Frank Menetrez writes:
Consider this hypothetical: I am prosecuted for robbing a store. I know that I'm innocent--I wasn't even at the scene of the crime--but I can't find any good evidence to support my story. After I'm convicted, I learn that there is a videotape from a security camera that proves I wasn't there. Fed. R. Crim. P. 33 permits me to bring a motion for new trial based on newly discovered evidence, so that is what I do. The court denies my motion on the grounds that the videotape showing I wasn't at the scene is not newly discovered evidence, because I must have known all along that I wasn't at the scene. So my conviction stands.Is this a federal court or a Kafka novel? It is the U.S. Court of Appeals for the Third Circuit, in an opinion joined, but not authored, by the Hon. Samuel Alito.The case is United States v. Jasin, 280 F.3d 355 (3d Cir. 2002). The facts of the case are these: Tom Jasin was accused of conspiring to violate the arms embargo on South Africa in the mid-1980s. He was unable to obtain corroborating testimony from Clyde Ivy, one of the two central figures in the conspiracy, because Ivy was asserting his privilege against self-incrimination in defending against criminal charges at the same time that Jasin's case was proceeding. After Jasin was convicted, and after Ivy entered a plea agreement and served his sentence, Ivy admitted that Jasin was not part of the conspiracy. Jasin brought a motion for new trial based on newly discovered evidence, supported by Ivy's affidavit. But the district court and the Third Circuit said that Ivy's affidavit was not newly discovered evidence, because Jasin must have known all along that he wasn't part of the conspiracy. Motion denied.The Third Circuit opinion discusses with approval a previous, unpublished Third Circuit decision, United States v. Evans, No. 98-1706 (3d Cir. Dec. 3, 1999), which makes the same error. In that case, Evans was convicted of being the "masked robber" who had participated in the robbery of a credit union. After his conviction, Evans learned that during plea negotiations, his co-defendant's lawyer had informed the prosecution that Evans was not the masked robber. On that basis, Evans brought a motion for new trial based on newly discovered evidence, namely, his co-defendant's lawyer's statements, of which Evans was previously unaware. The denial of the motion was affirmed on appeal. The reason, in the words of the Third Circuit, was that "[b]ecause, logically, Evans had to have known at the time of trial that he was not the masked robber, that evidence is not 'newly discovered.'"The technical howler here is obvious enough, no? The court has confused a piece of evidence (e.g., a statement by a witness) with the fact which the evidence tends to prove (e.g., that Jasin was not in the conspiracy, or that Evans was not the masked robber). In so doing, the court has made it impossible for a wrongly convicted criminal defendant to bring a new trial motion on the basis of newly discovered evidence. No evidence will ever constitute newly discovered evidence of a defendant's innocence, because the defendant must have been aware all along of his or her innocence. That is now the law in the Third Circuit.Alito did not author United States v. Jasin. But Alito did sign on to it, despite the fact that the egregious technical error at its core was pointed out, in a very diplomatic manner, in a separate opinion by Judge Ambro. Alito's approval of this mangling of the law, at the severe expense of wrongly convicted criminal defendants, should, in my view, disqualify him from serving on the Supreme Court.Disclosure and further background: I was one of several lawyers who represented Tom Jasin at various stages of his challenges to his conviction. Although my name appears on the Third Circuit case, I actually did not participate in the briefing, and there was no oral argument. We ultimately got Tom's conviction vacated on habeas, just weeks before he would have finished serving his sentence. (United States v. Jasin, 215 F. Supp. 2d 552 (E.D. Pa. 2002).) The government moved for reconsideration, lost (United States v. Jasin, 292 F. Supp. 2d 670 (E.D. Pa. 2003)), did not appeal, and chose not to retry him.