State of Louisiana v. Darrill Henry

Opinion

STATE OF LOUISIANA * NO. 2020-K-0412

VERSUS * COURT OF APPEAL DARRILL HENRY * FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPLICATION FOR WRITS DIRECTED TO CRIMINAL DISTRICT COURT ORLEANS PARISH NO. 451-696, SECTION “G” Honorable Dennis J. Waldron, Judge ****** Judge Dale N. Atkins ****** (Court composed of Judge Terri F. Love, Judge Daniel L. Dysart, Judge Dale N. Atkins)

LOVE, J., CONCURS.

Leon Cannizzaro DISTRICT ATTORNEY ORLEANS PARISH Donna Andrieu CHIEF OF APPEALS ORLEANS PARISH Irena Zajickova ASSISTANT DISTRICT ATTORNEY 619 South White Street New Orleans, LA 70119

COUNSEL FOR RELATOR

Letty S. Di Guilio LAW OFFICE OF LETTY S. DI GIULIO 1055 St. Charles Avenue, Suite 208 New Orleans, LA 70130

Vanessa Potkin INNOCENCE PROJECT, INC. 40 Worth Street, Suite 701 New York, NY 10013 Aaron Delaney Ariane Rockoff-Kirk Daniel R. Friel PAUL, WEISS, RIFKIND, WHARTON & GARRISON LLP 1285 Avenue of the Americas New York, NY 10019-6064 Pro Hac Vice

COUNSEL FOR RESPONDENT

WRIT GRANTED, RELIEF DENIED; REMANDED OCTOBER 29, 2020 DNA DLD Relator, the State of Louisiana, seeks supervisory review of the district

court’s July 29, 2020 judgment, granting the application for post-conviction relief

of Respondent, Darrill Henry, vacating Respondent’s convictions for first degree

murder, and ordering a new trial. For the following reasons, we grant the State’s

writ application, but deny relief, finding that the district court did not abuse its

discretion. We remand this matter for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

At approximately 1:30 p.m. on June 15, 2004, eighty-nine year-old Durelli

Watts and her sixty-seven year old daughter, Ina Claire Gex, were murdered at Ms.

Watts’s home at 1930 Duels Street in New Orleans. The perpetrator stabbed Ms.

Watts fourteen times in the face, neck, and upper chest before setting Ms. Watts’s

body and house on fire. Before the perpetrator could leave the house, Ms. Gex

arrived to check on her mother after telephone calls to Ms. Watts from other family

members went unanswered. Ms. Gex encountered the perpetrator on the porch. The

perpetrator shot Ms. Gex three times and rummaged through Ms. Gex’s purse

before shooting her a fourth time in the head. The perpetrator then walked away

from the house and down the street. Three of Ms. Watts’s neighbors witnessed the

1 shooting. The witnesses removed Ms. Gex from the porch but were unable to

remove Ms. Watts from the house because the house was on fire.

On September 2, 2004, Respondent was indicted on two counts of first

degree murder, violations of La. R.S. 14:30. Respondent entered pleas of not guilty

on September 9, 2004. After the district court denied Respondent’s motions to

suppress statements and identifications, Respondent’s trial commenced on August

23, 2011. Respondent was convicted on both counts, and his convictions were

affirmed by this Court. See State v. Henry, 2013-0059 (La. App. 4 Cir. 8/6/14), 147

So.3d 1143.

In this Court’s August 6, 2014 Opinion in this matter, we summarized the

evidence presented at Respondent’s trial and noted that there was no forensic

evidence presented at trial that linked Respondent to either of the victims or to the

crimes. During the investigation, Ms. Watts’s wallet was collected and the coroner

took fingernail scrapings during her autopsy. At the time of trial, no DNA profiles

were able to be developed from the wallet or the fingernail scrapings. Additionally,

blood splatter from the crime scene was tested, but the DNA recovered did not

inculpate anyone in the crime, as the only profiles that were developed belonged to

one or both victims.

Only the eyewitness testimony from Ms. Watts’s three neighbors who

witnessed the shooting was presented during trial to prove Respondent’s guilt.

Respondent disputed the reliability of the eyewitness testimony at trial.

Cecilia Garcia testified that, at the time of the murders, she lived at 1933

Duels Street, across the street from Ms. Watts. On the day of the murders, Ms.

Garcia was talking on the telephone in her kitchen at about 1:30 p.m. when she

heard what sounded like a pebble hitting her house. When she went to the front of

2 her house to investigate, she saw a man standing on Ms. Watts’s front porch and

saw a woman in a prone position on the porch. Ms. Garcia retrieved her cell phone

and went outside. She saw a man whom she did not recognize walk away from the

front porch of Ms. Watts’s house toward the house of her neighbors to the right.

Ms. Garcia testified that she and the man passed each other on the street. The man

walked in a leisurely manner, as if “taking a Sunday stroll,” and wore a floppy

“Gilligan” hat that “shadowed his face some,” blue pants, and a red t-shirt.

Later that evening, Ms. Garcia saw a sketch of the perpetrator on television

that she thought was incorrect. Ms. Garcia directed her husband to draw a more

accurate sketch, which she subsequently gave to the police. On July 7, 2004, a few

weeks after the murders, Ms. Garcia identified the Respondent in a six-person

photographic lineup as the man she saw walking from Ms. Watts’s porch on the

afternoon of the murders. Ms. Garcia also identified Respondent in open court as

the man she saw walking away from Ms. Watts’s house after the murders.

Another of Ms. Watts’s neighbors, Steven Dominick, testified that he grew

up in his parents’ home at 1937-39 Duels Street, which was directly across the

street from Ms. Watts’s house. He had known Ms. Watts his entire life. He was at

his parents’ house on the afternoon of the murders, when, at approximately 1:00

p.m. that afternoon, he heard gunshots coming from across the street. Mr.

Dominick walked to the picture window in the front of his parents’ house and saw

Ms. Gex fall on the porch of Ms. Watts’s house. As he stepped out of his parents’

house, he witnessed a man put a gun to Ms. Gex’s head and fire another shot. The

then shooter casually walked from the scene toward the corner of Annette and

Duels Streets and Mr. Dominick, while monitoring the shooter’s movements from

3 inside the house, called the police. He then realized that Ms. Watts’s house was on

fire.

Later, after Mr. Dominick and another neighbor were transported to the Fifth

District Police Station for questioning, Mr. Dominick described the shooter as

being clean-shaven with a medium brown complexion and small twists in his hair.

He said the perpetrator wore a red shirt, blue jeans/pants, and a canvas hat. The day

after the incident, Mr. Dominick assisted a police artist in drawing a sketch of the

perpetrator. The police showed Mr. Dominick two photographic lineups. Mr.

Dominick was unable to make a positive identification of the perpetrator from

either lineup. On July 17, 2010, over six years after the murder, Mr. Dominick was

in jail after being arrested on other unrelated felony charges. He was placed in the

same holding cell as Respondent. Mr. Dominick recognized the Respondent as the

man who shot Ms. Gex and informed deputies.

The State also presented the testimony of Linda Gex Davis, another of Ms.

Watts’s neighbors who witnessed the shooting. Ms. Davis testified that she had

been Ms. Watts’s neighbor on Duels Street and had known her for many years. On

the afternoon of the murders, she went to retrieve a telephone book from the trunk

of her car and heard Ms. Watts tell someone they had better leave. Ms. Davis

testified that, though there did not appear to be any trouble, she observed Ms.

Watts standing in the front doorway of Ms. Watts’s house speaking with a man

wearing a red shirt and blue pants. The man had deep-set eyes and his hair was

styled in jerri-curls. Ms. Davis testified that she went back into her house and

almost immediately heard a gunshot. She then walked to her front door where she

saw a woman lying on Ms. Watts’s porch. Ms. Davis testified that she saw the man

who had been speaking with Ms. Watts shoot the woman on the porch two times,

4 rummage through her handbag, and shoot her again. Ms. Davis called the police

while continuing to watch the shooter as he walked, calmly and slowly, from Ms.

Watts’s front porch and exit the neighborhood via Annette Street. Ms. Davis

testified that she was able to view the shooter’s face as he stood on the porch while

he was speaking with Ms. Watts.

Ms. Davis testified that, as the shooter walked away from Ms. Watts’s

house, he turned around several times to see if anyone was behind him. On

September 2, 2004, almost three months after the murders, Ms. Davis gave a taped

statement to the police. Ms. Davis identified Respondent as the shooter from a six-

person photo lineup. During trial, Ms. Davis identified Respondent in open court as

the man who she observed shoot Ms. Gex.

Regarding the identifications Ms. Davis and Ms. Garcia made of Respondent

after being shown six-person photographic line-ups, it should be noted that the two

photographs of Respondent that were used to compile the lineups presented to Ms.

Garcia and Ms. Davis depicted the defendant wearing a red shirt. This is the same

color shirt the witnesses said the shooter wore on the day of the murders. The other

subjects presented in the lineups were not depicted wearing red shirts. The

detective who showed the lineups explained that those pictures were the only

photos of Respondent at the detective’s disposal at the time he compiled the

lineups. The detective denied any attempt to single out Respondent or unduly focus

the witnesses’ attention on Respondent.

On August 31, 2011, after trial, the jury returned a unanimous verdict of

guilty on both counts. After the penalty phase of the trial, the jury recommended

life sentences for the convictions. On May 24, 2012, the district court sentenced

5 Respondent to life imprisonment without benefit of parole, probation or suspension

of sentence on both counts.

This Court affirmed Respondent’s convictions and sentence, and the

Louisiana Supreme Court denied review on April 10, 2015. See Henry, supra,

2013-0059, p. 1, 147 So.3d at 1145, writ denied, 2014-1869 (La. 4/10/15), 164

So.3d 831. The United States Supreme Court denied Respondent’s petition for writ

of certiorari on November 2, 2015. See Henry v. Louisiana, 136 S. Ct. 402, 193 L.

Ed. 2d 339 (2015).

Respondent timely filed his original application for post-conviction relief on

October 26, 2016. In his application, Respondent included a request to conduct

additional DNA testing on Ms. Watts’s wallet and fingernail scrapings. On March

6, 2017, the State filed a notice informing the district court that it had no objection

to Respondent’s request to conduct DNA testing on Ms. Watts’s wallet and

fingernail scrapings. The district court granted Respondent’s request for post-

conviction DNA testing on March 31, 2017.

On November 29, 2018, after receiving the results of the DNA testing,

Respondent filed an amended application for post-conviction relief. Respondent

argued that, because the Forensic Analytical Crime Lab (the “FACL”) returned

DNA results from Ms. Watts’s wallet and fingernail scrapings that excluded

Respondent as a contributor, he had proven “by clear and convincing evidence”

that he is factually innocent of the murders for which he was convicted.

Respondent asked the district court to overturn his murder convictions.

On April 5, 2019, the State filed procedural objections to Respondent’s

amended application for post-conviction relief, arguing that the reports from the

FACL DNA testing did not establish Respondent’s innocence. Respondent filed a

6 response to the State’s procedural objections on May 3, 2019. On May 13, 2019,

the FACL issued a second report in response to Respondent’s request to re-visit

Ms. Watts’s fingernail scrapings.

On May 15, 2019, the district court ordered a hearing on the DNA test

results prior to ruling on the State’s procedural objections. The district court held

the hearing on September 9-10, 2019. Respondent called Alan Keel of the FACL,

who is an expert in forensic serology and DNA analysis, and the State called Anne

Montgomery, an expert in DNA analysis who also testified at Respondent’s trial.

Mr. Keel testified that foreign DNA is generally not present under another

person’s fingernails from casual contact. Instead, according to Mr. Keel, the most

likely source of foreign DNA under another person’s fingernails is someone with

whom the person had intimate, prolonged, or violent contact. Mr. Keel testified

that the original testing of the DNA under Ms. Watts’s fingernails prior to

Respondent’s trial did not reveal any male DNA. Mr. Keel then testified that

further testing of the fingernail scrapings revealed a mixture of DNA from a least

three people: Ms. Watts, who was a major contributor, and “at least one male

contributor.” He concluded that the likelihood of Respondent as a potential DNA

contributor fell within a range considered “uninterpretable.” However, Mr. Keel

explained that the “likelihood ratio” was one over one hundred, but favored

exclusion over inclusion.

Mr. Keel said that, at Respondent’s request, the FACL then conducted

additional testing by cutting twelve small stains out of the fingernail scrapings and

pooled them together, which detected a mixture of only two contributors: one

female, which was determined to be the victim, and one male. Mr. Keel testified

that Respondent was eliminated as a contributor of the DNA profile developed

7 from the fingernail scrapings. Mr. Keel stated that, based on his experience,

evidence recovered under fingernails is typically probative in violent

confrontational cases. He opined that “some if not all of the male DNA that was

recovered” from Ms. Watts’s fingernails “likely originates from her assailant” and

again stated that Respondent was “absolutely excluded as the source of that DNA.”

Mr. Keel also tested the wallet collected at the scene of the crime. He stated that

additional male DNA—which was not the same as that recovered from the

fingernail scrapings—was detected on the wallet and that Respondent was again

eliminated as a contributor of the DNA discovered on the wallet.

While Mr. Keel admitted on cross-examination that the DNA profile

obtained from the fingernail scrapings during the second round of testing did not

meet the eligibility standards of the FBI and it was not entered into the CODIS

database, he stated that this did not undermine the probative value of the evidence.

He noted that partial profiles, like the one he obtained in the instant case, have

been used to both convict and exonerate suspects throughout the country. Mr. Keel

admitted that a study conducted in Toronto, Canada concluded that nineteen

percent of people had foreign DNA under their fingernails without scratching

anyone. However, he stated that this was not likely in the instant case and that the

most likely source of the male DNA under Watts’s fingernails was her assailant.

Ms. Montgomery testified that the results of the FACL’s DNA testing did

not exonerate or inculpate Respondent. Ms. Montgomery did not believe that any

of the male profiles detected by the FACL were necessarily that of Ms. Watts’s

assailant. She also characterized the DNA sample obtained in this case as minute

and degraded. Ms. Montgomery noted that the coroner’s report described Ms.

Watts’s nails as “long and brown and dirty.” Ms. Montgomery testified that this

8 could suggest that Ms. Watts was not cleaning her nails “fastidiously,” which

could mean that trace DNA from other individuals that were not Ms. Watts’s

assailant could be collected under her fingernails. Ms. Montgomery further noted

that Ms. Watts did not have defensive wounds to suggest that there was a struggle

with her assailant, thus it would be less likely to find the perpetrator’s DNA under

her nails. Ms. Montgomery opined that it was possible that the male DNA came

from casual contact days before the murder. Ms. Montgomery stated that the DNA

found from the fingernail scrapings was minute and if the DNA had belonged to

the perpetrator, she would “expect to see a fuller profile and less degradation.”

On cross-examination, Ms. Montgomery admitted that the “dirt” under

Watts’s fingernails could have possibly been caused by soot from the fire set by

the perpetrator. Ms. Montgomery also testified on cross-examination that a victim

could scratch an assailant and not have defensive wounds. Regarding the

degradation of the DNA profile, Ms. Montgomery conceded that the degradation

could have resulted from the passage of time in storage between the collection and

the testing of the DNA. Ms. Montgomery admitted that she did not have

experience with the probabilistic genotyping software program used to analyze the

DNA evidence in this case.

Regarding the DNA profile collected from Ms. Watts’s wallet, Ms.

Montgomery stated that she did not believe the unknown male DNA profile

detected on Ms. Watts’s wallet was from the perpetrator of the crime. Ms.

Montgomery stated that she found it odd that a DNA profile was able to be

generated from the wallet because, typically, a wallet is not a sterile item and is

easily susceptible to transfer DNA. She noted that, when the FACL received the

9 wallet, it was “not sealed” and that the profile on the wallet excluded the victims,

Ms. Watts and Ms. Gex, in addition to excluding Respondent.

Following the hearing, on December 3, 2019, both Respondent and the State

filed post-hearing memoranda. On March 5, 2020, the district court heard oral

arguments from counsel and took the matter under advisement. On March 11,

2020, the district court issued a judgment vacating Respondent’s conviction based

on the DNA evidence and ordering a new trial.

In its written reasons for judgment, the district court stated that the issue

before it was “defendant’s Motion for New Trial, based on newly discovered DNA

evidence.” The district court noted that under La. C.Cr.P. art. 851(B)(3), a new

trial shall granted based on new and material evidence “if the evidence had been

introduced at the trial it would probably have changed the verdict or judgment of

guilty.” The district court wrote that evidence at trial indicated there was a struggle

between Ms. Watts and her assailant, and that a detective who testified at trial

opined that a possible motive for the murders was robbery, meaning that the

perpetrator may have handled Ms. Watts’s wallet. The district court recounted that

the DNA testing excluded Respondent as a contributor to any DNA recovered from

the crime scene. Noting the evidentiary value of DNA evidence in general,

especially in light of a case built on eyewitness testimony, the district court

ultimately concluded that the “interest[s] of justice and the concept of fundamental

fairness” required that a new trial be granted because it was “highly probable that

the newly discovered [DNA] evidence would have produced a difference result” at

Respondent’s trial.

10 The district court stayed the proceedings on its own motion. Respondent

paid the bail amount set by the district court and was released from prison. The

State thereafter timely filed writs with this Court on May 8, 2020.

On July 22, 2020, this Court granted the State’s writ application and vacated

the trial court’s ruling, finding it applied the standard for a motion for new trial set

forth in La. C.Cr.P. art. 851(B)(3), not a post-conviction claim of innocence

pursuant to La. C.Cr.P. art. 930.3(7). This Court thus found that the trial court

erred by granting the application and ordering a new trial. See State v. Henry,

2020-0233, ___ So.3d ___ 2020 WL 4199683 (La. App. 4 Cir. 7/22/2020). This

Court then remanded the case to the trial court to address whether the results of the

DNA tests met the “more stringent standard required by La. C.Cr.P. art. 930.3(7).”

Henry, 2020-0233, p. 5, 2020 WL 4199683, at *3.

On July 29, 2020, the trial court conducted a hearing via Zoom video

conference. The trial court stated that, while it did not specifically reference La.

C.Cr.P. art. 930.3(7), it was conscious that the clear and convincing standard was

applicable. The trial court explained:

[W]hat the clear and convincing evidence standard requires, that [sic] it’s more than a preponderance to [sic] the evidence, the traditional measure of persuasion, but it’s less than beyond a reasonable doubt, the stringent criminal standard. To prove by clear and convincing evidence means to demonstrate that the existence of a disputed fact is highly probable, that is much more probable than its nonexistence.

The trial court further stated that it had reviewed this Court’s July 22, 2020

ruling, reviewed the testimony of the competing expert witnesses, Mr. Keel and

Ms. Montgomery, and reviewed its own notes from the hearings and the provisions

of La. C.Cr.P. art. 930.3(7). The district court again granted Respondent’s post-

conviction application. The district court stated:

11 I believe that the clear and convincing evidence standard outlined in Article 930.3, Paragraph 7, clearly mandates that this Defendant be granted a new trial. In all the years that I have and all of the decisions I’ve made, I’ve never been as confident in a decision as the decision I’ve been called upon to make … once again this morning. I am aware of the heinous nature of this crime. I’m aware of these two killings, how they occurred. I’m aware of the three eyewitnesses who testified. Clearly[,] the jury that heard this case initially never had the benefit, though no one’s fault … but nonetheless, they never had the opportunity to review this additional evidence that is quite quite [sic] compelling in my opinion.

The district court further explained: “I believe that it’s highly probable, based on

the evidence that has been newly discovered and presented before this Court, that

the defendant is factually innocent of the crime for which he was convicted without

his testimony and without this evidence being presented.” The district court noted

that he observed the experts as they testified and weighed their testimony in

finding that Respondent had met his burden under La. C.C.P. art. 930.3(7). The

district court then vacated Respondent’s first degree murder convictions and

ordered a new trial.

On July 29, 2020, the State filed its notice of intent to seek review of this

ruling. The State timely filed this writ application.

DISCUSSION

The State’s sole assignment of error in the instant writ application is that the

district court erred in finding that the results of the DNA testing of Ms. Watts’s

fingernail scrapings established by clear and convincing evidence that Respondent

is factually innocent of the crimes of which he was convicted. The State argues that

the district court should not have vacated Respondent’s convictions and ordered a

new trial based on the DNA evidence that excludes Respondent as a contributor of

the male DNA profile developed from Ms. Watts’s fingernails and wallet because

12 Respondent’s expert DNA analyst had no reasonable basis for concluding that the

DNA found under Ms. Watts’s fingernails is necessarily that of her assailant.

Applications for post-conviction relief are governed by La. C.Cr.P. art. 924

et seq. Under La. C.Cr.P. art. 930.2, the petitioner in an application for post-

conviction relief has the burden of proving that relief should be granted.

La. C.Cr.P. art. 930.3 sets forth the only grounds upon which an application for

post-conviction relief can be granted where, as here, the defendant was in custody

after being convicted of an offense and sentenced.

The standard of review of a trial court’s ruling on an application for post-

conviction relief is abuse of discretion. State v. Jones, unpub., 2008-0516, 2009

WL 8684639, at *4 (La. App. 4 Cir. 2/11/09); see also State v. Kenner, 2004-1809,

p. 4 (La. App. 4 Cir. 3/23/05), 900 So.2d 948, 951, reversed on other grounds,

2005-1052 (La. 12/16/05), 917 So.2d 1081 (no abuse of discretion in trial court’s

granting of defendant's application for post-conviction relief). “[W]hen a trial court

makes findings of fact based on the weight of the testimony and the credibility of

the witnesses, a reviewing court owes those findings great deference, and may not

overturn those findings unless there is no evidence to support those findings.” State

v. Thompson, 2011-0915, pp. 13-14 (La. 5/8/12), 93 So.3d 553, 563 (quoting State

v. Wells, 2008-2262, p. 4 (La. 7/6/10), 45 So.3d 577, 580).

La. C.Cr.P. art. 926.1 allows a person convicted of a felony to file an

application for post-conviction relief requesting DNA testing of an unknown

sample secured in relation to the offense for which he was convicted. La. C.Cr.P.

art. 926.1 also sets forth the procedures and requirements of such testing.

La. C.Cr.P. art. 930.3(7) provides that post-conviction relief can be granted when

“[t]he results of DNA testing performed pursuant to an application granted under

13 Article 926.1 proves by clear and convincing evidence that the petitioner is

factually innocent of the crime for which he was convicted.”

The “clear and convincing standard” required under La. C.Cr.P. art.

930.3(7), requires proof by more than a preponderance but less than beyond a

reasonable doubt. State v. Cox, 2015-0124, p. 13 (La. App. 4 Cir. 7/15/15), 174

So.3d 131, 138. “Under the ‘clear and convincing’ standard, the existence of the

disputed fact must be highly probable or much more probable than its

nonexistence.” State in Interest of A.L.D., 2018-1271, pp. 4-5 (La. 1/30/19), 263

So.3d 860, 863 (quoting In re L.M.M., Jr., 2017-1988, p. 23, 2018 WL 3154776 at

*12 (La. 6/27/18) ___So.3d___, n. 13); see also State v. Ford, 50,525, p. 7 (La.

App. 2 Cir. 5/18/16), 193 So.3d 1242, 1248; Burrell v. State, 50,157, p. 11 (La.

App. 2 Cir. 1/13/16), 184 So.3d 246, 253 (to receive compensation for wrongful

conviction former death row inmates had to show it was “highly probable that they

are factually innocent of the murders for which they were convicted”).

The district court did not abuse its discretion in vacating Respondent’s

murder convictions and ordering a new trial. We owe great deference to the district

court’s findings of fact when it is based on the weight of the testimony and the

credibility of witnesses. We can only overturn the district court’s ruling if there is

no evidence to support the district court’s findings. There is ample evidence here.

As this Court previously noted, no forensic evidence was presented at trial—

and indeed, still has not been presented—that links Respondent to either victim or

to the crimes. Instead, both expert DNA analysts that testified before the district

court acknowledged that the DNA test results excluded Respondent as a

contributor for all of the forensic evidence recovered from the crime scene.

Additionally, the district court noted that evidence at the original trial showed that

14 Ms. Watts engaged in a struggle with her assailant prior to her death, which

supports Mr. Keel’s opinion that the male DNA profile from Ms. Watts’s

fingernail scrapings came from Ms. Watts’s assailant after she had violent contact

with him.

Only eyewitness testimony was presented at trial to establish Respondent’s

guilt. This Court is conscious of the “problematic” identifications from the

photographic lineups that were presented to Ms. Davis and Ms. Garcia in this case.

The lineups presented to the witnesses depicted Respondent in the same color shirt

as that which the witnesses recalled the perpetrator wearing on the day of the

murders. Notably, the other subjects in the lineups were not wearing the same color

shirt. See Henry, supra, 2013-0059, p. 24, 147 So.3d at 1157. Mr. Dominick’s

identification of Mr. Henry is likewise subject to some question as he was unable

to identify the perpetrator right after the murders, but identified Respondent as the

perpetrator six years after the murders and while he was in jail awaiting disposition

of his own felony charges.

When making its ruling, the district court explained that it had heard both

experts’ testimony and weighed their testimony. The district court further

explained that it found the evidence presented “quite compelling.” The district

court further stated that the jury did not have the opportunity to view this

compelling evidence, and that it was “highly probable” Respondent is factually

innocent. Given that the only forensic evidence available tends to show

Respondent’s innocence—and certainly does not inculpate him—we do not find

that the district court abused its discretion in ruling that Respondent had

demonstrated by clear and convincing evidence that he is factually innocent of the

murders of Ms. Watts and Ms. Gex.

15 We are mindful of the standard of La. C.Cr.P. art. 930.3(7), which does not

require that the DNA test results here conclusively exonerate Respondent, or even

that Respondent’s innocence be established beyond a reasonable doubt, in order for

Respondent to be entitled to relief. Rather, La. C.Cr.P. art. 930.3(7) requires that

Respondent prove by clear and convincing evidence that he is factually innocent of

these crimes. The record supports the district court’s finding that Respondent met

that burden of proof. Accordingly, we do not find that the trial court abused its

discretion in granting Respondent’s application for post-conviction relief, vacating

his convictions, and ordering a new trial.

DECREE

1 For the foregoing reasons, we grant the State’s writ application, but deny the

2 State’s request for relief, finding that the district court did not abuse its discretion.

3 We remand this matter for further proceedings.

4 WRIT GRANTED, RELIEF DENIED; REMANDED