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Federal Court of Appeals Fails to Grant New Trial When “possibly Innocent Man” Gets Life Sentence Based on “preposterously Unreliable Testimony of Sole Witness”

Kish Law LLC

We practice quite a bit in the federal appeals courts. The federal courts are often where injustices are fixed when a wrongly convicted person gets post-conviction relief by the granting of a writ of habeas corpus. However, a recent decision by the United States Court of Appeals for the Fifth Circuit shows that on occasion the the federal appellate courts simply get it wrong. In a case where the court conceded that the testimony of the “sole witness” to the supposed crime was “preposterously unreliable”, the Fifth Circuit nevertheless affirmed the conviction and life sentence by applying the Byzantine and almost impossible-to-satisfy requirements of federal post-conviction practice. The case is Kinsel v. Cain.

Mr. Kinsel’s then 10-year old step daughter accused him of sexual abuse. No one else witnessed the supposed incident. The mother of the child did not believe her own daughter, and other family members explained that what the 10-year old claimed was physically impossible in that Mr. Kinsel was not in the house. Despite such testimony, Mr. Kinsel was convicted and given a LIFE SENTENCE.

Eight years later, the step-daughter, now living across the country, called the prosecutors to recant her trial testimony. Kinsel asked for a new trial, which was granted. Undaunted, the prosecutors decided to appeal, and got the new trial reversed. After many more years of plowing through the almost-insurmountable hurdles of federal post-conviction practice, the matter landed in the lap of three judges on the Fifth Circuit.

Readers can assess for themselves whether the appellate judges properly applied the law. What is uncontroverted is that these same judges recognized that an injustice had occurred, yet they were unwilling to do anything about it. They concluded their lengthy opinion with the following. “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, preventing our review of Kinsel’s attack on his Louisiana postconviction proceedings, so we dutifully dismiss his claim.”

Our criminal justice system works pretty well, most of the time. However, there are cases such as Mr. Kinsel’s which make me wonder how some judges and prosecutors are able to sleep at night.

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