Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »


Second chances

Back on December 17, 1999, 76-year-old Dorothy Brown was discovered dead in her apartment in Shaker Heights.  She'd sustained a fractured skull as well as about two dozen other injuries, some defensive.  Although she was nude from the waist down, there were no signs of a sexual assault.  Almost a year later, David Ayers, a "special police officer" who help provide security for the complex, was convicted of her killing.  He's spent a lot of time trying to overturn that conviction, but hasn't had much luck.  Until last week.

At issue in the latest edition of State v. Ayers was his request for DNA testing, focusing on pubic hairs found in the victim's mouth and some cloth found in fingernail scrapings of the victim.  Those items had been tested earlier; the coroner testified at trial that neither Ayers nor the victim were linked to the hairs, and that there wasn't any biological material on the cloth samples. 

This posed a problem for Ayers when he first requested in 2004 that these items be retested.  DNA retesting statutes require that the evidence be "outcome determinative" -- that the test results would probably have changed the outcome of the trial.  The trial court denied the request, reasoning that if DNA tests showed that the pubic hairs didn't belong to Ayers, that wouldn't change anything, because that's exactly what the jury who'd convicted him been told.  After a sideshow on procedural matters, the 8th affirmed the trial court's ruling in 2008. 

While that was going on, Ayers filed a second motion for DNA testing, which met the same fate in the trial court as the first.  That's what the appeal was about last week, and this time the court reversed.

So how did the court come up with a conclusion opposite to the one it reached just a year ago?  The first problem was in overcoming the res judicata effect of its earlier decision, and the court based that on the change in the standard for deciding whether DNA evidence would be outcome-determinative.  When Ayers first requested testing, that test set forth in the statute required that "no reasonable factfinder would have found the inmate guilty" if the evidence had been available.  In 2006, though, that was changed to "there is a strong probability that no reasonable factfinder would have found the inmate guilty..."  The court found that this reduced the inmate's burden from having to show his innocence beyond a reasonable doubt to only demonstrating it by clear and convincing evidence.

Still, while this allowed Ayers to hurdle the res judicata barrier, it still left him with the original one:  how would proof that the pubic hairs or clothing didn't match up to Ayers have affected the outcome at trial, since the jury knew that when it convicted him?  Basically, the court found that advances in DNA technology and the creation of the national DNA database allowed a possibility that wasn't present when Ayers was tried:  that DNA on the hairs and cloth could be matched to another individual, who would in all likelihood be the actual perpetrator.

The fact that this was pretty much exactly what happened in Clarence Elkins' case figured prominently in the court's reasoning.  Elkins was charged in Summit County in 1999 with the murder of his mother-in-law and the rape of his six-year-old niece.  Although no physical evidence linked Elkins to the crime -- public hairs found on the victims excluded him as a source -- he was convicted on the basis of the niece's eyewitness testimony.  He asked for DNA testing, and was refused.  His wife raised the money for the testing, and it revealed another's male's profile on the key evidence.  While Elkins' appeal was pending, the male was identified as Earl Mann, who was serving time for some sex offenses and had lived near the mother-in-law's house at the time of the crime.

What happened after that is a shameful example of a court's exalting finality over the pursuit of truth.  The Attorney General asked for a remand from the court of appeals to the trial court to consider the new evidence.  The request was denied.  After the county prosecutor received additional DNA testing linking Mann to the crime, he asked the court to dismiss the charges, vacate Elkins' conviction, and release him from prison.  The court did so, but only after Elkins had served over six years in prison.  Mann later pleaded guilty to the crimes.

Ayers has always claimed that the real perpetrators of Dorothy Brown's murder were two other men, one of whom had a record of sex offenses.  And if I'm the defense attorney and I have a choice of standing in front of a jury and saying that the DNA evidence at the scene is of somebody who's got a record of sex offenses, and saying that the DNA evidence isn't from my client, but we don't who it is from, yeah, I'm definitely taking what's behind Door A.

Doesn't mean it's going to happen.  Although there was no physical evidence linking Ayers to the crime, one doesn't come away from reading the original appellate decision or the denial of Ayer's Federal habeas corpus petition with the clear and abiding conviction that a gross injustice has been done.  (In fact, one comes away from the former with glazed eyes:  the majority opinion is 27 pages long, the dissent twice that.) 

Still, the same could be said of the initial appeal in Elkins' case.  Yes, there's a purpose for finality in the legal system, but if Elkins teaches anything, it's that the system can get things wrong.  Ayers deserves the shot the 8th District gave him.  Whether anything comes of it remains to be seen.


Recent Entries

  • April 26, 2017
    Like Mark Twain, rumors of my demise have been greatly exaggerated. Except I am pretty sure he's actually dead, while I am not, and for that matter, nobody's spreading rumors that I am. Great lead, huh? The nice thing about...
  • April 20, 2017
    The Supreme Court takes a look at the trial tax
    And you thought this was the week you only had to worry about income taxes
  • April 18, 2017
    What's Up in the 8th
    Remembering Warren Zevon, and the Fourth Amendment lives
  • April 17, 2017
    Case Update
    Structural error, prejudice, and police run amok.
  • April 13, 2017
    Some arguments on sentencing
    Why oral arguments can be fun, even when they're not yours
  • April 12, 2017
    What's Up in the 8th
    Oh fun: declarations against interest v. non-hearsay. Also, the difference between not guilty and innocent, and Ohio's statute penalizing the refusal to take chemical test in a DUI case goes bye-bye
  • April 11, 2017
    Case Update
    Filibusters, and appellate cases on all the ways lawyers can screw up.
  • April 7, 2017
    Change of course
    A new approach in my client-attorney relationships
  • April 4, 2017
    What's Up in the 8th
    A true rocket docket, and Anthony Sowell pops up again
  • April 3, 2017
    Case Update
    Free merchant speech, an argument on Brady, another look at Creech