Spoiler Alert! Spoilers for “The Staircase” ahead.
Chapter 9: Reopening the Case
A Second Chance, A Second Trial.
We knew during the trial that Deaver was essentially making it up as he went along. His “experiments” were a joke, and his opinions were not consistent with what other blood spatter experts had written in articles and books or testified to in other cases.
But when an expert is willing to flat-out lie about the blood spatter even after being confronted with photos of the scene, to deny the validity of what other experts have agreed upon, and to “disagree” with whatever articles and books on blood spatter interpretation he is shown, it’s hard to prove he is lying, as opposed to simply providing a conflicting “expert opinion.”
The developments regarding Deaver’s history of lying and concealing evidence to help the prosecution, which surfaced in 2009 and 2010, gave me hope that we might be able to get Michael’s conviction overturned. We filed a motion seeking a new trial and asked for an evidentiary hearing, which Judge Hudson granted.
Despite Candace’s attempt to delay the hearing by attacking the new Durham DA, and the subsequent bomb threat (which we all believed had been called in by Candace after the judge denied her request to delay the hearing), the hearing began on December 7, 2011, Pearl Harbor Day.
Of course, at that hearing we had to establish that Deaver’s testimony had been a critical part of the prosecution’s case in 2003. Otherwise, even if we proved he had lied, that could be deemed “harmless error.” Fortunately, because the French film crew had videotaped all of the trial, there was a full record of what occurred – a full video record. I requested a copy of their videotape, then went back through the trial transcript, identified the key testimony and arguments by Deaver, Hardin and Black, and then made video clips of these to show to Judge Hudson during the hearing.
Before I reviewed the transcript again preparing for the 2011 hearing, I had completely forgotten that Hardin argued in closing that Deaver’s testimony was “critical” to his case because it established there had been a “second attack,” and that the second attack is what proved “premeditation.” This was pure gold for us – Michael had been charged with and convicted of first degree murder. That verdict required the jury to find premeditation. Hardin’s own closing therefore established that Deaver’s testimony was critical to Michael’s conviction.
We were also able to show the new experts we hired for the hearing the video clips of Deaver’s testimony and have them comment on what he had claimed under oath. The fact that we could thereby “bring” Judge Hudson back to the courtroom in 2003, so he could see and hear Deaver lie to him and the jury, was much more powerful than simply showing him the cold written transcript. Deaver’s tone and mannerisms amplified his false opinions.
In short, I sincerely believe being able to show Judge Hudson those clips was critically important to getting Michael a new trial. It turned out that Michael’s initial instinct in 2002 had been correct. Agreeing to the documentary had prevented a total miscarriage of justice, although it did not prevent Deaver and the prosecution from depriving Michael of eight years of his life.