The following opinion was published in the New Haven Advocate on March 2, 2011.
by David R. Cameron
After the recent oral arguments before the Connecticut Supreme Court, the fate of George Gould and Ronald Taylor may depend on what the justices decide constitutes “clear and convincing evidence” of actual innocence. But judging by their questions and comments, it’s not clear they know what that means.
Gould and Taylor were convicted in 1995 of murdering a New Haven bodega owner in the early hours of July 4, 1993 and sentenced to 80 years in prison. They were convicted because of the testimony of Doreen Stiles, a former drug-addicted prostitute. Stiles said that as she approached the store she heard voices demand that a safe be opened, screams in Spanish, and a gunshot. Moments later, she saw two men leave. She identified Gould and Taylor as the men.
There was no other evidence linking them to the murder. In his closing statement, the trial prosecutor told the jury, “This case rises and falls on the testimony of Doreen Stiles. If you believe her, you’ll convict. If you think she’s lying, you’ll acquit.”
Many years later, Stiles recanted. At a 2009 habeas hearing before Judge Stanley T. Fuger, she testified she had not been near the store, had not seen the men, and had made up the whole story during a six-hour interrogation in which she was threatened with arrest and offered assistance in buying heroin.
Stiles was hospitalized at the time of the trial and her testimony was videotaped, so Fuger was able to see it and compare it with her testimony at the habeas hearing. He concluded she lied in her trial testimony and threw out the convictions.
The state challenged his decision, claiming he applied the wrong standard of proof to their claim of actual innocence, that Stiles’ recantation alone was not sufficient to establish their innocence and they were obliged to prove they were actually innocent.
In Miller v. Commissioner of Correction (1997), the Court established a two-fold standard of proof that a habeas petitioner must meet in order to prevail on a claim of actual innocence. First, the petitioner must persuade the habeas court by “clear and convincing evidence” that the petitioner is actually innocent. Second, the petitioner must establish that, after considering all of that evidence, no reasonable fact finder would find the petitioner guilty.
The question before the Court reduced to this: If, as the trial prosecutor told the jury, the only evidence supporting the conviction of Gould and Taylor was Stiles’ testimony and if that testimony was, as Stiles later testified and Fuger concluded, fabricated in its entirety, does that constitute “clear and convincing evidence” of their actual innocence?
Supervisory Assistant State’s Attorney Michael O’Hare said no, her recantation alone did not constitute proof of their actual innocence. Several justices appeared to agree with his position that Gould and Taylor needed to affirmatively prove their innocence.
But O’Hare and the justices neglected an essential part of the Miller ruling. After establishing the “clear and convincing” standard, that ruling went on to say, “The clear and convincing standard of proof is substantially greater than the usual civil standard of a preponderance of the evidence, but less than the highest legal standard of proof beyond a reasonable doubt.” As the Court put it in an earlier ruling, quoted in Miller, it is “a standard higher than a probability but lower than beyond reasonable doubt.”
Several individuals have been exonerated here for crimes they did not commit and for which they spent many years in prison. The reasons for their wrongful convictions varied. But all of the wrongful convictions shared one attribute in common: all were affirmed by the Connecticut Supreme Court.
By the standard set forth in Miller, Stiles’ credible recantation of her trial testimony, which constituted the only evidence supporting their conviction, represents “clear and convincing evidence” that George Gould and Ronald Taylor are actually innocent. Hopefully, before deciding the case, the justices will read Miller again and realize that “clear and convincing” means just that – clear and convincing.
David R. Cameron is a professor of political science at Yale University.