¶1specially concurring.
¶2{39} I fully concur in both the reasoning and the result of the majority opinion. I write to emphasize what a close ease this is and to clarify what more could have been done to support the petition for habeas corpus relief.
¶3{40} Jeremy’s recantation did undermine the evidence presented by the State at the original trial. And, as the majority notes, sometimes such a recantation will be enough to warrant habeas relief. Supra, ¶ 36. However, in this case, the determining factor was to what degree the recantation undermined the evidence. In other words, what weight should we give a recantation when the person giving it had colluded to lie under oath several times prior to the recantation?
¶4{41} I agree with the majority that because of this history the recantation, along with Petitioner’s testimony that he had lied as well, was not enough to establish by clear and convincing evidence that no reasonable juror could convict the Petitioner of the crimes for which he was found guilty. The majority of the evidence presented by Petitioner at his habeas hearing came from two individuals who apparently, if their story is to be believed, agreed to lie, got other people to agree to lie for them, then did in fact lie under oath, multiple times. It should be obvious why such evidence is questionable.
¶5{42} Supposing, however, that Jeremy is telling the truth, is there no way to amass sufficient evidence that might persuade a court? I believe there might be. To do so, the parties must present as much evidence as is available and explain what is not available. This is especially true when some of the evidence is not as strong, such as testimony from a person known to lie under oath. The troubling thing to me is that, according to Jeremy and Petitioner’s latest version of the story, such supporting evidence should not have been difficult to produce. For example, Petitioner could have presented his other brother, Jason, to testify that he was with Petitioner at the apartment when Jeremy was missing. Another friend of Petitioner and Jeremy, Darius Jones, allegedly saw Petitioner at Jason’s apartment when Jeremy was missing. Apparently the twin’s uncle saw Petitioner with Jason when the two were searching for Jeremy. Why were none of these witnesses called to testify so as to bolster Jeremy’s recantation and provide some undercurrent of credibility? The testimony of any one of them, or better yet all of them, would have strengthened Petitioner’s claim. And then there are the eye-witnesses to the shooting who identified Petitioner at trial as the shooter. Perhaps one or more might be persuaded by Jeremy’s recantation that they might have been mistaken in that identification. To date, however, we have no explanation for the absence of any such testimony.
¶6{43} This Court understands the importance of ensuring that innocent people, wrongly convicted, have an opportunity to present their case. But we must also be mindful of the role of the jury in our system of justice. The majority opinion strikes this balance well by utilizing a clear-and-convincing-evidence standard. In this case, Petitioner just failed to meet his burden. But that is not to say that he might not be able to meet his burden in the future.