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 States 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 theres 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 cant -- 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 thats 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
its 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 defendants 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 its 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 thats -- that is the argument. It's the second alternative reason
the circuit court concluded that relief should be denied. And to me its --
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 defendants 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.
