Appeals court thinks defendant may be innocent but denies appeal

A federal appeals court thinks John Kinsel (pictured to the left) may be innocent, but that will do him little good.  Kinsel’s 1999 conviction for aggravated rape drew a sentence of life without parole.  Barring intervention, he will die in Louisiana’s Angola prison.

The federal court acknowledged the obvious: when the single witness to a crime recants her testimony there should be a new trial.

Unfortunately, the Anti-Terrorism Effective Death Penalty Act of 1996 (passed in the wake of the Oklahoma City bombing) makes it virtually impossible to pursue a federal appeal once you have had your first bite of the apple.  The fact that the single witness changed her story after the initial appeal makes no difference.

The court claims its hands are tied.

Meanwhile, the Jefferson Parish DA’s office is standing by the original conviction.  They have reviewed the victim’s recantation and find it “completely unreliable.”

This brings us to the vexed issue we faced in Tulia and that is currently plaguing the Curtis Flowers case.  When a crucial witness recants testimony or (as in the Flowers case) commits a crime of blatant dishonesty, how do we deal with the then-and-now issue.  She was telling the truth then, we say, but she’s lying now.  Sure, she scammed the IRS, we admit, but she was a person of integrity back in 1999 when she testified against the defendant.  Sure Tom Coleman has been a liar, a bigot and a cheat his whole life long, but, for eighteen months in Tulia, he was a man of integrity and professionalism.

If a person is unreliable in 2005 (when they recant), they were unreliable in 1995 (when they pointed the finger).  How can you tell on which occasion they were lying?  In most cases, you can’t.  You can propound motivational theories, but you can prove nothing either way.  All you know is that (as with Tom Coleman in Tulia) you’re dealing with a witness who lacks credibility under oath.

Unfortunately, as the John Kinsel tragedy demonstrates, the criminal justice system resists this simple logic.

Jefferson Parish sex abuse allegations recanted, but convict remains in prison

Published: Thursday, July 21, 2011, By Paul Purpura

The Times-Picayune

Citing procedural roadblocks in federal law, a federal appeals court panel has ruled it can have no say on whether a man serving life in prison for raping a girl in Jefferson Parish should get a new trial since the victim recanted her claims that the man sexually abused her in the 1990s.

John Kinsel, 42, a Texas native who lived on the West Bank, was convicted in September 1999 of aggravated rape of a child under age 12 based almost solely on the girl’s testimony, despite her mother’s testimony that her daughter told lies, and other testimony expressing doubt that Kinsel abused her.

Kinsel also denied it, testifying it was impossible based on his work schedule and living arrangement. A Jefferson Parish jury convicted him in a 10-2 vote.

A three-judge panel of the 5th U.S. Circuit Court of Appeals appeared sympathetic to Kinsel but said in an opinion released Tuesday that it could do nothing.

“It is beyond regrettable that a possibly innocent man will not receive a new trial in the face of the preposterously unreliable testimony of the victim and sole eyewitness to the crime for which he was convicted,” Judge Jacques Wiener wrote for the panel comprising himself and Judges Priscilla Owen and Jerry Smith.

“But, our hands are tied by the (Anti-Terrorism Effective Death Penalty Act of 1996), preventing our review of Kinsel’s attack on his Louisiana postconviction proceedings, so we dutifully dismiss his claim,” Wiener wrote.

Kinsel’s conviction was upheld by state and federal courts before the girl recanted, meaning Kinsel had “to jump through some really big hoops” to be heard by the federal courts again, his attorney Autumn Town said. The Anti-Terrorism Effective Death Penalty Act, enacted in the wake of the 1995 Oklahoma City bombing, made it tougher for state convicts to have their cases heard in federal courts two or more times, regardless of recantations, she said.

“His accuser has come forward and said none of this happened, and he’s still sitting in jail,” Town said. “If you take away her testimony, you’re left with nothing else.”

The Jefferson Parish district attorney’s office stood by the conviction.

“We respectfully but strongly disagree with the court’s comments that the defendant was convicted with unreliable testimony,” First Assistant District Attorney Steve Wimberly said. “This office thoroughly reviewed the recantation, which was made over nine years after the victims’s initial statement to the police, and determined that the recantation was completely unreliable.”

The victim, now 24, is not being identified by Times-Picayune. Town said the woman recanted because she had become an adult “and wants to set things right.”

She initially recanted in 2005, claiming she lied when she accused Kinsel of sexually abusing her beginning when she was 6 years old in 1992 and continuing until 1995. A Jefferson Parish grand jury indicted Kinsel in February 1997.

She testified during the 1999 trial that Kinsel, who was her mother’s friend, repeatedly molested her starting when they lived in Monroe and continuing when they lived on the West Bank. But she said in a June 2006 affidavit that a man she didn’t know twice molested her in her home.  She said she later blamed it on Kinsel because she hated him, court records show.

She said she was hesitant to testify during the trial and said so before the trial. But she claimed that a prosecutor, Donnie Rowan, “pretty much said that he had put too much time into the trial,” and “pretty much he yelled at me and told me that I had to go forward with it.” But she said she never told the prosecutors at the time she was falsely accusing Kinsel.

She also said that in 2005 she went to the Jefferson Parish district attorney’s office and told an investigator, who in turn told her she could be charged with perjury. She clammed up, according to court records.

However, her claims won Kinsel a hearing before then-Judge Charles Cusimano of the 24th Judicial District Court, who granted a new trial.

A state 5th Circuit Court of Appeal panel in 2007 overturned Cusimano in a 2-1 opinion, finding he abused his discretion and that Kinsel did not establish a constitutional violation during the trial.

The state Supreme Court, which previously upheld the conviction, affirmed the ruling, leading Kinsel’s attorneys to take the conviction to the federal courts again. U.S. District Judge A.J. McNamara found last year that Kinsel was not entitled to a review by the federal courts, leading to an appeal to the 5th U.S. Circuit.

One thought on “Appeals court thinks defendant may be innocent but denies appeal

  1. The Anti-Terrorism and Effective Death Penalty Act should be repealed. It was passed in the wake of the Oklahoma City bombing and signed into law by the neo=liberal Bill Clinton. If the courts won’t or can’t help this presumptively innocent man then a campaign should be started to get a clemency or pardon from the governor.

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