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Criminal Appellate & Post-Conviction Services

Newly Discovered Evidence

Sixty Minutes Profiles Texas Exoneree Michael Martin

Tonight’s 60 Minutes had an interest story (possibly a rerun) on Texas Exoneree Michael Martin. Mr. Martin was convicted of murdering his wife because the prosecution had hid various reports showing that the police had contemporaneous reports which showed that the Defendant’s three year old son had exculpated the Defendant. The police buried it. The prosecution fought the Defendant’s request for a DNA test for five years. The test showed that the someone else committed the crime.

Important Law Review: Why Courts Have to Take a New Look at Shaken Baby Cases

An important law review was just published on why courts need to be taking a new look at “shaken baby syndrome” based convictions based on the new evidence. The author of the article is Professor Keith Findley was is the director of the Wisconsin Innocence Project. This article is one of many recent developments which suggest that courts may finally have to reassess their position on this highly controversial diagnosis. Read More...

Mich SCt Holds that New Trial Can be Granted on Similar Acts/Impeaching Evidence

It has always troubled me how strict some Michigan courts have taken such a narrow view of what new evidence is important enough to win a motion for new trial. Cases often turn on indirect evidence, e.g. things that hurt witness credibility, which suggest that the Defendant is capable of or had the motive to commit the crime, etc. When this evidence is later disproved, Courts engage in all sorts of justifications to say it didn’t matter. Their concerns are probably pragmatic, Courts are concerned that the more areas that are opened for review, the more motions they will face. They feel that limiting the types of evidence that are important enough to grant a trial will protect some societal interest in finality. In People v Grissom, Supreme Court No. 140147, the Michigan Supreme Court found that similar acts evidence which showed that the Complainant made other false allegations of sexual assaults was sufficiently important to warrant a new trial. The Court’s opinion go a long way to knocking down the trait of courts to toss the word “mere” in front of a type of evidence would deny its importance, (e.g. “mere impeaching,” “mere recanting testimony,” etc).

Troy Davis Executed

Last night the State of Georgia executed Troy Davis. Mr. Davis was convicted of killing a police officer. Subsequently, most of the witnesses either recanted their testimony or made statements which seriously called into question their prior testimony. They painted a picture of a police department out to close the case at all cost. The motivation that drives the police departments to catch a cop killer is also the motivation that causes a case to go awry. The Davis case paused many, but apparently not enough. Despite a number of cases which prove the fallacy of the legal theory, the law still treats recanting testimony is unreliable. You can find eloquent prose speaking about how this is the most unreliable testimony that exists. The problem is that despite the eloquence, a review of a number of the cases involving exonerations have shown that there was recanting testimony.

The law is prepared to believe these witnesses when they convict the Defendant, but once the same witness recants they suddenly lose all credibility. Individuals who recant have a lot to lose. They face perjury charges, pressure from law enforcement, and having their name dragged through the dirt. No one who has ever been in the witness box regards hours of vigorous cross-examination as a painless experience. Many people who prefer to spend that time under the dentist’s drill.

The Davis case could have also been used as a vehicle for the United States Supreme Court to finally answer the question about whether convicting an actually innocent defendant is a self-standing constitution question. The US Supreme Court’s 2009 original habeas corpus proceedings in I
n re Davis almost reached that question. Right now, actual innocence is a wild card in federal court that can substitute in for demonstrating good cause for failing to raise an otherwise valid constitutional issue, but it can never be a self-standing “winning hand.” You need actual innocence plus an error. In theory if an actually innocent defendant is convicted at a textbook perfect trial, there is no error.

I don’t have a clue whether Mr. Davis was innocent or guilty, but I think his case should serve as a vehicle for scholars to reexamine the recanting witness doctrine and for Courts to finally recognize that convicting an actually innocent defendant is a constitutional violation.

Mich. Sup. Ct. Refuses to Hear Lorinda Swain Appeal. Actual Innocence May be Irrelevant in Michigan.

On December 16, 2010, the Michigan Supreme Court refused to hear the Michigan Innocence Project’s appeal in the Lorinda Swain case. People v Swain, Supreme Court No. 141504. Justices Kelly, Cavanaugh, and Hathaway dissented. New evidence had convinced Calhoun Circuit Judge Conrad Sindt (a very conservative judge) to grant her a new trial based on ineffective assistance of counsel and newly discovered evidence. The Michigan Court of Appeals (Hoekstra, Saad, and Murray) reversed the conviction based on a procedural bar. Michigan law prohibits filing more than one 6.500 motion unless there is newly discovered evidence. The Court of Appeals ruled that such newly discovered evidence has to be evidence which the defense could not have located using due diligence. The Court implied that there was no actual innocence exception to this rule and that it is not a violation of the constitution to convict an actually innocent defendant. By a 4-3 vote, the Michigan Supreme Court refused to hear the appeal. Update: The Michigan Innocence Project has since moved for rehearing in the Supreme Court. Since Judge Davis voted with the majority, it is possible that they could pick up the vote of incoming Justice Mary Beth Kelly (not to be confused with co-Justice Marilyn Kelly).

Macomb Circuit Court Grants 6.500 Motion in a Shaken Baby Syndrome Child Abuse Case. Court Finds Child Might Have Died from a Stroke

On November 20, 2009, the Macomb Circuit Court (Judge Biernat) granted post-conviction relief in People v Julie Baumer, Macomb Circuit No. 2004-2096-FH based on the ineffective assistance of her trial and appellate counsel in failing to seek to have a defense radiologist appointed to counter the State’s expert radiologist in first degree child abuse prosecution involving allegations of non-accidental trauma (“shaken baby syndrome”) inflicted within 12-24 hours of the images. The State’s experts testified that the injuries were the result of an intentional and very significant blunt force trauma. Defense counsel was aware of the need of a radiologist testimony to counter the state’s evidence, but couldn’t afford to call one. The Court found that defense counsel should have petitioned the Court to appoint an expert under MCL 775.15. The Court also stated that Ms. Baumer may be actually innocent, but that the Court did not need to reach this issue. To read the Macomb County Daily’s coverage of the evidentiary hearing, click here.


Los Angeles Crime Labs

Update on Detroit Police Forensic Lab Closure

Detroit Police Forensic Lab Closed Due to High Error Rate