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.

TN Supreme Court to Review Case Involving Facebook Messages

By Jay Perry

             In a case that is emblematic of the potential problems with digital communication during jury trials, the Tennessee Supreme Court has granted review in State v. William Darelle Smith.  The case, which is an appeal from a conviction of First Degree Murder involves Facebook messages sent between a juror and the medical examiner during the trial. 

After the medical examiner had concluded her testimony, the juror sent a message stating that the juror recognized the witness and “thought you did a great job today on the witness stand”.  The message also stated the juror’s belief that “you really explained things so great!!”  The medical examiner responded that “I was thinking that was you” and recognizing the impropriety added “there is a risk of a mistrial if that gets out”. To the medical examiner’s credit, she notified the trial court of these communications.

Despite the trial court’s knowledge of this contact, it refused defense counsel’s request to question the juror further regarding the Facebook communications.  At the Court of Criminal Appeals, the appellate court rejected the defendant’s appeal finding the communication to be merely a “social communication” and no evidence that the juror was seeking extra or improper information about the case. 

It seems likely that the Supreme Court granted review in order to better outline how to control digital communication and information gathering during trials.  The most recent case law cited in the Court of Criminal Appeals decision is from 2000 and it seems that this issue deserves some new guidance to trial courts throughout the state.  Not only in terms of communication but now additional information is available to any juror with a simple Google search.  While there is only so much a trial court can do to control jurors and their access to information, it is important that such communications do not comprise the defendant’s right to a fair trial.   It seems appropriate that the trial court with knowledge of potentially inappropriate communications or other technology usage would at the least make further inquiries.

 

It will be interesting to see what happens with this case and whether the Court finds that what happened here mandates a new trial.  The Court of Criminal Appeals decision can be read here.

Man on Death Row Gets New Trial in Kingsport Killing

The Tennessee Court of Criminal Appeals recently ruled that Steven James Rollins, a former death row inmate involved in the fatal stabbing of an elderly East Tennessee bait shop owner, ought to receive a new trial.

Rollins was convicted of first-degree murder and robbery in the killing of 81-year-old James T. Bussell inside Bussell’s Fisherman’s Paradise bait shop near Kingsport, TN in August of 2001. Rollins was originally sentenced to death, but the sentence was overturned in 2010 and a new sentencing hearing was ordered. The decision was then appealed to the Tennessee Court of Criminal Appeals which decided to reverse his conviction.

The Court of Criminal Appeals ruled that Rollins had received ineffective assistance of counsel and that the trial was also defective due to a “biased juror.” The two issues were related given that the Court found that Rollins’ attorney failed to properly question prospective jurors to help with weeding out those with biases.

The problematic juror was identified as “Juror 9.” In a 2008 affidavit, the juror admitted to knowing Bussell and having bought bait from him once a week before he was killed. The juror said that he had made up his mind about Rollins the moment they seated the jury. He said he could tell just by looking at him that he was guilty. The juror sealed the deal about his own bias by admitting that, in his opinion, “death is the only appropriate punishment” for someone who is convicted of murder.

The Court of Criminal Appeals said that Juror 9’s failure to admit his friendship with Bussell amounted to a presumption of bias. Given this bias, the Court found that Rollins was denied his right to a fair and impartial jury. The Court went on to highlight how Rollins’ attorney failed to ask jurors if they knew the victim, something the Court found to be “objectively unreasonable” and amounting to a “deficient performance.”

To read the full opinion, click here.

See Our Related Blog Posts:
The Tennessee Court of Criminal Appeals on Split Confinement
TN Court of Criminal Appeals Rejects Petition From Defendant With Life Sentence

Baumgartner Debacle and District Attorney Nichols

by Lee Davis

photo KnoxNews.com

As discussed in a post last week, prosecutors in the Christian/Newsom case are attempting to have Special Judge Jon Kerry Blackwood recuse himself from the case. Matters took a heated turn this week. Knox County District Attorney Randy Nichols started a screaming match with the judge and at another point he was faced with a contempt of court threat.

The exchange occurred as a result of Judge Blackwood’s refusal to step down from the case. Rather than permit additional oral argument by the prosecution, Judge Blackwood carefully explained his reasons for not stepping down and then ordered the court to take a short break. After returning to the bench he read aloud a section of law regarding what comments attorneys are permitted to make about judges. The purpose of the reading was to highlight a comment that we discussed in our last post by John Gill accusing Blackwood of engaging in private communications to avoid media scrutiny. These allegations by prosecutor Gill appear to be baseless and are contempt of court if untrue. 

The exchange got heated very fast as reported by the Knoxville News Sentinel. Blackwood said: “If you have one blooming email to support that charge that this court has been dealing with ex parte communications with these defense attorneys, you better bring it forward or the person who made that statement needs to self report.” Nichols then jumped to his feet and demanded to know whom Blackwood was referring to. The judge responded by saying prosecutor “John Gill.” 

District Attorney Nichols then attempted to cut off Blackwood and the judge had enough, ordereing, “You’re going to sit down.” Nichols remained standing and told the judge that the prosecution objected to him saying anything more. Blackwood then ordered Nichols, “I told you to sit down. If you stand up one more time, you will be in contempt of court. Do you understand?” After that the judge stood up and left the bench. 

Nichols’ made the request for Blackwood to recuse himself after he granted new trials for a second time in the Christian/Newsom case. Though the high court raised questions with the initial decision it did not bar him from coming to the same conclusion the second time around. Instead, the justices said that if Blackwood believed he was not able to serve as the 13^th juror in place of Richard Baumgartner then he would have no choice but to grant new trials. Blackwood decided he did not believe he could serve that role. 

Prior to the blowup by Nichols, the judge said he would reconsider his decision regarding a new trial for the ringleader, Lemaricus Davidson, and his brother, Letalvis Cobbins. The reason for his reconsideration is that both men had DNA evidence linking them to the rapes of Christian. Blackwood was firm that he would not reconsider his decision regarding George Thomas for whom no forensic evidence existed linking him to the slayings. 

Read: “Judge Blackwood threatens DA with contempt, refuses to recuse self in Christian/Newsom retrials,” by Jamie Satterfield, published at KnoxNews.com.

See Our Related Blog Posts:

The Baumgartner Debacle Continues

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