Webinar on recantation evidence and its uses for innocence claims.

Table of Contents Included in Document 

Memorandum in Support of Habeas Petition in Child Sex Abuse Case

Open Records Request

Letter to Defense Expert

Application for Writ of Habeas Corpus 

Moiton for New Trial 

Motion for Issuance and Enforcement of Subpoena for Additional Medical Records 

Ruling on Motion for New Trial and Ruling by Georgia Court of Appeals

Argument: With proper investigation, preparation, and presentation by the defense in this case, there is absolutely overwhelming evidence that supports Mr. Nowill's total innocence. Mr. Nowill is presently seven years into the service of his sentence of thirty years in prison because, to date, no sitting judge or sitting jury had presented to them the complete evidence in this case for their consideration. Mr. Nowill is, in fact, innocent.

Mr. Nowill is the father of the alleged victim, Heather Nowill. On August 13, 2000, Heather, then aged 16, claimed that her father had been having a sexual relationship with her over the previous four years since she was 12 years old. She claimed this sexual relationship involved digital penetration of her vagina, mutual oral sex between she and her father, and full acts of sexual intercourse with complete and full penetration of her vagina by her father's penis occurring 3 to 4 times weekly for the duration of the 4 year period of time. Stunned when he first confronted with these allegations on the day of her outcry, and continuing for 2 years including his testimony before the jury in this case, Mr. Nowill denied any sexual contact with his daughter and consistently has maintained his innocence.

On the day of her alleged outcry Heather was required to undergo a medical examination at University Hospital. The complete report of this examination was not provided to trial counsel by the State. Trial counsel did not independently request of subpoena the medical records of the examination. The State did not call the doctors who performed the medical examination to testify in the trial. Also, despite the extensive and ongoing allegations of intercourse by Heather, trial counsel did not request or subpoena the medical records from her regular doctor throughout the period of time in question. With virtually nothing except the word of the alleged victim the case proceeded to trial. Even law enforcement personnel admitted there was absolutely no physical evidence to support the allegation.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner-Appellant.

Argument: NACDL’s amicus brief argues that under the savings clause of 28 U.S.C. § 2255(e), a prisoner may seek habeas corpus relief through 28 U.S.C. § 2241 under limited circumstances: when the § 2255 remedy is “inadequate or ineffective to test the legality of [the prisoner’s] detention.”  28 U.S.C. § 2255(e).  For 20 years, the Fifth Circuit has recognized that the § 2255 remedy is “inadequate or ineffective” if a petitioner cannot seek relief despite a retroactively applicable Supreme Court decision establishing that the petitioner may have been convicted of a nonexistent crime.  Although that test leaves the door closed on some actual-innocence claims that should be recognized, it is generally consistent with the savings-clause tests applied in nearly every other federal court of appeals.  Most importantly, that test confirms that the savings clause offers more than a hollow process providing no practical opportunity to end unlawful imprisonment.  The Tenth and Eleventh Circuits, by contrast, have held that the savings clause applies only if the procedure afforded by § 2255 was formally unavailable.  According to those courts, so long as there was some theoretical chance to assert a claim under § 2255—even if the claim was futile or frivolous under existing precedent—the remedy was adequate and effective.  The Fifth Circuit should not modify or overrule its savings-clause jurisprudence to align itself with the Tenth and Eleventh Circuits.  The test applied in those circuits contravenes the text of the savings clause and congressional intent, poses constitutional concerns, and would force petitioners and their counsel to disregard binding precedent, court rules, and ethical obligations that forbid arguments that would be frivolous under settled law.  Moreover, application of the formal-process test would undermine public confidence in the justice system’s treatment of prisoners who contend that retroactive changes in the law mean they are actually innocent.

Brief of Missouri Association of Criminal Defense Lawyers (MACDL) and National Association of Criminal Defense Lawyer (NACDL) as Amici Curiae in Support of Appellant and Intervenor.

Argument: Conviction of innocent persons cannot be tolerated. A prosecutor should be able to exercise her statutory and ethical duty to assist in overturning wrongful convictions. Missouri’s state habeas corpus rule is inadequate to provide a remedy to innocent persons who are wrongfully convicted because it requires the innocent person, who may be without counsel, to file and litigate his petition in the county where he is in custody rather than the county of conviction. Missouri Court Rules 29.11 (motion for new trial) and 29.12 (plain error) should be construed to allow a prosecutor to file a motion in the trial court to correct a wrongful conviction.

Letter to the House Judiciary Committee regarding penalties and prosecutorial requirements for revenge porn cases, as proposed in the Stopping Harmful Image Exploitation and Limiting Distribution (SHIELD) Act of 2019 (H.R. 2896).

Brief for National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Appellants.

Argument: The courts below committed legal error in not considering the State’s affirmative obligations to disclose exculpatory evidence. The State’s duty to disclose exculpatory information necessarily informs defense counsel’s diligence obligations. The defense was entitled to rely on the State’s open-file policy. The Circuit Court abused its discretion by not considering some of the most probative evidence regarding defense counsel’s diligence in regards to the Keene Statement.

Judge Mark Bennett writes that trial court judges have failed to assist potential jurors in understanding and internalizing the meaning of the presumption of innocence. “Most potential jurors actually believe in the presumption of guilt and not the presumption of innocence,” he states. Unless judges dramatically improve their efforts to explain the presumption of innocence, he does not believe that every juror will be committed to giving the defendant the full benefit of the presumption.

Motion for the production of testimony put before the grand jury in support of the charges of drug distribution, or conspiracy to distribute drugs with the intent to commit rape. This testimony is sought to “avoid a possible injustice”: Nunez’s status as the subject of a prosecution that is not supported by any evidence.

An article by The New York Review of Books on the subject of innocent people pleading guilty when prosecuted. 

A PowerPoint presentation outlining the details of post-conviction relief in plea cases. 

A PowerPoint presentation on post conviction storytelling and instances of proper utilization within a legal case. 

Brief Amici Curiae for the National Association of Criminal Defense Lawyers and the New York State Association of Criminal Defense Lawyers.

Argument: The New York Constitution and Criminal Procedure Law § 400.10 support recognizing actual innocence as a basis for collateral relief.

Amicus curiae brief of the Innocence Project, the North Carolina Center on Actual Innocence, the New England Innocence Project, and the National Association of Criminal Defense Lawyers in support of petitioner-appellant Jeffrey R. MacDonald.

Argument: The district court erred when it (1) ignored uncontroverted evidence that the trial AUSA intimidated a defense witness and lied about it to the trial judge, and (2) holding that additional prefiling authorization was required to allow the petitioner to introduce exculpatory DNA evidence. The evidence as a whole establishes that no reasonable fact finder would have found him guilty under 28 U.S.C. §2244(b)(2)(B)(ii) or any other standard.

Amicus Brief of the National Association of Criminal Defense Lawyers in Support of Defendant-Appellant and Reversal

Argument: The Supreme Court has long held that guilty pleas are not absolute, and plea agreement appeal waivers do not foreclose a claim of actual innocence. Courtade makes a claim of actual innocence that lies beyond the scope of the plea agreement appeal waiver. Prudential consideration support permitting a collateral attack in these circumstances despite the appeal waiver.

"Actual Innocence" May Trigger Release - Washington, DC (May 18, 1998) -- In a decision that could affect hundreds of prisoners across the country, the U.S. Supreme Court today decided that a 1995 case which defined "using or carrying" a firearm in relation to certain crimes may be retroactively applied. Even prisoners who pleaded guilty prior to the 1995 case, Bailey v. United States, should be allowed to show that they are actually innocent of the crime as now defined by the Court, the Chief Justice says in today's decision, Bousley v. United States.