ACTUAL INNOCENCE PETITIONERS MAY BE GRANTED A NEW TRIAL BASED ON NEWLY DISCOVERED EVIDENCE OF AN EXPERT’S FRAUD IF COUNSEL COULD NOT, THROUGH THE EXERCISE OF DUE DILIGENCE, HAVE DISCOVERED THAT EVIDENCE EARLIER.
The Court of Appeals of Maryland held that in the context of the Maryland actual innocence statute, due diligence does not require counsel to discover an opposing expert’s fraud if counsel lacked inquiry notice to investigate the expert’s credentials in time to move for a new trial. Hunt v. State, 474 Md. 89, 93, 110, 252 A.3d 946, 948-49, 959 (2021) (citing Md. Code Ann., Crim. Proc. § 8-301 (West 2018)). In situations where a subsequent attorney ultimately discovers evidence, actual innocence petitioners can still meet the standard for newly discovered evidence by showing that counsel in prior cases were incapable of discovering the evidence in time to move for a new trial. Hunt, 474 Md. at 110, 252 A.3d at 958-59.
On September 25, 1991, Ronnie Hunt, Jr. (“Hunt”) was convicted of first-degree murder and use of a handgun in the commission of a violent crime. During Hunt’s trial, the State called Joseph Kopera (“Kopera”) to testify as a firearms ballistics expert. Kopera made false representations regarding his educational background and experience; he previously made the same misrepresentations in hundreds of other criminal trials over a span of decades. By the end of Hunt’s trial, Kopera’s misrepresentations remained undetected, and Hunt was sentenced to life imprisonment for murder, plus twenty years for the handgun offense. Not until 2007, sixteen years into Hunt’s sentence, were Kopera’s falsifications exposed by an attorney working for the Innocence Project on an unrelated case.
Upon learning of Kopera’s deceit, Hunt filed a petition for writ of actual innocence in the Circuit Court for Baltimore City asserting that Kopera’s misrepresentations warranted a new trial. The Circuit Court for Baltimore City denied Hunt’s first amended petition without a hearing. The Court of Special Appeals of Maryland, in an unreported opinion, later reversed and remanded for a hearing. Following a hearing, the circuit court denied Hunt’s second amended petition on the ground that Kopera’s misrepresentations were not newly discovered evidence; the Court of Special Appeals affirmed. Hunt then filed a petition for writ of certiorari, which the Court of Appeals of Maryland granted. One of the issues before the court was whether counsel could not have reasonably discovered the evidence that Kopera lied under oath about his academic credentials in time to move for a new trial pursuant to section 4-331 of the Maryland Rules (citingMd. R. 4-331).
The Court of Appeals began its analysis by discussing the historical context of Maryland’s actual innocence statute. Hunt, 474 Md. at 105-06, 252 A.3d at 955-56 (citing Md. Code Ann., Crim. Proc. § 8-301). The statute provides that an individual convicted of a crime may file a petition for writ of actual innocence at any time if he or she claims there is newly discovered evidence that counsel could not have uncovered in time to move for a new trial. Hunt, 474 Md. at 94-95, 252 A.3d at 949 (citing Md. Code Ann., Crim. Proc. § 8-301). The statute was enacted to provide petitioners with an avenue for challenging their convictions on the ground of newly discovered evidence when their claim is otherwise “time-barred.” Hunt, 474 Md. at 105, 252 A.3d at 955.
The court next interpreted the language of the statute in the specific context of what it referred to as “the class of Kopera cases.” Hunt, 474 Md. at 107, 252 A.3d at 957. Specifically, the court directed its attention to the due diligence requirement incorporated in the actual innocence statute, as well as the definition of “newly discovered evidence.” Id. at 108, 252 A.3d at 957 (citing Md. R. 4-331(c) (1988)).
A court may grant a new trial on the ground of newly discovered evidence if counsel could not have through the exercise of due diligence discovered the evidence in time to move for a new trial. Hunt, 474 Md. at 108, 252 A.3d at 957 (citing Md. R. 4-331(c)). Whether evidence is “newly discovered” depends on (1) when the evidence was actually discovered, and (2) when it should or could have been discovered. Hunt, 474 Md. at 108, 252 A.3d at 957. Due diligence requires a defendant to make all reasonable and good faith attempts to obtain evidence, taking into consideration all of the circumstances and facts known to him or her. Id. at 108, 252 A.3d at 957 (citing Argyrou v. State, 349 Md. 587, 605 (1998)). Due diligence is therefore relevant in determining whether such evidence should or could have been discovered. Id.
The court looked back to a prior Kopera decision of the Court of Special Appeals. Hunt, 474 Md. at 99, 252 A.3d at 952 (citing Jackson v. State, 216 Md. App. 347, 365-66 (2014)). The Court of Special Appeals previously held that the Circuit Court for Baltimore City did not abuse its discretion in finding that counsel was capable of discovering the evidence of Kopera’s fraud through the exercise of due diligence. Id. The Court of Special Appeals found that verifying the credentials of an opposing expert is a reasonable exercise of due diligence. Id.
In looking at the particular circumstances presented by the Kopera cases, the Court of Appeals of Maryland explicitly rejected the suggestion that all attorneys who did not realize Kopera’s fraud in the decades prior to the 2007 discovery failed to exercise due diligence. Hunt, 474 Md. at 109, 252 A.3d at 958. The court gave great weight to the fact that for decades Maryland courts and practitioners unanimously regarded Kopera as an expert in firearms ballistics, and no one had any reason to question his qualifications until 2007. Id. at 110, 252 A.3d at 959. Specifically, the court noted the fact that no one uncovered Kopera’s fraud prior to its “fortuitous discovery, by an exceptionally diligent attorney” is evidence that it was unreasonable to expect counsel to “stumble” upon the discovery prior to 2007. Id. at 110, 252 A.3d at 958-59. In concluding its analysis, the Court of Appeals of Maryland made clear that the reasoning behind the holding in Hunt is limited to a specific class of cases – those with circumstances and facts akin to the Kopera cases. Id. at 110, 252 A.3d at 959.
In his concurrence, Judge Biran expressed concern over the presumption adopted by the majority that every defense attorney in the Kopera cases exercised due diligence. Hunt, 474 Md. at 116, 252 A.3d at 962. Judge Biran suggested that in future cases involving newly discovered evidence applicable to more than one past case, a subsequent discovering attorney’s reasonable diligence will be mischaracterized as “exceptional” diligence. Id. at 116-17, 252 A.3d at 962-63. Specifically, Judge Biran hypothesized that due diligence will be measured under the new assumption that where multiple attorneys miss the same evidence, it is unlikely that the evidence could have been uncovered by exercising only “due” diligence. Id.
The Court of Appeals of Maryland held that a failure to discover evidence in time to move for a new trial does not constitute a failure to exercise due diligence where there is no information putting counsel on inquiry notice to sooner investigate. This holding has potentially opened the door for a new class of due diligence cases – those where the issue is whether due diligence should be presumed, rather than proved. Although the court cautions against transposing its reasoning in Hunt to cases that are not similarly situated to the Kopera cases, parties may still argue that their cases fall within the narrow scope of the holding. In actual innocence cases, where more than one attorney failed to discover the same piece of evidence, petitioners are likely to claim that the facts and circumstances of their cases are sufficiently analogous to those in the Kopera cases. Maryland practitioners will argue for a waiver of the requirement to prove due diligence. Lower courts will be tasked with deciding where to draw the line in the absence of guiding principles from the Court of Appeals of Maryland, thereby creating the potential for inconsistent rulings. The court may therefore be called upon to revisit and clarify its holding in Hunt as questions from the Maryland legal community arise.
Lindsay Keough is a second-year day student at the University of Baltimore School of Law and a First Year Staff Editor for Law Forum. Lindsay received a Bachelor of Arts degree in psychology and a minor in Spanish language and culture from the University of Maryland, College Park. Before attending law school, Lindsay worked as an Abuse/Domestic Violence Specialist at Anne Arundel Medical Center. She currently works as a law clerk for the Law Offices of Elsa W. Smith, LLC in Annapolis. Upon graduation, Lindsay plans to pursue a career in criminal law.