| At about 8 p.m. on March 20, 1996, a man wearing two ski masks entered the 88 Market on 200 Rhode Island Avenue, NW, in Washington, D.C. He locked the front door behind him. Gashaye Zinabu, a clerk, screamed for help from his co-worker, Tsehay Woldeab, who was in the back of the store.
By the time Woldeab got to the front, the robber was inside the locked and secure section of the store, which was protected by bullet-resistant glass and was where the register was located. The robber then took out a gun. Woldeab pleaded with him not to hurt anyone. The robber emptied the cash register and also took money from a lottery machine and from a separate paper bag that was hidden from customers.
He then pointed the gun at Woldeab and Zinabu and motioned for them to move to the back of the store, which was separated from the main area by refrigerators and boxes and was off-limit to customers. He pulled open the door to the employee restroom. Zinabu went inside. Woldeab tried to follow, but the robber pulled her back and closed the door.
He motioned with his gun for Woldeab to remove her pants. When he began trying to remove her sweater, Woldeab fought back. During the struggle, Woldeab’s bra was ripped apart. The robber briefly put down his weapon, and Woldeab picked it up. She called for Zinabu to come help her, but he was scared and stayed in the restroom. Woldeab and the robber fought. Woldeab tried to shoot him, but the gun wouldn’t work. The robber was able to wrest the weapon from Woldeab and hit her in the head with the gun, causing a wound that would require five stitches to close.
As the robber was leaving the store, he appeared to be looking around. Woldeab, still dazed from the blows, followed him and threw some packs of cigarettes his way, which he took before leaving. She also noticed, for the first time, that the masks had come off, and she could see the robber’s face. She called out, “Michael, Michael. Is that you? Why would you do this to me?”
The Michael that Woldeab said she was referring to was 19-year-old Michael Jones, a regular customer. During her 911 call and in the first interviews with police, Woldeab did not mention that she had recognized her assailant. Instead, she seemed to be more upset with Zinabu for not coming to her assistance and for the apparent security breach that had allowed a robber to get to the cash register.
After the robbery, the store closed for three days. When Woldeab returned to work, she found a black knit hat in the back of the store. She said it looked similar to one that Jones had been wearing that winter. The police came and took the hat to the Federal Bureau of Investigation’s crime laboratory. Three weeks after the robbery, Jones was arrested and charged with one count of second-degree burglary while armed, two counts of armed robbery, three counts of possession of a firearm during a crime of violence, one count of assault with intent to commit second-degree sexual abuse while armed, and one count of aggravated assault while armed.
Police searched his house. They did not find a weapon, cash, or any evidence tying him to the crime. They did get a sample of his hair for the FBI to compare with any hair found on the hat.
Jones’s trial in Superior Court for the District of Columbia began on October 16, 1996. Woldeab and Zinabu both testified, but their testimony didn’t always align. Zinabu said he was able to catch a glimpse of Jones during his struggle with Woldeab by peering through a crack in the restroom door, but Woldeab said she only saw Jones’s face much later, after he hit her with the gun and then made his way out of the store.
Jones’s attorney tried to present the robbery as an inside job. Zinabu indicated that the robber had a key to the secure area, but Woldeab testified that all the keys were accounted for. She had one, and her daughter had the other. In addition, the robber knew about the bag of cash and the employee restroom in the back.
But the prosecution had powerful forensic evidence. The FBI’s crime lab had done an analysis to compare hair found in the knit cap with Jones’s hair. Agent Robert Fram testified that after examining both samples, he found that the hairs from the hat “exhibit the same microscopic characteristics as hairs from the known sample from the defendant.”
While Fram acknowledged that hair analysis did not give the same level of certainty as fingerprints or DNA, he said he had never in his career been unable to distinguish between hair samples from two different people.
During closing arguments, the prosecution hammered this point home and said that the hair comparison bolstered the eyewitness identification.
Jones was found guilty on October 22, 1996 of all the charges with the exception except of one count of armed robbery. He was sentenced to between nine and 30 years in prison.
In 2003, Jones filed a pro se request for FBI records related to his case. Separately, in 2007, students at Catholic University’s Innocence Clinic filed a request with Washington’s Metropolitan Police Department to test the ski mask and the bra for DNA evidence that might exclude Jones as a suspect. On March 30, 2008, they met in person with the police officer in charge of the evidence warehouse. Five weeks later, the students would later learn, the evidence was destroyed. The government offered no explanation to what happened.
In 2009, the National Research Council concluded that forensic hair analysis was not suited for making positive identifications and lacked a “statistical foundation.” That was followed by a Department of Justice review of hair analysis by FBI agents that made plain the shortcomings of this forensic tool. On December 23, 2014, Jones received a letter from the Department of Justice saying that Fram’s testimony was invalid.
By that time, Jones had already filed a motion for a new trial, asserting that Fram’s testimony was false and misleading, and he amended his motion in February 2015 to include the government’s acknowledgement of its errors.
Prosecutors pushed back and argued that Jones didn’t deserve a new trial. Yes, the prosecution conceded, Fram’s testimony was false, but it was secondary to the testimony of Woldeab and Zinabu. The court agreed, denying Jones’s motion for a new trial without holding an evidentiary hearing. Judge Patricia Broderick said that the eyewitness testimony was sufficient on its own and that the hair analysis simply corroborated that evidence. She wrote: “There exists no reasonable probability, in the context of the entire record, that the inclusion of the expert testimony caused the jury to find the defendant guilty of the crimes charged beyond a reasonable doubt where otherwise it would not have done so.”
One of the reasons the judge had placed such faith in the eyewitness testimony is that Jones was not a stranger to Woldeab and Zinabu. Because they knew him, she reasoned, they were more likely to recognize him.
But in his motion, Jones’s attorney said there was plenty of evidence to cast doubt on the certainty of this “acquaintance” identification.
Just minutes before the robbery, there had been a separate altercation at the store involving a customer named David who wanted a refund on a purchase. This customer often hung out with Jones, and Woldeab said she and Jones had gotten into arguments before about requests for refunds. Woldeab said she “associated” the two men.
In addition, Zinabu’s testimony didn’t match up with Woldeab’s, and it could have been tainted by Woldeab’s own certainty about the identity of the robber. Crucially, Zinabu said he had seen Jones’s face before Woldeab said the ski mask came off. It was possible, Jones’s attorneys argued, that Zinabu – a trainee at the time – was trying to atone for not coming to Woldeab’s aide after she wrested the gun from the robber and for whatever part he played in the security breach that gave the robber access to the cash register.
The prosecution had no explanation for how the robber had gained that access. Woldeab testified that the door was always locked and always checked. Zinabu said the robber had appeared to use a key.
Equally important, Jones had gone to the store a few days after the robbery. That action seemed inconsistent with the testimony that Woldeab saw his face after he struck her.
The Court of Appeals for the District of Columbia overturned the trial court’s decision on March 7, 2019. The appellate court noted that the eyewitness testimony was contradicted by many of the known facts. What had tipped jurors, the court noted, was the strength and confidence of Fram’s testimony, which the government acknowledged was wrong. “Without that powerful testimony, the evidence of appellant’s guilt was still strong, but it was not overwhelming, and we find it plausible that the jury could have entertained a reasonable doubt and acquitted him,” the court wrote.
Jones’s charges were dismissed, and he was released from prison on April 4, 2019. He filed a petition for a certificate of innocence in 2021.
– Ken Otterbourg
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