If hindsight is 20/20, our justice system should not be blind to new evidence of innocence: a survey of post-conviction new evidence statutes and a proposed model.

• Author: Brooks, Justin
• Position: Elephants in the Courtroom: Examining Overlooked Issues in Wrongful Convictions

1. THE CASE OF JOANN PARKS

   On April 9, 1989, JoAnn Parks put her three children to sleep and went to bed. (1) Around midnight, she awoke to their screams. (2) Her children were trapped on the other end of their house, and the house was engulfed in flames. (3) The heat from the fire was so intense that JoAnn could not get to her children, and was instead forced out of the house where she ran to her neighbor's home for help. (4)

   The neighbors called 911 and one neighbor tried to rescue the children, but the fire made it impossible. (5) When the fire department arrived less than ten minutes later, it was too late. (6) All three of JoAnn's children were dead. (7)

   Initial investigations concluded that the fire was caused by an electrical malfunction. (8) Yet, two and a half years later, JoAnn was charged with three counts of murder. (9) At trial, the prosecution argued that JoAnn had intentionally set fire to her own house. (10) The prosecution pointed out that the neighbor who tried to rescue the children and the responding officers smelled of smoke and coughed for several days. (11) On the other hand, however, JoAnn's clothes had very little ash and did not smell strongly of smoke. (12) JoAnn herself did not seem to exhibit any physical issues caused by smoke inhalation. (13) One neighbor testified that JoAnn seemed dazed on the night of the fire. (14) Witnesses also testified that she was not hysterical, (15) as some might expect a mother to respond, (16) although other witnesses testified that she had been crying. (17)

   Expert testimony presented by the prosecution indicated that two fires had been set intentionally--one in the living room and another in the southeast bedroom. (18) Experts ruled out an electrical source for the fire, (19) and Ronald Parks himself--the father of the victims and JoAnn's husband, who was at work at the time of the fire (20)--testified that there were no electrical problems in the home. (21)

   In addition to the testimony about the fire's origin, a firefighter testified that he found an unburned pattern in front of the closed closet where Parks' son, Ronny, was found. (22) The firefighter testified that the unburned area indicated that something had been placed in front of the closed closet door to keep it from swinging open. (23) Two investigators both agreed that a laundry hamper had been placed in front of the closet door based on this evidence. (24)

   The defense's evidence demonstrated the fire could actually have been caused by a defective TV known for its tendency to start fires. (25) Nevertheless, JoAnn Parks was convicted on all charges and sentenced to three life terms without parole. (26)

   Over the past twenty-six years there have been dramatic new scientific developments in the area of arson investigation. (27) New evidence shows that the fire investigators in JoAnn's case based their investigation on what are now debunked arson myths and the conviction was tainted by incorrect investigative theories. (28) For example, what we commonly understand to be a "flashover" effect was not yet fully understood in 1989. (29) Had the investigators known about such a phenomenon, the prosecution's theory that there were two points of origin to the fire would have been disproven. In fact, there has been a great deal of new research on fire origin that debunks the "greatest damage" (30) theory that was applied to this case. (31) New research makes clear that multiple points of origin does not necessarily indicate arson because fire can and often does jump, starting a new fire in the spot it jumps to. (32) The standard method of determining origins of fire in an electrical fire is now an "arc survey," (33) but this method was not widely used or mentioned in the National Fire Protection Association ("NFPA") 921 Guide for Fire and Explosion Investigations ("NFPA 921"). (34)

   This new evidence, combined with the evidence of the many house fires caused by the same brand and model of TV owned by the Parks, would likely have guaranteed an acquittal had it all been brought to light at the time of trial. However, in the world of post-conviction, the burden of proof shifts to the defendant to prove there is sufficient new evidence of innocence to justify the reversal of the conviction. (35)

   California has the most difficult standard in the United States for obtaining the reversal of a conviction based on new evidence of innocence. In California, a conviction will only be reversed based on new evidence when the new evidence completely "undermine[s] the entire prosecution case and point[s] unerringly to innocence or reduced culpability." (36) In addition, the convicted must show that no "reasonable jury could have rejected" the new evidence of innocence. (37) This is an incredibly high burden of proof.

   This article surveys the new evidence standard in post-conviction from around the country and explores the practical and legal ramifications of these standards. The new evidence standard is often what stands between an innocent inmate's prison cell and freedom. The standards should provide a vehicle for the reversal of convictions of the innocent, while not overburdening the system with unjustifiable claims or allowing for the release of those who are factually guilty. That is not the current state of the law across the country. The authors, who have all spent their careers litigating new evidence claims on behalf of innocent clients, conclude the article with a suggested model for post-conviction new evidence statutes.

2. CALIFORNIA'S NEW EVIDENCE STANDARD AND THE DIFFICULTY FOR CASES SUCH AS JOANN PARKS'

   Reaching the standard of completely undermining the prosecution's case with evidence that points unerringly to innocence in post-conviction is very difficult to attain. In cases such as JoAnn Parks', where new science undermines the arson conclusions determined at trial, there is a near that certainty the jury would not have convicted in the face of the new evidence. However, under California law the question still remains whether the evidence completely undermines the prosecution's case and points unerringly to innocence. (38) In addition to the discredited arson evidence, the case was built on evidence that JoAnn was at the house the night of the fire, fled the house without her children, and her response to the tragedy was not one the jurors found consistent with a grieving mom. So, does new arson science combined with the evidence of television fires completely undermine the prosecution's case? Does all of the evidence presented by the prosecution need to be proven false? Even if there is some evidence, should we not reverse a conviction if that evidence would never be sufficient to convict? And, what does "point unerringly to innocence" mean? Unfortunately, both prongs mean different things to different judges and often leave innocent people in prison.

3. A REVIEW OF NEW EVIDENCE STATUTES AND STANDARDS ACROSS THE U.S.: FIVE QUESTIONS ABOUT HOW TO ADDRESS NEW EVIDENCE DISCOVERED AFTER CONVICTION

   To some degree, any post-conviction proceedings reflect an attempt to strike the appropriate balance between two conflicting important concepts in the criminal justice system: finality and accuracy. (39) It is important for convictions to be final once they have been entered so that the matter is fully resolved, the system can move on to other matters, the victim can move on with his/her life, and the convicted person can begin serving the penalty. (40) Of course, it is also important that the conviction is accurate and the right person has been convicted. Indeed, there is no value to society, victims, or defendants in convicting innocent people. Therefore, there needs to be some way to address those instances where the criminal justice system has gotten it wrong, while also recognizing that in most cases, the conviction is proper.

   New evidence statutes like California's have admirable goals, as they ostensibly provide some process for innocent people to obtain relief in the event those innocent people find new information that challenges the truth of their conviction. However, the kind of process, and the method of determining whether relief should be granted, is incredibly important. If the process is too difficult, or if the standard is too high, then innocent people will be unable to obtain relief. If it is too low, then convictions may be challenged too frequently for the courts to bear.

   1. What Is New Evidence?

      The term "new evidence," is deceptively simple. Is it any evidence discovered after trial? What about evidence that could have been discovered before the conviction, but was not? If it was discovered shortly after the time of the conviction (and possibly before the sentence), is this truly "new" evidence? Answers to these questions are often counterintuitive in the post-conviction arena, and can be different depending on the state in which the question is raised. (41)

      Often, new evidence that was not available to the defendant at trial can be raised in claims other than new evidence. For instance, new evidence can also qualify as:

      1. Brady (42) material. Brady material is evidence that was suppressed, whether willfully or inadvertently, by the prosecutor or by law enforcement before, during, or after trial, and which is material--that is, there is a reasonable probability of a different result had the evidence been available at the time of trial. (43) Although the evidence is discovered after trial, it could have been discovered before trial but for the prosecution's failure to turn over the evidence. (44) Brady violations have their own remedies in law and are not covered by the new evidence law. (45)

      2. Evidence that could have been discovered by an effective trial attorney. If trial counsel failed to adequately investigate the case, then the evidence the attorney failed to discover will allow for relief if there is a reasonable probability that, but for those failures and errors...