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 »


New trials

Anthony Connor certainly has been aggressive in his attempt to get out from under the 30-to-life sentence he got back in 2013 for his conviction of aggravated murder.  His appeal went for naught, and the Supreme Court refused review; a similar fate befell his motion for reconsideration.  And so did his motion for new trial:  the judge denied it without a hearing, and last week the 8th District affirmed that.

I think that's the wrong call.

To be sure, Connor had an uphill climb:  three police officers saw Connor firing shots, and a gun was recovered near the area where they'd seen Connor do that.  Connor's "newly discovered evidence" is affidavits from three other people there who say they saw a different guy doing the shooting, although the affidavits are somewhat murky as to exactly what they did see.

The court finds the evidence of Connor's guilt "overwhelming."  And maybe it is.  But there's a critical fact that I've left out:  this involved a shooting after a fight in a club, and according to the police there were "at least a hundred" people who were "all over the place."  That substantially increases the possibility of misidentification.  And frankly, I think jurors are more skeptical of the testimony of police officers any more. 

Keep in mind, too, that we're not talking about whether Connor should be given a new trial.  We're talking about whether the trial court should have held a hearing.  The panel unanimously decides that the trial court didn't abuse its discretion by not having one.  I don't think that's the right result, in this context, and I'm troubled by the court's journey to that conclusion.

If you cite a 1947 Supreme Court case, you haven't done your research; there are very few issues of criminal law that haven't been at least massaged in some fashion by the Supreme Court in the last twenty years, let alone the last sixty-nine.  But the Supreme Court law on motions for new trials dates back to its 1947 decision in State v. Petro, where court said that a motion for new trial on the basis of newly-discovered evidence should be granted only if that evidence

(1) discloses a strong probability that it will change the result if a new trial is granted, (2) has been discovered since the trial, (3) is such as could not in the exercise of due diligence have been discovered before the trial, (4) is material to the issues, (5) is not merely cumulative to former evidence, and (6) does not merely impeach or contradict the former evidence.

The Conner court decides that the proffered affidavits do no more than contradict the other evidence, and that's not enough.

But obviously, just about any motion for new trial on newly-discovered evidence will include evidence that contradicts what was introduced at trial.  The 2d District's 1987 decision in Dayton v. Martin gives a better interpretation of the requirement.  It focuses on the word "merely," which has to be taken into consideration with the first requirement, that the evidence create a strong probability of  a different result; evidence which "merely" contradicts, but does not create that strong probability, is insufficient.

Again, that goes to the granting of the motion; here, we're still talking about whether to have a hearing.  If the witnesses did create a reasonable doubt that Connor was the shooter, that would certainly create a "strong probability of a different result," and I don't know how you make a valid determination of that without hearing from the witnesses and gauging their credibility.

The panel dismisses this based on the superior abilities of the trial judge to determine credibility issues, quoting from a Federal case:

The acumen gained by the trial judge who presided during the entire course of the proceedings makes her well qualified to rule on the motion for a new trial on the basis of the affidavits and makes a time consuming hearing unnecessary.  The judge has the benefit of observing the witnesses at the time of the trial, is able to appraise the variable weight to be given to their subsequent affidavits, and can often discern and assay the incidents, the influences, and the motives that prompted the recantation.

But it's immediately apparent that that case dealt with recantation:  a witness who testified at trial and later came up with a different story in an affidavit for a new trial.  Obviously, the trial judge had an opportunity to gauge the witness' credibility at trial, and if he found the witness credible then, he should be able to deny the motion without needing to see the witness again.  That's not what happened here; the witnesses who signed the affidavits for Conner had never testified at trial, and the judge turned down the only opportunity she'd have to evaluate their credibility.

Look, I don't think there's much chance that Connor is actually innocent, and there's even less of his convincing this particular trial judge to grant a new trial.  But the guy's very likely going to die in prison,  and in that light, I don't think it's asking too much to make a judge spend a couple of hours in a hearing. 


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