United States District Court, D. South Dakota, Southern Division
Lawrence L. Piersol, United States District Judge
has moved for a new trial. The trial court "must first
determine whether the newly discovered evidence is
credible," United States v. Grey Bear, 116 F.3d
349, 350 (8th Cir. 1997). In making the preliminary
credibility determination, the question "is not whether
the district judge believes the recantation, but how likely a
district judge thinks that a jury at a second trial would be
to believe it." United States v. Papajohn, 212
F.3d 1112, 1119 (8th Cir. 2000).
Court considers the positions of Dr. Adams and Dr. Ophoven to
be newly discovered evidence. The Court does not consider the
positions of proposed witnesses Kamala, Bruck, and Wakefield
to be newly discovered evidence. Their positions contain
updated information but not newly discovered evidence as
opposed to the trial positions of Petitioners.
Court must consider the requirements for a new trial as
discussed in Grey Bear and Popajohn.
Motions for new trial, especially when a recantation is
involved, are difficult to win. "Motions for new trial
based upon the alleged recantation of a material witness
should be viewed with disfavor...." United States v.
Coleman, 460 F.2d 1038, 1040 (8th Cir. 1972) (per
curiam). It is easy to understand why this should be so. The
trial is the main event in the criminal process. The
witnesses are there, they are sworn, they are subject to
cross-examination, and the jury determines whether to believe
them. The stability and finality of verdicts would be greatly
disturbed if courts were too ready to entertain testimony
from witnesses who have changed their minds, or who claim to
have lied at the trial.
The requirements that a motion for new trial based on newly
discovered evidence must meet are stringent in other ways, as
well. Most important for present purposes is the requirement
that the newly discovered evidence "must be of such a
nature that, on a new trial, [it] ... would probably produce
an acquittal." LaFuente, supra, 991 F.2d at
1408. It is the job of the district court, either on
affidavits or after an evidentiary hearing (as was the case
here), to decide whether the newly discovered evidence is
credible, see Coleman, supra, 460 F.2d at 1040, and,
if so, whether it would probably produce an acquittal if a
new trial were held.
Papajohn at 350.
preliminary matter the Court has determined that the proposed
testimony of the medical Doctors Joyce A. Adams and Janice
Ophoven is credible. The Court also believes that a jury
would find the testimony of those medical doctors to be
credible. As for the recantations by four of the victims, the
Court must determine how likely a jury at the second trial
would believe the recantations. The testimony of medical
doctors that support the Petitioner lends some support to the
credibility of the recanting victim witnesses. One of the
victims, Fury Rouse, was too young at the time of the abuse,
20 months, to testify so she is not involved in the
Court knows what Dr. Kaplan's testimony will be if it
were read at the second trial since Dr. Kaplan is deceased
and his testimony would be admissible under Federal Rule of
Evidence 804. The testimony of the four victims who testified
at the first trial would also be admitted into evidence. Dr.
Ferrell is available to give testimony again if there were a
Petitioner has requested the taking of the discovery
deposition of Dr. Ferrell. In viewing this request, the Court
by comparison has the written position from the two medical
doctors that support the Petitioner's position. The Court
does not know what the testimony of Dr. Ferrell would be in a
Court must make a determination that newly discovered
evidence from the Petitioner must be such of a nature that in
a new trial it would probably produce an acquittal. In making
that determination, the Court would be assisted in knowing
Dr. Ferrell's current position in this matter.
Accordingly, the Court directs that the United States present
an Affidavit from Dr. Farrell which fully sets forth Dr.
Ferrell's current position in this matter. The Court
considers this to be the equivalent of the reports of Dr.
Adams and Dr. Ophoven, even though their reports are not in
affidavit form. The affidavit shall be provided within
forty-five (45) days from the date of this Order.
Petitioner Russell Hubbeling's Motion to Compel
Deposition of Dr. Robert Ferrell, Doc. 43, is denied.
within forty-five (45) days from the date of this Order the
United States shall file an Affidavit from Dr. Ferrell which