Capital Defense Weekly

For the reasons set forth below, we conclude that the trial court did not abuse its discretion in denying Davis’s extraordinary motion for new trial without first conducting a trial.. . .

Davis’s extraordinary motion for new trial relied primarily on affidavit testimony consisting of four types, recantations by trial witnesses, statements recounting alleged admissions of guilt by Coles, statements that Coles disposed of a handgun following the murder, and an alleged eyewitness account.

I believe that this case illustrates that this Court’s approach in extraordinary motions for new trials based on new evidence is overly rigid and fails to allow an adequate inquiry into the fundamental question, which is whether or not an innocent person might have been convicted or even, as in this case, might be put to death.

We have noted that recantations by trial witnesses are inherently suspect, because there is almost always more reason to credit trial testimony over later recantations. However, it is unwise and unnecessary to make a categorical rule that recantations may never be considered in support of an extraordinary motion for new trial. The majority cites case law stating that recantations may be considered only if the recanting witness’s trial testimony is shown to be the “purest fabrication.”3 To the extent that this phrase cautions that trial testimony should not be lightly disregarded, it has obvious merit. However, it should not be corrupted into a categorical rule that new evidence in the form of recanted testimony can never be considered, no matter how trustworthy it might appear. If recantation testimony, either alone or supported by other evidence, shows convincingly that prior trial testimony was false, it simply defies all logic and morality to hold that it must be disregarded categorically.

The majority points out that recantation testimony, as this Court has noted before, is “entitled to much less regard than sworn testimony delivered at the trial.” For one thing, “trial testimony is closer in time to the crimes, when memories are more trustworthy,” the majority writes. In this case, the majority finds that “most of the witnesses to the crime who have allegedly recanted have merely stated that they now do not feel able to identify the shooter.” One of the affidavits “might actually be read so as to confirm trial testimony that Davis was the shooter.”

We simply cannot disregard the jury’s verdict in this case. . ..”

The Chief Justice’s dissent treats more charitably and accurately the majority’s opinion than I could so I’ll save my screed & rant.