Appellate Litigation Clinic prevails in Third Circuit in actual innocence case

The Third Circuit’s ruling secures the evidentiary hearing the clinic’s client has sought for more than 20 years.

The U.S. Court of Appeals for the Third Circuit ruled in favor of a client of Duke’s Appellate Litigation Clinic with a published opinion on Oct. 22. The ruling effectively secures an evidentiary hearing on claims of actual innocence put forward by the client, Gerald Howell, a federal habeas petitioner who is serving a life sentence without parole for a 1982 murder he maintains he did not commit.

Spencer Scheidt ’20 argued the appeal remotely before the Third Circuit in June under the supervision of Clinical Professor Sean Andrussier ’92, the clinic director, who was appointed by the court as pro bono appellate counsel for Howell. Scheidt researched and briefed the appeal in the yearlong clinic along with three teammates, Farrah Bara ’20, Ellie Hylton ’20, and Mark Rothrock ’20. All entered appearances with the court as student counsel.

ALC student photos
Clockwise from top left: Farrah Bara ’20, Spencer Scheidt ’20, Ellie Hylton ’20, and Mark Rothrock ’20 researched and briefed the Third Circuit appeal as Appellate Litigation Clinic students.

In 1983 Howell, then 18 years old, was arrested for a murder that was committed in Philadelphia on Christmas Eve 1982. The state had no crime scene evidence linking him to the murder, but obtained a felony murder conviction in 1983 based on the testimony of a group of teenagers. He was sentenced to life in prison without parole and has been fighting his conviction since.

Howell, now 56, has been trying to secure an evidentiary hearing on his actual innocence since 1999, when a confession surfaced from another man, who as a teenager was the prosecution’s sole witness incriminating him at his preliminary hearing. But the prosecution opposed Howell’s petitions for a hearing on his innocence, the Pennsylvania state courts repeatedly turned him away, and the federal court in Philadelphia dismissed his federal habeas petition in 2006 as untimely, a ruling the Third Circuit affirmed.

Subsequently, three women who testified as teenagers for the prosecution at Howell’s trial signed verified affidavits recanting their trial testimony. Two had testified as eyewitnesses who saw the fleeing gunman. Their affidavits say that the fleeing gunman was the man whose confession later surfaced in 1999, and that they had lied to the police and at trial because they were fearful of him. The third affiant recanted her trial testimony that Howell had confessed to her the morning after the crime; her affidavit claims she lied to protect the same man, the father of her child born around the time of the trial, who was implicated by the other recanting witnesses.

With the recantation affidavits, Howell moved the district court, under Rule 60(b)(6) of the Federal Rules of Civil Procedure, to reopen his federal habeas case under the “actual innocence” doctrine to overcome the untimeliness of his habeas petition. But the district court denied the motion, invoking cases that disregarded recantations as unreliable.

Howell filed a pro se appeal, and in September 2019 the Third Circuit appointed Andrussier to represent him. Under Andrussier’s supervision, the clinic team worked on Howell’s appeal from the opening brief through the reply brief and oral argument, as well in opposing a motion to expand the record on appeal with a variety of documents from the police file and elsewhere.

The clinic’s briefs stressed that the case epitomized concerns about the injustice of convicting an innocent person, contending that no reasonable juror hearing the new evidence with the old evidence would convict Howell. The clinic argued for an evidentiary hearing on actual innocence, contending the district court was wrong to dismiss the reliability of recantations. The clinic’s briefs also revealed that another teenager who had testified for the prosecution was murdered a year later to block his testimony in a separate murder case against the same man implicated by the recantation affidavits.

The Third Circuit’s opinion, written by Judge Kent A. Jordan, vacated the district court’s order denying the Rule 60 motion and remanded for an evidentiary hearing for that court to hear live testimony from the recanting witnesses and the man whom they implicate — the hearing that Howell had long sought unsuccessfully until the Appellate Litigation Clinic advanced his appeal.

Howell expressed his gratitude for the clinic team’s work: “The words of appreciation will never be enough to thank them for the great work they did for me,” he said.

Andrussier also praised his students’ work in navigating an array of strategic and tactical choices inherent in high-level appellate practice. 

“They collectively researched, drafted, and edited the briefs, worked with a rich record, which included a transcript of a jury trial, dealt with a substantive motion to oppose the district attorney’s motion to expand the appellate record, and worked to ensure we were well-prepared for oral argument,” he said. “The outcome of this appeal is fantastic, and it’s a testament to the hard work of this outstanding group of third-year students, all of whom are or will be clerking for federal appellate judges.”  

Hylton is clerking on the D.C. Circuit, Bara will be clerking on the Fifth Circuit, Rothrock will clerk on the Sixth Circuit, and Scheidt will clerk on the Fourth Circuit.

“The appellate clinic was the high point of my Duke Law School experience,” said Scheidt. “I not only learned a ton — about writing, law, and oral advocacy — but also got to work on a fantastic team of motivated students toward a common goal: undoing a legal injustice perpetrated decades ago.”

Hylton also described working with her teammates on Howell’s behalf as a highlight of her time at Duke. “I always looked forward to our weekly strategy meetings,” she said. “I’m incredibly grateful for the practical experience of working on an appeal alongside these teammates.”

The outcome in Howell’s case marked the clinic’s third appellate victory within a year. The others included a published Third Circuit decision holding that the clinic’s client was denied his Sixth Amendment right to the effective assistance of counsel. The court vacated his federal sentence and ordered a resentencing hearing with scientific evidence about drug properties, which resulted in a reduction in his sentence. In another appeal also involving a claim that sentencing counsel rendered ineffective assistance, the Fourth Circuit vacated the client’s federal sentence, and he was soon released, many years before his original sentence would have expired.

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Winter 2021
Volume 40 | No. 1