Victim's recant not enough to toss attempted murder conviction, Ohio Supreme Court rules

COLUMBUS, Ohio (WCMH) – A victim walking back his testimony years after it led to a man’s attempted murder conviction is not enough to overturn that conviction, the Ohio Supreme Court has decided.

In an opinion split along party lines, the top court on Thursday denied a man’s attempt to vacate his attempted murder conviction, ruling that the victim’s formal recantation of his testimony identifying the defendant was too little, too late, considering the defendant’s previous appeals. In so ruling, the court resolved a yearslong dispute among Ohio’s lower courts about whether sworn, dated affidavits from witnesses recanting their testimony are sufficient to satisfy state laws that limit when defendants can appeal for postconviction relief.

Under Ohio law, those convicted of crimes can usually only file one appeal for postconviction relief, typically within a year of the conviction. Subsequent appeals could be considered only if the defendant demonstrates two things: He was “unavoidably prevented” from discovering the facts relevant to his appeal, and constitutional errors at trial led to his conviction. 

Eric Johnson was convicted in 2013 on attempted murder and other charges for the shooting and robbery of a man in Cleveland. The victim, who identified Johnson from a photo lineup, was the key witness in the state’s case – and his testimony was the main evidence linking Johnson to the crime.

Johnson was sentenced to 21 years in prison. He previously appealed his conviction twice, once within a year of the conviction and again in 2017. The Cuyahoga County court denied both attempts without a hearing, and an appellate court upheld both denials.

But when Johnson appealed his conviction a third time in 2020, he included a signed affidavit from the victim saying he felt pressured by detectives to testify against Johnson. In fact, he wrote, he wasn’t sure at all who shot him.

“I have spent the past seven years thinking about this case and my testimony,” the victim, James Keith, wrote. “On a daily basis I have felt an incredible weight on my shoulders because I believe I have identified the wrong person as having committed the crimes against me.”

Johnson’s attorneys argued that a 2022 Supreme Court ruling shifted the burden onto the state to prove that the defendant could have raised the claim sooner, something that should happen during a hearing. The Cuyahoga County prosecutor, meanwhile, argued that Johnson needed more evidence that he couldn’t have known about the victim’s uncertainty until years after his conviction.

In his opinion, Justice Joe Deters wrote that Johnson satisfied neither of the requirements for the court to consider an untimely, successive appeal. The fact that the victim did not come forward with his recantation until 2020 did not mean Johnson was unavoidably prevented from knowing it, Deters ruled.

Johnson’s appeal did not include other relevant information, including when the victim first notified Johnson of his uncertainty and which party first contacted the other. Deters said that information is essential to satisfy the prerequisites for the court to even have jurisdiction over the case, let alone hold a hearing.

“The light that an affidavit’s date sheds on that issue is dim, at best,” Deters, a longtime prosecutor, wrote. “A date merely reveals when the affidavit was executed or provided, not when the testimony it contains becomes available.”

Further, Deters wrote, perjury at trial only violates a defendant’s due process rights when the prosecution knowingly uses false testimony. Johnson’s appeal did not explicitly raise such a claim, nor did it provide evidence supporting that claim.

Justice Michael Donnelly, joined by his two fellow Democratic justices, wrote in a dissent that he “might agree” that a dated recantation does not, by itself, satisfy the requirements to accept such an appeal. But he argued that in Johnson’s case, such a declaration should. There was no physical evidence linking Johnson to the crime, Donnelly pointed out, and the key evidence against him was being called into question. 

Eyewitness identifications are notoriously uncertain, Donnelly wrote, and a body of research shows that they contribute significantly to false convictions. It could be “dangerous” to require more of defendants than what Johnson already demonstrated, he argued.

“When the crucible of cross-examination and the penalties for perjury were not enough to convince a witness to testify truthfully and accurately at trial, it is unreasonable to expect the defendant to extract a different result from the witness after trial,” Donnelly wrote.

Read the full opinion below.