April 28, 2014 Articles

The Man in the Red Bandana: The Case of Eugene Gilyard

The Pennsylvania Innocence Project frees a man 15 years after a wrongful conviction.

By Charlotte Whitmore and Shaina A. Tyler

Pennsylvania courts are notoriously hostile to actual-innocence claims. The state’s habeas proceedings, under the Post-Conviction Relief Act (PCRA), 42 Pa. Cons. Stat. Ann. §§ 9541–46; 234 Pa. R. Crim. P. 902, allow for only one post-conviction hearing, which must be done within a year of the conviction becoming final, that is, a year after a direct appeal was filed and denied. Commonwealth v. Pursell, 749 A.2d 911 (Pa. 2000). If a defendant misses that deadline, the court has no jurisdiction, with three exceptions: (1) discovery of new facts that were unknown and could not have been discovered earlier with the exercise of due diligence; (2) government interference with the defendant’s ability to raise the claims earlier; or (3) a change in state or federal constitutional law that has been applied retroactively. 42 Pa. Cons. Stat. Ann. § 9545(b); Commonwealth v. Fahy, 737 A.3d 214 (Pa. 1999). There is no equitable-tolling provision; the time limits are jurisdictional. Moreover, the petition must be filed within 60 days of the time the claim “could have been presented.” Miss by even a day and the court will not entertain the claims, no matter how convincing the evidence that the petitioner did not commit the crime.

Even assuming a defendant passes this jurisdictional time-bar, he or she still must plead a cognizable claim. First, the defendant must show that his or her conviction resulted in a “manifest injustice.” Commonwealth v. Lawson, 549 A.2d 107 (Pa. 1988). Only if the defendant shows that may he or she attempt to have the conviction overturned, by showing, among other factors, that exculpatory evidence, unavailable at the time of trial, would have changed the outcome had it been introduced. 42 Pa. Cons. Stat. Ann. § 9543(a)(2). The linchpin in any facially untimely PCRA petition is a showing that the petitioner acted with “due diligence.” For example, under Pennsylvania law, if information is available anywhere in the public arena, the petitioner will be held to when it became available, not when he or she first learned of it. Commonwealth v. Chester, 895 A.2d 520 (Pa. 2006) (defendant should have known of trial counsel’s arrest for DUI because it was of public record); Commonwealth v. Taylor, 933 A.2d 1035 (Pa. Super. Ct. 2007) (arrest warrant matter of public record). Similarly, even where a petitioner has been incarcerated without access to counsel, an investigator, or funds, he or she must “explain” why he or she could not obtain the information sooner. Commonwealth v. Padillas, 997 A.2d 356, 363 (Pa. Super. Ct. 2011) (“A defendant who fails to question or investigate an obvious, available source of information, cannot later claim evidence from that source constitutes newly discovered evidence.”). To say that the road is difficult is the utmost understatement.

Soon after the Pennsylvania Innocence Project opened its doors in April 2009, it received a letter from Eugene Gilyard, incarcerated for 13 years for a murder he said he did not commit and, moreover, with which he was not involved. Gilyard was known as “the man in the red bandana” because at his trial, the sole eyewitness who identified him testified that he had worn a red bandana on the night of the murder. That witness was the victim’s daughter, and her testimony was the sole evidence against him. Just over three years after he wrote to the project, he became known as its first exonerated client.

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