the jury to acquit the defendant of the crimes for

which he was accused. Accordingly, the division affirms the order

for a new trial. COLORADO COURT OF APPEALS 2025COA49

Court of Appeals No. 23CA1183 Mesa County District Court No. 92CR95 Honorable Richard T. Gurley, Judge

The People of the State of Colorado,

Plaintiff-Appellant,

v.

James S. Genrich,

Defendant-Appellee.

ORDER AFFIRMED

Division IV Opinion by JUSTICE MARTINEZ* Yun and Kuhn, JJ., concur

Announced May 15, 2025

Daniel P. Rubinstein, District Attorney, Melinda Shishim, Chief Deputy District Attorney, Patricia Mahre, Assistant District Attorney, Grand Junction, Colorado, for Plaintiff-Appellant

Kathleen A. Lord, Boulder, Colorado; M. Chris Fabricant, Tania Brief, New York, New York; Weil, Gotshal & Manges, LLP, Irwin H. Warren, Gregory Silbert, New York, New York; Weil, Gotshal & Manges, LLP, Corey K. Brady, Brian G. Liegel, Miami, Florida, for Defendant-Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Defendant, James S. Genrich, was convicted of two counts of

first degree extreme indifference murder and multiple other felonies

in connection with a series of pipe bombings from 1989 to 1991 in

Grand Junction, Colorado. In 2016, nearly two decades after the

supreme court denied certiorari on his direct appeal, Genrich filed a

Crim. P. 35(c) motion based on newly discovered evidence. He

alleged that the science underlying expert toolmark evidence

presented at his original trial, which had connected tools found in

his one-room boarding house apartment to toolmarks on the

bombs, was no longer endorsed by mainstream science. Following

a hearing ordered by a division of this court, the postconviction

court determined that the expert testimony from the original trial

was “neutralized” by the new evidence. Accordingly, it granted

Genrich a new trial.

¶2 The People appeal, contending that the postconviction court

abused its discretion by determining that the new evidence was

sufficiently material to warrant a new trial. Instead, they argue it

was merely for impeachment and cumulative of the original trial

evidence. They also claim that even if the new evidence was

sufficiently material, there is ample remaining evidence upon which

1 a jury could rely for a conviction. We conclude that the

postconviction court acted within its discretion and, therefore,

affirm.

I. Background

¶3 In the spring of 1991, a series of three pipe bombs were

detonated in downtown Grand Junction. The first bomb exploded

in February in the parking lot of the Two Rivers Plaza, severely

injuring one person and damaging several cars. The second bomb

was placed in the rear wheel well of a van parked at the Gonzales

family’s home in March. When it exploded, it killed a young girl

who was sitting in the back seat of the van. The third bomb

exploded in June, when a restaurant patron picked it up in the

parking lot of the Feed Lot restaurant. The explosion instantly

killed him.

¶4 While investigating the case, the police connected a fourth

undetonated bomb discovered in the parking lot of the La Court

Motel in 1989. The bomb bore notable similarities to the detonated

1991 bombs, such that the police concluded they were likely made

by the same person.

2 ¶5 The police suspected Genrich based on a tip and first

contacted him in the summer of 1991. Genrich voluntarily spoke

with the police and permitted them to search and collect evidence

from his room at a boarding house. The police later returned with a

warrant to collect tools that they believed could be used to make

bombs, including needle-nosed pliers, slip-joint pliers, wire

strippers, wire cutters, and a bag of miscellaneous wires, among

other items. These tools, along with the undetonated 1989 bomb

and fragments from the detonated 1991 bombs, were sent to what

was then the Federal Bureau of Alcohol, Tobacco, and Firearms

(ATF) for examination.

¶6 Based largely on the ATF’s conclusion that the tools recovered

from Genrich’s boarding house room were the tools that created all

four bombs, Genrich was indicted by a grand jury, and a trial was

scheduled.

¶7 At trial, the prosecution began its opening statement by telling

the jury that an expert in toolmark analysis, ATF Agent John O’Neil,

identified toolmarks made by tools found in Genrich’s boarding

house room on all four bombs, to the exclusion of any other tool in

the world. The prosecution emphasized O’Neil’s credentials in his

3 field of expertise and foreshadowed that O’Neil would be able to

support his conclusions with novel video footage of his examination.

¶8 O’Neil was qualified as an expert in firearm and toolmark

analysis based on his more than twenty-two years of training and

experience, several of which were at the ATF. O’Neil admitted that

his work had not been published and that he did not have an

advanced degree in toolmark analysis. However, he said that he

had previously testified as an expert for both the prosecution and

the defense in 465 cases.

¶9 The substance of O’Neil’s testimony began with a description

of the history and procedures of firearm and toolmark analysis.

Toolmarks are the impressions — scratches, imprints, or

striations — that hand-held tools make when they are used on

softer metal. When analyzing the toolmarks, an examiner can make

one of four determinations: (1) a match between the tool and the

toolmark; (2) a nonmatch; (3) an inconclusive finding, when there is

insufficient information to determine that a match exists; or (4) an

elimination, when there is significant disagreement between

examiners and verifiers. These determinations are based on the

examiner’s training and experience over the course of their career,

4 and the number of similarities that constitute a match between the

tool and the toolmark is determined by the individual examiner.

O’Neil explained that toolmark analysis is based on

individualization theory — the assumption that all tools, and the

marks that they create, are unique and can be identified by

matching a tool and its toolmarks.

¶ 10 O’Neil informed the jury that he had conducted an experiment

to test this baseline assumption. He obtained two tools that were

manufactured together on the same assembly line and compared

the marks that they made in softer metal. He testified that

“although there are similarities between these two tools, it was very

easy to determine that these marks that they left behind were

entirely different.” Based on the assumption that different tools left

distinctly different marks, he explained, an examiner could

determine the source of any toolmark, “to a degree of certainty to

exclude any other tool.”

¶ 11 In this case, O’Neil testified that he made the following

matches for the tools found in Genrich’s boarding house room:

• The needle-nosed pliers cut two wires on the

undetonated 1989 bomb.

5 • The slip-joint pliers made impressions on three of the end

cap fragments recovered from the detonated bombs at the

Gonzales home and the Feed Lot restaurant, presumably

from tightening the caps to secure the bomb.

• The wire cutter cut a wire recovered from the Two Rivers

bomb.

¶ 12 To support his conclusions, O’Neil showed the jury a video

recording of his matching process. The video was taken through

the lens of his comparison microscope. It showed his process of

aligning light and dark striations to identify a match. While the

video was playing for the jury, O’Neil narrated what was

happening — for example, that he was adjusting zoom or the light,

or looking at specific portions of the cut marks. O’Neil also used

photos to illustrate the matches. For each match, he testified that

his confidence in the match was “to the exclusion of any other tool.”

He emphasized that his training and experience led to his certainty

in his conclusions. O’Neil testified about his conclusions for nearly

two days.

¶ 13 On cross-examination, defense counsel questioned O’Neil

about several aspects of his analysis and conclusions. She

6 questioned O’Neil about test cuts he had discarded during his

testing, which he consequently did not turn over to the defense. In

discarding the test cuts, O’Neil had violated a court order, and the

defense focused on this violation. In addition, defense counsel

called into question his methodology by asking about biases, the

subjectivity and lack of numeric support for his conclusions, and

the lack of a database or reference points for his conclusions. She

also confronted O’Neil with his colleague’s conclusions that five out

of the six matches he made were inconclusive.

¶ 14 To further contest O’Neil’s testimony, the defense called a

statistician, Don Searls, to testify about the validity and

methodology of toolmark analysis. Searls criticized the absence of a

database for toolmarks, testifying that this diminished the reliability

of the toolmark matches. He also explained that he would expect

there to be more error rate research and described the scientific

procedure that would be required to conduct such research. He

warned that there was likely bias in the verification process in this

case, given the high statistical probability of a mismatch.

¶ 15 After a month-long trial and four days of deliberation, the jury

convicted Genrich of all charges.

7 ¶ 16 Genrich directly appealed his conviction, arguing in part that

toolmark identification analysis was inadmissible under CRE 702.

People v. Genrich, 928 P.2d 799, 801 (Colo. App. 1996) (Genrich I).

A division of this court affirmed, citing other cases in which experts

were permitted to testify about toolmark analysis and concluding

that “there is ample legal support for the trial court’s conclusion

that this type of evidence is accepted.” Id. at 802. The supreme

court denied certiorari.

¶ 17 In 2016, Genrich filed the Crim. P. 35(c) motion at issue here.

In this motion, he submitted an affidavit from Jay Siegel, a forensic

scientist who served on the National Academy of Sciences

Committee charged with studying the scientific validity of forensic

science. Following two years of research, the committee found,

among other conclusions, that toolmark examiners had been

overstating the certainty and reliability of the individualization

theory. Siegel opined that this research showed that expert

opinions based on the individualization theory, like the one given by

O’Neil in this case, were no longer supported by the greater

scientific community.

8 ¶ 18 Initially, the postconviction court denied the motion without a

hearing, concluding that Genrich’s new evidence merely impeached

O’Neil’s trial testimony. However, a division of this court, in a split

opinion, reversed and remanded, finding that Genrich was entitled

to a hearing because, if true, the newly discovered evidence would

“dramatically increase his chances of obtaining an acquittal.”

People v. Genrich, 2019 COA 132M, ¶ 64 (Genrich II).

¶ 19 On remand, the postconviction court held a hearing in which

three experts testified about the lack of reliability and validity in

toolmark analysis, especially with regard to individualization theory,

and critiqued the conclusions of the toolmark analysis done in this

case. For its part, the prosecution countered with the testimony of

three toolmark examiners who refuted Genrich’s experts, two of

whom had personally verified the single agreed-upon match from

Genrich’s original trial. In defense of their methodology, these

experts insisted that they were unbiased because they did not know

the wider context of the case before conducting their analyses and

they took precautions to conduct their own independent analyses.

They asserted that their analyses and protocols followed the

Association of Firearm and Tool Mark Examiners (AFTE) standards

9 and were widely accepted among other firearm and toolmark

examiners.

¶ 20 After the hearing concluded, the postconviction court

determined that Genrich was entitled to a new trial based on the

“rejection, by the scientific community, of the underlying

methodology of toolmark analysis and, moreover, a rejection of the

propriety of the conclusions drawn from that methodology by the

People’s toolmark expert, John O’Neil — that several of the tools

and wires from several of the bombs matched.” It explained that,

under CRE 702, O’Neil’s conclusion that the matches could be

made “to the exclusion of any other tool” was inadmissible based on

the conflicting testimony between the defense experts and the

prosecution’s experts. It also concluded that, although the rest of

O’Neil’s testimony was admissible, the new evidence “call[ed] into

question the validity of toolmark analysis and [the jury at a new

trial] would hear evidence as to the potential bias that can be

injected into toolmark analysis.”

¶ 21 The People now appeal the postconviction court’s decision.

10 II. Genrich’s Motion for a New Trial

¶ 22 The People argue the postconviction court overestimated the

material value of the new evidence. Although they do not contest

the postconviction court’s findings that the individualization

testimony is inadmissible, they assert that the new evidence is

simply impeaching and cumulative of the evidence presented at the

1993 trial. Furthermore, because the postconviction court only

excluded a single conclusion — O’Neil’s testimony that his matches

were made “to the exclusion of any other tool in the world” — the

rest of O’Neil’s testimony, including his six matches, remains

admissible. The People argue that this testimony, in combination

with the other evidence presented at trial, supports the conviction,

and the new evidence would probably not bring about an acquittal

at a new trial. Therefore, according to their argument, the

postconviction court erred in granting Genrich’s motion for a new

trial.

A. Legal Principles and Standard of Review

¶ 23 To succeed on a motion for a new trial based on newly

discovered evidence, the defendant must establish that

(1) the evidence was discovered after trial;

11 (2) the defendant and his counsel exercised diligence to

discover all favorable evidence prior to trial;

(3) the newly discovered evidence is material to the issues

involved, and not merely cumulative or impeaching; and

(4) the newly discovered evidence is of such a character as to

probably bring about an acquittal if presented at another

People v. Gutierrez, 622 P.2d 547, 559-60 (Colo. 1981).

¶ 24 The postconviction court employed the correct test by

analyzing each of the four prongs of the newly discovered evidence

test. The People do not contest that Genrich satisfied prongs one

and two: that the evidence was discovered after trial, and that the

defendant exercised diligence to discover all favorable evidence prior

to trial. Therefore, only prongs three and four are at issue in this

case. Thus, the question on appeal is whether the new evidence is

sufficiently material, and not merely cumulative and impeaching,

such that it would probably bring about an acquittal if presented at

another trial.

¶ 25 It is within a court’s discretion to grant or deny a motion for a

new trial based on newly discovered evidence. People v. Bueno,

12 2018 CO 4, ¶ 19 (reviewing for an abuse of discretion when the

lower court granted the motion for a new trial); see also People v.

Hopper, 284 P.3d 87, 92 (Colo. App. 2011) (reviewing for an abuse

of discretion when the lower court denied the motion for a new

trial); People v. Jones, 690 P.2d 866, 868 (Colo. App. 1984) (same);

Cheatwood v. People, 435 P.2d 402, 405 (Colo. 1967) (same). A

court abuses its discretion when its decision is manifestly arbitrary,

unreasonable, or unfair. People v. Clark, 2015 COA 44, ¶ 14.

When the lower court’s conclusions are mixed, factual findings are

reviewed for clear error, while legal conclusions are reviewed de

novo. Bueno, ¶ 20. A court clearly errs if its finding is without

support in the record. Id. In assessing whether a lower court’s

decision is manifestly unreasonable, arbitrary, or unfair, we ask not

whether we would have reached a different result but, rather,

whether the court’s decision fell within a range of reasonable

options. People v. Rhea, 2014 COA 60, ¶ 58. Thus, a court abuses

its discretion only when its decision exceeds the bounds of the

rationally available choices. People v. Palacios, 2018 COA 6M, ¶ 18;

see also People v. Hagos, 250 P.3d 596, 610 (Colo. App. 2009) (“The

13 essence of a discretionary decision is that the trial court can choose

among valid options in resolving an issue.”).

B. The Third Prong

¶ 26 Based on our review of the case law in Colorado and

elsewhere, new evidence satisfies the third prong of the test if it

overcomes two hurdles. First, it must be material — meaning of

such consequence that it is likely to bring about acquittal. Farrar v.

People, 208 P.3d 702, 706-07 (Colo. 2009) (citing Digiallonardo v.

People, 488 P.2d 1109, 1113 (Colo. 1971)). Second, when the new

evidence impeaches a witness or is cumulative of other evidence,

that witness must be crucial to the prosecution’s case and their

testimony must be neutralized — or completely undermined — by

the new evidence. Genrich II, ¶ 58 (citing State v. Behn, 868 A.2d

329, 344-46 (N.J. Super. Ct. App. Div. 2005)).

¶ 27 In Farrar, the supreme court mandated that new evidence

must be material, meaning that it “must not only be relevant to

material issues at trial but that it must also be of consequence to

the outcome.” 208 P.3d at 706-07. The supreme court described

the materiality of the new evidence as “consequential in the sense of

being affirmatively probative of the defendant’s innocence, whether

14 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. at 707. Therefore, when considered with

all other evidence at trial, the new evidence is material if “it would

probably produce an acquittal.” Id. (citing Digiallonardo, 488 P.2d

at 1113).

¶ 28 Other jurisdictions measure whether newly discovered

evidence is sufficiently material, apart from its impeachment value

or whether it was cumulative of other evidence presented at trial,

using the Brady v. Maryland, 373 U.S. 83 (1963), standard.

Genrich II, ¶ 58 (citing Behn, 868 A.2d at 344-45); see also State v.

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

State, 880 N.W.2d 487, 502 (Iowa 2016). Under that standard, a

defendant’s due process rights are violated when the prosecution

withholds evidence that is material to the defendant’s guilt. Brady,

373 U.S. at 87. When applied to a defendant’s request for a new

trial based on newly discovered evidence, material evidence, which

may also serve to impeach, can fall under the Brady rule when “the

issue of the witness’ reliability and credibility is crucial.” Genrich II,

15 ¶ 58 (quoting Behn, 868 A.2d at 345). Thus, to determine

materiality, we look to whether the newly discovered evidence has

sufficiently neutralized a crucial witness’s testimony such that it

would probably lead the jury to acquit the defendant. Farrar, 208

P.3d at 707; Genrich II, ¶ 62.

¶ 29 In Farrar, the supreme court described a similar requirement

regarding the testimony of a recanting witness. It emphasized that

in recanting circumstances, the witness, who is impeaching their

own prior testimony, must provide “sufficiently significant new

evidence” (e.g., guarantees of trustworthiness, the context and

circumstances of the recantation, or additional facts) that adds

value beyond simply “different and irreconcilable testimony on

different occasions.” Farrar, 208 P.3d at 708. Simply recanting

testimony is not enough; there must be some other material value

in order for the third prong to be satisfied. Id. at 706-07 (first citing

People v. Scheidt, 528 P.2d 232, 233 (Colo. 1974); and then citing

Digiallonardo, 488 P.2d at 1113).

¶ 30 We agree with the Genrich II majority that Farrar did not state

a new test for newly discovered evidence. Genrich II, ¶ 44. As the

Genrich II division concluded, Farrar and subsequent case law

16 applied the test from People v. Muniz, 928 P.2d 1352 (Colo. App.

1996). See Genrich, ¶¶ 45-51. Thus, we do not interpret Farrar as

being in tension with prior case law applying the test for newly

discovered evidence. Instead, we read Farrar as reiterating the

definition for materiality from the third prong in terms of the fourth

prong of the test. See Farrar, 208 P.3d at 707 (“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.”) (emphasis added). In other words, Farrar

reiterates that the materiality of the evidence is measured in terms

of its ability to affect the outcome of the case. Id. Therefore, to be

material as required by the third prong of the test, the evidence

must satisfy the fourth prong — the newly discovered evidence

would probably bring about an acquittal.

¶ 31 In this case, following a comprehensive review of the new

evidence and the original trial, the postconviction court made three

determinations. First, it examined what portion, if any, of O’Neil’s

testimony would be admissible at a new trial. The court analyzed

17 O’Neil’s testimony under the requirements set forth for expert

testimony in CRE 702 and concluded that there was scientific

consensus that O’Neil’s confidence in his identification — that his

matches were made to the exclusion of all other tools — was no

longer admissible. Therefore, this conclusion could not be

presented to the jury at a new trial.

¶ 32 Second, the postconviction court determined that O’Neil’s

individualization testimony was “effectively neutralized” by the new

evidence:

[W]hile much of Agent O’Neil’s testimony might still be admissible, a jury would have the opportunity on retrial to hear the substantial amount of newly discovered evidence that calls into question the validity of toolmark analysis and would hear evidence as to the potential bias that can be injected into toolmark analysis.

¶ 33 Finally, the postconviction court determined that the

inadmissible testimony was “crucial” to the case. It found that the

other evidence composing the prosecution’s case was “almost

entirely circumstantial” and, therefore, was unlikely to convince a

jury beyond a reasonable doubt.

18 ¶ 34 The People do not contend that the postconviction court erred

in making its first determination, that O’Neil’s confidence in his

conclusion is inadmissible. Instead, they assert that the court

erred in its second conclusion and argue that the remainder of

O’Neil’s admissible testimony, including the six matches and the

video, narrations, and photographic evidence that support them, is

all still admissible. This evidence, they argue, is merely impeached

by the newly discovered evidence or cumulative of the evidence

presented at the original trial. In other words, the postconviction

court erred by determining that the new evidence has other material

value, independent from impeachment. We disagree.

¶ 35 The postconviction court characterized the new evidence

offered by Genrich as “a rejection, by the scientific community, of

the underlying methodology of toolmark analysis and, moreover a

rejection of the conclusions drawn from that methodology by the

People’s toolmark expert, John O’Neil — that several of the tools

and wires from several of the bombs matched.” In support of this,

the defense offered three reports: Ballistic Imaging (2008) by the

National Research Council of the National Academies (NRC Report);

Strengthening Forensic Science in the United States: A Path Forward

19 (2009) by the National Research Council of the National Academies

(NAS Report); and Forensic Science in Criminal Courts: Ensuring

Scientific Validity of Feature-Comparison Methods (2016) by the

President’s Council of Advisors on Science and Technology,

Executive Office of the President (PCAST Report). It also offered an

affidavit from one of the authors of the NAS Report, Jay Siegel, and

the testimony of three experts, David Faigman, Intiel Dror, and

Michael Salyards.

¶ 36 At the hearing, the defense experts began by discussing the

NRC Report, NAS Report, and PCAST Report, which each provided

insights into the research and scientific methodology underlying the

toolmark analysis conducted by O’Neil and the verifiers in this case.

In those reports, researchers found that there were insufficient

studies to support testimony on individualization theory or a

standardized error rate for examiners. The experts explained that

20 this research raised questions about the foundational validity1 of

the science as it existed at the time of the reports. The experts

emphasized that while this research did not exist at the time of

Genrich’s trial, and could not have been raised during cross-

examination, it can be used as an indicator for the scientific

environment in which O’Neil and the verifiers conducted their

analyses in this case.

¶ 37 In response to the criticism in the NRC and NAS Reports, the

experts explained that three experiments were conducted to discern

the accuracy and reliability, or error rate, of toolmark examiners.2

The experts warned that although these studies reported relatively

1 Faigman, an expert in scientific methodology, research design,

and statistics and applied science, described several of the components of foundational validity during his testimony. At the outset, he would expect examiners’ conclusions to be both valid, meaning accurate as to some ground truth, and reliable, meaning consistent across different examiners and repeatable. Faigman noted that foundational validity requires internal validity (using the experimental method, including controlling for different settings and subjects), external validity (generalizability of the study to different settings and subjects), reproducibility (if the study can be repeated with the same or similar results), reliability (considering the error rate and confidence in conclusions), and convergent validity (different experimental designs to test assumptions). 2 Faigman discussed three firearm studies in particular: the Ames I,

Keisler, and Ames II studies. He testified that no studies of this kind have been performed on hand-held tools.

21 low error rates for examiners (approximately 1%), the error rates

significantly increased (ranging from approximately 20% to 54%)

when inconclusive results were counted as incorrect.3 One study

found that when given the same test, examiners were either

incorrect or did not reach the same result approximately 70% of the

3 An inconclusive result is when the examiner finds there is

insufficient information to determine that a match exists. All three defense experts opined that these studies improperly counted inconclusive results. Faigman explained that the Ames I study, published in 2014, “calculated . . . inconclusives as correct answers. So, . . . [y]ou could answer every single test question in the black box study as inconclusive and get a hundred percent.” And the Keisler and Ames II studies, published after the PCAST Report, simply did not count inconclusive results. He opined that inconclusive results should be counted as incorrect because these studies are “like a true/false exam. If the answers are true or false and you answer inconclusive, that’s wrong, because the answer is either true or false.” He warned that this problem is exacerbated when examiners “don’t want to make a mistake [and] only answer the questions that [they]’re highly confident of, [but] there’s no penalty [for answering inconclusive].”

22 time.4 The experts also noted that these studies likely

underestimated the error rate because examiners can be biased

when they know they are being tested.

¶ 38 Importantly, the experts emphasized that while there have

been studies and research conducted on the error rate for firearm

toolmark analysis, no such research exists for hand-held tools. The

experts explained the importance of distinguishing between firearm

analysis (where unique characteristics within the chamber of a gun

leave impressions on the bullet as it travels through the chamber)

and hand-held toolmark analysis (where unique characteristics on

the face of the tool leave impressions on the surface on which it was

4 Faigman opined that this statistic was

actually pretty shocking . . . because one of the arguments [in favor of the validity of toolmark science] is, well, each examiner is using his or her own standard to decide whether it is a match, an inconclusive, or not a match, but it indicates that even within individuals they are not using a consistent standard, and that is highly problematic, and in my view quite damning.

Interestingly, this statistic was contrasted with the prosecution’s firearm and toolmark examiners, who testified that they had never made an incorrect match in their entire careers.

23 used). While firearm and hand-held toolmark analyses share

similar methodologies (microscopically comparing impressions left

in softer metal), the experts opined that the statistical probability of

matching a bullet or cartridge casing to a gun was far greater than

the statistical probability of matching a hand-held tool to a

toolmark. One expert explained that while a bullet can only travel

down a barrel one way, no matter how the gun is held or how hard

the trigger is pulled, a tool can be held and used in countless

different ways. Thus, even though the reports and studies aid in

understanding the underlying methodology, hand-held toolmark

analysis introduces far more variables into the matching process.

¶ 39 The evidence at the Rule 35(c) hearing also established that

the examiners’ protocols and methods were severely lacking

according to the standards of modern science. The defense experts

criticized the AFTE standards, which permit subjective matching,

allowing for bias at several steps during the toolmark analysis

24 process.5 Examiners are not required under the AFTE standards to

use objective measurements and recorded notes, instead examiners

(including some of the examiners in this case) rely on their

memories of matches (i.e. their training and experience). Even

setting aside that this practice invites all types of bias and reduces

reproducibility, there is no way for examiners to tell if their prior

matches were correct because there is no ground truth to measure

5 For example, Dror, an expert in cognitive bias in forensic science,

testified that bias can arise during the initial toolmark analysis when an examiner has been given a closed set (the sample and one or a few tools that they know will contain a match) or contextual information about the case, or when an examiner is using only eye sight comparison to perform the matching under the microscope. He also noted that there is bias in the verification process when the examiner knows that a match has already been made or, in some cases, that a conviction has been obtained.

25 accuracy.6 In addition, the AFTE requires only “sufficient

agreement” to verify a conclusion, meaning that examiners need

only consult another toolmark examiner about their results for the

conclusion to be considered valid and accurate.

¶ 40 Specifically, regarding O’Neil’s testimony, the experts’

testimony established that O’Neil’s matches and supporting

6 Faigman explained why this is troubling when considering the

validity of firearm and toolmark science:

When you’re a firearms examiner, what feedback are you getting[?] You’re looking at something you don’t have ground truth on. Are you going to rely on confessions[?] Are you going to rely on guilty verdicts[?] What are you going to rely on to give you ground truth[?] So, there’s no feedback loop in forensic identification. So, experience doesn’t give it to you.

Training may, but . . . [a]re you looking at all those random marks by the hundreds of millions of tools[?] Just take a screwdriver as an example, to take it out of this case. How many screwdrivers are manufactured in the world and are in circulation today[?] Literally tens of millions, and examiner is saying that he or she can take one small set of marks and attach it to one screwdriver to the exclusion of all of the tens of millions of screwdrivers in the world. That’s quite a remarkable statement when you actually hear it.

26 evidence would be easily undermined in a modern courtroom.

O’Neil and the verifiers’ conclusions were based on the flawed

methodology and analytical processes described above. All three

defense experts testified that O’Neil’s analysis was particularly

questionable because of the small sample size for the single verified

match, which invites more bias and opportunities for a mismatch.7

O’Neil also used photographs to illustrate his matches, which even

the prosecution’s experts admitted is now considered misleading to

7 To explain this concept, Dror used the following example:

When you see two full faces, you can be biased by the expectation that they’re family. Now, imagine you’re not comparing two full faces. One of the faces you see only the bottom half. Imagine only a quarter, only a square inch of the cheek. The smaller it gets, then it can fit many more faces. If it’s a full face, it’s more constrained. So, this is exactly what is going on here. The more you have smaller parts of a face to compare, then you can find not similar, identical part of the cheek, or small part of the nose, and sur[e]ly millions or hundreds of thousands of people who fit if you’re looking at one-tenth of an inch of a face that will look totally identical. Even if you look only at [t]he nose, you find many, many people who have basically an identical nose, very, very similar, but when you look at the eyes and the lips, they’re totally different.

27 a jury. Even though his analysis can be reexamined using the

original samples, O’Neil did not take notes or measurements, nor

did he write a report for the matches, which means that verifiers did

not know what points he considered to be similar.

¶ 41 We recognize that recently courts in other jurisdictions have

also analyzed the question of whether firearm toolmark analysis is

admissible as expert testimony. See, e.g., Abruquah v. State, 296

A.3d 961, 985-87 (Md. 2023) (discussing evolving case law since the

NRC and NAS Reports were published); United States v. Harris,

502 F. Supp. 3d 28, 36-43 (D.D.C. 2020); United States v. Brown,

973 F.3d 667, 703-04 (7th Cir. 2020); Williams v. United States, 210

A.3d 734, 738-43 (D.C. 2019). In considering this question, some

courts have acknowledged that the NAS, NRC, and PCAST Reports

may raise questions about the scientific reliability of firearm

analysis but have concluded that such expert testimony is

admissible, relying, at least in part, on the fact that courts have

admitted this testimony for decades. See, e.g., United States v.

Taylor, 663 F. Supp. 2d 1170, 1175 (D.N.M. 2009); Brown,

973 F.3d at 704 (noting that the AFTE methodology used by the

28 government’s witnesses had been “almost uniformly accepted by

federal courts”).

¶ 42 However, some courts have noted that although the testimony

is largely admissible, both when the match was made and the

purported certainty of the opinion are important, case-specific

factors that affect admissibility. See, e.g., Welsh v. Commonwealth,

___ S.E.2d ___, 2025 WL 864762 (Va. Mar. 20, 2025) (concluding

that the exclusion of defendant’s expert witness testimony to rebut

the prosecution’s firearms analysis was reversible error); Harris,

502 F. Supp. 3d at 33 (recognizing that “recent advancements in

the field in the four years since the PCAST Report address many of

[the defendant’s] concerns”); Williams, 210 A.3d at 741-42 (finding

that the admission of a firearm expert’s unqualified opinion that a

bullet came from a specific gun was plain error); Abruquah, 296

A.3d at 997 (finding it was an abuse of discretion to admit

unqualified opinion that a specific bullet came from a specific gun);

Taylor, 663 F. Supp. 2d at 1179-80 (same). At the end of the day,

“[o]pinions from other jurisdictions concluding that firearms

identification testimony is admissible bear little weight here because

of the differences between toolmark identification analysis for

29 firearms and hand tools.” Genrich II, ¶¶ 125-126 (Berger, J.,

specially concurring).

¶ 43 Based on the evidence presented at the hearing, the

postconviction court found that O’Neil’s testimony would be

“effectively neutralized” because, in addition to excluding O’Neil’s

confidence in the matches, the rest of his testimony would be

severely undermined by the new evidence. The court concluded

that the new evidence renders the scientific methods underlying

O’Neil’s matches faulty. It explained that the greater scientific

community has endorsed the opinion that those methods are

imbued with bias and entirely subjective such that they do not

adhere to the standards of, and are lacking in procedural

safeguards required by, modern science. Genrich likewise

persuaded the postconviction court that the verification process is

just as flawed, even with concurrent testimony from the

prosecution’s witnesses about its validity. Although he did not call

a toolmark expert to directly contradict O’Neil’s testimony, Genrich

called experts to attack the entire scientific method of toolmark

analysis and undermine its value in the courtroom.

30 ¶ 44 As for its importance, the above newly discovered evidence

severely undermined a key element of the prosecution’s case — the

identity of the bomber. See Carmon v. State, Nos. NNH CV19-

5052879 & NNHCV20-6107902, 2022 WL 17423683, at *21 (Conn.

Super. Ct. Nov. 30, 2022) (unpublished opinion) (finding the

defendant was entitled to a new trial because “[e]ach of [the

fundamental] pillars” upon which the case rested was “splintered by

the persuasive force” of the NAS, NRC, and PCAST Reports); cf.

State v. Stone, 869 S.W.2d 785, 789 (Mo. Ct. App. 1994)

(impeaching evidence that an eyewitness gave a false identification

was material for the purpose of granting the defendant a new trial).

The postconviction court found that without O’Neil’s testimony the

prosecution’s case was “almost entirely circumstantial,” critically

lacking evidence connecting Genrich to any of the four bombings.8

See Behn, 868 A.2d at 345 (newly discovered evidence can change

the jury’s verdict where circumstantial evidence is strong but “far

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

2004))).

8 As discussed below, we conclude that this determination is also

supported by the evidence presented at the original trial.

31 ¶ 45 The postconviction court conducted a thorough review of both

O’Neil’s cross-examination and the testimony of defense witnesses

offered to counter his testimony, indicating that it considered the

value of this testimony in relation to the newly discovered evidence.

It is also significant that at the original trial, the prosecution

emphasized that Searls (whose testimony questioned the

methodology and validity of toolmark analysis) was a statistician,

not a toolmark examiner, was unfamiliar with the process of

toolmark analysis, and had little support from the scientific

community for his views, which undermined his testimony and

made him seem less credible. See id. (considering the prosecution’s

emphasis on the excluded evidence at the original trial).

Meanwhile, the prosecution bolstered O’Neil’s qualifications and

emphasized on multiple occasions that “[t]here are 700 people who

make their livings at doing [toolmark analysis] . . . [but] you have

heard no one come and sit in that stand and say John O’Neil is

wrong because John O’Neil is right.”

¶ 46 Therefore, in addition to concluding that the scientific basis for

O’Neil’s testimony on hand-held toolmark analysis was no longer

supported by mainstream science, the postconviction court also

32 determined that O’Neil’s crucial testimony was “effectively

neutralized” such that another trial would probably result in an

acquittal. Because this conclusion is supported by the evidence, we

will not disturb it.

C. The Fourth Prong

¶ 47 Still, even with O’Neil’s testimony effectively neutralized, the

People argue that the postconviction court erred by concluding that

an acquittal was probable based on the other evidence presented at

Genrich’s original trial. They argue that there was overwhelming

evidence of guilt such that we can be sure the jury would not have

acquitted Genrich. Accordingly, the People say, the fourth prong of

the new evidence test was also not satisfied.

¶ 48 To the extent the People assert that we should review this

prong under a de novo standard of review, we disagree. The fourth

prong is a factual determination, in which the postconviction court

is charged with assessing the credibility of the new evidence

(including new witnesses) and weighing that against the evidence

presented at the original trial. People v. Rodriguez, 914 P.2d 230,

292-93 (Colo. 1996). Although the postconviction judge did not

preside over the original trial more than thirty years ago, the

33 postconviction court is still in a better position than we are to

assess the credibility and reliability of the new witnesses and

evidence presented at the postconviction hearing. See People v.

Schneider, 25 P.3d 755, 762-63 (Colo. 2001) (discussing credibility

determinations with regard to recanting witnesses); People v. Pitts,

13 P.3d 1218, 1221 (Colo. 2000) (discussing a postconviction

court’s responsibility to weigh evidence and determine witness

credibility on remand). For this reason, although we review the

court’s legal conclusions de novo, we defer to its assessment of the

weight and credibility of the new evidence against the old. See

Schneider, 25 P.3d at 762-63; Pitts, 13 P.3d at 1221.

¶ 49 The People also argue that the postconviction court erred in

two reversible ways in granting a new trial. First, they claim that

the postconviction court improperly relied on the Genrich II

division’s summation of the facts from the original trial. However,

we do not read the postconviction court’s quote of the Genrich II

opinion as an abdication of its role to examine the record. Instead,

we presume the postconviction court conducted a thorough review

of the trial record, as we have, to determine whether the trial court’s

findings were supported.

34 ¶ 50 Second, the People allege that the postconviction court erred

when it mentioned the length of the jury’s deliberations at the

original trial as an indication that acquittal was likely. Although we

agree that the length of the jury deliberations at the original trial is

not a measure of the remaining case’s strength, we do not presume

from the postconviction court’s mere mention of the length of jury

deliberations that it used that information in some improper

manner.

¶ 51 As discussed above, the toolmark evidence supported the

identity element of the crimes for which Genrich was accused. At

the 1993 trial, the prosecution argued that this evidence

conclusively tied Genrich to each of the bombs because, even if the

jury believed only the single verified match, the bombs were all

made by the same person. Accordingly, the prosecution argued

that the same bombmaker — Genrich — created all four bombs.

¶ 52 However, with the toolmark evidence neutralized, the

prosecution’s identity argument is not convincing. In their opening

brief, the People list the “extensive evidence” connecting Genrich to

the bombings. Although each piece of evidence might increase the

likelihood that Genrich was the bomber, there is no piece of

35 evidence that directly or definitively ties Genrich to the bombs. The

People list the following evidence:

• Notes written by Genrich and found in his boarding

house room describe his “anger towards others and his

plans to kill in retaliation.” The People argue that one of

the notes ”reference[s]” the February 14 bombing at Two

Rivers Plaza,9 and another is connected to the March

bombing at the Gonzales house, even though it was

written twenty-one days later. They also argue that two

of the notes, written thirty-nine days and five days before

the event, are connected to the June bombing at the Feed

Lot restaurant.

• Genrich told an employee of City Market (a business right

across the street from Two Rivers Plaza) that another City

Market employee caused him to be fired from Two Rivers

Plaza and “if he didn’t get some respect soon, his words

were, I’m going to kick someone’s ass or kill somebody.”

9 The content of the note mentions that “Valentine’s day is coming”

and says “If I end up killing some stuck up bitch don’t blame me.”

36 • Genrich vocalized his “frustration and anger” to

surveillance agents who were investigating him

throughout the summer of 1991.

• Genrich had a motive to kill because he was romantically

interested in a friend’s former girlfriend, and she got

engaged to another person in March 1991 (after the Two

Rivers Plaza bombing in February but before the

Gonzales house bombing in March).

• Genrich had the training and tools to make the bombs.

The People point to Genrich’s training in electronics at

DeVry University; the two tool boxes filled with electrical

tools including various wires, wire cutters, pliers,

strippers, solder, circuit boards, and two Buss fuses;

notebooks with circuitry designs; and Genrich’s

familiarity with William Powell’s The Anarchist’s

Cookbook (1971), which contained designs for a bomb

similar to the 1989 undetonated bomb.

• Genrich lived within walking distance of Surplus City, a

store where all of the bomb components could have been

purchased. An eyewitness also saw Genrich browsing

37 the pipe aisle at the store between the first and second

1991 bombings. And Surplus City was the only store in

the region that carried one of the bomb components.

• Genrich’s boarding house was within walking distance of

all three 1991 bomb sites and witnesses had seen him at

businesses in the vicinity around the time of the

bombings.

• The bombs were unique, did not have a safety

mechanism, were made by the same person, and were

likely hand-carried to the bomb sites.

¶ 53 But none of this evidence makes the crucial connection

between Genrich and the bombs. Even the most damning direct

evidence, that Genrich was seen near the bombsite three to four

hours before the Two Rivers Plaza bomb exploded, is easily

undermined by the witness’s own testimony that he frequently saw

Genrich in the area looking around, which was how he recognized

Genrich.10 Combined with the fact that Genrich walked

10 This evidence is also undermined by Genrich’s parents’ testimony

that he was with them on the night of the bombing.

38 everywhere, any sighting of Genrich on his normal walking route is

not a strong connection to the bombing.

¶ 54 In addition, the defense put on ample evidence that calls into

question much of the circumstantial evidence presented by the

prosecution.11 First, the defense attacked the prosecution’s motive

theory — that Genrich placed the bombs to target women. Genrich

presented evidence that the bombs were more likely placed to target

specific people, rather than to kill women indiscriminately.

Moreover, the prosecution’s secondary motive theory — that he

decided to make and place the bombs because his romantic interest

became engaged — was contradicted by her own testimony, in

which she admitted that she didn’t disclose her engagement to

Genrich until the fall of 1991, after the bombings. Finally, the

prosecution’s witnesses implied that Genrich might target Two

Rivers Plaza because he was fired from working there prior to the

11 Contrary to the People’s argument, we disagree that the use of

the phrase “circumstantial evidence” implies that the postconviction court treated this evidence differently than direct evidence. The postconviction court used the term accurately, as we do, to describe evidence “based on observations of related facts that may lead . . . to . . . a conclusion about the fact in question” rather than direct proof of the facts. COLJI-Crim. D:01 (2024).

39 bombings. But Genrich voluntarily told his surveillance detail that

he would never bomb Two Rivers Plaza because he “had friends

there.”

¶ 55 Next, although Genrich could have had the knowledge and did

have some of the tools to create the bombs, this evidence is also

less than convincing on its own. The tools found in Genrich’s

boarding house room were required for his program at DeVry

University and were fairly common to have for anyone with a basic

knowledge of electronics. In addition, the defense presented

evidence that the prosecution was overstating Genrich’s knowledge

of bomb-making. More important though, authorities did not find

any other bomb-making materials in Genrich’s boarding house

room.

¶ 56 Though the prosecution attempted to tie Genrich to the bomb

locations, even these theories were undermined by defense

evidence. The prosecution established that Genrich could walk to

all four bomb locations and Surplus City. But three of the locations

and Surplus City were in downtown Grand Junction, easily

accessed by any member of the public. And the fourth location, the

Gonzales house, was nearly two miles from Genrich’s boarding

40 house, which, based on the testimony of the prosecution’s own

expert, would be a very long way to carry an extremely triggerable

¶ 57 Finally, Genrich put on affirmative evidence that he had alibis

for all four bombing events and that there were other suspects more

likely to have committed these crimes. For the 1989 bomb, Genrich

offered a purchase receipt and handwritten logs showing that he

was at work, at a bookstore in Phoenix, Arizona, for the entire week

prior to when the bomb was placed. For the 1991 bombs, his

parents testified that Genrich was at their house when each of the

bombs would have been placed. In addition, he offered evidence

that investigations into suspects in the area were prematurely

dismissed. Several of these other suspects either possessed or had

been known to possess explosive devices, including pipe bombs.

¶ 58 Based on our review of the evidence, there was support in the

record for the postconviction court to conclude that, without the

toolmark analysis testimony, it was probable for the jury to acquit

Genrich of the crimes for which he was accused, and we agree with

that conclusion.

41 III. Due Process Violation

¶ 59 Because we are affirming the grant of a new trial on the basis

of newly discovered evidence, we need not address whether or not

Genrich would also be entitled to relief based on a due process

violation.

IV. Disposition

¶ 60 The order is affirmed.

JUDGE YUN and JUDGE KUHN concur.