Eugene Gilyard, Part 3: Asking for Justice

The laws in Pennsylvania are among the strictest in the nation for the convicted innocent trying to prove their innocence and secure their freedom.  Under the Post Conviction Relief Act (“PCRA”), those convicted of crimes must file any petition asking for a new trial within one year of the time their conviction became final – generally, a year after their appeals are completed. After that, any petition filed must meet extremely strict requirements:

    • the petition has to show that a “manifest injustice” occurred and that the petition th (12)has to be granted to fix it; or
    • the petition has to show either that the government “interfered” with the defendant’s ability to present the claims in the petition earlier; or
    • that the defendant has discovered new “facts” which were “unknown” to him and “could not have been ascertained by the exercise of due diligence; and
    • he has to file his petition within 60 days of “the date the claim could have been presented.”

If the defendant gets over those barriers, only then can he ask the court to review the real substance of his claim. And those claims have to fit within the limits of the PCRA itself. A court can only grant relief if it finds that the defendant’s conviction was the result of:

    • a constitutional violation which “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place”;
    • ineffective assistance of counsel which “so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place”; or
    • new, exculpatory, evidence which was not available at the time of the defendant’s trial and which “would have changed the outcome of the trial if it had been introduced.”

th (13)The standard is, obviously, very high. And, of course, it should be high. It should not be easy to overturn a criminal conviction. But Eugene’s case and dozens more like it raise the question of how hard should it be. If the evidence of innocence is strong enough, should it matter how “diligently” the defendant pursued it, or if he filed within 60 days of learning of the evidence? Those questions clearly troubled the judge, even on our first day of hearings.

Eugene’s Petitions and the D.A. Response

We have previously posted in this blog about the substance of Eugene’s claims, and how the District Attorney’s Office responded. Those posts, which you can access here, include links to the actual petitions and filings. Essentially, the Commonwealth’s response to Eugene’s evidence that Rolex’ confession entitles him to a new trial was that he had failed to show he acted “diligently” in getting Rolex to confess. As a result, the District Attorney’s Office asked the Court to dismiss Eugene’s petitions. The Court decided that she would hear Eugene’s evidence and make a determination about his diligence at the same time.

A Wrinkle: Rolex Takes the Fifth 

Because Rolex was now admitting to having participated in a murder for which he had never been arrested, he needed his own legal counsel. In Pennsylvania, there is no statute of limitations for murder. That means that for murder, unlike any other crime, there is no specific time in which the Commonwealth has to act to arrest and prosecute the perpetrator. Because of that, Rolex could still be arrested and prosecuted for Thomas Keal’s murder. So he needed a lawyer to see whether he was willing to come to court to tell the judge directly what he had told numerous other people: that he had gotten away with murder.

Quickly the word came back: Rolex was refusing to testify. He intended to exercise his constitutionally protected right to remain silent. No-one doubted that he had a legitimate right to invoke that right.

The question now became, could Eugene call the Project investigator to tell the judge what Rolex had confessed to? The District Attorney’s position was no: the statement to the investigator took place outside of court and was therefore inadmissible as “hearsay” and unreliable. Our position was that the law has exceptions to that rule, such as when someone admits to criminal activity that could get them prosecuted and convicted of a crime they weren’t otherwise under suspicion for. The judge agreed with Eugene: Rolex’ confession would be admitted.

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