Minnesota Lawyer
Jayvon Davis is holed up at home with his kids, like the rest of us. But he’s at home instead of in prison, thanks to lawyers and law students working with the Innocence Project.
Davis was released when Hennepin County District Court Judge Paul Scoggin granted his motion for postconviction relief, after he had served about five years of a 23-year sentence for attempted murder—an apparent gang shooting near Target Field. Davis’s alleged victim, also the eyewitness, died on July 8, 2019, after another shooting. Hennepin County Attorney Mike Freeman decided not to retry the case.
Several factors came together to end Davis’ incarceration, including that the Innocence Project found merit in alibi evidence that wasn’t previously considered properly. The alibi evidence wasn’t new, but it hadn’t been used effectively. An ineffective assistance of counsel claim for other trial missteps provided the hook to let the case back into court.
Scoggin found that Davis had received ineffective assistance of counsel in both his trial and his direct appeal, and then found a postconviction petition was in the interests of justice and not barred by case law, even though Davis had earlier filed a motion pro se.
“We have an accurate criminal justice system in Minnesota. But it is staffed by human beings and about 1% of those convicted are innocent. Many of them we can’t do anything for. We’re left without new evidence or a procedural hook [to reopen the case],” said attorney Jon Hopeman, one of the lawyers working with the Innocence Project, along with legal director Julie Jonas and staff attorney Jim Mayer.
They were assisted by University of Minnesota Law School students Rachael Melby, Emily Luxem, Sara Jones and Brandy Hough.
Rival gangs
On April 12, 2014, two men walked out of Target Field at 2:56 a.m., after work, and were shot by two assailants in dark hoodies. One was critically injured and paralyzed. He could not identify the shooters. The other man was Kibbie Walker, who had some ongoing gang-related disputes with Davis. Davis got placed at the scene by another witness, although he had an alibi (more on that later). He was convicted of two counts of attempted intentional second-degree murder for the benefit of a gang.
According to Scoggin’s order, the prosecution said Walker was a member of the Taliban street gang and Davis was a member of the I-9 gang, and they were rivals.
Walker first did not identify Davis and said he didn’t want an innocent man to go to jail. But the police amped up their questioning, or, as Hopeman described it, “performed a brain transplant on him.” Walker eventually named Davis and picked him out of a lineup. (In his order, Scoggin explicitly said that the police questioning was not inappropriate.)
Davis had an alibi that could be established thanks to modern forensic techniques. But at trial, it wasn’t. Davis said he was at the Flameburger restaurant on Central Ave., about 7 miles away, and was on the telephone with his girlfriend at the time of the shooting. The defense said that because the security camera at Target Field recorded the time of the shooting, and records of Davis’s calls and texts with his girlfriend also recorded the time and place, he was able to establish that he didn’t shoot anybody.
According to expert witness John Carney, he was able to establish Google Voice evidence for calls, voice mails and texts. That evidence established that Davis was in fact on the phone with his girlfriend.
More went wrong at the trial for Davis. Walker recanted his identification of Davis, and then the state was able to introduce a videotape of Walker’s interrogation by police, which was way more prejudicial than probative and included testimony that couldn’t be admissible on the stand, said Innocence Project legal director Julie Jonas. But Davis’ attorney didn’t object. That video interview provided the sole affirmative substantive evidence in the trial in which Davis was identified as the shooter, as well as “voluminous amounts of inadmissible and highly prejudicial other statements,” Scoggin said.
Another piece of evidence came in, Spreigl evidence of a May 2010 Lake Calhoun shooting in which the state maintained that Davis was one of the shooters. Scoggin wrote that the state argued that the shooting was intended to show a common modus operandi and plan where Davis, an I-9 member, sought to kill Walker, a Taliban gang member. It was also intended to provide a motive of ongoing gang retaliation for the Target Field shooting. Davis’s attorney did not seek to strike it, Scoggin said.
These two pieces of testimony formed the basis for ordering a new trial, Hopeman said.
In the interests of justice
Postconviction proceedings must meet the standards established in 1976 in State v. Knaffla. The Minnesota Supreme Court then held that all grounds raised in the direct appeal as well as all claims that were known even if not actually raised on the direct appeal are barred. The same standards apply to consecutive postconviction proceedings.
But Knaffla may not bar ineffective assistance claims even if they were known at the time of the appeal, if they cannot be determined solely on the basis of the trial court record. “Because ineffective assistance of counsel claims routinely require full development of a factual record beyond the trial transcript, a credible claim of ineffective assistance of counsel should be addressed by a postconviction court even if such a claim could conceivably have been raised earlier,” Scoggin wrote.
Scoggin noted that the claims raised in the first petition were different from the claims in the second. There is also an ineffective assistance argument based on the appeal, which was prior to the first postconviction motion, he said.
He also said that substantive review may be allowed when the interests of justice and fairness require it.
The interests of justice may not be a strong branch to rest a case on, Hopeman said. “It’s more like a twig in a high wind.” The judge’s ruling on this prong was very fortunate for Davis, he said.
“Justice is not advanced, however, by foreclosing substantive consideration of Davis’ ineffective assistance of appellant counsel claims which have never previously been raised on the procedural Knaffla ground simply because Davis was no better steeped in knowledge of the Minnesota rules of evidence and the intricacies of Minnesota appellate case law addressing the admissibility of Spreigl evidence than were his Trial and Appellate counsel,” the judge wrote.
Expert testimony
Minneapolis attorney Earl Gray and New York lawyer Ira Mickenberg each testified that trial counsel was deficient in his representation by failing to object to the video of the police interview with Walker and failing to move to strike the Spreigl evidence when the state’s evidence did not match its offer of proof at the Spreigl hearing.
“[T]he jury went into deliberations with an image of Davis as a dangerous gang member who had been involved in multiple shootings, a man from whom the community needed protection, a man whom the police believed was a killer, who had targeted Walker in the past and would keep doing so until he succeeded if the jury did not find him guilty, ensuring his imprisonment, Scoggin wrote.”
Scoggin further observed that appellate counsel had an opportunity to remedy some of the trial counsel’s mistakes but failed to do so. She unreasonably failed to raise the issue of trial counsel’s ineffectiveness and also unreasonably neglected to raise the issue of the state’s failure to conform to its offer of proof of the Spreigl evidence. If she felt that evidence outside the record was necessary she could have filed a postconviction motion, Scoggin noted.
