ASSC (Hannah): The oral argument today is, uh, CR 08-1493, uh, Damien Wayne Echols v. the State of Arkansas. At this time the court would note that the Justice Elana Wills is not participating; is recused in this matter. Governor Mike Beebe has appointed the Honorable Jeff Priebe, attorney here in Little Rock, AR uh to serve and replace and he will be participating uh in this case. At this time the court would recognize the uh counsel for appellant.
 
Riordan: Good morning your Honors, if it please the court my name is Dennis Riordan. I represent appellant -- petitioner appellant Echols, and I will be reserving five minutes of my time today for rebuttal.

ASSC (Hannah): Very good. You may proceed.

Riordan: Thank you. Obviously, since my client is sentenced to death, the resolution of this case is of paramount importance to him. But the, uh, interests at stake here are far broader than those of Mr. Echols, or for that matter Mr. Baldwin, Mr. Misskelley, uh, his – uh -- co-defendants. And that is because we are dealing with pure questions of law about the interpretation of what I'll call the DNA statutes passed in 2001 by the AR legislature, since amended and codified at 116, um, uh, sections 201 to 208, um, of the AR code. We're dealing with pure questions that really have no reference in the first instance to the facts of this case dealing with the standards contained in those statutes. And the reason that the -- those questions are so important is that the State has taken a position that's directed not only about denying relief to Mr. Echols himself or Mr. Baldwin, Mr. Misskelley, but insuring that no one will ever be able to get relief under the AR DNA statutes. Um, it may seem that that would be, uh, hyperbolic on my part to say that the State's taken a position that no one could ever prevail under these. But I quote from their brief in the uh circuit court, "The State does not shrink from Echols' charge that relief may never be granted under this view of the statute [it's view]. But embraces it out of confidence that the AR criminal justice system does not convict the innocent." So we have a situation here where the AR legislature, as the Court has noted in a previous opinion, uh passed these statutes "in response to nationwide concerns that innocent persons were being imprisoned and even executed for crimes that they did not commit." The legislature in its wisdom recognized that the criminal justice system, like all human endeavors, sometimes is flawed. But the Attorney General has taken the position that the criminal justice system is free of error and therefore is effectively divine. And the way that it, it gets to the point where no one could possibly win is by interpreting the statute in such a way that there is a condition that must be met in order to get relief, but that condition is by definition impossible to meet. And the syllogism goes like this: The State says that DNA in itself can never prove innocent conclusively. For example, let's say you had a case in which there was an allegation that a defendant's semen was on the body of a victim in a rape-murder case. If you had DNA results which showed that was not the defendant's semen, that would not in the State's view prove innocence because the defendant could have been an aider and abettor, he could have been at the scene of the crime as they say. He could have been participating in the killing but didn't leave the semen. So DNA is never enough. There has to always be something more in the State’s view. And here's the Catch-22. However while something -- additional evidence of innocence is always required, by law it's not permitted. That is to say the State takes the position that the only evidence other than DNA allowed in a DNA action in this state is evidence of guilt. So DNA is never enough; you always need something more, but you're never allowed to put in anything more. Uh, all you're allowed to do is put in evidence of guilt. And it reiterates that position it did time and time again in the circuit court, and the circuit court adopted it. The circuit court said that in order to get relief you have to have DNA results which have to outweigh all evidence of guilt but no other evidence of innocence is permitted. And no other evidence of innocence is permitted in a situation in which this statute was passed to exonerate the innocent. Let me, let me illustrate the stunning results of that position --

ASSC (Brown): Let me ask you a question, uh, Mr. Riordan. Uh, let's focus on the evidence situation, and let's say that I agree with you that maybe the trial judge was in error with respect to just limiting the evidence to evidence of guilt. What evidence then would be considered? Would it be the evidence that was presented at the trial, or everything that's occurred over the last seventeen years?

Riordan: Well, the – the – the -- the –

ASSC (Brown): I'm talking about uh a consideration as to whether a new trial should be granted under the standard of compelling evidence. What evidence would be considered?

Riordan: Your Honor, we would submit that -- that the answer to that question lies in section 208(e)(3) which says that the court is to consider the DNA evidence along with all other evidence whether or not admitted at the first trial. Um, uh, there's no – there’s certainly nothing in the term "all" that would suggest all means only some and some means only evidence of guilt. But let me give you an example. Um, uh, we submitted um to the court a declaration from a witness um who at the – at the time of these offenses or soon thereafter in 1993 was interviewed by the police and stated that she was on the phone with Mr. Echols at 9:00 which would have made his participation in these crimes uh impossible.

ASSC (Brown): So that's really my question then. You're really talking about evidence aside from scientific evidence that would come in and be considered in determining whether a new trial should be granted or not.

Riordan: I – I certainly am, your Honor, and I just don't know how else one would rationally read the statute, uh, of 208 that says a new trial can be granted if -- if the court finds that the DNA evidence along with all other evidence whether or not admitted at the first trial, uh, establishes that by, uh, compelling evidence that an acquittal would result at a new trial.

ASSC (Brown): So your interpretation is it's not really just new scientific evidence, it's new evidence across the board that will come in.

Riordan: Absolutely, and let me give you uh an example of that, and this is -- consider it a hypothetical -- it's based on Mississippi's first exoneration, DNA exoneration which occurred only last week. That was a situation in which two individuals -- there was a terrible rape-murder uh which happened in front of the victim's uh child. Uh, two individuals gave statements that they were there, uh, and a third individual was the rapist. All three were uh convicted and sentenced to life in prison. In that case, uh eventually after twenty years DNA established that all three were excluded uh from the semen on the victim's body and furthermore that the DNA matched a convicted rapist who had been sent to prison two months after uh the -- this murder for committing another rape. Now the State's position would be that all you consider is the DNA evidence, and the fact that another person was the rapist and left the semen doesn't mean that these three individuals didn't participate as well. But in that case, your Honor, a couple of things are true. One, the victim's son said uh that it was one person who committed the murders -- he saw one person. And secondly the person in jail, while not actually admitting guilt, admitted that he did not know these three individuals at all.

ASSC (Brown): I understand. You understand where I'm coming from -- I'm trying to develop what the parameters would be as far as the evidence that would come in for a determination as to whether a new trial should be granted. If the court decided to grant a hearing on that.

Riordan: Your Honor, if we – if we look at 208 and it uses the word "consider". The court must consider the DNA evidence along with all evidence, uh, uh, whether or not admitted at the first trial. I don't think that it can be rationally read other than to say the court must consider -- that is place in the scale uh not only the evidence of guilt at the first trial but also all evidence which bears on the offenses. In the State's position, and this is stunning in a sense, is that if you have DNA evidence that turns to somebody else and that person admits they were the guilty party you can’t -- a court on a DNA action in AR can't consider that the confession exists.

ASSC (Brown): Yeah, and I'm trying to determine what you think should be considered. So it sounds like to me the trial judge would in effect conduct a, a bench trial, a new trial if you will to determine whether there should be a jury trial. Consider all the evidence.

Riordan: Well if, if there is a, uh, a conclusive scientific exclusion, that is that there's DNA evidence -- you know there was an allegation in this case initially the State's theory was that these boys had been sodomized and it would be simply impossible to sodomize eight-year-old boys without leaving genetic material behind indicating, uh, the, uh, who the violator was. So, uh, we're looking at a situation here in which the, the court would have to consider uh that the genetic material here uh excludes the defendants, there is no genetic material consistent with that. And then it would have to look at -- at other evidence. Now of course the court's going to have uh the power of relevancy to exclude uh material that it believes is un -- not probative. Um, all of this --

ASSC (Brown): Diligence. Does diligence come into play? Because this um act uh that we're talking about, the DNA statute, talks about due diligence. At some point, is there uh a point in time when new evidence should not be permitted? 

Riordan: Well, um – it, it -- it does indeed, your Honor. Um and uh in this case -- I mean one thing that we're dealing with here is that is that hopefully um technology and the criminal justice system will in a sense make DNA actions like this irrelevant because with the development of technology and it being available now as cases are prosecuted, we're not going to have old cases in which DNA is emerging for the first time. Um, but uh diligence can certainly be a consideration. In this case of course, um --

ASSC (Brown): I was really talking about the evidence other than the DNA, because I agree with you the technology is improving almost on a daily basis. But with respect to alibi and uh recanting testimony and the other evidence, is there a point where diligence does come into play?

Riordan: Well, I – I think you know under the normal consideration of probative versus prejudicial, it's always going to be a uh factor, your Honor. Uh but it obviously would have to be governed by considerations as to, um, uh -- For instance, in this case uh as an example I would submit, once DNA evidence uh became available which pointed in a certain direction, witnesses came forward to say I read about that DNA evidence; I realize now that I have evidence relevant to that in terms of the identity of a possible perpetrator other than these uh defendants. Uh the diligence test would be did the defendant move uh immediately to make uh use of that evidence as soon as it became available? Because the fact of the matter is that DNA evidence that couldn't have been uh obtained fifteen years now being obtained begins to make things relevant that – that – that connect up to other evidence that did not appear relevant fifteen years ago. So I -- would I say that a circuit court judge considering one of these actions can consider diligence as a factor in the probative value of evidence? Yes, your Honor, certainly. Certainly.

ASSC (Hannah): Mr. Riordan, uh as I understand with the argument that you're making here today is that uh you're talking about remanding this to the circuit court for a hearing, as opposed to granting uh a new trial. Is that correct?

Riordan: Well, your Honor, I thought a lot about that question because I knew it was coming, and the answer to this is, as you know that in our papers we've formally taken the position that this court uh could -- has enough uh evidence before it that would uh justify it ordering a new trial at this point. However, given that our position is that – that there's uh a weighing process here that should have gone on under the DNA statute and did not go on, we recognize that an appellate court particularly a court of last jurisdiction such as the AR Supreme Court, is not generally in the process of holding evidentiary hearings or weighing the credibility of evidence. It – it – it bestows that function on circuit courts. So we -- while I would not say we're abandoning the request – uh -- we believe that there will some day have to be a new trial order in this case, and the State will have to decide to go forward. It is in the interest of the State and certainly Mr. Echols that we get to that point as soon as possible. That said, we recognize that this court could fairly say uh there was an improper legal standard used below, there should have been an evidentiary hearing, but it is not our function as an appellate court to do that weighing process.

ASSC (Hannah): With that in mind and looking at the statute um that we're talking about here and the uh history of the statute, is that hearing -- does that come under 205 or is that the uh hearing that's provided in 205? Is that just dealing with whether or not DNA testing should be taken? Do we have to go to 208 and just say that that's kind of a common sense approach, or where do we get the authority to have a hearing?

Riordan: Well, I – you know -- The history -- procedural history of this case may be fairly unique. I – I think our position would be that effectively the – the – the steps contemplated by 205 or most of the steps have already been taken. And -- and we're past that stage. We're in the stage in which DNA testing has been done, there's genetic material that excludes the defendants as possible contributors. Uh, the court is in a position where it now under 208 uh -- but there is evidence which turns on questions of credibility and weight and so forth, new evidence not available at the trial, so therefore an evidentiary hearing uh is required to allow the court to make the determination uh called for by section 208 which is whether the DNA evidence when combined with all other evidence uh is sufficiently compelling that the defendant would be acquitted at a new trial. So yes, I think we're into a hearing under 208, your Honor.

ASSC (Brown): And at that hearing, of course, I guess the Misskelley confession would come in against Mr. Echols.

Riordan: Yes. Even if it's inadmissible at – at

ASSC (Brown): [Talking over Riordan] at trial.

Riordan: -- a formal trial it is – it is uh appropriate. In the same way that the government -- we can present evidence that wasn't before uh the trial prior fact(?), the government could as well. And we would welcome the opportunity -- and this is why weighing is required -- to have the court weigh that confession given both the DNA evidence which refutes uh important parts of it and the new forensic evidence which absolutely refutes key parts of all of the statements given by Mr. uh Mr. Misskelley. But no, we – we recognize that inadmissible evidence at trial may be admissible for the purpose of this uh – at this hearing under 208.

ASSC (Danielson): Counsel, what about the allegations of juror misconduct? Would that also be factored in?

Riordan: Well that – that’s an interesting and novel question. My response to that, your Honor, would be this -- to the extent -- the State has maintained all along and the district court -- the circuit court did as well, that the reason you can't possibly consider any other evidence other than DNA is all of the evidence admitted at trial of guilt has to be deemed credible because there was a valid conviction. To the extent that the State maintains that it's a factor that the defendant was validly convicted on a prior occasion, I think it certainly opens the door to uh the court considering well I can't weigh that too heavily if – if I find that there was blatant juror misconduct which calls into question the original uh validity of that. So I think in some ways its admissibility is going to be um uh perhaps determined by the position the State would take at a new evidentiary hearing.

ASSC: Mr. Riordan, your time has expired and unless you want to continue to answer questions, but uh you may reserve the rest of the time --

Riordan: I'll reserve the rest of my time. Thank you very much, your Honor.

ASSC (Brown): When you come back I would like to hear your thoughts on the Rule 37 and the Error Coram Nobis and whether the fact that Mr. Echols has availed himself of those two avenues whether those issues can be raised again in this particular context. You don't have to answer that right now though.

Riordan: Thank you, your Honor. I'll contemplate that question. Thank you.

ASSC: Thank you very much.

ASSC (Hannah): Court will recognize counsel for appellee.

Raupp: Good morning, may it please the court. My name is David Raupp from the attorney general's office here on behalf of the appallee, the State of Arkansas uh asking for an affirmance of a particular order. And if the court will indulge me a few moments of context. I don't think that the Court is here to examine or the parties have brought this case as an academic review of a statute in the abstract. It's on a real order on a real case on a real motion purporting to get relief under the statute. So by way of a little context let me first begin by saying a remand here, as Mr. Riordan suggests, is a retrial. And this statute does not call for a retrial. It's not about trying somebody again, for the State to prove guilt twice or for the defendant to disprove guilt or to reweigh the credibility of the State's proof of guilt. It's a – it’s a statute that permits a defendant to play a trump card if you will despite the validity of a conviction. A trump card that would permit him to avoid and get relief from otherwise valid convictions on proof, scientific proof, that he's brought to a Court that he's innocent. Now Mr. Echols has been to this Court, as Justice Brown intimated, several times in the last decade challenging his conviction directly and collaterally and despite the failure of those challenges the legislature has indulged an opportunity for defendants like him and others to present scientific evidence hereby DNA testing. That despite that validity he nevertheless can demonstrate that he's innocent. The question is did he do that in circuit court, and the circuit court was correct that he had not done that for three reasons. The proof that he brought was built on a house of cards that was based on further review of proceedings and challenges that he had made in the past. Rule 37 challenges about counsel's performance, direct appeal challenges about the adequacy of proof and even coram nobis challenges about the jury verdict. Very interesting question, is a juror – is one juror or fact finder supposed to sit in judgment of a second? That seems to be the scope of a remand and the weight of the evidence under the statute. But the circuit court wisely stepped back and was correct for three reasons. And these are the statutory interpretation issues that admittedly are here, but they're here on a live order and real – real tested briefing below. The court was correct because the proof -- the DNA testing results that Mr. Echols brought were inconclusive as to his claim of actual innocence. And the court was right to consider that inconclusive standard under 16-112-208 (b) because Mr. Echols --

ASSC (Brown): Course the other side says they were conclusive, at least with respect of what the four items that were tested which excluded them as being connected with those items.

Raupp: The scientific testing was conclusive as accepted. Now it wasn't tested at a hearing. The State might at a hearing test the results and the validity of those results. But for purposes of pleading, yes, the results were conclusive, but the question is were they inconclusive as to the claim of actual innocence. The statute doesn't define that, and the statute permits testing now only if you can demonstrate a reasonable probability that you're not guilty of the crime. But Mr. Echols got testing under an earlier version --

ASSC (Danielson): Let me ask you a question. The trial clearly interpreted that statute that we're talking about in terms of being legally inconclusive. Would you agree that that terminology, really the reading -- the clear reading of that statute the intent is to be read scientifically inconclusive? Would you agree with that?

Raupp: Not in this case, I wouldn't agree with that. And if you'll let me explain. It's because of the timing of the testing that was acceded to by the State in this case under the original version of the statute which did not contain the 202 (8)(b), forgive the numbers, but the testing requirement that you can obtain testing at a hearing under 205 if you can demonstrate at a hearing under 205 that you have test results that will demonstrate a reasonable probability that you didn't commit the offense. That's with the -- the threshold is after 2005. But Mr. Echols got testing before that time, so the circuit court said you got testing without any test in this court, without any consideration of this court whether you can reach that threshold. And the court was in a difficult position; the statute doesn't explain what inconclusive means. Going forward it might be pretty obvious that anybody who got test results after 2005 necessarily met that standard because the standard would have been applied to their claim -- their claim that the results would demonstrate they didn't commit the crime. Now Mr. Echols didn't get that, so I think the court fairly said I need to determine if the testing that you obtain is legally inconclusive as to your claim um before I can let you go forward under section 208 which didn't exist at the time you tested -- at the time you were permitted to test evidence. And a reasonable probability is one that undermines confidence in the outcome. And let's go to a little bit about testing the reasonable probability of a different outcome the way we might do it in Strickland(?). We would look at -- 

ASSC (Priebe): Counselor, isn't your interpretation of subsection (b) then in direct conflict with subsection (e)?

Raupp: Not in this case. Not in this case. I think going forward anybody that gets testing will go to -- anybody that gets testing that is conclusive has the opportunity to go to (e). But I think the circuit court was in a very difficult position to try to determine what to do with testing that the State disputed would meet the testing standard today. But I'm certainly willing to uh argue the alternative um that the circuit court concluded which was that the um appellant was not entitled to relief under (e) either. And not entitled to relief even under his most favorable standard. To do that under any of the three alternatives the circuit court considered, whether it's was there a reasonable probability of a different outcome that would satisfy the initial testing --

ASSC (Hannah): So are you now telling us that section 202 I think is the testing, that we should apply that retroactively? 

Raupp: Apply it retroactively? I'm sorry?

ASSC (Hannah): I understood – I understood what the trial court did below that he was applying that testing standard retroactively. After it had already been done.

Raupp: I think he was – I think he was determining what to do with the results. And if – if -- you could characterize that as applying it retroactively, but he's looking at the only new section to determine what to do with DNA testing results is added at 208 in 2005. And the circuit court knows that the results -- the testing results that were permitted were not evaluated under the uh standards that get you to 208 in the first place. So, and I don't want to overcomplicate it, I recognize that the circuit court was bound with -- with test results that predated the amendment to the statute but nevertheless he had to evaluate whether or not relief could be available. And to get back to Justice Priebe's point, that is intention(?) with (e)(3) which is why I think the circuit court rightly offered alternative conclusions and said look I've got this positive proof of identity with an admission from the defendant --

ASSC (Brown): Didn't he in all three of his scenarios, didn't he tie the DNA evidence, compare it to evidence of guilt? As opposed to all evidence? In his scenarios? I mean that's what he was weighing the DNA – the new DNA evidence against -- evidence of guilt at the trial.

Raupp: Your Honor, in the first two scenarios he was. I think in the last scenario he indulged the interpretation of (e)(3) and the standard of compelling evidence that the petitioner advanced which was that it's essentially the standard of the federal gateway standard of um whether or not by a uh preponderance of the evidence you can demonstrate that no reasonable juror would convict. So in that very last standard the court said I'm considering everything.

ASSC (Brown): But then he in that same paragraph he refers to guilt. Like he was tying it back --

Raupp: Now you're talking about the second paragraph of the order?

ASSC (Brown): I'm talking about the third scenario that you're eluding to right now.   

Raupp: Well he certainly did consider evidence of guilt as well, yes. I think – I think in the -- undoubtedly in each scenario the court considered evidence of guilt, yes.

ASSC (Brown): Well I'm going to ask you the same question that I asked uh Mr. Riordan and that is what evidence -- assuming that we disagree with your position here and we feel that a hearing should take place what evidence is appropriate? You alluded to the fact that it would be comparable to a new trial -- bench trial I mean if everything comes in. But what evidence do you think would be appropriate in a new hearing on the DNA evidence?

Raupp: I think what precisely (e)(3) calls for in light of the animating purpose of the statute and this Court's pronouncements about what the statute's designed to do. The animating purpose of this statute and the Court said this in Johnson is not to do away with finality of judgments but to test evidence of innocence. So the statute is designed to test evidence of innocence against that evidence of guilt that exists both from the trial and outside the trial. And, and you know that --

ASSC (Brown): Well doesn't that include the last seventeen years?

Raupp: No. Well, I'm sorry, does it include the last --

ASSC (Brown): The last seventeen years. Are you limiting the evidence that can be presented in this hearing if one is uh recommended by this Court? Are you limiting that to the evidence that was available at the trial?

Raupp: I think it's evidence available whether it was, could be introduced at trial or not. Now if you're asking is there a timeline that would cut off -- for example the State believes that Misskelley's immunized statement given to prosecutors could be used. That was not available at the time of trial. It was taken after trial, but it certainly is evidence of guilt that is probative on identity. Remember we're dealing with identity. Um this is not a case of dispute whether there's been a capital crime here, it's identity. And the circuit court considered in each of its three alternatives the best criminal evidence of identity which is admission by the defendant. And you can dispute the credibility of that admission; you can dispute his lawyer's effectiveness in doing it; you can dispute the defendant’s competence in making it. All of which Mr. Echols has done before in direct appeal, collateral review and error coram nobis. So, Justice Brown, I think what I'm saying is the limit -- the limit is not to challenges that can previously -- you can't bring in evidence that is just further reweighing of evidence that the State's post-conviction processes permit you to make in other forums, in Rule 37, on direct appeal. We look at a statute that is designed for a truly small universe of cases. Cases in which we know that despite a valid judgment of conviction that has never been reversed by any court, we're going to be able to prove innocence. Now what does it take to prove innocence against -- what does it take to disprove identity if you will? What does it take to demonstrate --

ASSC (Brown): You and Mr. Riordan have a fundamental disagreement about this particular clause: when considered with all other evidence in the case regardless of whether the evidence was introduced at trial. Isn't that the key phrase?

Raupp: It is, and we do have a fundamental disagreement. And I think -- I think that his -- his effort to suggest that we look at this as though there's no statutory purpose behind this, there's no animating purpose to know what the legislature means. Certainly just as we argue in the brief in this court -- if the legislature had said I want the circuit courts to consider evidence that's exculpatory and inculpatory it could have said so. That's the express standard from cases like Schlup v Delo that are relied on in House v Bell. It's expressed in the opinions of the courts that establish those jurisprudential standards for the gateway standard of whether or not you can prove innocence. The legislature certainly could have adopted that view, and when the legislature passed the amendments in 2005 Johnson had been decided in 2004. This court had already opined this is a statute about testing the evidence of innocence. And that's a fair --

ASSC (Hannah): Mr. Raupp, as I understand the argument that's being made uh by the uh appellant is that your position, the State's position is that the only time this statute is applicable is when you have DNA testing which would exclude uh the convicted defendant and would tag or identify who the uh assailant was - i.e. such as a rape case. And you think -- is he right? Is there any other scenario where this uh statute would allow someone to have a new trial that's been convicted of a crime?

Raupp: I think it is a very small universe of cases. I don't think as our brief explains that Mr. Echols is responsible for naming another defendant. You have to remember context again on the – on the proof of guilt that we have. He's already named himself. He's named himself, and the criminal justice system has evaluated whether or not a jury correctly relied on that, whether his lawyers were effective collaterally – and challenge -- the collateral challenge whether the lawyers were effective in letting that evidence be used and convict him. And also even determining whether there was juror misconduct -- rejecting the claim that you could raise it. But all along the way the criminal justice system has evaluated that and I think, yes, it is that small of a universe of cases where he's got to bring in something by way of DNA test results that says my admission of identity is disproved, I couldn't have done this. It couldn't be me. Now certainly he would like to have a much freer reign to go back to court and bring in seventeen years worth of claims that have been made and retry his case. But it would be remarkable if a statute whose animating purpose was to free the innocent ultimately just requires a second trial. 

ASSC (Priebe): Counselor, what harm is there in allowing him to present the evidence from the last seventeen years? 

Raupp: I'm sorry?

ASSC (Priebe): What harm is there to -- in allowing him to present all evidence?

Raupp: Well the harm is in the finality of a criminal judgment that is not demonstrated to have any constitutional or procedural defect and just to try it again. I mean you're suggesting, it sounds to me Justice Priebe, as though every fifteen or seventeen years or so we really ought to try cases again to reestablish guilt. And I suppose a legislative judgment could be made to that effect, that the advances in technology should require proof again. But I think – I think it's clear that the animating purpose here is not to retry. So the harm is to the criminal justice system's interest in finality and the work that gets done in evaluating whether or not justice has been served in each of the forums that Mr. Echols has been through already. Now the question is can he demonstrate his own innocence?

ASSC (Danielson): Counsel you seem to be saying that the testing itself has to prove your innocence, and that's the only time you can have a hearing or a new trial. And if that were true, if the testing proved your innocence you wouldn't need a new trial. You wouldn't need a hearing. I'm having trouble following you. If the testing has to prove you're innocent, why would you even need a hearing?

Raupp: Yeah, I think you have to go back to context, your Honor.

ASSC (Danielson): Well you can go to context, but you still have to get around the clear wording -- we have to deal with the clear meaning of the statute. I understand your context argument, but we still have to deal with the clear language of the statute.

Raupp: Well the statute suggests you can get a hearing if you can demonstrate that your judgment of guilt would lead to um an acquittal by compelling evidence. Now what compelling means is another question the court has to struggle with and the circuit court had to struggle with. But what I'm saying is that you're going to make that determination -- the statute doesn't operate without the context. It doesn't operate without knowing what the trial proof was. Perhaps an, you know, example would serve. Suppose that Mr. Echols had been convicted only on circumstantial evidence of his identity, his proximity to the crime um and uh perhaps uh a brand of cigarettes left at the crime scene that he was known to favor. And there were no other perpetrators, perhaps one killing. Circumstantial proof that he was there, only that. DNA testing of a cigarette demonstrates it wasn't his cigarette. Maybe we have a closer question. I'm not conceding it gets a retrial there, but the circumstantial proof of identity is challenged strongly by DNA evidence that's also inferential circumstantial proof contradicting it. But what we're dealing with here is a much greater probative demonstration of identity, his own admission. And – and of course Mr. Riordan wants to overlook that and it's easy to overlook that and think that DNA evidence is going to better than an admission. DNA evidence may well be a test of identity. It may well be strong disproof of identity. But the court and the justice system has to return to the admission by Mr. Echols and in this case the admissions by his codefendants. But that's why I say context does matter here. I recognize that – that there will be circumstantial identity cases for which DNA evidence will be stronger proof. The State's submission is that admitted identity is far stronger and requires nearly a showing of innocence because we're dealing with an admission of the crime tested through the justice system for the last sixteen years and now we're dealing with whether or not DNA evidence can call that identity into doubt. What level of proof would reasonably be required in a – in a system that respects the finality of judgment as this court has repeated in cases like Johnson. As this court has repeated in cases like Orndorff saying we're not going to reweigh whether a particular witness should have been tested as to credibility about a particular --

ASSC (Danielson): You're putting a lot of weight on a confession, but what do you do under your scenario with a situation where let's say that -- that confession has been recanted? Later on.

Raupp: Well the recantation of it should be tested in the criminal justice system. A recantation is not scientific evidence, right? The recantation isn't scientific proof that the legislature says let's consider whether you've recanted. Lets -- I mean I -- recantations are common both from victims and defendants, and I think it’s – I think it would be extraordinary if the legislature permitted recantation evidence to be considered alongside um unremarkable DNA evidence. --

ASSC (Hannah): You're saying recantation would not be other evidence or part of all evidence to be considered?

Raupp: I'm hard-pressed to see – to see where it would come in. Um knowing that that would be proof that would be or a claim rather that might be raised directly or collaterally, depending when the recantation came in. It might be that that recantation has been tested at trial by a jury. It might be that that recantation is attempted to be brought in um through an ineffective assistance claim. I mean it's going to be tested elsewhere is my point. And, no, I don't think it comes in in a statute designed to let DNA testing exonerate people.

ASSC (Sheffield): Sounds as if your argument is that all evidence of guilt will be considered but it's going to be extremely difficult to admit all other evidence that may have been exculpatory.

Raupp: I think that’s -- that is the argument. It's the second alternative reason the circuit court concluded that relief should be denied. And to me it’s -- that's a reasonable statute.

ASSC (Sheffield): But where in 208(e)(3) does it say all other evidence of guilt?

Raupp: Well it says it – it says it by the clause that's set off: when considered with all the evidence in the case regardless of whether the evidence was introduced at trial. That clause separates the operative grammatical elements of the sentence which are a new trial if the DNA test results establish by compelling evidence that a new trial would result in acquittal. I think – I think that's not an uncommon grammatical construction to say we have a DNA testing statute animated by letting people prove they're innocence, and you'll get a hearing if your DNA test results establish by compelling evidence that the trial would result in acquittal. And then you set off a clause that is effectively and oppositional clause, what is it you consider in opposition. And I understand that it doesn't expressly say that, but you have to interpret the statute in light of um its animating purpose. And you have to interpret in light of rules of grammar. I mean I think that's a very fair construction uh to say that a statute that says your results must compel that you wouldn't be found guilty when considered against other evidence. What other evidence would a legislature expect people to consider when it's creating a remedy that lets you get a new trial without any demonstration of error in the way you were convicted. Right? This is not a legislative determination that anything -- that a new trial is granted because your conviction is invalid under any constitutional provision. It's a matter of legislative grace. And a good idea. I mean it's not -- nobody's disputing that is an appropriate way. But the test of it, the measure of it should be a very high bar.

ASSC (Priebe): If the legislature had wanted limitations, couldn't they have easily be written into section (e)(3)?

Raupp: I – I suppose that's true, Justice Priebe, but just as I suggested earlier I think the legislature just as easily could have included inculpatory evidence which is the way the federal standard reads. The federal case law which was in existence at the time this statute was adopted. This court's interpretation of the statute as one designed to test evidence of innocence was in existence at the time this statute was amended and this provision was adopted. So just as easily the legislature could have said we intend exculpatory and inculpatory just like the federal standard. But admittedly they have a clause that requires some interpretation. I don't think it's plain on its face at all. And for interpretation this court has consistently looked to the purpose behind a statute. And this statute's purpose is to permit a forum for a defendant to prove his innocence. Not to --

ASSC (Brown): Is there any other scientific testing that's pending? Um, there was something about uh expert affidavits about animal predation and uh the possibility of maybe fiber testing, and I don't know if there's additional DNA testing that's contemplated. But uh what is your understanding as to what's percolating out there in the sense of additional testing?

Raupp: Well in the circuit court proceeding under the DNA testing statute it's closed. Um whether either party takes test results and pursues additional test results for the other forums in which this case is litigated, um, uh principally for Mr. Echols in federal court and potentially um, uh depending on the outcome of the appeals of the codefendants in Rule 37, perhaps they're also in federal court. There may be additional testing.

ASSC (Hannah): I believe there is a request in the Baldwin case, is there not?

Raupp: I think Baldwin -- I think that's right your Honor that the circuit court's order there rejected additional testing for reasons similar to that relief was granted. I think the order makes clear that additional testing was not sought in this -- at the particular time.

ASSC (Brown): But he denied animal uh predation testing, the circuit judge did. 

Raupp: Yes.

ASSC (Brown): So is that an issue before us today?

Raupp: Uh, no, the question would be what value would -- No, the court doesn't have to answer whether there should be additional testing on that.

ASSC (Hannah): Your time has expired. Is there any other questions of the court? Thank you very much.

Raupp: Thanks the State asks that you affirm for any of the alternative reasons the circuit court ordered.

ASSC (Hannah): Thank you very much. At this time the court would recognize counsel for appellant to conclude his argument.

Riordan: Thank you your Honors, and I'm going to get to Justice Brown's pending inquiry. But I had talked about this case far surpassing the interests of these three defendants in DNA actions and implicating other uh wrongfully convicted. But given the State's position its – its consequences are far greater than that. Because uh the State has really proposed an Orwellian interpretation of the term "all." It has said that when the legislature uses the word "all" it actually is meaningless because uh all it doesn't -- for instance they could say that doesn't mean documentary evidence, no documentary evidence isn't uh permitted, expert opinion isn't permitted because it uses the word all evidence and if it meant all to include documentary, expert, so forth it would have had to have a laundry list of what is contained within the term "all." All means all. And the State seems to say well all, that's just impossible all evidence including evidence of innocence. Why would the legislature include evidence of innocence, all evidence of innocence in an act uh specifically passed for the purpose of protecting the innocent. So all simply means all. It means uh all evidence along with the uh DNA evidence. And let me give you an example of that. We're perfectly prepared to concede that a Misskelley statement which he gave after his trial uh which didn't come in at his trial or the defendant’s trial, couldn't come it at a new trial of the defendants under the uh Bruton rule nonetheless -- or Crawford -- nonetheless comes in for the purpose of this proceeding.

ASSC (Brown): Weren't there three confessions? I mean one made to the police, maybe two made to the police and then the one after the trial which was in the nature of a deposition.

Riordan: That's the one that I'm referring to.

ASSC (Brown): Yeah, right.

Riordan: That was taken before the Echols trial. Let that come in. Fine. What it uh -- we would submit that Misskelley was in a desperate attempt at that point, uh, mentally handicapped to deal with his predicament, trying to tell people that he saw what he had heard at trial. He gives a description of an injury by knife uh to one of the victims that when Dr. Peretti, the State's witness, testifies at trial his testimony makes it clear that Misskelley's description of this is absolutely preposterous and ridiculous. And the new forensic evidence uh bolsters that completely. So it certainly wouldn't be fair or sensible in a uh proceeding designed to protect the innocent to let that statement in, uh new statement in without the evidence -- In fact, even though Peretti's testimony was at Echols' trial the government's position is the court couldn't even consider that because it would be evidence of – of innocence in the context of the new statement.

ASSC (Priebe): Counselor, are you saying that the subsequent Misskelley confession can come into evidence under (e)(3)?

Riordan: I – I think we have to say that, your Honor. I think we have to say that. Because all evidence is all evidence and it says whether or not admitted at trial. And – and we would welcome the opportunity to introduce what I think is uh devastating forensic evidence which demonstrates that it's false. And that brings us to the question of false statements or false confessions. The State has taken the position here in its briefing that you never even get to an evidentiary hearing, you don't even get DNA testing if there's been what it calls a statement – a confession or an admission because that has to be deemed valid and that would rebut any DNA evidence. We know and the amicus brief submitted by uh Northwestern in this case demonstrates that in 25% of the uh exonerations in this country, the 248 exonerations in this country, 25% of them involve false confessions. So were we to say that the legislature um in trying to protect the innocent uh excluded 25% of people who have been proven innocent by DNA testing, and that was true in the Mississippi case that I mentioned. Again it wouldn't honor the legislative intent. It would pervert it. It would turn its purpose on its head. Justice Brown you asked what is the effect of prior um uh Rule 37 proceedings --

ASSC (Brown): And the Error Coram Nobis.

Riordan: Error Coram Nobis. And I was thinking about this. Um take the following context: Someone brings a Rule 37. They've been convicted of a heinous murder, and they bring a Rule 37. They have a witness who says I was in a bar with Joe Smith, and Joe Smith actually said he was the person who did it. And a -- the court could quite reasonably say well you haven't put Mr. Smith on the stand and you know that sort of bar talk could go on. I don't think that that is convincing. I deny your Rule 37. Let's say we get a DNA action. The DNA action comes along, whose DNA is it? Joe Smith's. OK uh -- should that DNA evidence that excludes the defendant, it's consistent with Joe Smith -- let's say it's consistent mitochondrial but not uh definitive. The State's position is you can't put the evidence that excludes the defendant, points in the direction with Joe Smith together with his uh admission in the Rule 37 because it was already litigated and rejected in the Rule 37. I would submit your Honor that evidence which, even if it was in some way broached in a prior proceeding relates to and reinforces evidence -- new evidence, the DNA evidence and other new evidence in the all other evidence situation would – would be admissible. I would think a court would have the power to say there are certain things litigated in the prior um proceeding which really don't come under this umbrella of uh actual innocence at all. I can think of --

ASSC (Brown): Well for example I think Error Coram Nobis is much more limited than the expansive interpretation of this particular section that we're talking about.

Riordan: I – it -- it absolutely is, your Honor, but we have to face -- the government seems to say we have to take the term for instance "all" and read it in such a way that it uh provides the same sort of or limits actions in the same sort of way that a writ of corum nobis does. The fact of the matter is, as this court said, out of a national concern about the wrongly convicted the legislature took a revolutionary step and not only in 2001 but in 2005 in embracing the federal innocence protection act. 208 is just lifted out of the federal act, and it's because it was lifted out of the federal act and put in the AR statutes that AR now can receive federal money for DNA testing. So we -- we have to bow to the legislature, and they obviously intended to make a major um uh shift. There were many conditions for bringing these. I mean it can uh only deal with identity; there is a diligence requirement. These are limited actions, but we have to face that there's no question that the legislature intended other forms of finality or as understood before to be breached by this new uh legislative regime.

ASSC (Hannah): Mr. Riordan, you're time has expired. Is there any other questions of the court? Thank you very much.

Riordan: I thank the Court for its attention, and we would ask for a reversal. We recognize that the Court may feel that the appropriate remedy is a remand to the trial court for an evidentiary hearing. Thank you, your Honor.

ASSC (Hannah): Thank you very much.