Recantation Evidence How to Obtain It and Use It Effectively Panelists: Justin Brooks Sean O’Brien Quinn O’Brien
Jan 21, 2016
Recantation EvidenceHow to Obtain It and Use It Effectively
Panelists: Justin Brooks Sean O’Brien
Quinn O’Brien
I can do it myself! Or can you?
No. No, you cannot. Teamwork is essential!
Do I need an Investigator?
Yes, you do.
Don’t let clients investigate
State v. Ferguson, 325 S.W. 3d 400 (Mo. App. (2010):
Eye-witness to crime disregarded because client’s father produced the witness
Don’t let clients investigate!
Kidd v. Norman, 8th Cir. No. 10-1379 (2012):
Letters between client and co-defendant undermined co-defendant’s confession exonerating Kidd.
Can lawyers investigate? Yes, but… Amrine v. Bowersox, 128 F.3d 1222
(1997): “death penalty habeas cases in which persuasive counsel will be unable to generate new affidavits refuting earlier testimony, even eyewitness accounts, will be few and far between. Amrine and Schlup, both represented by the same lawyer, have amply demonstrated the predictability of this outcome.” (dissent, n. 19)
Rule 4-3.7: The Witness-Advocate Rule (a) A lawyer shall not act as advocate at a trial in
which the lawyer is likely to be a necessary witness…
- You can not cross-examine yourself, no matter how funny it might be.
- Arguing with the witness about what you heard them say in an interview is generally objectionable, or at least frowned-upon.
- How else are you going to get all your findings into evidence and impeach opposing counsel’s witnesses?
The Investigator’s skills (Things I can do better than you): Interview people without interrogating them Leave the office Build rapport without crossing boundaries Testify Identify, locate and collect relevant
documents and evidence without pissing off the clerks
Help the lawyer translate information into useful work product that is admissible in court (eg: making charts, graphs, timelines, memos, statements, affidavits, etc…)
Investigators can handle the hard questions better than you! Will I get in trouble? Can I be prosecuted? What does (your client) say? Do I need a lawyer?
Good investigators listen more than they talk!
Parallel Tracks: People and Paper
Quinn says:
Preparation Context Strength in Numbers
Successful RecantationCases
Indicia of Reliability
Government snitches
No rule of evidence says that snitches are only believable when they testify for the Government!
“The question is: which time were these three witnesses lying? When they testified against Amrine, or when they recanted?” Amrine v. Roper, 102 S.W.3d 541, 550 (Mo.
2003) (Wolfe, J., concurring).
Recantation admits guilt
Verneal Jimerson (Ford heights Four) Randall Dale Adams, Texas Anthony Siliah Brown, Florida (Killer
confessed on witness stand at retrial) Joseph Burrows, Illinois (two snitches, both
recanted, one confessed to the crime) Jeremy Sheets, Nebraska
See case law: Declarations against interest
Recantations = New Evidence
Amrine v. Bowersox, 128 F.3d 1222, 1228-29 (8th Cir. 1997) (en banc) [Triggered Schlup hearing]
Reasonover v. Washington, 60 F. Supp. 2d 937, 961, n. 24 (E.D.Mo. 1999) [Satisfied Schlup standard]
United States v. Ramsey, 726 F.2d 601, 604 (10th Cir. 1984) [recantation = “substantial evidence”]
Recantation corroborated with pretrial recorded statements James Creamer, Georgia (The Marietta
Seven) Ellen Reasonover, Missouri
[In both cases the pretrial statements were taped and the prosecution knew it]
The prosecutor corroborates the recantation Albert Ronnie Burrell and Michael Ray
Graham, Jr., Louisiana Perry Cobb and Darby Tillis, Illinois
(snitch admitted guilt to prosecutor before he went to law school)
The recantation is corroborated by credible witnesses Willie Brown and Larry Troy, Florida (secretly
recorded conversation) Gary Beaman, Ohio (five witnesses testified the
snitch admitted lying). Darryl Burton, Missouri (snitches’ recantations
corroborated by eye-witness description and solid alibi)
Joe Amrine, Missouri (prison guard corroborated snitch’s recantation)
Multiple snitches, most or all recant
Joe Amrine, Missouri (3 snitches, 3 recantations, corroborated by a prison guard who identified one of the snitches as the perpetrator)
Joseph Burrows, Illinois (two snitches, both recanted, resulting in a retrial, at which one snitch confessed to the crime and charges were dismissed.)
Larry Hicks, Indiana (2 snitches, 2 recantations)
Ryan Ferguson
Multiple snitches; all recant Prison regulations made trial story
implausible Physical evidence supported the
recantation Recantation was deeply moving
Recantation accompanied by Brady violation Shabaka Brown, Florida (recantation plus
Brady violation—secret deal for leniency) Neil Ferber, Pennsylvania (recantation
accompanied by discovery of police conspiracy to frame Ferber)
Dale Helmig (Missouri), A police officer recanted “confession,” report withheld
The recantation is corroborated by physical evidence Dennis Williams: recantation plus DNA Verneal Jimerson (Ford heights Four):
Killer’s confession corroborated by DNA. Paris Carrigar (snitch’s fingerprint on the
guilty duct tape; recantation of recantation disregarded)
Recanting witness is a police officer
Dale Helmig (Missouri) WTF?
Integrity is the key
Do not mislead witnesses about who you are or why you are talking to them.
Do not make promises or discuss consideration. (“I am not the prosecutor. I can’t do anything for you.”)
Strictly adhere to ethics; don’t give legal advice.
Quinn says:
A recantation might not exist
There might be barriers to disclosure
Never be accusatory or patronizing
DON’T JUMP THE GUN*!
*Don’t carry a gun, either
Child Sex Abuse Cases
Typical Case:
Allegation made when child younger than 10 Made to DSS, teacher, or some other authority figure Very little detail in allegation Little/no corroborative State evidence Little/no defense Adult convicted – sentenced to many years or life in prison Time passes – one year, three years, ten years Child recants Post-conviction efforts rely on recantation testimony alone They often lose Then we get the case ………………..
Typical Inmate Letter
Seven years after my trial, I was given a hearing, and the claimed victim admitted I was innocent, and witnesses who heard him admit I was innocent also testified. The judge said he needed more and ordered a psychological evaluation of the boy.
A year later, the judge finished the hearing and ruled against me even though the evaluation came back in my favor. The judge said he felt sorry for what happened, but he didn’t know which story was true.
He said if he could resentence me, he would, but the charge I got carried only one sentence and that was life.
He also said he was going to recommend I get parole on my first parole hearing, but my attorney said that was 12 years from that date.
The judge told my attorney to do what he could to get me out a lot sooner than 12 years.
Our Challenge(s)
How to get back into court?
How to win?
Remember the Standards
Getting back in: New evidence
Winning: A new trial is warranted on the basis of recanted testimony if
the court is reasonably well satisfied that the testimony given by a material witness is false, and
there is a reasonable possibility that, had the false testimony not been admitted, a different result would have been reached at trial.
Lawyer (Son)Lawyer (father)
father/son
law partners
Give the Judge More
DSSDefendant Alleged Victim
Lawyer (Son)
Lawyer (father)
accuserstepfather/son
father/son
law partners
lawyer/client
lawyer/client (trial + appeal)
DSSDefendant James,
Alleged Victim
Lawyer (Son)Lawyer (father)
accuserstepfather/son
father/son
law partners
lawyer/client
former
lawyer/client
lawyer/client (trial + appeal)
DSSDefendant James,
Alleged Victim
DSS Social WorkerLawyer (Son)
Lawyer (father)
accuserstepfather/son
wife/husband
father/son
law partners
daughter/father-in-law
employee
lawyer/client
former
lawyer/client
lawyer/client (trial + appeal)
DSSDefendant James,
Alleged Victim
DSS Social Worker
Lawyer (Son)
Lawyer (father)
accuserstepfather/son
wife/husband
father/son
law partners
daughter/father-in-law
employee
recan
tedlawyer/client
James’
guardian
ad lit
em
former
lawyer/client
Recantation References
Shawn Armbrust. 2008. “Reevaluating Recanting Witnesses: Why the Red-Headed Stepchild of New Evidence Deserves Another Look.” Boston College Third World Law Journal, Vol. 28: 75.
Joshua Lott. 2011. “The End of Innocence? Federal Habeas Corpus Law After In Re Davis. Georgia State University Law Review, Vol. 27: 443.
Janice Repka. 1986. “Rethinking the Standard for New Trial Motions Based upon Recantations as Newly Discovered Evidence.” University of Pennsylvania Law Review, Vol. 134. No. 6: 1433-1459.
Recantation Plan
Before contacting a recanting or possibly recanting witness learn everything you can about the facts of the case.
What is a recantation?
What needs to be said (and what will satisfy the court)? What is a “true” recantation?
Develop Credibility
If a recanting witness is going to help get your client out of prison you are going to have a long relationship. Start it on the right track.
Creating a relationship--matching
Gaining the witness’ cooperation— what is the witsesses interest?
Sustaining the relationship
Witness Credibility at Trial Motivations? Gang affiliations? Nothing to lose? Reasons for testimony discovered years later?
Contacting Recanting Witness
In person, phone, or by mail?
Do Not Record Anything
…until you hear the whole story and fully understand the context of the recantation.
Documenting the Recantation
Writing vs. Video
Form of the Recantation
Handwritten vs. typed? Pleading paper?
Declaration?
Legal Requirements
Make sure you have the proper wording under your state law to make the recantation admissible
The Recantation is Not the End of the Line The witness will need to testify in court. Is the witness willing to testify? Reasons why the witness may be reluctant to testify. Credibility of the witness in court.
Preparing your witness to testify
How much time? How much contact? Getting your witness to court – issues to worry about.
Dolores Macias
Frankie Alvarez
Melody Alvarez
Letter From Gilbert Alvarez
Declaration of Attorney Alex Simpson
Tim Atkins
Denise Powell letter
Denise Powell letter to Tim Atkins
Powell letter to Atkins’s Grandmother
Powell Signed Declaration
JOHN STOLL
Critical-Explain the original statements.
-Explain the recantations.
-Keep the witnesses isolated from each other.
-Deal with prosecutorial intimidation.
BRIAN BANKS