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