What sticks out about the Detroit case highlighted by Lenore this morning is that the judge only found this victim recantation credible because of the extreme circumstances surrounding it. The victim, a parapalegic, had to be surreptitiously removed from his home and brought to court to recant his trial testimony that once implicated the DeShawn and Marvin Reed. The victim’s family was using the victim’s immobility to functionally hold him hostage, thus preventing him from coming forward with the truth.
While the judge found these circumstances compelling enough to make the recantation reliable, what about every other run-of-the-mill recantation that judges in Florida and around the country routinely reject? Do we really need extraordinary bordering on bizarre circumstances to use a recantation as a basis for a postconviction innocence claim? Is it really possible that normal recantations are never credible and should always be rejected?
Take the case of Frank Lee Smith from Broward County, Florida. Smith was convicted and sentenced to death in 1986 for raping and murdering a female child. At his trial, eyewitness Chiquita Lowe testified that, on her way home, she was flagged down by an unidentified black male (the murderer) who had a full beard, scraggly hair, and a droopy eye. She identified Smith as this black male both in a photo pak and in court at trial. But a decade later, after being shown a picture of a known serial rapist/murderer, Eddie Lee Mosely, who had done his deeds all over Broward County during the time of this crime, Lowe realized she had made a grave mistake and that Mosely was actually the person she saw the evening of this murder. She attempted to recant.
In 1998, the Florida Supreme Court ordered a hearing on the credibility of Lowe’s recantation. At the hearing Lowe provided her recantation and the State countered with a newly manufactured additional photo pak that supposedly had Mosely in it where Lowe supposedly did not pick Mosely as the man she saw night of the murder. Predictably, the court brushed aside the recantation and denied Smith’s motion for new trial.
While the State never did execute Frank Lee Smith, he died a horrible and painful death of cancer a year later while on death row. DNA testing after his death proved conclusively that he did not rape and murder the female victim. Instead, the DNA testing confirmed what Chiquita Lowe had been saying: that Eddie Lee Mosely was the man she saw that night; thus, Mosely, not Smith, was the murderer.
Smith’s is just the most egregious instance of courts and prosecutors summarily rejecting recantations only for reality to eviscerate the wisdom of their decisions. The judicial aversion to giving any credit to recantations is problematic, especially in those cases where DNA evidence is not an issue and the recantation may be the only path to demonstrating innocence. Court’s need to take a hard look at the questions I posited above and how their answers reconcile with cases like that of Frank Lee Smith.