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Recanting witnesses and new trial motions

The client's family comes into you, with money for you of course, but more importantly -- for them at least -- an affidavit from another inmate stating that he was the person who actually committed the murder for which the client is serving a 20 year sentence.  You set about drafting your new trial motion on the basis of newly discovered evidence -- and if the fact that somebody else is the one who did the crime isn't newly discovered evidence, what is? -- and start by researching the issue.  You plug in something like "'new trial' and affidavit and recant" into Lexis to see what you get.

And what you get is case after case where the appellate court affirmed denial of a motion for new trial on those very grounds, often where the trial judge didn't even bother holding an evidentiary hearing.

Well, buck up, Sparky, because after 8th District's decision last week in State v. Gray, you'll be able to cite at least one case in your brief.

The facts aren't terribly relevant; suffice it to say that 18 months after Gray was convicted of aggravated murder, he produced an affidavit from a Brian Donan else saying that Donan had been the killer.  That motion for new trial was denied without comment three days after it was filed.  Two months later, Gray took another shot at it, this time attaching an affidavit from one of the key witnesses, Danuiell Love, who claimed that it was her fiance, not Gray (but also not Donan), who committed the killing.  This time the judge waited a whole five days before summarily overruling it.

There are a number of hurdles to overcome with a motion for new trial, not the least of which is timing.  If you're more than 120 days out from trial, filing the motion is really a two-step process:  you first have to ask leave to file the motion, explaining why you were unavoidably prevented from discovering the evidence through ordinary diligence.  If, for example, you're trying to introduce documents that you knew about at trial but didn't get around to gathering until afterwards, you're out of luck.  The same applies if you're claiming that so-and-so will testify to such-and-such, if you knew about so-and-so when the case was tried.  And although there are some cases, like this one, which hold that if you were unavoidably prevented from filing the motion within the 120-day period, it doesn't matter how long you wait to file after you discover it, there are other cases which say that you have to file the motion within a "reasonable time" after the new evidence is discovered.

Even once you get in the door, you run into problems, chief among them the 1947 Supreme Court case of State v. Petro, which requires that the new evidence must create a "strong probability of a different result" and "does not merely impeach or contradict the former evidence."  Well, gee, if it doesn't "impeach or contradict" the evidence at trial, what's the point of filing it?  This 1st District decision does a nice job of reconciling that, focusing on the "strong probability" requirement:

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. 

And keep in mind that if the newly-discovered evidence is Brady material which should have been turned over by the State, a different test applies; as the 8th pointed out last year in State v. Siller, the US Supreme Court decisions after Petro have held that in those situations, the defendant need only show a "reasonable probability" of a different outcome, which has been defined to mean that the government's suppression of the evidence "undermines the confidence" in the outcome.

So how does Gray fare?  He didn't file a motion for leave to file the new trial motion, but, citing this 10th District case, the court decides that's just a technicality which shouldn't preclude relief.  The affidavits Gray submitted "on their face" create a "strong probability of a different result," because "they do more than merely impeach or contradict former testimony; if true, they would exonerate Gray."  A small nit to pick here:  while the affidavits certainly contradict the evidence at trial, they also contradict each other; both can't be true.  The court glides over this, and with some basis:  after all, it was only Love's affidavit that was at issue in the appeal. 

The court then looks at the evidence from the trial, and finds that the only real inculpatory evidence had come from Love, who was now recanting, and Gray's girlfriend, Latasha McClain, who fled the state with him but, after she was caught and extradited, cut a deal and testified against Gray.  The only objective witness described the shooter as wearing a "hoodie" and leaving the scene in a dark car, while Love and McCain claimed that Gray was wearing a white t-shirt and driving a light car. 

This doesn't mean Gray gets a new trial, but he gets in the door:  he's entitled to a hearing since the judge couldn't discredit Love's affidavit without a hearing, "at least in the absence of internal inconsistencies in the affidavit sufficient to destroy its credibility on its face."

Now, normally that wouldn't bode well for Gray; it's not too hard to envision a judge who was so unimpressed by Gray's motion that he summarily denied it holding a hearing and coming to the same result.  But that's where it gets interesting:  the hearing will very probably be held before a different judge, because the one who denied the motions has since been indicted by the Feds in the on-going Cuyahoga County corruption scandal.  I'm not saying that was the reason for the reversal, but that, and the peremptory manner in which the motions were denied, sure didn't help.

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