Brief Bank

An online archive of all Amicus Briefs filed by the Innocence Network in cases around the country

An amicus brief is a written legal argument filed by someone not directly involved in a case on appeal to help educate the court about particular issues. The Network decides when to file amicus briefs based upon many factors including which jurisdiction the case is in, what the particular issues being advocated are, and what kind of an impact the brief might have.

Click on a button below to be taken to relevant briefs filed by the Innocence Network, or scroll down for a full list, sorted by issue area. 

To submit an amicus brief request, please see our amicus brief request page to submit a request to the Innocence Network’s Amicus Committee. 

Access to Evidence
Access to Post-Conviction DNA Testing/Complex DNA Issues  
Actual Innocence
Compensation
Confessions, Interrogations & Interviewing  

 

 

 

 

Electronic Recording of Custodial Interrogations  

 

 

 

 

Eyewitness Identification  

 

 

False Confessions  

 

 

Ineffective Assistance of Counsel
Informant Testimony
New Evidence of Innocence
Police or Prosecutorial Misconduct
Shaken Baby Syndrome
State/Federal Habeas Corpus Rules & Procedures    
Unreliable Forensic Science
Other Issues

Access to Evidence

Caster, Donald v. City of Columbus (2015)

Counsel Covington & Burling LLP
Courts Ohio Supreme Court
Issues Access to Evidence
Case Number 2014-1621
Position Meaningful access to public records is essential to identifying meritorious claims of actual innocence, analyzing the criminal justice system and advocating for reform.
Decision Caster had a clear legal right to the requested records and the respondents had a clear legal duty to provide the records.
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Lewis, Emmitt, v. State of Louisiana (2006)

Counsel Wisconsin Innocence Project; Innocence Project New Orleans; The Capital Appeals Project
Courts Louisiana Court of Appeals
Issues Access to Evidence
Case Number 2006–KK–2457
Position Prosecutors should be obligated to disclose exculpatory evidence at a preliminary hearing; defendants should have discovery rights, including access to police reports, prior to the preliminary hearing.
Decision Petition for supervisory writ denied.
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Access to Post-Conviction DNA Testing

Alexander, Kelvin Alphonso, State of North Carolina v. (2020)

Case Alexander, Kelvin Alphonso, State of North Carolina v. (2020)
Counsel Lieff Cabraser Heimann & Bernstein LLP
Court Supreme Court of North Carolina
Issues Access to Post-Conviction DNA Testing or Complex DNA Issues
Case Number No. 234PA20
Position Access to post-conviction DNA testing should not be denied to those who pled guilty; evidence shows that many innocent people plead guilty and many such people have been exonerated by post-conviction DNA testing. 
Decision Pending 

Alvarez, George v. The City of Brownsville (2017)

Counsel Fishman Haygood, LLP
Courts

U.S. Court of Appeals, Fifth Circuit

Issues Access to Post-Conviction DNA Testing
Case Number 16-40772
Position

Nothing in Brady restricts the right to exculpatory evidence solely to defendants who go to trial. Indeed, Brady has played an important role in rectifying wrongful convictions by guilty pleas. Given that there is no evidence that applying Brady in guilty plea cases “imposes serious costs,” and there is considerable risk that refusing to apply Brady in guilty plea cases will have perverse consequences, Amici urge the en banc Court to reverse the panel decision in this case and to abrogate Matthew v. Johnson, 201 F.3d 353 (5th Cir. 2000), and United States v. Conroy, 567 F.3d 174 (5th Cir. 2009), to the extent necessary to affirm that Brady requires the government to disclose exculpatory evidence known to it at the time a defendant pleads guilty.
Decision

Opinion filed September 18, 2018. The Court held that prosecutors are not constitutionally required to disclose exculpatory evidence to criminal defendants during the plea-bargaining process. The court reasoned that, because no case law from the Supreme Court or other circuit courts decisively establishes that failure to disclose evidence during the plea-bargaining process constitutes a Brady violation, it will defer to its existing precedent, which held that it does not.
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Briggs, Ron & Van De Kamp, John v. Brown, Jerry (2017)

Counsel O’Melveny & Myers
Courts California Supreme Court
Issues Access to Post-Conviction DNA Testing; Actual Innocence; Ineffective Assistance of Counsel; New Evidence of Innocence
Case Number S238309
Position Proposition 66 violates the Equal Protection Clauses of our Constitutions by singling out capital defendants. It imposes an onerous one-year time limitation on the filing of an initial habeas petition and limits the grounds under which capital defendants may file a successive petition— limitations not imposed on non-capital defendants. Experience also shows that men and women who were ultimately exonerated—who were factually innocent of the crime for which they were convicted—were unable to meet the actual innocence standard that Proposition 66 now seeks to impose on those capital defendants bringing successive petitions. Had these individuals faced Proposition 66’s actual innocence standard, they might never have been able to present the evidence that ultimately exonerated them. This disparate treatment is indefensible.  Because it increases the risk that an innocent person will be executed to an unacceptably high level, Prop 66 must be struck down.
Decision

Petition seeking writ of mandate and injunctive relief, challenging constitutionality of certain aspects of Proposition 66, the Death Penalty Reform and Savings Act was denied.
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Black, Justin v. Plumley, Marvin (2016)

Counsel West Virginia Innocence Project
Courts Circuit Court of Cabell County (West Virginia)
Issues Access to Post-Conviction DNA Testing
Case Number 13-C-486
Position DNA testing statute requires testing when all statutory conditions are met and does not prohibit testing under any circumstances.
Decision Pending.
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Denny, Jeffrey C. v. State of Wisconsin (2016)

Counsel Axley Brynelson, LLP
Courts Wisconsin Supreme Court
Issues Access to Post-Conviction DNA Testing
Case Number 2015AP0202-CR
Position DNA testing statute requires testing when all statutory conditions are met and does not prohibit testing under any circumstances.
Decision

The WI Supreme Court held: (1) statute requiring DA to turn over test results, physical evidence, and biological samples does not give a defendant the right to conduct DNA testing of that evidence; overruling State v. Moran, and (2) defendant was not entitled to postconviction DNA testing, as it was not reasonably probable he would have been acquitted if exculpatory DNA testing results had been available.
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Horton, John v. People of the State of Illinois (2016)

Counsel Jenner & Block LLP
Courts Illinois Court of Appeals
Issues Access to Post-Conviction DNA Testing; New Evidence of Innocence; Other Issues
Case Number 93 CF 1991
Position Third-party confessions should be considered, rather than dismissed out of hand, especially when they contain hallmarks of reliability as compared to the confession evidence presented by the State at trial.
Decision The trial court erred in denying Horton leave to file a successive post-conviction petition alleging that the State violated its discovery obligations pursuant to Brady v. Maryland. Because the pleadings and record establish a Brady violation, Horton’s convictions were reversed and the case was remanded for a new trial.
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Clark, Tyrone v. Commonwealth (2015)

Counsel  Lisa M. Kavanaugh and Ira L. Gant, Committee for Public Counsel Services Innocence Program
Courts Mass. Supreme Judicial Court
Issues Access to Post-Conviction DNA Testing
Case Number SJC-11815
Position Defendant seeking postconviction DNA testing are required to prove the evidence sought to be tested exists and the requested analysis has the potential to yield evidence material to the identity of the perpetrator. They are not required to show a reasonable possibility the evidence contains biological material.
Decision Trial court erred in determining Clark was required to establish the existence of biological material on the evidence he sought to have tested and its order denying testing is reversed.
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Payne, John v. Commonwealth of Pennsylvania (2015)

Counsel Pennsylvania Innocence Project; Innocence Project
Courts Pennsylvania Superior Court
Issues Access to Post-Conviction DNA Testing; Actual Innocence
Case Number 1113 MDA 2013
Position In interpreting requests under Pennsylvania’s DNA statute, Court should apply a liberal standard for requests where DNA testing has the ability to show an applicant’s “actual innocence.”
Decision Favorable. In interpreting Pennsylvania’s post-conviction statute which requires testing unless there is “no reasonable probability” it would produce exculpatory results: “We must emphatically state that, with respect to the burden on a Section 9543.1 petitioner, “no reasonable probability” does not mean, “no likely probability.” It should go without saying that the most likely result of Section 9543.1 DNA testing will corroborate a petitioner’s guilt, confirm it outright, or simply fail to cast significant doubt on the verdict. However, the very purpose of Section 9543.1 must be to afford a petitioner the opportunity to demonstrate the unlikely. The threshold question is, therefore, not the likelihood of proof of innocence, but whether it is within the realm of reason that some result(s) could prove innocence.”
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Perrot, George v. Commonwealth (2015)

Counsel Proskauer Rose LLP
Courts Hampden County Superior Court, Massachusetts
Issues Access to Post-Conviction DNA Testing; Ineffective Assistance of Counsel; New Evidence of Innocence; Unreliable Forensic Science
Case Number 85-5415, 16, 18, 20, 25
Position Flawed forensics, and microscopic hair comparisons in particular, erode confidence in past convictions. Without other, more reliable, evidence as a foundation for a conviction, courts should not deny a defendant a hearing to explore whether the forensics used to convict him retain their believed reliability.
Decision This decision holds that the 2009 National Academy of Sciences Report, Strengthening Forensic Sciences in the United States: A Path Forward, and the FBI Hair Microscopy Audit are newly discovered evidence that demonstrates the limits of hair microscopy.
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Sireci, Henry v. State of Florida (2015)

Counsel Garland, Samuel & Loeb, P.C.; Proskauer Rose LLP
Courts Florida Supreme Court
Issues Access to Post-Conviction DNA Testing; Actual Innocence; Unreliable Forensic Science
Case Number SC 15-307
Position In short, this newly discovered evidence raises substantial doubt as to the accuracy and fairness of Mr. Sireci’s conviction. The hair comparison evidence that formed the basis of Mr. Sireci’s conviction is scientifically invalid and his conviction must be reversed, or at minimum entitles him to an evidentiary hearing.
Decision On December 16, 2015, the Florida Supreme Court affirmed the lower court’s denial of Mr. Sireci’s Motion to Vacate Judgment of Conviction and Sentence. Sireci v. State, 192 SO. 3d 42 (Fla. 2015).
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Wade, Robert v. Commonwealth of Massachusetts (2015)

Counsel Committee for Public Council Services; New England Innocence Project; Massachusetts Association of Criminal Defense Lawyers
Courts Supreme Judicial Court (Massachusetts)
Issues Access to Post-Conviction DNA Testing; Ineffective Assistance of Counsel
Case Number SJC-11913
Position To obtain post-conviction DNA testing, defendants should not have to prove the exact reason that DNA testing was not previously performed in their case. It should be enough to show that the evidence still exists, and that a testing method now exists that is materially improved from what existed at trial. Similarly, where defendants have proven that an improved testing method exists, they should not have to also show that a reasonably effective trial attorney would have requested this method at trial – if it had existed back then. Additionally, arguing that a reasonably effective attorney would have requested the DNA test does not, by itself, waive the attorney-client privilege. Prosecutors should not be able to call trial counsel as a witness and inquire about privileged communications on this basis.
Decision The Court concluded that because Wade demonstrated that “the requested analysis had not yet been developed at the time of conviction,” he met the requirement of the act to establish one of the five enumerated reasons explaining why the requested testing was not previously conducted. It was therefore an abuse of discretion for the Superior Court judge to deny Wade’s motion for scientific testing on the ground that Wade also was required to establish that the enumerated reason was the “primary reason” that his trial attorney did not seek the requested analysis, and that a reasonably effective attorney would have done so. The orders denying the motion for scientific testing and denying the motion to strike are reversed. The matter was remanded to the Superior Court, where an order shall enter that the requested scientific analysis be conducted forthwith, and for further proceedings consistent with this opinion.
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Crumpton, Lindsey L. v.  State of Washington (2014)

Counsel Graham & Dunn LLP; ACLU WA Foundation
Courts Washington Supreme Court
Issues Access to Post-Conviction DNA Testing
Case Number 88336-0
Position When considering a post-conviction motion for DNA testing, the trial court must presume that the test results would be favorable to the convicted felon.
Decision A trial court should presume that DNA results would be favorable to the defendant when determining whether a petitioner is entitled to post-conviction DNA testing.
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Donald, Stanley v. Commonwealth of Massachusetts (2013)

Counsel Pepper Hamilton LLP
Courts Mass. Supreme Judicial Court
Issues Access to Post-Conviction DNA Testing; Other Issues
Case Number SJC-11348
Position The weight of inculpatory evidence used to convict an individual should not be relevant to a determination of his right to access potentially exculpatory evidence under Chapter 278A (revised Massachusetts DNA-Access Law).
Decision Affirmed the order denying the renewed G.L. c. 278A, § 3 motion on May 6, 2014.
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Wade, Robert v. Commonwealth (2013)

Counsel Pepper Hamilton LLP
Courts Mass. Supreme Judicial Court
Issues Access to Post-Conviction DNA Testing; Other Issues
Case Number SJC-11506
Position Access to DNA testing should be granted in cases where DNA could potentially identify the real perpetrator, despite the existence of trial evidence that appeared overwhelming at the time. Furthermore, under Massachusetts’ revised DNA-Access law (Chapter 278A), the movant must only show that the forensic analysis “has the potential to result in information that is material to the movant’s identification as the perpetrator of the crime,” a much more lenient standard than the previous law (Mass. R. Crim. P. Rule 30).
Decision Decided March 14, 2014. Reversed the order denying the G. L. c. 278A, § 3 motion and remanded the case to the Superior Court for a hearing pursuant to G. L. c. 278A, § 7.
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Watson, Bill Tyrone James Descharm, United States v. (2013)

Counsel Smith and Stephens, P.C.
Courts U.S. Court of Appeals, Ninth Circuit
Issues Access to Postconviction DNA Testing
Case Number 06-45-GF-SEH
Position Prisoners have a right to post-conviction DNA testing in every case where favorable test results might create a reasonable probability of a different outcome.  They are exempted from the timeliness requirement of the Innocence Protection Act (IPA) because previously unavailable methods constitute “newly discovered evidence” under the Act.
Decision District court’s denial of testing under the IPA is reversed.  Watson established theory of defense that could establish his actual innocence and the identity of the perpetrator was at issue at trial.  Furthermore, new DNA tests that make previously-useless DNA capable of identification amount to “newly discovered evidence” under the IPA, thereby rebutting the presumption of untimeliness.
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Hood, Charles A. v. United States (2011)

Counsel Morrison & Foerster LLP
Courts District of Columbia Court of Appeals
Issues Access to Post-Conviction DNA Testing
Case Number 08-CO-1581
Position The Innocence Protection Act must be interpreted in a way to allow DNA analysis of “touch” DNA.
Decision Trace skin cells that defendant alleged might be present on items taken from crime scene were not “biological material” that was eligible for post-conviction DNA testing pursuant to the IPA, and the defendant failed to demonstrate a reasonable probability that additional DNA testing would produce non-cumulative evidence that would help establish that he was actually innocent.
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Roberts, Clarence D. v. State of Ohio (2011)

Counsel Davis Polk & Wardell LLP
Courts Ohio Supreme Court
Issues Access to Post-Conviction DNA Testing
Case Number 11-1882
Position Ohio’s preservation statute requires preservation of DNA evidence in the State’s possession as of the statute’s effective date.
Decision While the court ruled that R.C. 2933.82 (Ohio legislation) is not retroactive, it does apply to biological evidence in the possession of governmental evidence-retention entities at the time of its effective date. Therefore, the Court reversed the judgment of the court of appeals and remanded the cause to the trial court to order the preservation and cataloging of the physical evidence in Roberts’ case.
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Thompson, Bobby v. State of Washington (2011)

Counsel Graham and Dunn, PC
Courts Washington Supreme Court
Issues False Confessions; Access to Post-Conviction DNA Testing
Case Number 84739–8
Position Confessions should not bar post-conviction DNA testing, which can often demonstrate innocence of the accused.
Decision Affirming Court of Appeals decision to allow post-conviction DNA testing and citing to Innocence Network brief.
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Prade, Douglas v. State of Ohio (2009)

Counsel Paul, Weiss, Rifkind, Wharton & Garrison LLP
Courts Ohio Supreme Court
Issues Access to Post-Conviction DNA Testing; Unreliable Forensic Science
Case Number 2009-0605
Position DNA analysis should be allowed in case where petitioner’s conviction was based on now-discredited bite mark evidence.
Decision Prior DNA tests were not “definitive” within Ohio statute. Court of Appeals judgment reversed and case remanded to consider whether new DNA testing would be “outcome determinative” under statute.
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Riofta, Alexander v. State of Washington (2009)

Counsel Anna M. Tolin; Weil, Gotshal & Manges LLP
Courts Washington Supreme Court
Issues Eyewitness Identification; Access to Post-Conviction DNA Testing
Case Number 79407-3
Position DNA testing should be conducted in case where eyewitness identification was unreliable.
Decision The Court upholds the decision and declines to order a DNA hat test per RCW 10.73.170. The majority holds that Riofta failed to show that the results of a DNA test on the hat (which had been stolen the day before Ratthana was shot at) “would demonstrated innocence on a more probable than not basis.”
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Smith, Frederick J., In Re (2008)

Counsel Wilmer Cutler Pickering Hale and Dorr LLP
Courts U.S. Court of Appeals, Sixth Circuit
Issues Access to Post-Conviction DNA Testing
Case Number 07-1220
Position §1983 actions for post-conviction DNA testing are not barred by Heck v. Humphrey.
Decision Rooker- Feldman doctrine applied; freestanding substantive due process right did not exist for DNA testing; and Michigan law governing procedures for DNA testing in criminal case did not violate due process.
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Williams, Archie, State of Louisiana v. (2007)

Counsel Public Interest Litigation Clinic (now the Death Penalty Litigation Clinic); Center on Wrongful Convictions; The Innocence Project
Courts Missouri Supreme Court
Issues Access to Post-Conviction DNA Testing
Case Number 85448 and 85552
Position NOTE: Brief not filed because relief granted. Postconviction DNA testing statutes permit DNA testing in cases in which the defendant pled guilty or confessed.
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Alley, Sedley v. State of Tennessee (2006)

Counsel Wisconsin Innocence Project
Courts Tennessee Supreme Court
Issues Access to Post-Conviction DNA Testing; Electronic Recording of Custodial Interrogations
Case Number W2006-001179-CCA-R3-PD
Position Prisoners have a right to postconviction DNA testing, regardless of perceived “strength” of state’s case, where the DNA might help establish innocence not just by an exclusion of defendant, but also by a match to a third-party or by redundant crime scene DNA profiles that all exclude defendant. Rules barring or limiting third-party perpetrator evidence should be abolished; such evidence should be considered on an equal footing as any other type of evidence, which is evaluated by considering relevance and the risk of undue prejudice, and not some heightened relevance or presumed prejudice standard. Third-party perpetrator evidence cannot be excluded simply because the state or a court views the state’s evidence as “overwhelming.”
Decision Abrogated by Powers v. State, 343 S.W.3d 36 (Tenn. 2011). Post-Conviction DNA Act permits access to a DNA database if a positive match between the crime scene DNA and a profile contained within the database would create a reasonable probability that a petitioner would not have been prosecuted or convicted if exculpatory results had been obtained or would have rendered a more favorable verdict or sentence if the results had been previously available.
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Phillips v. State (2006)

Counsel The Innocence Project; The Innocence Project of Texas The Texas Center for Actual Innocence; The Texas Innocence Network
Courts Texas Court of Criminal Appeals
Issues Access to Post-Conviction DNA Testing
Position Urging court to reject narrow interpretation of Texas’ postconviction DNA testing statute. Urges court to recognize that the “would not have been convicted” standard is met, even if an exclusion of defendant alone would not conclusively prove Innocence, where alternate sources of the DNA (e.g., the victim’s husband) can be excluded by other testing, or where a database hit might prove Innocence. Also urges court to interpret the statute’s “identity at issue” requirement so as not to exclude individuals who claim to have not participated in the crime.
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Moran, James v. State (2005)

Counsel
Courts Wisconsin Supreme Court
Issues Access to Post-Conviction DNA Testing
Case Number 03-0561-CR
Position State postconviction DNA statutes, which mandate DNA testing if the testing might create a “reasonable probability” of a different outcome, do not create “outcome determinative test” (in which defendant must prove that a different result is more likely than not), but rather an “undermines confidence” test, as understood in Strickland and Brady. The standard of review on appeal of a trial court’s denial of a DNA motion should be de novo.
Decision The Wisconsin Supreme Court held that a Wisconsin Statute gave the defendant the right to perform DNA tests on certain materials, assuming the defendant could prove three statutory prerequisites: 1) the evidence is relevant; 2) the evidence is in the possession of a government agency; and 3) the evidence has not been previously subject to DNA testing.
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Young, John K. v. Commonwealth (2005)

Counsel The Innocence Project
Courts Supreme Ct. of PA, Eastern Dist.
Issues Access to Post-Conviction DNA Testing
Case Number 324-EAL-2005
Position Postconviction DNA testing statutes permit DNA testing in cases in which the defendant pled guilty or confessed.
Decision The petition for allowance of defendant’s appeal was denied.
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Actual Innocence

Beaman, Alan v. Freesmeyer, Tim, et al. (2020)

Counsel Quarles & Brady LLP  
Courts

Illinois Supreme Court  
Issues

Actual Innocence; Compensation; Police or Prosecutorial Misconduct  
Case Number

125617  
Position

In a civil claim for malicious prosecution following exoneration, the Illinois Court of Appeals’s holding on “absence of probable cause” improperly heightens the standard for a malicious prosecution claim, while not giving due weight to the fact that plaintiff was wrongfully convicted. If the Court of Appeals’s position were correct, the wrongful conduct of police officers in other Illinois cases would most likely have been immune from malicious prosecution claims.
Decision Pending 
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Reeves, Jerry v. Coleman, Brian (2018)

Counsel Cohen & Gresser LLP
Courts Third Circuit Court of Appeals
Issues Actual Innocence 
Case Number 17-1043
Position When considering the “actual innocence gateway” gateway, courts should evaluate evidence whether it is newly discovered since the trial, or it was available at the time of trial but never presented to the jury.
Decision Decided: July 23, 2018. Reeves has identified evidence that may show actual innocence that was not presented to the jury. Vacated and remanded for further proceedings.
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Bradford, Glenn Patrick v. Brown, Richard (2016)

Counsel Jenner & Block LLP
Courts Seventh Circuit Court of Appeals
Issues Actual Innocence; New Evidence of Innocence
Case Number Case No. 15-3706
Position Freestanding innocence claims are cognizable under the Fourteenth and Eighth Amendments and should be reviewed under a standard granting federal habeas corpus relief upon a showing that the petitioner was “probably” innocent.
Decision Seventh Circuit granted en banc review.
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Browning, Paul Lewis v. Baker, Renee (2016)

Counsel Cooley LLP
Courts Ninth Circuit Court of Appeals
Issues Actual Innocence; Eyewitness Identification; Ineffective Assistance of Counsel; Informant Testimony; New Evidence of Innocence; Police and Prosecutorial Misconduct; Unreliable Forensic Science
Case Number 15-99002
Position Exculpatory evidence withheld by the state undermines confidence in a verdict based on evidence of known unreliability (incentivized witnesses, flawed forensics and eyewitness identification) and on false corroboration.
Decision Granted habeas petition in Nevada death penalty case on Brady and IAC grounds, finding that state court decision was objectively unreasonable, see 875 F.3d 444 (2017).
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Donley, Patrick v. State of Wisconsin (2016)

Counsel Paul, Weiss, Rifkind, Wharton & Garrison LLP
Courts Wisconsin Court of Appeals
Issues Actual Innocence; False Confessions; Ineffective Assistance of Counsel; New Evidence of Innocence; Unreliable Forensic Science; Shaken Baby Syndrome
Case Number 2015AP000592
Position Confessions can be coerced and unreliable and therefore should not always be dispositive, particularly in the SB S context , when contemporary research reveals that SBS theory is, and always has been, merely an unsupported hypothesis.
Decision Affirmed the circuit court’s order on April 11, 2017.
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Yell, Robert v. State of Wisconsin (2016)

Counsel Duane Morris, LLP; The Simon Law Office
Courts Logan Circuit Court
Issues Actual Innocence; Unreliable Forensic Science
Case Number 04-CR-232
Position The undeniable advances in fire investigation science since Mr. Yell’s trial and the guidelines and principles adopted by the National Fire Protection Association, the International Association of Arson Investigators, and the Canine Accelerant Detection Association, all show that the outmoded investigative techniques that led to Mr. Yell’s conviction were unreliable and based more on myth than science. The ADC’s six uncorroborated alerts and his handler’s testimony regarding his subjective belief (without any proof) that the canine’s alerts were more accurate than laboratory analysis—evidence which the Commonwealth exploited in closing argument—would not be admissible in a new trial.
Decision The court found that the arson science presented at trial was so unreliable that would today be inadmissible, and that the conclusions were likely the product of “confirmation bias” on the part of the investigators, who believed Mr. Yell had set the fire in which one of his children perished. The court overturned Mr. Yell’s conviction.
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Ceasor, Terry v. Warden, John (2015)

Counsel Foley & Lardner LLP
Courts U.S. Court of Appeals for the Sixth Circuit
Issues Actual Innocence; Ineffective Assistance of Counsel; New Evidence of Innocence; Shaken Baby Syndrome
Case Number 15=1145
Position Public policy compels a finding of ineffective assistance of counsel in cases where there is a significant scientific dispute over the evidence and the defense fails to produce an expert. The failure to adequately investigate an expert witness and present expert testimony in an SBS/AHT case constitutes ineffective assistance of counsel.
Decision Decided: July 01, 2016. Reversed the district court’s judgment denying habeas relief and remanded for an evidentiary hearing on the merits of Ceasor’s ineffective assistance of appellate counsel claim.
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Clark, Darius v. Ohio (2015)

Counsel Wilmer Cutler Pickering Hale and Dorr LLP
Courts U.S. Supreme Court
Issues Actual Innocence; Eyewitness Identification
Case Number 13-1352
Position There is no basis, objective or subjective, to categorically exempt statements made by young children to a mandated reporter from the protections of the Confrontation Clause.
Decision The Supreme Court of the United States held that admission of the teacher’s testimony did not violate the confrontation clause in that the three-year-old’s statements to his teachers were non-testimonial because the totality of the circumstances indicated that the primary purpose of the conversation was not to create an out-of-court substitute for trial testimony.
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Colon, Fernando v. State of Ohio (2015)

Counsel Tucker Ellis LLP
Courts Court of Appeals Of Ohio, Eighth Appellate District
Issues Actual Innocence; New Evidence of Innocence
Case Number 103150
Position Trial courts must be allowed to exercise discretion to grant additional discovery in post-conviction matters where there is a colorable claim of “actual innocence.”
Decision The trial court erred in granting a criminal defendant’s motion for post-conviction discovery. Case dismissed for lack of a final appealable order February 23, 2016.
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Crawford, Rodricus v. State of Louisiana (2015)

Counsel Jones Walker LLP; Wachtell, Lipton, Rosen & Katz
Courts Louisiana Supreme Court
Issues Actual Innocence; Unreliable Forensic Science
Case Number 2014-KA-2153
Position The prosecution’s medical expert testimony has no basis in science and is belied by the decedent child’s medical history. Prosecution expert witnesses showed actual bias against the defendant, resulting in an improper and unsupportable medical conclusion.
Decision Undecided
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Larson, Robert, Gassman, Tyler and Statler, Paul v. State of Washington (2015)

Counsel Miller Nash Graham & Dunn LLP
Courts Washington Court of Appeals
Issues Actual Innocence; Compensation; New Evidence of Innocence
Case Number No. 33179-2
Position Wrongful conviction compensation statutes should be broadly construed in favor of exonerated individuals, with reasonable burdens of proof required.
Decision The Washington Court of Appeals reversed the trial court’s interpretation of “significant new exculpatory information” and its imposition of an improperly high burden of proof on the “actually innocent” element. The case was remanded to the trial court to decide whether the claimants proved by clear and convincing evidence they are actually innocent.
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McKoy, Lamont v. State of North Carolina (2015)

Counsel Womble Carlyle Sandridge & Rice, LLP
Courts North Carolina Court of Appeals
Issues Actual Innocence; New Evidence of Innocence; Other Issues
Case Number O9 CRS 11412
Position Evidence of actual innocence is sufficient in this case to overcome procedural bars and warrants an evidentiary hearing.
Decision Petition was denied.
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Patel, Purvi v. State of Indiana (2015)

Counsel Goldman Ismail Tomaselli Brennan & Baum LLP
Courts Indiana Court of Appeals
Issues Actual Innocence; Unreliable Forensic Science
Case Number 71A04-1504-CR-00166
Position Challenges to unsound forensic sciences should be basis for granting a new trial.
Decision The Indiana Court of Appeals overturned Patel’s the conviction and reduced a second charge of neglecting a dependent.
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Payne, John v. Commonwealth of Pennsylvania (2015)

Counsel Pennsylvania Innocence Project; Innocence Project
Courts Pennsylvania Superior Court
Issues Access to Post-Conviction DNA Testing; Actual Innocence
Case Number 1113 MDA 2013
Position In interpreting requests under Pennsylvania’s DNA statute, Court should apply a liberal standard for requests where DNA testing has the ability to show an applicant’s “actual innocence.”
Decision Favorable. In interpreting Pennsylvania’s post-conviction statute which requires testing unless there is “no reasonable probability” it would produce exculpatory results: “We must emphatically state that, with respect to the burden on a Section 9543.1 petitioner, “no reasonable probability” does not mean, “no likely probability.” It should go without saying that the most likely result of Section 9543.1 DNA testing will corroborate a petitioner’s guilt, confirm it outright, or simply fail to cast significant doubt on the verdict. However, the very purpose of Section 9543.1 must be to afford a petitioner the opportunity to demonstrate the unlikely.18 The threshold question is, therefore, not the likelihood of proof of innocence, but whether it is within the realm of reason that some result(s) could prove innocence.”
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Simmons, Kenneth v. State of South Carolina (2015)

Counsel Cooley LLP
Courts Supreme Court of South Carolina
Issues Actual Innocence; False Confessions; Unreliable Forensic Science
Case Number Appellate Case No. 2014-000387
Position The State’s fatally flawed testing, analysis, and presentation of DNA evidence deprived Mr. Simmons of a fair trial. To sustain Mr. Simmons’s conviction based on this improper DNA evidence would be unjust, and would also cast a needless shadow of doubt over the wider use of DNA evidence. Rather than compromise one of the justice system’s powerful tools for convicting the guilty and preserving liberty for the innocent, the Court should overturn Mr. Simmons’s conviction.
Decision Decided June 8, 2016. Vacated in part and remanded to the PCR court for proceedings.
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Sireci, Henry v. State of Florida (2015)

Counsel Garland, Samuel & Loeb, P.C.; Proskauer Rose LLP
Courts Florida Supreme Court
Issues Access to Post-Conviction DNA Testing; Actual Innocence; Unreliable Forensic Science
Case Number SC 15-307
Position In short, this newly discovered evidence raises substantial doubt as to the accuracy and fairness of Mr. Sireci’s conviction. The hair comparison evidence that formed the basis of Mr. Sireci’s conviction is scientifically invalid and his conviction must be reversed, or at minimum entitles him to an evidentiary hearing.
Decision On December 16, 2015, the Florida Supreme Court affirmed the lower court’s denial of Mr. Sireci’s Motion to Vacate Judgment of Conviction and Sentence. Sireci v. State, 192 SO. 3d 42 (Fla. 2015).
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Cope, Billy Wayne, State of South Carolina v. (2014)

Counsel Jenner & Block LLP
Courts South Carolina Supreme Court
Issues False Confessions; Actual Innocence
Case Number Appellate Case No. 2009-143966
Position False confession evidence is not inherently reliable and yet it has a strong biasing effect; thus there is a critical need for the defense to be able to mount a powerful third party guilt defense that relies not only on scientific evidence but also on traditional third party guilt evidence.
Decision Petition for certiorari denied on October 20, 2014.
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Case, Carl v. Timothy Hatch, Warden (2013)

Counsel Davis Polk & Wardell LLP
Courts U.S. Supreme Court
Issues Actual Innocence; New Evidence of Innocence; Police and Prosecutorial Misconduct
Case Number 13-5307
Position The Tenth Circuit’s Decision to exclude important newly discovered exculpatory evidence from federal habeas courts’ consideration misinterprets the Antiterrorism and Effective Death Penalty of 1996 and creates a circuit split that should be resolved.
Decision Decision to grant certiorari pending.
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Garrett, William v. People (2013)

Counsel Foley & Lardner
Courts Michigan Supreme Court
Issues Actual Innocence; Ineffective Assistance of Counsel; New Evidence of Innocence
Case Number 145594
Position Under both the Michigan constitution and the U.S. constitution, there should be a freestanding claim of actual innocence and that proof of innocence should sufficient to overcome procedural barriers to habeas relief
Decision Affirmed the Wayne Circuit Court’s Opinion and Order denying defendant’s motion for relief from judgment on December 20, 2013.
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Griffith, Evan v. Rednour (2011)

Counsel Cooley LLP
Courts U.S. Supreme Court
Issues Actual Innocence
Case Number 10-980
Position The actual innocence gateway applies to AEDPA’s statute of limitations.
Decision Petition for writ of certiorari denied.
PDFicon Griffith-Evan-v.-Rednour.pdf

Floyd, John v. Cain (2010)

Counsel Fried, Frank, Harris, Shriver & Jacobson LLP; James E. Boren
Courts Louisiana Supreme Court
Issues Actual Innocence
Case Number 2010-KP-0085
Position Post-conviction petitioners, who can establish their actual innocence through newly-discovered evidence of any type, are entitled to seek relief.
Decision Writ denied.
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Lee, Richard v. Lampert (2010)

Counsel Cooley LLP
Courts U.S. Court of Appeals, Ninth Circuit
Issues Actual Innocence
Case Number 09-35276
Position The Schlup actual innocence exception recognized for successive petitions applies to the one-year statute of limitation for filing an original petition for habeas corpus relief.
Decision A petitioner is not barred by the AEDPA statute of limitations from filing an otherwise untimely habeas petition if the petitioner makes a credible showing of “actual innocence” under Schlup v. Delo, but found that the evidence presented in this case was not sufficient.
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Roane, James H., In Re (2010)

Counsel DLA Piper LLP
Courts U.S. Court of Appeals, Fourth Circuit, U.S. Supreme Court
Issues Actual Innocence
Case Number 10-7304
Position Long-standing Eighth Amendment jurisprudence mitigates against the execution of an actually innocence person and an evidentiary hearing is required to assess petitioner’s claim of innocence.
Decision Petition for writ of certiorari denied.
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Swearingen, Larry R. v. Thaler (2010)

Counsel Skadden, Arps, Slate, Meagher & Flom LLP
Courts U.S. Court of Appeals, Fifth Circuit
Issues Actual Innocence
Case Number 09-70036
Position The Eighth and Fourteenth Amendments prohibit the execution of actually innocent people and the petitioner exercised due diligence in bringing forward new evidence of innocence.
Decision Petitioner’s claims remanded to the trial court and execution stayed.
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Souliotes, George A. v. Anthony Hedgpeth (2009)

Counsel Cooley, Godward & Kronish LLP
Courts U.S. Court of Appeals, Ninth Circuit
Issues New Evidence of Innocence
Actual Innocence
Case Number 08-15943
Position Advances in scientific research in arson cases support Souliotes’ claim of actual innocence and he exercised due diligence in bringing claim forward.
Decision Remanded for an evidentiary hearing on whether new fire testing methods could have been discovered earlier through due diligence (citing Innocence Network brief), but holding that there is no actual innocence gateway to the AEDPA statute of limitations.
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Hunt, Lee Wayne v. State of North Carolina (2007)

Counsel Womble Carlyle Sandridge & Rice PLLC
Courts North Carolina Court of Appeals
Issues Actual Innocence
Case Number 85CRS 16651-16654
Position The attorney-client privilege should not prevent an attorney from revealing, once his or her client has died, that the client told counsel that he alone committed a crime for which another person was wrongly convicted.
Decision The North Carolina Court of Appeals refused to review the decision of the district court. The defendant’s attorney appealed directly to the North Carolina Supreme Court, which denied certiorari.
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Holmes v. South Carolina (2005)

Counsel
Courts U.S. Supreme Court
Issues Actual Innocence
Position Challenging evidentiary rule that excluded evidence of third party guilt that directly undermines the strength of the prosecution’s evidence against the defendant.
Decision The Supreme Court vacated the judgment of the state supreme court, holding that exclusion of the evidence of third party guilt violate the defendant’s right to present a complete defense. The fact that the prosecution had a strong case against the defendant involving forensic evidence did not mean that contrary evidence casting doubt on the defendant’s guilt did not need to be considered.
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Lott, Gregory, In re (2005)

Counsel Mayer, Brown, Rowe & Maw LLP
Courts U.S. Court of Appeals, Sixth Circuit
Issues Actual Innocence
Case Number 05-3532
Position A claim of actual Innocence in habeas proceedings cannot be deemed a waiver of the attorney/client and work product privileges.
Decision Petitioner’s assertion of actual innocence did not effect waiver of attorney-client or work product privilege.
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Van Buskirk, Mark Steven v. Baldwin (2001)

Counsel Northern California Innocence Project (by Morrison & Foerster)
Courts Ninth Circuit
Issues Actual Innocence
Case Number 00-35640
Position Imposing a “due diligence” requirement on a defendant’s actual Innocence claim is impermissible when actual Innocence is raised as a gateway claim for federal habeas relief under Schlup v. Delo.
Decision The Ninth Circuit affirmed the district court’s denial of habeas corpus relief. The court states that the defendant’s evidence of actual innocence was insufficient to satisfy Schlup v. Delo’s threshold requirement for asserting an actual innocence claim. The court therefore found it unnecessary to address whether it was impermissible to impose a “due diligence” requirement on an actual innocence claim.
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Compensation

Beaman, Alan v. Freesmeyer, Tim, et al. (2020)

Counsel Quarles & Brady LLP  
Courts

Illinois Supreme Court  
Issues

Actual Innocence; Compensation; Police or Prosecutorial Misconduct  
Case Number

125617  
Position

In a civil claim for malicious prosecution following exoneration, the Illinois Court of Appeals’s holding on “absence of probable cause” improperly heightens the standard for a malicious prosecution claim, while not giving due weight to the fact that plaintiff was wrongfully convicted. If the Court of Appeals’s position were correct, the wrongful conduct of police officers in other Illinois cases would most likely have been immune from malicious prosecution claims.
Decision Pending 
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Back, Danna Rochelle v. State of Minnesota (2017)

Counsel Dorsey & Whitney LLP
Courts Minnesota Supreme Court
Issues Compensation
Case Number A15-1637
Position The statutory phrase “on grounds consistent with innocence” is unambiguous and means on grounds compatible or in agreement with innocence. New evidence is not required to establish “on grounds consistent with innocence.” Prosecutors should not function as gatekeepers to determine a person’s initial eligibility for compensation under the statute.
Decision

A claimant has not been “exonerated” under Minnesota’s Imprisonment and Exoneration Remedies Act unless the prosecutor dismisses the charges, even if an appellate court has already reversed or vacated the claimant’s conviction on grounds consistent with innocence.
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Manuel, Elijah v. City of Joliet (2016)

Counsel Innocence Project of Florida; Pennsylvania Innocence Project; Weil, Gotshal & Manges LLP
Courts United States Supreme Court
Issues Compensation; Police and Prosecutorial Misconduct
Case Number 14-9496
Position  Malicious prosecution action based on the Fourth Amendment is cognizable under § 1983.
Decision

The Fourth Amendment governs a claim for unlawful pretrial detention even beyond the start of legal process, abrogating Newsome v. McCabe, 256 F.3d 747, and Llovet v. Chicago, 761 F.3d 759, see 137 S. Ct. 911, (2017).
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Washington Counties Risk Pool; American International Group, INC.; Lexington Insurance Company, INC.; Vyrle Hill; J. William Ashbaugh; Ace American Insurance Company v. Clark County; Slagle, Donald; David, Larry; Northrop, Alan (2016)

Counsel Miller Nash Graham & Dunn LLP
Courts Washington Supreme Court
Issues Compensation; Police and Prosecutorial Misconduct
Case Number 91154-1
Position In cases involving an intentional Brady violation, the government’s failure to correct the violation and disclose the exculpatory evidence can constitute ongoing misconduct.
Decision After oral argument, the parties negotiated a settlement and the appeal was withdrawn.
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Larson, Robert, Gassman, Tyler and Statler, Paul v. State of Washington (2015)

Counsel Miller Nash Graham & Dunn LLP
Courts Washington Court of Appeals
Issues Actual Innocence; Compensation; New Evidence of Innocence
Case Number No. 33179-2
Position Wrongful conviction compensation statutes should be broadly construed in favor of exonerated individuals, with reasonable burdens of proof required.
Decision The Washington Court of Appeals reversed the trial court’s interpretation of “significant new exculpatory information” and its imposition of an improperly high burden of proof on the “actually innocent” element. The case was remanded to the trial court to decide whether the claimants proved by clear and convincing evidence they are actually innocent.
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Warney, Douglas, v. State of New York (2010)

Counsel Belknap, Webb & Tyler LLP
Courts New York Court of Appeals
Issues False Confessions; Compensation
Case Number CA 08 02261
Position An innocent person’s confession should not be a bar to wrongful conviction compensation.
Decision Warney’s confession and other statements did not warrant dismissal of his claim for compensation on the ground that he caused or brought about his conviction.
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Electronic Recording of Custodial Interrogations

Thomas, Adrian, State of New York v. (2013)

Counsel Milbank, Tweed, Hadley & McCloy LLP
Courts New York Court of Appeals
Issues Electronic Recording of Custodial Interrogations; False Confessions
Case Number 2-12-00306
Position
  1. The interrogation tactics used produced a coerced and unreliable confession;
  2. When a disputed confession is admitted into evidence, expert testimony on false confessions must be allowed as a necessary safeguard to prevent wrongful convictions; and
  3. The court should require videotaping of complete interrogations.
Decision People v. Thomas, — N.E.3d —- (2014), reversed conviction and granted motion to suppress, holding that (1) incriminating statements by defendant were not voluntary but were products of coercion, in violation of Due Process Clause of Fourteenth Amendment, and (2) defendant’s inculpating statements were inadmissible as involuntarily made.
PDFicon Thomas-Adrian-State-of-New-York-v.pdf

Kowalski, Jerome v. State of Michigan (2011)

Counsel Dykema Gossett PLLC
Courts Michigan Supreme Court; Michigan Court of Appeals
Issues Electronic Recording of Custodial Interrogations
Case Number 141932
Position Trial court erred by excluding expert witness testimony on false confessions.
Decision Decided: July 30, 2012. Held that the circuit court abused its discretion by excluding the proffered testimony regarding defendant’s psychological characteristics because it failed to consider this evidence separately from the properly excluded general expert testimony and therefore failed to properly apply both MRE 702 and MRE 403 to that evidence. Remanded to the circuit court for it to determine whether evidence of defendant’s psychological characteristics is sufficiently reliable for admissibility under MRE 702.
PDFicon Kowalski-Jerome-v.-State-of-Michigan.pdf

Barros, Tracey v. State of Rhode Island (2009)

Counsel Roney & Labinger LLP; DeBevoise & Plimpton LLP; Thomas G. Briody
Courts Rhode Island Supreme Court
Issues Electronic Recording of Custodial Interrogations; False Confessions
Case Number SU-2008-0292
Position Courts should require that custodial interrogations be recorded in full to minimize the risk of convicting innocent defendants.
Decision State v. Barros, 24 A.3d 1158 (Rhode Island 2011). Failure to electronically record interrogation did not provide grounds for exclusion of confession and Court will not exercise supervisory jurisdiction to require electronic recording.
PDFicon Barros-Tracey-v.-State-of-Rhode-Island.pdf

Lockhart, Julian J. v. State of Connecticut (2008)

Counsel Thomas P. Sullivan
Courts Supreme Court of Connecticut
Issues Electronic Recording of Custodial Interrogations
Case Number S.C. 17773
Position Arguing that the court should mandate electronic recording of interrogations. Issues: Electronic Recording of Custodial Interrogations
Decision Defendant did not have right to electronic recordation of confession; Supreme Court would not invoke its inherent supervisory authority to impose electronic recordation requirement; and officer’s testimony was not impermissible comment on defendant’s right to remain silent.
PDFicon  Lockhart, Julian v. State of Connecticut

Alley, Sedley v. State of Tennessee (2006)

Counsel Wisconsin Innocence Project
Courts Tennessee Supreme Court
Issues Access to Post-Conviction DNA Testing; Electronic Recording of Custodial Interrogations
Case Number W2006-001179-CCA-R3-PD
Position Prisoners have a right to postconviction DNA testing, regardless of perceived “strength” of state’s case, where the DNA might help establish innocence not just by an exclusion of defendant, but also by a match to a third-party or by redundant crime scene DNA profiles that all exclude defendant. Rules barring or limiting third-party perpetrator evidence should be abolished; such evidence should be considered on an equal footing as any other type of evidence, which is evaluated by considering relevance and the risk of undue prejudice, and not some heightened relevance or presumed prejudice standard. Third-party perpetrator evidence cannot be excluded simply because the state or a court views the state’s evidence as “overwhelming.”
Decision Abrogated by Powers v. State, 343 S.W.3d 36 (Tenn. 2011). Post-Conviction DNA Act permits access to a DNA database if a positive match between the crime scene DNA and a profile contained within the database would create a reasonable probability that a petitioner would not have been prosecuted or convicted if exculpatory results had been obtained or would have rendered a more favorable verdict or sentence if the results had been previously available.
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Tankleff, Martin v. State of New York (2006)

Counsel The Innocence Project
Courts New York Court of Appeals
Issues False Confessions; Electronic Recording of Custodial Interrogations
Case Number 1209-88 & 1535/88
Position Custodial interrogations of all suspects must be electronically recorded in their entirety. Expert testimony on false confessions can provide basis for new trial. Issues: Electronic Recording of Custodial Interrogations
Decision Petitioner should not have been charged with a lack of due diligence and newly discovered evidence submitted by petitioner warranted a new trial. The Court notes that new evidence has developed that points to a third party murderer.
PDFicon Tankleff-Martin-v.-State-of-New-York.pdf

Otis, Kirk Edward v. State (2005)

Counsel Center on Wrongful Convictions
Courts Supreme Court of Arkansas
Issues Electronic Recording of Custodial Interrogations
Case Number CR-04-01323
Position Custodial interrogations of all suspects must be electronically recorded in their entirety.
Decision The Arkansas Supreme Court affirmed the lower court’s decision that the defendant’s waiver of his Miranda rights was voluntary, knowing and intelligent. The defendant signed the waiver form in front of his mother, the police explained in detail the defendant’s rights and consequences of their waiver, and the defendant confirmed that he understood his rights. Although the Court did not address whether failure to record the interrogations weighed against the voluntariness determination, it appears that several interrogation sessions were in fact recorded.
PDFicon Otis-Kirk-Edward-v.-State.pdf

DiGiambattista, Commonwealth v. (2004)

Counsel
Courts Mass. Supreme Judicial Court
Issues Electronic Recording of Custodial Interrogations
Case Number 9155
Position Custodial interrogations of all suspects must be electronically recorded in their entirety.
Decision The defendant’s conviction was reversed and the case was remanded to the superior court. The Supreme Judicial Court stated that the admission into evidence of a defendant’s confession or statement that was the result of an unrecorded custodial interrogation would entitle the defendant to request a jury instruction concerning the need to evaluate the statement with particular caution. The Supreme Judicial Court did not, however, make recording of an interrogation a prerequisite to the admissibility of a defendant’s statements.
PDFicon DiGiambattista-Commonwealth-v.pdf

Jerrell J., In Re (2004)

Counsel Wisconsin Innocence Project and numerous other Projects and individuals.
Courts Wisconsin Supreme Court
Issues Electronic Recording of Custodial Interrogations
Case Number 02-3423
Position Custodial interrogations of all suspects must be electronically recorded in their entirety.
Decision The Wisconsin Supreme Court reversed the court of appeals (that had affirmed the denial of the defendant’s motion to suppress his confession), finding that the confession was involuntary for various reasons (young defendant; low intelligence; intimidation used). Additionally, as an exercise of the Supreme Court’s supervisory powers, it required that all juvenile custodial interrogations be electronically recorded when possible. Electronic recording was to be required when interrogation occurred in place of detention.
PDFicon Jerrell-J.-In-Re.pdf

Cook Thomahl, State v. (2003)

Counsel Center on Wrongful Convictions; The Innocence Project
Courts New Jersey Supreme Court
Issues Electronic Recording of Custodial Interrogations
Case Number 53,778
Position Custodial interrogations of all suspects must be electronically recorded in their entirety.
Decision The New Jersey Supreme Court affirmed the defendant’s conviction, holding that the Due Process Clause of the New Jersey Constitution does not require electronic recording of custodial interrogations. The Court notes, however, that such a requirement does exist as a matter of due process in Alaska and under Minnesota’s supervisory powers over the criminal justice process.
PDFicon Cook-Thomahl-State-v.pdf

Eyewitness Identification

Browning, Paul Lewis v. Baker, Renee (2016)

Counsel Cooley LLP
Courts Ninth Circuit Court of Appeals
Issues Actual Innocence; Eyewitness Identification; Ineffective Assistance of Counsel; Informant Testimony; New Evidence of Innocence; Police and Prosecutorial Misconduct; Unreliable Forensic Science
Case Number 15-99002
Position Exculpatory evidence withheld by the state undermines confidence in a verdict based on evidence of known unreliability (incentivized witnesses, flawed forensics and eyewitness identification) and on false corroboration.
Decision Granted habeas petition in Nevada death penalty case on Brady and IAC grounds, finding that state court decision was objectively unreasonable, see 875 F.3d 444 (2017).
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Harris, Ernest v. State of Connecticut (2016)

Counsel Bansley | Anthony | Burdo, LLC
Courts State of Connecticut Supreme Court
Issues Eyewitness Identification
Case Number SC 19649
Position
(1)  THE MANSON/LEDBETTER TEST DOES NOT ACHIEVE ITS GOAL OF USING RELIABILITY AS A “LINCHPIN” TO PROTECT DUE PROCESS AND FAIR TRIAL INTERESTS
 
(2) THIS COURT SHOULD ADOPT A LEGAL FRAMEWORK THAT ACCOMMODATES CURRENT SCIENTIFIC FINDINGS AND GUIDES THE LOWER COURTS ON THE USE OF THE EVOLVING BODY OF SCIENTIFIC RESEARCH
Decision Affirmed the judgment of the trial court on September 4, 2018.
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Bailey, Walter v. State of Florida (2015)

Counsel
Courts Third District Court of Appeal, State of Florida
Issues Eyewitness Identification
Case Number 3D13-1533
Position The trial court erred in excluding the expert on eyewitness identification, in a case that turned on eyewitness identification evidence and involved factors that are not commonly understood by jurors.
Decision Opinion filed April 1, 2015. The the trial court did not abuse its discretion in granting the State’s motion to exclude the expert witness testimony on eyewitness identification; that said, the prosecutor’s apparent disregard for rulings and directives from the trial judge are conspicuous, even in an otherwise-cold record. The lead prosecutor should read and reflect on the trial excerpts and analysis detailed in the appellant’s briefs in this case.
PDFicon Bailey, Walter v. State of Florida

Clark, Darius v. Ohio (2015)

Counsel Wilmer Cutler Pickering Hale and Dorr LLP
Courts U.S. Supreme Court
Issues Actual Innocence; Eyewitness Identification
Case Number 13-1352
Position There is no basis, objective or subjective, to categorically exempt statements made by young children to a mandated reporter from the protections of the Confrontation Clause.
Decision The Supreme Court of the United States held that admission of the teacher’s testimony did not violate the confrontation clause in that the three-year-old’s statements to his teachers were non-testimonial because the totality of the circumstances indicated that the primary purpose of the conversation was not to create an out-of-court substitute for trial testimony.
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Gomes, Jeremy, Johnson, Kenneth, Crayton, Walter v. Commonwealth (2015)

Counsel
Courts Massachusetts Supreme Judicial Court
Issues Eyewitness Identification
Case Number SJC-11537
Position The court should adopt reforms to its legal framework for handling eyewitness identification– including enhanced, science-based jury instructions; strict limits on in-court identifications; and more robust judicial gatekeeping of challenged identification evidence.
Decision The court adopted provisional, science-based jury instructions (Gomes).  The court strictly limited the admissibility of in-court identifications (Crayton/Collins).
PDFicon Gomes, Jeremy, Johnson, Kenneth, Crayton, Walter v. Commonwealth

Johnson, Kyle v. Commonwealth of Massachusetts (2015)

Counsel Innocence Project; Paul, Weiss, Rifkind, Wharton & Garrison LLP; Choate, Hall & Stewart LLP
Courts Massachusetts Supreme Judicial Court
Issues Eyewitness Identification
Case Number SJC-11876
Position The court should revisit, reaffirm, and expand upon Commonwealth v. Jones in light of the 2013 Supreme Judicial Court study group’s report and recommendations about the reliability of eyewitness identifications. The court should also revisit and eliminate the independent source doctrine in light of recent decisions on in-court identifications, as well as the study group’s findings.
Decision The Massachusetts Supreme Judicial Court ruled that (1) where a defendant claims non-state actor suggestion, he need not make as high a showing as when he claims police suggestion — he must show “substantial risk that they influenced the witness’s identification of the defendant, inflated his or her level of certainty in the identification, or altered his or her memory of the circumstances of the operative event” and (2) where a court suppresses an out-of-court identification that was the product of private suggestion, no in-court identification can follow. The court clarified that the amount of suggestion that is required to make an identification unreliability is inextricably linked with the strength of the witness’s original memory. The court signaled that it will consider, in the appropriate case, two issues: (1) the continued applicability of independent source doctrine when out-of-court ID is suppressed due to unnecessary suggestion by police; and (2) whether ID can be suppressed due to unreliability alone, stemming from estimator variables, even if there was no suggestion in ID procedure.
PDFicon Johnson, Kyle v. Commonwealth of Massachusetts

Lerma, Eduardo v. People of the State of Illinois (2015)

Counsel Quarles & Brady LLP
Courts Illinois Supreme Court
Issues Eyewitness Identification
Case Number 118496
Position Illinois should revisit the decision in People v. Ennis, 139 Ill.2d 264 (1990),  that has led courts to per se exclude eyewitness expert testimony and rule that there is no presumption against eyewitness expert testimony and that eyewitness expert testimony should be favored or at least placed on the same footing as that of other experts.
Decision The court ruled in favor of eyewitness expert testimony, and Mr. Lerma was granted a new trial.
PDFicon Lerma, Eduardo v. People of the State of Illinois

Navarro, Santiago v. Commonwealth of Massachusetts (2015)

Counsel Innocence Project; Greater Boston Legal Services; Sheppard Mullin Richter & Hampton LLP
Courts Massachusetts Supreme Judicial Court
Issues Eyewitness Identification
Case Number SJC-11878
Position SJC “should require that the jury be instructed on all relevant potions of the eyewitness identification instruction in every case in which eyewitness identification is at issue, irrespective of whether such instruction is requested by the defense.”
Decision Decided May 5, 2016. Affirmed the convictions. Defendant has not met his burden to establish a substantial risk of a miscarriage of justice from the omission of the Rodriguez instruction.
PDFicon Navarro, Santiago v. Commonwealth of Massachusetts

Hickman, Jerrin Lavazie v. State of Oregon (2014)

Counsel The Innocence Project; McDermott Will & Emery; Oregon Innocence Project
Courts Oregon Supreme Court
Issues Eyewitness Identification
Case Number S061409
Position The test for the admissibility of eyewitness identification evidence in State v. Lawson/James should apply to in court stranger identifications, if no attempt at pre-trial identification was made.
Decision Reversed the Court of Appeals’ decision and affirmed the judgment of the trial court on July 10, 2014.
PDFicon Hickman-Jerrin-Lavazie-v.-State-of-Oregon.pdf

Dennis, James A. v. John E. Wetzel Et Al. (2013)

Counsel  
Courts United States District Court for the Eastern District of Pennsylvania
Issues Eyewitness Identification
Case Number 11-1660
Position Mistaken eyewitness identification thwarts justice by imprisoning innocents and allowing the guilty to escape punishment. In Mr. Dennis’ case, many factors known to contribute to demonstrably false identifications were present (including the presence of a weapon, the length of time the witnesses viewed the perpetrator, simultaneous presentation of photo array, non-blind administrator and more). Two witnesses also were unable to make identifications, and research shows that non-identifications can be quite probative of innocence – sometimes more probative than positive identifications can be of guilt. Thus, Mr. Dennis’ habeas petition should be granted.
Decision The Court granted Dennis’ habeas petition and vacated his conviction and death sentence, calling this conviction a “miscarriage of justice.” In this case, there was a lack of any physical, or circumstantial, evidence connecting Dennis to the murder; unreliable eyewitness identification testimony; multiple Brady violations; bad police work and poor lawyering by the defense counsel.
PDFicon Dennis-James-A.-v.-John-E.-Wetzel-Et-Al.pdf

Manning, Willie v. State of Mississippi (2013)

Counsel Robert Mink (Wyatt, Tarrant & Combs, LLP) David Voisin
Courts Mississippi Supreme Court
Issues Eyewitness Identification; Police and Prosecutorial Misconduct
Case Number 2000-039-CVH
Position Where a capital murder conviction is based on a single witness’s testimony and post-conviction proceedings have revealed the case to contain many of the now-known hallmarks of a wrongful homicide conviction (perjured witness testimony, incentivized witness testimony, inaccurate forensics, a recanting witness State suppression of exculpatory evidence), the conviction must be reversed.
Decision The Mississippi Supreme Court, in a 7-2 decision, reversed Willie Manning’s conviction and two sentences of death and remanded for a new trial based on the State’s withholding of favorable evidence.
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Prade, Douglas v. State of Ohio (2012)

Counsel Fried, Frank, Harris, Shriver & Jacobson LLP
Courts Court of Common Pleas, Summit County, Ohio
Issues Unreliable Forensic Science; Eyewitness Identification; New Evidence of Innocence
Case Number CR 1998-02-0463
Decision Conviction of aggravated murder with firearms specification was overturned (if Court’s order granting post-conviction relief is overturned pursuant to appeal, Motion for New Trial is granted)
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Lawson, Samuel A. v. State of Oregon (2011)

Counsel Levine & McHenry LLC; Wilkie Farr & Gallagher, LLP
Courts Oregon Supreme Court
Issues Eyewitness Identification
Case Number SO59234
Position Defendant’s conviction resulted from flawed eyewitness identification and the Court should reconsider the test for the admissibility of eyewitness evidence based on the Henderson case.
Decision Explicitly citing the Innocence Network Brief, the Court held that Oregon’s previous standard for the admissibility of eyewitness identifications (i.e. the Classen test) was “insufficient to ensure that unreliable evidence will be excluded” (24). The Court formulated a new standard for the admissibility of eye witness testimony which, inter alia, mandated that such testimony be excluded if the defendant can prove—based on system and/or estimator variables—that the “probative value of the evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence” (44-5). The Court reversed the rulings of the trial and appellate courts and remanded Lawson’s case for a new trial based on the above standard.
PDFicon Lawson-Samuel-A.-v.-State-of-Oregon.pdf

Perry, Barion v. New Hampshire (2011)

Counsel Miller & Chevalier Chartered
Courts U.S. Supreme Court
Issues Eyewitness Identification
Case Number 10-8974
Position The due process touchstone regarding the admissibility of eyewitness identification should remain reliability and not whether police wrongdoing has occurred before trial. Moreover, the Manson factors must be interpreted in a manner to prevent the admission of an identification emanating from circumstances so suggestive as to create a substantial likelihood of a miscarriage of justice.
Decision The due process check on the admission of eyewitness identification is applicable only when the police have arranged suggestive circumstances leading the witness to identify a particular person as the perpetrator of a crime.
PDFicon Perry-Barion-v.-New-Hampshire.pdf

Smith, Juan v. Cain (2011)

Counsel Weil, Gotshal & Manges LLP
Courts U.S. Supreme Court
Issues Police and Prosecutorial Misconduct; Eyewitness Identification
Case Number 10-8145
Position The prosecution’s withholding of Brady evidence that undermined the credibility of its single eyewitness deprived the defendant of his due process rights and undermined the integrity of the trial.
Decision Reversing and remanding because the State’s witness’s statements to police, made on night of murder and five days after murder, stating that he could not ID the perpetrators, were material for the purposes of Brady.
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Walker, Benjamin v. Commonwealth of Pennsylvania (2011)

Counsel Pepper Hamilton LLP; Buchanan Ingersoll & Rooney
Courts Supreme Ct. of PA, Eastern Dist.
Issues Eyewitness Identification
Case Number 28 EAP 2011
Position Mistaken eyewitness identification thwarts justice by imprisoning innocents and allowing the guilty to escape punishment; the Manson test does not achieve its goal of using ‘reliability’ as a linchpin to protect dues process and fair trial interests; expert testimony on memory should be admissible when it meets the criteria for admissibility.
Decision Per Curiam Decision, petition for allowance of appeal was granted
PDFicon Walker-Benjamin-v.-Commonwealth-of-Pennsylvania.pdf

Young, Tracey v. State of Louisiana (2010)

Counsel Innocence Project New Orleans
Courts Louisiana Supreme Court
Issues Eyewitness Identification
Case Number 09-KK-1177
Position Court should overturn per se ban on the admissibility of expert testimony on eyewitness expert identification.
Decision State v. Young, 35 So.3d 1042, (La. 2010), rehearing denied (May 07, 2010).
PDFicon Young-Tracey-v.-State-of-Louisiana.pdf

National Association of Criminal Defense Lawyers v. Superintendent of Chicago Police Department (2009)

Counsel Dickstein Shapiro, LLP
Courts Appellate Court of Illinois
Issues Eyewitness Identification
Case Number 1-08-2073, 1-08-3414
Position Reviewers should have full access to study protocols and underlying raw data related to field studies purporting to measure the effectiveness of eyewitness identification reforms.
Decision Denial of association’s summary judgment motion operated as a judgment in favor of agency; redaction of open investigation files was not unduly burdensome to agencies; degree of invasion of personal privacy in making disclosure of faces in photographic police lineups did not outweigh interest of association and public favoring disclosure; and burden on agencies of redacting any identifying information in requested closed files was not so excessive that it outweighed vital public interest, citing to Innocence Network amicus brief at 577.
PDFicon National-Association-of-Criminal-Defense-Lawyers-v.-Superintendent-of-Chicago-Police-Department.pdf

Riofta, Alexander v. State of Washington (2009)

Counsel Anna M. Tolin; Weil, Gotshal & Manges LLP
Courts Washington Supreme Court
Issues Eyewitness Identification; Access to Post-Conviction DNA Testing
Case Number 79407-3
Position DNA testing should be conducted in case where eyewitness identification was unreliable.
Decision The Court upholds the decision and declines to order a DNA hat test per RCW 10.73.170. The majority holds that Riofta failed to show that the results of a DNA test on the hat (which had been stolen the day before Ratthana was shot at) “would demonstrated innocence on a more probable than not basis.”
PDFicon Riofta-Alexander-v.-State-of-Washington.pdf

Avery, Brian v. State of Wisconsin (2008)

Counsel Colleen D. Ball; Cooley Godward Kronish LLP
Courts Wisconsin Court of Appeals
Issues False Confessions; Eyewitness Identification
Case Number 2008AP000500
Position Arguing that eyewitness identification evidence and disputed confession evidence both are fallible, and therefore should not alone be the basis for denying a new trial based on other new evidence of Innocence.
Decision State v. Avery, 807 N.W.2d 638 (Wis. Ct. App. 2011). Trial court applied the wrong standard when it weighed competing credible evidence; it was reasonably probable that a different result would be reached at a new trial including newly discovered evidence, and thus defendant was entitled to a new trial; and the real controversy of whether defendant was actually involved in the armed robberies was not fully tried, and thus defendant was entitled to a new trial in the interest of justice.
PDFicon Avery, Brian v. State of Wisconsin.pdf

Davis, Troy, In Re: (2008)

Counsel Jenner & Block LLP
Courts U.S. Court of Appeals, Eleventh Circuit
Issues Eyewitness Identification; New Evidence of Innocence
Case Number 08-16009-P
Position Recent exonerations of defendants convicted on the basis of unreliable eyewitness identification evidence compel conducted a hearing and the Georgia Supreme Court unconstitutionally denied a hearing to test evidence of actual innocence in a capital case.
Decision Newly-discovered evidence requirement was not met for evidence submitted in support of initial petition; affidavit of one trial witness satisfied newly-discovered evidence requirement; affidavit did not establish actual innocence; Court of Appeals had no authority to grant petitioner leave to file a second or successive habeas petition on equitable grounds; and even if Court of Appeals had authority to grant petitioner leave to file successive petition on equitable grounds, petitioner failed to establish a compelling claim of actual innocence that would permit the filing of the successive petition.
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Duncan, Calvin v. Burl Cain (2008)

Counsel William Southern; Latham & Watkins LLP
Courts Louisiana Court of Appeals
Issues Eyewitness Identification
Case Number 290-908-G
Position A new trial based on newly discovered evidence should not be denied solely because other evidence in the case includes a confession and/or eyewitness identification.
Decision District court’s judgment denying relator’s post-conviction application as time barred is vacated and the district court is directed to hold an evidentiary hearing as it relates to relator’s recent discovery potential Brady evidence.
PDFicon Duncan-Calvin-v.-Burl-Cain.pdf

Dyer, Richard, In re (2008)

Counsel Sheryl Gordon McCloud
Courts Washington Supreme Court
Issues Eyewitness Identification
Case Number 79872- 9
Position The Innocence Network argues that eyewitness identification is fallible and urges the Court to re-examine the parole board’s decision to deny Dyer parole based on his assertions of innocence. Dyer, who was convicted of rape on the basis of victim eyewitness testimony, was denied parole because he was unable to participate in a treatment program that requires admission of guilt.
Decision Petitioner’s motion for reconsideration is denied.
PDFicon Dyer-Richard-In-re.pdf

Davis, Troy v. State of Georgia (2007)

Counsel Sullivan & Cromwell LLP
Courts Georgia Supreme Court
Issues Eyewitness Identification
Case Number S07A-1758
Position Supporting extraordinary writ for new trial, since Davis was convicted on the basis of unreliable eyewitness identification.
Decision Evidence was sufficient to support convictions and summary denial of motion without hearing was warranted.
PDFicon Davis-Troy-v.-State-of-Georgia.pdf

Perez, Jose Antonio v. United States (2006)

Counsel Gibson, Dunn & Crutcher LLP
Courts U.S. Supreme Court
Issues Eyewitness Identification
Case Number 05-596
Position Courts should abandon or modify the Brathwaite/Biggers five-prong test for evaluating “reliability” of suggestive eyewitness identification procedures.
Decision Petition for writ of certiorari denied.
PDFicon Perez-Jose-Antonio-v.-United-States.pdf

Shomberg, Forest v. State (2005)

Counsel
Courts Wisconsin Supreme Court
Issues Eyewitness Identification
Case Number 2004AP630-CR
Position Expert testimony on eyewitness identifications should be per se admissible in any case in which disputed eyewitness evidence is presented.
Decision The Wisconsin Supreme Court affirmed the defendant’s conviction, choosing not to adopt a presumption of admissibility for expert testimony on eyewitness identification evidence.
PDFicon Shomberg-Forest-v.-State.pdf

Dubose, Tyrone, State v. (2005)

Counsel Wisconsin Innocence Project
Courts Wisconsin Supreme Court
Issues Eyewitness Identification
Case Number 03-1690-CR
Position Showup evidence should be inadmissible in all cases unless state can prove that a showup was truly necessary. Courts should abandon or modify the Brathwaite/Biggers five-prong test for evaluating “reliability” of suggestive eyewitness identification procedures.
Decision The case was reversed an remanded. The Court held that evidence obtained from a showup is not admissible unless it was necessary, where a showup is necessary only if: 1) the police lacked probable cause to make the arrest in the first place; or 2)if it was not possible to conduct a lineup or photo identification.
PDFicon Dubose-Tyrone-State-v.pdf

Ford, Tony Egbuna v. Dretke (2005)

Counsel
Courts U.S. Supreme Court
Issues Eyewitness Identification
Position Expert testimony on eyewitness identifications should be per se admissible in any case in which disputed eyewitness evidence is presented.
Decision Petition for certiorari was denied.
PDFicon Ford-Tony-Egbuna-v.-Dretke.pdf

Abney, Quentin v. New York (2009)

Counsel
Courts New York Court of Appeals
Issues Eyewitness Identification
Case Number 3314/05
Position In a case where the primary evidence against the defendant is the identification of an eyewitness, a defendant should be permitted to present expert testimony on the reliability of eyewitness identification, whether or not there is additional corroborative evidence that could weigh in favor of guilt.
Decision The trial judge erred in disallowing expert testimony on eyewitness identification and a new trial should be granted.
PDFicon Abney-Quentin-v.-New-York.pdf

Ledbetter, Laquan v. State (2005)

Counsel
Courts Supreme Court of Connecticut
Issues Eyewitness Identification
Case Number S.C. 17307
Position Courts should adopt a rule that failure to caution a witness that the culprit might not be present at an identification procedure renders that procedure unnecessarily suggestive, requiring, at the very least, a curative jury instruction.
Decision The Supreme Court of Connecticut affirmed the defendant’s conviction. They found that, under the totality of the circumstances in the present case, the identification was not necessarily suggestive. However, in future cases where the administrator of an identification procedure failed to instruct a witness that the culprit might or might not be present in a lineup, a jury instruction on eyewitness reliability would be required.
PDFicon Ledbetter-Laquan-v.-State.pdf

False Confessions

Cotto, Erick v. Commonwealth of Massachusetts (2017)

Counsel THE INNOCENCE PROJECT, INC., THE NEW ENGLAND INNOCENCE PROJECT, THE AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS, AND PROFESSORS DANIEL MEDWED AND ELLEN YAROSHEFSKY
Courts Superior Court
Issues False Confessions
Case Number  2007-770
Position The AGO contends that its attorneys were under no obligation whatsoever to disclose information about Farak’s drug use while working as a state drug lab chemist—no matter how exculpatory—to any defendant other than Farak herself. These arguments are supported neither by the record, the law, nor the ethics rules governing a prosecutor’s duty to disclose evidence. But even if the AGO could withstand claims about disclosure, it fails to address numerous other ethical duties—including the duties to (1) demonstrate candor to the court; (2) correct false statements; and (3) conduct a reasonable investigation.This Court should reject the AGO’s claim that a fair and meaningful response to the Farak scandal can now be achieved through belated litigation of potentially thousands of claims. The amici respectfully request that this Court make findings on prosecutorial misconduct and fashion a substantial judicial remedy.”
Decision Decided June 26, 2017. Cotto has met his burden of demonstrating a reasonable probability that he would not have admitted to sufficient facts and pled guilty under the terms then offered to him had he known of Farak’s misconduct. Court ruled: (a) Cotto’s motion to dismiss is allowed with prejudice as to the cocaine trafficking charge, but not the ammunition charge; (b) Cotto’s Motion to Withdraw Guilty Plea is allowed.
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Donley, Patrick v. State of Wisconsin (2016)

Counsel Paul, Weiss, Rifkind, Wharton & Garrison LLP
Courts Wisconsin Court of Appeals
Issues Actual Innocence; False Confessions; Ineffective Assistance of Counsel; New Evidence of Innocence; Unreliable Forensic Science; Shaken Baby Syndrome
Case Number 2015AP000592
Position Confessions can be coerced and unreliable and therefore should not always be dispositive, particularly in the SB S context , when contemporary research reveals that SBS theory is, and always has been, merely an unsupported hypothesis.
Decision Pending.
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Duvall, Robert Lee v. Commonwealth of Pennsylvania (2016)

Counsel Duane Morris LLP; Pennsylvania Innocence Project
Courts Pennsylvania Supreme Court
Issues False Confessions; Police and Prosecutorial Misconduct
Case Number 80 MAP 2015
Position Intentional misrepresentations of law or fact by police during an interrogation can lead to false confessions so they should be viewed with skepticism
Decision Dismissed the appeal as having been improvidently granted on February 22, 2017.
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Simmons, Kenneth v. State of South Carolina (2015)

Counsel Cooley LLP
Courts Supreme Court of South Carolina
Issues Actual Innocence; False Confessions; Unreliable Forensic Science
Case Number Appellate Case No. 2014-000387
Position The State’s fatally flawed testing, analysis, and presentation of DNA evidence deprived Mr. Simmons of a fair trial. To sustain Mr. Simmons’s conviction based on this improper DNA evidence would be unjust, and would also cast a needless shadow of doubt over the wider use of DNA evidence. Rather than compromise one of the justice system’s powerful tools for convicting the guilty and preserving liberty for the innocent, the Court should overturn Mr. Simmons’s conviction.
Decision Decided June 8, 2016. Vacated in part and remanded to the PCR court for proceedings.
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Cope, Billy Wayne, State of South Carolina v. (2014)

Counsel Jenner & Block LLP
Courts South Carolina Supreme Court
Issues False Confessions; Actual Innocence
Case Number Appellate Case No. 2009-143966
Position False confession evidence is not inherently reliable and yet it has a strong biasing effect; thus there is a critical need for the defense to be able to mount a powerful third party guilt defense that relies not only on scientific evidence but also on traditional third party guilt evidence.
Decision Petition for certiorari denied on October 20, 2014.
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Thomas, Adrian, State of New York v. (2013)

Counsel Milbank, Tweed, Hadley & McCloy LLP
Courts New York Court of Appeals
Issues Electronic Recording of Custodial Interrogations; False Confessions
Case Number 2-12-00306
Position
  1. The interrogation tactics used produced a coerced and unreliable confession;
  2. When a disputed confession is admitted into evidence, expert testimony on false confessions must be allowed as a necessary safeguard to prevent wrongful convictions; and
  3. The court should require videotaping of complete interrogations.
Decision People v. Thomas, — N.E.3d —- (2014), reversed conviction and granted motion to suppress, holding that (1) incriminating statements by defendant were not voluntary but were products of coercion, in violation of Due Process Clause of Fourteenth Amendment, and (2) defendant’s inculpating statements were inadmissible as involuntarily made.
PDFicon Thomas-Adrian-State-of-New-York-v.pdf

Burns, Gen Sebastian & Rafay, Atif Ahmad v. State of Washington (2011)

Counsel Carney Badley Spellman, P.S.; Wilkie Farr & Gallagher, LLP
Courts Washington State Court of Appeals, Division III
Issues False Confessions
Case Number 55217-1
Position Trial court abused its discretion by excluding expert testimony on false confessions.
Decision Affirmed trial court’s findings June 18, 2012.
PDFicon Burns-Gen-Sebastian-Rafay-Atif-Ahmad-v.-State-of-Washington.pdf

Thompson, Bobby v. State of Washington (2011)

Counsel Graham and Dunn, PC
Courts Washington Supreme Court
Issues False Confessions;  Access to Post-Conviction DNA Testing
Case Number 84739–8
Position Confessions should not bar post-conviction DNA testing, which can often demonstrate innocence of the accused.
Decision Affirming Court of Appeals decision to allow post-conviction DNA testing and citing to Innocence Network brief.
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Louis, Quentin v. State of Wisconsin (2010)

Counsel Wisconsin Innocence Project
Courts Wisconsin Court of Appeals
Issues Unreliable Forensic Science; False Confessions; Shaken Baby Syndrome; New Evidence of Innocence
Case Number 2009AP2502-CR
Position The lower court’s decision ordering a new trial should be upheld, since the science underlying Louis’ Shaken Baby Syndrome conviction has evolved in significant ways. Louis’ confession should not be admissible at the new trial.
Decision The Court of Appeals denied review and stated that the trial court properly exercised its discretion to order a new trial based on new medical testimony regarding shaken baby syndrome. However, it determined that because Louis’ confession was voluntary, it is admissible at trial.
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Rivera, Juan v. State of Illinois (2010)

Counsel DLA Piper
Courts Illinois Court of Appeals
Issues False Confessions
Case Number 2-09-1060
Position The trial court erred by refusing to allow expert witness testimony on the issue of false confessions.
Decision Court reversed conviction and Juan Rivera was released from prison on January 6, 2012.
PDFicon Rivera-Juan-v.-State-of-Illinois.pdf

Warney, Douglas, v. State of New York (2010)

Counsel Belknap, Webb & Tyler LLP
Courts New York Court of Appeals
Issues False Confessions; Compensation
Case Number CA 08 02261
Position An innocent person’s confession should not be a bar to wrongful conviction compensation.
Decision Warney’s confession and other statements did not warrant dismissal of his claim for compensation on the ground that he caused or brought about his conviction.
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Barros, Tracey v. State of Rhode Island (2009)

Counsel Roney & Labinger LLP; DeBevoise & Plimpton LLP; Thomas G. Briody
Courts Rhode Island Supreme Court
Issues Electronic Recording of Custodial Interrogations; False Confessions
Case Number SU-2008-0292
Position Courts should require that custodial interrogations be recorded in full to minimize the risk of convicting innocent defendants.
Decision State v. Barros, 24 A.3d 1158 (Rhode Island 2011). Failure to electronically record interrogation did not provide grounds for exclusion of confession and Court will not exercise supervisory jurisdiction to require electronic recording.
PDFicon Barros-Tracey-v.-State-of-Rhode-Island.pdf

Avery, Brian v. State of Wisconsin (2008)

Counsel Colleen D. Ball; Cooley Godward Kronish LLP
Courts Wisconsin Court of Appeals
Issues False Confessions; Eyewitness Identification
Case Number 2008AP000500
Position Arguing that eyewitness identification evidence and disputed confession evidence both are fallible, and therefore should not alone be the basis for denying a new trial based on other new evidence of Innocence.
Decision State v. Avery, 807 N.W.2d 638 (Wis. Ct. App. 2011). Trial court applied the wrong standard when it weighed competing credible evidence; it was reasonably probable that a different result would be reached at a new trial including newly discovered evidence, and thus defendant was entitled to a new trial; and the real controversy of whether defendant was actually involved in the armed robberies was not fully tried, and thus defendant was entitled to a new trial in the interest of justice.
PDFicon Avery, Brian v. State of Wisconsin.pdf

Okunishi, Masaru v. Supreme Court of Japan (2008)

Counsel Northwestern University School of Law, Bluhm Legal Clinic, Center on Wrongful Convictions
Courts Supreme Court of Japan
Issues False Confessions
Case Number  
Position We respectfully ask the Supreme Court of Japan to grant Masaru Okunishi to reconsider the voluntariness and reliability of his confession and the strength of all other evidence against him to ensure beyond a reasonable doubt that Japan will not execute or continue the wrongful imprisonment of a potentially innocent man.
Decision According to a statement from the Japanese Federation of Bar Associations, the Supreme Court of Japan remanded the case back to the Nagoya High Court for review on April 5, 2010. The JFBA quoted the Court: “The Nagoya High Court failed to examine the case from a scientific point of view and its process of reasoning was erroneous.” Subsequently, the Nagoya High Court denied a retrial.
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Tankleff, Martin v. State of New York (2006)

Counsel The Innocence Project
Courts New York Court of Appeals
Issues False Confessions; Electronic Recording of Custodial Interrogations
Case Number 1209-88 & 1535/88
Position Custodial interrogations of all suspects must be electronically recorded in their entirety. Expert testimony on false confessions can provide basis for new trial. Issues: Electronic Recording of Custodial Interrogations
Decision Petitioner should not have been charged with a lack of due diligence and newly discovered evidence submitted by petitioner warranted a new trial. The Court notes that new evidence has developed that points to a third party murderer.
PDFicon Tankleff-Martin-v.-State-of-New-York.pdf

Bragg, Robert Taylor v. State of Oklahoma (2018)

Counsel Oklahoma Innocence Project
Courts District Court of Tulsa County
Issues False Confessions
Case Number F-2017-1028
Position The District Court refused to allow the testimony of Richard Leo on the issue of false confessions. The State of Oklahoma has not addressed false confessions. In the present case, the defendant is developmentally disabled and on the autism spectrum. Police used intimidating, coercive and suggestive tactics to get the defendant to confess to injuries to his child that were not supported by medical evidence.
Decision August 19, 2020 order remanding to the Tulsa District Court for an evidentiary hearing to be held within 60 days.
PDFicon Bragg, Robert Taylor v. State of Oklahoma.pdf

Ineffective Assistance of Counsel

Gardner, Christopher v. Superior Court of San Bernardino County (2018)

Counsel O’Melveny & Myers LLP
Courts California Supreme Court
Issues  Ineffective Assistance of Counsel
Case Number S246214
Position  Indigent misdemeanor defendants have a right to counsel on appeal by the prosecution.
Decision Decided November 12, 2019. Held that the appellate division must appoint new counsel, because the trial court was not statutorily authorized to appoint the Public Defender under these circumstances.
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Jones, Adam v. State of Ohio (2018)

Counsel Office of the Ohio Public Defender; Ohio Innocence Project
Courts Supreme Court of Ohio
Issues Ineffective Assistance of Counsel; New Evidence of Innocence; Shaken Baby Syndrome
Case Number 2018-Ohio-673
Position The recent and escalating judicial recognition of developments in the scientific understanding of the SBS/ AHT hypothesis undermine the validity of convictions secured wholly or in large part on the basis of this theory. Convictions like Mr. Jones’s, based exclusively on the SBS/ AHT hypothesis, lack the scientific foundation necessary to sustain a diagnosis of SBS/ AHT and, it surely follows, guilt beyond a reasonable doubt. Given the dearth of direct evidence introduced against Mr. Jones and the deeply flawed medical testimony relied upon by the prosecution, the dangers of ineffective assistance of defense counsel make this Court’s intervention critical.
Decision Reversed and remanded to the court of appeals for further review on July 27, 2016.
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Browning, Paul Lewis v. Baker, Renee (2016)

Counsel Cooley LLP
Courts Ninth Circuit Court of Appeals
Issues Actual Innocence; Eyewitness Identification; Ineffective Assistance of Counsel; Informant Testimony; New Evidence of Innocence; Police and Prosecutorial Misconduct; Unreliable Forensic Science
Case Number 15-99002
Position Exculpatory evidence withheld by the state undermines confidence in a verdict based on evidence of known unreliability (incentivized witnesses, flawed forensics and eyewitness identification) and on false corroboration.
Decision Granted habeas petition in Nevada death penalty case on Brady and IAC grounds, finding that state court decision was objectively unreasonable, see 875 F.3d 444 (2017).
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Donley, Patrick v. State of Wisconsin (2016)

Counsel Paul, Weiss, Rifkind, Wharton & Garrison LLP
Courts Wisconsin Court of Appeals
Issues Actual Innocence; False Confessions; Ineffective Assistance of Counsel; New Evidence of Innocence; Unreliable Forensic Science; Shaken Baby Syndrome
Case Number 2015AP000592
Position Confessions can be coerced and unreliable and therefore should not always be dispositive, particularly in the SB S context , when contemporary research reveals that SBS theory is, and always has been, merely an unsupported hypothesis.
Decision Pending.
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Ceasor, Terry v. Warden, John (2015)

Counsel Foley & Lardner LLP
Courts U.S. Court of Appeals for the Sixth Circuit
Issues Actual Innocence; Ineffective Assistance of Counsel; New Evidence of Innocence; Shaken Baby Syndrome
Case Number 15=1145
Position Public policy compels a finding of ineffective assistance of counsel in cases where there is a significant scientific dispute over the evidence and the defense fails to produce an expert. The failure to adequately investigate an expert witness and present expert testimony in an SBS/AHT case constitutes ineffective assistance of counsel.
Decision Decided: July 01, 2016. Reversed the district court’s judgment denying habeas relief and remanded for an evidentiary hearing on the merits of Ceasor’s ineffective assistance of appellate counsel claim.
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Epps, Derick v. Commonwealth of Massachusetts (2015)

Counsel Fierst, Kane & Bloomberg LLP
Courts Massachusetts Supreme Court
Issues Ineffective Assistance of Counsel; New Evidence of Innocence; Shaken Baby Syndrome; Unreliable Forensic Science
Case Number SJC-11928
Position The prosecution’s expert witness testimony on SBS/AHT exceeded the limits of science and presented and the defense counsel failed to adequately challenge the state’s evidence or investigate potential defenses.
Decision The Massachusetts Supreme Court reversed the conviction on the ground that the deprivation of the defense that the child’s injuries were not the result of shaken baby syndrome, but rather were the result of a series of short falls, constituted a substantial risk of a miscarriage of justice.
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Kuren, Adam & Allabaugh, Steven v. Luzerne County (2015)

Counsel Ballard Spahr LLP
Courts Pennsylvania Supreme Court
Issues Ineffective Assistance of Counsel
Case Number 57 MAP 2015; 58 MAP 2015
Position Failure of the government to adequately fund public defender offices amounts to a systemic denial of effective representation by counsel. Because post-conviction statutes by definition only address the performance of counsel after a conviction, the Court should hear a class action cause of action to alleviate the pronounced denial of counsel at issue in Luzerne County, Pennsylvania.
Decision Decided September 28, 2016. Held that a cause of action exists entitling a class of indigent criminal defendants to allege prospective, systemic violations of the right to counsel due to underfunding, and to seek and obtain an injunction forcing a county to provide adequate funding to a public defender’s office, so long as the class action plaintiffs demonstrate the likelihood of substantial and immediate irreparable injury and the inadequacy of remedies at law.
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Millien, Oswelt v. Commonwealth of Massachusetts (2015)

Counsel Proskauer Rose LLP
Courts Massachusetts Supreme Court
Issues Ineffective Assistance of Counsel; New Evidence of Innocence; Shaken Baby Syndrome
Case Number SJC-11928
Position The prosecution’s expert witness testimony on SBS/AHT exceeded the limits of science and presented and the defense counsel failed to adequately challenge the state’s evidence or investigate potential defenses.
Decision The Massachusetts Supreme Court reversed the conviction on the ground that trial counsel’s performance was manifestly unreasonable in failing to seek public funds to retain an expert witness to offer opinion testimony on cause of injuries to defendant’s six-month-old daughter or to assist with cross-examination of Commonwealth’s witnesses; and trial counsel’s performance was prejudicial to defendant.
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Perrot, George v. Commonwealth (2015)

Counsel Proskauer Rose LLP
Courts Hampden County Superior Court, Massachusetts
Issues Access to Post-Conviction DNA Testing; Ineffective Assistance of Counsel; New Evidence of Innocence; Unreliable Forensic Science
Case Number 85-5415, 16, 18, 20, 25
Position Flawed forensics, and microscopic hair comparisons in particular, erode confidence in past convictions. Without other, more reliable, evidence as a foundation for a conviction, courts should not deny a defendant a hearing to explore whether the forensics used to convict him retain their believed reliability.
Decision This decision holds that the 2009 National Academy of Sciences Report, Strengthening Forensic Sciences in the United States: A Path Forward, and the FBI Hair Microscopy Audit are newly discovered evidence that demonstrates the limits of hair microscopy.
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Wade, Robert v. Commonwealth of Massachusetts (2015)

Counsel Committee for Public Council Services; New England Innocence Project; Massachusetts Association of Criminal Defense Lawyers
Courts Supreme Judicial Court (Massachusetts)
Issues Access to Post-Conviction DNA Testing; Ineffective Assistance of Counsel
Case Number SJC-11913
Position To obtain post-conviction DNA testing, defendants should not have to prove the exact reason that DNA testing was not previously performed in their case. It should be enough to show that the evidence still exists, and that a testing method now exists that is materially improved from what existed at trial. Similarly, where defendants have proven that an improved testing method exists, they should not have to also show that a reasonably effective trial attorney would have requested this method at trial – if it had existed back then. Additionally, arguing that a reasonably effective attorney would have requested the DNA test does not, by itself, waive the attorney-client privilege. Prosecutors should not be able to call trial counsel as a witness and inquire about privileged communications on this basis.
Decision The Court concluded that because Wade demonstrated that “the requested analysis had not yet been developed at the time of conviction,” he met the requirement of the act to establish one of the five enumerated reasons explaining why the requested testing was not previously conducted. It was therefore an abuse of discretion for the Superior Court judge to deny Wade’s motion for scientific testing on the ground that Wade also was required to establish that the enumerated reason was the “primary reason” that his trial attorney did not seek the requested analysis, and that a reasonably effective attorney would have done so. The orders denying the motion for scientific testing and denying the motion to strike are reversed. The matter was remanded to the Superior Court, where an order shall enter that the requested scientific analysis be conducted forthwith, and for further proceedings consistent with this opinion.
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Smith, Ashly Drake, People of the State of Michigan v. (2014)

Counsel Foley & Lardner, LLP
Courts Michigan Supreme Court
Issues Ineffective Assistance of Counsel
Case Number 149357
Position

Failure to investigate and present alibi witnesses is objectively unreasonable and results in substantial prejudice, and thus constitutes ineffective assistance of counsel
PDFicon Smith-Ashly-Drake-People-of-the-State-of-Michigan-v.pdf

Garrett, William, People v. (2013)

Counsel Foley & Lardner
Courts Michigan Supreme Court
Issues Actual Innocence; Ineffective Assistance of Counsel; New Evidence of Innocence
Case Number 145594
Position Under both the Michigan constitution and the U.S. constitution, there should be a freestanding claim of actual innocence and that proof of innocence should sufficient to overcome procedural barriers to habeas relief
Decision Affirmed the Wayne Circuit Court’s Opinion and Order denying defendant’s motion for relief from judgment on December 20, 2013.
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United States of America v. Kentucky Bar Association (2013)

Counsel Wilkie Farr & Gallagher LLP
Courts Supreme Court of Kentucky
Issues Ineffective Assistance of Counsel; Other Issues
Case Number 2013-SC-270
Position The Opinion issued by the Kentucky Bar Association, which states that “a criminal defense lawyer may not advise a client with regard to a plea agreement that waives the client’s right to pursue a claim of ineffective assistance of counsel…” should be upheld. Innocence people do plead guilty and this is therefore a critical right that defendants must maintain.
Decision Decided: August 21, 2014. Affirmed E–435 with respect to prosecutors. Either defense counsel or prosecutors inserting into plea agreements waivers of collateral attack, including IAC, violates the Rules of Professional Conduct.
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Martinez, Luis v. Ryan (2011)

Counsel Davis Polk & Wardwell LLP
Courts U.S. Supreme Court
Issues Ineffective Assistance of Counsel
Case Number 10-1001
Position Ineffective assistance of counsel is a leading contributor to wrongful convictions and first-tier review of counsel is critical to the identification and development of claims based on ineffective assistance of counsel.
Decision Decided March 20, 2012. Reversed the judgment of the Court of Appeals and remanded the case for further proceedings.
PDFicon Martinez-Luis-v.-Ryan.pdf

Hailey, Arthur R. v. State of Michigan (2010)

Counsel Michigan Innocence Clinic
Courts Michigan Supreme Court
Issues Ineffective Assistance of Counsel; New Evidence of Innocence
Case Number 10504-5
Position Counsel’s decision to not contact an essential witness constitutes ineffective assistance of counsel, as many innocent defendants have been exonerated by compelling evidence of third-party guilt.
Decision Application for leave to appeal is denied.
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Jasin, Thomas P. v. Michael Best & Friedrich (2007)

Counsel Weil, Gotshal & Manges LLP
Courts Wisconsin Court of Appeals
Issues Ineffective Assistance of Counsel
Case Number 2006AP002647
Position The statute of limitations on civil claims against trial counsel for ineffective assistance of counsel should begin to run when exoneree is officially exonerated, not when he or she first discovers grounds to believe counsel was ineffective.
Decision Without addressing whether Wisconsin would adopt an exoneration or two-track rule in determining when a criminal malpractice action accrues, the Court affirmed the order of the circuit court ruling that the cause of action was time-barred based on the application of Pennsylvania law.
PDFicon Jasin-Thomas-P.-v.-Michael-Best-Friedrich.pdf

Caldavado, Alma v. State of New York (2017)

Counsel Fried Frank Harris Shriver & Jacobson
Courts New York Supreme Court – Appellate Division, Second Department
Issues Ineffective Assistance of Counsel
Case Number 2017-05897
Position Defense counsel’s failure to prevent available and potentially exonerative expert testimony, where the People’s theory at trial was supported solely by the testimony of the People’s expert witnesses, constituted ineffective assistance of counsel.
Decision Affirmed Supreme Court’s determination November 14, 2018.
PDFicon Caldavado, Alma v. State of New York.pdf

Baker, Kevin & Washington, Sean v. State of New Jersey (2017)

Counsel Frank R. Krack & Linda Mehling
Courts Superior Court of New Jersey Appellate Division
Issues Ineffective Assistance of Counsel, Actual Innocence, New Evidence of Innocence
Case Number A-716-17T3
Position A PCR court’s opinions concerning the credibility of new exculpatory witnesses form only one part of its obligation to assess the potential impact of new evidence on a jury. To discharge its obligation under the law, a postconviction court must add all the new evidence to the body of evidence heard at trial, and then fairly assess whether there is a reasonable probability that, in the face of the entire body of evidence, a jury, acting reasonably and conscientiously according to the standards imposed by the law, would have reasonable doubt about guilt.
Decision Decided December 26, 2019. Reversed the trial court’s denial of relief and granted defendants a new trial, mainly because of the newly discovered forensic evidence that powerfully undermines the sole eyewitness’s varying descriptions of the shooting, coupled with non-forensic exculpatory proof of a 9-1-1 recording the defense obtained many years after the trial. Viewed objectively, that material evidence, if it had been presented, probably would have changed the jury’s verdict. The additional proof calls into serious question whether defendants’ guilt was established beyond a reasonable doubt.
PDFicon Baker, Kevin v. State of New Jersey & Washington, Sean v. State of New Jersey.pdf

Informant Testimony

Browning, Paul Lewis v. Baker, Renee (2016)

Counsel Cooley LLP
Courts Ninth Circuit Court of Appeals
Issues Actual Innocence; Eyewitness Identification; Ineffective Assistance of Counsel; Informant Testimony; New Evidence of Innocence; Police and Prosecutorial Misconduct; Unreliable Forensic Science
Case Number 15-99002
Position Exculpatory evidence withheld by the state undermines confidence in a verdict based on evidence of known unreliability (incentivized witnesses, flawed forensics and eyewitness identification) and on false corroboration.
Decision Granted habeas petition in Nevada death penalty case on Brady and IAC grounds, finding that state court decision was objectively unreasonable, see 875 F.3d 444 (2017).
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Desai, Jasubhai v. Booker, Raymond (2014)

Counsel Miller & Chevalier Chartered
Courts U.S. Supreme Court
Issues Informant Testimony
Case Number 12-2050
Position A conviction based solely on the unreliable hearsay testimony from an incentivized informant (who was himself a suspect in the case) as to an violates due process.
Decision The Supreme Court denied certiorari.
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Skatzes, George v. Warden Keith Smith (2011)

Counsel ACLU of Ohio
Courts U.S. District Court, Southern District of Ohio, Western Division
Issues Informant Testimony
Case Number 3:09-cv-00289
Position A death sentence should not be imposed solely on the basis of unreliable incentivized testimony.
Decision 1/14/2011 – Court denied request for discovery; denied request for evidentiary hearing; gave petitioner opportunity to brief case on merits. 2/24/2012 – Court granted disclosure of inmate statements and denied disclosure of LEA’s tapes/interviews/summaries, plea agreements/non-prosecution agreements, DOC files/parole records. 6/7/2012 – Court granted access to the LEA’s information under a protective order, with work product being produced to the Court for in camera inspection, and allowing petitioner to file documents under seal that are claimed to show “gateway” actual innocence. Disclosure of DOC Rules Infraction Board files was also granted. 6/1/2017 – Court ultimately ruled that the documents could be considered only to support Mr. Skatzes actual innocence claim, but would not be allowed to support any other claims (res judicata, failure to adjudicate, unreasonable application of federal law). Rulings on the merits of all other claims were strictly limited to evidence contained in the state court record.
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Bannister, James v. Illinois (2010)

Counsel Paul, Weiss, Rifkind, Wharton & Garrison LLP
Courts U.S. Supreme Court
Issues Informant Testimony
Case Number 09-1576
Position Informant testimony is inherently unreliable and the use of consistency provisions (clauses in plea agreements in which cooperators or informants agree to testify to a specific version of events satisfactory to the prosecutor, in exchange for certain preferential treatment) exacerbate the risks of cooperator testimony.
Decision Bannister v. Illinois, 131 S. Ct. 638 (2010). Petition for writ of certiorari denied.
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Statler, Paul v. State of Washington (2010)

Counsel Schulte Roth & Zabel LLP
Courts Washington State Court of Appeals, Division III
Issues Informant Testimony
Case Number 28195-7-III
Position Informant testimony is inherently unreliable and the use of such testimony can have dangerous consequences.
Decision Defendant was not entitled to new trial based on newly discovered evidence.
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Wallace, Herman v. Cain (2008)

Counsel Weil, Gotshal & Manges LLP ; >The Innocence Project
Courts Supreme Court of Louisiana
Issues Informant Testimony
Case Number 10-73-6820
Position Arguing that failure to disclose information about benefits conferred on jailhouse snitch constitutes a Brady violation that necessitates a new trial.
Decision Supervisory and/or Remedial Writs denied.
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New Evidence of Innocence

Jones, Adam v. State of Ohio (2018)

Counsel Office of the Ohio Public Defender; Ohio Innocence Project
Courts Supreme Court of Ohio
Issues Ineffective Assistance of Counsel; New Evidence of Innocence; Shaken Baby Syndrome
Case Number 2018-Ohio-673
Position The recent and escalating judicial recognition of developments in the scientific understanding of the SBS/ AHT hypothesis undermine the validity of convictions secured wholly or in large part on the basis of this theory. Convictions like Mr. Jones’s, based exclusively on the SBS/ AHT hypothesis, lack the scientific foundation necessary to sustain a diagnosis of SBS/ AHT and, it surely follows, guilt beyond a reasonable doubt. Given the dearth of direct evidence introduced against Mr. Jones and the deeply flawed medical testimony relied upon by the prosecution, the dangers of ineffective assistance of defense counsel make this Court’s intervention critical.
Decision Reversed and remanded to the court of appeals for further review on July 27, 2016.
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State of Washington v. Heidi Charlene Fero (2017)

Counsel Davis Wright Tremaine LLP
Courts Washington Supreme Court
Issues Unreliable Forensic Science; Shaken Baby Syndrome; New Evidence of Innocence
Case Number 92975-1
Position The “substance and the quality” of the evidence challenging the SBS hypothesis continues to change as more research demonstrates that the theory is not scientifically valid. There is limited scientific evidence that the diagnostic triad and therefore its components can be associated with traumatic shaking and there is insufficient scientific evidence on which to assess the diagnostic accuracy of the triad in identifying traumatic shaking.  Allowing defendants to rely on this new scientific evidence as it develops to set aside possibly flawed convictions—and not precluding them from doing so merely because earlier, incomplete, or less nuanced research may have existed at the time of their trial—is essential to ensuring a fair and just determination of the facts in science dependent cases.
Decision Dismissed petition on February 1, 2018.
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Bailey, Rene v. The People of the State of New York (2016)

Counsel Davis Polk & Wardwell LLP
Courts New York Supreme Court
Issues New Evidence of Innocence; Shaken Baby Syndrome; Unreliable Forensic Science
Case Number 2001-0490
Position New medical and scientific research, relative to the existence and characteristics of Shaken Baby Syndrome, has undermined the reliability of the verdict. The trial court’s order of a new trial should be upheld.
Decision The Court of Appeals upheld the order for a new trial, finding that advances in medicine and science that short-distance falls could have caused the child’s injuries constituted newly discovered evidence which would likely change the result upon new trial.
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Bradford, Glenn Patrick v. Brown, Richard (2016)

Counsel Jenner & Block LLP
Courts Seventh Circuit Court of Appeals
Issues Actual Innocence; New Evidence of Innocence
Case Number Case No. 15-3706
Position Freestanding innocence claims are cognizable under the Fourteenth and Eighth Amendments and should be reviewed under a standard granting federal habeas corpus relief upon a showing that the petitioner was “probably” innocent.
Decision Seventh Circuit granted en banc review.
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Browning, Paul Lewis v. Baker, Renee (2016)

Counsel Cooley LLP
Courts Ninth Circuit Court of Appeals
Issues Actual Innocence; Eyewitness Identification; Ineffective Assistance of Counsel; Informant Testimony; New Evidence of Innocence; Police and Prosecutorial Misconduct; Unreliable Forensic Science
Case Number 15-99002
Position Exculpatory evidence withheld by the state undermines confidence in a verdict based on evidence of known unreliability (incentivized witnesses, flawed forensics and eyewitness identification) and on false corroboration.
Decision Granted habeas petition in Nevada death penalty case on Brady and IAC grounds, finding that state court decision was objectively unreasonable, see 875 F.3d 444 (2017).
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Donley, Patrick v. State of Wisconsin (2016)

Counsel Paul, Weiss, Rifkind, Wharton & Garrison LLP
Courts Wisconsin Court of Appeals
Issues Actual Innocence; False Confessions; Ineffective Assistance of Counsel; New Evidence of Innocence; Unreliable Forensic Science; Shaken Baby Syndrome
Case Number 2015AP000592
Position Confessions can be coerced and unreliable and therefore should not always be dispositive, particularly in the SB S context , when contemporary research reveals that SBS theory is, and always has been, merely an unsupported hypothesis.
Decision Pending.
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Horton, John v. People of the State of Illinois (2016)

Counsel Jenner & Block LLP
Courts Illinois Court of Appeals
Issues Access to Post-Conviction DNA Testing; New Evidence of Innocence; Other Issues
Case Number 93 CF 1991
Position Third-party confessions should be considered, rather than dismissed out of hand, especially when they contain hallmarks of reliability as compared to the confession evidence presented by the State at trial.
Decision The trial court erred in denying Horton leave to file a successive post-conviction petition alleging that the State violated its discovery obligations pursuant to Brady v. Maryland. Because the pleadings and record establish a Brady violation, Horton’s convictions were reversed and the case was remanded for a new trial.
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Nash, Donald v. Russell, Terry (2016)

Counsel Quarles & Brady LLP
Courts Supreme Court of the United States
Issues New Evidence of Innocence
Case Number 15-8129
Position Whether a habeas petitioner may have his claim of actual innocence heard must not be left to where he happens to be imprisoned. Now is the time for the Court to intervene and resolve this division of authority so that claims of actual innocence are treated the same throughout our nation. Nash’s petition for certiorari should be granted.
Decision Petition for Writ of Certiorari denied on May 2, 2016.
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Ceasor, Terry v. Warden, John (2015)

Counsel Foley & Lardner LLP
Courts U.S. Court of Appeals for the Sixth Circuit
Issues Actual Innocence; Ineffective Assistance of Counsel; New Evidence of Innocence; Shaken Baby Syndrome
Case Number 15=1145
Position Public policy compels a finding of ineffective assistance of counsel in cases where there is a significant scientific dispute over the evidence and the defense fails to produce an expert. The failure to adequately investigate an expert witness and present expert testimony in an SBS/AHT case constitutes ineffective assistance of counsel.
Decision Decided: July 01, 2016. Reversed the district court’s judgment denying habeas relief and remanded for an evidentiary hearing on the merits of Ceasor’s ineffective assistance of appellate counsel claim.
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Epps, Derick v. Commonwealth of Massachusetts (2015)

Counsel Fierst, Kane & Bloomberg LLP
Courts Massachusetts Supreme Court
Issues Ineffective Assistance of Counsel; New Evidence of Innocence; Shaken Baby Syndrome; Unreliable Forensic Science
Case Number SJC-11928
Position The prosecution’s expert witness testimony on SBS/AHT exceeded the limits of science and presented and the defense counsel failed to adequately challenge the state’s evidence or investigate potential defenses.
Decision The Massachusetts Supreme Court reversed the conviction on the ground that the deprivation of the defense that the child’s injuries were not the result of shaken baby syndrome, but rather were the result of a series of short falls, constituted a substantial risk of a miscarriage of justice.
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Colon, Fernando v. State of Ohio (2015)

Counsel Tucker Ellis LLP
Courts Court of Appeals Of Ohio, Eighth Appellate District
Issues Actual Innocence; New Evidence of Innocence
Case Number 103150
Position Trial courts must be allowed to exercise discretion to grant additional discovery in post-conviction matters where there is a colorable claim of “actual innocence.”
Decision Pending.
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Larson, Robert, Gassman, Tyler and Statler, Paul v. State of Washington (2015)

Counsel Miller Nash Graham & Dunn LLP
Courts Washington Court of Appeals
Issues Actual Innocence; Compensation; New Evidence of Innocence
Case Number No. 33179-2
Position Wrongful conviction compensation statutes should be broadly construed in favor of exonerated individuals, with reasonable burdens of proof required.
Decision The Washington Court of Appeals reversed the trial court’s interpretation of “significant new exculpatory information” and its imposition of an improperly high burden of proof on the “actually innocent” element. The case was remanded to the trial court to decide whether the claimants proved by clear and convincing evidence they are actually innocent.
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McKoy, Lamont v. State of North Carolina (2015)

Counsel Womble Carlyle Sandridge & Rice, LLP
Courts North Carolina Court of Appeals
Issues Actual Innocence; New Evidence of Innocence: Other Issues
Case Number O9 CRS 11412
Position Evidence of actual innocence is sufficient in this case to overcome procedural bars and warrants an evidentiary hearing.
Decision Petition was denied.
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Millien, Oswelt v. Commonwealth of Massachusetts (2015)

Counsel Proskauer Rose LLP
Courts Massachusetts Supreme Court
Issues Ineffective Assistance of Counsel; New Evidence of Innocence; Shaken Baby Syndrome
Case Number SJC-11928
Position The prosecution’s expert witness testimony on SBS/AHT exceeded the limits of science and presented and the defense counsel failed to adequately challenge the state’s evidence or investigate potential defenses.
Decision The Massachusetts Supreme Court reversed the conviction on the ground that trial counsel’s performance was manifestly unreasonable in failing to seek public funds to retain an expert witness to offer opinion testimony on cause of injuries to defendant’s six-month-old daughter or to assist with cross-examination of Commonwealth’s witnesses; and trial counsel’s performance was prejudicial to defendant.
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Perrot, George v. Commonwealth (2015)

Counsel Proskauer Rose LLP
Courts Hampden County Superior Court, Massachusetts
Issues Access to Post-Conviction DNA Testing; Ineffective Assistance of Counsel; New Evidence of Innocence; Unreliable Forensic Science
Case Number 85-5415, 16, 18, 20, 25
Position Flawed forensics, and microscopic hair comparisons in particular, erode confidence in past convictions. Without other, more reliable, evidence as a foundation for a conviction, courts should not deny a defendant a hearing to explore whether the forensics used to convict him retain their believed reliability.
Decision This decision holds that the 2009 National Academy of Sciences Report, Strengthening Forensic Sciences in the United States: A Path Forward, and the FBI Hair Microscopy Audit are newly discovered evidence that demonstrates the limits of hair microscopy.
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Krause, Jason Derek v. State of Arizona (2014)

Counsel Wilmer Cutler Pickering Hale & Dorr LLP
Courts Arizona Court of Appeals
Issues Unreliable Forensic Science; New Evidence of Innocence; Police and Prosecutorial Misconduct
Case Number CR-14-0108
Position Courts should grant a new trial in cases where the conviction rests on discredited Comparative Bullet Lead Analysis (CBLA) and where presentation of this flawed forensic evidence so corrupted the truth-seeking function of the jury that there can be no confidence in the conviction.
Decision Decided: November 19, 2015. Granted review and relief and remanded the case to the trial court for further proceedings.
PDFicon  Krause-Jason-Derek-v.-State-of-Arizona.pdf

Case, Carl v. Timothy Hatch, Warden (2013)

Counsel Davis Polk & Wardell LLP
Courts U.S. Supreme Court
Issues Actual Innocence; New Evidence of Innocence; Police and Prosecutorial Misconduct
Case Number 13-5307
Position The Tenth Circuit’s Decision to exclude important newly discovered exculpatory evidence from federal habeas courts’ consideration misinterprets the Antiterrorism and Effective Death Penalty of 1996 and creates a circuit split that should be resolved.
Decision Decision to grant certiorari pending.
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Garrett, William v. People (2013)

Counsel Foley & Lardner
Courts Michigan Supreme Court
Issues Actual Innocence; Ineffective Assistance of Counsel; New Evidence of Innocence
Case Number 145594
Position Under both the Michigan constitution and the U.S. constitution, there should be a freestanding claim of actual innocence and that proof of innocence should sufficient to overcome procedural barriers to habeas relief
Decision Affirmed the Wayne Circuit Court’s Opinion and Order denying defendant’s motion for relief from judgment on December 20, 2013.
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Prade, Douglas v. State of Ohio (2012)

Counsel Fried, Frank, Harris, Shriver & Jacobson LLP
Courts Court of Common Pleas, Summit County, Ohio
Issues Unreliable Forensic Science; Eyewitness Identification; New Evidence of Innocence
Case Number CR 1998-02-0463
Decision 1/29/2013 – Trial court granted Mr. Prade’s PCR petition, and in the alternative, his motion for new trial. Mr. Prade was discharged based upon the court’s finding of actual innocence. The State appealed the trial court’s decision and on 3/19/2014, the Court of Appeals of Ohio, Ninth District, Summit County reversed and remanded, and Mr. Prade was ordered back to prison to serve his sentence. On 9/20/2017 the Supreme Court of Ohio denied Mr. Prade’s request for writ of prohibition to void the appeals court’s judgment. On 9/5/2018, the Court of Appeals of Ohio, Ninth District, Summit County affirmed the trial court’s subsequent denial of Mr. Prade’s motion for new trial. SCOTUS denied writ of cert on 11/4/2019.
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Grissom, James E. v. State of Michigan (2011)

Counsel Foley & Lardner LLP
Courts Michigan Court of Appeals
Issues New Evidence of Innocence
Case Number 140147
Position Trial courts have discretion to grant a new trial where newly discovered impeachment evidence calls the credibility of a critical witness into doubt.
Decision We hold that impeachment evidence may be grounds for a new trial if it satisfies the four-part test set forth in People v Cress. We further hold that a material, exculpatory connection must exist between the newly discovered evidence and significantly important evidence presented at trial. It may be of a general character and need not contradict specific testimony at trial. Also, the evidence must make a different result probable on retrial. Accordingly, we vacate the Court of Appeals’ judgment and remand this case to the trial court for determination of whether the newly discovered evidence satisfies Cress.
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Jenkins, Eric v. State of New York (2011)

Counsel Morgan, Lewis & Bockus LLP
Courts New York Court of Appeals
Issues New Evidence of Innocence; Police and Prosecutorial Misconduct
Case Number 2213/92
Position Incentivized testimony is inherently unreliable and petitioner deserves a new trial because of the existence of newly discovered recantation evidence and because of Brady material.
Decision Vacating judgment of conviction was not warranted based upon one witness’s alleged recantation of his trial testimony; defendant was entitled to a hearing on his motion to vacate, based upon sole eyewitness’s recantation of his trial testimony; and defendant was entitled to a hearing on his motion to vacate on ground that he was denied effective assistance.
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Johnson, Erskine v. State of Tennessee (2011)

Counsel Massey, McCluskey & Swanson; Wilkie Farr & Gallagher
Courts Tennessee Court of Appeals
Issues New Evidence of Innocence;  Police and Prosecutorial Misconduct
Case Number W2010-01800-CCA-R3-CO
Position Suppression of Brady evidence pointing to evidence in the form of third-party guilt warrants a new trial.
Decision Trial court abused its discretion by concluding that newly discovered evidence of close relationship between prosecution witness and gang prostitute failed to show that jury would have reached a different verdict. Reversed, vacated, and remanded.
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Hailey, Arthur R. v. State of Michigan (2010)

Counsel Michigan Innocence Clinic
Courts Michigan Supreme Court
Issues Ineffective Assistance of Counsel; New Evidence of Innocence
Case Number 10504-5
Position Counsel’s decision to not contact an essential witness constitutes ineffective assistance of counsel, as many innocent defendants have been exonerated by compelling evidence of third-party guilt.
Decision Application for leave to appeal is denied.
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Louis, Quentin v. State of Wisconsin (2010)

Counsel Wisconsin Innocence Project
Courts Wisconsin Court of Appeals
Issues Unreliable Forensic Science; False Confessions; Shaken Baby Syndrome; New Evidence of Innocence
Case Number 2009AP2502-CR
Position The lower court’s decision ordering a new trial should be upheld, since the science underlying Louis’ Shaken Baby Syndrome conviction has evolved in significant ways. Louis’ confession should not be admissible at the new trial.
Decision The Court of Appeals denied review and stated that the trial court properly exercised its discretion to order a new trial based on new medical testimony regarding shaken baby syndrome. However, it determined that because Louis’ confession was voluntary, it is admissible at trial.
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Souliotes, George A. v. Anthony Hedgpeth (2009)

Counsel Cooley, Godward & Kronish LLP
Courts U.S. Court of Appeals, Ninth Circuit
Issues New Evidence of Innocence; Actual Innocence
Case Number 08-15943
Position Advances in scientific research in arson cases support Souliotes’ claim of actual innocence and he exercised due diligence in bringing claim forward.
Decision Remanded for an evidentiary hearing on whether new fire testing methods could have been discovered earlier through due diligence (citing Innocence Network brief), but holding that there is no actual innocence gateway to the AEDPA statute of limitations.
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Davis, Troy, In Re: (2008)

Counsel Jenner & Block LLP
Courts U.S. Court of Appeals, Eleventh Circuit
Issues Eyewitness Identification; New Evidence of Innocence
Case Number 08-16009-P
Position Recent exonerations of defendants convicted on the basis of unreliable eyewitness identification evidence compel conducted a hearing and the Georgia Supreme Court unconstitutionally denied a hearing to test evidence of actual innocence in a capital case.
Decision Newly-discovered evidence requirement was not met for evidence submitted in support of initial petition; affidavit of one trial witness satisfied newly-discovered evidence requirement; affidavit did not establish actual innocence; Court of Appeals had no authority to grant petitioner leave to file a second or successive habeas petition on equitable grounds; and even if Court of Appeals had authority to grant petitioner leave to file successive petition on equitable grounds, petitioner failed to establish a compelling claim of actual innocence that would permit the filing of the successive petition.
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Fry, John F. v. Pliler (2007)

Counsel Cooley Godward Kronish LLP
Courts U.S. Supreme Court
Issues New Evidence of Innocence
Case Number 06-5247
Position Federal courts must apply the Chapman harmless error standard, which imposes the burden on the state to prove errors harmless beyond a reasonable doubt, in any case in which the state courts erroneously found no error and hence undertook no Chapman analysis. Rules barring or limiting third-party perpetrator evidence should be abolished; such evidence should be considered on an equal footing as any other type of evidence, which is evaluated by considering relevance and the risk of undue prejudice, and not some heightened relevance or presumed prejudice standard. Third-party perpetrator evidence cannot be excluded simply because the state or a court views the state’s evidence as “overwhelming.”
Decision The Supreme Court held that federal courts hearing habeas corpus petitions must assess the prejudicial impact of constitutional errors that took place in the state court criminal trial under Brecht (whether there was a substantial and injurious effect) regardless of whether the state appellate court recognized the error and reviewed it under Chapman (harmless beyond a reasonable doubt). Find that Brecht subsumed the Chapman test, the Court determined that the 9th Circuit correctly applied Brecht.
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Armstrong, Ralph, State v. (2005)

Counsel Wisconsin Innocence Project
Courts Wisconsin Supreme Court
Issues New Evidence of Innocence
Case Numbers 01-2789 and 02-2979
Position Courts have authority to consider new evidence of actual innocence without regard to the statutory one-year limitation period for newly discovered evidence, and that the standard for granting a new trial based upon newly discovered evidence should not be a strict “outcome-determinative” test, at least where the state relied at trial upon facts that turned out to be false. Statutes of limitations, limiting the time in which a prisoner can seek a new trial based on newly discovered evidence, cannot limit courts’ ability to consider new evidence of actual innocence.
Decision The Wisconsin Supreme Court vacated the defendant’s conviction and ordered a new trial in the interests of justice (and declined to consider whether a new trial should be ordered based on newly discovered evidence alone). The Court focused on the fact that newly obtained DNA evidence proved that the biological specimens found on the victim (semen and hair strands) did not belong to the defendant, whereas in the original trial, the State argued, based on DNA testing at the time, that the semen and hair likely belonged to the defendant.
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House v. Bell (2005)

Counsel The Innocence Project
Courts U.S. Supreme Court
Issues New Evidence of Innocence
Case Number W2006-001179-CCA-R3-PD
Position Relevant exculpatory DNA evidence can satisfy the Schlup v. Delo actual Innocence gateway standard for permitting habeas review of otherwise procedurally defaulted claims.
Decision The Supreme Court held that the defendant made the requisite showing under the Schlup actual innocence exception (“in light of new evidence, it is more likely than not that no reasonable juror would have found defendant guilty beyond a reasonable doubt”) so that his federal habeas action could proceed, despite the fact that his claims were procedurally defaulted.
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Slaughter, Jimmie Ray v. Mike Mullin (2005)

Counsel The Innocence Project
Courts Tenth Circuit
Issues New Evidence of Innocence
Case Number 05-6049
Position Denied.
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Krivak, Andrew v. State of New York (2017)

Counsel Duane Morris LLP
Courts Supreme Court of the State of New York
Issues New Evidence of Innocence, False Confessions
Case Number 2017-00638
Position The Amici ask this Court to grant the relief requested by Mr. Krivak, reverse the Putnam County Court’s decision, and order a new trial, pursuant to C.P.L. § 440.10 (l)(g).
Decision Decided: January 23, 2019. Reversed the Putnam County court order and remitted the matter to the County Court, Putnam County, for a hearing in accordance herewith and,
thereafter, a new determination.
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Police and Prosecutorial Misconduct

Beaman, Alan v. Freesmeyer, Tim, et al. (2020)

Counsel Quarles & Brady LLP  
Courts

Illinois Supreme Court  
Issues

Actual Innocence; Compensation; Police or Prosecutorial Misconduct  
Case Number

125617  
Position

In a civil claim for malicious prosecution following exoneration, the Illinois Court of Appeals’s holding on “absence of probable cause” improperly heightens the standard for a malicious prosecution claim, while not giving due weight to the fact that plaintiff was wrongfully convicted. If the Court of Appeals’s position were correct, the wrongful conduct of police officers in other Illinois cases would most likely have been immune from malicious prosecution claims.
Decision Pending 
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Sanders, Amy v. Jones, Lamar (2017)

Counsel Loewy & Loevy
Courts Sixth Circuit Court of Appeals
Issues Police and Prosecutorial Misconduct
Case Number 15-6384
Position Police officer’s grand jury testimony should not protect him against a claim of malicious prosecution in federal court
Decision Rehearing
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Manuel, Elijah v. City of Joliet (2016)

Counsel Innocence Project of Florida; Pennsylvania Innocence Project; Weil, Gotshal & Manges LLP
Courts United States Supreme Court
Issues Compensation; Police and Prosecutorial Misconduct
Case Number 14-9496
Position  Malicious prosecution action based on the Fourth Amendment is cognizable under § 1983.
Decision

The Fourth Amendment governs a claim for unlawful pretrial detention even beyond the start of legal process, abrogating Newsome v. McCabe, 256 F.3d 747, and Llovet v. Chicago, 761 F.3d 759, see 137 S. Ct. 911, (2017).
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Browning, Paul Lewis v. Baker, Renee (2016)

Counsel Cooley LLP
Courts Ninth Circuit Court of Appeals
Issues Actual Innocence; Eyewitness Identification; Ineffective Assistance of Counsel; Informant Testimony; New Evidence of Innocence; Police and Prosecutorial Misconduct; Unreliable Forensic Science
Case Number 15-99002
Position Exculpatory evidence withheld by the state undermines confidence in a verdict based on evidence of known unreliability (incentivized witnesses, flawed forensics and eyewitness identification) and on false corroboration.
Decision Granted habeas petition in Nevada death penalty case on Brady and IAC grounds, finding that state court decision was objectively unreasonable, see 875 F.3d 444 (2017).
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Washington Counties Risk Pool; American International Group, INC.; Lexington Insurance Company, INC.; Vyrle Hill; J. William Ashbaugh; Ace American Insurance Company v. Clark County; Slagle, Donald; David, Larry; Northrop, Alan (2016)

Counsel Miller Nash Graham & Dunn LLP
Courts Washington Supreme Court
Issues Compensation; Police and Prosecutorial Misconduct
Case Number 91154-1
Position In cases involving an intentional Brady violation, the government’s failure to correct the violation and disclose the exculpatory evidence can constitute ongoing misconduct.
Decision After oral argument, the parties negotiated a settlement and the appeal was withdrawn.
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Duvall, Robert Lee v. Commonwealth of Pennsylvania (2016)

Counsel Duane Morris LLP; Pennsylvania Innocence Project
Courts Pennsylvania Supreme Court
Issues False Confessions; Police and Prosecutorial Misconduct
Case Number 80 MAP 2015
Position Intentional misrepresentations of law or fact by police during an interrogation can lead to false confessions so they should be viewed with skepticism
Decision Dismissed the appeal as having been improvidently granted on February 22, 2017.
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Krause, Jason Derek v. State of Arizona (2014)

Counsel Wilmer Cutler Pickering Hale & Dorr LLP
Courts Arizona Court of Appeals
Issues Unreliable Forensic Science; New Evidence of Innocence; Police and Prosecutorial Misconduct
Case Number CR-14-0108
Position Courts should grant a new trial in cases where the conviction rests on discredited Comparative Bullet Lead Analysis (CBLA) and where presentation of this flawed forensic evidence so corrupted the truth-seeking function of the jury that there can be no confidence in the conviction.
Decision Decided: November 19, 2015. Granted review and relief and remanded the case to the trial court for further proceedings.
PDFicon  Krause-Jason-Derek-v.-State-of-Arizona.pdf

Case, Carl v. Timothy Hatch, Warden (2013)

Counsel Davis Polk & Wardell LLP
Courts U.S. Supreme Court
Issues Actual Innocence; New Evidence of Innocence; Police and Prosecutorial Misconduct
Case Number 13-5307
Position The Tenth Circuit’s Decision to exclude important newly discovered exculpatory evidence from federal habeas courts’ consideration misinterprets the Antiterrorism and Effective Death Penalty of 1996 and creates a circuit split that should be resolved.
Decision Decision to grant certiorari pending.
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Manning, Willie v. State of Mississippi (2013)

Counsel Robert Mink (Wyatt, Tarrant & Combs, LLP) David Voisin
Courts Mississippi Supreme Court
Issues Eyewitness Identification; Police and Prosecutorial Misconduct
Case Number 2000-039-CVH
Position Where a capital murder conviction is based on a single witness’s testimony and post-conviction proceedings have revealed the case to contain many of the now-known hallmarks of a wrongful homicide conviction (perjured witness testimony, incentivized witness testimony, inaccurate forensics, a recanting witness State suppression of exculpatory evidence), the conviction must be reversed.
Decision The case is still pending.
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Jenkins, Eric v. State of New York (2011)

Counsel Morgan, Lewis & Bockus LLP
Courts New York Court of Appeals
Issues New Evidence of Innocence; Police and Prosecutorial Misconduct
Case Number 2213/92
Position Incentivized testimony is inherently unreliable and petitioner deserves a new trial because of the existence of newly discovered recantation evidence and because of Brady material.
Decision Vacating judgment of conviction was not warranted based upon one witness’s alleged recantation of his trial testimony; defendant was entitled to a hearing on his motion to vacate, based upon sole eyewitness’s recantation of his trial testimony; and defendant was entitled to a hearing on his motion to vacate on ground that he was denied effective assistance.
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Johnson, Erskine v. State of Tennessee (2011)

Counsel Massey, McCluskey & Swanson; Wilkie Farr & Gallagher
Courts Tennessee Court of Appeals
Issues New Evidence of Innocence;  Police and Prosecutorial Misconduct
Case Number W2010-01800-CCA-R3-CO
Position Suppression of Brady evidence pointing to evidence in the form of third-party guilt warrants a new trial.
Decision Trial court abused its discretion by concluding that newly discovered evidence of close relationship between prosecution witness and gang prostitute failed to show that jury would have reached a different verdict. Reversed, vacated, and remanded.
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Smith, Juan v. Cain (2011)

Counsel Weil, Gotshal & Manges LLP
Courts U.S. Supreme Court
Issues Police and Prosecutorial Misconduct; Eyewitness Identification
Case Number 10-8145
Position The prosecution’s withholding of Brady evidence that undermined the credibility of its single eyewitness deprived the defendant of his due process rights and undermined the integrity of the trial.
Decision Reversing and remanding because the State’s witness’s statements to police, made on night of murder and five days after murder, stating that he could not ID the perpetrators, were material for the purposes of Brady.
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Keith, Kevin v. State of Ohio (2010)

Counsel Weil, Gotshal & Manges LLP
Courts U.S. Supreme Court
Issues Police and Prosecutorial Misconduct
Case Number 09-1052
Position Ohio Court of Appeals incorrectly applied a “sufficiency of the evidence” standard to evaluate Keith’s Brady claim.
Decision Petition for certiorari denied.
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Thompson, John v. Connick (2010)

Counsel Weil, Gotshal & Manges LLP; The Innocence Project
Courts U.S. Supreme Court
Issues Police and Prosecutorial Misconduct
Case Number 09-571
Position Placing too high a barrier on holding prosecutor’s offices liable for Brady violations will remove a rarely implicated but nevertheless vital incentive for those offices to meet their Brady obligations and will exacerbate the tragedy of wrongful convictons.
Decision Prior, unrelated Brady violations by attorneys in his office was insufficient to put district attorney on notice of need for further training, and need for training was not so obvious that district attorney’s office was liable on failure-to-train theory when nondisclosure of blood-test evidence had resulted in defendant’s wrongful conviction and in his spending 18 years in prison.
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Cooper, Kevin v. Wong (2009)

Counsel Weil, Gotshal & Manges LLP
Courts U.S. Supreme Court
Issues Police and Prosecutorial Misconduct
Case Number 09-363
Position When a successor habeas petition raises claims of prosecutorial misconduct not discovered until after the first round of habeas litigation, the “reasonable probability of a different outcome” standard, and not 2244(b)(2) “clear and convincing ” standard should govern petitioner’s claim.
Decision Petition for writ of certiorari denied.
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Goldstein v. Van de Kamp (2008)

Counsel Weil, Gotshal & Manges LLP
Courts U.S. Supreme Court
Issues Police and Prosecutorial Misconduct
Case Number 07-854
Position Arguing that absolute immunity should not be extended to cover a District Attorney who, in a purely administrative and managerial capacity, intentionally or with deliberate indifference declines to establish any internal system or procedures to ensure that prosecutors have access to impeachment information concerning informants, in disregard of the mandate of Brady v. Maryland and Giglio v. United States, and despite knowing of prior repeated Brady and Giglio violations that resulted from not having such a system or procedure.
Decision The Supreme Court held that the defendants, a district attorney and his chief deputy, were entitled to absolute immunity from the suit.
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Goldstein, Thomas Lee v. Van de Kamp (2007)

Counsel Public Defender Services
Courts U.S. Court of Appeals, Ninth Circuit
Issues Police and Prosecutorial Misconduct
Case Number 06-55537
Position Administrator of prosecutor’s office should not be shielded by absolute immunity from suit for failure to implement procedures to ensure compliance with Brady v. Maryland.
Decision Administrator of prosecutor’s office are not entitled to absolute immunity from suit for failure to implement procedures to ensure compliance with Brady v. Maryland, since alleged failures were administrative, not prosecutorial in function. Reversed and remanded by Van de Kamp v. Goldstein, 555 U.S. 335 (2009).
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Martin, Harold v. U.S.D.O.J. (2006)

Counsel Mid-Atlantic Innocence Project; NAACP Legal Defense and Educational Fund; ACLU of the National Capital Area
Courts D.C. Circuit
Issues Police and Prosecutorial Misconduct
Case Number 11-69
Position A right of access to Brady materials exists under FOIA.
Decision The D.C. Circuit affirmed the district court’s denial of the defendant’s request for documents allegedly containing Brady material. The court decided that it did not have to address whether a defendant may use FOIA to access that may contain Brady material because in the present case, the defendant was collaterally stopped from requesting one set of documents, and another court had already determined that the second set of documents did not contain Brady material.
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Shaken Baby Syndrome

Jones, Adam v. State of Ohio (2018)

Counsel Office of the Ohio Public Defender; Ohio Innocence Project
Courts Supreme Court of Ohio
Issues Ineffective Assistance of Counsel; New Evidence of Innocence; Shaken Baby Syndrome
Case Number 2018-Ohio-673
Position The recent and escalating judicial recognition of developments in the scientific understanding of the SBS/ AHT hypothesis undermine the validity of convictions secured wholly or in large part on the basis of this theory. Convictions like Mr. Jones’s, based exclusively on the SBS/ AHT hypothesis, lack the scientific foundation necessary to sustain a diagnosis of SBS/ AHT and, it surely follows, guilt beyond a reasonable doubt. Given the dearth of direct evidence introduced against Mr. Jones and the deeply flawed medical testimony relied upon by the prosecution, the dangers of ineffective assistance of defense counsel make this Court’s intervention critical.
Decision Reversed and remanded to the court of appeals for further review on July 27, 2016.
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Jackson, Syriah v. The People of the State of New York (2017)

Counsel Proskauer Rose LLP
Courts New York Appellate Division of the Supreme Court for the 1st Judicial Department
Issues Shaken Baby Syndrome
Case Number 2001-0490
Position

For the foregoing reasons, the Network requests that the Court evaluate Respondent-Appellant’s appeal with a comprehensive view of the evidence, taking into account the substantial fallibility of the SBS/AHT hypothesis, and grant such relief as it deems appropriate. Cases based on the SBS/AHT hypothesis pose a serious risk of wrongful conviction. Contemporary scientific and medical research has discredited the SBS/AHT hypothesis.
Decision

The Supreme Court, Appellate Division, held that preponderance of evidence supported conclusion that mother and grandmother abused child, who, while in their care, suffered traumatic brain injury from which she died.
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Bailey, Rene v. The People of the State of New York (2016)

Counsel Davis Polk & Wardwell LLP
Courts New York Supreme Court
Issues New Evidence of Innocence; Shaken Baby Syndrome; Unreliable Forensic Science
Case Number 2001-0490
Position New medical and scientific research, relative to the existence and characteristics of Shaken Baby Syndrome, has undermined the reliability of the verdict. The trial court’s order of a new trial should be upheld.
Decision The Court of Appeals upheld the order for a new trial, finding that advances in medicine and science that short-distance falls could have caused the child’s injuries constituted newly discovered evidence which would likely change the result upon new trial.
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Donley, Patrick v. State of Wisconsin (2016)

Counsel Paul, Weiss, Rifkind, Wharton & Garrison LLP
Courts Wisconsin Court of Appeals
Issues Actual Innocence; False Confessions; Ineffective Assistance of Counsel; New Evidence of Innocence; Unreliable Forensic Science; Shaken Baby Syndrome
Case Number 2015AP000592
Position Confessions can be coerced and unreliable and therefore should not always be dispositive, particularly in the SB S context , when contemporary research reveals that SBS theory is, and always has been, merely an unsupported hypothesis.
Decision Pending.
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Ceasor, Terry v. Warden, John (2015)

Counsel Foley & Lardner LLP
Courts U.S. Court of Appeals for the Sixth Circuit
Issues Actual Innocence; Ineffective Assistance of Counsel; New Evidence of Innocence; Shaken Baby Syndrome
Case Number 15=1145
Position Public policy compels a finding of ineffective assistance of counsel in cases where there is a significant scientific dispute over the evidence and the defense fails to produce an expert. The failure to adequately investigate an expert witness and present expert testimony in an SBS/AHT case constitutes ineffective assistance of counsel.
Decision Decided: July 01, 2016. Reversed the district court’s judgment denying habeas relief and remanded for an evidentiary hearing on the merits of Ceasor’s ineffective assistance of appellate counsel claim.
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Epps, Derick v. Commonwealth of Massachusetts (2015)

Counsel Fierst, Kane & Bloomberg LLP
Courts Massachusetts Supreme Court
Issues Ineffective Assistance of Counsel; New Evidence of Innocence; Shaken Baby Syndrome; Unreliable Forensic Science
Case Number SJC-11928
Position The prosecution’s expert witness testimony on SBS/AHT exceeded the limits of science and presented and the defense counsel failed to adequately challenge the state’s evidence or investigate potential defenses.
Decision The Massachusetts Supreme Court reversed the conviction on the ground that the deprivation of the defense that the child’s injuries were not the result of shaken baby syndrome, but rather were the result of a series of short falls, constituted a substantial risk of a miscarriage of justice.
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Millien, Oswelt v. Commonwealth of Massachusetts (2015)

Counsel Proskauer Rose LLP
Courts Massachusetts Supreme Court
Issues Ineffective Assistance of Counsel; New Evidence of Innocence; Shaken Baby Syndrome
Case Number SJC-11928
Position The prosecution’s expert witness testimony on SBS/AHT exceeded the limits of science and presented and the defense counsel failed to adequately challenge the state’s evidence or investigate potential defenses.
Decision The Massachusetts Supreme Court reversed the conviction on the ground that trial counsel’s performance was manifestly unreasonable in failing to seek public funds to retain an expert witness to offer opinion testimony on cause of injuries to defendant’s six-month-old daughter or to assist with cross-examination of Commonwealth’s witnesses; and trial counsel’s performance was prejudicial to defendant.
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Robins, Charles aka Sharif, Ha’im Al Matin v. Bakeer, Renne (2014)

Counsel Snell & Wilmer LLP
Courts Eighth Judicial District Court, Clark County
Issues Shaken Baby Syndrome
Case Number 65063
Position

Under clearly established Nevada law, Appellant is entitled to an evidentiary hearing. Appellant has offered declarations from highly credentialed experts in the fields of pediatric radiology and forensic pathology that fundamentally undermine key medical evidence presented by the State at trial. This new evidence, if credited, would negate the medical certainty expressed by the State’s trial witness that Brittany Smith’s injuries were the result of abuse and that her death was the result of intentional homicide. 
Decision

 Charles Robins (Ha’im Al Matin Sharif), who spent 29 years on death row in Nevada, was released from prison on June 7, 2017 on an amended judgment. This followed the Nevada Supreme Court’s ruling that he had met the Schlup actual innocence requirements and was entitled to an evidentiary hearing on his government misconduct and IAC claims.
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Louis, Quentin v. State of Wisconsin (2010)

Counsel Wisconsin Innocence Project
Courts Wisconsin Court of Appeals
Issues Unreliable Forensic Science; False Confessions; Shaken Baby Syndrome; New Evidence of Innocence
Case Number 2009AP2502-CR
Position The lower court’s decision ordering a new trial should be upheld, since the science underlying Louis’ Shaken Baby Syndrome conviction has evolved in significant ways. Louis’ confession should not be admissible at the new trial.
Decision The Court of Appeals denied review and stated that the trial court properly exercised its discretion to order a new trial based on new medical testimony regarding shaken baby syndrome. However, it determined that because Louis’ confession was voluntary, it is admissible at trial.
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HH, Christopher v. Sullivan County Department of Family Services (2018)

Counsel Paul, Weiss, Rifkind, Wharton & Garrison LLP
Courts New York Supreme Court – Appellate Division, Third Department
Issues Shaken Baby Syndrome
Case Number 17265
Position Cases based on the SBS/AHT hypothesis pose a serious risk of judicial error, especially where the evidence is presented in an incomplete or asymmetric manner.
Decision On October 18, 12018 the Appellate court ordered that the “order and amended order (of the Family court of Sullivan County) are modified, on the law, without costs, by reversing so much thereof as granted petitioner’s application with respect to Liana HH.; petition dismissed in its entirety; and, as so modified, affirmed”. (dismissed petition asking for adjudication finding that the children were abused and neglected and imposing protective order, therefore finding in favor of Respondent-Appellant).
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McFarlane, Anthony Ray v. People of the State of Michigan (2020)

Counsel Wolfgang Mueller
Courts Michigan Supreme Court 
Issues Shaken Baby Syndrome
Case Number 158259
Position Case concerns the Court of Appeals’ recognition of the effect that the word “abusive” has on a jury’s verdict in so-called abusive head trauma (“AHT”) prosecutions. 
Decision Pending.
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Jones, Clarence, III v. State of Maryland (2020)

Counsel Paul, Weiss, Rifkind, Wharton & Garrison LLP
Courts Court of Special Appeals of Maryland 
Issues Shaken Baby Syndrome
Case Number CSA-REG-0087
Position The SBS/AHT hypothesis is unsound and therefore poses a serious risk of wrongful conviction. The hypothesis is no longer supported by reliable scientific evidence, and it has been shown to result in false accusations and convictions. 
Decision Pending.
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State or Federal Habeas Corpus Rules and Procedure

Federal Public Defender for the District of Arizona, et al. v. Barr, et al. (2020) 

Counsel

 Cooley LLP  

Courts

Court of Appeal for the District of Columbia
Issues

State or Federal Habeas Corpus Rules and Procedure  
Case Number

20-1144  
Position

Chapter 154 required states seeking expedited federal review to meet specific guarantees within their state systems. The Attorney General’s certification of the State of Arizona’s state-level post-conviction review mechanism under Chapter 154, when Arizona meets none of the requirements, ensures petitioners will not receive meaningful habeas corpus review under either the state or federal systems. The unsupported certification increases the risk of states executing innocent people. The Court should overturn the Attorney General’s improper certification.
Decision Pending.
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Unreliable Forensic Science

Bailey, Rene v. The People of the State of New York (2016)

Counsel Davis Polk & Wardwell LLP
Courts New York Supreme Court
Issues New Evidence of Innocence; Shaken Baby Syndrome; Unreliable Forensic Science
Case Number 2001-0490
Position New medical and scientific research, relative to the existence and characteristics of Shaken Baby Syndrome, has undermined the reliability of the verdict. The trial court’s order of a new trial should be upheld.
Decision The Court of Appeals upheld the order for a new trial, finding that advances in medicine and science that short-distance falls could have caused the child’s injuries constituted newly discovered evidence which would likely change the result upon new trial.
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Browning, Paul Lewis v. Baker, Renee (2016)

Counsel Cooley LLP
Courts Ninth Circuit Court of Appeals
Issues Actual Innocence; Eyewitness Identification; Ineffective Assistance of Counsel; Informant Testimony; New Evidence of Innocence; Police and Prosecutorial Misconduct; Unreliable Forensic Science
Case Number 15-99002
Position Exculpatory evidence withheld by the state undermines confidence in a verdict based on evidence of known unreliability (incentivized witnesses, flawed forensics and eyewitness identification) and on false corroboration.
Decision Granted habeas petition in Nevada death penalty case on Brady and IAC grounds, finding that state court decision was objectively unreasonable, see 875 F.3d 444 (2017).
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Donley, Patrick v. State of Wisconsin (2016)

Counsel Paul, Weiss, Rifkind, Wharton & Garrison LLP
Courts Wisconsin Court of Appeals
Issues Actual Innocence; False Confessions; Ineffective Assistance of Counsel; New Evidence of Innocence; Unreliable Forensic Science; Shaken Baby Syndrome
Case Number 2015AP000592
Position Confessions can be coerced and unreliable and therefore should not always be dispositive, particularly in the SB S context , when contemporary research reveals that SBS theory is, and always has been, merely an unsupported hypothesis.
Decision Pending.
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Pitts, Eugene Isaac v. State of Arkansas (2016)

Counsel Proskauer Rose LLP;  Fuqua Campbell, P.A.
Courts Arkansas Supreme Court
Issues Unreliable Forensic Science
Case Number CR-80-40
Position To expand on the broader implications of debunked FBI hair and fiber analysis.
Decision Petition granted. The Court ruled that the State’s expert in field of hair and fibers may have withheld evidence regarding the integrity of hair comparison analysis, constituting sufficient grounds for reinvesting trial court with jurisdiction, see 501 S.W. 3d 803 (2016).
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Yell, Robert v. State of Wisconsin (2016)

Counsel Duane Morris, LLP; The Simon Law Office
Courts Logan Circuit Court
Issues Actual Innocence; Unreliable Forensic Science
Case Number 04-CR-232
Position The undeniable advances in fire investigation science since Mr. Yell’s trial and the guidelines and principles adopted by the National Fire Protection Association, the International Association of Arson Investigators, and the Canine Accelerant Detection Association, all show that the outmoded investigative techniques that led to Mr. Yell’s conviction were unreliable and based more on myth than science. The ADC’s six uncorroborated alerts and his handler’s testimony regarding his subjective belief (without any proof) that the canine’s alerts were more accurate than laboratory analysis—evidence which the Commonwealth exploited in closing argument—would not be admissible in a new trial.
Decision Pending.
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Crawford, Rodricus v. State of Louisiana (2015)

Counsel Jones Walker LLP; Wachtell, Lipton, Rosen & Katz
Courts Louisiana Supreme Court
Issues Actual Innocence; Unreliable Forensic Science
Case Number 2014-KA-2153
Position The prosecution’s medical expert testimony has no basis in science and is belied by the decedent child’s medical history. Prosecution expert witnesses showed actual bias against the defendant, resulting in an improper and unsupportable medical conclusion.
Decision Finding merit in defendant’s assignment of error related to his Batson challenge, defendant’s conviction and sentence were vacated and the matter was remanded to the trial court for a new trial on November 16, 2016.
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Epps, Derick v. Commonwealth of Massachusetts (2015)

Counsel Fierst, Kane & Bloomberg LLP
Courts Massachusetts Supreme Court
Issues Ineffective Assistance of Counsel; New Evidence of Innocence; Shaken Baby Syndrome; Unreliable Forensic Science
Case Number SJC-11928
Position The prosecution’s expert witness testimony on SBS/AHT exceeded the limits of science and presented and the defense counsel failed to adequately challenge the state’s evidence or investigate potential defenses.
Decision The Massachusetts Supreme Court reversed the conviction on the ground that the deprivation of the defense that the child’s injuries were not the result of shaken baby syndrome, but rather were the result of a series of short falls, constituted a substantial risk of a miscarriage of justice.
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Hardin, Jeffrey v. Ohio (2015)

Counsel Cooley LLP
Courts United States Supreme Court
Issues Unreliable Forensic Science; Other
Case
Number		 Ohio Supreme Court No. 2011-0122
Position Authors of autopsy reports should be subject to the constitutionally prescribed method of testing validity: confrontation. Those drafting autopsy reports are particularly susceptible to cognitive bias and suggestion by law enforcement officers. Further, forensic pathology is subject to human error, incompetence, and even fraud. Surrogate testimony hides these issues at trial and frustrates the justice system’s truth-seeking function.
Decision Cert petition denied.
PDFicon  Hardin, Jeffrey v. Ohio

John, Sean v. People of the State of New York (2015)

Counsel Wilmer Cutler Pickering Hale And Dorr LLP
Courts New York Court of Appeals
Issues Unreliable Forensic Science
Case Number APL-2014-00267
Position DNA evidence must be presented at trial through an analyst who performed the testing.
Decision The New York Court of Appeals held the admission of laboratory reports regarding DNA profile evidence violated the defendant’s Sixth Amendment right to confrontation. Where a laboratory report is testimonial in nature, at least one analyst with the requisite personal knowledge must testify; such an analyst must be one who witnessed, performed, or supervised the generation of defendant’s DNA profile, or who used his or her independent analysis on the raw data, as opposed to a testifying analyst functioning as a conduit for the conclusions of others.
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Norton, Harold Albert v. State of Maryland (2015)

Counsel White & Case LLP
Courts Maryland Court of Appeals
Issues Unreliable Forensic Science
Case Number No. 67 Sept. Term 2014 (Court of Appeals)
Position The prosecution should not be permitted to introduce prior testimony of an interested witness who would not be available for cross-examination at trial. Crime laboratory reports are “testimonial” within the meaning of Crawford v. Washington, and hence forensic science test results may be introduced only through live testimony, and not just through written lab reports.
Decision The Maryland Court of Appeals affirmed the lower court decision that a forensic DNA case report identifying Norton as the major source of DNA “within a reasonable degree of scientific certainty” was testimonial, and thus admission of the report without the testimony of the analyst who authored and signed the report violated Norton’s confrontation clause rights.
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Patel, Purvi v. State of Indiana (2015)

Counsel Goldman Ismail Tomaselli Brennan & Baum LLP
Courts Indiana Court of Appeals
Issues Actual Innocence; Unreliable Forensic Science
Case Number 71A04-1504-CR-00166
Position Challenges to unsound forensic sciences should be basis for granting a new trial.
Decision The Indiana Court of Appeals overturned Patel’s the conviction and reduced a second charge of neglecting a dependent.
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Perrot, George v. Commonwealth (2015)

Counsel Proskauer Rose LLP
Courts Hampden County Superior Court, Massachusetts
Issues Access to Post-Conviction DNA Testing; Ineffective Assistance of Counsel; New Evidence of Innocence; Unreliable Forensic Science
Case Number 85-5415, 16, 18, 20, 25
Position Flawed forensics, and microscopic hair comparisons in particular, erode confidence in past convictions. Without other, more reliable, evidence as a foundation for a conviction, courts should not deny a defendant a hearing to explore whether the forensics used to convict him retain their believed reliability.
Decision This decision holds that the 2009 National Academy of Sciences Report, Strengthening Forensic Sciences in the United States: A Path Forward, and the FBI Hair Microscopy Audit are newly discovered evidence that demonstrates the limits of hair microscopy.
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Simmons, Kenneth v. State of South Carolina (2015)

Counsel Cooley LLP
Courts Supreme Court of South Carolina
Issues Actual Innocence; False Confessions; Unreliable Forensic Science
Case Number Appellate Case No. 2014-000387
Position The State’s fatally flawed testing, analysis, and presentation of DNA evidence deprived Mr. Simmons of a fair trial. To sustain Mr. Simmons’s conviction based on this improper DNA evidence would be unjust, and would also cast a needless shadow of doubt over the wider use of DNA evidence. Rather than compromise one of the justice system’s powerful tools for convicting the guilty and preserving liberty for the innocent, the Court should overturn Mr. Simmons’s conviction.
Decision Decided June 8, 2016. Vacated in part and remanded to the PCR court for proceedings.
 

Sireci, Henry v. State of Florida (2015)

Counsel Garland, Samuel & Loeb, P.C.; Proskauer Rose LLP
Courts Florida Supreme Court
Issues Access to Post-Conviction DNA Testing; Actual Innocence; Unreliable Forensic Science
Case Number SC 15-307
Position In short, this newly discovered evidence raises substantial doubt as to the accuracy and fairness of Mr. Sireci’s conviction. The hair comparison evidence that formed the basis of Mr. Sireci’s conviction is scientifically invalid and his conviction must be reversed, or at minimum entitles him to an evidentiary hearing.
Decision Pending.
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Griep, Michael R. v. State of Wisconsin (2014)

Counsel Wisconsin Innocence Project; Innocence Project
Courts Wisconsin Supreme Court
Issues Unreliable Forensic Science
Case Number 2009AP003073CR
Position Using an expert to avoid the import of the Supreme Court’s Confrontation Clause precedents is thus not only unconstitutional; it also poses a serious danger to the fair administration of justice. The Decision of the Court of Appeals should be reversed.
Decision Affirmed the Court of Appeals decision that affirmed the Circuit Court’s admission of Harding’s testimony on April 23, 2015.
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Krause, Jason Derek v. State of Arizona (2014)

Counsel Wilmer Cutler Pickering Hale & Dorr LLP
Courts Arizona Court of Appeals
Issues Unreliable Forensic Science; New Evidence of Innocence; Police and Prosecutorial Misconduct
Case Number CR-14-0108
Position Courts should grant a new trial in cases where the conviction rests on discredited Comparative Bullet Lead Analysis (CBLA) and where presentation of this flawed forensic evidence so corrupted the truth-seeking function of the jury that there can be no confidence in the conviction.
Decision Decided: November 19, 2015. Granted review and relief and remanded the case to the trial court for further proceedings.
PDFicon  Krause-Jason-Derek-v.-State-of-Arizona.pdf

Medina, Efran, Arizona v. (2014)

Counsel Stephen A. Miller, Cozen O’Connor
Courts U.S. Supreme Court
Issues Unreliable Forensic Science
Case Number 13A
Position Position: Authors of autopsy reports should be subject to the constitutionally prescribed method of testing accuracy: confrontation. Recognizing that autopsy reports are testimonial and that criminal defendants have a constitutional right to confront the authors of those reports will help to avoid wrongful convictions and strengthen the integrity of the criminal justice system.
Decision Court denied certiorari
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Prade, Douglas v. State of Ohio (2012)

Counsel Fried, Frank, Harris, Shriver & Jacobson LLP
Courts Court of Common Pleas, Summit County, Ohio
Issues Unreliable Forensic Science; Eyewitness Identification; New Evidence of Innocence
Case Number CR 1998-02-0463
Decision 1/29/2013 – Trial court granted Mr. Prade’s PCR petition, and in the alternative, his motion for new trial. Mr. Prade was discharged based upon the court’s finding of actual innocence. The State appealed the trial court’s decision and on 3/19/2014, the Court of Appeals of Ohio, Ninth District, Summit County reversed and remanded, and Mr. Prade was ordered back to prison to serve his sentence. On 9/20/2017 the Supreme Court of Ohio denied Mr. Prade’s request for writ of prohibition to void the appeals court’s judgment. On 9/5/2018, the Court of Appeals of Ohio, Ninth District, Summit County affirmed the trial court’s subsequent denial of Mr. Prade’s motion for new trial. SCOTUS denied writ of cert on 11/4/2019.
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Richards, William v. State of California (2011)

Counsel Cooley LLP
Courts California Supreme Court
Issues Unreliable Forensic Science
Case
Number		 S189275
Position Bite mark evidence should be used only to exclude suspects from consideration, not to identify them as the source of a bite mark.
Decision Decided December 3, 2012. The California Supreme Court, by a 4-to-3 vote, affirmed the judgment of the Court of Appeal which reversed the trial court’s ruling because Dr. Sperber’s recantation did not fit the state’s legal definition of “false evidence” that would allow Richards to mount a successful post-conviction challenge to his conviction.
PDFicon  Richards-William-v.-State-of-California.pdf

Williams, Sandy v. Illinois (2011)

Counsel Wisconsin Innocence Project
Courts U.S. Supreme Court
Issues Unreliable Forensic Science
Case Number 10-8505
Position Confrontation of the analyst who performed DNA analysis is essential to permit proper adversarial testing of that evidence.
Decision The admission of expert testimony about the results of DNA testing performed by non-testifying analysts did not violate the Confrontation Clause.
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Bullcoming, Donald v. New Mexico (2010)

Counsel Wisconsin Innocence Project; The Innocence Project
Courts U.S. Supreme Court
Issues Unreliable Forensic Science
Case Number 09‐10876
Position The prevalence of wrongful convictions based on faulty forensic science, and the rash of crime lab scandals around the nation, have shown that the unchecked use of forensic evidence does not come without a price and therefore the reliability of a forensic report can be assessed only through confrontation of the analyst who prepared the machine, conducted the tests, and drafted the report.
Decision Bullcoming v. New Mexico, 131 S. Ct. 2705 (2011). Defendant had the right to confront the analyst who certified the blood-alcohol analysis report, and the report was testimonial within the meaning of the Confrontation Clause.
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Jones, Christopher D. v. State of Wisconsin (2010)

Counsel Jerome F. Buting
Courts Wisconsin Court of Appeals
Issues Unreliable Forensic Science
Case Number 2009 AP 2835-CR
Position Firearm and toolmark evidence are no longer sufficiently reliable to be admissible as evidence.
Decision Court denied relief.
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Louis, Quentin v. State of Wisconsin (2010)

Counsel Wisconsin Innocence Project
Courts Wisconsin Court of Appeals
Issues Unreliable Forensic Science; False Confessions; Shaken Baby Syndrome; New Evidence of Innocence
Case Number 2009AP2502-CR
Position The lower court’s decision ordering a new trial should be upheld, since the science underlying Louis’ Shaken Baby Syndrome conviction has evolved in significant ways. Louis’ confession should not be admissible at the new trial.
Decision The Court of Appeals denied review and stated that the trial court properly exercised its discretion to order a new trial based on new medical testimony regarding shaken baby syndrome. However, it determined that because Louis’ confession was voluntary, it is admissible at trial.
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Bunch, Kristine v. State of Indiana (2009)

Counsel DLA Piper
Courts Indiana Supreme Court
Issues Unreliable Forensic Science
Case Number 16 A05 1007 PC 439
Position Fire science has undergone a transformative change since petitioner’s trial and new exculpatory evidence warrants new trial.
Decision Advances in field of fire victim toxicology analysis constituted newly-discovered evidence which warranted new trial; Court of Appeals would decline to defer to trial court’s determination that expert’s testimony was not worthy of credit; expert’s testimony on fire victim toxicology analysis was worthy of credit; state suppressed evidence when it failed to turn over entire Federal ATF (Bureau of Alcohol, Tobacco, and Firearm) file to defendant; file was favorable to the defense; and there was a reasonable probability that result of trial would have been different had state disclosed file to defendant.
PDFicon Bunch-Kristine-v.-State-of-Indiana.pdf

Glenn, Roosevelt v. State of Indiana (2009)

Counsel Davis Polk & Wardwell LLP
Courts Indiana Supreme Court
Issues Unreliable Forensic Science
Case Number 49G01-0311-PC-0016
Position New trial should be granted when petitioner is convicted on basis of unreliable forensic evidence.
Decision Review denied.
PDFicon  Glenn-Roosevelt-v.-State-of-Indiana.pdf

Glover, Laurese v. State of Ohio (2009)

Counsel Skadden, Arps, Slate, Meagher & Flom LLP
Courts Ohio Court of Appeals
Issues Unreliable Forensic Science
Case
Number		 93623
Position Petitioner convicted on basis of unreliable GSR evidence is entitled to new trial.
Decision Trial court did not abuse its discretion in denying new trial.
PDFicon  Glover, Laurese v. State of Ohio

Prade, Douglas v. State of Ohio (2009)

Counsel Paul, Weiss, Rifkind, Wharton & Garrison LLP
Courts Ohio Supreme Court
Issues Access to Post-Conviction DNA Testing; Unreliable Forensic Science
Case Number 2009-0605
Position DNA analysis should be allowed in case where petitioner’s conviction was based on now-discredited bite mark evidence.
Decision Prior DNA tests were not “definitive” within Ohio statute. Court of Appeals judgment reversed and case remanded to consider whether new DNA testing would be “outcome determinative” under statute.
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Siller, Thomas v. State of Ohio (2009)

Counsel Winston & Strawn LLP; Milton A. Kramer Law Clinic Center
Courts Ohio Court of Appeals, Eighth Appellate District
Issues Unreliable Forensic Science
Case Number 08-90865
Position New trial should be granted where conviction rested on snitch testimony and fraudulent forensic science.
Decision The trial court abused its discretion in holding that the newly discovered evidence was merely cumulative and hence insufficient to command a new trial.
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Wheat, Derrick v. State of Ohio (2009)

Counsel Skadden, Arps, Slate, Meagher & Flom LLP
Courts Ohio Court of Appeals
Issues Unreliable Forensic Science
Case Number CA-09-093671
Position Petitioner convicted on basis of unreliable GSR evidence is entitled to new trial.
Decision Trial court did not abuse its discretion in denying motion for new trial.
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Wyatt, Thomas Anthony v. State of Florida (2009)

Counsel Innocence Project of Florida, Inc.
Courts Florida Supreme Court
Issues Unreliable Forensic Science
Case Number 08-655
Position Case-specific FBI letter informing individual that CBLA testimony offered at previous trial was inappropriate and constitutes newly discovered evidence.
Decision FBI letters were newly discovered evidence, but did not warrant a new trial.
PDFicon Wyatt-Thomas-Anthony-v.-State-of-Florida.pdf

Melendez-Diaz, Luis v. State of Massachusetts (2008)

Counsel Miller & Chevalier, Chartered
Courts U.S. Supreme Court
Issues Unreliable Forensic Science
Case Number 07-591
Position Arguing that crime laboratory reports are “testimonial” within the meaning of Crawford v. Washington, and hence inadmissible unless presented by live testimony of the author subject to cross-examination under the confrontation clause.
Decision Analysts’ certificates of analysis were affidavits within core class of testimonial statements covered by Confrontation Clause; analysts were not removed from coverage of Confrontation Clause on theory that they were not “accusatory” witnesses; analysts were not removed from coverage of Confrontation Clause on theory that they were not conventional witnesses; analysts were not removed from coverage of Confrontation Clause on theory that their testimony consisted of neutral, scientific testing; certificates of analysis were not removed from coverage of Confrontation Clause on theory that they were akin to official and business records; and defendant’s ability to subpoena analysts did not obviate state’s obligation to produce analysts for cross-examination, citing Innocence Network brief at 2536-2537.
PDFicon  Melendez-Diaz-Luis-v.-State-of-Massachusetts.pdf

Ford, Glenn v. Cain (2007)

Counsel Innocence Project New Orleans; Sidley Austin LLP
Courts Louisiana trial court
Issues Unreliable Forensic Science
Case Number 126.005
Position The admission of unreliable scientific evidence (including gunshot residue and fingerprint evidence) violated Ford’s constitutional rights.
Decision Conviction vacated in March 2014.
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Other Issues

Powers, David M. v. State of Iowa (2018)

Counsel Innocence Project of Iowa; Midwest Innocence Project
Courts Supreme Court of Iowa
Issues Other Issues
Case Number 16-1650
Position Applicant for postconviction relief filed an interlocutory appeal of the
district court ruling quashing his subpoena for discovery of police
investigative reports and the district court ruling excluding all evidence
and testimony related to the alleged false claims of his complaining witness
contained in the investigative reports.
Decision

The Supreme Court reversed the ruling of the district court denying discovery of the investigative reports and order the reports disclosed to Powers under appropriate conditions determined by the district court. They also reversed the ruling of the district court regarding the admissibility and use of the investigative files in the postconviction-relief proceedings.
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Schmidt, Jacob Lee v. State of Iowa (2017)

Counsel Faegre Baker Daniels LLP
Courts Iowa Supreme Court
Issues Other Issues
Case Number S. Ct. No. 15-1408
Position A guilty plea should not preclude a defendant from seeking post-conviction relief when after-discovered evidence is found.
Decision The Iowa Constitution allows freestanding claims of actual innocence.
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Yarborough, Turner, Smith, Turner, Rouse, and Catlett v. United States (2017)

Counsel Gibson, Dunn & Crutcher
Courts Supreme Court of the United States
Issues Other Issues
Case Number No. 15-1503
Position To advocate for the granting of cert in a case where the state appellate court held that after-discovered evidence could not be considered as part of the materiality analysis under Brady and in which the lower Court applied a heightened Brady standard. Brady disclosure is fundamental to preventing wrongful convictions. Information about alternative perpetrators is classic exculpatory evidence absent strong inculpatory physical evidence. Courts should consider all information when weighing Brady materiality.
Decision

The evidence withheld by the government was not material for Brady purposes.
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Commonwealth of Pennsylvania v. Burton, Shawn Lamar (2016)

Counsel Pennsylvania Innocence Project; Schnader Harrison Segal & Lewis LLP
Courts Pennsylvania Supreme Court
Issues Other Issues
Case Number 9 MAP 2016
Position Unrepresented people in prisoner should not be presumed to have knowledge of every public court filing. To leave a prisoner in prison who can allege and prove a right to relief as a result of
the automatic application of presumption is fundamentally unjust.
Decision

Supreme Court held that the presumption that information which is of public record cannot be deemed “unknown,” for purposes of the provision setting forth the newly-discovered facts exception to the time limits of the Post Conviction Relief Act, does not apply to pro se prisoner petitioners and affirmed the trial court’s order remanding the matter for further proceedings, see 158 A.3d 618 (2017).
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Horton, John v. People of the State of Illinois (2016)

Counsel Jenner & Block LLP
Courts Illinois Court of Appeals
Issues Access to Post-Conviction DNA Testing; New Evidence of Innocence; Other Issues
Case Number 93 CF 1991
Position Third-party confessions should be considered, rather than dismissed out of hand, especially when they contain hallmarks of reliability as compared to the confession evidence presented by the State at trial.
Decision The trial court erred in denying Horton leave to file a successive post-conviction petition alleging that the State violated its discovery obligations pursuant to Brady v. Maryland. Because the pleadings and record establish a Brady violation, Horton’s convictions were reversed and the case was remanded for a new trial.
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Hardin, Jeffrey v. Ohio (2015)

Counsel Cooley LLP
Courts United States Supreme Court
Issues Unreliable Forensic Science; Other
Case
Number		 Ohio Supreme Court No. 2011-0122
Position Authors of autopsy reports should be subject to the constitutionally prescribed method of testing validity: confrontation. Those drafting autopsy reports are particularly susceptible to cognitive bias and suggestion by law enforcement officers. Further, forensic pathology is subject to human error, incompetence, and even fraud. Surrogate testimony hides these issues at trial and frustrates the justice system’s truth-seeking function.
Decision Cert petition denied.
PDFicon  Hardin, Jeffrey v. Ohio

McKoy, Lamont v. State of North Carolina (2015)

Counsel Womble Carlyle Sandridge & Rice, LLP
Courts North Carolina Court of Appeals
Issues Actual Innocence; New Evidence of Innocence: Other Issues
Case Number O9 CRS 11412
Position Evidence of actual innocence is sufficient in this case to overcome procedural bars and warrants an evidentiary hearing.
Decision Petition was denied.
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Biggs, Jay, State v. (2013)

Counsel Morgan, Lewis & Bockius LLP
Courts Ohio Supreme Court
Issues Other Issues
Case Number 2013CA00009
Position Where the findings of the State’s expert(s) is/are the central issue in the case, the prisoner must be able to have a post-conviction procedure by which to review those materials used or reviewed by the expert(s) to reach their final conclusion. Evidence that was made available to trial counsel or would have been made available to trial counsel had they so requested, should be similarly available to counsel or post-conviction counsel for review.
Decision Court declined jurisdiction.
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Donald, Stanley v. Commonwealth of Massachusetts(2013)

Counsel Pepper Hamilton LLP
Courts Mass. Supreme Judicial Court
Issues Access to Post-Conviction DNA Testing; Other Issues
Case Number SJC-11348
Position The weight of inculpatory evidence used to convict an individual should not be relevant to a determination of his right to access potentially exculpatory evidence under Chapter 278A (revised Massachusetts DNA-Access Law).
Decision Affirmed the order denying the renewed G.L. c. 278A, § 3 motion on May 6, 2014.
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Wade, Robert v. Commonwealth (2013)

Counsel Pepper Hamilton LLP
Courts Mass. Supreme Judicial Court
Issues Access to Post-Conviction DNA Testing; Other Issues
Case Number SJC-11506
Position Position: Access to DNA testing should be granted in cases where DNA could potentially identify the real perpetrator, despite the existence of trial evidence that appeared overwhelming at the time. Furthermore, under Massachusetts’ revised DNA-Access law (Chapter 278A), the movant must only show that the forensic analysis “has the potential to result in information that is material to the movant’s identification as the perpetrator of the crime,” a much more lenient standard than the previous law (Mass. R. Crim. P. Rule 30).
Decision Decision Pending
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United States of America v. Kentucky Bar Association (2013)

Counsel Wilkie Farr & Gallagher LLP
Courts Supreme Court of Kentucky
Issues Ineffective Assistance of Counsel; Other Issues
Case Number 2013-SC-270
Position The Opinion issued by the Kentucky Bar Association, which states that “a criminal defense lawyer may not advise a client with regard to a plea agreement that waives the client’s right to pursue a claim of ineffective assistance of counsel…” should be upheld. Innocence people do plead guilty and this is therefore a critical right that defendants must maintain.
Decision Decided: August 21, 2014. Affirmed E–435 with respect to prosecutors. Either defense counsel or prosecutors inserting into plea agreements waivers of collateral attack, including IAC, violates the Rules of Professional Conduct.
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Avery, Brian K. v. State of Wisconsin (2012)

Counsel Cooley LLP; Godfrey Kahn, S.C.
Courts Wisconsin Supreme Court
Issues Other
Case
Number		 2010AP001952
Position Given the factors contributing to both Avery’s false confession and the unreliability of the eyewitness identifications, this Court should affirm the Court of Appeals and remand for a new trial.
Decision Opinion filed January 13, 2013. Reversed the Court of Appeals decision and concluded that Avery is not entitled to a new trial in the interest of justice because the controversy was fully tried even though the jury did not hear the photogrammetry evidence.
PDFicon  Avery, Brian K. v. State of Wisconsin

Arthur, Thomas v. Alabama (2011)

Counsel The Innocence Project; Morgan Lewis & Bockius
Courts Alabama Court of Criminal Appeals
Issues Other Issues
Case Number 11-69
Position Preserving Biological Evidence Is A Matter Of National Importance; State Law Does Not Adequately Protect Biological Evidence.
Decision Petition for certiorari denied on October 17, 2011.
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Gonzalez, Rafael H. v. Thaler (2011)

Counsel Ropes & Gray LLP
Courts U.S. Supreme Court
Issues Other Issues
Case Number 10-895
Position The requirement of a certificate of appealability (COA) in AEDPA cases should not be applied in a technical manner, nor should the Court treat as jurisdictional, aspects of the COA that Congress did not intend as such.
Decision Provision of AEDPA requiring the COA to indicate which specific issue or issues satisfy AEDPA’s requirement that a petitioner make a substantial showing of the denial of a constitutional right, is not jurisdictional, abrogating United States v. Cepero, 224 F.3d 256, and limitations period for habeas petition under AEDPA commenced when the time for seeking discretionary review in state’s highest court expired, abrogating Riddle v. Kemna, 523 F.3d 850.
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Davis, Roland T. v. State of Ohio (2010)

Counsel Office of the Ohio Public Defender, Wrongful Conviction Project; Davis Polk & Wardwell LLP
Courts Ohio Court of Appeals
Issues Other Issues
Case Number 09–CA–0019
Position  
Decision Trial court correctly determined Appellant’s motion for new trial was untimely, and denied his request for a finding he was unavoidably prevented from discovering the new evidence upon which he relies.
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White, Melvin L. v. State of North Carolina (2010)

Counsel Innocence & Justice Clinic
Courts North Carolina Superior Court
Issues Other Issues
Case Number 95 CRS 10229-30, 95 CRS 1352
Position Non-white defendants, especially those accused of crimes against white victims face a uniquely high risk of wrongful capital convictions due to the conscious and subconscious biases which pervade the criminal justice system.
Decision North Carolina does not offer online access to their court records; court records are only available electronically at terminals in individual courthouses. Unable to locate appellate opinions directly related to the issues in this brief.
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Kennedy, Patrick v. State of Louisiana (2008)

Counsel Bob Barr; NACDL
Courts U.S. Supreme Court
Issues Other Issues
Case Number 07-343
Position Arguing that the death penalty should not be permitted for non-homicide child sexual assault cases because child witnesses are especially susceptible to suggestion and are unreliable, so that the risk of wrongful conviction and wrongful execution are unacceptably high in such cases.
Decision The Eighth Amendment prohibits the death penalty for the rape of a child where the crime did not result, and was not intended to result, in death of the victim.
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Schaefer, Ronald v. State (2006)

Counsel Wisconsin Innocence Project; Wisconsin State Public Defender
Courts Wisconsin Court of Appeals
Issues Other Issues
Case Number 2006 AP 1826-CRAC
Position Prosecutors should be obligated to disclose exculpatory evidence at a preliminary hearing; defendants should have discovery rights, including access to police reports, prior to the preliminary hearing.
Decision The Court of Appeals certified this issue to the Wisconsin Supreme Court. The Supreme Court, in 2008 Wisconsin 25, affirmed the lower court, holding that a criminal defendant does not have the right to compel production of police investigation reports and non-privileged materials by subpoena duces tecum prior to a preliminary examination.
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McDowell v. State (2004)

Counsel Wisconsin Innocence Project
Courts Wisconsin Supreme Court
Issues Other Issues
Case Number 02-1203-CR
Position Defense counsel at trial may conclude that her client will commit perjury (in which case the attorney may refrain from presenting that client’s testimony) only when the attorney “knows” the client will lie because the client has expressed a clear intent to lie. (Nix v. Whiteside issue)
Decision The Wisconsin Supreme Court affirmed the court of appeal’s denial of post-conviction relief. The Court held that, absent extraordinary circumstances, knowledge that a client intends to testify falsely must be based on the client’s express admission of his intent to commit perjury. In such circumstances, defense counsel may allow a defendant to testify in the narrative. In the present case, the Court found that defense counsel impermissibly used narrative questioning despite believing that his client would testify truthfully (because no prejudice resulted, however, the Court affirmed the denial of post-conviction relief).
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State of  Missouri v. Lamar Johnson (2020)

Counsel American Civil Liberties Union of Missouri, American Civil Liberties Union Foundation, The Innocence Project Inc., The Innocence Network, and Miracle of Innocence
Courts Circuit Court of the City of St. Louis
Issues Other Issues
Case Number SC98303
Position Defense counsel at trial may conclude that her client will commit perjury (in which case the attorney may refrain from presenting that client’s testimony) only when the attorney “knows” the client will lie because the client has expressed a clear intent to lie. (Nix v. Whiteside issue)
Decision Pending.
PDFicon State-v-Lamar-Johnson