I talked yesterday of appellate courts making gutsy rulings in criminal cases, reversing where the easiest course would be affirmance.  Cases on “technical” issues, like motions to suppress, are one category where courts will usually bend over backwards to uphold the result, and another category involves those cases which involve truly appalling crimes.

And there are few more appalling crimes than a father anally raping his eight-year-old daughter, which is exactly what the defendant was convicted of in State v. McConnell.  Despite the fact that the daughter’s testimony at trial indicated that the defendant may have only placed his penis on her buttocks rather than penetrating her, the medical testimony about a “small, anal fissure” on the daughter was enough to get the defendant convicted, and enough to get his conviction affirmed.

Almost three years later, the defendant requested leave to file a motion for new trial, the solitary evidentiary basis of which was an affidavit from his wife stating

1. I am the wife of Michael McConnell and the mother of the alleged victim in this offense.

 2. Sometime in January 2006, my daughter came to me and said that she felt very bad. She told me that nothing had happened between her and her father, that she may have dreamed that this had happened.

 3. Further, affiant saith naught.

The trial court denied leave without conducting an evidentiary hearing, finding that the defendant could have discovered the evidence within the 120-day period after trial with “due diligence,” and that the affidavit wasn’t sufficient because it “contained hearsay” and because it “merely impeached the daughter’s former testimony.”

While there are any number of appellate decisions the 2nd District could have hung its hat on in affirming that ruling, it didn’t.  It noted first that the question at this juncture was not whether a new trial should be granted, but whether the defendant was unavoidably prevented from discovering the evidence within the 120-day period after trial.  Somewhat bewilderingly, the trial judge had concluded that if McConnell believed his daughter had provided false testimony, he should have contacted her via either his attorney or his wife, and by not doing so he had failed to use “reasonable diligence” in discovering the evidence.  The appellate court flatly rejected this reasoning, holding that “as a policy matter, we are reluctant to embrace a rule that would require a father convicted of raping his eight-year-old child to pursue the victim to obtain a recantation of her trial testimony.” 

The most interesting aspect of the opinion, though, was its treatment of the signficance of the affidavit.  There are a host of cases holding that newly-discovered evidence which merely contradicts or impeaches testimony at trial cannot serve as a basis for granting a new trial.  In rejecting “a per se rule excluding newly discovered evidence as a basis for a new trial simply because that evidence is in the nature of impeaching or contradicting evidence,” the court made an important distinction:

The test is whether the newly discovered evidence would create a strong probability of a different result at trial, or whether it is merely impeaching or contradicting evidence that is insufficient to create a strong probability of a different result.  Additionally, in [State v.] Wright, we found that an affidavit recanting trial testimony by a key prosecution witness does more than merely impeach or contradict the witness’s prior testimony. We noted that such an affidavit, if believed, would establish the defendant’s innocence and, therefore, on its face creates a strong probability of a different result.

There are some things that McConnell leaves to be desired, mostly in terms of vaguenesss of the outcome:  the court found that the issue was “whether the trial court should have granted McConnell leave to move for a new trial or at least held a hearing on the issue.”  Since the court was pretty clear on the point that the was unavoidably prevented from discovering the evidence with the allowed time period, a better approach, in only in terms of judicial economy, would have been to hold that leave should have been granted, and then have the trial judge hold an evidentiary hearing on whether the new trial should be granted, obviously focusing on the actual testimony of the daughter, as opposed to her mother’s affidavit.

That quibble aside, the court should be complimented for its thorough and reasoned approach to a very troubling case.  And if you’ve got a case of recanted testimony, this decision is the place to start.