Is Evidence of Innocence Exculpatory Enough?

By Isabelle Raquin

The Maryland Supreme Court’s last opinion of 2022, Carver v. State, 482 Md. 469 (2022) (Hotten, J.) (Gould, J., dissenting), analyzed the cumulative impact of newly discovered evidence and held that the newly discovered evidence did not “speak to” petitioner’s innocence, and therefore, did not require granting a writ of actual innocence. However, Justice Gould’s pointed dissent illustrates the existing controversy over the application of the standard for how much newly discovered evidence is enough to warrant a new trial. Both the Majority and the Dissent agreed on the standard to apply.  Still, in practical terms, does a petitioner have to show that the State’s evidence of guilt is insufficient? That is precisely how Justice Gould reads the Majority’s application of the standard, which effectively raises the bar for petitioners and turns the “substantial possibility of a different outcome” test into the functional equivalent of a preponderance of the evidence standard.

The Law.  Both the Majority and the Dissent agreed on the law that applies to writs of actual innocence. To succeed on a writ of actual innocence, the petitioner must produce newly discovered evidence that speaks to the petitioner’s actual innocence, could not have been discovered in time to move for a new trial under Rule 4-331, and creates a substantial or significant possibility that if the jury had received the evidence, the outcome of the trial may have been different.  The settled law is that the trial court must conduct a cumulative assessment of the impact of the newly discovered evidence on the evidence at the trial that occurred.  Faulkner v. State, 468 Md. 418 (2020).  Still, Carver clarified the breadth of this “hindsight assessment” means that the circuit court must evaluate how that new evidence would impact: “(1) any evidence admitted at trial; (2) any evidence available at the time of trial, including evidence both (a) offered but excluded and (b) not offered but available; and (3) the defendant’s or defense counsel’s trial strategy.”  Carver v. State, 482 Md. at 492.

The facts at trial. Carver was identified as the shooter by one eyewitness, along with two additional eyewitnesses who corroborated Carver’s presence on the scene. Carver’s defense was that he was an innocent bystander to the shooting that occurred in front of him and committed by another person. Carver was convicted of murder in the first-degree, use of a handgun in the commission of a crime of violence, and sentence to life without parole.

The new facts raised by Carver. Carver raised three new sets of facts in his writ of actual innocence which were further adduced at a hearing before the Circuit Court for Baltimore City:

(1) Carver presented an alternative suspect theory and showed that another individual had solicited to kill the victim and had previously attempted to kill the victim, just two months prior to the shooting in this case. Therefore, Carver’s conclusion was that another person had both the motive and the opportunity to kill the victim. However, the Maryland Supreme Court characterized such testimony as conjecture and speculation, which did not cast doubt on the eyewitness accounts that identified Carver as the shooter, and thus, did not “speak to” his innocence.

(2) Carver showed that the State’s infamous firearm examiner, Mr. Kopera, had lied about his credentials, and the Court agreed that this constituted newly discovered evidence. Still, Kopera’s fraud did not make the petitioner’s new expert opinion about the ballistics newly discovered evidence because a diligent trial counsel could have retained an expert before trial to examine the firearm evidence. Assuming the new report was newly discovered, the Maryland Supreme Court held, that it would not have created a substantial or a significant possibility that the outcome of the trial would have been different, because neither Mr. Kopera’s testimony nor the new expert’s opinion could identify the number of firearms used in the case.

(3) Carver established that one of the eyewitnesses had open warrants for his arrest, which gave him a motive to testify favorably for the State. The SCM held that these open warrants were not newly discovered evidence because they could have been discovered in time for a motion for a new trial, and assuming they were, they had very little impeachment value, because, as unserved warrants, the eyewitness was likely unaware of them, and therefore, unlikely to curry favor with the State.

The Dissent. For Justice Gould, the Majority formulates the correct legal principles but “goes astray applying these principles and, in doing so, unwittingly raises the bar for petitioners such as Mr. Carver.” Carver v. State, 482 Md. at 504.  “The Majority assumes the evidence would have unfolded exactly as it did—without considering the ripple effect the additional evidence would have had on the trial court’s evidentiary rulings, the State’s case, the testifying detectives’ credibility, and defense counsel’s ability to put on a defense.”  Id. The Dissent focuses on the first set of facts raised by Carver, and details how the connection between the victim and the newly discovered evidence of another shooter, was tight and fell far from speculation. Justice Gould also raises the point that “in assessing the impact of the new evidence, we should also remain mindful that eyewitness testimony is inherently unreliable.” In this case, “the newly discovered evidence would have put the inherently unreliable eyewitness testimony in a new light.”

The Dissent raises the important question of how much evidence of innocence is enough to meet the substantial or significant probability of a different outcome standard. A petitioner is not required to prove his innocence. Neither is a petitioner required to show that the newly discovered evidence rendered the State’s evidence insufficient to convict him. And yet, how much more evidence of innocence did Carver have to present? How far must the ripple effect go for petitioners to succeed? Petitioners seem to have three challenges to overcome: the burden of a high standard regarding innocence, the uncertainty in the application of that standard, and the highly deferential standard of appellate review for abuse of discretion.

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