DRAWING TOO FINE A LINE IN APPEAL FOR WRONGFUL CONVICTION

I find it hard to swallow that the 5th Circuit could not find any wiggle room to give this man a new trial. Justice cries out for a new trial when there is substantial doubt about the conviction for which he is serving a life term.

JOHN KINSEL, CLAIMING WRONGFUL CONVICTION, IS DENIED NEW TRIAL: “OUR HANDS ARE TIED”, SAYS APPEALS COURT
By Mandy Oaklander

Houston Press Hair Balls
July 26, 2011

A few months ago, we wrote a cover story about John Kinsel, a Texas man sentenced in Louisiana to life without parole for the rape of his girlfriend's live-in daughter. That girl, 9-year-old Alyssa Medlin, testified that Kinsel had raped her anally and vaginally for years.

Years later as an adult, Medlin recanted and said she made the whole thing up. Since then, Kinsel has been fighting for his release from Angola Prison -- or at very least, for a new trial. He was granted one in 2006, when a judge ruled that without Medlin's testimony, there was no case. The state appealed, saying that she was more credible as a child than as an adult. The Fifth Circuit upheld the appeal, but Kinsel's lawyer Autumn Town was granted a rare oral argument in front of the court. Only 12 percent of such requests are granted.

A few days ago, Kinsel received a long-awaited decision from the Fifth Circuit Court of Appeals: there's nothing they can do.

Kinsel couldn't prove, the judges wrote in the 14-page opinion, that he had undergone any constitutional violations. "The state court's decision must have been more than incorrect or erroneous," said the opinion. "The state court's application must have been 'objectively unreasonable.'" But it's hard to call any application in this case "objectively unreasonable", since Medlin at one point or another testified to both sides.

Another way to gain relief would be to prove that the state used perjured testimony to get a conviction. In some circuits, it's a violation to use perjured testimony even when the government doesn't know it's perjured. This would almost certainly apply in Kinsel's case, but in the Fifth Circuit, prosecutors are only at fault if they know the testimony is perjured. Although witnesses for the defendant questioned the veracity of Medlin's testimony at the time, the prosecutors never budged.

Basically, since Kinsel couldn't effectively prove that his conviction was obtained by violating the Constitution, there's nothing the Fifth Circuit could do -- even though it acknowledges that if Kinsel were to get a new trial, he probably would not be determined guilty.

The opinion closes thus: It is beyond regrettable that a possibly innocent man will not receive a new trial in the face of the preposterously unreliable testimony of the victim and sole eyewitness to the crime for which he was convicted. But our hands are tied by the AEDPA [Antiterrorism and Effective Death Penalty Act], preventing our review of Kinsel's attack on his Louisiana postconviction proceedings, so we dutifully dismiss his claim.

Kinsel's sister, Alice Wilkinson, said that last line broke her heart. "It makes them sound like they believe he's innocent," she said.

Kinsel's final course of action is to appeal to the U.S. Supreme Court, which he and his lawyer plan to do. Town was not available to comment.

Said Wilkinson, "It's just all crazy if you ask me. I think they should just let him come home."