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Lorinda Denied her Retrial

Wrongful conviction work is often heartbreaking. Not only for the wrongly convicted person and their family, but heartbreaking to know that our criminal justice system can get it so wrong, only to see how entrenched it is in justifying its mistakes.

Lorinda SwainFor background on Lorinda Swain’s case, go to Lorinda Swain. After the original trial judge granted her a new trial based on testimony of a key witness who was not asked to testify originally, the Calhoun County’s Prosecutor’s office appealed the decision. Since her accuser had recanted, it would be extremely difficult to find her guilty. Rather than deciding not to prosecute, they appealed the original trial judge’s decision. The Court of Appeals (COA) reversed the decision for a new trial. The State considers her guilty and the prosecutor is asking that her bond be revoked. After serving 8 years in prison and being out on bond for the last 5, Lorinda is facing the probability that she will be sent back to prison to server out her 25 to 50 year sentence. The Court of Appeal’s (COA) opinion is available for download at the end of this article by clicking More about Lorinda. Here is a summary:

During most of the time Lorinda’s alleged sexual misconduct took place, she had a live-in boyfriend, whose last name is Book. Later, she and Book had a falling out and split up with a lot of animosity between them. At the original trial, Lorinda and her lawyer knew that her live-in boyfriend would be a major part of her defense, if he simply told the facts. More than any other, he was in a position to observer the alleged behavior. However, because of the animosity between them, he also could damage any credibility she had if he allowed his feelings to alter the facts in order to get back at her. 20/20 hindsight says it would have been prudent for Lorinda’s attorney to have contacted this major witness himself and find out what he had to say. But instead he went along with Lorinda’s fears. Not only did the defense not call him, but they never even interviewed him. So, with only conjecture as a basis, they made a strategic decision not to seek out Book to testify at her trial.

Her ex-boyfriend, very much a loner, lost track of Lorinda. Though he had been called by a Detective Pickett and asked if he had ever observed an sexual misconduct toward the children, because he knew there was no substance to the charges, he never followed up and was unaware she had been convicted and sent to prison – sent to prison for something that never happened. Years later Book found out about this and testified at a hearing, not only that no such behavior could have happened without his knowledge, but also informed the court that detective Pickett had called and interviewed him on the phone. That is significant, because when the prosecution obtains testimony pointing to a person’s innocence, by law they must turn that evidence over to the defense. If they don’t, it’s called a Brady violation, named after a court case by that name. 

Lorinda’s appeal for a new trial consisted of two major points: 1) the prosecution was guilty of a Brady violation for not informing the defense of the interview with Book, and 2) that this newly discovered information is “new evidence”. Either would result in a new trial.

The alleged Brady violation: There are other more detailed qualifications for a Brady violation to occur, beyond the scope of this article.  What is significant is that, had the defense been informed of what the prosecution knew, that her boyfriend would actually have been a favorable witness, the defense would certainly have changed their strategy and sought him out for his testimony. The COA didn’t buy it. Their posture is that Lorinda knew her ex-boyfriend was in a position to witness to the facts of the case. The prosecution knew something the defense should have known through due diligence. The prosecution did not hide this from them. (But the prosecution did not turn over to the defense information about the phone call. It seems to me, someone who is not a lawyer, in the end the courts can frame this anyway they want in order to come up with the conclusion they want.)

New Evidence: Because of this viewpoint of the Court of Appeals, neither does the revelation of this brief phone interview constitute new evidence. The defense knew of the boyfriend’s personal knowledge at the time of the trial. Therefore they cannot view this as new. The defense strategically chose not to avail themselves of this witness, which is not the prosecution’s fault.

It was a mistake by Lorinda’s counsel to make a decision about a key witness based on her belief that he would not speak well of her, rather than checking with the witness himself. How did they know how her boyfriend would testify if they never asked him? Unfortunately, earlier appeals based on constitutionally ineffective counsel have also been denied by the courts. In their view, wrong strategy itself does not constitute ineffective counsel.

In addition to the COA denying the basis for Lorinda’s appeal, in the opinion they articulate the view that recanted testimony is always questionable, especially when it is by a family member. They state they are not convinced of Lorinda’s claim of actual innocence. From a defense viewpoint, this doctrine adopted by the criminal justice system is itself suspicious because it always supports the prosecution and protects their case.

Those of us who love and support Lorinda are devastated by this decision. “Justice will not be served until those who are unaffected are as outraged as those who are.”

― Benjamin Franklin

Court of Appeals Decision

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At this point in our development, PI is only taking on cases in cooperation with other innocence projects. If you have been wrongfully convicted and your case involves DNA evidence, we recommend you contact the Cooley Innocence Project at Western Michigan Cooley Law School. If your case does not involve DNA, please contact the Michigan Innocence Clinic at the University of Michigan Law School. A third member of the Innocence Network is SADO, the State Appelate Defense Organization. For cases outside of Michigan, here is a list of innocence projects by state.