Sean D. O Brien Associate Professor, UMKC Law School

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1 Sean D. O Brien Associate Professor, UMKC Law School

2 Federal Habeas Corpus State Post-Conviction Motion DNA statute Stipulation by Prosecutor Pardon

3 Cases in which conviction based on discredited science Cases in which exoneration based on new DNA technology (mitochondrial, etc.) 2006-present (32 cases) Some cases fit multiple categories (e.g., where state stipulated to relief) Vast majority of releases are based on unreported orders

4 Alejandro Domiguez (IL); Thomas Winslow, Ada JoAnn Taylor, Debra Sheldon, Kathy Gonzalez, James Dean, Joseph White (NE); Robert Lee Stinson (WI); Steven Barnes (NY); Ronald Gene Taylor (TX); William Dillon (FL); Kennedy Brewer (MS); Willie Williams (GA); John Jerome White (GA); James Waller (TX); Chad Heins (FL); Larry Fuller (TX); Dwayne (NC); Roy Brown (NY); Larry Peterson (NJ); Marlon Pendleton (IL); Johnny Briscoe (MO); Orlando Boquete (FL); Willie Jackson (LA)

5 Donald Eugene Gates (DC) Thomas Winslow, Ada JoAnn Taylor, Debra Sheldon, Kathy Gonzalez, James Dean, Joseph White ( The Beatrice 6, NE); Robert Lee Stinson (WI); Steven Barnes (NY); Nathaniel Hatchett (MS); Levon Brooks (MS-after DNA nailed the real perp in Kennedy Brewer s case and he confessed.); John Jerome White (GA); James Ochoa (CA); Alan Crotzer (FL) Stipulation = agree to postconviction relief, NOT dismissal of charges after a new trial was ordered after contested proceedings

6 Thomas Winslow, Ada JoAnn Taylor, Debra Sheldon, Kathy Gonzalez, James Dean, Joseph White (NE), Timothy Cole (TX-posthumous); James Waller (TX); Larry Fuller (TX); Dwayne Dail (NC)

7 Nathaniel Hatchett (MS); Curtis McCarty (OK); Drew Whitley (PA); James Tillman (CT)

8 RELEASED RELEASED 5 0 DNA Pros. Pardon PCR Federal statute Agree Motion Habeas

9 Released DNA Motion Stipulation Pardon State PCR Federal Habeas

10 Few rulings would be more disruptive of our federal system than to provide for federal habeas review of freestanding claims of actual innocence. Herrera v. Collins, 506 U.S. 390, 401 (1993) (Rehnquist, J., concurring) The question "is not the petitioners' innocence or guilt but solely whether their constitutional rights have been preserved. Moore v. Dempsey, 261 U.S. 86, 87 (1923) (Holmes, j.)

11 Of course, such evidence must bear upon the constitutionality of the applicant's detention; the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus. Townsend v. Sain, 372 U.S. 293, 317 (1963).

12 Even if a prisoner has defaulted his constitutional claim, a federal habeas court will review the claim on the merits if he is actually innocent, i.e.: There is a reasonable probability, based on new reliable evidence, that no reasonable juror would find the defendant guilty. Gateway Claim of Actual Innocence

13 Burton may well be able to pass through the Schlup gateway to obtain review of the merits of his Brady claim. We decline to resolve the Schlup gateway question, however, because even if Burton satisfies its exacting standard, his Brady claim cannot carry the day on the merits.

14 Burton's habeas petition troubles us because his legal claims do not provide him an adequate foundation upon which to present his considerable claims of factual innocence.

15 Riley Noel was sentenced to death after a jury rejected his mitigating circumstance that he had brain damage; Federal habeas counsel arranged brain scans with new SPECT scan technology SPECT proved beyond a shadow of a doubt that Noel was brain damaged

16 Despite our best efforts, we cannot discern how the mere unavailability of a particular medical technology at the time of sentencing could violate Mr. Noel's rights under either the Constitution or federal law. It is important to bear in mind, moreover, that there is no constitutional right to resentencing based on newly discovered evidence.

17 prevented Mr. Noel from undergoing medical testing [Ake v. Oklahoma, 470 U.S. 68 (1985)]; suppressed relevant mitigating evidence. Brady v. Maryland, 373 U.S. 83, 87(1963); or that his failure to undergo the new medical testing was due to the ineffectiveness of his counsel, Strickland v. Washington, 466 U.S. 668, (1984).

18 New Technology = DNA exclusion Constitutional Claim = The police used suggestive and coercive practices to obtain eyewitness identification Manson v. Braithewaite, 432 U.S. 98 (1977): Reliability is the lynchpin for deciding tainted eyewitness claims; DNA is relevant!

19 New technology = DNA Exclusion Constitutional Violations: 1) suggestive eye-witness identification procedure 2) Brady (withholding evidence of the suggestive procedure) 3) Fabricating evidence (i.e., eyewitness)

20 New technology = DNA exclusion Constitutional violations: Ineffective Assistance of Counsel for failure to request mental evaluation Tried while incompetent to proceed. Drope v. Missouri, 420 U.S. 162 (1975). Ron Williamson, John Grisham s THE INNOCENT MAN

21 1) the evidence is newly discovered and was not available at the time of trial; 2) the failure to discover it is not due to lack of diligence; 3) the new evidence is material and not cumulative or merely impeaching; and 4) there is a reasonable probability of an acquittal at a retrial. (typical example of state rules)

22 State ex rel. Amrine v. Roper, 102 S.W.3d 541 (Mo. 2003); State v. Terry, 304 S.W.3d 105, 111 (Mo. 2010); United States v. Ramsey, 726 F.2d 601, 604 (10th Cir. 1984); State ex rel. Koster v. McElwain, 340 S.W.3d 221 (Mo. App. 2011)

23 the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Standard = knew or should have known!

24 no one doubts that police investigators sometimes fail to inform a prosecutor of all they know. But neither is there any serious doubt that "procedures and regulations can be established to carry [the prosecutor's] burden and to insure communication of all relevant information on each case to every lawyer who deals with it." Giglio v. United States, 405 U.S. 150, 154 (1972).

25 Does it comply with fundamentals of scientific method? Hypothesis Generation? Testing? Falsifiability? Replication? Peer Review?

26 Collection & Analysis of forensic data? Accuracy and Error Rates? Sources of Potential Bias? Human Error in Interpretation? Proficiency Testing of Experts?

28 State v. Winslow, 740 N.W.2d 794 (Neb. 2007) The Legislature expressed a broad intent that "wrongfully convicted persons have an opportunity to establish their innocence through [DNA] testing," , and that the court shall order DNA testing upon a showing that the biological material may be "relevant to the claim that the person was wrongfully convicted or sentenced," (5).

29 Eyewitness Identification False Confessions DNA Testing Access Evidence Preservation Forensic Oversight Innocence Commissions

IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT

IN THE MISSOURI COURT OF APPEALS WESTERN DISTRICT STATE OF MISSOURI ) ex rel. ) RODNEY L. LINCOLN, ) ) Petitioner, ) ) v. ) No. WD79854 ) JAY CASSADAY, Superintendent, ) Jefferson City Correctional Facility,