Metropolitan News-Enterprise


Wednesday, August 20, 2014


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Court: Witness Recantations Inadequate to Prove ‘Actual Innocence’




A woman’s recantation of testimony that her older brother sexually abused her as a child is not enough to prove him innocent, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel overturned a district judge’s order granting Scott Jones a writ of habeas corpus on the ground of “actual innocence.”

Jones was convicted in 2003 of sexually penetrating his sister with his finger on multiple occasions when she was 9 years old and he was 17. He was sentenced to nearly 15 years in prison.

The sister, identified in the opinion only as S.J., testified about the abuse at his trial. That testimony was consistent with statements she had previously given to a mental health counselor and a detective.

Ken Jones, the children’s father, and their sister, Jennifer Pond, also testified that Jones admitted to them that he penetrated S.J.

At a hearing more than a decade later, all three recanted their testimony.

Conservative Upbringing

S.J. claimed that her conservative upbringing kept her from even understanding what the word “vagina” meant, or that she had an inside area capable of penetration. She said that Jones did not penetrate her vagina, but only touched it.

The defendant, who did not testify at trial, said the same thing.

Ken Jones and Pond testified before U.S. District Judge Robert E. Jones that Scott Jones did not actually say he had penetrated his sister, but only said “I admit the whole thing.” At the time, they said, they took it as an admission of incest, but later came to understand he was referring to a burglary.

Judge Jones found S.J.’s testimony credible, Ken Jones’ credible in part, and Pond’s irrelevant, and granted relief.

But Senior Judge A. Wallace Tashima said the petition should have been denied.

“We cannot say that Jones has demonstrated that he is probably innocent,” Tashima wrote.

Open Issue

The judge noted that it is an open issue in the circuit as to whether a petitioner may even assert a “freestanding” claim of actual innocence, as opposed to raising it as a “gateway” to a due process or other constitutional procedural claim, on habeas corpus in a non-capital case.

But assuming that Jones may raise it, the claim fails on the merits, the judge said.

Recantation is a form of proof which is highly suspect, and difficult to confirm or refute, given that memory fades over time and witness’ motives often change, the judge said.

“The District Court stated that it credited Ken Jones’ testimony, but also noted that it was apparent from the record that his motivation for recanting was his naive belief that Jones could not have digitally penetrated S.J.’s vagina because a subsequent physical examination demonstrated that S.J.’s hymen was intact,” Tashima said.

The district judge, he noted, described the father as “imposing and controlling.”

“In other words, we cannot assess why the district court found S.J.’s testimony credible despite the possibility, which it recognized, that her father pressured her into recanting,” Tashima said, explaining that the appellate panel was not bound by the district judge’s factual findings and applied a de novo standard in finding actual innocence.

Unreliable Evidence

Recantations by family members are considered particularly unreliable, he said, given that family members often have a greater personal stake in a defendant’s exoneration. He also found it suspect that all three witnesses changed their story at the same time.

While S.J.’s recantation is the most compelling, Tashima said, even her recantation is not “sufficient to establish Jones’ probable innocence because we cannot say that every juror would credit her recantation testimony over her trial testimony and the descriptions of the abuse she gave in her 2000 and 2002 interviews, even if they believed that she testified truthfully to the best of her present recollection at the evidentiary hearing.” 

Senior Judge Arthur L. Alarcón and Judge Sandra S. Ikuta concurred in the opinion.

The case is Jones v. Taylor, 13-36202.


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