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  • WisBar News
    August 27, 2018

    Prisoner Gets Second Chance to Prove Innocence After Witness Recants

    Joe Forward

    Prisoner Case

    Aug. 27, 2018 – Richard Arnold’s son accused Arnold of sexually assaulting him as a teenager and, in 2008, Arnold was sentenced to life in Wisconsin prison. Now that his son has recanted his testimony, Arnold will get a second chance to prove his innocence.

    In Arnold v. Dittmann, No. 16-3392 (Aug. 24, 2018), a three-judge panel for the U.S. Court of Appeals for the Seventh Circuit ruled that the district court must hold an evidentiary hearing to let the factfinder assess the credibility of the son’s recantation.

    The panel rejected the state’s claim that Arnold’s petition for a writ of habeas corpus was untimely because he did not file it within one year of the date the conviction became final, concluding that Arnold’s case provides a potential exception.

    “If, upon hearing and weighing the evidence, the district court concludes that no reasonable juror would have found Arnold guilty beyond reasonable doubt in light of M.A.’s recantation, then Arnold will be entitled to pursue his habeas petition notwithstanding its tardiness,” wrote Appeals Court Judge Ilana Rovner.

    M.A., Arnold’s son, was 17 years old when he told the jury that his father sexually assaulted him repeatedly, at age 13 and 14, at a cabin where Arnold and Arnold’s father were living. There was no forensic evidence to support the sexual assault claims.

    The defense team had questioned inconsistencies in M.A.’s story and Arnold asserted his innocence, but ultimately the jury viewed M.A. as a credible witness and convicted Arnold. A previous sexual assault charge meant Arnold was going to prison for life.

    In 2011, M.A. signed an affidavit in the presence of witnesses that said he falsely accused his father of the sexual assaults because he thought it would help him get discharged from a treatment program to address his own sexual assaults of children.

    Arnold sought a new trial in state court but a circuit court denied the motion without a hearing and an appeals court affirmed, concluding the recantation did not constitute newly discovered evidence and the jury had an opportunity to judge M.A.’s credibility.

    The Wisconsin Supreme Court denied review in 2015, and Arnold sought habeas corpus relief in federal court under 28 U.S.C. section 2254. Arnold argued that the Wisconsin courts violated his right to due process in denying his new trial request.

    The U.S. District Court for the Eastern District of Wisconsin considered whether a claim of actual innocence could excuse the late filing, but ruled that Arnold could not satisfy the requirements for an actual innocence exception to the statute of limitations.

    That is, the district court ruled that the recantation offered nothing new because the jury had already heard evidence that the victim may have fabricated the claims. But the Seventh Circuit Appeals Court panel ruled that an evidentiary hearing must be held.

    “Arnold has presented a plausible claim of actual innocence,” Judge Rovner wrote. “Given that the State’s case against Arnold rested primarily, if not exclusively, on M.A.’s testimony, his recantation as the accusing witness necessarily presents the possibility that Arnold could be factually innocent of assaulting his son.”

    If the district court, after the hearing, concludes that no reasonable juror would have found Arnold guilty beyond a reasonable doubt in light of the recantation, the panel said:

    “[I]t will be necessary to consider whether his freestanding claim of actual innocence presents a viable claim for relief in habeas and what standard of proof Arnold would have to meet in order to prevail on that claim,” Judge Rovner explained.

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