The Innocent-Man Test

On June 6, 1998, police were summoned to a bar in the San Fernando Valley where a fight had broken out. The Los Angeles Police Department officers Michael Rex and Thomas Townsend rolled into the parking lot and turned on their floodlights. They later testified that they saw Daniel Larsen, then 30, pull a long, thin object from his waistband and throw it under a vehicle; that they ordered everyone in the parking lot to get down on their knees; that they retrieved a double-edged knife with a weighted handle from beneath a car; and that they arrested Larsen, who was convicted of felony possession of a deadly weapon during a jury trial, despite protesting his innocence. Larsen had two prior felonies and was sentenced to 28 years to life.

Larsen continued to proclaim his innocence, but got nowhere for years, until he became one of the few inmates chosen by the Innocence Project to benefit from its limited resources.

The petition assembled on his behalf was formidable. At trial, Larsen’s defense attorney called no witnesses, having failed to do the leg work of identifying any who would help his case. But as it turned out, a man named James McNutt, a retired Army sergeant first class and former police chief, had been in the parking lot that night with his wife, Elinore, and both agreed to give sworn statements asserting that they saw a different man throw the object under the car, and that they specifically saw Larsen just standing there doing nothing.

The man that the couple saw is named William Hewitt. And he swore that’s what happened, too. So did Hewitt’s girlfriend, who said Hewitt sold his motorcycle shortly after the incident to bail Larsen out of prison, because Hewitt felt guilty that another man was being punished for his actions. Not only did Larsen’s defense attorney fail to identify or call these witnesses; he also failed to request that the knife be examined for fingerprints and did not present a theory of third-party culpability. He was later disbarred for failing other clients.

There was, however, a procedural weakness in Larsen’s petition: He filed it in 2008, long after the one-year deadline for appeals. After missing that deadline, getting federal habeas relief is difficult and rare. One must show evidence of actual innocence.

In 2009, Magistrate Judge Suzanne H. Segal finally heard testimony from the multiple witnesses who proclaimed that the knife belonged to another man. She ruled that in light of the new evidence, Larsen’s case seemed to be among those “extraordinary cases where the petitioner asserts his innocence and establishes that the court cannot have confidence in the contrary finding of guilt.” She declared that “no reasonable juror would have found Petitioner guilty beyond a reasonable doubt” and that he “clearly received ineffective assistance of counsel,” but stopped short of declaring him to be innocent outright.