Beyond Bullets: Why Lee Wayne Hunt Deserves A New Trial

Many of you may have recently heard about the case of Lee Wayne Hunt on 60 Minutes in connection with the report on the FBI's use of misleading and unreliable comparative bullet-lead analyses.  As the story noted, despite the fact that this unreliable analysis constituted the sole forensic evidence against Hunt, he was denied a new trial earlier this year.  This seems like a severe miscarriage of justice to me, but I'm actually more interested in another part of the story.  Here are the basic facts:

Lee Wayne Hunt is in the midst of serving two life sentences plus 20 years for murdering Lisa and Roland "Tadpole" Matthews.  Jerry Cashwell was Hunt's co-defendant in the 1986 trial for the murders.  In 2004, Staples Hughes, the state's appellate defender, revealed that Cashwell, one of his former clients who had since committed suicide, confessed 20 years ago that Hunt was not involved in the murders and that he was the sole killer of the Matthews. 

Earlier this year, based upon the unreliability of the bullet-lead analysis and Hughes' affidavit concerning Cashwell's confession, Hunt moved for a new trial.  Superior Court Judge Jack Thompson not only denied Hunt's request, but also found that Cashwell could be sanctioned for violating the attorney-client privilege.  With regard to Hughes' affidavit, Judge Thompson held that it constituted inadmissible hearsay; the statement would have to come straight from Cashwell to be admitted.  In August, the case was reviewed by the North Carolina Court of Appeals, which rejected Hunt's motion without comment.  Hunt now plans to appeal to the North Carolina Supreme Court.

First, it is not at all clear that Judge Thompson's ruling was correct.  Pursuant to North Carolina Rule of Evidence 804(b)(3), when the declarant is unavailable to testify, there is an exception to the rule against hearsay when the declarant makes a "statement which at the time of its making...so far tended to subject him to...criminal liability...that a reasonable man in his position would not have made the statement unless he believed it to be true."  Here, obviously Cashwell is now dead and unavailable to testify, and his statement certainly exposed him to criminal liability for murder. 

The potential problem, however, is that a statement tending to expose the declarant to criminal liability under North Carolina Rule of Evidence 804(b)(3) is inadmissible "unless corroborating circumstances clearly indicate the trustworthiness of the statement."  Here, without the benefit of a written ruling from Judge Thompson, it is difficult to say whether there were sufficient corroborating circumstances, although the fact that there was no reliable forensic evidence implicating Hunt seems to corroborate Cashwell's statement.

Second, while I'm not sure whether Hunt's attorney raised the issue, Hunt has a great argument under the authority of Chambers v. Mississippi, 410 U.S. 284 (1973).  In Chambers v. Mississippi, the Supreme Court found that a state cannot apply its evidence laws in a manner that denies a criminal defendant a fair trial in accord with traditional and fundamental standards of due process.  Thus, for instance, in Morales v. Portuondo, 154 F.Supp.2d 706 (S.D.N.Y. 2001), co-defendants were convicted of murder, and the court relied upon Chambers v. Mississippi in allowing an attorney to testify that his now deceased former client confessed to the murder, despite the statement being covered by the attorney-client privilege.  In finding that the confession was admissible, the court noted that the former client had been dead for four years and that two apparently innocent men had spent thirteen years in prison.  Stories state that Cashwell committed suicide in either 2002 or 2003.  Hunt has been in prison for over 20 years.

-CM