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Diamen v. United States

District of Columbia Court of Appeals


February 25, 1999

MICHAEL A. DIAMEN, JOSEPH NICK SOUSA, AND JOSEPH WAYNE EASTRIDGE, APPELLANTS, APPELLANTS,
v.
UNITED STATES, APPELLEE.

Before Schwelb and Ruiz, Associate Judges, and Kern, Senior Judge.

The opinion of the court was delivered by: Associate Judge Schwelb.

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

Appeals from the Superior Court of the District of Columbia

(Hon. H. Carl Moultrie, Trial Judge) (Hon. John H. Suda, Motions Judge)

Argued December 15, 1997 *fn1

Schwelb, Associate Judge: On January 6, 1975, following a five-week trial, appellants Michael A. Diamen, Joseph Nick Sousa, and Joseph Wayne Eastridge were convicted by a jury of first-degree murder while armed, D.C. Code §§ 22-2401, -3202 (1996), in connection with the stabbing death of Johnnie Battle. On March 16, 1979, appellants' convictions were affirmed by this court. Sousa v. United States, 400 A.2d 1036 (D.C.), cert. denied, 444 U.S. 981 (1979).

In April 1995, following earlier unsuccessful attempts by Eastridge *fn3 and Diamen *fn4 to have their convictions set aside, the three appellants filed a joint motion to vacate their convictions pursuant to D.C. Code § 23-110 (1996). The motion was based on newly discovered evidence, and the appellants also claimed that the trial Judge had committed constitutional error at their trial by precluding each defendant from eliciting from any witness or co-defendant any evidence that would tend to inculpate any co-defendant.

The motions Judge denied the motion without a hearing. The Judge held that the newly discovered evidence had not been presented within two years of final judgment, as required by Super. Ct. Crim. R. 33, and that the affidavits filed in support of the motion were insufficient in any event to require the court to hold a hearing. The Judge did not address the appellants' claim that constitutional error was committed at their trial, perhaps because the appellants' convictions had been affirmed on direct appeal, and because the Judge may have believed that, as a Judge of the Superior Court, he lacked the authority to second-guess a ruling by this court.

On appeal from the denial of their motion, the appellants reiterate the claims made in the trial court, and they contend that the motions Judge erred in denying the appellants an evidentiary hearing. We affirm.

I.

PROCEDURAL BACKGROUND

The evidence adduced at the appellants' trial is set forth in detail in this court's opinion in Sousa, and we confine ourselves to a brief summary. The appellants, all three of whom are white, were members of a motor cycle club called the "Pagans." On November 1, 1974, several Pagans, including the appellants, went to the Godfather Restaurant on Wisconsin Avenue to continue a celebration of the birthday of one of the members of the group, a Pagan named Richard C. Richter. *fn5 The proprietor of the restaurant, who was familiar with Richter and his group, directed an employee to deny them service. As the Pagans left the restaurant, they encountered a group of young black men, including the decedent, Johnnie Battle. Insults and hostile words were exchanged, and a Pagan threw popcorn at one of the black men. The unpleasantness escalated into threats of violence, and Battle went to his car to arm himself with a handgun. As he was walking back towards the restaurant, Battle was confronted by several Pagans who were carrying knives. In an apparent attempt to take preemptive action, Battle shot and wounded one of the Pagans, Bruce Hunter. Battle continued to fire, but his pistol jammed, and he began to run. Several of the Pagans then pursued Battle, caught him, and stabbed him to death.

A short time after the murder, the three appellants and their co-defendant, Steven Jones, were apprehended by the police when Eastridge's car, which Sousa was driving, went through a red light. Jones had severe cuts on his hand, and blood was found on his clothing and on a newspaper in the vehicle. Small amounts of blood were found on the inside of Diamen's pants and on Sousa's shirt. *fn6 Several knives were recovered from the automobile and its occupants, and there was testimony, vigorously denied by Diamen, that Diamen had discarded another knife while the vehicle was being searched. According to the testimony of Dorothy Willetts, an associate of several of the Pagans, appellants Sousa and Eastridge, who had been released on bond, admitted to Ms. Willetts that they had participated in the killing of the decedent.

Testifying in their own defense, all three appellants denied any complicity in the pursuit of the decedent or in his murder. Jones also took the stand. Jones admitted that he chased Battle after Battle had shot Hunter. Jones claimed, however, that Battle had eluded him, and that he (Jones) did not participate in the killing and had no knowledge of it. All four defendants were convicted of first-degree murder while armed. The three appellants were sentenced to prison terms of twenty years to life, and each filed a timely notice of appeal.

On direct appeal, the convictions of Diamen, Sousa, and Eastridge were affirmed. *fn7 The court held that the trial Judge did not abuse his discretion by denying the appellants' motions for severance based, inter alia, on antagonistic defenses. Sousa, supra, 400 A.2d at 1042-43. *fn8 The court also "examined the multitude of other contentions made by appellants and [found] them to be without merit." Id. at 1038 n.1.

More than sixteen years after this court's affirmance of their convictions, the appellants jointly filed the § 23-110 motion which is the subject of the present appeals. They claimed that a six-year investigation conducted on their behalf by Centurion Ministries *fn9 has produced evidence exonerating the three appellants and identifying the "real" murderers. The new evidence adduced by the appellants consisted primarily of the following:

"1. an affidavit executed in December 1993 by the appellants' former co-defendant, Steven Jones, in which Jones admitted his own participation in the stabbing of Battle, *fn10 claimed that the three appellants were innocent, and asserted that his confederates in the killing were former Pagans Charles Jennings, John Woods, and a third man whom Jones declined to identify; it is undisputed, however, that Jennings and Woods are now deceased;"

"2. affidavits by three former Pagans who asserted, in 1993 and 1995 respectively, that Woods and Jennings, the two deceased men implicated by Jones, had both admitted their roles in the murder and had stated that the appellants were not involved; *fn11 these admissions by Woods and Jennings were allegedly made in the late 1970s;"

"3. an affidavit dated April 6, 1995, by John Gianaris, whom the appellants presented as a previously undiscovered eyewitness to the stabbing, and who stated, more than twenty years after the fact, that he saw "no more than four" men attacking Battle and that no car passed by the area at the relevant time; and"

"4. several affidavits expanding upon doubts cast at trial on the credibility of Ms. Willetts."

The appellants also claimed in their motion that the trial Judge had committed constitutional error as described above. The motions Judge, as we have noted, denied the appellants' § 23-110 motion without a hearing. This appeal followed.

II.

NEWLY DISCOVERED EVIDENCE AND THE CLAIM OF ACTUAL INNOCENCE

The appellants contend that Centurion Ministries' lengthy investigation has resulted in the discovery of new evidence demonstrating their innocence. They assert that this showing of innocence entitles them to relief pursuant to D.C. Code § 23-110. We conclude, however, that in light of the provisions of Rule 33 of the Superior Court's Rules of Criminal Procedure and the applicable case law, the appellants' reliance on newly discovered evidence comes many years too late.

Rule 33 provides in pertinent part:

"The Court on motion of a defendant may grant a new trial to that defendant if required in the interest of Justice . . . . A motion for a new trial based on the ground of newly discovered evidence may be made only before or within 2 years after final judgment, but if an appeal is pending, only on remand of the case may the Court grant the motion." Super. Ct. Crim. R. 33. The appellants' motion was filed twenty years after they were convicted and sixteen years after the affirmance of their convictions.

Our local Rule 33 "is identical to the corresponding Federal Rule of Criminal Procedure." Williams v. United States, 374 A.2d 885, 889 n.6 (D.C. 1977). It is therefore to be construed consistently with the federal rule and, in the absence of applicable local precedent, *fn12 we look to the case law construing Fed. R. Crim. P. 33. See Waldron v. United States, 370 A.2d 1372, 1373 (D.C. 1977).

"The time limitations of Rule 33 are jurisdictional. The court is without power to consider an untimely motion for a new trial." 3 Charles Alan Wright, Federal Practice & Procedure § 558, at 360 (2d ed. 1982 & Supp. 1998) (footnotes omitted); see also United States v. Smith, 62 F.3d 641, 648 (4th Cir. 1995) (citing Wright). Because Rule 33 requires that a motion based on newly discovered evidence be made within two years after final judgment, the court is without power to grant a motion filed after the expiration of that period. See, e.g., Guinan v. United States, 6 F.3d 468, 470-71 (7th Cir. 1993); Jacobanis v. United States, 256 F.2d 485, 486 (1st Cir. 1958). The two-year limit is strictly enforced. Herrera v. Collins, 506 U.S. 390, 409 (1993); United States v. Kaplan, 101 F. Supp. 7, 13 (S.D.N.Y. 1951) (Weinfeld, J.). A court is precluded from considering newly discovered evidence presented after the expiration of two years even where the court is convinced that "a grave miscarriage of Justice has taken place," Kaplan, supra, 101 F. Supp. at 11, and where "it is difficult to see how some of the vital evidence now presented could have been available to the defendant during the two-year period." Id. at 13.

Although this result may appear harsh, *fn13 see also Part IV, infra, there can be no doubt that it was intended by those who promulgated Fed. R. Crim. P. 33. Prior to 1944, defendants in federal prosecutions "enjoyed sixty days from judgment to move for a new trial on the basis of newly discovered evidence and only three days otherwise." Smith, supra, 62 F.3d at 649 (citation omitted). Thereafter,

"[w]hen Rule 33 was adopted in 1944, the Advisory Committee recommended that time limits upon new trial motions based on newly discovered evidence be eliminated. The Committee and its supporters reasoned that a new trial should always be available when a criminal defendant can introduce new evidence tending to demonstrate his actual innocence. See 3 Wright, Federal Practice and Procedure § 558, at 362-63 & nn.7-8. Although the Supreme Court rejected the Advisory Committee's proposal, and instead imposed a two-year limit on motions based on newly discovered evidence, the basic rationale for extending greater latitude to motions based on newly discovered evidence remains the same: to enable the district court to afford relief when new information bolsters a claim of actual innocence." Id. (emphasis added); see also Herrera, supra, 506 U.S. at 409; Kaplan, supra, 101 F. Supp. at 13-14. This history demonstrates beyond peradventure the Supreme Court's determination that a new trial may not be granted on the basis of newly discovered evidence after two years have elapsed, regardless of any showing of actual innocence. *fn14 Indeed, it was for cases involving claims of actual innocence that Rule 33's two-year limitations period was purposely designed. *fn15

In the present case, the appellants predicated their motion on D.C. Code § 23-110, a provision which permits a defendant to file his motion "at any time," and not on Rule 33. They contend that the limitations of Rule 33 are not applicable, and that "the court below erred in concluding that appellants' failure to timely file a motion for a new trial under Rule 33 precluded it from entertaining a motion for a new trial based on newly discovered evidence." But "[t]he nature of a motion is determined by the relief sought, not by its label or caption." Frain v. District of Columbia, 572 A.2d 447, 450 (D.C. 1990) (citation omitted). Insofar as the presentation of newly discovered evidence is concerned, the purpose of the appellants' motion is identical to that served by Rule 33. "By merely designating this a § 2255 motion, *fn16 the time constraints applicable to a motion based on newly discovered evidence cannot be so readily circumvented." United States v. Madonna, 556 F. Supp. 260, 266 (S.D.N.Y.) (citation omitted), aff'd, 697 F.2d 293 (2d Cir. 1982), cert. denied, 459 U.S. 1108 (1983); Guinan, supra, 6 F.3d at 470-71; United States v. DeCarlo, 848 F. Supp. 354, 355-58 (E.D.N.Y. 1994) (Rule 33's time limits may not be avoided by styling motion as one for a writ of error coram nobis).

Moreover, the Supreme Court made it clear in Herrera that, even in capital cases, time limitations on motions for a new trial based on newly discovered evidence do not present a constitutional issue cognizable in habeas corpus. The Court pointed out that at common law, a new trial could be granted only during the term of court in which the final judgment was entered. 506 U.S. at 408. The Court also noted that a substantial majority of the states placed time limits on the filing of new trial motions based on newly discovered evidence; indeed, many of those limitations are substantially shorter than the District's two-year period. Id. at 410-11. *fn17 The Court was prepared to assume, for the sake of argument, that "in a capital case *fn18 a truly persuasive demonstration of 'actual innocence' made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim." Id. at 417 (emphasis added). The Court found it unnecessary to decide whether the lack of such a state remedy would be fatal, however, because Texas, like most jurisdictions, permitted the defendant to seek a pardon from the Governor, id. at 411, and because, according to the Court, "[h]istory shows that the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency." Id. at 417. *fn19 Herrera thus holds that if the time for requesting a new trial has elapsed, the availability of discretionary authority in the Executive Branch to consider the defendant's newly discovered evidence and to grant him clemency *fn20 makes it constitutionally permissible to deny the defendant a further judicial forum without considering the merits of his claim of actual innocence. *fn21

III.

THE ALLEGED CONSTITUTIONAL VIOLATION

The five defendants who were indicted as a result of the events of November 1, 1974 -- Diamen, Sousa, Eastridge, Jones, and Richter -- were tried together. In an apparent attempt to avoid a perceived or actual need for severance and multiple trials, *fn22 the Judge ruled, as we have noted, that no defendant would be permitted to elicit from any witness information which would tend to incriminate any other defendant. *fn23 The Judge also restricted arguments of counsel accordingly. The appellants contend that this ruling unconstitutionally impaired their right, protected by the Fifth Amendment, to present a defense. *fn24

The appellants acknowledge that the constitutional claim that they now seek to raise was presented to and rejected by this court on direct appeal. See Sousa, supra, 400 A.2d at 1038 n.1. The appellants sought rehearing by the division or, in the alternative, by the full court, but their petition was denied. The Supreme Court subsequently declined to review the case. 444 U.S. 981. The appellants nevertheless assert that, in light of the newly discovered evidence, this court is free to reconsider their claim of constitutional error. The appellants also fault the motions Judge for failing to address that claim in his written order denying their § 23-110 motion. They assert, in effect, that the motions Judge erred by declining to overrule this court's holding in Sousa that there was no violation at the trial of the appellants' constitutional rights.

A. The binding authority of the Sousa decision.

"It is well-settled that where an appellate court has disposed of an issue on appeal, [that issue] will not be considered afresh on collateral attack in a trial court of the same judicial system, absent special circumstances." Doepel v. United States, 510 A.2d 1044, 1045-46 (D.C. 1986) (footnote and citations omitted); see also Minick v. United States, 506 A.2d 1115, 1116-17 (D.C.) (per curiam), cert. denied, 479 U.S. 836 (1986). We are also bound by the related rule that one division of the court cannot overrule the decision of a prior division. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971); Minick, supra, 506 A.2d at 116-17.

This court has not definitively construed the term "special circumstances" as used in Doepel. In Peoples v. Roach, 669 A.2d 700, 702 n.5 (D.C. 1995), we suggested that "[s]uch special circumstances might consist of an intervening change in the relevant law." *fn25 In United States v. Palumbo, 608 F.2d 529 (3d Cir. 1979), the court held that

in the absence of [1] newly discovered evidence that could not reasonably have been presented at the original trial, [2] a change in applicable law, [3] incompetent prior representation by counsel, or [4] other circumstances indicating that an accused did not receive full and fair consideration of his federal constitutional and statutory claims, a § 2255 petitioner may not relitigate issues that were adjudicated at his original trial and on direct appeal. Id. at 533 (footnotes omitted; bracketed numerals added).

An examination of the four "special circumstances" or "exceptions" identified in Palumbo reveals that none of them permits a trial Judge to disregard a ruling of the appellate court, or a successor division to second-guess a predecessor division's decision, simply because the trial Judge or the successor division disagrees with the earlier division's legal analysis and perceives a constitutional violation where the earlier division found none. *fn26 On the contrary, each Palumbo exception involves a circumstance which prevented the earlier division, through no legal error of its own, from correctly deciding the constitutional issue. In other words, the "special circumstances" must be such that, if the original panel had been apprised of them, its decision would have been different. See Minick, supra, 506 A.2d at 1117 (on collateral attack, the defendant must show that the initial ruling "is clearly erroneous in light of newly presented facts or a change in substantive law"). Any other reading of the phrase "special circumstances" would undermine the rule of M.A.P. v. Ryan, the doctrine of the law of the case, and the need for consistency which these rules represent. Indeed, if we were to adopt the appellants' argument, then a Judge of the Superior Court would be free to rule in 1996 that the Court of Appeals erred in 1979 when the appellate court decided, on the same record, the very question which is now before the Superior Court Judge. We know of no authority for such a startling proposition. *fn27

Of the four Palumbo exceptions, only the first -- newly discovered evidence -- has any possible application here. The appellants make no claim of a change in applicable law. *fn28 There is no allegation that their trial counsel were incompetent. *fn29 Finally, the appellants received a full and fair hearing on their constitutional claim, and they have made no persuasive showing to the contrary. *fn30

B. Newly discovered evidence and the constitutional issue.

We also conclude that the appellants' newly discovered evidence does not provide any previously unavailable support for their contention that the Judge committed constitutional error at their trial. Although the appellants have presented new evidence relevant to their claim of actual innocence, that evidence has no logical or legal bearing on the constitutional issue that they now seek to relitigate.

Under the standard articulated in Palumbo, a division of this court could properly reconsider the decision in Sousa if the appellants produced newly discovered evidence "that could not reasonably have been presented at the original trial . . . ." 608 F.2d at 533. The affidavits secured by the appellants, if true, establish that the exculpatory evidence that they now present was not available in 1975, and that at that time, the appellants had no reasonable opportunity to obtain it. *fn31 We will also assume, for purposes of this appeal, that at least where newly discovered evidence of actual innocence is relevant to a defendant's claim that his constitutional rights have been violated, that evidence may be presented and considered more than two years after final judgment.

But if the court is to reconsider a previously rejected constitutional claim on the basis of newly discovered evidence, then elementary logic surely requires, and Palumbo implicitly contemplates, that the evidence must be relevant to the constitutional issue sought to be relitigated, and not just to the question of guilt or innocence. It is useful, in this connection, to compare the appellants' claim here with that of the defendant in a hypothetical case that we consider paradigmatic.

Suppose that a defendant is convicted of murder after the trial Judge admits the defendant's confession into evidence, rejecting the defendant's claim that the confession was coerced. The appellate court sustains the finding of no coercion and affirms the defendant's conviction. Ten years later, a conscience-stricken police officer provides the defense attorney with a videotape of the defendant's interrogation. The tape clearly shows the officer's colleagues beating the confession out of the defendant. Armed with his new evidence, the defendant now mounts a collateral attack on his conviction. He contends that his confession was unconstitutionally obtained and that it should have been excluded from evidence. The motions Judge denies relief, deferring to the appellate court's earlier ruling that the confession was properly admitted. The defendant appeals again. Under the Palumbo standard, the appellate court is now free to revisit the decision issued on the defendant's direct appeal. This is so because the newly discovered evidence reveals that, contrary to the appellate court's belief at the time of the first appeal, the defendant's constitutional rights have been violated. In our hypothetical, the newly discovered evidence demonstrates that the confession was erroneously admitted and that the defendant was convicted of murder on the basis of evidence that was secured by unconstitutional means.

In the present case, on the other hand, the newly discovered evidence provides no previously unavailable information regarding the question whether the trial Judge's ruling impaired the appellants' rights under the Fifth and Sixth Amendments. At the trial, the Judge precluded the appellants from presenting certain evidence that they sought to elicit from various witnesses. That restriction was either constitutional, as this court held in Sousa, or it was not. The new affidavits by Jones and others which form the basis for the appellants' § 23-110 motion do not illuminate the question whether the Judge's restrictions were constitutionally permissible. At most, these affidavits tend to show that, if there was a constitutional violation, then the consequences of that violation would have been even more severe if the appellants had possessed and attempted to adduce the newly discovered evidence, and if the Judge had prevented them from doing so. *fn32 The new information, however, is of no help to appellants in their attempt to establish that the Judge's rule was unconstitutional and that significant exculpatory evidence was excluded from the trial.

We do not believe that the Supreme Court's decision in Schlup, supra note 23, is contrary to our analysis. *fn33 In Schlup, the Court held that in "an extraordinary case" presenting a "fundamental miscarriage of Justice," 513 U.S. at 321, a defendant who had been sentenced to death was entitled to have a successive (and, in the ordinary case, procedurally barred) federal habeas corpus petition heard on the merits, and could assert grounds previously rejected by the state and federal courts, if he was able to demonstrate, on the basis of newly discovered evidence not previously available to him, that no impartial jury could find him guilty beyond a reasonable doubt. Id. at 321-32. Schlup is thus basically about federalism, and its gist is that a capital defendant *fn34 who presents newly discovered and compelling evidence of actual innocence may obtain federal habeas review of an otherwise defaulted constitutional claim. There is nothing in Schlup to suggest that, on remand, the United States District Judge could simply rule, without new evidence relevant to the constitutional issues, that the prior decisions of the United States Court of Appeals were erroneous and that he was not obliged to follow them. In any event, we conclude that the newly discovered evidence with which the appellants in this case seek to shift blame to two now-deceased Pagans (largely on the basis of an affidavit by a confessed murderer who now admits that he committed perjury at his trial and hearsay statements of uncertain admissibility implicating Jennings and Woods, see Williamson v. United States, 512 U.S. 594, 598-602 (1994)) does not meet the substantive standard articulated in Schlup and in the authorities on which Schlup relies.

We therefore conclude that, as a division, we are bound by the Disposition in Sousa of the appellants' constitutional contentions. We have no occasion to decide what, if any, action the full court could or should take with respect to these contentions in the event of a petition for rehearing en banc.

IV.

CONCLUSION

Although a defendant is presumptively entitled to a hearing on a motion brought pursuant to D.C. Code § 23-110, no hearing is required where his allegations would merit no relief even if true. See, e.g., Pettaway v. United States, 390 A.2d 981, 984 (D.C. 1978). *fn35 Having determined that the appellants' newly discovered evidence has been presented too late, and that the appellants' previously rejected constitutional claim is not now viable, we conclude that their § 23-110 motion was properly denied without a hearing. *fn36

The foregoing would ordinarily end this opinion. But because the appellants have presented a non-frivolous claim that they have spent many years behind bars for a crime that they did not commit, and because we are constrained to affirm the denial without a hearing of a motion in which they vigorously assert their innocence, we think that a few additional paragraphs are in order. "In the unusual circumstances of this case, the [c]court feels that it would be shirking its responsibility if the denial of the motion were made without further comment." Kaplan, supra, 101 F. Supp. at 14. *fn37

"[F]ew would argue that a criminal defendant who has been convicted of rape or murder must go to the electric chair or stay in prison even if DNA evidence shows that he did not commit the crime." Merrell Dow Pharm. Inc. v. Oxendine, 649 A.2d 825, 834 (D.C. 1994) (concurring opinion). One who reads Super. Ct. Crim. R. 33 in conjunction with the Supreme Court's decision in Herrera is led to the uncomfortable sense that an innocent defendant may be executed or left to rot in jail because conclusive exculpatory evidence, through no fault of his own, came to his attention too late. Such a defendant is, of course, free to apply for executive clemency, but pardons are discretionary, and often politically unpopular as well. Moreover, a defendant cannot fairly be blamed if he regards executive clemency as an insufficient remedy when he did not in fact commit the crime for which he is being pardoned. An innocent man asks for Justice, not for mercy. In a powerful Dissenting opinion in Tippitt v. Wood, 78 U.S. App. D.C. 332, 140 F.2d 689 (1944), Justice Arnold expressed his firm belief that "the courts rather than the executive are the guardians of liberty against arbitrary judicial action." 78 U.S. App. D.C. at 339, 140 F.2d at 696; see also the Appendix, infra.

It is, and should be, difficult for a criminal defendant to secure a new trial several decades after the fact. See, e.g., Dobson v. United States, 711 A.2d 78, 84 (D.C. 1998) ("lapse of time affects the quantum of required proof, as well as the good faith and credibility of the moving party") (citation and internal quotation marks omitted). Putting the blame on people who are dead and who can no longer defend themselves is particularly suspect. See Herrera, supra, 506 U.S. at 417. *fn38 Under Rule 33 as written, however, passage of a relatively short time -- two years -- acts as an absolute bar, no matter how compelling the showing of innocence may be.

As Professor Wright has written, "[this] can lead to very unattractive results." 3 Wright, supra, § 558, at 363. These results can be avoided. More than half a century ago, the version of Rule 33 proposed by the federal Advisory Committee on Criminal Rules would have permitted motions based on newly discovered evidence to be filed "'at any time before or after final judgment.'" Id. at 362. "This proposal was eloquently supported by former Attorney General Homer Cummings, [the nation's chief prosecutor,] who could see 'no reason, in logic, in Justice, or in expediency' why there should be any time limit on motions of this kind." *fn39 Id.

But for the time limitation contained in Rule 33, a hearing on the appellants' § 23-110 motion might well be appropriate in this case. *fn40 In any event, the Superior Court's Board of Judges might wish to consider whether an amendment of Rule 33 in conformity with the former Attorney General's views would be in the interest of Justice.

The decision of the motions Judge is

Affirmed.

Appendix

Newly Discovered Evidence

The Committee has proposed the abolition of time limitations on motions for a new trial on the ground of newly discovered evidence. This is a courageous and commendable step. The conviction of an innocent person in a federal court is a rarity. Yet, as all human institutions are fallible, such miscarriages of Justice have occurred. During my term of office as Attorney General I have known of it in a few instances and was obliged to take steps to retrieve the wrong either by confessing error, if it was not too late to do so, or by securing a pardon. Executive clemency in such an instance is, however, inadequate and unsatisfactory. A judicial remedy should always be available. Such a remedy, in fact, is now open if the newly discovered evidence exculpating the defendant becomes available within a certain time limit. Unfortunately, such evidence is apt to come to light at a later date. There is no reason, in logic, in Justice, or in expediency, for limiting the time during which a court may grant a new trial in such cases. I, for one, am not afraid that the courts will be inundated by a flood of frivolous motions of this kind. We may well rely on the good sense of federal Judges not to grant such motions except upon sufficient cause. Homer Cummings, The Third Great Adventure, 3 F.R.D. 283, 287 (1943).

Ruiz, Associate Judge, Dissenting: *fn41 These appeals present an issue of fundamental importance to the court's role in safeguarding constitutional rights through habeas review: the authority of this court to reconsider a claim that a constitutional violation has led to a serious inJustice. Notwithstanding the express language of our habeas statute that "a prisoner . . . claiming the right to be released upon the ground that . . . the sentence was imposed in violation of the Constitution of the United States . . . may move the court to vacate [or] set aside . . . the sentence . . . at any time," D.C. Code § 23-110 (a) & (b) (1996) (emphasis added), the majority imposes the two-year limitation of Rule 33 of the Superior Court Rules of Criminal Procedure and the judicially-created rule in M.A.P. v. Ryan, 285 A.2d 310 (D.C. 1971), to strip this court of authority to even consider whether it should hear appellants' constitutional claim. The majority, while recognizing that appellants present "non frivolous claims that they have spent many years behind bars for a crime they did not commit," ante at ___, nonetheless uncomfortably concludes that Rule 33 "acts as an absolute bar, no matter how compelling the showing of innocence," ante at ____. That unsatisfactory result is a self-inflicted and unsupported limitation on the court's authority.

First, the two-year limitation of Rule 33 is directed only to new trial motions "based on the ground of newly-discovered evidence." Rule 33's time limitation does not apply to the post-conviction motions before us, filed under D.C. Code § 23-110, which are centered on a constitutional claim that is enhanced by an assertion of factual innocence based on newly-discovered evidence. *fn42 The majority repeatedly mischaracterizes appellants' post-trial motions as if they were based exclusively on new evidence, ignoring the constitutional claims at the core of their arguments. As such, these motions were appropriately filed under D.C. Code § 23-110, which provides for review of a sentence "imposed in violation of the Constitution." Under D.C. Code § 23-110, a motion may be filed "at any time."

The majority heavily relies on Herrera v. Collins, 506 U.S. 390 (1993), to preclude the court's consideration of appellants' new evidence. That reliance is misplaced, however, as the Supreme Court has expressly distinguished a free-standing claim of actual innocence based on newly-discovered evidence, such as presented in Herrera, from constitutional claims supported by assertions of actual innocence. See Schlup v. Delo, 513 U.S. 298 (1995). In the latter case, the conviction "may not be entitled to the same degree of respect as one, such as Herrera's, that is the product of an error-free trial." Id. at 316. Here, because appellants claim that their trial was constitutionally flawed, the Herrera standard is inapplicable. See, e.g., United States v. Dale, 329 U.S. App. D.C. 335, 338, 140 F.3d 1054, 1056 (1998); Carriger v. Stewart, 132 F.3d 463, 478 (9th Cir. 1997); Burks v. DuBois, 55 F.3d 712, 717 (1st Cir. 1995); Miller v. Comm'n of Correction, 700 A.2d 1108, 1129 n.28 (Conn. 1997); In re Elizondo, 947 S.W.2d 202, 206 n.1 (Tex. Crim. App. 1996). *fn43

Second, when the majority acknowledges appellants' constitutional claims, it applies the rule in M.A.P. v. Ryan to preclude review under § 23-110 because this court was previously presented with and implicitly decided the same constitutional claims on direct appeal (albeit without the benefit of the new evidence supporting the claim of factual innocence). That outright refusal to consider the constitutional claims misses the point of habeas review under § 23-110. As we have already observed, application of the rule in M.A.P. to this context

"fails to comprehend the true nature of a collateral attack. One primary purpose of § 23-110 is to enable convicted prisoners to escape the shackles of res judicata when constitutional rights have been violated . . . . By its very definition, a collateral attack on a tainted sentence involves a challenge to the decision of the court that has previously adjudicated the issue. Despite this fact, § 23-110 requires the courts of the District of Columbia to be eternally vigilant in ensuring that prisoners are not subject to unlawful incarceration. For this reason we have necessarily held that strict principles of res judicata . . . do not apply in these proceedings." Kirk v. United States, 510 A.2d 499, 503-04 (D.C. 1986). *fn44

The view we expressed in Kirk echoes the Supreme Court, which "has consistently relied on the equitable nature of habeas corpus to preclude application of strict rules of res judicata." Schlup, supra, 513 U.S. at 319. The rule in M.A.P. is not jurisdictional; rather, it is an "internal policy" adopted by the court for the sake of good order at the time it became "the highest court for the District of Columbia, no longer subject to review by the United States Court of Appeals." M.A.P. v. Ryan, supra, 285 A.2d at 312. The rule that one division's ruling binds a subsequent division, and may be reviewed only by the court en banc, is for the purpose of preserving uniformity among the various divisions of the court. This is a common rule in appellate courts that decide cases in divisions of less than the full court. Such an internal rule, however, cannot trump a right to judicial review created by statute, under § 23-110. Moreover, as with any internal policy, we have recognized that it might have to give way on occasion, where "we are bound to follow [a different rule] on federal constitutional grounds." Id.

The question before us is not whether the court has authority to consider this habeas petition, but under what circumstances it is appropriate for the court to do so, consistent with the competing values of institutional finality and the constitutional rights of the individual. Habeas relief is limited, but it exists to lend a further, attentive judicial ear to correct serious trial court error resulting in inJustice. The majority's reasoning imposes a procedural straitjacket on the court that turns a deaf ear to habeas petitioners, no matter how serious the constitutional error or how compelling the claim that the jury's verdict was thereby misled about the petitioners' factual innocence, so long as the sentence was imposed more than two years earlier or if the matter previously was considered by the appeals court. In my view, this narrow interpretation renders our habeas recourse under § 23-110 "inadequate" and "ineffective" when compared with the availability of habeas review in the federal courts. Cf. 28 U.S.C. § 2255 (1998) (permitting second and successive habeas petitions from federal convictions raising constitutional claims where there is evidence that "if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found the movant guilty of the offense"); Schlup, supra, 513 U.S. at 327-28 (defining standard for "fundamental miscarriage exception" to avoid procedural bar to reconsideration by a federal court of the same constitutional claim previously considered and rejected by trial and appellate courts in state and federal court systems).

I venture that the majority's narrow interpretation of our habeas statute, if allowed to prevail, could subject us to unprecedented federal court habeas review under § 23-110 (g). *fn45 Cf. Triestman v. United States, 124 F.3d 361, 380 (2d Cir. 1997) (holding that where defendant is barred by newly amended § 2255 from presenting claim of actual innocence he could not have presented earlier, § 2255 relief is inadequate and ineffective and habeas corpus petition can therefore be brought under 28 U.S.C. § 2241 (c)(3)). I am hopeful that this court will rehear these appeals en banc to fashion a rule that will permit, within strict but reasonable confines, the reconsideration of meritorious claims that a constitutional violation has led to the conviction of an innocent person. Although I write in Dissent at this time, in the following pages I set out the standard, derived from the Supreme Court's opinion in Schlup, that I propose be adopted by the full court. *fn46

I.

Michael A. Diamen, Joseph Nick Sousa and Joseph Wayne Eastridge appeal from the trial court's denial, without a hearing, of their joint motion pursuant to D.C. Code § 23-110 to vacate their convictions of first-degree murder while armed, entered over twenty years ago, in a racially-motivated killing involving a motorcycle club, known as "the Pagans," to which they belonged. As part of their collateral attack, appellants also sought disclosure of grand jury testimony and discovery from the government. I reject the government's contention that appellants are necessarily barred from presenting their constitutional claims anew, after this court affirmed their convictions on direct appeal that raised similar concerns. I would hold that in view of the significant new evidence proffered by appellants, and its importance to their claims of constitutional trial error and actual innocence, this case appears to present special circumstances warranting review. I, therefore, would vacate the trial court's denial of the § 23-110 motion, remand for an evidentiary hearing consistent with the principles set out in this opinion and instruct the trial court to permit discovery, for purposes of that hearing, of grand jury testimony and other exculpatory material that may be in the possession of the government.

II.

The 1976 Murder Trial

In 1976, a jury found appellants guilty of first-degree murder while armed for stabbing Johnnie Battle on November 1, 1974. The following version of the evidence produced at the trial is taken from this court's affirmance of appellants' convictions:

"On the evening of November 1, 1974, appellants [including Diamen, Sousa and Eastridge] and their companions (the "Richter group", as they were referred to repeatedly at trial) arrived at the Godfather Restaurant located in the 4900 block of Wisconsin Avenue, N.W., Washington, D.C. The Richter group arrived from Virginia in two cars and parked on Fessenden Street, a short distance from the restaurant. They entered the restaurant but were asked to leave by the doorman acting on instructions from the owner who was familiar with the Richter group. They started to leave. Jones, one of Richter's companions, picked up a large bag of popcorn and carried it from the restaurant. As they left the restaurant they encountered the decedent Johnnie Battle, Armon Allen, and Joseph Brown (the "Battle group"). Richter accused two members of the Battle group of insulting him, but both men denied the allegation. Both groups left the restaurant with the Richter group following the Battle group towards Fessenden Street. During this walk, the Richter group continued to taunt the Battle group. Allen, who became separated from the Battle group, was frightened, took a of [sic] metal comb from his pocket, and was pushed into Fessenden Street by a member of the Richter group. The push turned him around so that he was facing Richter who had a knife at his side. Two other members of the Richter group approached Allen, but Richter told them not to do anything and he ended the confrontation without further ado. Allen remained at the corner of Fessenden and Wisconsin, while appellants and their companions walked west on Fessenden. Meanwhile, Brown and Battle went to Battle's car where Battle armed himself with a pistol, started walking back towards Wisconsin Avenue, and there met the Richter group. Jones took the popcorn he was carrying and threw it at Battle while insulting him. Brown observed that persons in the Richter group were armed with knives. Battle drew his pistol and began firing. One shot hit Bruce Hunter, a member of the Richter group. Richter immediately left the scene to take Hunter to Arlington Hospital. Brown began running towards Wisconsin and Fessenden where he saw Allen. Before they both returned to the Godfather to seek refuge, they observed several members of the Richter group chasing Battle across Wisconsin Avenue into a small park. The doorman and owner of the Godfather also observed this chase. Another customer at the Godfather saw the chase, as did David Brady who was getting into his car on Wisconsin Avenue. When Battle reached Emery Street, he tripped, and his pursuers jumped him from two different directions and began beating and kicking him. The Godfather's owner was outside the restaurant and saw two cars with Virginia tags pass. The police arrived and spoke to the owner who pointed out one of the cars. The car then drove through a red light and the officer pursued. When the officer stopped the car it was occupied by Sousa, Diamen, Jones, and Eastridge. The owner identified the four as having been in the Godfather and as part of the group that was harassing Brown, Allen, and Battle. The men were ordered out of the car, and Diamen sat down on a small grassy area. A knife was found under the front seat of the car, and bloody newspapers were found under the back seat. Knives were also found on Eastridge and Jones. Blood was found on Jones' clothing and boots, Diamen's pants, and Sousa's shirt. In the meantime, the body of Johnnie Battle was discovered by four civilians. The appellants Sousa, Eastridge, and Diamen were arrested and charged with murder. Richter was arrested a few blocks from the Virginia hospital, and a knife was seized from his belt. The day after the murder, a witness discovered a knife in a pile of leaves near the grassy spot where Diamen waited while the car was being searched."

Appellants' trial lasted five weeks with the government presenting 36 witnesses and over 75 exhibits. All defendants charged with first-degree murder while armed admitted their presence at the Godfather and in its vicinity on the night of the murder, but denied participation in the murder. Richter's defense to the assault charges was self-defense.

Dorothy Willett testified that Sousa and Eastridge, while free on bond, met her on several occasions. Her testimony revealed that both Sousa and Eastridge admitted their participation in the murder. She testified, in part:

"Well, Nick [Sousa] said that it was a nigger that got Kenny and we got us one. And he said -- I asked him at that time, I asked him, "Nick, you didn't really do anything like that, did you."

He said, "Not me, he did it." And he looked at Wayne [Eastridge].

And Wayne said to Nick, said, "You're the one that cut his nose off."

And Nick said, "well, yeah, I did that, but you sliced his ear."

She further testified that, in the same conversation, Sousa stated, "If it had not been for the one-way street, I would have gotten away." Sousa v. United States, 400 A.2d 1036, 1038-40 (D.C. 1979) (footnote omitted) (emphasis added). *fn47

After the jury found appellants guilty of first-degree murder, Chief Judge Moultrie imposed upon each appellant a sentence of 20 years to life imprisonment. *fn48

The Direct Appeal

This court affirmed the convictions, addressing "only those [contentions] pertaining to joinder and severance, and the sufficiency of the evidence as to appellant Richter." Sousa, supra, 400 A.2d at 1038. *fn49 Appellants' other arguments on appeal were rejected without Discussion in a footnote noting that "[w]e have examined the multitude of other contentions made by appellants and find them to be without merit." Id. at 1038 n.1.

Post-appeal Motions

Subsequent to the affirmance of their convictions on direct appeal, appellants Eastridge and Diamen filed various motions collaterally attacking their convictions. In 1981, five years after his conviction, Eastridge filed a motion for a new trial alleging that ineffective assistance of trial counsel and newly-discovered evidence warranted a new trial. The new evidence consisted of an affidavit from a defense investigator who indicated that co-defendant Jones had admitted his presence at the murder and claimed that Eastridge was not present. The trial court summarily denied the motion finding that such vague and conclusory allegations did not merit a hearing. This court affirmed the denial, quoting the trial court that "[n]owhere is there any firm indication -- outside the mere assertion in the affidavit -- that Jones would in fact recant the testimony he gave at the murder trial asserting his innocence and risk possible prosecution for perjury by doing so." Eastridge v. United States, No. 82-387, 5 (D.C. June 16, 1983) The court found it improbable that Jones' testimony at a new trial would produce a different result, because at the trial "Jones testified to his non-involvement in the murder; by convicting him, the jury declared that it found his testimony incredible. Appellant [Eastridge] presents no convincing indication that Jones' credibility will improve." Id.

In 1983, Diamen filed a motion to vacate judgment and sentence pursuant to D.C. Code § 23-110, raising, among other issues, ineffective assistance of counsel and newly-discovered evidence. The trial court denied the motion without a hearing and this court affirmed the denial, concluding that his claims were meritless or, in the case of the proffered new evidence, because it was presented after the two-year period provided by Super. Ct. Crim. R. 33 for new trial motions based on new evidence. Diamen v. United States, No. 84-1358, 2-3 (D.C. July 31, 1985).

Until the current collateral attack that is the subject of this appeal, Sousa had not collaterally attacked his conviction.

The Current § 23-110 Motion

The subject of this appeal is a joint motion filed in April 1995 by Eastridge, Diamen and Sousa to vacate their convictions pursuant to D.C. Code § 23-110, which included a request for an evidentiary hearing. As in their direct appeals, they argued that the trial court's rule prohibiting them from eliciting from any witness or co-defendant any testimony that might inculpate or exculpate a co-defendant, without the permission of all co-defendants, violated appellants' Fifth and Sixth Amendment rights. In addition, they argued that the newly-discovered evidence presented in their motion not only underscores the unconstitutionality and prejudice resulting from the trial court's limitations on examination, warranting vacation of their conviction under § 23-110, but that relief also was warranted under § 23-110 based on the "actual innocence" standard set out in Herrera, supra. *fn50 Appellants also filed a motion for disclosure of grand jury testimony and other discovery. Both motions were summarily denied in a written order.

Because of its importance to appellants' arguments on appeal, the evidence presented to the trial court in support of their § 23-110 motion is set forth in detail. The new evidence came to light as a result of a six-year investigation begun in 1987 by Centurion Ministries. *fn51 As a result of the Ministries' investigation, appellants presented affidavits with exculpatory information not previously presented to the trial court: 1) an affidavit signed in 1994 by Stephen Jones, a co-defendant in the murder trial; 2) affidavits by Michael Grayson, Raymond Thomas Lurz and Richard Richter, three other members of the Pagans motorcycle club involved in the confrontation with the murder victim; 3) an affidavit by John Gianaris, a heretofore unknown eyewitness to the murder, who was not associated with the Pagans; and 4) eleven affidavits from individuals who attacked the testimony and reputation for truthfulness and character of Dorothy Willetts, a key government witness at the murder trial.

In his affidavit, Jones states that appellants "did not play any role in the murder of Johnnie Battle." Jones recants the portion of his trial testimony where he testified that he chased Battle but did not catch him and that he was neither involved in the killing nor did he see who killed Battle. Jones now contends that he was present during the murder as were fellow Pagan members Charles Jennings, John Woods, and one other individual whom he will not name at the present time. Jones states that none of the appellants was present.

Jones claims in his affidavit that he chased Battle through a small park across from the Godfather Restaurant up Emery Street and into an alley. They exited the alley and crossed Ellicott Street where Jones tackled Battle in a parking lot. Jones started punching Battle and was soon joined by Jennings, who began to stab Battle with a buck knife, and Woods, who held Battle down; the unidentified individual, stabbed Battle with a bowie knife. Jones claims that he backed away once the stabbing began, but not quickly enough to avoid a cut on his right hand. After the stabbing, the four ran down the alley between Ellicott and Emery Streets. Jones ran up Emery away from Wisconsin Avenue and saw appellants' car coming up Emery Street. This was the first time he had seen appellants since he began chasing Battle. He got into the car and told appellants to "get the hell out of here," but did not mention the murder. Jones stated that Eastridge gave him a newspaper for his bloody hand. Sousa, the driver, continued up Emery Street, turned left onto 41st Street and another left turn onto Fessenden Street, which led back to Wisconsin Avenue. They turned right onto Wisconsin Avenue where they were soon pulled over by the police.

Jones contends in his affidavit that he did not come forward with this information earlier and instead committed perjury at trial because he, like Jennings, Woods, the unidentified individual and appellants were members of the Pagan motorcycle club and, as such, abide by the Pagan Code. Part of the code dealt with the police and, according to Jones, provided that

no Pagan was ever to turn another Pagan in to the police for any reason, even if another Pagan had been arrested falsely for the same crime. The reason for this rule was that the Pagans felt persecuted by the police and believed that, if one Pagan were falsely arrested, and another Pagan was turned in as the true perpetrator, the police and the government would simply try to prosecute both of them.

According to Jones, therefore, under the Pagan Code, he could not implicate Jennings, Woods and the unnamed individual, even if it meant implicating appellants, because they were all Pagans. In addition, Jones claims that he was better friends with Jennings, Woods and the unnamed person than with Eastridge, Sousa and Diamen, whom he hardly knew. Furthermore, he was afraid of facing perjury charges and thought that he could be recharged and face a new trial for the murder.

John Gianaris, who states that he was hiding in the alley during the murder, corroborates Jones' affidavit with respect to the number of assailants. Gianaris states in his affidavit *fn52 that on the night of the murder he was behind a chain link fence that bordered the alley and Ellicott Street. From behind the fence he saw a black man being chased by "[no] more than four" white men. After the white men attacked the black man in the parking lot, the attackers ran away. Additionally, at no point during the attack did Gianaris see a car pull up along Ellicott Street. Gianaris is not connected to the Pagans or to the appellants.

Michael Grayson, a member of the Pagans in the 1970s, states in his 1992 affidavit that in 1979, three years after appellants' trial, Woods (one of the Pagans implicated in the murder by Jones' affidavit) told him that appellants had nothing to do with the murder and that Battle was instead killed by Woods and three other Pagan members: Charles Jennings, Chesley Barber and Steven Jones. Woods explained that Jones had chased and tackled Battle, but had told a different story at trial. Another former Pagan member, Raymond Thomas Lurz, states in his 1993 affidavit that in 1977, one year after the trial, Woods told him that Eastridge, Sousa and Diamen were wrongfully convicted. One year later, in 1978, Woods again indicated to Lurz that appellants did not commit the murder and that he (Woods) along with Jennings, Jones and one other person chased and murdered Battle. A third former Pagan member and co-defendant in the 1976 trial, Richard Richter, whose convictions were reversed on direct appeal, states in his 1995 affidavit that before and after the trial he learned that appellants were not involved in the murder and that Jones, Jennings, Woods and a fourth man participated in the murder. He also had conversations with Woods and Jennings in which they expressed remorse for appellants' wrongful convictions. According to Richter, in 1974 Jennings told him that he, Jennings, had thrown his buck knife down a sewer and fled the scene.

Appellants also offered ten other affidavits taken by Centurion Ministries from individuals who refute the testimony of Dorothy Willetts, a key government witness who testified that Eastridge and Sousa made incriminating statements to her. *fn53 The affidavits also attack Willetts' reputation for truthfulness and her character. *fn54

The trial court denied appellants' motion for a new trial on two grounds: (1) that Superior Court Criminal Rule 33's two-year time limitation on motions for new trial based on newly-discovered evidence precluded relief, *fn55 and (2) that appellants could not prevail under D.C. Code § 23-110. *fn56 The trial court ruled that it need not hold an evidentiary hearing because appellants had failed to state a factual claim requiring a hearing under § 23-110.

Even assuming the motion was not time-barred, the trial court concluded that appellants' § 23-110 motion should be denied. Specifically, the trial court found that Jones' affidavit was not a recent recantation of his trial testimony and that this court had previously "considered this recantation, albeit not in affidavit form, and rejected its legal significance." The court relied on the trial court's findings in 1983, when it denied Eastridge's first § 23-110 motion, that Jones' recantation was incredible, and on this court's affirmance of that finding. Furthermore, the trial court noted that Jones' membership in the Pagans evidenced his potential bias and further discredited his affidavit because the only Pagan members Jones expressly implicates in the murder, Woods and Jennings, are deceased. The trial court questioned the credibility of the affidavits of Grayson, Lurz and Richter in part because they are all former Pagans. Even if appellants could meet the credibility threshold, the trial court indicated, the information in the affidavits was inadmissible hearsay. The trial court found Gianaris's affidavit incredible because Gianaris did not come forward sooner and his statements were too vague. The trial court considered that the affidavits offered to impeach Willetts's trial testimony were weak and, the trial court noted, the affiants were available prior to trial.

Furthermore, the trial court ruled that appellants' new evidence was not sufficient to warrant relief under § 23-110 because it did not convince the trial court of appellants' actual innocence. Appellants alleged that the blood evidence presented at trial did not link them to the murder because none of them had any of Battle's blood on them. The government presented evidence that Sousa and Diamen had a small amount of unidentified blood on their clothing and that there were bloody newspapers in the car. The trial court reasoned that the absence of blood on their persons traceable to the murder victim was not conclusive evidence of actual innocence and did not warrant a new trial. In evaluating appellants' claims of actual innocence, the trial court did not take into account the new affidavits because, according to the trial court, the evidence did not meet the rigorous standard of actual innocence set forth by the Supreme Court in Herrera.

The trial court entertained Sousa's claim of ineffective assistance of trial counsel acknowledging that it was his first § 23-110 motion. The court concluded that appellants' *fn57 claims failed both prongs of Strickland v. Washington, 466 U.S. 668 (1984), in that they failed to show that their respective counsel were deficient and failed to show how any deficient performance prejudiced their cases.

The trial court refused the request for an evidentiary hearing on appellants' § 23-110 motion on the grounds that appellants' proffered affidavits were "incredible," "vague" and "conclusory." Even if the affidavits were believed, the trial court concluded, they would not entitle appellants to a new trial or raise factual questions requiring a hearing. See Ready v. United States, 620 A.2d 233, 234 (D.C. 1993).

III.

On appeal, Diamen, Sousa and Eastridge contend that the trial court erred in denying their § 23-110 motion, arguing that they are entitled to relief pursuant to § 23-110 (a)(1) because their sentences were imposed in violation of the Constitution, and pursuant to § 23-110 (a)(4) because their sentences are otherwise open to collateral attack. In addition, appellants contend that the trial court should have held a hearing on their § 23-110 motion and granted their request for discovery.

"Special Circumstances" Warranting Review

Before we can address appellants' contentions on the merits, we must determine first whether this court's previous decision in the direct appeal precludes further reconsideration . In Sousa, supra, this court already rejected the appellants' core constitutional claim in their collateral attack, their challenge to the court's restriction on cross-examination, in a one-sentence footnote, stating that "[w]e have examined the multitude of other contentions made by appellants and find them to be without merit." 400 A.2d at 1038 n.1. The government argues that we are precluded from considering the current appeal because "where an appellate court has disposed of an issue on appeal, it will not be considered afresh on a collateral attack in a trial court of the same judicial system, absent special circumstances." Doepel v. United States, 510 A.2d 1044, 1045-46 (D.C. 1986). The government argues that affirmance of the direct appeal in 1979 forecloses further review by this court and that any further review would be in derogation of M.A.P., supra. *fn58

Appellants concede that the unconstitutionality of the trial court's restriction on cross-examination was raised on direct appeal, but argue that this court may consider their claim because this case presents the kind of "special circumstances" reserved under Doepel, supra. According to appellants, the special circumstances warranting reconsideration in this case include: (1) the constitutional importance of the issue, (2) the significance to the constitutional issue of new evidence not considered by the trial court or by this court on direct appeal, (3) the claimed actual innocence of the appellants, and (4) that the issue was not expressly addressed by this court in the opinion issued in the direct appeal.

Analysis of § 23-110 must begin with the statutory language, which expressly provides that a motion "may be made at any time." D.C. Code § 23-110 (b). We also must recognize that the equitable nature of habeas corpus "preclude[s] application of strict rules of res judicata." Schlup, supra at 319. *fn59 Thus, in Doepel, where we considered an appeal from an order denying a § 23-110 motion which raised issues that already had been presented and decided on direct appeal, we declined to revisit the issue absent "special circumstances." Doepel, supra, 510 A.2d at 1045-46. In denying the appeal, we stated that no further review was necessary, expressing confidence that when the prior appellate opinion concluded that the evidence was sufficient to support the first-degree murder conviction, we had of necessity fully considered and rejected the precise issue raised in the subsequent new trial motion, whether there was sufficient evidence of the required elements of deliberation and premeditation in light of Doepel's intoxication and of forcible intercourse. See id. at 1047-48. Although Doepel did not define the "special circumstances" that would permit renewed appellate review, in Peoples, supra note 18, we indicated that "special circumstances might consist of an intervening change in the relevant law." Id. at 702 n.5. (citing Davis v. United States, 417 U.S. 333, 342 (1974)).

The proposition in Doepel and Peoples that a collateral attack may lie in certain limited circumstances even with respect to a claim already decided on direct appeal finds support in federal case law construing 28 U.S.C. § 2255. *fn60 In denying a federal prisoner's habeas petition under § 2255, the court in United States v. Palumbo, 608 F.2d 529, 533 (3d Cir. 1979), held that

in the absence of newly discovered evidence that could not reasonably have been presented at the original trial, a change in applicable law, incompetent prior representation by counsel, or other circumstances indicating that an accused did not receive full and fair consideration of his federal constitutional and statutory claims, a § 2255 petitioner may not relitigate issues that were adjudicated at his original trial and on direct appeal.

(internal footnotes omitted); see also Davis, supra, 417 U.S. at 342 (intervening change in the law); English v. United States, 998 F.2d 609, 613 (8th Cir. 1993) (intervening change in the law or newly-discovered evidence); Morgan v. United States, 438 F.2d 291, 292-93 (5th Cir. 1971) (newly-discovered evidence).

Also instructive is case law interpreting the availability of federal habeas relief from state convictions. As the Supreme Court summarized in Sawyer v. Whitley, 505 U.S. 333 (1992):

"Unless a habeas petitioner shows cause and prejudice, see

Wainwright v. Sykes, 433 U.S. 72 (1977), a court may not reach the merits of: (a) successive claims that raise grounds identical to grounds heard and decided on the merits in a previous petition, Kuhlmann v. Wilson, 477 U.S. 436 (1986); (b) new claims, not previously raised, which constitute an abuse of the writ, McClesky v. Zant, 499 U.S. 467 (1991); or (c) procedurally defaulted claims in which the petitioner failed to follow applicable state procedural rules in raising the claims, Murray v. Carrier, 477 U.S. 478 (1986). These cases are premised on our concerns for the finality of state judgments of conviction and the "significant costs of federal habeas review." McClesky, supra, at 490-491; see, e.g., Engle v. Isaac, 456 U.S. 107, 126-128 (1982)."

Id. at 338. The limitation on successive, abusive or defaulted claims is subject, however, to a narrow "fundamental miscarriage of Justice" exception that allows consideration of otherwise barred constitutional claims if they are coupled with a claim of actual innocence. See id. at 339; Kuhlmann, supra, 477 U.S. at 452; Murray, supra, 477 U.S. at 496; Smith v. Murray, 477 U.S. 527, 537 (1986). *fn61

In Sawyer, the Court established the evidentiary standard required to meet this exception as requiring the petitioner to show "by clear and convincing evidence that, but for constitutional error, no reasonable juror" would have convicted the defendant, or, as in that case, sentenced the petitioner to death. See 505 U.S. at 336. More recently, in Schlup, supra, recognizing that habeas corpus is an equitable inquiry that provides a remedy when required by the "ends of Justice," see 513 U.S. at 319 (quoting Sanders v. United States, 373 U.S. 1, 15-17 (1963)), the Court relaxed the Sawyer test for avoiding a procedural bar to a previously considered constitutional claim when it is augmented by a claim of actual innocence. *fn62 Balancing the state's interest in finality and judicial economy against the individual's interest in relitigating constitutional claims previously held meritless, the Court established that in order to avoid a procedural bar by coming within the "fundamental miscarriage of Justice" exception, a petitioner is required to show that "a constitutional violation probably resulted in the conviction of one who is actually innocent." Id. at 327 (quoting Carrier, supra, 477 U.S. at 496). The "requisite probability" is met by a showing that "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Schlup, supra, 513 U.S. at 327. This is a stronger showing than required to meet the prejudice prong under Strickland v. Washington, 466 U.S. 668, 694 (1984) (requiring a reasonable probability), but less than the "clear and convincing" standard that had originally been required by the Court in Sawyer, supra. See Schlup, supra, 513 U.S 327. The standard is intended to be high enough to "ensure[] that petitioner's claim is truly 'extraordinary,' while still providing petitioner a meaningful avenue by which to avoid a manifest inJustice." Id. (quoting McClesky, supra, 499 U.S. at 494). *fn63

We have the same interest as the federal courts in the finality of judgments and the conservation of judicial resources. See Doepel, supra, 510 A.2d at 1045; Head v. United States, 489 A.2d 450, 451 (D.C. 1985) (requiring a showing of cause and prejudice before a collateral attack will be considered where defendant has failed to raise available challenge on direct appeal). We do not, however, within a unitary court system, have the federalism concerns that cabin the scope of the federal courts' consideration of state claims. We also do not, unlike the federal courts, have legislative restrictions on our authority to hear or rehear habeas petitions. Compare 28 U.S.C. §§ 2244(b) and 2255 (1998) (imposing limitations on consideration of initial, second and successive habeas petitions, see supra note 17), with D.C. Code § 23-110 (e) ("The court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner."). Although we are not confronted with the "quintessential miscarriage of Justice," execution of one who is innocent, see Schlup, supra, 513 U.S. at 324, appellants come before us convicted of the most serious offense in our jurisdiction, first-degree murder, and in a particularly heinous racial context. Cf. Burks, supra, 55 F.3d at 717, (applying Schlup standard to non-capital case); Cornell v. Nix, 119 F.3d 1329, 1334 (8th Cir. 1997) (applying Herrera standard to non-capital case). Finally, in light of the limitation on federal review of judgments of conviction of prisoners sentenced by Superior Court unless § 23-110 relief is deemed to be "inadequate or ineffective," see D.C. Code § 23-110 (g) (1996), *fn64 we should construe the scope of collateral relief in our courts to be "adequate and effective," that is, at a minimum coextensive with the right to habeas relief in the federal courts. See Swain v. Pressley, 430 U.S. 372, 384 (1977); Garris v. Lindsay, 254 U.S. App. D.C. 13, 18, 794 F.2d 722, 727 (1986); Perkins, supra note 24, 881 F. Supp. at 59.

Recognizing the concerns that underlie restrictions on collateral attacks, yet cognizant also of the need to maintain § 23-110 relief available as a procedural vehicle for the very purpose of "enabl[ing] convicted prisoners to escape the shackles of res judicata when constitutional rights have been violated," Kirk, supra, 510 A.2d at 503, I would hold that the standard enunciated by the Supreme Court in Schlup constitutes "special circumstances" under Doepel sufficient to permit a collateral attack under our law even if the collateral attack is premised on an issue previously raised before --and decided by -- this court. *fn65 The record before us supports, as a threshold matter, that appellants' case presents a prima facie case of "special circumstances" as thus defined: a claim of serious constitutional error, supplemented by a compelling claim of actual innocence. Both claims are supported by the presentation of new exculpatory evidence which, if believed, shows it is at least "more likely than not that no reasonable juror would have convicted" Diamen, Sousa and Eastridge of first-degree murder. See Schlup, supra, 513 U.S. at 327. *fn66 Thus, if appellants meet their burden, they would come within the narrow "special circumstances" window recognized in Doepel so that the constitutional claims in their current § 23-110 motion should be addressed even though they already were considered and decided on direct appeal. The issue is not to be decided by us at this juncture; it is a matter to be addressed by the trial court in the first instance after an evidentiary hearing which, for the reasons described in the following section, is necessary for a proper evaluation of the probative value of the newly proffered evidence, in the context of the government's overall case at trial.

Availability of § 23-110 Relief

The Schlup standard adopted herein by definition subsumes the standard that must be met under § 23-110 where the collateral attack, as here, is premised on a "violation of the Constitution." D.C. Code § 23-110 (a) (1); see Chapman v. California, 386 U.S. 18, 24 (1967) (holding that constitutional violation is subject to test of constitutional harmlessness, i.e., whether violation is harmless beyond a reasonable doubt); Artis v. United States, 505 A.2d 52, 55 (D.C. 1986) ("Curtailment of constitutionally-protected cross-examination constitutes harmless constitutional error where it is clear beyond a reasonable doubt (1) that the defendant would have been convicted without the witness' testimony or (2) that the restricted line of inquiry would have weakened the impact of the witness' testimony.") (quoting Springer v. United States, 388 A.2d 846, 856 (D.C. 1978)). Therefore, if appellants come within the higher standard for the "miscarriage of Justice" exception, they are a fortiori entitled to a new trial under § 23-110 (a)(1).

The substance of appellants' constitutional claims is that the trial court's restriction on cross-examination violated their Fifth Amendment due process right to introduce evidence of their innocence by implicating third parties, namely their co-defendants, infringed their Sixth Amendment right to confront and cross-examine witnesses, and breached their right to effective assistance of counsel. The trial transcript is full of examples demonstrating the severe impact of the trial court's ruling. *fn67 Indeed, in denying appellant Eastridge's first § 23-110 motion alleging ineffective assistance of counsel, the trial court concluded that counsel was not ineffective due in part to "the court's severe restriction regarding cross-examination at the trial." See Strickland, supra, 466 U.S. at 686.

A defendant in a criminal trial has a constitutional right to present relevant evidence that another person was the perpetrator of the offense. See Gethers v. United States, 684 A.2d 1266, 1271 (D.C. 1996); Winfield v. United States, 676 A.2d 1, 4-5 (D.C. 1996) (en banc); Johnson v. United States, 552 A.2d 513, 516 (D.C. 1989). With respect to the claimed violation of the right to confrontation, the trial court's limitation on cross-examination, the Court has held that where a line of questioning relating to a witness' bias has been completely foreclosed, the constitutional right to confront witnesses is violated because there has not been a "meaningful" opportunity to cross-examine a witness. See Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986); Stack v. United States, 519 A.2d 147, 151 (D.C. 1986); Lawrence v. United States, 482 A.2d 374, 377 (D.C. 1984). In Jenkins v. United States, 617 A.2d 529 (D.C. 1992), we concluded that even partly foreclosing inquiry into the nature of a witness' bias rose to a constitutional violation. See id. at 533. Here, the complete prohibition during trial on any unconsented questioning that might incriminate a co-defendant hampered cross-examination into bias and undermined appellants' ability to present a defense to a degree that clearly implicates the Fifth and Sixth Amendments.

Against this background, the newly-discovered evidence --which for purposes of this Discussion is assumed to be credible -- takes on added significance because it relates to and aids in the evaluation of appellants' constitutional claim. First, it confirms that the trial court's restriction on cross-examination was of a constitutional dimension. Jones, a co-defendant in the murder trial, now recants the part of his trial testimony where he stated he chased Battle but did not catch him. In a sworn affidavit, Jones admits to chasing, catching and beating Battle and being at the scene when Jennings, Woods and another individual started stabbing Battle. Jones now states that appellants were not present at the scene and that they did not have any knowledge of the stabbing. Under the trial court's ruling restricting cross-examination, however, Jones' new statements could not have been elicited on cross-examination because they would have inculpated Jones. Given the opportunity, appellants' trial counsel could have cross-examined Jones on any number of fronts: his and others' involvement in the chase, the reason why he had blood on his person from the murder victim (while appellants did not) and how he came to be in appellants' car. In addition, absent the restriction on cross-examination, key government witnesses could have been more fully cross-examined about their knowledge of the stabbing. *fn68 The restriction on cross-examination inhibited appellants from developing a defense by presenting evidence that someone else committed the murder, a theory that Jones' affidavit supports. *fn69 See Winfield, supra, 676 A.2d at 4-5.

The affidavits of Richter, Lurz and Grayson contain information that arose after the trial which, if believed, corroborates Jones' affidavit and similarly exculpates appellants. The affidavit of Gianaris corroborates Richter's and Jones' affidavits and adds support to appellants' theory that they were not in the group of individuals chasing Battle. The affidavits attacking the credibility of a key government witness undermine the strength of the government's case at trial. Thus, appellants' substantial constitutional claim, as supported by the new evidence, is appropriate for relief under § 23-110 (a)(1). *fn70

IV.

Hearing on Remand

On remand, at a hearing on the proffered evidence the trial court is to be focused on the actual innocence of the appellants in order to determine whether the proffer made in the form of affidavits brings them within the gateway "miscarriage of Justice" exception. "In assessing the adequacy of the petitioner's showing, therefore, the [trial] court is not bound by the rules of admissibility that would govern at trial." Schlup, supra, 513 U.S. at 327. *fn71 Relevant evidence that was excluded or unavailable at trial should be considered. *fn72 Id. The appellants' burden on remand is not to persuade the trial court that the available evidence, if credited, could raise a reasonable doubt in the mind of a reasonable juror, but that a reasonable juror, faced with the newly-available evidence, probably would not have found them guilty beyond a reasonable doubt. See id. at 329. In making that determination, the trial court may need to make some preliminary credibility determinations, see id. at 330, and assess the probative force of the newly-presented evidence in connection with the evidence of guilt addressed at trial." Id. at 332; see supra note 7.

I turn, therefore, to address the trial court's decision to deny the § 23-110 motion without holding an evidentiary hearing. Section 23-110 (c) mandates a hearing "[u]nless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." We have previously stated that "[t]here is a presumption that a trial court presented with a § 23-110 motion should conduct a hearing. 'Because § 23-110 is virtually a remedy of last resort, any question whether a hearing is appropriate should be resolved in the affirmative.'" Gaston v. United States, 535 A.2d 893, 900-01 (D.C. 1988) (quoting Miller v. United States, 479 A.2d 862, 869 (D.C. 1984)). This presumption can be overcome only when the trial court concludes that "'under no circumstances could the petitioner establish facts warranting relief.'" Ramsey v. United States, 569 A.2d 142, 147 (D.C. 1990) (quoting Fontaine v. United States, 411 U.S. 213, 215 (1973)). There are three categories of allegations that do not warrant a hearing: "(1) vague and conclusory allegations, (2) palpably incredible claims, and (3) assertions that would not merit relief even if true." Ramsey, supra, 569 A.2d 142, 147; see Pettaway v. United States, 390 A.2d 981, 984 (D.C. 1978).

The trial court's denial of a hearing was based on its belief that appellants' motion was

exclusively based on the incredible affidavit of Jones, the vague observations of Gianaris, and the conclusory affidavits of other persons whose testimony, even if accepted, would only impeach the Government's witness, Willetts. Additionally, the constitutional claims which Defendants present are wholly without merit and do not state a factual basis which would necessitate an evidentiary hearing.

In this context, appellants' constitutional claims cannot be said to be "wholly without merit." To the contrary, their claims of constitutional deprivation would appear to be meritorious unless decided to be harmless beyond a reasonable doubt -- an impossible Conclusion if appellants' new evidence is credible.

The trial court also erred in determining that the affidavits were incredible, vague and conclusory without first holding an evidentiary hearing. Chief Judge Moultrie presided over the trial in 1976 and entertained Eastridge's and Diamen's earlier collateral attacks. The trial Judge ruling on the current § 23-110 motion, however, did not have the benefit of hearing the testimony at trial and weighing the credibility of the various witnesses, particularly Jones. See Gaston, supra, 535 A.2d at 900 (holding that the lack of a § 23-110 hearing was "especially significant" when trial Judge reviewing the petition was not the presiding Judge at the sentencing). In its order denying a hearing, the trial court relied to a large extent on Chief Judge Moultrie's previous rulings on Eastridge's and Diamen's § 23-110 motions and this court's affirmance of those rulings. But see Pettaway, supra, 390 A.2d at 986 (noting that strict principles of res judicata do not apply in proceedings under § 23-110 (e)). For example, the trial court's determination that Jones' recantation contained in his affidavit was incredible was based in part on Chief Judge Moultrie's earlier determination in Eastridge's first collateral attack and this court's subsequent affirmance. Although the substance of Jones' recantation is substantially the same, the form of the recantation is different in a significant way. Chief Judge Moultrie had discounted the information presented in the earlier collateral attack because it was in the form of hearsay statements recounted in the affidavit of a defense investigator. In contrast, the information now being presented to the court is in the form of an affidavit signed by Jones himself. The trial court's concerns about the veracity of Jones' hearsay statements in the earlier submission *fn73 are mitigated by Jones' apparent willingness at this time to risk prosecution for perjury committed at trial. Presented with these different circumstances, the trial court's reliance on former determinations of credibility was unfounded, especially when it has never had an opportunity to hear Jones' testimony. The trial court also discredited Jones' affidavit because his affiliation with the Pagans was evidence of bias and because Jones implicated individuals who are now deceased. While these are factors to be considered in evaluating Jones' credibility, cf. Schlup, supra, 513 U.S. at 308 n.18, they do not establish that Jones' recantation is so palpably incredible that it does not warrant the hearing presumptively required by statute. See Wright v. United States, 608 A.2d 763, 766 (D.C. 1992) (remanding for a hearing because claim was not palpably incredible).

The trial court dismissed the Gianaris affidavit as too vague. Commenting on the substance of the affidavit, the trial court stated that Gianaris' statement, "I do not believe I saw more than four white men [attack Battle]" was "vague and not convincing." The trial court concluded that Gianaris' statement was too indefinite to overcome the jury verdict, and to meet the "extraordinary high standard of actual innocence," under Herrera. First, as discussed earlier, see supra note 4, the Herrera standard for a free-standing claim of actual innocence is higher than is required where, as here, a claim of actual innocence supplements a claimed constitutional violation. See Schlup, supra, 513 U.S. at 316. Second, while Gianaris' statement does not identify or pinpoint the exact number of individuals involved in the murder, when viewed in the context of the other affidavits stating that only four individuals -- Woods, Jones, Jennings and another unidentified person --attacked Battle, Gianaris' affidavit does support appellants' failed attempt at trial to show that they were not among the chasers or attackers. *fn74 In his affidavit Gianaris also expressly states that he did not see a car arrive during or after the murder. Gianaris' affidavit is neither so vague nor so conclusory on its face as to make an evidentiary hearing unnecessary. Cf. Pettaway, supra, 390 A.2d at 985 (statements too vague and conclusory to warrant hearing). The trial court also questioned Gianaris' credibility because he waited almost twenty years before disclosing what he saw on the night of the murder. Determinations of an affiant's credibility, motive or bias can only be resolved after the benefit of live testimony. See Rice v. United States, 580 A.2d 119, 123 & n.7 (D.C. 1990) (finding no grounds for rejecting the credibility of witnesses based solely on their written statements). There is no reason evident on the record before us for Gianaris to fabricate the information he provides in his affidavit. On the other hand, it is easy to conceive of reasons why an eyewitness bystander would be reluctant to come forward in a racially-tainted murder involving members of a motorcycle gang. Gianaris' reasons for waiting twenty years to disclose what he knew about the murder of Johnnie Battle are best aired at an evidentiary hearing.

The trial court did not specifically address the substance of the affidavits signed by Richter, Lurz and Grayson when it denied appellants' request for an evidentiary hearing. Rather, the trial court rejected their affidavits as biased because of the affiants' membership in the Pagans and because the information contained in the affidavits was hearsay. As already discussed, whether the affidavits would be admissible at trial is not dispositive for purposes of the gateway inquiry into actual innocence. *fn75 While affiants' membership in the Pagans raises concern regarding their bias, this is not by itself, and without a hearing, sufficient reason to reject the affidavits as "palpably incredible" on their face. The credibility of their statements -- including the fact that they exculpate appellants at the expense of two other former Pagans who are now deceased -- must be tested at an evidentiary hearing.

V.

Appellants requested access to grand jury testimony and other discovery in an effort to find out more information about the events surrounding the murder. *fn76 The trial court denied appellants' request because the request was not narrowly tailored and appellants' need for the grand jury testimony did not outweigh the need for its secrecy. Appellants contend, based on the new information brought to light by Centurion Ministries, that the government has information that will help them prove their innocence at a § 23-110 hearing. The government denies that it has any exculpatory information and argues that appellants' request is not sufficiently narrowly tailored.

Generally, Super. Ct. Crim. R. 6 (e)(2) prohibits disclosure of "matters occurring before a grand jury." Rule 6 (e)(3)(C)(i), however, creates an exception to the general rule by allowing the trial court to order disclosure of grand jury testimony when there has been a "strong showing of particularized need." Law v. United States, 488 A.2d 914, 916 (D.C. 1985) (quoting United States v. Sells Eng'g, Inc., 463 U.S. 418, 434 (1983)). In addition, the party moving for disclosure must show that "(1) the material he seeks is needed to avoid a possible inJustice in another judicial proceeding; (2) the need for disclosure is greater than the need for continued secrecy; and (3) the request is structured to cover only needed materials." Id. Whether to order disclosure is within the trial court's discretion. See id.

Appellants argue that the policies underlying the secrecy of grand jury testimony are no longer applicable in this case. These policies have been articulated as follows:

"(1) [t]o prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberation, and to prevent persons subject to indictments or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt."

Davis v. United States, 641 A.2d 484, 488 (D.C. 1994) (quoting United States v. Proctor & Gamble Co., 356 U.S. 677, 681-82 n.6 (1958) (in turn quoting United States v. Rose, 215 F.2d 617, 628-29 (3d Cir. 1954))). Against these policies, the need for secrecy is not compelling in this case, where more than twenty years have lapsed since the deliberations of the grand jury, certain individuals have consented to the release of their grand jury testimony, and other witnesses have died. Further, to the extent that the requested grand jury testimony assists sufficiently in establishing appellants' innocence to reopen the case, it is necessary in order to avoid a possible inJustice.

While decisions to deny post-trial discovery are within the trial court's discretion, we have previously stated that "the trial court must not act 'arbitrarily or willfully but with regard to what is right and equitable under the circumstances and the law, and directed by the reason and conscience of the Judge to a just result.'" Gibson v. United States, 566 A.2d 473, 478 (D.C. 1989) (quoting Johnson v. United States, 398 A.2d 354, 361 (D.C. 1979)). This court, when reviewing a trial court's decision denying access to post-trial discovery, "need not be reticent to declare that a trial court's determination constitutes an erroneous exercise of discretion." *fn77 Id. at 479 (quoting Johnson, supra, 398 A.2d at 366 n.9). Considering the new evidence in the context of the appellants' claims of actual innocence and their constitutional claims, it is in the interest of Justice that appellants' reasonable discovery requests be allowed so that the trial court may have the benefit of all relevant evidence when considering appellants' § 23-110 motion on remand. If, after taking all the available evidence into account, the trial court determines that appellants' motion brings them within the "special circumstances" exception, as established here, their convictions must be vacated because they are entitled to a new trial.


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