Luckily, I found Innocence Matters and Deirdre O’Connor. Even though I wasn’t a law student yet, I had the most rewarding internship experiences I could have expected. Right away I assisted in investigating the facts of John’s case and drafting a Petition for Habeas Corpus. From organizing a successful fundraiser to my first time inside of a prison, my time interning at Innocence Matters was a time of tremendous personal and professional growth. Not only did I learn valuable skills in writing, organizing, and interviewing, but I also gained confidence in my potential as an attorney. The excitement of investigation and the fulfillment from completing the Petition removed all of the doubt that I had about law school.

When I started law school, my experience at Innocence Matters shaped nearly everything I did. I was able to frame abstract concepts in my first year classes in terms of what I had learned firsthand during my internship. Even more significant, though, was the inspiration that fueled me to be disciplined in my studies. Working on John’s case showed me firsthand the results of bad lawyering. When it came time to do homework, compete in moot court competitions, and prepare for exams, remembering these incredibly real consequences impressed upon me my responsibility as a future lawyer. Any time I was temped to break from my discipline or complain about the stress about law school, I remembered what I had seen in John’s case.

After a very successful first year and a half of law school under my belt, I am hugely grateful for my experience at Innocence Matters. Whether you are interested in law or not, I encourage you to experiment and find something that drives you in your work. My experience working on John’s case has given me my mantra, “Look into your own heart, discover what it is that gives you pain and then refuse, under any circumstance whatsoever, to inflict that pain on anybody else.” – Kristin Armstrong

As Innocence Matters begins our search for the recipient of this year’s Courageous Truth Award recipient–where we recognize an individual who has taken extraordinary steps to discover and honor the truth despite tremendous pressure and systemic incentives to prematurely settle on a convenient, but distorted version of the truth–I was reminded of the 48 Hours’ story about the Bruce Lisker case.

Many heroes to choose from in Lisker’s case:

Bruce Lisker | Investigator Paul Ingels | LAPD Lt. Jim Gavin

Bruce Lisker

Lisker in 2009

Lisker in 1983

It seems to me that in nearly every wrongful conviction case, one primary contender for recognition of heroism is the falsely condemned.

Typically, they have to withstand years–often decades–of nightmarish existence fighting for their stolen freedom.  Their claims of innocence are rejected time and time again.  Lawyers come and go, often making matters worse.  Loved ones die.  

And hope precariously flutters in and out over the years, through the concertina wire, always in danger of fatal impalement.

As Bruce Lisker put it:

Hope is a very interesting thing.  It’s very dangerous for a prisoner.  If you have it too close, you’ll suffer greatly.  If you let it die, then you begin to die in prison.

Lisker’s torturous 26-year struggle began with his mother’s brutal murder. On March 10, 1983, Bruce, then 17 years old, arrived at his parents’ home to find his mother savagely beaten, still clinging to life with two kitchen knives stuck in her back.  He pulled the knives out and frantically called 911.

Help me, please.  I need an ambulance right now . . . Hurry!  My mom . . . she’s been stabbed.  Oh my God.  Oh my God.  She’s been stabbed.

When the police arrived, his mother was brought to the hospital where she took her last breath while Bruce was taken to the police station, arrested and interrogated for her murder.  The police discovered $150 was missing from the decedent’s purse and surmised the woman was attacked when she tried to prevent the theft.  Bruce told the police he did not kill his mother or try to take her money.  No money was found on Bruce.  Shortly after his arrest, Bruce and his father provided police with a lead on a possible suspect–Mike Ryan, Bruce’s former roommate.  At the time, Ryan was a homeless, drug-addicted juvenile with a criminal record for assaults and robbery.  The police easily confirmed that: in the days leading up to the murder, Ryan was penniless and sleeping on the streets; within a half hour of the Lisker robbery/murder, Ryan suddenly had enough cash to pay for a hotel room; and the morning after the murder, Ryan purchased tickets and fled the state.  Nevertheless, the lead detective, Andrew R. Monsue, never seriously considered Ryan a suspect and promptly cleared Ryan of any involvement.  Monsue focused all of his efforts on building a case against Bruce, and, in the process, overlooked critical evidence confirming Ryan’s guilt.

Bruce spent the next 26 years trying to get somebody to know the truth. (Sadly, this was a case where the truth should not have been so hard to find.  We’ll take a closer look at what went wrong in a follow-up post.  Back to our heroes . . .)

 [The case] consumed me. I mean, it consumed all of my time. It was my every focus.

Bruce’s father believed in his innocence and was Bruce’s primary advocate and partner in the struggle for freedom until he suffered a fatal heart attack in 1995.  Prison officials denied Bruce’s request for a furlough to attend his father’s funeral.  Bruce found himself alone in his quest for justice, that is, until he met “his angel” four years later.  Together, they would discover the proof of Monsue’s lies.

Private Investigator Paul Ingels

In 1999, sixteen years after his mother’s death, Bruce used some of the money his father left him to hire a private investigator, Paul Ingels, a.k.a., Bruce’s angel.  Although Ingels would ultimately invest 10 years helping Bruce, he started out as a skeptic.

If you’re to believe what these officers are saying on the stand, he’s guilty. He was guilty… guilty as the day is long.

via Man imprisoned for 26 years; Did an LAPD cop lie? – CBS News.

As Ingels began to compare the forensic evidence with Det. Monsue’s testimony, he discovered one discrepancy after another.  Significant discrepancies, such as, Bruce’s “bloody” t-shirt that the detective described to jurors, in fact, did not have a drop of blood on it.  And that was just one of many distortions and false statements purportedly made by Det. Monsue.  Soon, Ingels’ skepticism was replaced with outrage and steadfast determination to help Bruce.

Monsue’s a liar.  I know beyond a shadow of a doubt that Monsue’s a liar.

In Ingels’ view, his investigation had yielded considerable proof of Monsue’s lies, but more was needed to establish Bruce’s innocence.

I would wake up at three in the morning trying to figure out how to get my hands on the evidence to prove that Bruce Lisker was innocent.

One early morning, Ingels got an idea–admittedly, one with very little real hope of working.  But Ingels was convinced it was worth a shot.  He encouraged Bruce to file an internal affairs complaint against Monsue based on the evidence that he and Bruce had developed of Monsue’s many lies and distortions.  Ingels hoped that the complaint would land on the desk of someone within the Los Angeles Police Department who had integrity and an open mind.  This idea put into motion a chain of events that would eventually free Bruce.

Ingels was tenacious throughout.  In 2004, when it looked like they might have hit a wall, Ingels brought the case to the attention of Scott Glover and Matt Lait, two award-winning investigative reporters at the Los Angeles Times.  Their seven-month investigation, as reported in New Light on a Distant Verdict, produced critical evidence that someone other than Bruce murdered his mother which ultimately undermined the trial prosecutor’s confidence in the verdict.

LAPD Lieutenant Jim Gavin

I lived and breathed the LAPD, and I believed in the criminal justice system until the case of Bruce Lisker came across my desk. And that changed me forever.

Bruce’s complaint to Internal Affairs landed on then-Sergeant Jim Gavin’s desk, a dedicated officer who took his job to heart.  Gavin was not going to be an easy sell for some guilty person with an implausible story of police misconduct.

[Gavin] was skeptical at first. But he was not the sort to ignore a complaint, even one from a prisoner.

Gavin read the transcript of Lisker’s trial and listened to Monsue’s taped interviews with Bruce and with Ryan. He spent hours poring over documents compiled by Lisker’s defense team. He twice went to Mule Creek Prison to interview Lisker.

via New Light on a Distant Verdict – latimes.com.

In particular, he was troubled by a letter Det. Monsue wrote the parole board wherein Monsue claimed that the new owners of the Lisker house found the stolen money hidden in the house.  Ingels provided an affidavit from the new owners refuting any such discovery, a statement which they confirmed when Gavin interviewed them.  Moreover, Gavin could find no proof that Monsue ever booked the money into evidence, as he would be required to do.

[Submitting a false report to the parole board] is very serious… If [Monsue] lied here, there is a possibility that he may have lied in other places.

Then Gavin discovered the most critical piece of evidence, an autopsy photograph showing what looked like a shoe print on the decedent’s head.  Only the killer would have inflicted this injury.  Lisker’s shoe did not match.  Gavin no longer questioned Lisker’s innocence.  However, Gavin was forced to terminate the investigation before this critical evidence had been fully developed and turned over to Lisker’s defense team.  It’s what Gavin did next that makes him a hero in my book: he defied the chain of command and turned the evidence over to the defense!  Both he and his wife (also an LAPD officer) were ostracized by their colleagues and, for a while, Gavin faced disciplinary charges.  Gavin’s only reward: he can sleep at night knowing he did the right thing.

The Innocent generally need a team of heroes

Lisker is free today because he had the courage to fight the fight for 26 years.  He is free because he had people like Inv. Paul Ingels, who provided zealous advocacy and refused to give up until the truth was known.  But, ultimately, Lisker is free because LAPD Lt. Gavin conducted himself with the utmost integrity when it would have been much easier for him if he turned a blind eye.

Our system of justice is so easily derailed by the personal agendas of people who rather win than remain objective and loyal to the search for truth.  Indeed, it happens with such frequency and institutional backing that when someone actually performs their job as it was intended, with integrity and dedication, against tremendous systemic pressure to conform to the norm, we see them as heroes.  And they are. They inspire the rest of us to act with more integrity.  And for that, we honor them.

Help us learn about today’s heroes so that we can honor them.  Tell us about them in the comment section or nominate them for the Courageous Truth Award.  Nominations open until February 24.

Ideal Nominee will be someone who

• took extraordinary steps to fight for the truth;
• in the face of significant opposition and/or pressure to conform;
• with result in bringing us all closer to the truth; and
• whose story inspires us all to be better people.

Nominate your hero here- make sure you provide enough detail to help us understand their inspiring story!

The guilty, of course, suffer no harm from their lawyer’s instantaneous, post-verdict concession of guilt.  Judges are not the least bit offended by the abrupt turnaround.  On the contrary, they generally appreciate lawyers who “move on” quickly.  Judges assume that defense lawyers were just doing their job when they first created the illusion of innocence on behalf of their now-indisputably guilty client.

For the innocent client, however, this moment represents yet another harrowing free-fall into the abyss.  

Wait a second?  Is my lawyer actually telling the judge that I’ve learned my lesson?  That I feel bad for what happened to the victim?  That this behavior is out of character for me? Why is he acting like he knew I was guilty all along?  Did this guy ever believe me?

I witnessed this recently in court.  Co-counsel joined in my client’s demand for a hearing on our clients’ actual innocence and their trial lawyers’ ineffectiveness at trial.  Moments later, at the sentencing hearing–after the court refused to give either defendant the opportunity to present evidence of ineffectiveness–co-counsel essentially conceded his innocent client’s guilt when the lawyer assured the court that his client had learned from this crime and would not likely commit the same offense in the future.

Granted, we were in front of a judge whom most defense lawyers avoid whenever possible.  And, one common strategy some defense lawyers employ when dealing with a difficult judge is to placate the court as much and as often as possible.  This particular judge has a reputation for harsh treatment of defendants and some lawyers appearing in front of her actually believe their innocent clients will fare better if they pretend to take responsibility for the crime.  Some might argue that, in that particular setting, the lawyer is actually helping his innocent client by conceding guilt.  I’m not one of them.

Yes, it is true that a sincere showing of remorse and a willingness to accept responsibility at sentencing can impact the outcome.  Last-minute manufactured claims of remorse from a person, who, just seconds ago, steadfastly maintained his innocence, however, have absolutely no mitigating value, primarily because they simply do not ring true.  No judge–especially one with a reputation of being unfair to defendants–is going to fall for this belated statement of contrition.  The words only provide the judge with yet another reason to think the worst of your client.

Moreover, the lawyer should know that it is legally and morally wrong for the court to demand a showing of remorse from someone asserting innocence.  As the California Supreme Court explained in People v. Coleman (1969) 71 Cal. 2d 1159:

It is fundamentally unfair to urge, as was done here, that a defendant’s failure to confess his guilt after he has been found guilty demonstrates his lack of remorse and that therefore such failure should be considered as a ground for imposing the death penalty. Even after he has been found guilty, a defendant is under no obligation to confess, and he has a right to urge his possible innocence to the jury as a factor in mitigation of penalty. [Citation.] A defendant would be placed in an intolerable dilemma if his failure to confess following conviction could be urged at the trial on the issue of penalty as evidence of lack of remorse.

Some might defend the practice of accommodating an unreasonable jurist by pointing out that if you listen carefully, in most instances, the lawyer never says his client is factually guilty or even that the “innocence defense” was a ruse.  Rather, his implied concession of guilt is just lawyer speak–carefully crafted to massage the judge’s ego in an effort to get a slightly reduced sentence.

Same difference, I say.  Any time a lawyer does anything to undermine the claim of actual innocence, he has just made it easier for the already skeptical judge to convince herself that your innocent guy is actually guilty.  The client’s claim of innocence–and the record on appeal–has now been sullied by his lawyer.  And for what?

In this case, it turned out the lawyer’s strategy (assuming it was strategic and not reflexive) did not help his client, as he ended up with the longest sentence of the three co-defendants.  It remains to be seen whether it will hurt his client on appeal.  Will the appellate judges (or their research attorneys) feel more or less troubled by a conviction in a case where the defense position on innocence flip-flops like pancakes on a griddle?

Meanwhile, this innocent man sat behind his lawyer and cried silently.  I watched the tears roll down his eyes and tried to imagine what he was thinking in that moment.  How could any of this make sense to him?  Was he wondering what action he might take to correct these misstatements?

He was not asked to speak and he did not request the opportunity. Surprisingly, most innocent defendants will NOT take the initiative to reassert their innocence at this juncture.  Rather, they sit there in stunned silence as the judge pronounces the sentence, perhaps unaware of the tremendous value of an eloquent allocution–even if only in posterity.  As the United States Supreme Court recognized:

The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.

When the innocent have the opportunity to speak from the heart–and the time to carefully consider their remarks–their protestations of innocence can be quite inspired.  Consider, Ron Cotton’s unusual, melodious allocution following his second wrongful conviction!

Perhaps they still believe that their lawyer knows better than them.  Or, perhaps, the mockery of justice unfolding before them is too much and they simply refuse to take a part in it any longer.

Left unchecked, though, the innocent client is now saddled with an ambiguous record on his claim of innocence.  The lawyer, in  trying to accommodate the trial court, has undermined the perception of his client’s actual innocence on the record.  One of the most powerfully compelling features in most exoneration cases are their persistent and unequivocal protestations of innocence, often spanning decades.

It makes sense to us that the innocent would maintain their innocence.  Likewise, it would give most of us reason to pause if a defendant were to vacillate on the question of his innocence.  We expect consistency on this point.  It stands to reason, then, that appellate court judges and their research attorneys may be swayed–consciously or subconsciously–by an ambiguous record of innocence, even if not directly from the client’s mouth.

At best, lawyer speak that treats actual innocence as a malleable stage prop for the benefit of the performing lawyer only serves to muddy the water.  At worse, it runs the risk of encouraging a reviewing court to more quickly discount claims of actual innocence.

Suggestions for Lawyers with Innocent Clients:  

Priority #1: No fleeting allowed!  Maintain your credibility.  Do NOTHING to undermine your client’s innocence.  Stick with the game plan.  Buzz words: persist, maintain, steadfast, unwavering.  There are many honest and helpful statements that can be made on behalf of your innocent client at sentencing, without resorting to perverted advocacy invented in hopes of appeasing an unreasonable jurist.  If you’re not feeling up to the job, turn the mic over to your client and let him have a stab at it.

Suggestions for Innocent Clients with Mediocre/Misguided Lawyers: 

Priority #1: Don’t go silently.  Stand up and be heard.  Speak from the heart and trust that one day someone who cares will read it.

Suggestions for Innocent Clients With Good Lawyers Who Continue to Work Together as a Team United in Purpose: 

Incorporate Innocence Into the Sentencing Strategy:  Plan for it.  Actual innocence does not evaporate with the pronouncement of guilt.  This conviction is unimaginable mistake, a terrible travesty; treat it as such.  Now is not the time to throw in the towel.  Work as a team to encourage the discovery of truth.  The sooner you start, the sooner others will join you.

1967-2011

She entered with her head held high.  I watched her as she made her way around the table hugging well-wishers.  She was the epitome of strength and poise, a self-possessed woman on a mission.  She looked in my direction, immediately aware that I was a newcomer.  I had only learned of Troy Davis two weeks before our meeting.  Martina approached and extended her hand, “I’m Martina, Troy’s sister.  Thank you so much for coming.”

One had only to look into Martina’s eyes to want to become a better person.

It was July 17, 2007.  The Georgia Board of Pardons and Paroles had just granted a 90-day stay of execution for her brother Troy Davis the previous day.  We were at a restaurant in Atlanta, Georgia celebrating the momentary victory.  As I would come to experience in the four years that followed, we would have to be content with intermittent good news, doled out sparingly–never enough to give any of us a sense of true accomplishment but enough to recharge our batteries as we prepared for the next round.

You could not spend any time with Martina Correia and leave without knowing that she was the driving force behind the campaign to save Troy Davis.  She could hardly be described as the family spokesperson.  Nor was she a figurehead for Amnesty International or any other organization.  Indeed, Martina was not only at the helm of the public advocacy campaign to save her brother, she gave birth to it.  Martina led the charge to keep Troy alive.  She was the reason he lived.

In 2007, with the setting of the first execution date, Martina’s sixteen-year-effort began to pay off.  That year, she recruited Amnesty International, the National Coalition to Abolish the Death Penalty, Georgia for Alternatives to the Death Penalty, the NAACP, and the Innocence Network to join the cause– not to mention untold numbers of students, teachers, lawyers, and religious leaders.  It was Martina’s unwavering insistence on her brother’s innocence–spanning a decade and a half–that filled all of us with the desire to learn more about Troy’s innocence.  It was Martina’s steadfast determination and her belief that the truth would ultimately prevail that inspired us to persist–to dig a little deeper–in our efforts to save Troy.  Martina taught us to ignore the overwhelming odds against us and to keep going until the job was done.

A sister like no other: Martina stood by her brother and protected him every step of the way.

Martina’s life is a lesson in perseverance.  Martina stood by her brother his entire life– for the last twenty-two years of both their lives, she stood by him on death row, trying to get people to listen, to get them to even entertain the possibility that he might be innocent.  She did it while simultaneously battling cancer and raising her son De’Jaun as a single parent.

Martina had countless opportunities along the way to say “enough is enough.”  Instead, she and her family withstood many defeats–and precious few victories–throughout the years.  Far more than any single family should be forced to endure.

• August 28, 1991 – Jury found Troy guilty
• August 30, 1991 – Jury recommends and judge sentences Troy to death
• March 16, 1992 – Trial court denies Troy’s motion for new trial
• March 23, 1993 – Georgia Supreme Court denies Troy’s direct appeal (actual innocence not litigated)
• November 1, 1993 – US Supreme Court denies cert.
• September 5, 1997 – State Court denies Troy’s state habeas petition
• November 13, 2000 – Divided Georgia Supreme Court (4/3 split) affirms state court’s decision (Court divided on procedural issue regarding claim that death by electrocution was unconstitutional; court was not asked to decide issue of Troy’s actual innocence)
• October 1, 2001 – US Supreme Court denies cert.
• May 13, 2004 – Federal District Court denies Troy’s constitutional claims without hearing evidence of actual innocence.
• September 26, 2006 – 11th Circuit affirms federal district court
• June 25, 2007 – US Supreme Court denies cert and clears way for first execution date of July 17, 2007.
• July 16, 2007 – Georgia Board of Pardons and Paroles issues a 90-day stay of execution.
• August 3, 2007 – Georgia Supreme Court, by a 4/3 vote, agrees to hear Troy’s appeal
• March 17, 2008 – Georgia Supreme Court, by a 4/3 vote, affirms trial court’s denial of Troy’s extraordinary motion for new trial
• September 3, 2008 – Georgia sets SECOND execution date for September 23, 2008 for Troy (state refuses to wait to US Supreme Court to rule on pending petition)
• September 12, 2008 – Georgia Board of Pardons and Paroles denies clemency for Troy
• September 22, 2008 – Georgia Supreme Court denies stay
• September 23, 2008 – US Supreme Court stays execution 90 minutes before scheduled execution to allow the Justices more time to consider the pending petition for certiorari
• September 29, 2008 – Third unofficial execution date!  The execution warrant still in effect gave the state until midnight on September 30 to execute Troy.  Jackson state prison prepared for execution on the night of September 29 in hopes that the Supreme Court will deny petition that day.  Family and friends are given final visits with Troy.  However the prison was unable to go through with its plan to kill Troy because the Supreme Court did not rule on petition.
• October 14, 2008 – US Supreme Court denies petition for cert without dissent.
• October 15, 2008 – Georgia sets Fourth execution date for October 27, 2008.
• October 24, 2008 – 11th Circuit issues a stay.
• April 16, 2009 – 11th Circuit denies habeas petition by a 2/1 vote Judge Barkett, dissenting, “I do not believe that any member of a civilized society could disagree that executing an innocent person would be an atrocious violation of our Constitution and the principles upon which it is based.”
• May 19, 2009 – Troy’s lawyers file original petition in US Supreme Court seeking hearing on evidence of actual innocence
• August 17, 2009 – US Supreme Court orders the District Court to conduct a hearing on Troy’s evidence of innocence.  “The substantial risk of putting an innocent man to death clearly provides an adequate justification for holding an evidentiary hearing.”
• June 23 & 24, 2010 – Federal District Court hears evidence.
• August 24, 2010 – District Court Judge finds that Troy has not proven his
• March 28, 2011 – US Supreme Court denies Troy’s appeal.
• April 12, 2011 – Troy’s mother Virginia Davis dies in her sleep.
• September 6, 2011 – Georgia sets Fifth execution date and time for 7 p.m. on September 21, 2011
• September 23, 2011 – at 11:08 p.m., Troy Davis is pronounced dead

Many would have given up long ago.  Not Martina.  She was not looking for a way out of this mission.  Martina would not rest until Troy was free.  Denial after denial after denial after denial, Martina never faltered.  Through it all, Martina was there, by Troy’s side.

Finally, it seems, the time has come for Martina to rest.  She has returned to her brother’s side.  Together, they will watch to see if we have the courage to get the job done.

As the world prepares to say its final goodbye to Martina, I will be forever grateful to have had the opportunity to know Martina and to have joined her in her fight to save her brother.  When I find myself frustrated by the challenges of this work, I will find strength in my memory of this heroic woman and the brother she loved so dearly.

I end this post where Martina and I began: this video, shot in the summer of 2007, was our first of many efforts to tell the world Troy’s story.  (Apologies for the less than perfect sound quality and editing.)

Lesson 1: Channel Dwayne Schneider, “Always remember, and please never forget”

. . .  bad judges make for good appellate records

. . . sometimes the good guys have trouble coming to terms with a job not so well done–forgive them, in the long run they do more good than harm

. . . nothing irritates the system more than an innocent defendant who refuses to endorse a guilty verdict

. . . if you insist on representing “the irritating,” budget for sanctions

. . . expect everything to take longer than it should, and then double it

Lesson 2: Channel Dennis the Menace: ”I’ve never had so much fun as I’m going to have tomorrow!”  (Sometimes, the really funny part of our work doesn’t hit us until the ride home.)

Lesson 3:  Channel Mother Teresa and do it anyway: “In the final analysis, it is between you and the Divine.  It was never between you and them anyway.”

It is through this adversarial process that we believe (hope) the truth will emerge. What happens, though, when the truth arrives to the party a little late, as in the form of a post-conviction recantation?

The Troy Davis case brought national attention to the challenges created by post-conviction recantations.  Legal, political, and social advocates for Davis assigned great significance to the number of recanting witnesses and were astonished to discover that the courts lacked the desire or means to effectively assess the reliability of post-conviction recantations.  State and federal courts, it turns out, are extremely distrustful of recantation evidence and always have been.

The Georgia Supreme Court has been dismissive of recantations as far back as 1876.  In Felton v. State, 56 Ga. 84, the court noted:

[I]t would be easy, for love or money, to get some witness to say something contradictory to his evidence on the trial.

The Court of Appeals of New York’s 1916 assessment of recantation evidence remains the prevailing view in many jurisdictions:

There is no form of proof so unreliable as recanting testimony. In the popular mind it is often regarded as of great importance.  Those experienced in the administration of the criminal law know well its untrustworthy character.

It is this untested presumption of unreliability that enables courts to quickly deny relief for those relying on recantations as proof of innocence.  But what is it about recantations that cause courts to presume them inherently unreliable?  Does the fact that some recantations are unreliable mean that all recantations are?  Does the truth come with an expiration date?  Is a liar no less a liar simply because the witness and/or the lawyer convinced the jurors to believe the liar?  How is it possible to know, merely from the occurrence of a recantation, which version–if either–is true?  As to the latter question, I think the Missouri Supreme Court, in State ex.re. Amrine v. Roper, 102 S.W.3d 541 (Mo. 2003), astutely characterized the problem when a recantation directly undermines the only evidence at trial.

With the witnesses’ recantations, we do not know whether [the man convicted] is actually innocent. We similarly do not know whether he is guilty, despite the final judgment in his case. The question is: which time were these [recanting] witnesses lying? When they testified [at trial], or when they recanted?.

For obvious reasons, the very act of recanting calls into question the credibility of the witness.  Nevertheless, no reasonable person would suggest that an untested recantation is sufficient to undermine the verdict.  By the same token, a system premised on the categorical distrust of all recantations does not serve the truth and is often fatal to the claims of innocence and sometimes, as in the case of Troy Davis, to the innocent themselves.  Context is everything.

It is irrefutable that some unknown number of people are convicted on the word of liars.  As of this writing, there are 280 DNA exonerations listed on the Innocence Project’s site, thanks to the tireless work of members of the Innocence Network.  Moreover, as documented here and here, hundreds of other innocent people have had their questionable convictions reversed without the benefit of DNA, including 121 non-DNA exonerations from death row.  Unfortunately, because biological evidence is generally not present in the majority of crimes, DNA testing is often of no use to innocent people convicted on perjured testimony.  Therefore, if we are determined to follow the truth, we need a framework for assessing the reliability of recantation evidence in a case-by-case basis.

In 2007, we filed an amicus brief in the Georgia Supreme Court on behalf of Troy Davis, wherein we suggested a contextual analysis:

There are a number of common sense factors that amici believe would assist the Court in differentiating between untrustworthy recantations and those that may well signal a wrongful conviction.  The factors, suggested by a review of those cases with known reliable recantations, are: 1) the recanting witness’s motivation, including any relationship the witness may have to the defendant and the circumstances surrounding the decision to recant; 2) the reliability of the original trial testimony and whether the recantation is corroborated by other facts known at trial; 3) the number of independent recantations and the degree of consistency among them; 4) the existence or absence of other material evidence of guilt.

The court would assess the reliability of the recantation by considering it in light of each of the factors.  While some recantations may be easily and consistently categorized as either reliable or unreliable as each factor is considered, undoubtedly, there will be other recantations that perform well in some categories and not so well in others.  Those recantations will require the court to “balance” the results from each factor and use its discretion to determine whether there are sufficient indicia of reliability to warrant a new trial.

Certainly our judges should be as capable as our jurors when it comes to determining which version–if either–is to be trusted.