Tiny Typo Leads to Flawed Warrant and Excluded Evidence

What may have seemed like a small typo on a warrant amounted to enough reason for a judge to prevent prosecutors from using evidence collected as a result of the raid. The case involves a search of a Knox County driving school, a company operated by a retired homicide investigator.

The former murder detective, Don Wiser, has been accused of taking money in exchange for handing over certificates for having completed his driving school. The Sherriff’s Office says it raided Wiser’s office after two undercover officers went to the school and walked out with paperwork claiming they’d attended a 16-hour course when they really only spent two hours at the facility. Wiser vehemently denies the charges and says he is being targeted by the Sheriff’s department because he’s operating a competing driving school that has taken money away from the county.

So far Wiser appears to have clearly won the first round of the legal battle. His defense attorney pointed out that there was an error in the search warrant used by Knox County sheriff’s officers when they raided his business. What was the trouble exactly? The wrong date appeared on the paperwork.

The raid was carried out at his business on April 14, 2012, but the search warrant incorrectly listed the year as 2011. The Assistant District Attorney in charge of the case pointed out that there were several other places on the warrant that clearly indicated the year was 2012 and that the typo only occurred once. However, this was not enough for Knox County Criminal Court Judge Steve Sword.

Judge Sword said that while he might have agreed with prosecutors that the error was simply a typo, it did not matter because state law on the subject is clear. He said Tennessee rules left him no choice but to throw out the warrant as legally flawed. Given the flaw in the warrant, all evidence collected as a result of the warrant was also excluded as fruit of the poisonous tree.

Tennessee is one state that does not recognize the concept known as “good faith exception”. Other states and the federal system rely on the principle which says that so long as an officer has good faith in believing that the warrant he or she is exercising is valid, the evidence obtained as a result of such a good faith search can still be used.

In this case, the warrant says that the information used a basis for the search was obtained a year before the warrant was actually executed. That long of a gap makes the information too old to act on and thus an improper basis for the search.

Read:“Judge: Typo on search warrant of business means it's no good,” by Jamie Satterfield, published at KnoxNews.com.

U.S. Supreme Court to consider "late" actual innocence proof

An issue before the U.S. Supreme Court involves the late appearance of evidence that may demonstrate a criminal defendant’s innocence. Though many people assume that if evidence were to arise showing that someone was clearly innocent of the crime they were accused of committing, no matter how late, then it would be considered by the court. Perhaps it may come as a surprise to some, this is not always the case. Here is the petition for certiorari granted by the Supreme Court on this issue filed by Floyd Perkins.

The actual issue presented states: The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) contains a one-year statute of limitations for filing a habeas petition. In Holland v. Florida, 130 S. Ct. 2549, 2562 (2010), the Supreme Court affirmed that a habeas petitioner is entitled to equitable tolling of that one-year period “only if he shows: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.

Floyd Perkins' petition presents two recurring questions of jurisprudential significance involving equitable tolling under AEDPA that have divided the circuits:
1. Whether there is an actual-innocence exception to the requirement that a petitioner show an extraordinary circumstance that “prevented timely filing” of a habeas petition.
2. If so, whether there is an additional actual- innocence exception to the requirement that a petitioner demonstrate that “he has been pursuing his rights diligently.

As Justice Antonin Scalia wrote in 2009, the Supreme Court has never held that “the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

The Supreme Court now has agreed to hear a case that demonstrates exactly why the issue can be a tricky one. The case involves a Michigan man, Floyd Perkins, who is serving a life sentence for murder. New evidence was uncovered and a long time passed before it was presented. The issue now is whether it can be raised or whether Perkins should spend the rest of his life in prison for a crime he says he did not commit.

The details of the incident begin with a house party in 1993. Perkins was in attendance and left with two other men, one of whom was later found dead in the woods, having been stabbed in the head. The third man, Jones, testified that Perkins murdered him. Perkins said he parted ways with the other two and later ran across his accuser under a streetlight covered in blood. The jury ultimately believed the accuser, voting to convict Perkins.
After his conviction Perkins worked to collect evidence demonstrating his innocence. There was an affidavit from his sister that said she heard secondhand that Jones had bragged about the killing and had taken bloody clothes to a drycleaner. This is hearsay and it is from a relative, both facts undermined the value of the testimony. A few years later Perkins got a second sworn statement from an acquaintance of Jones’ who said Jones confessed to the killing and confirmed the story about the dry cleaning. Then, a few years after that an employee of the dry cleaning store said that a man who looked like Jones had indeed come in to drop off bloody pants to be cleaned.

Finally, with this information gathered, Perkins asked a federal court to throw out his conviction in 2008. Magistrate Judge Timothy P. Greeley of the Federal District Court in Marquette, Michigan recommended that his request be denied because it was filed too late. Perkins appealed but to no avail. Then the Sixth Circuit Court of Appeals reversed the ruling. It ordered Judge Bell of the Federal District Court in Grand Rapids to consider whether the new evidence was credible enough to justify consideration.

After the Sixth Circuit decision, Michigan appealed to the Supreme Court, and with the support of 10 other states, argued that deadlines are important procedural rules and ought to be enforced as written. They say the legal requirement is that such claims be pursued diligently.

However, Perkins argues that’s exactly what he did. He filed a note with the lower court before the deadline passed explaining that many of his documents and property had been destroyed by prison personnel following a skirmish. He was subsequently denied access to the law library and placed in solitary confinement for nearly five years, making further work on his case all but impossible.

Though the evidence is suggestive, it’s not factually conclusive for Perkins. Had it been presented at trial it may have made a difference, or maybe not. The question is whether there is enough reason to justify Perkins presenting it to a court for consideration now.

Read: “Case Asks When New Evidence Means a New Trial,” by Adam Liptak, published at NYTimes.com.

The Baumgartner Debacle Continues

former judge Ricard Baumgartner
photo knoxnews.com

Special Judge Jon Kerry Blackwood affirmed his earlier decision, recently reviewed by the Tennessee Supreme Court, and ordered new trials for a second time for the defendants in the Christian/Newsom murder case.

The state Attorney General’s Office earlier appealed Blackwood’s first retrial order, and on May 24 the Supreme Court issued an opinion saying that former judge Baumgartner’s misconduct off the bench was not reason enough to justify new trials. The high court said that the defense would have to show that actual error or bias had occurred. The justices further questioned Judge Blackwood’s ruling that Baumgartner’s inability to serve as the 13^th juror was justification for new trials. The Court did leave open the possibility that if witness credibility were essential, Baumgartner’s behavior could be used as support. 

Blackwood took the opportunity to revisit his ruling and quickly decided he had been right the first time. The Supreme Court never overruled him and did not bar him from again granting new trials. The justices simply asked that he review his initial order using their opinion as a guide.

Blackwood did base his second retrial order on language contained the Supreme Court’s opinion, specifically mentioning the importance of witness credibility to the ultimate outcome of the trials. Blackwood said because witness credibility was such an “overriding and important issue" at trial he did not feel he was able to step into the role of the 13^th juror left open thanks to Baumgartner’s resignation. 

The order came just a few days after Knox County District Attorney General Randy Nichols filed a motion asking that Blackwood recuse himself from the case. Prosecutors argued that Blackwood was biased against them, having planned to grant new trials before allowing the state to make its case. It is hard to understand their position, given that they are arguably the only ones who could have had knowledge or power to do anything about Baumgartner's misbehavior.

Current law in the state is vague about what is to happen when a motion to recuse is before a judge. The current Rule 10 of the state’s Code of Judicial Conduct states only that: 

“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding; [or] (b) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge has been a material witness concerning it.”

The Supreme Court recently adopted a new Rule 10 that is set to go into effect on July 1 of this year. The new rule would prevent a judge whose recusal is being sought from issuing any orders or rules until the motion to recuse has been dealt with. The new rule also gives the petitioning party a right to automatic emergency appeal should the judge deny the motion. Because the rule is not yet in effect Blackwood is permitted to issue his second order despite the current motion for him to recuse himself. 

Read: “Blackwood reasserts order: New trials in Christian-Newsom killings,” by Jamie Satterfield, published at KnoxNews.com.

Earlier:

Judge Baumgartner Saga Continues

Prosecutor’s Note Questioning Witnesses’ Credibility Leads to a Murderer’s Appeal

Prosecutor’s Note Questioning Witnesses’ Credibility Leads to a Murderer’s Appeal

The Supreme Court of Tennessee recently issued an opinion in Cyrus Deville Wilson vs. State of Tennessee, a case concerning whether a notation in the prosecutor’s file expressing her opinions to the lack of credibility of the State’s witnesses is newly discovered evidence which the defendant may base a petition for writ of error coram nobis (a legal writ issued by a court to correct a previous fundamental error to achieve justice where no other remedy is available).

In the case, Cyrus Deville Wilson was tried and convicted for first-degree murder and sentenced to life in prison. Key to the State’s case were two juvenile eyewitnesses.  Petitioner obtained the District Attorney’s file in this matter which contained handwritten notes wherein the prosecutor had written “good case but for most of [the witnesses] are juveniles who have already lied repeatedly.” Petitioner then filed a petition for writ of error coram nobis contending that this constituted exculpatory evidence that was withheld in violation of his constitutional rights and requested a new trial.  The coram nobis court dismissed the petition.

The Court of Appeals reversed the judgment of the trial court and remanded for an evidentiary hearing. The Court of Appeals held that the petition raises a possible ground for relief, but that numerous facts need to be established before the trial court can determine whether the petition has any merit. Therefore, without an evidentiary hearing there is not enough evidence on the record for the coram nobis court to determine whether the petition has any merit. The state appealed.

The Supreme Court held that the handwritten note expressing the prosecutor’s opinion as to witness credibility was attorney work product. As such it was neither discoverable nor admissible. Thus, the note ought not be deemed newly discovered error on which a petition for writ of error coram nobis could be based. The Court reversed the Court of Criminal Appeals and reinstated the judgment of the trial court.

To read a full version of the opinion click here.

Earlier:

Alarming Flaws in Forensic Analysis Revealed