1. No category

SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: SECOND DEPARTMENT
THE PEOPLE OF THE STATE OF NEW
YORK,
2009-09120, 2009-11760, 2009-11761
Respondent,
Queens Co. md. No. 2213/92
-against-
NOTICE OF MOTION OF
INNOCENCE NETWORK FOR LEAVE
TO FILE BRIEF AS AMICUS CURIAE
ERIC JENKINS,
Defendant-Appellant.
x
PLEASE TAKE NOTICE, that upon the annexed affirmation of David A. Snider, dated April 18,
2011 (the “Snider Affirmation”), and attached exhibits thereto, the Innocence Network, by and
through its counsel, will move this Court, at a term for motions to be held on Friday, April 29,
2011, at the Appellate Division Courthouse, 45 Monroe Place, Brooklyn, New York, 11201, at
9:30 a.m., or as soon thereafter as counsel can be heard, for an order granting the Innocence
Network leave to file a brief as amicus curiae in support of Defendant-Appellant Eric Jenkins, a
copy of which is attached as Exhibit A to the Snider Affirmation.
Dated: April 18, 2011
New York, New York
MORGAN, LEWIS & BOCKIUS LLP
By:
Keith A. Findley
President, INNOCENCE NETWORK
University of Wisconsin Law School
Madison, WI 53706-1399
Tel: (608) 262-4763
Lee R. Caidwell
Priscilla Marquez
David A. Snider
101 Park Avenue
New York, NY 10178
Tel: (212) 309-6000
Fax: (212) 309-6001
Attorneys for Amicus Curiae
Innocence Network
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: SECOND DEPARTMENT
THE PEOPLE OF THE STATE OF NEW
YORK,
2009-09120, 2009-11760, 2009-11761
Respondent,
Queens Co. md. No. 2213/92
-againstERIC JENKINS,
AFFIRMATION OF DAVID A. SNIDER
IN SUPPORT OF MOTION OF
INNOCENCE NETWORK FOR LEAVE
TO FILE BRIEF AS AMICUS CURIAE
Defendant-Appellant.
x
STATE OF NEW YORK
)
ss.:
COUNTY OF NEW YORK
)
DAVID A. SNIDER, an attorney duly admitted to practice in the State of New York,
hereby affirms under penalty of perjury as follows:
1. I am an associate of the firm Morgan, Lewis & Bockius LLP, counsel for the
Innocence Network (the “Network”). I submit this affirmation in support of the Network in its
motion for leave to file a brief as amicus curiae before this Court on behalf of Defendant
Appellant Eric Jenkins.
2. Attached hereto as Exhibit A is a true and correct copy of a brief that the Network
seeks leave to file as amicus curiae.
3. Pursuant to 22 N.Y.C.R.R.
§ 670.5(d)(1), attached hereto as Exhibit B is a true and
correct copy of each of the three orders from which Defendant-Appellant Eric Jenkins appeals.
These three orders are from the Supreme Court, Queens County, dated August 10, 2009,
September 18, 2009, and September 29, 2009, respectively, denying Defendant-Appellant’s
motion to vacate judgment (collectively, the “Orders”).
4. Pursuant to 22 N.Y.C.R.R.
§
670.5(d)(2), attached hereto as Exhibit C is a true and
correct copy of two orders granting leave to appeal the Orders.
5. The Network seeks such leave to further its advocacy. The Network is an association
of organizations dedicated to providing pro bono legal and investigative services to prisoners for
whom post-conviction evidence can provide conclusive proof of innocence. The 63 current
members of the Network represent hundreds of prisoners with innocence claims in all 50 states
and the District of Columbia, as well as Canada, the United Kingdom, Australia, and New
Zealand. The Network and its member organizations are also devoted to improving the accuracy
and reliability of the criminal justice system in future cases. Drawing on lessons from cases
where innocent individuals have been wrongfully convicted, the Network promotes study and
reform designed to enhance the truth-seeking functions of the criminal justice system to ensure
that future wrongful convictions are prevented.
6. Through its work, the Network has found that false testimony by cooperating
witnesses plays a substantial role in wrongful convictions. Indeed, in some 15% of the cases in
which post-conviction DNA evidence has been used to demonstrate the actual innocence of the
person convicted, there had been perjured testimony at trial by a cooperating witness or
informant. Those cases highlight the degree to which perjured testimony from cooperating
witnesses can corrupt our system ofjustice and the necessity of subjecting such testimony to the
scrutiny this Court has recognized to be essential.
7. In addition, through its work with DNA exoneration cases, the Network has also
2
shown that non-DNA evidence can lead to the vacatur of wrongful convictions. Whether that
new evidence is the recantation of a witness’s prior statements or the discovery that the
prosecution neglected to disclose exculpatory evidence to the defendant, the Network’s goal is to
make courts aware of the importance of giving a defendant the opportunity to present this new
evidence.
8. The Network does not have a private interest in this case. Rather, it requests
permission to file a brief as amicus curiae in this matter so that it may present its position as to
the correct rule of law and offer information on studies showing the role that factors such as
incentivized testimony and withholding of material evidence play in wrongful convictions. The
Network has an interest in making the Court aware of the dangers of incentivized witnessed
testimony, which increases the likelihood of wrongful convictions, in advocating for the Court’s
decision to grant a new trial in light of material recantation evidence, and in ensuring compliance
withBradyv. Maryland, 373 U.S. 83(1963).
9. Two of the prosecution’s key witnesses against Defendant-Appellant Eric Jenkins
recanted their testimony after trial, and the prosecution failed to disclose Brady evidence relating
to one of these witnesses’ receipt of a promise of leniency before agreeing to testify. By failing
to disclose that the witness received a benefit for his testimony, the prosecutor misled the jury
into believing that the witness was a disinterested party. The Network’s experience in cases
involving these types of situations can assist the Court in evaluating such a claim.
3
10. WHEREFORE, I respectfully request that this Court grant the Innocence Network
leave to file a brief as amicus curiae in support of Defendant-Appellant Eric Jenkins, a copy of
which is attached hereto as Exhibit A.
David A. Snider
4
AFFIRMATION OF SERVICE
hereby affirm
I, David A. Snider, an attorney duly admitted to practice in the State of New York,
d NOTICE
that on this 18th day of April, 2011, I caused a true and correct copy of the annexe
AS AMICUS
OF MOTION OF INNOCENCE NETWORK FOR LEAVE TO FILE BRIEF
MOTION OF
CURIAE and AFFIRMATION OF DAVID A. SNIDER IN SUPPORT OF
CURIAE to be
INNOCENCE NETWORK FOR LEAVE TO FILE BRIEF AS AMICUS
served by hand delivery on the following counsel of record:
COUNSEL FOR RESPONDENT
COUNSEL FOR DEFENDANT-APPELLANT
Ushir Pandit, Esq.
Assistant District Attorney
District Attorney’s Office, Queens County
125-01 Queens Boulevard
Kew Gardens, New York 11415-1568
Ronald M. Daignault
Robins, Kaplan, Miller & Ciresi LLP
601 Lexington Avenue, Suite 3400
New York, N.Y. 10022-4611
David A. Crow
The Legal Aid Society
199 Water Street 5th Floor
New York, New York 10038
—
/
DavidA.Snider
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE DIVISION: SECOND DEPARTMENT
x
THE PEOPLE OF THE STATE OF:
NEW YORK,
Respondent,
200909120, 200911760, 200911761
-against-
Queens Co. md. No. 22 13/92
ERIC JENKINS,
Defendant-Appellant.
x
BRIEF OF AMICUS CURIAE INNOCENCE NETWORK IN SUPPORT
OF DEFENDANT-APPELLANT ERIC JENKINS
Keith A. Findley
Leslie R. Caidwell
Priscilla Marquez
President, INNocENcE NETWORK
MORGAN, LEWIS
University of Wisconsin Law School
Madison, WI 53706-1399
Tel: (608) 262-4763
101 Park Avenue
New York, NY 10178
Tel: (212) 309-6000
Fax: (212) 309-6001
& BocKlus LLP
Attorneysfor Amicus Curiae
Innocence Network
April, 2011
TABLE OF CONTENTS
Page
Interest of Amicus Curiae
.
1
Preliminary Statement
3
Argument
7
I.
II.
III.
Incentivized Testimony, as from the Witnesses Here, is
Inherently Unreliable, and the Use of Such Testimony Can
Have Dangerous Consequences
Mr. Jenkins Deserves a New Trial Because Recantation
Testimony is Newly Discovered Evidence
Mr. Jenkins Deserves a New Trial Because There is a
Reasonable Probability that Undisclosed Brady Material Would
Have Changed the Outcome of the Trial
8
11
15
22
Conclusion
11
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Brady v. Maryland,
373 U.S. 83 (1963)
passim
Giglio v. United States,
405 U.S. 150 (1972)
16
Kyles v. Whitley,
514 U.S.419 (1995)
19
Napue v. Illinois,
360 U.S. 264 (1959)
16
Smith v. Dugger,
565 So. 2d 1293 (Fla. 1990)
13
Strickler v. Greene,
527 U.S. 263 (1999)
15
United States v. Agurs,
427 U.S. 97 (1976)
15, 19
STATE CASES
People v. Dotson,
516 N.E.2d 718 (Iii. App. Ct. 1987)
People v. Hunter,
11 N.Y.3d 1,5(2008)
13
16,22
People v. May,
228 A.D.2d 523 (2dDep’t 1996)
18
People v. Novoa,
70 N.Y.2d 490 (1987)
17
People v. Ross,
43 A.D.3d 567, 569 (3d Dep’t),
appeal denied, 9 N.Y.3d 964 (2007)
17
People v. San torelli,
95 N.Y.2d 412 (2000)
15
People v. Savvides,
1 N.Y.2d 554 (1956)
18
111
TABLE OF AUTHORITIES
(continued)
Page
People v. Schulz,
4 N.Y.3d 521, 534 (2005)
12
People v. Shilitano,
218 N.Y. 161 (N.Y. 1916)
11
People v. Steadman,
82N.Y.2d1(1993)
16
People v. Tankleff
49 A.D.3d 160, 180-81 (2d Dep’t 2007)
14
People v. Wong,
11 A.D.3d 724, 725-26 (3d Dep’t 2004)
11
People v. Wright,
86 N.Y.2d 591 (1995)
16
STATUTES
C.P.L.
§ 440.10(g)
14
MISCELLANEOUS
Shawn Armbrust, Reevaluating Recanting Witnesses. Why the Red-Headed
Stepchild ofNew Evidence Deserves Another Look, 28 B.C. THIRD
WORLD L.J. 75 (2008)
7
Hugo Adam Bedau & Michael L. Radelet, Miscarriages ofJustice in
Potentially Capital Cases, 40 STAN. L. REv. 21(1987)
9
Discovery & Access to Evidence,
39 GEO. L.J. ANN. REv. C1UM. PROC. 356 (2010)
17
Final Report of the N. Y. State Bar Ass ‘n ‘s Task Force on Wrongful
Convictions, N.Y. STATE BAR Ass’N (2009), available at
http://www.nysba.org/Content/ContentFolders/TaskForceonWrongful
Convictions/FinalWrongfulConvictionsReport.pdf (last visited Apr.
15, 2011)
16, 18,20
Brandon L. Garrett, Judging Innocence,
108 COLUM. L. REv. 55 (2008)
2, 10
Bennett L. Gershman, Reflections on Brady v. Maryland,
47 S. TEX. L. REv. 685 (2006)
iv
20, 21
TABLE OF AUTHORITIES
(continued)
Page
Bennett L. Gershman, Litigating Brady v. Maryland: Games Prosecutors
Play, 57 CAsE W.REs.L.REv. 531 (2007)
Bruce A. Green & Ellen Yaroshefsky,
Prosecutorial Discretion & Post-Conviction Evidence ofInnocence,
6 Onjo ST. J. CRUvI. L. 467 (2009)
19
13, 14
Samuel R. Gross et al., Exonerations in the United States 1989 through
2003, 95 J. CluM. L. & CRIMiNOLOGY 523 (2005)
9
Innocence Project, Understanding the Causes, available at
http :!/www. innocenceproj ect. org/understand/Snitches-Informants .php
(last visited Apr. 11, 2011)
2
James S. Liebman, Jeffrey Fagan & Valerie West, A Broken System: Error
Rates in Capital Cases, 19 73-1995 (2000),
available at http://www2Jaw.columbia.edu/instructionalservices
/liebmanl
21
James S. Liebman, Jeffrey Fagan, Valerie West & Jonathan Lloyd,
Capital Attrition: Error Rates in Capital Cases, 19 73-1995,
78 TEX. L. REv. 1839 (2000)
20
Daniel S. Medwed, Up the River Without a Procedure: Innocent Prisoners
& Newly Discovered Non-DNA Evidence in State Courts,
47 Aiuz. L. REv. 655 (2005)
7
Daniel S. Medwed, The Innocent Prisoner’s Dilemma: Consequences of
Failing to Admit Guilt at Parole Hearings,
93 IOWA L. REv. 491 (2008)
3
Keith A. Mitchell, Note, Protecting Guiltless Guilty: Material Witness
Recantation & Modern Post-Conviction Remedies, 21 NEW ENG. L.
REv. 429 (1985-86)
13
Alexandra Natapoff, Beyond Unreliable: How Sn itches Contribute to
Wrongful Convictions, 37 GOLDEN GATE U. L. REv. 107 (2006)
New Perspectives on Brady & Other Disclosure Obligations: Report of the
Working Groups on Best Practices,
31 CARDOZOL.REV. 1961 (2010)
9
17
NEW YORK STATE JUSTICE TASK FORCE, available at
http://www.nyjusticetaskforce.com (last visited Apr. 11, 2011)
v
8
TABLE OF AUTHORITIES
(continued)
Page
Janice J. Repka, Comment, Rethinking the Standardfor New Trial Motions
Based Upon Recantations as Newly Discovered Evidence,
134 U. PA. L. REV. 1433 (1986)
12
Kathleen Ridolfi, Prosecutorial Misconduct: A Systemic Review, CAL.
COMM’N ON THE FAIR ADMIN. OF JUSTICE, 4, 8 (July 11, 2007),
available at http://www.cpda.org/publicarea/CCFAJ/ Professional
Responsibility-DAs-and-Defenders/Professional-Responsibility-DAs
and-Defenders/Ridolfi--Prosecutorial%20Misconduct%20A%20
systemic%20review.pdf
20
Richard A. Rosen, Innocence & Death, 82 N.C. L. REv. 61, 73 (2003)
BARRY SCHECK, PETER NEUFELD
& JIM DWYER, ACTUAL INNOCENCE (2000)
8
7
Rob Warden, The Snitch System: How Snitch Testimony Sent Randy Steidi
9, 10, 11
& Other Innocent Americans to Death Row (2004)
Joseph R. Weeks, No Wrong Without a Remedy: The Effective Enforcement
of the Duty ofProsecutors to Disclose Exculpatory Evidence,
22OKLA.CITYU.L.REV. 833 (1997)
18
Dr. Emily M. West, Court Findings ofProsecutorial Misconduct Claims in
Post-Conviction Appeals & Civil Suits Among the First 255 DNA
Exoneration Cases, INNOCENCE PROJECT (Aug. 2010),
http://www.innocenceproject.org/docs/Innocence
Project_Pros_Misconduct.pdf (last visited April 14, 2011)
21
vi
INTEREST OF AMICUS CURIAE
The Innocence Network requests permission to appear as amicus curiae in
this matter.
The Innocence Network (the Network) is an association of
organizations dedicated to providing pro bono legal and investigative services to
prisoners for whom post-conviction evidence can provide conclusive proof of
innocence.
The 63 current members of the Network represent hundreds of
prisoners with innocence claims in all 50 states and the District of Columbia, as
1 The Network
well as Canada, the United Kingdom, Australia, and New Zealand.
and its member organizations are also devoted to improving the accuracy and
reliability of the criminal justice system in future cases. Drawing on lessons from
cases where innocent individuals have been wrongfully convicted, the Network
promotes the study and reform designed to enhance the truth-seeking functions of
the criminal justice system to ensure that future wrongful convictions are
prevented.
The Network does not have private interests in this case. Rather, it requests
permission to appear as amicus curiae in this matter so that it may present its
position as to the correct rule of law and offer information on studies showing the
role that factors such as incentivized testimony and withholding of material
evidence play in wrongful convictions.
The member organizations are listed in the Addendum.
Through its work, the Network has found that false testimony from
informants plays a substantial role in wrongful convictions. Indeed, in some 15%
of the cases in which post-conviction DNA evidence has been used to demonstrate
the actual innocence of the person convicted, there had been testimony at trial by
2 Those cases highlight the degree to
an informant who was testifying falsely.
which perjured testimony from cooperating witnesses can corrupt our system of
justice and the necessity of subjecting such testimony to the scrutiny this Court has
recognized to be essential.
In addition, through its work with DNA exoneration cases, the Network has
also shown that non-DNA evidence can lead to the vacatur of wrongful
convictions.
Whether that new evidence is the recantation of a witness’s prior
statements or the discovery that the prosecution neglected to disclose exculpatory
evidence to the defendant, the Network’s goal is to make courts aware of the
importance of giving a defendant the opportunity to present this new evidence.
Here, the Network has an interest in making the Court aware of the dangers
of incentivized witness testimony, which increases the likelihood of wrongful
convictions, in advocating for the Court’s decision to grant a new trial in light of
available
Causes,
at
the
Project,
Understanding
Innocence
(last
visited
http ://www. innocenceproj ect. org/understand/Snitches-Informants.php
Apr. 11, 2011); see also Brandon L. Garrett, Judging Innocence, 108 COLUM. L.
REv. 55, 60, 86 (2008) (finding that leading types of evidence supporting wrongful
convictions of individuals who were later exonerated by DNA included erroneous
eyewitness identifications, informant testimony, and false confessions).
2
2
material recantation evidence, and in ensuring compliance with Brady v. Maryland,
373 U.S. 83 (1963). Therefore, it respectfully files this amicus curiae brief in
support of the appellate brief of Eric Jenkins.
T
3
PRELIMINARY STATEMEN
Eric Jenkins has been incarcerated for more than eighteen years in
connection with the death of Michael Reese on April 11, 1992. The procedural
history of this case includes four trials, findings of prosecutorial misconduct, the
granting of a habeas corpus petition, perjured testimony from the only eyewitness
in the case, and misconduct by the lead detective.
At the time of the shooting, Mr. Jenkins had no criminal record and was a
student at York College. Mr. Jenkins has always maintained his innocence. In
fact, during his long odyssey in the criminal justice system, Mr. Jenkins rejected
two offers of time-served for manslaughter that would have allowed him to walk
out of court. More recently, caught in an untenable Catch-22, the parole board has
refused to grant IVIr. Jenkins parole because he will not admit to the crime. See
Daniel S. Medwed, The Innocent Prisoner ‘s Dilemma: Consequences ofFailing to
Admit Guilt at Parole Hearings, 93 IowA L. REv. 491, 518-29 (2008).
In the interest of brevity, amicus curiae adopts by reference the statement of facts
set forth in the Defendant-Appellant’s brief.
3
The prosecution based its case primarily on the testimony of three
neighborhood drug dealers who were interrogated by police and told conflicting
accounts of the facts at trial:
(1)
David Morgan, a teenage drug dealer and one of Reese’s friends, who
testified under the benefit of a leniency agreement and was the
prosecution’s primary motive witness;
(2)
Garvey Napoleon, also a minor and a drug-dealer armed with a gun—
he was the sole, supposed eyewitness in the case, but he never
provided a description of Reese’s killer to the investigative detective;
instead, the detective showed Napoleon a single photo of Mr. Jenkins;
Napoleon later admitted that his statement that he knew Mr. Jenkins
before the murder was false and explained to defense investigators
that police coerced him, that he in fact could not identify the shooter,
and that he testified out of fear to save his own skin; and
(3)
Sean Gibson, another teenage drug dealer who refused to testify in the
first two trials without a deal, but showed up in the third and fourth
trials with a deal for a reduced sentence and testified that Mr. Jenkins
supposedly made incriminating statements about shooting Reese—
statements Gibson later recanted when he met with defense
investigators.
-
There was no physical evidence linking Mr. Jenkins to the crime.
Thus, the
prosecution’s case relied entirely on the testimony, and therefore the credibility, of
those three witnesses.
Mr. Jenkins’s first trial ended in a mistrial at the moment when Morgan
testified that he received leniency from the prosecution on pending drug charges.
The defense had not been aware of the deal until Morgan testified at trial. The
second trial ended in a guilty verdict that was overturned on a habeas corpus
4
petition because the prosecutor misled the jury regarding Morgan’s agreement with
the prosecution.
Before the third trial, Napoleon recanted his claim that he knew Mr. Jenkins
before Reese’s murder, but he still identified Mr. Jenkins as the shooter.
prosecution introduced a new witness, Sean Gibson.
The
Gibson, another friend of
Reese, was on probation at the time of the shooting. While being interrogated,
Gibson stated that Mr. Jenkins admitted to shooting Reese. At trial, Mr. Jenkins’s
counsel probed Gibson’s suspicious memory of the events—Gibson did not recall
Mr. Jenkins’s supposed incriminating statements until the prosecutor showed him
his purported statement and asked him leading questions—and raised questions
about the leniency agreement prosecutors had approved in exchange for Gibson’s
testimony. That trial ended in a hung jury.
At the fourth trial in 2003, Napoleon repeated his identification, Morgan and
another witness testified to threats Mr. Jenkins supposedly made against Reese,
and Gibson testified about Mr. Jenkins’s supposed admission after the shooting.
This time, with insufficient evidence to impeach Gibson’s and Napoleon’s
testimony, the jury returned a guilty verdict.
In 2008, Mr. Jenkins’s counsel hired two private investigators, Mary and
Robert Stewart.
Napoleon was living in Florida at the time he met with Mr.
Stewart and a local colleague. Napoleon explained that he did not see the shooting
5
well enough to identify Mr. Jenkins and that police pressured him into making the
identification. Gibson, who has been in and out of prison since 1992, met with the
Stewarts at Cheshire Correctional Facility in Connecticut. Gibson said that Mr.
Jenkins had never confessed to the shooting and that his testimony resulted from
police intimidation and his hope to get a leniency deal on the pending case against
him. He read, initialed, and signed a handwritten statement that memorialized his
discussion with the Stewarts.
Further, Mr. Jenkins’s counsel later learned that the prosecution had more
contact with Gibson than was initially disclosed to Mr. Jenkins. Gibson had almost
been a witness in the first two trials but declined to testify because the prosecution
would not agree to a cooperation agreement. This contradicted Gibson’s testimony
at the fourth trial where he stated that he was always willing to testify and had not
attempted to make a deal. The prosecutors failed to correct the false testimony,
even though they were aware it was false.
The government withheld vital information from the defense, thereby
depriving Mi. Jenkins of any meaningful opportunity to defend himself and
impugn Gibson’s credibility against false testimony. All the newly discovered
recantation evidence, the prosecutor’s failure to disclose its prior negotiations with
Gibson about a cooperation agreement, and Gibson’s refusal to testify without a
deal cast serious doubt on the reliability of the evidence used to convict Mr.
6
Jenkins. This Court should therefore grant Mr. Jenkins the opportunity to present
this evidence at a new trial.
ARGUMENT
Although many post-conviction innocence claims deal with new DNA
evidence, the vast majority of such claims involve cases that lack biological
4 Because DNA testing is now
evidence that could be subjected to DNA testing.
widely available before trial, the number of post-conviction challenges with new
DNA evidence will inevitably decrease, thus making a majority of post-conviction
challenges based on non-DNA evidence.
See Shawn Armbrust, Reevaluating
Recanting Witnesses: Why the Red-Headed Stepchild of New Evidence Deserves
Another Look, 28 B.C. THllD WORLD L.J. 75, 78 (2008). Moreover, the cases
vacating convictions based on DNA evidence have highlighted other faults in the
judicial system, such as erroneous eyewitness identifications, prosecutorial
misconduct, and undue reliance on incentivized witnesses. For these reasons, it is
See generally Daniel S. Medwed, Up the River Without a Procedure: Innocent
Prisoners & Newly Discovered Non-DNA Evidence in State Courts, 47 ARIz. L.
REv. 655 (2005); Shawn Armbrust, Reevaluating Recanting Witnesses: Why the
Red-Headed Stepchild of New Evidence Deserves Another Look, 28 B.C. THIRD
WoRLD L.J. 75 (2008); BARRY ScHEcK, PETER NEUFELD & JIM DwYER, ACTUAL
INNOCENCE xvii, 126-57 (2000) (analyzing cases of wrongfully convicted
individuals who were exonerated by DNA evidence and whose cases also involved
witnesses who committed perjury at trial).
7
increasingly important for courts to ensure that defendants like Mr. Jenkins are
5
given a full and fair opportunity to present newly discovered non-DNA evidence.
In that regard, the Honorable Chief Judge Lippman of the New York Court
of Appeals recently commissioned a body of lawyers and judges to review
wrongful conviction cases and study how those convictions arise.
STATE JUSTICE TASK FORCE,
NEW YORK
available at http://www.nyjusticetaskforce.com (last
visited Apr. 11, 2011). This is a vely real concern in our New York criminal
justice system, and society depends on judges to ensure that justice is served in
each case and that there is faith and confidence in judgments.
The newly
discovered evidence presented in Mr. Jenkins’s motion calls into serious question
the integrity of his fourth trial and verdict.
Mr. Jenkins’s motion should be
granted.
I.
INCENTIVIZED TESTIMONY, AS FROM THE WITNESSES HERE,
IS INHERENTLY UNRELIABLE, AND THE USE OF SUCH
TESTIMONY CAN HAVE DANGEROUS CONSEQUENCES
Incentivized testimony, like that from Morgan, Gibson, and Napoleon here,
is inherently unreliable because a government cooperator or informant witness is
often susceptible to police intimidation and is highly motivated to assist the
prosecution.
Because of this, the credibility of such witnesses is necessarily at
See also Richard A. Rosen, Innocence & Death, 82 N.C. L. REv. 61, 73 (2003)
(stating that “for every defendant who is exonerated because of DNA evidence,
there have been certainly hundreds, maybe thousands, who have been convicted”
on comparable evidence yet whose cases lack DNA evidence).
8
issue, and defendants, like Mr. Jenkins, should be made aware of all potential
impeachment evidence and given an opportunity to fully attack this testimony.
It is well established that testimony from incentivized witnesses is
problematic.
A recent study by the Northwestern University School of Law’s
Center on Wrongful Convictions found that 45.9% of all wrongful capital
convictions in the United States resulted from the false testimony of an informant,
making “snitches the leading cause of wrongful convictions in U.S. capital cases.”
Rob Warden, The Snitch System.
How Snitch Testimony Sent Randy Steidi &
Other Innocent Americans to Death Row, 3 (2004) (hereinafter “The Snitch
System”),
available
at
http://www.innocenceproject.org/docs/SnitchSystem
Booklet.pdf; see also Alexandra Natapoff, Beyond Unreliable:
How Snitches
Contribute to Wrongful Convictions, 37 GOLDEN GATE U. L. REv. 107, 108 (2006)
(stating that the “usual protections against false evidence, particularly prosecutorial
ethics and discovery, may thus be unavailing to protect the system from informant
falsehoods precisely because prosecutors themselves have limited means and
incentives to ferret out the truth”). Another study found that 117 of 350 erroneous
convictions studied were due to “perjury by prosecution witnesses.” Hugo Adam
Bedau & Michael L. Radelet, Miscarriages ofJustice in Potentially Capital Cases,
40 STAN. L. REv. 21, 60-61 n.184 (1987); see also Samuel R. Gross, et al.,
Exonerations in the United States 1989 through 2003, 95 J. CIUM. L. &
9
CRIMINOLOGY 523, 544 (2005) (finding that “at least one sort of perjury is
reported” in over 40% of all exonerations studied). Yet another study of the first
200 DNA exonerations found that an informant provided false testimony in 18% of
the cases studied. See Brandon L. Garrett, Judging Innocence, 108 COLUM. L.
REv. 55, 86 (2008).
Many cases show the dangers of relying on incentivized witness testimony
as the basis for a defendant’s conviction.
For instance, Shabaka Brown was
sentenced to death in 1974 for a robbery and murder in Florida. Snitch System at 3.
Brown was convicted after an informant testified that Brown committed the crime.
The informant later admitted that he fabricated the testimony in exchange for a
previously undisclosed promise of leniency, and Brown was ultimately exonerated.
id. In another case, Alan Gell was sentenced to death in 1998 for a murder in
North Carolina. Id. at 6.
The actual killers were offered a plea agreement in
exchange for their testimony against Gell, who was later exonerated by new alibi
evidence. Id. In 1982, Neil Ferber was sentenced to death for a double murder in
Philadelphia. Id. He was convicted after a jailhouse informant claimed Ferber had
confessed.
Ferber was later exonerated by the informant’s recantation and
discovery of a police conspiracy to frame Ferber. Id. In 1985, Steven Smith was
convicted of murder in Chicago after a witness testified that she saw Smith commit
the crime. Id. at 8. The jury was never told that the witness’s boyfriend was in
10
custody as the primary suspect when she accused Smith of the murder. The court
reversed the conviction because the witness’s testimony was unreliable and
because there was no other evidence linking Smith to the murder. Id.
This is not to say, of course, that incentivized testimony is always false. But
consistent with Chief Judge Lippman’ s directive and other New York Task Force
goals of preventing wrongful convictions, these examples point to the need for
courts to be mindful of the prevalence of perjured testimony by incentivized
witnesses. Recognizing this tendency is especially important in cases where, as
here, there is no physical evidence linking the defendant to the crime and the
conviction is based solely on incentivized testimony.
II.
JENKINS
MR.
RECANTATION
EVIDENCE
TRIAL BECAUSE
NEW
DESERVES A
DISCOVERED
NEWLY
IS
TESTIMONY
Gibson’s and Napoleon’s statements to Mr. Jenkins’s investigators and the
related documentary evidence constitute newly discovered evidence. New York
courts have found that a witness’s recantation of trial testimony may be considered
newly discovered evidence, depending on the “character and weight” of the
recantation. People v. Shilitano, 218 N.Y. 161, 171 (N.Y. 1916); see also People
v. Wong, 11 A.D.3d 724, 725-26 (3d Dep’t 2004).
A recantation triggers an
examination of the witness’s statements, conduct, and motives. See Shilitano, 218
N.Y. at 170.
In cases where there is no discernible wrongful motive, the
11
recantation testimony should be given credence, and not dismissed outright. Under
this standard, Gibson’s and Napoleon’s written and oral statements to investigators
cannot be dismissed out of hand.
It is crucial for courts to provide mechanisms for defendants to present
newly discovered evidence, such as recantation evidence.
But this can be
exceedingly difficult because courts are reluctant to disturb final judgments and
generally disfavor evidence such as the recantation testimony of key witnesses.
See Janice J. Repka, Comment, Rethinking the Standard for New Trial Motions
Based Upon Recantations as Newly Discovered Evidence, 134 U. PA. L. REV.
1433, 1450 (1986) (hereinafter “Rethinking the Standard”); see also People v.
Schulz, 4 N.Y.3d 521, 534 (2005) (Rosenblatt, J., dissenting) (“The interests of
finality count for a great deal, and may be alluring, but they are not always
consistent with the higher ends of justice.”). But defendants should not be denied
the opportunity to present evidence having the potential to prove their innocence.
“[Cjourts should not be so penurious
.
.
.
in cases in which the potential for
injustice is so great.” Rethinking the Standard at 1445.
Furthermore, where the credibility of a witness is material and outcome
determinative, it is even more important for the defendant to be able to fully
examine the witness and develop the underlying facts. This does not mean that a
new trial should be granted whenever a material witness against the defendant
12
states that he committed perjury. Instead, the court should “look at the case as a
whole to determine whether a new trial should be granted.” Keith A. Mitchell,
Note, Protecting Guiltless Guilty: Material Witness Recantation & Modern Post-
Conviction Remedies, 21 NEwENG. L. REv. 429, 430 n.8 (1985-86).
Here, with Gibson’s and Napoleon’s recantations, there is no case left
against Mr. Jenkins. The importance, therefore, in considering all of the new oral
and written evidence cannot be overstated.
Although some recanting witnesses lie after giving truthful trial testimony,
many witness recantations are honest attempts to right a wrong. See Bruce A.
Green & Ellen Yaroshefsky, Prosecutorial Discretion & Post-Conviction Evidence
of Innocence, 6 OHIo ST. J. CIUM. L. 467, 513 (2009). For example, in one case,
Frank Smith had been convicted of raping and murdering a child in Florida and
was sentenced to death. Id. at 513 n.265 (citing Smith v. Dugger, 565 So. 2d 1293,
1296 (Fla. 1990)).
Five years after the conviction, a key prosecution witness
recanted her testimony and stated that she had been pressured by the state’s
attorney at the time of trial. The recantation testimony was rejected, but Smith was
eventually exonerated due to DNA evidence. Id. In another case, Gary Dotson
was convicted of aggravated rape and sentenced to 25-50 years in prison. Id.
(citing People v. Dotson, 516 N.E.2d 718 (Ill. App. Ct. 1987)). The alleged victim
in that case eventually recanted her testimony and stated that she had consensual
13
intercourse and had injured herself in order to make it look like rape because she
feared she was pregnant.
Although Dotson was exonerated by DNA, the
recantation testimony was disbelieved by prosecutors and the courts. Id.
Eric Jenkins has always maintained his innocence and rejected deals for
time-served—but unlike the cases above, there is no DNA evidence to vindicate
him. There was no physical evidence linking a suspect to the crime. But Gibson
has explained that Mr. Jenkins never made the incriminating statements he testified
about, and Napoleon has explained that he could not identify the shooter and
testified out of fear of what detectives could and would have done to him.
The newly discovered testimonial and documentary evidence that Mr.
Jenkins presents here and the dangers of incentivized witness testimony are all
factors that this Court should take into account in determining whether a new trial
should be granted. The Court must critically analyze all the evidence to determine
if there is a probability that presenting the evidence at trial would have caused a
better outcome. See C.P.L.
§ 440.10(g); People v.
Tankleff 49 A.D.3d 160, 180-81
(2d Dep’t 2007). It was wrong for the lower court to have summarily rejected
Napoleon’s recantation without a hearing. And it was wrong for the lower court to
allow Gibson’s trial testimony to stand simply because Gibson showed up at the
hearing and disavowed a portion of the recantation he made to the investigators.
Gibson did in fact recant his trial testimony when he met with the investigators,
14
and he did read and sign a written statement to that effect. That he later testified
that there were blocks of missing text in the written statements and backed off
from parts of this recantation says less about the statements he provided to the
investigators and more about the total lack of credibility in anything Gibson says.
Indeed, these inconsistencies support providing an opportunity for Mr. Jenkins to
fully examine Gibson and develop facts that may exonerate him.
III.
MR. JENKINS DESERVES A NEW TRIAL BECAUSE THERE IS A
REASONABLE PROBABILITY THAT UNDISCLOSED BRADY
MATERIAL WOULD HAVE CHANGED THE OUTCOME OF THE
TRIAL
In Brady, the Supreme Court held that “the suppression by the prosecution
of evidence favorable to an accused.
.
.
violates due process where the evidence is
material either to guilt or to punishment, irrespective of the good faith or bad faith
of the prosecution.” 373 U.S. at 87; see also People v. Santorelli, 95 N.Y.2d 412,
421 (2000). Thus, a Brady claim requires that: (1) the evidence in question be
favorable, (2) the state suppressed the relevant evidence, either willfully or
inadvertently, and (3) the state’s actions resulted in prejudice. See Strickler v.
Greene, 527 U.S. 263, 28 1-82 (1999). Brady obligations apply whether or not the
defense has requested the information. United States v. Agurs, 427 U.S. 97, 110
(1976). Mr. Jenkins requested disclosure of all Brady material, but even if he had
not, he is entitled to a new trial if “there is a reasonable probability that had [the
material] been disclosed to the defense, the result would have been different—i.e.,
15
a probability sufficient to undermine the court’s confidence in the outcome of the
trial.” People v. Hunter, 11 N.Y.3d 1, 5 (2008) (internal quotation omitted).
In Giglio, the Supreme Court held: “When the ‘reliability of a given witness
may well be determinative of guilt or innocence,’ nondisclosure of evidence
affecting credibility falls within this [Brady] rule.” Giglio v. United States, 405
U.S. 150, 154 (1972) (quoting Napue v. illinois, 360 U.S. 264, 269 (1959)); see
also id. at 154-55 (finding that the witness’s “credibility
.
.
.
was therefore an
important issue in the case, and evidence of any understanding or agreement as to a
future prosecution would be relevant to his credibility and the jury was entitled to
know of it”). New York courts have interpreted Brady to include situations where
credibility is at issue and the facts include any actual or implied promises to a
witness, see People v. Steadman, 82 N.Y.2d 1, 6-7 (1993), or evidence relating to a
motive to testify, see People v. Wright, 86 N.Y.2d 591, 596 (1995). See also Final
Report of the N. Y. State Bar Ass ‘n ‘s Task Force on Wrongful Convictions, N.Y.
6
STATE BAR Ass’N, 22-23 (2009) (hereinafter “Task Force Report”).
A recent working group symposium made up of lawyers, judges, and
academics examined Brady and agreed that defendants should generally be
provided “impeachment information relating to prosecution witnesses, including
Report is available at http://www.nysba.org/Content/ContentFolders/Task
ForceonWrongfulConvictions/FinalWrongfulConvictionsReport.pdf (last visited
Apr. 15, 2011).
6
16
information about inducements provided to prosecution witnesses, their prior bad
acts, and their inconsistent statements.”
Disclosure Obligations:
New Perspectives on Brady & Other
Report of the Working Groups on Best Practices, 31
CARDOZO L. REv. 1961, 1966 (2010). The government is also obligated to disclose
information that could be used to impeach government witnesses “especially where
the witness’s testimony is an important part of the government’s case.” Discovery
& Access to Evidence, 39 GE0. L.J. ANN. REv. CRIM. PROC. 356, 359 (2010). This
evidence includes any agreement made with a government witness for testimony in
exchange for favorable treatment. Id. at 359-60.
Here, New York and Connecticut prosecutors gave Gibson a deal for a
reduced sentence before he testified in the third and fourth trials. There is also
evidence that Gibson refused to testifi in the first and second trials without a deal.
That evidence, however, was not disclosed, but should have been. It is separate
and different information that bears directly on the credibility of one of the
prosecution’s key witnesses. Under Brady, that evidence was material and should
have been disclosed.
Moreover, New York has recognized that the prosecution has a duty to
correct false testimony. People v. Novoa, 70 N.Y.2d 490, 496-97 (1987); People v.
Ross, 43 A.D.3d 567, 569 (3d Dep’t), appeal denied, 9 N.Y.3d 964 (2007). The
prosecutor’s failure to correct false trial testimony “constitutes ‘error so
17
fundamental, so substantial’ that a verdict of guilt will not be permitted to stand.”
Task Force Report at 20 (quoting People v. Savvides, 1 N.Y.2d 554, 556-57 (1956)
(internal quotation omitted)); see also People v. May, 228 A.D.2d 523, 524 (2d
Dep’t 1996) (reversing a conviction where the prosecutor did not reveal or correct
false testimony about a promise regarding sentencing of a prosecution witness).
Gibson testified that he had always been a willing witness. In reality, Gibson had
refused to testify in earlier trials because the prosecution refused to provide him
with a cooperation agreement. The prosecution knew Gibson’s testimony on that
point was false, yet it did nothing to correct it.
The jury was left with the
impression that Gibson had always been cooperative and was simply testifying in
the fourth trial with an agreement for a small reduction in sentence.
That
impression was wrong, and Mr. Jenkins was deprived of a fair trial because the
jury should have known the truth about Gibson and his history of holding out for a
deal.
The Brady doctrine highlights the prosecutor’s dual role. See Joseph R.
Weeks, No Wrong Without a Remedy: The Effective Enforcement of the Duty of
Prosecutors to Disclose Exculpatory Evidence, 22 OKLA. CITY U. L. REv. 833, 843
(1997). While the prosecutor must be a zealous advocate and seek convictions, the
prosecutor’s primary task is to seek the truth. This involves looking at all of the
evidence and disclosing all material evidence to the defendant. In many instances,
18
to what evidence
applying Brady requires prosecutors to use their judgment as
results. See Kyles v.
might fall under the analysis, and this can lead to inconsistent
question is material,
Whitley, 514 U.S. 419, 439 (1995). Still, if the evidence in
13. Materiality
then the prosecution must disclose it. See Agurs, 427 U.S. at 108ence would result
can be determined by assessing whether nondisclosure of the evid
, prosecutors must
in the defendant being deprived of a fair trial. Id. at 108. Thus
failure to disclose
determine before trial whether fairness is compromised by the
ve doubtful questions
the evidence. Id. at 107. “[T]he prudent prosecutor will resol
(“[A] prosecutor
in favor of disclosure.” Id. at 108; see also Kyles, 514 U.S. at 439
favorable piece of
anxious about tacking too close to the wind will disclose a
ett L. Gershman,
evidence.”). That is the proper and ethical approach. See Benn
Litigating Brady v. Maryland:
REv. 531,
Games Prosecutors Play, 57 CAsE W. RES. L.
y standard
549 (2007) (stating that on occasion, the materialit
ecutors to play and
“encourages prosecutorial gamesmanship by allowing pros
if discovered, will
frequently beat the odds that their suppression of evidence, even
be found immaterial by a court”).
result has been
Indeed, when prosecutors have failed in their duty, the
t’s freedom and
numerous re-trials, and rightfully so, given that a defendan
state courts have
innocence are at stake. “Thousands of decisions by federal and
of convictions have
reviewed instances of serious Brady violations, and hundreds
19
been reversed because of the prosecutor’s suppression of exculpatory evidence.”
Bennett L. Gershman, Reflections on Brady v. Maryland, 47 S. TEX. L. REv. 685,
686 (2006). Here in New York, the New York State Bar Association’s Task Force
on Wrongful Convictions examined 53 cases of reversed convictions and found
that Brady violations were one of the factors responsible for the erroneous results.
See Task Force Report at 6-9.
Studies from around the country show similar results.
A study of
prosecutorial misconduct in California found 129 examples of withholding
exculpatory evidence in violation of Brady.
Kathleen Ridolfi, Prosecutorial
Misconduct: A Systemic Review, CAL. COMM’N ON THE FAR ADMIN. OF JUSTICE, 4,
8 (July 11, 2007) (reviewing all appeals alleging prosecutorial misconduct in
California between 1996 and 2007). A review of all capital convictions in the
United States from 1973-1995 found that improper prosecutorial suppression of
evidence accounted for 16% of all state post-conviction reversals. See James S.
Liebman, Jeffrey Fagan, Valerie West & Jonathan Lloyd, Capital Attrition: Error
Rates in Capital Cases, 1973-1995, 78 TEX. L. REv. 1839, 1850 (2000). Another
study examined 5,760 capital cases and found the rate of prejudicial error to be
68%. Ineffective defense lawyers and the suppression of evidence by prosecutors
This research is available at http://www.cpda.org/publicarealCCFAJ/
Professional-Responsibility-DAs-and-Defenders/Professional-Responsibility-DAs
and-Defenders/Ridolfi--Prosecutorial%20Misconduct%20A%2Osystemic%20
review.pdf.
20
and police were the most common reasons for error. James S. Liebman, Jeffrey
Fagan & Valerie West, A Broken System: Error Rates in Capital Cases, 19 73-
1995, 4-5 (2000), available at http://www2.law.columbia.edu/instructionalservices
/liebman/. Research compiled by the Innocence Project found that out of 65 DNA
exoneration cases nationwide involving appeals or civil suits related to
prosecutorial misconduct, courts overturned 24% of the convictions alleging Brady
violations.
Dr. Emily M. West, Court Findings of Prosecutorial Misconduct
Claims in Post-Conviction Appeals & Civil Suits Among the First 255 DNA
Exoneration Cases, INNOCENCE PROJECT 5 (Aug. 201 0).8
While the majority of prosecutors are ethical individuals who try to balance
their responsibilities to be zealous advocates as well as truth-seekers, some
prosecutors still do not adhere to the Brady doctrine. The good faith or bad faith of
the prosecution, however, is irrelevant under Brady. Brady is not about assessing
blame.
Instead, Brady exists to ensure that criminal defendants have all the
material evidence they need to defend themselves against charges made against
them. Thus, what these studies underscore is how important it is for courts to fully
evaluate any and all Brady claims. Where there is evidence that the prosecution
knew of and failed to disclose material evidence, defendants should be granted a
meaningful opportunity to present that evidence to a jury. Here, the prosecutors’
8
This research can be found at http://www.innocenceproject.org/docs/Innocence
Proj ect_Pros_Misconduct.pdf (last visited April 14, 2011).
21
failure to disclose their prior discussions with Gibson about a deal, their initial
refusals to agree to one, and Gibson’s unwillingness to testify without a deal are
material evidence and could, at a minimum, “have added a little more doubt to the
an
jury’s view” of the case. Hunter, 11 N.Y.3d at 6. Mr. Jenkins should have
opportunity to present this evidence in a new trial.
CONCLUSION
The Innocence Network’s experiences highlight a maj or obstacle to postconviction innocence claims:
revealed through DNA testing.
in most cases, wrongful convictions cannot be
For those who do not have access to DNA
evidence, proving their innocence is very difficult. However, evidence such as
newly discovered recantation testimony and Brady violations can provide
defendants with the means to obtain a new trial and prove their innocence.
It is for these reasons that Mr. Jenkins should be granted a new trial. All of
Gibson’s and Napoleon’s statements to investigators (written and oral) should be
That the prosecutor failed to disclose
considered newly discovered evidence.
Brady evidence surrounding Gibson’s insistence on a deal before agreeing to
testify and allowed Gibson to pass himself off to the jury as a cooperative witness
should further be considered newly discovered evidence. Together, this evidence
warrants granting a new and fair trial for Mr. Jenkins.
22
Respectfully submitted,
Leslie R. Caidwell
Priscilla Marquez
MORGAN, LEWIS & BOCKrUS LLP
101 Park Avenue
New York, New York 10178
Telephone: (212) 309-6000
Facsimile: (212) 309-6001
ATTORNEYS FOR AMIcus CURIAE
INNOCENCE NETWORK
Keith A. Findley
President, Innocence Network
University of Wisconsin Law School
975 Bascom Mall
Madison, WI 53706-1399
Telephone: (608) 262-4763
23
ADDENDUM
Innocent Network’s member organizations include:
Alaska Innocence Project
Association in Defence of the Wrongly Convicted (Canada)
California Innocence Project
Center on Wrongful Convictions
Connecticut Innocence Project
Downstate Illinois Innocence Project
Duke Center for Criminal Justice and Professional Responsibility
The Exoneration Initiative
Georgia Innocence Project
Hawaii Innocence Project
Idaho Innocence Project
Innocence Network UK
Innocence Project
Innocence Project Arkansas
Innocence Project at UVA School of Law
Innocence Project New Orleans
Innocence Project New Zealand
Innocence Project Northwest Clinic
Innocence Project of Florida
Innocence Project of Iowa
Innocence Project of Minnesota
Innocence Project of South Dakota
Justice Project, Inc.
Kentucky Innocence Project
Maryland Innocence Project
Medill Innocence Project
Michigan Innocence Clinic
Mid-Atlantic Innocence Project
Midwestern Innocence Project
Mississippi Innocence Project
Montana Innocence Project
Nebraska Innocence Project
New England Innocence Project
Northern Arizona Justice Project
Northern California Innocence Project
Office of the Public Defender (State of Delaware)
Office of the Ohio Public Defender
Wrongful Conviction Project
Ohio Innocence Project
Osgoode Hall Innocence Project (Canada)
Pace Post-Conviction Project
Palmetto Innocence Project
Pennsylvania Innocence Project
Reinvestigation Project (Office of the Appellate Defender)
Rocky Mountain Innocence Center
Sellenger Centre Criminal Justice Review Project (Australia)
Texas. Innocence Network
Thomas M. Cooley Law School Innocence Project
Thurgood Marshall School of Law Innocence Project
University of British Columbia Law Innocence Project (Canada)
Wake Forest University Law School Innocence and Justice Clinic
Wesleyan Innocence Project
Wisconsin Innocence Project
Wrongful Conviction Clinic
CERTIFICATE OF COMPLIANCE
PURSUANT TO 22 NYCRR 670.10.3(f)
This brief was prepared on a computer. A proportionally spaced typeface was
used as follows:
Name of typeface: Times New Roman
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The total number of words in the brief, inclusive of point headings and
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proof of service, certificate of compliance, or any authorized addendum containing
statutes, rules, regulations, etc., is 5528.
Dated: April
,
2011