Old crime evidence

jeseymour · Nov 13, 2011

Hi Everybody! I've written myself into a bit of a corner and need to find a way out. I attended a crime writers conference this weekend and got a ray of hope. Here's the scenario: my main character went to prison for a crime committed a long time ago (around 20 years ago in NYC.) It was the killing of a police officer, my MC was in the car, but did not pull the trigger. MC was shot by the cop, driver of the car shot the cop and fled, my MC was the logical choice for the crime. His fingerprints were on the gun because he was trying to take it away from the actual killer. Now I need him to be out of prison, so I need some sort of new evidence or re-examination of the old evidence that would set him free. In my first draft I basically had someone find the real killer and get him to confess, but that seems like a cop-out.
So - could there be some sort of DNA evidence that the real killer could have left that would prove my MC's story? That would be enough to get him out of jail? My MC's lawyer could be putting some time into this, for years, and finally have some sort of breakthrough. Thoughts?

mirandashell · Nov 13, 2011

Hmmmmm.... tricky one. Weren't the shooter's prints on the gun as well?

DeleyanLee · Nov 13, 2011

Check into gunshot residue as a possibility. The MC's hand's position on the pistol when it's shot should show where that hand was (ie: not at the trigger).

Though, honestly, confessions by the actual killer generally is the trigger for such things. It's not enough to get another trial, but it usually gets cops looking at things again.

jeseymour · Nov 13, 2011

mirandashell said:
Hmmmmm.... tricky one. Weren't the shooter's prints on the gun as well?

Yes, but no sign of him and at the time, his prints were not on record and my MC was the logical choice for the crime. If nobody was pursuing it, would the fact that the other guy's prints eventually will show up in other crimes even be noticed? My guy is already in prison for this crime, so it's not like it's a cold case. My MC's lawyer could pick it up again and check on the prints (a beta reader has suggested that to me) but is that even enough proof? That does put a second person in the car, which lends credence to my MC's story, but is that enough to throw out the conviction?

jeseymour · Nov 13, 2011

DeleyanLee said:
Check into gunshot residue as a possibility. The MC's hand's position on the pistol when it's shot should show where that hand was (ie: not at the trigger).

Though, honestly, confessions by the actual killer generally is the trigger for such things. It's not enough to get another trial, but it usually gets cops looking at things again.

Yeah, the confession is how I got him out in the first draft. Maybe I shouldn't be looking for anything fancier. :tongue

DeleyanLee · Nov 13, 2011

You'll need something other than a confession to get a new trial or a refusal, IIRC, though. Otherwise it's one person's word against the decision of a jury.

Now, if you can bring in proof that the MC was railroaded in some way, that'll work to get a new trial and, with a confession, will likely get them off. Same result, different avenue to it.

Drachen Jager · Nov 13, 2011

If someone has already been convicted of the crime it makes a new trial virtually impossible.

Even starting a trial, then aborting it mid-way through as they realise they have the wrong guy makes it very hard without super-damning evidence (the kind you simply don't get after 20 years).

Short of video-tape or photographic evidence backed up by witness statements I don't think it would fly at trial.

Even a confession, unless the perp is willing to confess on the witness stand, wouldn't be enough in most cases. Once there's a conviction the case is closed (with the obvious exception of appeals, which would have run out by now).

MarkEsq · Nov 13, 2011

There's no kind of DNA that I can imagine being discovered from any of the old evidence that would help.

Gun shot residue would also not be helpful. To be of use at all, the test has to be done an hour or so after the event, and the best a firearm's guy will say is that a positive test puts the guy near a gun.

As others have said, a confession from the real killer won't be enough to get you out of a hole, either.

The only thing I can come up with is evidence of some sort of prosecutorial misconduct. Much as I hate to suggest such a thing exists.

So, it'd be hiding possibly exculpatory evidence, or... oh, here you go: the police or DA came across a witness to the shooting who backs up your guy's story. But because he was a dodgy character (or whatever) they didn't tell the defense about it, they buried his statement. If the guy swore under oath now that your MC was trying to disarm the bad guy, and says he gave a statement back then to the same effect, I bet that'd get you a new trial. It would certainly be believable enough in a novel.

mirandashell · Nov 13, 2011

Actually, to add to Mark's idea, maybe his arrest is re-examined because one of the cops on the case is discovered to be bent. Over here, there would be a re-examination of all his cases. Then you could bring in the dodgy witness.

Al Stevens · Nov 13, 2011

The MC had been screwing the dead cop's partner's wife. The partner saw the whole thing but kept it to himself out of revenge. Now retired, estranged from the cheating wife, on his deathbed, and feeling guilty, he comes forward and clears the air. Cut to commercial.

In other words, you can't do it with DNA.

sonyablue · Nov 13, 2011

MarkEsq said:
There's no kind of DNA that I can imagine being discovered from any of the old evidence that would help.

Gun shot residue would also not be helpful. To be of use at all, the test has to be done an hour or so after the event, and the best a firearm's guy will say is that a positive test puts the guy near a gun.

As others have said, a confession from the real killer won't be enough to get you out of a hole, either.

The only thing I can come up with is evidence of some sort of prosecutorial misconduct. Much as I hate to suggest such a thing exists. So, it'd be hiding possibly exculpatory evidence, or... oh, here you go: the police or DA came across a witness to the shooting who backs up your guy's story. But because he was a dodgy character (or whatever) they didn't tell the defense about it, they buried his statement. If the guy swore under oath now that your MC was trying to disarm the bad guy, and says he gave a statement back then to the same effect, I bet that'd get you a new trial. It would certainly be believable enough in a novel.

This is what I was thinking - some sort of shenanigans by the prosecution that were serious enough to warrant a new trial. Or maybe his fingerprints actually *weren't* on the gun, but somebody lied or fudged the evidence to make sure your guy was convicted (especially given that this was a cop's murder and emotions were running high)?

jeseymour · Nov 13, 2011

If it makes a difference, my MC pled to the original killing to cut a deal. The evidence was overwhelming. He knows he didn't do it, and he's been saying so ever since, even after pleading to it. Would there be a new trial if there was never a trial in the first place? Or have I really written myself into a corner?

mirandashell · Nov 13, 2011

Urrr... I don't know. We run a different system over here so I'll step out of this one.

jeseymour · Nov 13, 2011

MarkEsq said:
There's no kind of DNA that I can imagine being discovered from any of the old evidence that would help.

Gun shot residue would also not be helpful. To be of use at all, the test has to be done an hour or so after the event, and the best a firearm's guy will say is that a positive test puts the guy near a gun.

As others have said, a confession from the real killer won't be enough to get you out of a hole, either.

The only thing I can come up with is evidence of some sort of prosecutorial misconduct. Much as I hate to suggest such a thing exists. So, it'd be hiding possibly exculpatory evidence, or... oh, here you go: the police or DA came across a witness to the shooting who backs up your guy's story. But because he was a dodgy character (or whatever) they didn't tell the defense about it, they buried his statement. If the guy swore under oath now that your MC was trying to disarm the bad guy, and says he gave a statement back then to the same effect, I bet that'd get you a new trial. It would certainly be believable enough in a novel.

This might work. Especially combined with a confession? And maybe some other evidence (my MC is well over 6 feet tall, and the driver was a short teenager, so the front seat was pushed way forward.) Little things like that. My MC was not exactly a model citizen at the time, so it would certainly be believable for the police to hide a statement from a witness.

jclarkdawe · Nov 13, 2011

I want to repeat the facts of the crime as I understand them. Two dudes are in a vehicle with a cop. Cop shoots Dude A, Dude B shoots cop. Cop dies, Dude A is survives and is caught, Dude B disappears. Is that accurate?

Is so, both Dude A and Dude B may both be guilty of felony murder. Felony murder is when a murder occurs during the commission of a crime. I'll admit I'm missing what the inciting event is for all the guns going off and I'm not sure why all three of them were in a car together. But I'm thinking there was some primary criminal activity (or the planning of a criminal activity) that brought them all together.

Assuming you get around the felony murder problem, the second problem I see is why the hell did your boy plead to 20+ years? You plead guilty to avoid a worse punishment, but as far as I know New York did not have a death penalty at that point. So why did your boy plead? The maximum sentence would have been life without parole, so what did he plead to for a minimum sentence?

If he plead, he would have gone in front of a judge and said he was guilty, that he understands his rights, and that the only reason he is pleading guilty is because he is in fact, guilty. Not under oath, but it might as well be. Because no one in the legal system wants to admit that innocent people plead guilty to crimes they didn't commit, this is an incredibly high burden to get around.

Many, many people, after the excitement of the good deal they got (say 10 - 20 compared to 50 years if they'd gone to trial) disappears, and the reality of prison sets in, try arguing that in fact they're innocent and the plea was a mistake. Easily over a thousand appeals on this issue nationally every year. So what's special about your boy that's going to stand out on appeal?

As Mark said, about the only thing that works is severe prosecutorial misconduct. Even then, it's hard to do.

Best of luck,

Jim Clark-Dawe

MarkEsq · Nov 13, 2011

I agree with myself

)) and Jim. And I think the fact that he pled guilty, rather than going to trial, makes it much harder. At least in Texas, at a plea deal you waive your right to appeal. You could check in NY whether that includes the right to appeal due to newly discovered evidence, but it probably does. Plus, again in Texas, when the defendant admits to the offense it IS under oath.

But you can save this. How? There is one other crooked dude: the defense lawyer. I think if the defense attorney gave crooked advice to your MC, including that he knew about the hidden evidence, you'd get a new trial. But I think that's about the only way you could do it.

jclarkdawe · Nov 13, 2011

MarkEsq said:
I agree with myself )) and Jim. And I think the fact that he pled guilty, rather than going to trial, makes it much harder. At least in Texas, at a plea deal you waive your right to appeal. You could check in NY whether that includes the right to appeal due to newly discovered evidence, but it probably does. Plus, again in Texas, when the defendant admits to the offense it IS under oath.

Your appeal rights are waived on a plea, unless agreed to (sometimes you do a plea with a right to appeal some issue) by the state. However, you do have a right to appeal under a writ of habeas corpus. Normally an appeal for new evidence is to the trial court as a direct appeal. But the problem with a plea is you can't do an appeal for new evidence. Since a plea means you did the crime, how can you then say that new evidence shows you didn't commit the crime? So even for new evidence, you'd have to do an indirect appeal under a writ of habeas corpus.

I don't know whether in NY you do pleas under oath, although my guess would be they do not. It doesn't really matter, though. The thing is when the defendant gets on the stand and is asked about this, any good prosecutor will get him so tripped up it will be a wonder to behold.

Pleas have been overturned, but your chances are probably better with PowerBall.

But you can save this. How? There is one other crooked dude: the defense lawyer. I think if the defense attorney gave crooked advice to your MC, including that he knew about the hidden evidence, you'd get a new trial. But I think that's about the only way you could do it.

Considering that a defense counsel can practically sleep the trial away and still be competent, crooked advice isn't going to cut it. I think it would have to be a direct conflict of interest. In other words, the defense counsel is trying to put the guy in jail. And even if you've got evidence that the defense counsel is trying to put the guy in jail, you still have the plea problem, because remember, the guy plead guilty because he was guilty.

I'd really think about the guy having been to trial. It's hard enough getting a reversal of the case with a trial, but with a plea it's next to impossible.

Best of luck,

Jim Clark-Dawe

jeseymour · Nov 13, 2011

I'd really think about the guy having been to trial. It's hard enough getting a reversal of the case with a trial, but with a plea it's next to impossible.

Hmmm. So I wonder if my readers would notice if this backstory changed in mid series? Sigh. :Shrug:

It just gets a quick mention in the first book. No real detail. Hmmm.

jclarkdawe · Nov 14, 2011

Since you're committed to the plea, I think I'd go a different route with getting your character out of prison. All governors have the right to reduce sentences, release prisoners, parole prisoners, and pardon prisoners. Where you tend to hear about this is in death penalty cases, but it is used in other cases as well.

It's not terribly publicized, but a few cases happen each year. Reasons are good behavior in prison, changed person from when the person did the crime, politics, and the State's need to show compassion.

Have your boy just be generally helpful in prison and staying out of trouble. Then have a nice little riot in the prison, with a couple of guards being killed. (Riots without guards being killed happen more frequently than you'd think -- most last less than 24 hours and many only a few hours.) Have your boy, during the riot, save a couple of more guards, maybe even a pregnant guard (women guards can work pregnant for a few months -- they're usually pulled from normal guard duty about the time their pregnancy is showing).

Your boy is a hero and a changed person. The governor could very reasonably reduce your boy's sentence down to where he's eligible to go in front of the parole board. This way the governor doesn't "release" a cop killer, just puts him in the possibility of being released. Gives you some drama and stress and is more likely than getting his conviction overturned. And you leave him looking guilty, but actually not.

Best of luck,

Jim Clark-Dawe

MTaillard · Nov 14, 2011

Having a second set of prints on the gun would be enough for the case to be retried. Once you've got that set jury decisions are inconsistent enough to pull it off pretty easily.

Soccer Mom · Nov 14, 2011

MTaillard said:
Having a second set of prints on the gun would be enough for the case to be retried. Once you've got that set jury decisions are inconsistent enough to pull it off pretty easily.

Um, no. For the reasons stated above.

I agree with Jim. Getting the sentence commuted would be your best bet. That way you could keep your series consistent and still get your MC out of jail.

jeseymour · Nov 14, 2011

jclarkdawe said:
Since you're committed to the plea, I think I'd go a different route with getting your character out of prison. All governors have the right to reduce sentences, release prisoners, parole prisoners, and pardon prisoners. Where you tend to hear about this is in death penalty cases, but it is used in other cases as well.

It's not terribly publicized, but a few cases happen each year. Reasons are good behavior in prison, changed person from when the person did the crime, politics, and the State's need to show compassion.

Have your boy just be generally helpful in prison and staying out of trouble. Then have a nice little riot in the prison, with a couple of guards being killed. (Riots without guards being killed happen more frequently than you'd think -- most last less than 24 hours and many only a few hours.) Have your boy, during the riot, save a couple of more guards, maybe even a pregnant guard (women guards can work pregnant for a few months -- they're usually pulled from normal guard duty about the time their pregnancy is showing).

Your boy is a hero and a changed person. The governor could very reasonably reduce your boy's sentence down to where he's eligible to go in front of the parole board. This way the governor doesn't "release" a cop killer, just puts him in the possibility of being released. Gives you some drama and stress and is more likely than getting his conviction overturned. And you leave him looking guilty, but actually not.

Best of luck,

Jim Clark-Dawe

Thanks Jim! That actually might work really well. I have an interested editor for the next book who wants a longer word count, and adding something like this would increase the word count while adding thriller elements. Great idea!

ironmikezero · Nov 14, 2011

You are indeed in a corner. As Jim and Mark have showed you, the legal permutations alone are sufficiently daunting to effectively negate a plausible scenario wherein your MC wins his freedom through the courts.

You are left with three options; a governor's pardon, a parole board's compassionate release, or an escape.

Now which one offers your readers the most compelling twist and enhances the story?

jeseymour · Nov 14, 2011

ironmikezero said:
You are indeed in a corner. As Jim and Mark have showed you, the legal permutations alone are sufficiently daunting to effectively negate a plausible scenario wherein your MC wins his freedom through the courts.

You are left with three options; a governor's pardon, a parole board's compassionate release, or an escape.

Now which one offers your readers the most compelling twist and enhances the story?

The previous books all involve escapes, he's had enough of that, thanks. He's more likely to do the hero thing while in prison at this stage of his life.

But it does look as if I can make that work. Thanks for your thoughts!

MTaillard · Nov 14, 2011

what about release resulting from overcrowding? Happens all the time in California.

Old crime evidence

jeseymour

mirandashell

DeleyanLee

Writing Anarchist

jeseymour

jeseymour

DeleyanLee

Writing Anarchist

Drachen Jager

Professor of applied misanthropy

MarkEsq

Clever title pending.

mirandashell

Al Stevens

sonyablue

jeseymour

mirandashell

jeseymour

jclarkdawe

Feeling lucky, Query?

MarkEsq

Clever title pending.

jclarkdawe

Feeling lucky, Query?

jeseymour

jclarkdawe

Feeling lucky, Query?

MTaillard

Soccer Mom

Crypto-fascist

jeseymour

ironmikezero

practical experience, FTW

jeseymour

MTaillard