court of appeals decision (not recommended for publication); for Moore: Byron C. Lichstein; case activity; prior history: 1997AP1193-CR, habeas relied denied, Moore v. Casperson, 345 F.3d 474 (7th Cir. 2003)
Newly Discovered Evidence – Recantation
Moore seeks relief on the basis of newly discovered evidence in the form of a purported recantation of State witness James Gilliam’s trial testimony. The trial court, after conducting an evidentiary and finding that the recantation wasn’t credible, denied relief. The court of appeals affirms. Detailed summary of this lengthy, fact-driven opinion not recommended for publication isn’t necessary. Nonetheless, the case will undoubtedly draw attention because its notoriety – 6 defendants convicted of killing a paper mill co-worker and disposing of his body in a pulp vat; 1 conviction, though, later tossed out for insufficient proof, Piaskowski v. Bett, 256 F.3d 687 (7th Cir. 2001) - lingers long after the event. The court’s discussion of the test for recantation-based newly discovered evidence also should attract interest.
Gilliam seems to have been a quasi-professional State’s witness. He testified at trial that his jail cellmate Moore admitted helping to beat the victim, though Moore didn’t admit he had participated in the killing. Long after trial, Gilliam gave statements that Moore now argues amount to a recantation of his trial testimony. Again, for purposes of this summary, the details needn’t be recited. The court’s discussion of the standard for processing recantation evidence is of greater moment:
¶11 Of particular relevance to this appeal are the standards that apply when the newly discovered evidence at issue is a purported recantation. Recantation evidence is subject to a preliminary threshold determination for believability, requiring corroboration by other newly discovered evidence. State v. McCallum, 208 Wis. 2d 463, 476-77, 561 N.W.2d 707 (1997). This is because every recantation is “inherently unreliable” in that it involves an admission that the recanting witness lied under oath in his or her original testimony. Id. at 476.
…
¶41 To review, Gilliam purported to recant aspects of his trial testimony long after trial in interviews with advocates for Gilliam. The essence of Gilliam’s new statements was that, while Moore had told Gilliam that Moore was present when a group confronted Monfils in the mill on the morning he disappeared, Moore did not strike Monfils and instead tried to help him. Confusing the picture, Gilliam inaccurately told the advocates that his new version matched the testimony he gave at trial. Then, in advance of the hearing and again at the hearing, Gilliam purported to take back this recantation, essentially re-adopting his original trial testimony.
The trial “court concluded that the recantation is not worthy of belief,” ¶37. This “finding that Gilliam’s purported recantation is not credible is a finding of fact regarding Gilliam’s credibility,” and is subject to deferential review on the “clearly erroneous” standard, ¶44. The court elaborates:
¶46 Turning to the specific challenges Moore now makes to the circuit court’s finding, Moore argues that the court misapplied the legal standard derived from McCallum. We disagree. Moore correctly points out that a court should not attempt to determine whether a recantation is true or false, that is, whether the original testimony appears more likely to be the truth than the recantation. This is a question for the jury to answer. Instead, the court is to determine whether the recantation is “worthy of belief,” that is, “within the realm of believability,” because it bears some “indicia of credibility persuasive to a reasonable juror if presented at a new trial.” See id. at 487 (Abrahamson, C.J., concurring).[11] This is the standard that the court applied. The court found the recantation to be “incredible” and “not credible,” which in this context plainly meant entirely outside the realm of believability.
As indicated, the court of appeals upholds this credibility finding. The analysis doesn’t end there, because a recantation though “in itself … incredible, might nonetheless merit a new trial when considered as impeachment material in a new trial,” ¶48. This inquiry is separate from the “threshold determination,” of the recantation’s believability: the court explicitly rejects the State’s argument that mere impeachment may not alone support a new trial on the ground of newly discovered evidence, ¶¶50-55, citing State v. Plude, 2008 WI 58, 310 Wis. 2d 28, 750 N.W.2d 42. “In Plude, the court concluded that the newly discovered impeachment material in that case qualified as so strong and noncumulative, and so critical to the State’s case, as to require a new trial to avoid a manifest injustice,” ¶51. Applying that test here: “the testimony by and about Gilliam would not, as in Plude, undermine a critical link in the State’s case, because the other evidence at Moore’s trial shows that a jury would already have had reasons to put little weight on any testimony by Gilliam, and that the State had ample proof of Moore’s guilt, even without Gilliam’s testimony,” ¶54. The following quote provides at least a flavor of the court’s skepticism about the impact of the evidence:
¶55 Gilliam was presented as a six-time convict, a “jailhouse snitch,” likely at least a former drug addict, who had a history of accepting percentages of the value of drugs held by the dealers whom he could help police arrest. He gave two accounts of his primary motivation for testifying that appeared to conflict, without reconciling the two explanations. The jury heard Moore deny that he had ever even talked with Gilliam. For these reasons, Gilliam’s testimony was in some respects already suspect. The additional impeachment value at issue may have added to Gilliam’s credibility problems, but the fact remains that Gilliam has given the same incriminating testimony twice under oath to the same basic version of events, and there is no persuasive reason to conclude that Gilliam would give different testimony under oath at a new trial. Similarly, there is no reason to conclude that a jury would believe Gilliam’s purported recantation, which was never made under oath, over his sworn testimony.
Detailed discussion by the court of the facts follows, ¶¶56-75. (The court separately rejects relief in the interest of justice, § 752.35, ¶¶77-84. Again: its fact-specific nature militates against recital here, except to say that the court’s discussion includes the test, ¶¶78-79.)
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