IN THE SUPREME COURT OF THE STATE OF DELAWARE

MARK PURNELL, § § Defendant Below, § No. 113, 2020 Appellant, § § v. § Court Below: Superior Court § of the State of Delaware STATE OF DELAWARE , § § Plaintiff Belo w, § Cr. ID No. 0701018040 Appellee. §

Submitted: March 24, 2021 Decided: June 17 , 2021

Before SEITZ , Chief Justice; VALIHURA , VAUGHN , TRAYNOR , and MONTGOMERY
- REEVES , Justices, constituting the Court en Banc

. Upon appeal from the Superior Cou rt. JUDGMENT REVERSED , CONVICTION VACATED and REMANDED FOR NEW TRIAL

. Herbert W. Mondros, Esquire, Rigrodsky Law, P.A. , Wilmington, Delaware, Tiffani D. Hurst, Esquire ( argue d ), Hurst Legal Services, Philadelphia, Pennsylvania for Appellant. Carolyn S. Hake, Esquire, Delaware Department of Justice, Wilmington, Delaware for Appellee.2

VALIHURA , Justice , for the Majority : Introduction On January 30, 2006, two armed assailants fatally shot Tameka Giles in the back at the corner of Fifth and Willing St reets in Wilmington after a botched robbery attempt while she was walking with her husband. A nearby eyewitness identified one assailant f rom a photo array as Ronald Harris. The victim’s husband identified Kellee Mitchell as the shooter in another array. During the investigation, police located a .38

- caliber revolver hidden in ceiling tiles outside the apartment Kellee Mitchell was stayin g at in Compton Towers. With Mitchell in the apartment was Dawan Harris, Ronald’s older brother to whom he bears a s triking resemblance. Dawan Harris admitted that the gun belonged to both Mitchell and himself
and pleaded guilty to a weapon s charge. In January 2007, after his arrest on drug charges, an individual named Corey Hammond implicated Mark Purnell and Ronald Harris as Tameka Giles’s killers based on statements they made earlier in the day, and in the week following the killing. Later that

mo nth, Kellee Mitchell also told police that Mark Purnell bragged about having committed the murder. Thereafter, Purnell and Ronald Harris were arrested and charged. Across multiple lengthy police interrogations in the two years following the murder,
Ronal d Harris had repeatedly told police of his significant learning disabilities and that he knew nothing about the crime an d had not been involved. But on the eve of trial and after jury selection, the S tate offered a plea agreement dropping the murder and w eapons charges3

and recommend ing a three

- year sentence in exchange for his plea and testimony. Ronald Harris accepted an d entered a guilty plea. At the April 2008 Superior Court trial, the State’s case for proving that Purnell was one of the two perpetrat ors consisted almost entirely of the claims made by Corey Hammond and Kellee Mitchell, combined with the “ accomplice ” te stimony of Ronald Harris pursuant to his plea. Purnell’s court

- appointed trial attorney was the same advocate who represented
Dawan Ha rris in the weapons prosecution earlier in the murder investigation. The trial judge did not permit him to withdraw whe n he brought the conflict, and the defense theory
that his former client might be the true killer, to the State’s and court’s attention. Trial counsel failed to investigate evidentiary leads implicating Dawan Harris , did not call him as a witness, and fai led to present even then

- known or obvious evidence and argument to the jury that would have inculpated his former client. Following this constrained defense, the jury convicted Purnell of Murder Second Degree and all other charges after more than a day of deliberation. The Superior Court sentenced him to forty

- five years of unsuspend ed Level V incarceration. In 2009, based on the narrow issues presented to us, which did not include the conflict, we upheld his conviction and sentence. Following the deni al of his direct appeal, Purnell filed a 133

- page handwritten pro

se Rule 61 moti on raising ten grounds for relief, of which the first was an objection to his trial counsel’s conflict of interest. After he obtained representation, postconviction counsel
f iled an amended motion asserting only three grounds and did not include the confl ict4

claim. The Superior Court denied Purnell’s motion and, again without having the conflict brought to our attention, we affirmed that denial in 2014. Because postconvicti on counsel died a few weeks prior to oral argument before us in 2014, we will lik ely never know why he did not include the conflict issue in the amended motion. Due to that omission, the conflict claim comes to us now as one of Purnell’s grounds in an unt imely, successive Rule 61 motion. To qualify for an exception to Rule 61’s proc edural bars against untimely, successive motions, Purnell must identify with particularity new evidence that creates a strong inference that he is actually innocent in fact of the acts underlying the charges. Stated differently, Purnell must present addit ional evidence that was not available at trial and would not have been despite his exercise of due diligence. Purnell must also convince us that the new evidence, when consid ered in the context of all the relevant evidence by a properly instructed jury, i s such as will probably change the result if a new trial were granted. In this extraordinary case, we find that he has made just such a showing.
W e do not fault the Superio r Court for ruling as it did. It carefully considered the
issues before it. But this case presents novel legal issues embedded in an unusual factual background. We have never before found a case to qualify for the “actual innocence” exception

. Thus, th e Superior Court had little guidance on when evidence is “new” or what showing cr eates a “strong inference” of innocence. Much of the evidence Purnell presents, though knowable or even known at the time, was unavailable to him at trial because his
counsel was not permitted to withdraw and was precluded from obtaining or presenting it
due to his ethical duties to his former client

.5

Ordinarily, having clarified the standards for newness and persuasiveness necessary for relief, we would remand the matter to t he Superior Court for an evidentiary hearing and a decision guided by those rulin gs. But because Purnell has spent more than fourteen years in prison for murder based on a manifestly unfair trial and conviction, and based on his new evidence, viewed as a part of the entire evidentiary record , we are convinced that in
this extraordinar y case remand for an evidentiary hearing would serve no useful purpose. Instead, we reverse and remand for a new trial.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. F acts 1. Purnell’s Inju ry On January 21, 2006, Mark Purnell (“Purnell”) was admitted to Christiana Hospital with a gunshot wound to his right leg. 1 He was shot in the lower thigh, and the bullet continued down to the back of his knee, coming to rest around the knee joint. The following day, Purnell underwent surgery to remove the bullet, f or which he was placed under general anesthesia. The surgical team, led by vascular surgeon Dr. Harad, attempted to remove the bullet from the back of Purnell’s knee. During the surgery, Dr . Harad discovered that the
bullet had moved from the back of Pu rnell’s knee to the front, and after approximately a
half hour to 45 minutes , he was unable to remove the bullet from that angle. A second practitioner, orthopedic surgeon Dr. James Rubano (“ Dr. Rubano”), continued the attempts

1 App. to Opening Br. at A337 [hereinafter “A___”] (Testimony of Dr. James Rubano).6

to remove the bullet via an arth r oscopic procedure from the front. This involved making three incisions on the front of Purnell’s knee and , at various times , putting a camera in one incision to look around while manipu lating the tissue through another incision seeking to
find the b ullet. Eventually, Dr. Rubano was able to locate and remove the bullet in this manner. The three incisions in the front of Purnell’s knee were closed with centimeter

long sutures, while the longer incision in the back of his knee was closed with approxim ately ten staples. The following day, January 23 rd , Dr. Rubano examined Purnell’s knee and verified that his blood flow was normal and that the nerves were working. At his discharge, Purnell told the physical therapist that he was unable to use crutches a nd needed a wheelchair. Purnell did not cooperate with physical therapy or follow

- up care. Purnell’s sutures and staples were removed in the beginning of February when he was in a juvenile d etention facility.
2. The Murder of Tameka Giles
Seven days followi ng Purnell’s discharge from the hospital , on the evening of January 30, 2006, Angela Rayne (“Rayne”) , high on crack cocaine, was sitting on her
outside step a couple of feet from the intersect ion of Fifth Street and Willing Street. She saw two young black men pass her, double back, and then cross paths with a couple , later identified as Ernest Giles (“Mr. Giles”) and his wife Tameka Giles (“Mrs. Giles”)

. The
Gileses were carrying shopping bags

. Rayne heard a single gunshot, causing her to look7

in that direction immediately

. 2 S he saw the two young men flee, running , and saw Mrs.
Giles lying on the ground with Mr. Giles call ing for help. Rayne recognized one of the two assailants from earlier i n the day, when she had seen him with Wilmington Police at Fifth and Jefferson Streets. Based on that information, the police suspected Ronald Harris. Police also located a 9mm shell casing 40 feet north
of the intersection of Fifth and Willing Streets

. 3 At a police interview on February 16, 2006, Rayne identified Ronald Harris from a photo lineup and confirmed that he was present at the robbery at the time of the fatal shot. 4 Other than noting that th e second assailant was shorter, Rayne said that she d id not get a good look at him and would be unable to identify him. 5 In a photo lineup array containing six photographs , including Purnell ’s , conducted in January 2007, a year after the incident, Rayne did not identify Purnell as the second assailant but i nstead identified two of the other
individuals in the photographs as having eyes similar to those of the second assailant

. 3. Mr. Giles Becomes a Suspect Detectives Gary Tabor (“Detective Tabor”) and Andrew Brock of the Wilmington Police Department interview ed Mr. Giles late in the evening of February 2, 2006,

2 Responding officers identified several nearby residents and people who overwhelmingly concurred that there was only a single gunshot. A690

– 92 (Wilmington Department of Police Supplemental Report). 3 A75 (Testimony of Detective Gary Tabor).
4 A686 (Wilming ton Departme nt of Police Supplemental Report). 5 Id

.8

beginning after 11:00 p.m. 6 By that time, they had already identified a number of

sus picious factors raising the possibility that Mr. Giles was involved in the robbery. One of Mrs. Giles’s coworkers to ld Detective Tabor that she had previously seen Mrs. Giles with several injuries consistent with domestic violence, and that Mrs. Giles had confided in her that Mr. Giles had on one occasion broken her jaw, that he had a crack cocaine problem, and that he had previously stolen money from her, including her tax
refund. According to Mrs. Giles’s journal , Mr. Giles abused her, stole from her, an d Mrs.
Giles feared him. Mr. Giles’s father previously had to intervene in at least one serious
incident of domesti c violence, and Mrs. Giles had checked herself in to the Mother Mary of Hope Domestic Violence Center at some point in 2005. Mrs. Giles’s f amily members further reported to Detective Tabor and Detective David Simmons (“Detective Simmons”)
that Mr. Giles h ad not shown up at the funeral home for his wife, and that she had been due to receive $2,000 from a tax refund on the day of the murder.
Li kewise, on February 2, 2006, family members of the Gileses reported to Detective Tabor a number of suspicious action s and factors which led them to suspect Mr. Giles’s involvement in the murder. These factors included an absence of bereavement by Mr. Giles after the murder and Mr. Giles’s mistress coming by the house the day following the
murder. They conveyed that Mr . Giles owed a drug

- related debt and was in possess ion of
a nickel

- plated .38

- caliber handgun. Mr. Giles’s former girlfriend similarly reported to
Detective Tabor that Mr. Giles had stolen her .38

- caliber revolver which she used as a duty

6 A683.9

weapon in her jo b as a security guard while he lived with her in Oc tober 2005 , and which
was never recovered. The family advised police that they believed Mr. Giles was involved
in the death of Mrs. Giles

. At Mr. Giles’s February 2, 2006 , interview, he described a prev ious robbery attempt he suffered when trying to buy marijuana and stated that he thought one of the perpetrators of that earlier robbery was the killer. Police presented him with a photo array containing an individual who had previously been arrested for robberies in the area, but he made no
identificatio n. Mr. Giles was interviewed again on February 16, 2006. He was shown a new photo array containing Ronald Harris and other individuals whom Detective Tabor believed were Ronald Harris’s associates. Mr. Giles tentatively identified Kellee Mitchell (“Mitc hell”) as the shooter, but he was not positive

. He did not identify Ronald Harris when shown his photo

. 4. The Police Act on the Identifications
Based on the for e going investigative developments, the polic e sought and obtained
search warrants for the two a partments where Ronald Harris and Mitchell were living and
arrest warrants for them. A SWAT team executed those warrants on February 18, 2006. The basis for the warrants was the investigation of Mrs. Gil es’s murder. Mitchell was a suspect in that murder at that time. Mitchell was living with his girlfriend, Etienne Williams , in the Compton Towers apartment building . Dawan Harris, Ronald’s older brother, was dating Etienne’s sister, Aqu e sh i a Williams. A t the time police executed the warrant s , Mitchell and Dawan were10

both in the apartment, as were four members of the Williams family. Based on statements from the Williamses, police located a .38

- caliber Smith & Wesson revolver in the ceiling
tiles in the common hall area outside the apartment. Police took Dawan Harris and Mitchell into custody. Police did not locate Ronald Harris in his apartment when executing that warrant. Instead, on learning that he was at his cousin Latoya Moody’s Comp ton Towers
ap artment , police arrested him there without incident. Purnell was also in Moody’s apartment but was not arrested at that time. 7 Police thereafter interrogated the Harris brothers. Mitchell promptly requested an attorney and was not intervi ewed.
5. The Rona ld Harris Interrogation
Police arrested an d interviewed Ronald Harris on February 18, 2006. He did not request counsel, and his interview continued until 8:00 p.m., totaling approximately eleven
hours. At the time of the interview, Ronald wa s 17 years old

. It is not disputed that Ronald Harris is intellectually disabled and was unable to read or write. 8 He had an individualized education plan (“IEP”) and had been in special education classes before he dropped out of
school. At the outset of questioning, police represented to Ronald that they had obtained his mother’s permission to question him, and the y gave him a Miranda warning. 9 During

7 The record suggests that one of the detectives who arrested Ronald Harris examined Purnell’s injury and that Purnell was required to remove his bandage to ensure that he was not concealing any contraband. A821 (Letter from Peter Veith to Steve Wood). 8 It is likewise uncontradicted that Ronald Harris continues to have limited literacy skills. 9 A518 at 1:45

– 2:15 (Ronald Harris February 2006 Interview DVD).11

questioning, Ronald was handcuffed to a chair. At some point during the interview, Ronald’s mother , who was not in the room, informed the detectives that he had cognitive
disabilities. The record suggests that the only evidence against him at the time was Angela
Ra y ne’s identification. The interrogating officer quickly informed Ronald that the interview was related to a murder and that he had been identified by a witness. He informed Ronald that investigators’ be lief was that he, Ronald Harris, was with the person who murdered the
victim but was not himself the shooter: Let’s get past all this nonsense , okay? Here’ s the facts. There was a murder , okay? You were involved. And you were with somebody who was, who actually committed the murder , okay? Those are the facts that we know. You got a baby on the way. Okay, y ou’re trying to get your life straightened out. I think you were with the wrong perso n at the wrong time. 10 Ronald assiduously denied involvement. Eight minutes after the interrogation began, the interrogating officer left the room. The video of the interrogation, which this Court has reviewed, reve als that Ronald immediately threw his body on the table and began crying and moaning. 11 Between sobs, Harris spoke to the empty room, saying “Me don’t
commit no crime. Me? It’s me though? Me?” 12 He then calmed down and began talking to himself, saying: Somebody tell me. Somebody tell me w hat’s going on. Me committing a crime? No. No. No. Not me commit no crime. Not me commit no crime. No. Uh

- uh. Uh

- uh. Now I was with someone that commit a crime? Somebody tell me. Somebody please tell me what’s going on. I was with

10 Id . at 3:44

– 4:07. 11 Id . at 8:06

– 8:36. 12 Id . a t 8:36

– 8:52.12

somebody that commit a crime? No, man. No. Not me. Not me. Might be my brother but not me, I’m sorry. You can’t get me like that. Not me. 13 After an officer resumed questioning him, Ronald Harris said he had recentl y seen his b rother with a black .38

- caliber revolver with a brown handle which his brothe r had stolen from Cameron Johnson, the child of their mother’s foster sister. Ronald Harris told
the officer he knew this because , the night before, his brother Dawan had been on the phone discussing the gun with Johnson and that Johnson was accusing Dawan of having stolen the gun from him

. On more than one occasion, he told the detective that he had a “mental problem” for which he took medication.
After another break in question ing, the interviewing officer asked Ronald Harris, “Where does Mark keep his gun?” Ronald Harris, after confirming with the officer that he was asking about the other person in Latoya Moody’s apartment, said he had met him only
once before tha t day, did n ot know whether Mark was his real name, and had never seen him with a gun. Other than that brief discussion, which contained no mention of “Mark’s” full name,
the conversation contained no mention of Purnell. Instead, the officers’ focus was on getting Ronald Harris to implicate either himself, or his brother and Mitchell. Officers specifically confronted him with the information that one witness had identified him from a photo lineup, and another had positively identified Mitchell.

13 Id . at 8:52

– 9:56.13

Ronald H arris repeat edly insisted throughout that initial interview that he was not present or in the area when the robbery occurred, and “that night, when those shots went off, I was home.” 14 When asked how many gunshots he heard, he responded, “ three ”

-- a statement support ed by no other evidence. 15 Later in the interview, he claims to have seen two people fleeing, one of whom had a beard

-- a statement that also matched no other
witness ac count. 16 Ronald Harris remained handcuffed to the chair in the interrogation room, a side from escorted toilet breaks, for more than seven hours of intermittent questioning . After those seven hours, a police sergeant took Ronald to another room for a po lygraph interview where questioning continued but was not captured in the video recordi ng
. Ronald was subject to a total of approximately eleven hours of questioning on that day alone, lasting from approximately 9 a.m. through 8 p.m.
6. The Dawan Harris Inte rview
At the time of his February 18, 2006 interview, Dawan Harris was 20 years old. 17 As with his younger brother, the interviewing officer first informed Dawan of his right to

14 Id . at 2:50:10

– 2: 50:13 (emphasis added). 15 Id . at 4:19:15

– 4:19:21. 16 Id . at 4:20:33

– 4:21:50. As discussed in the trial section below, Ronald Harris’s report of hearing multiple gunshots and seeing two fleeing men, one o f whom had a beard, does align with the testimony of a disinterested witness, Dawnell Williams, about another shooting that occurred in the same area earlier in the evening. 17 A762 at 6:07

– 6:10 (Dawan Harris February 2006 interview DVD).14

remain silent 18 and then immediately presented Dawan with the assertion that police knew he was present at the murder but was not the shooter:
There was a woman who w as killed, okay, at Fifth and Willing Street , okay? And you ’ve been identified as a person who was invol ved in that, okay? Let me finish, okay. I don’t know, I don’t personally think that you shot anybody and killed them. But I think that you were ther e. 19 The interviewing officer further told Dawan that he had been positively identified by an eyewitness and picked from a photo lineup. 20 Just as with Ronald, the interviewing officer suggested Dawan was “in the wrong place , maybe at the wrong time,” 21 and invited him to implicate the shooter. 22 The officer insisted that multiple eyewitnesses placed Dawan at the shooting, even revealing details of the crime

-- that it involved only a single
shot

-- telling him “everybody tells me what a surprised look you h ad on your face when
that shot went off.” 23
W hen the investigating officer asked about the gun, Dawan denied having one.
When the officer reveal ed that police had recovered the firearm, Dawan admitted to

18 Id . at 5:42

– 5: 51. 19 Id . at 7:18

– 7:37. 20 Id . at 8:19

– 8:27 ( “You were there. . . somebody identified you.”); id. at 18:19

– 18:23 (“People identified you in a photo lineup. How would they be able to do that? That’s one in a million.”).
21 Id . at 6:52

– 6:55. 22 Id. at 9:30

– 9 :53 (“You’ve been identified as a person involved in a murder, okay? You’ve been identified as being with the person who actually killed someone. Now, you can either own up, listen to me, you can either own up to being there, and saying, ‘alright, I was there,’ listen to me, ‘I was there, here’s the person that did it,’ okay or you can just take the murder rap for that person, is that how you want to go?”). 23 Id . at 19:39

– 19:42 (emphasis added).15

stealing it from a friend, Cameron Johnson, 24 “some t ime this week.” 25 He specified that
he had stolen the gun from Cameron on Valentine’s Day just four days earlier. He asserted
that he sold it to Mitchell the same day , but that Mitchell did not pay him the full price

. I nstead , Dawan claimed they had agre ed that the gun would remain their shared property. 26 He said that Mitchell had placed the gun in the ceiling tiles outside the apartment in Compton Towers where they both stayed with their girlfriends, the Williams sisters. Approximately eighteen minutes after it began, Dawan Harris dema nded an attorney
and the interview abruptly ceased. 27
7. The Aftermath of February 18, 2006 Searches and Interrogations On the evening of February 18, 2006, police charged Ronald Harris with attempted robbery, conspiracy, and possession of a deadly weapon du ring the commission of a felony ( “ PDWDCF ” ) 28 in relation to the Giles robbery and murder. Dawan Harris and Mitchell were charged with Possession of a Deadly Weapon by Persons Prohibited ( “ PDWBPP ” ) 29 relating to the .38

- calib er revolver. Dawan Harris’s bail paperwork reflects that the arraigning Court characterized him as a “poss[ible] suspect in [a ] murder.” 30

24 Id . at 13:44

– 14:09. Dawan explained that he referre d to C ameron Johnson as a ‘cousin’ because of their mothers’ childhood relationship, but that they are not blood relatives. 25 Id . at 13:09

– 13:21. 26 Id . at 12:40

– 13:09. 27 Id. at 23:18

– 23:25 (“I want a lie detector test. And I’m getting a lawyer. End of that d iscussion. I ain’t saying no more.”). 28 11 Del. C. § 1447. 29 11 Del. C. § 1448. 30 A833 (Dawan Harris Bail and Disposition Sheet).16

Based on the events of that day, police came to recognize Purnell as another possible suspect. 31 Pursuing a theory of Purnell’s involvement, police searched Purnell’s grandmother’s apartment with her permission on February 21, 2006 , seeking a handgun and searched Purnell’s own residence two days later via a warrant obtained from an
unrelated case. Neither search obtaine d any evidence. On February 22, 2006, police presented Mr. Giles with a fourth photo lineup, this one containing Purnell, bu t Mr. Giles did not identify Purnell as being involved in his wife’s murder.
8. Purnell’s February 21, 2006 Interview Also on February 21 , Purnell came to the police station to speak with Detective Thomas Curley (“Detective Curley”). Their conversation was r ecorded on video. 32 In that interview, Purnell and Detective Curley discussed a number of issues, including extensive
discussion of the recent arrest of the Harris brothers and Kellee Mitchell.
Purnell informed Detective Curley that he was blood cousins with the Harris brothers on his mother’s side and had known Mitchell his entire life. He told Detective Curley that he was aware t hat the three had been arrested “for murder.” Purnell explained that he knew that Dawan had stolen a .38

- caliber firearm from

31 A 704 (Wilmington Department of Police Suppleme ntal Report). The record does not disclose what caused police to develop thi s suspicion. The police report states, relating to February 18, 2006 , but without a timestamp: Throughout the day the name Mark Purnell is mentioned as a possible suspect. It was learned that he recently accidentally shot himself. It was also learned th at Detective Thomas Curley had probable cause to obtain a search warrant for his residence in an unrelated matter. A704

– 05. 32 Trial Exhibit 38.17

“Sticky” and hidden it in the ceiling. 33 He explained that Dawan’s theft of the gun was retaliatory for an earlier robbery commi tted by two other individuals. And he told the
d etective that Mitchell mostly hung out with Dawan, but that Ron did not hang out with
either of them. Purnell also told Detective Curley about ce rtain suspicious behavior from Dawan
Harris and Mitchell the n ight before their arrest. Mitchell, Purnell explained, had been repeatedly calling him at three to five in the morning, and was giving him the impression
that Mitchell was “trying to set me up. ” Purnell further explained that by that he meant
that Mitche ll kept bombarding him by phone to come upstairs to look at the gun.
Purnell seemed to assume that the .38

- caliber revolver was the murder weapon, since “that’s why they locking them up for murd er.” During the searches and arrests on February 18, Detectiv e Curley agreed that he had been “hanging” with Purnell for about two hours, and so he explained to Purnell he did not know the circumstances by which the other investigators had found the revol ver. Purnell explained that after Detective Curley had left, Purnell found out from “the girls” that “the little pregnant girl” ( a third Williams
sister , Kenyatta ) had told the other detective where it was, leading to its discovery, and so
to the murder a rrests. Asked for further clarification, Purnell said that Aq u e sh i a had told him that the revolver was the murder weapon. Under further questioning, he reiterated that Aqu e sh i a told him it was the murder weapon, which he thought was information that came
from Dawan.

33 Police reports identify “Sticky” a s another individual not otherwise referred to in this Opinion.18

Purnell also explained that he had also known tha t the revolver was there because whenever he went up to the ninth floor in Compton Towers, he would see Dawan checking the ceiling tile to make sure no one had stolen the gun. In response to De tective Curley’s inquiries about how long Dawan had possessed the gun, Purnell said that Dawan had it for a long time, but conceded that he could not say for certain it was the same gun the entire time. Purnell had only actually seen the .38

- caliber revol ver the night before Dawan’s arrest, when Dawan had said he “g ot to put it up somewhere because they might be coming to get it , ” referring to the police. He knew that Dawan possessed a gun at least as far back

as when he, Purnell, had been shot, because D awan had suggested engaging in reprisal
violence at that time

. Purnell advised the d etective that Dawan had been caught in security camera footage in Compton Towers firing the gun. They also discussed the Giles robbery itself. Purnell commented that whoe ver committed it must have been desperate

. 34 As Detective Curl ey transcribed the exchange: [ PURNELL ] : Whoever it was it in um yeah whoever it was was desperate for money right. [ DETECTIVE CURLEY] : I don’t know. [ PURNELL ] : They try to rob their people but people and they ran away and that means they was desperate for money. So somebody, if I’m robbing somebody and they run away and they’re gone ain’t nothing you could do but you rob somebody and they running and you shoot ‘ em. [DETECTIVE CURLEY]: Um hum.

34 Id . at 1 8:45

– 19:14.19

[PURNELL]: Then that means they desperate for money. 35
An other incident Purnell discussed with Detective Curley had occurred the previous night, February 20, 2006. As he explained, he had been in Buttonwood, having purc hased some marijuana to smoke “to calm my nerves,” but a police officer named Kramer had
conf ronted him. Purnell explained that he had managed to run away and escape the officer.
9. Purnell Makes an Inculpatory Phone Call In March of 2006, Etienne and Aque shia Williams were with Jerome Portis when he had a phone conversation with Purnell, his cous in. During the conversation between Portis and Purnell, Purnell addressed Aqueshia and told her of Dawan, “That’s why I did kill that lady and your boyfriend is s itting in jail for it. . . sike.” 36 “Sike” is a slang term which can mean “just kidding.”

35 Trial Exhibit 39 at 27

– 28 (Detective Curley’s Transcript of Purnell Interview). We have watched and listened to the recording, and the recording, which was played to the jury, is audibly ambiguous as to some of the words and especially punct uation. However, none of the ambiguities materially change the thrust of the remarks as Detective Curley transcribed them. Citing exclusively to the recording and Detective Curle y’s testimony authenticating it

-- not the transcript

-- the State instead q uotes Purnell as saying “if robbing someone and they run away, they’re gone, ain’t nothing you could do but rob somebody and they run and you shoot them.” State’s Supp. Ans. Br. a t 18. That iteration of the quotation does not match the cited exhibit, and omits key words

-- including a critical “I’m,” and “you,” and the entirety of the final dependent clause “then that means they desperate for money.” The State similarly described Purnell’s remark in closing arguments, provoking an objection from Trial Co unsel. A355 (State’s Closing Argument). After re - listening to the recording outside the presence of the jury, the trial judge ruled that the State’s characterization was not a mis representation, and Trial Counsel withdrew his objection in favor of arguing about the contextual meaning of the remark. In our view, the State’s characterization is vastly different, as it implies that Purnell was suggesting that shooting a robbery victi m was the only way to respond to the victim’s flight. To the contrary, Purn ell appears to be commenting that shooting a fleeing victim means the shooter must have been desperate for money. 36 A 178 (Testimony of Etienne Williams); A 197 (Testimony of Aques hia Williams).20

10. T he Investigations Continue Over the course of the next several months, police pursued a number of investigatory leads. In June 2006 they identified a witness who, when he was arrested on unrelated charges, asserted that Dawan Harris had repeatedly bragged to him and Troy
Hammond of the Giles murder saying, “ y ou should have seen the way she fell” whil e they were at Fifth and Jefferson Streets some time before Mrs. Giles’s funeral. 37 Police received other reports about the murder , often including secondhand or thirdhand claims that Dawan Harris, Mitchell, Purnell, or other individuals were involved

or had made inculpatory statements. By July 2006 Cameron Johnson admitted that he had been holding a .38

- caliber
revolver for someone else but that the gun was st olen by his cousin, Dawan Harris.
11. Corey Hammond Implicates Purnell
The break in the case leadi ng to Purnell’s prosecution came from an interview with Troy Hammond’s brother , Corey Hammond (“Hammond”) , in early 2007. Like Purnell, Hammond grew up in the Southbridge neighborhood of Wilmington, where they were neighbors but did not have a close rela tionship. By the time of Mrs. Giles’s murder, Hammond already had a substantial criminal record, having been convicted as a juvenile of felony Receiving Stolen Property (“RSP”) in June 2003 , and of Possession
with Intent to Deliver a Schedule II Narcotic (“PWID”), felony RSP, and misdemeanor RSP in June 2005, again as a juvenile.

37 A707 (Wilmington Department of Police Supplemental Report).21

In September 2006 Detective Tabor interviewed Hammond about Mrs. Giles’s
murder. At that time Hammond did not implicate anyone for the murder or the events surrounding it. Over the course of the conversation, Hammond noted that Dawan had shown him, Hammond, a gun. 38 He recalled the gun being “like a Glock.” Hammond’s reticence chang ed on January 4, 20 0 7 , when he was arrested for
another PWID offense two days before his son’s birth. 39 After that arrest, the arresting officer notified Detective Tabor that Hammond was in custody. Detective Tabor to ok that opportunity to interview Hammo nd again. After this interview, Detective Tabor advised Hammond’s arresting officer tha t Hammond was being cooperative. The bail set at Hammond’s arraignment thereafter was low enough that Hammond was easily able to post it and obtain his release prior t o his son’s birth. At the new interview, Hammond immediately informed Detective Tabor “I ’m just doing this for my seed,” i.e. , his son whose birth was so imminent. At that interview,
Hammond told Detective Tabor that Ronald Harris and Purnell committed th e Giles robbery, and that although both had guns, Ronald Harris was the shooter. He cla imed to

38 A619 (Corey Hammond Interview Transcript)

. The name of the individual Hammond claims showed him a gun is listed as “(CU)” meaning “can’t understand,” meaning unintelligible to t he transcriptionist, but Detective Tabor recalls the conversation and that H ammond spoke of Dawan showing him a gun. A165 (Testimony of Detective Tabor). 39 PWID was the offense formerly codified at 16 Del. C. § 4751 , which was repealed by 78 Del. Laws, ch . 13, effective Sept 1, 2011 . Under the statute in force at the time, any p erson not authorized by the Controlled Substances Act “ who manufactures, delivers or possesses with intent to manufacture or deliver a controlled substance or a counterfeit control led substance classified in Schedule I or II which is a narcotic drug is gui lty of a class C felony and shall be fined not less than $5,000 nor more than $50,000 .” Upon a showing that the offender was not himself an addict, “[f] or the second or subsequent violation of this section a mandatory minimum sentence of 12 years to be se rved at Level V ” which could not be suspended was applicable

.22

have been with Dawan Harris walking down Washington Street at the time of the robbery and that he heard the shooting. Further, Hammond claimed that he next saw Purnell a week or two later, and that at that time Purnell bragged about committing the murder.
Detective Tabor then drew a map of the area around the shooting. Hammond described events and interactions he claimed to have had with Purnell and Harris, t elling Detective Tabor when they occurred and where, referencing the map. He further cl aimed that earlier on the day of the robbery, Purnell had shown off a gun, and that he had complained about wanting money, to which Ronald Harris responded by telling P urnell that he was “ready to do something.” Hammond described being with Dawan Harris at the time of the shooting and
claimed to have heard multiple gunshots: I don’t know where we was going we just walking. We turned down Jefferson and like was walking around I think we hollered at some girls over there for a minute and we walked back up towards his aunt house (CU) and that’s like we was chilling for a minute and I heard this and I he ard the shots cause we ran we like we ran towards the shots I was comi ng down here

. 40 After that disclosure, Detective Tabor continued to question Hammond. Following Hammond’s specific and contradictory description s of where he was with
Dawan Harris w hen he heard multiple gunshots, Detective Tabor asked him to indicate t he
location on the map , while prompting him that there was only a single gunshot: [ DETECTIVE TABOR ] : Where were you at when you heard the shot ? [ HAMMOND ] : I was like on like right on this block down here. [ DETECTIVE TABOR ] : Okay and you heard the shot ?

40 A 638 (emphasis added).23

[ HAMMOND ] : Heard the shot

. 41 Later in the interview, Hammond claimed to have seen Harris and Purnell later in the day of the shooting, and that Purnell told him that “we getting ready to rob the bitch and she ain’t wanna give it up so I popped the bitch

. ” 42
12. Mitchell Implicates Purnell After the second Hammond interview, police conducted further investigations into Purnell’s possible involvement. Detective Tabor interviewed Mitchell on January 22, 2007. According to Detective Tabor, Mitchell told him that the previous April, when he

a nd Purnell were incarcerated together in the New Castle County Detention Center, Purnell bragged that he had intended to rob the Gileses and that Mrs. Giles had “recognized him and called him by name and so he shot her.” 43
Det ective Tabor then began recor ding the interview and questioned Mitchell about Purnell’s prior statement , occasionally suggesting facts to which Mitchell tersely assent ed : [ DETECTIVE TABOR ] : Tell me again you guys were at Ferris together or Bridgehouse or... [ MITCHELL ] : Detention Cente r. [ DETECTIVE TABOR ] : Detention Center and this was when, when did he go in for the stolen car like April?

41 A 646 (emphasis added). The detectives had also referenced “the shot” in the sin gular prior to that, asking him “Where were you at when the shot went off” before he h ad given his narration of events. A630. As noted earlier, in Dawan Harris’s February 18, 2006 interrogation, police also referred to there being only a single gunshot w hen they, bluffing, told him “everybody tells me what a surprised look you had on your face when that shot went off.”
42 A650. 43 A 111 (Testimony of Detective Tabor).24

[ MITCHELL ] : I think so. [ DETECTIVE TABOR ] : Something like April? [ MITCHELL ] : I think so. [ DETECTIVE TABOR ] : And that’s when you had this conversation? Tell me again what he said to you, exactly whatever his words were that you can remember? [ MITCHELL ] : Basically just bragging about (CU). [ DETECTIVE TABOR ] : What did he say? [ MITCHELL ] : I already told you. [ DETEC TIVE TABOR ] : Tell me agai n. I wanna be able to pick it apart and see if I can get you to remember anything else that he might a said? [ MITCHELL ] : I don’t wanna say it again. [ DETECTIVE TABOR ] : Okay well you told me that it was he told you that it was li ke the last bus that she got off and was walking and he saw her walking with the bags and he was gonna rob her, is that right and she recognized him? Did he say if... did he say if anybody else was there? No? [ MITCHELL ] : Her husband I think. [ DETECTIVE T ABOR ] : Her husband was th ere? Did Mark tell you that or you just know that from hearing it on the street? [ MITCHELL ] : That’s what he said. [ DETECTIVE TABOR ] : That’s what Mark said and he said she recognized him? How did he say he knew that, did she say his name, call his name? Yeah I mean she knew him by name and that’s why he shot her? Alright. Did you hear, did he tell you anything else about why he was going to rob her?25

[ MITCHELL ] : Tax time. 44 As discussed below, Mitchell has now recanted these st atements. Based on the Hammond and Mitchell interviews and the police investigations, police arrested Purnell on January 23, 2007

. 13. Ronald Harris is Interrogated Again The next day, o n January 24, 2007, Detective Simmons interviewed Ronald Harris.
In an attempt to elicit a confession, investigators told Ro nald that Purnell had implicated him. The detective told him that, “Mark, he’s not quite as dumb as you are,” and “Little Mark decided not to be quite as dumb as you are that’s all.” The interview t ranscript
indicates that the detective told Ronald that Purnell was arrested the prev i ous night for murder and showed Ronald a paper to that effect. 45 Throughout the interview, Detective Simmons told him that he would be in jail for
the rest of his life if he did not reveal what really happened. The following excerpts show a few such examples: [DETECTIVE SIMMONS] : You just had your last free moments this morning. Soon as you walked through t his door you are now under arrest you’re gonna go to Gander Hill. You’re not gonna get out of jail for the rest of your natural life. Do you understand that? [RONALD HARRIS] : Alright can I talk to mom? [DETECTIVE SIMMONS] : You will no you can not.

44 A 499

– 500 (Mitchell 2007 Interview Transcript). 45 A563 (Harris 2007 Interview Transcript). Ronald Harris then asked how Purnell could have been locked up if he had already b een locked up. The detective replied, “Son you can’t be this thick you just can’t be.” A564. The detective then told him that Pu rnell had been released four days earlier but then got locked up again for murder.26

[RONALD HARRIS] : I can’t

... [DETECTIVE SIMMONS] : No. [RONALD HAR RIS] : I got rights. 46

. . . . [DETECTIVE SIMMONS] : It’s over from the murder charge from the night you shot that lady (CU) with Mark when he shot that lady about that? [RONALD HARRIS] : That’s a lie. [DETECTIVE SIMMONS] : Does that clarify your me mory? [RONALD HARRIS] : That’s a lie.

. . . . [DETECTIVE SIMMONS] : How old is your daughter? How old is your daughter? 47 [RONALD HARRIS] : (CU) [DETECTIVE SIMMONS] : You’ll never again see her as a free man unless you choose to help yourself out. [ RONALD HARRIS] : Help myself out? [DETECTIVE SIMMONS] : Ye ap
. [RONALD HARRIS] : How the f

-- k I’m a help myself out? After further denials by Ronald of any involvement, Detective Simmons emphasized the grave nature of the charges and Ronald’s potential c riminal liability : [DETECTIVE SIMMONS] : We know that you would n’t be here you wouldn’t be going to jail for murder you wouldn’t be facing a capital crime

46 A551

– 52. 47 A569.27

punishable by death or life imprisonment in the State of Delaware if we didn’t know the truth. 48
Ron ald Harris repeated ly asked to take a lie detector test and for his mother to be present. Throughout the interview, the transcript of which goes on for ninety

- three pages, Ronald Harris repeatedly and emphatically insisted that he had no knowledge of and had
no involvement in the Giles murder. At its conclusion, the detective said, “Alright come on rocket science. Let’s go downstairs and book y a . Jump on up brother turn around.” 49
14. Purnell Obtains Appointed Counsel
A grand jury indicted Purnell and Ronald Harris on April 3 0, 2007. 50 The indictment alleged six counts against each of them: (1) Murder First Degree, (2) PDWDCF as to the murder, (3) Attempted Robbery First Degree, (4) PDWDCF as to the attempted robbery, (5) Conspiracy Second Degree, and (6) PDW BPP. 51 The Supe rior Court appointed Peter Veith, Esquire (“Trial Counsel”) to represent Purnell on May 7, 2007. 52 However, Trial Counsel had already represented Dawan Harris

-- as mentioned, a suspect in the murder of Mrs. Giles

-- in his prosecution conc erning the
.38

- caliber Smith & Wesson revolver police recovered in the February 2006 search. 53

48 A578. Detective Si mmons’s questioning continued to characterize the charges and their potential consequences in graphic terms, telling Ronald “[y]our last free moments as a human being are done” and “[n]ever again will you walk the face of this earth without handcuffs or sh ackles around your leg or being behind a building with lots and lots of bars.” A595. 49 A614. 50 A1 (Superior Court Docket). 51 A2 1

– 24 (Indictment). 52 A1 (Superior Court Docket). 53 A835 (Attorney Veith Conflict Letter).28

In that earlier prosecution, Dawan Harris had faced PDWBPP and Conspiracy
Seco nd Degree charges. He entered a guilty plea to the PDWBPP count on June 5, 2006. 54 On the same day, he was sentenced to two years at Level V incarceration, suspended after 90 days for 21 months at Level IV partial incarceration, suspended after six month s for one year of Level III probation. 55 By the time of his plea agreement and sent encing, the unsuspended Level V time had already elapsed, and a release was faxed to the H.R. Young Correctional Facility on the same day. 56 On December 6, 2006, the Super ior Court found Dawan Harris in violation of probation. 57 The Superior Court sentenc ed him to six months at Level V incarceration, effective November 30, 2006, suspended after time served. A different attorney represented Dawan Harris at the Violation o f Probation hearing.
15. Trial Counsel’s Investigation
Trial Counsel took a number of inve stigatory steps to develop Purnell’s case. He hired an outside consulting firm to locate and interview potential witnesses. 58 He retained a handwriting expert to review writings the State’s expert attributed to Purnell. He

54 Id .; see also Case Review Calenda r, State v. Dawan Harris , Case No. 0602015362 (Del. Super. June 5, 2006) (D.I. 5). 55 Sentence Order, State v. Dawan Harris , Case No. 0602015362 (Del. Super. June 5, 2006) (D.I. 8). 56 Release, State v. Dawan Harris , Case No. 0602015362 (Del. Super. June 5, 2006) (D.I. 6). 57 VOP Order, State v. Dawan Harris , Case No. 0602015362 (Del. Super. Dec. 6, 2006) (D.I. 12). 58 A1584 (Att orney’s Affidavit in response to Defendant’s Second Motion for Postconviction Relief) (“During pre

- trial preparation, the defense hire d Shannon and Associates as our investigator. . . Shannon Associates also conducts polygraph examinations.”).29

interviewed the orthopedic surg eon , Dr. Rubano, and a nurse at the New Castle County Detention Center to prepare a defense around Purnell’s physical incapability. 59 These efforts appear to have been aimed in significant part at persuading the State of Purnell’s
innocence rather than dev eloping a case for trial. 60 But by Trial Counsel’s admission he did not pursue several investigatory leads. He did not investigate Troy Hammond as a possible witness to Dawan Harris’s statement that “you should have seen the way she fell.” 61 He did not ob tain a ballistics expert to investigate the connection between the 9mm shell casing and Mrs. Giles’s murder or otherwise investiga te any connection between Mitchell’s and Harris’s illegally possessed
.38

- caliber revolver and the killing. 62 And, critically, Trial Counsel did not attempt to locate the other witnesses who had implicated his former client, Dawan Harris.

59 A1586 (“I interviewed the treating physician and had him under subpoena to address this issue in the defense case. After speaking with the doct or on at least two occasion, [sic] I elected not to call him as a defense witness, however, the State call [sic] him in th eir case

- in

- chief, so he was subjected to cross

- examination.”) (alterations added). 60 A1590

– 91 (“As I stated earlier in this affidavit , I tried to convince the State that the Defendant was innocent because of his injury requiring him to use crutches, I had him undergo a polygraph examination to support this claim, I spoke to his family and friend [sic] about his physical condition, I int erviewed his treating physician and subjected him to cross

- examination.”) (alteration added). 61 A1590 (“I did not investig ate Troy Hammond”). 62 1588 (“Trail [sic] counsel does not recall investigating or presenting evidence the ballistics evidence concerni ng the 9mm shell casing at the scene as it relates to a .38[

- ]caliber firearm. . . I do not recall retaining a ballistics expert. . . I do not recall investigating Kelli [sic] Mitchell and Dawan Harris in connection to a .38[

- ]caliber firearm.”) (alteratio ns added).30

Finally, althoug h he spoke to and subpoenaed Dr. Rubano, Trial Counsel did not speak with the vascular surgeon , Dr. Harad , or obtain an expert report examining whether Purnell was physically capable of running so soon after major knee surgery.
16. Trial Counsel Brings the Conflict to the State’s Attention In January 2008, 63 Trial Counsel alerted the State by letter of what he cha racterized as the pote ntial conflict over his prior representation of Dawan Harris: I write to you today to either confirm or avoid a potential conflict that I may have representing Mr. Purnell. I was assigned as conflict counsel to represent a Dawan Harr is I.D. No. 0602015362 for possession of a firearm by a person prohibited and conspiracy second. Dawan’s co

- defendant was Kellee Mitchel [sic] who is a State witness in Purnell. Based upon my review of the Dawan Harris file, it is clear that his arrest r esulted from Detective Tabor’s investigation of the Giles murder. The seized weapon was a .38 [

- ] caliber revolver. Harris eventually, pleaded guilty to the person prohibited charge. Firstly, I have a conflict if Dawan Harris is a witness for the State in the Purnell matter. Secondly, it is clear from the discovery produced to date in the Purnell matter, that Mitchell will be a witness for the State. I have never represented Mitchell so I do not think that this will present a conflict. Please let me kno w your position. 64
Thu s, Trial Counsel made clear that Dawan’s PDWBPP charge, including the .38

- caliber revolver, was an outgrowth of the Giles murder investigation, but also that his view

was that he would be conflicted if Dawan Harris were a witness for the State and that no conflict resulted from Mitchell’s witness status. The State responded, concurring with Trial Counsel’s assessment that Mitchell’s

63 Dawan’s sentence had apparently expired the previous month, as noted earlier. 64 A835 (Attorney Veith Conflict Letter).31

upcoming testimony would not present a conflict. 65 The prosecutor further explained that “[a]s of this date, the State has no plans to call [Dawan] Harris as a witness in this matter.” 66 However, t he State cautioned that, “ as is true in any important case, our investigation is continuing and so it is possible that we could learn things in the future that would change

our current plans about [Dawan] Harris,” and that “Kelle [sic] Mitchell will be a State’s witness.” 67
17. Ronald Harris Enters a Plea Agreement Jury selection began on April 2, 2008. 68 On April 7, Ronald Harris entered into a plea agreement with the State. Under the terms of the agreement, Harris entered guilty pleas to Attempted Robbery First Degree and Conspiracy Second Degree and would testify in Purnell’s trial, while the State dr opped the remaining charges, including the Murder First Degree count. The State further a greed to recommend a three

- year sentence of incarceration, less the fifteen months already served since his January 2007 arrest. Also pursuant to the plea, Ronald Ha rris sat for a third interview with Detective Tabor , part of
which the State audio recorde d and transcribed. 69 We refer to this third interview as his plea proffer interview discussed below in the context of his trial testimony.

65 A837 (State’s Response to Attorney Veith’s Conflict Letter).
66 Id

. 67 Id

. 68 A5 (Superior Court Docket). 69 A245

– 46 (Test imony of Detective Tabor).32

18. Trial Counsel Presents t he Conflict to the Trial Court
Also o n April 7, after jury selection and Ronald Harris’s ch ange of plea but before the start of the trial, the trial judge held a hearing to rule on outstanding evidentiary motions
in limine

. 70 Following the presentation of the evidentiary motions in limine , Trial Counsel brought the conflict to the Court’s attenti on. The State argued against the importance of the prior representation on the logic that the firearm involved was a different calibe r than
the one that left ballistics evidence at the scene. Trial Counsel noted particular concern because Dawan Harris’s name was read to the jury during voir dire , prompting him to worry that the State may be considering calling him.
Like Trial Counsel and the prosecutor, the trial court focused exclusively on whether Dawan Harris would be a testifying witness. Trial Coun sel expressed concern that, independent of whether Dawan testified, if Purnell were convicted , the fact of his prior representation of Dawan might be grounds for later collateral attack on the fairness of the
trial.
Trial Counsel made clear to the trial court that one of the theories of the defense was that Mitchell and Dawan Harris committed the robbery, and that Rayne mistook Dawan f or Ronald due to what the record suggests was a very strong familial resemblance. Another theory was that Ronald and Dawa n Harris were the culprits and Ronald was “covering for

70 A25 (Motion in Limine Transcript). Among these was the State’s motion to exclude Mr. Giles’s identification of Kellee Mitchell and non

- identification of Purnell on hearsay grounds following Mr. Giles’s death.33

his brother and he’s th ro w i ng Mark Purnell under this [sic] because Mark Purne ll snitched on them for shooting this .38

- caliber out of a window in Compton Towers that prompted them getting in trouble. ” 71 The following exchange then occurred: THE COURT: All right. So, you’re arguing that a person that you represented in the past c ommitted a crime this time? [TRIAL COUNSEL]: Potentially. That’s an argument, yes. 72 However, the trial judge expressed doubt that this theory was a meaningful conflict in light of Ronald Harris’s plea. 73 Trial Counsel expressed a specific intent to call Dawan Harris
to the stand. 74 Furthermore, Trial Counsel noted at that hearing that he had received Dawan’s recorded pos t

- arrest interview from February 18, 2006 , only days earlier. Trial Counsel
called attention to the fact that Detective Tabor told Dawan that he was identified from a photographic lineup as a participant, and Trial Counsel represented to the Court that, b ased on the tapes, he was more certain than he was before that he was conflicted. The trial judge

71 A39 (alteratio n added). 72 Id

. 73 Id. (“Well, if Ron Harris admits he’s the Harris involved, I'm asking

-- I'm trying to figure out how substantive any potential conflict really is.”).
74 See A39: THE COURT: Do you intend to call him? TRIAL COUNSEL: I intend to, but wh ether I do, I don’t know.34

hypothesized, and the State confirmed, that Detective Tabor had been lying about the identification in an attempt to provoke an inculpatory admi ssion. 75
Fur ther, the prosecutor noted the State’s view that the Dawan interview was not material to the case, apparently to preemptively rebut any argument that the late disclosure was a discovery violation, asserting that “[w]e don’t have any reason to believe [Dawa n] has knowledge of the crime,” that “[t]here’s nothing of any substance in those audiotape interviews” and that “I don’t see any Brady 76 material in there.” 77

75 See A40

– 41: TRIAL COUNSEL: [The recorded interview is] information from Detective Tabor t hat he’s alleging that [Dawan] Harris was identified as a suspect and picked out of a line

- up. And I would try to cross examine him abo ut that. . . I don’t know if it’s a total fabrication or if it’s made up

-- THE COURT: Well, it might be that the cops are lying to him to get him to say something. TRIAL COUNSEL: It very well may be. I believe that’s the representation that the State

-- THE COURT: [Prosecutor] you’re standing and shaking your head, yes. THE PROSECUTOR: That’s right, Your Honor.
76 S ee Brady v. Maryland , 373 U.S. 83, 87 (1963) (“ the suppression by the prosecution of evidence favorable to an accused upon request viola tes due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad f aith of the prosecution. ”).
77 A41 (Motion in Limine Transcript). Yet, as the prosecutor concedes moments later, the recordings are pote ntial impeachment material against Detective Tabor

. Id .; see also D.R.E. 608(b) (permitting cross

- examination as to pre vious instances of conduct probative of a witness’s character for truthfulness or untruthfulness). Moreover, the State knew that in Ham mond’s January 2007 interview, the critical break in the case spurring the State to prosecute Purnell, Hammond claimed t hat Dawan Harris was with him when he heard the Giles shooting. The State therefore had to be aware that Dawan could necessarily corrob orate or contradict Hammond’s account.35

Trial Counsel reiterated his belief that, despite the arguments to the contrary wh ich the trial ju dge and prosecutor had offered, “I still have to call [Dawan] as a witness.” He pointed out that simply letting the jury see the resemblance between the Harris brothers would support Purnell’s theory that Rayne misidentified Ronald and tha t Ronald Harris ple a d ed guilty to protect his brother. Trial Counsel reiterated that the defense strategy would be to suggest that the .38

- caliber pistol jointly possessed by Mitchell and Dawan
Harris was the murder weapon and pointed out that the State h ad produced no b allistics expert to contradict that theory. At the conclusion of the hearing, the trial judge instructed Trial Counsel to determine with certainty whether he would be calling Dawan Harris as a witness, and to give an answer the following morning. The fo llowing morning, Trial Counsel was unable to answer with certainty, and so the trial court reserved decision on the issue until and
unless Dawan Harris was called. Thus, the trial began with Trial Counsel fully aware of
the conflict of int erest that could impact his trial strategy. But in his mistaken view, the conflict arose only if Dawan Harris were called to testify.
B. The Proceedings t o Date
1. The Trial At trial, witnesses testified as to the for e going facts. Additional testimony was adduced as well, a nd which is discussed separately herein because of its relevance to the instant motion and Purnell’s claim of actual innocence. In its opening statement, the State discussed part of the investigatio n in this case, and explained that, although the revolver was discovered during a search pursuant to the36

Giles murder investigation, and al though Mitchell was a suspect at the time, “you will see
no evidence whatsoever that that .38

- caliber revolver was th e weapon that killed Tameka [Giles].” 78 Instead, the Stat e emphasized, “a single 9

- millimeter shell casing was found on Willing Street, just a few feet from where she fell after being shot .” 79 And because “a .38

- caliber revolver cannot fire a 9

- millimete r shell casing,” there was therefore “no evidence
that that .38

- caliber re v olver I just told you about had anything to do with this crime.” 80
Trial Counsel likewise recognized the centrality of the revolver and the shell casing. He explained “the only pie ce of physical evidence they have for this horrendous crime, and this is a horrendous crime, is a shell casing.” 81 But “the defense would submit that that piece of evidence can’t even be linked to this crime.” 82 Similarly, both the State and the defense immediately recognized that the State’s case relied heavily on the testimony of unreliable witnesses whose testimon y was motiv at ed in part by self

- interest. As the State conceded, “some of the folks whom we will call as ‘witnesses’ in this trial, and I mean no offense to them, but I think it’s fair if I say they are less than ideal citizens.’” 83 The State also conceded that “in order to gain the cooperation of [Corey Hammond], the State has had to agree to seek a reduction in the

78 A61 (The State’s Opening Statement). 79 Id . (emphasis added). 80 Id

. 81 A67 (The D efense’s Opening Statement). 82 Id

. 83 A65 (The State’s Opening Statement).37

sentence he is currently serving,” and that “in order to gain Ronald Harris’s cooperation , the murder charges pending against him in this indictment were dropped.” 84
T he State similarly conceded that , because “Wilmington Police were unable to locate any forensic evidence, whatsoever, that links the defendant with this crime,” the
State’s case was instead based on Purne ll’s statements to others and the testimony of
Ronald Harris

. Trial Counsel echoed these criticisms, summarizing that “almost all their witnesses, he gets something out of it, he gets a benefit, he gets a deal.” 85 And, in sum,

“ the State’s evidence is la cking, the witness’s [sic] credibility is at issue in this case, and my client has an alibi defense.” 86

a. Angela Rayne’s Testimony Rayne’s testimony was consistent with what she had told investigators at the time. She was only a few steps away from the murd er when it happened. Willing is a small side street leading off of the north side of Fifth Street. Fifth Street is a one

- way street, westbound, which in the area of Fifth and Willing goes uphill in the direction of traffic. The p erpetrators were two Afri can American boys, wearing dark

- colored hoodies , coming towards the Fifth and Willing intersection from the direction of Fifth and West,
one block to the east . She estimated that one was slightly shorter than she was, but the
othe r was significantly talle r.

84 Id . Alteration added. At the time of the opening statement s, the State still was not disclosing Corey Hammond’s identity. A68 (The Defense’s Opening Statement). 85 A68 (The Defense’s Opening Statement). 86 Id

.38

The victims were “a guy and a girl” walking along Fifth Street . The two perpetrators, after passing in front of Rayne and doubling back the way they came, walked towards the couple. When their paths crossed, Rayne heard a sin gle gunshot, but did not

see the shot being fired as she had not been watching the people. She looked over immediately on hearing the shot and saw that both perpetrators had immediately fled, running , while the victim was laying on the ground

. They fled in t he direction of Fifth and
West Streets , the direction from which they had come . She did not recall whether they were running together or not, but she emphasized that they were running very fast and at full speed , such that even though she had looked o ver immediately after hearing the shot, they were already gone. Rayne had heard no verbal exchange between the perpetrators and the couple prior to the gunshot. And she concede d that she was high on crack cocaine (a $500 a day habit according to her ) at t he t ime of the robbery and when she identified Ronald Harris from the lineup, and at trial she admitted she was “ not 100 percent certain” that Ronald was the perpetrator as she had been when she made the identification

. 87

b. Ronald Harris’s Testimony
Under Ron ald Harris’s plea agreement, he pleaded guilty to Attempted Robbery First Degree and Conspiracy Second Degree while the State dropped the Murder First Degree and PFDCF charges against him. 88 The agreement also required his testimony in

87 A88 (Testimony of Angela Rayne). 88 A238 (Testimony of Ronald Harris).39

Purnell’s trial. Un de r his plea agreement, the State would recommend three years of incarceration, against which Ronald had already served fifteen months. Prior to his testimony, t he State told the trial court that Ronald Harris was “a little bit unpredictable. ” 89 On April 1 7, 2008, Ronald Harris testified that in the morning of January 30, 2006, he met Purnell, al though he did not recall where, and Purnell asked him to join him in a purse snatching by saying “Let’s go rob somebody.” 90 He testified that he agreed b ut they
did not discuss the matter further. Later in the day, he described contact with the Wilmington Police while he was near the corner of Fifth and Jefferson Streets. He then testified that later that evening he met up with Purnell again at Compton T owers, wher eupon they left to commit the robbery without any further discussion. He claimed that they arrived at Fifth and Willing Streets and that when a bus arrived he and Purnell approached the Gileses as they got off of it. According to Ronald Harri s’s testimo ny, Purnell said “ [c] an I get ya’ll stuff” and pulled out a gun while he was only three or four feet away from them. Harris claims to have fled on seeing the gun, and that he heard a single gunshot approximately five seconds
later. He claimed that he did not see Mark Purnell again until February 18, 2006, the day of his arrest, when he was in Latoya Moody’s apartment with Purnell, and that , despite their both being in the apartment, he had not spoken to Purnell that day beyond saying “what’s up .”

89 A207 (Trial Transcript). 90 A2 39 (Testimony of Ronald Harris).40

Therea fter, the State interrupted Ronald Harris’s testimony to call Detective Tabor and introduce an audio recording of Ronald Harris’s April 7 plea proffer interview as a prior voluntary statement under 11 Del. C. § 3507. The State also produced a t ranscript o f the interview Detective Tabor had prepared based on the recording. 91 Ronald’s proffer interview , given just ten days prior to his trial testimony, was at times inconsistent both internally and with his trial testimony that had just been interr upted
for th e playing of the recording . In the proffer interview, when Detective Tabor asked him “why do you think [Purnell] shot her?” Ronald sa id , “ [c] ause he told so many people about it.” 92
Ronald was asked “[d]id you hear the shot ?” He answered, “[n]o.” Detec tive Tabor
told him that a witness is “gonna say that you were there when the gun, when the gun shot went off,” that “you have to be completely truthful with me at this point” and that “to say that you didn’t hear the gun shot that doesn’t make any sense, ” to which, Ronald answered, “[ r]ight.” 93 He then resumed questioning Ronald, asking “Did you ever see Mark Purnell

91 A245 (Testimony of Detective Tabor). After playing the audio for the jury, the State informed the trial court that “the State will be moving a copy of that recording in as a Court Exhibit” but that “We don’t have a copy right at this moment.” A246. That does not appear to have happened. Having reviewed the complete tria l record, the Court has been unable to locate the audio recording of the Ronald Harris interview, and instead has relied on the transcript. 92 Trial Cou rt Exhibit 8 at 2. This seems to reflect Ronald misunderstanding the question. Detective Tabor’s questi on appears to inquire as to Ronald’s knowledge of Purnell’s motive for shooting, whereas Ronald’s answer relates to how Ronald knows about the shooting . Having misunderstood the question, Ronald’s response, consistent with Purnell’s theory that Ronald is also innocent and only entered his plea to avoid a possible life sentence, implicitly disclaims personal knowledge of who shot Mrs. Giles. 93 Id

.41

with a gun,” to which Ronald responded “[n]o.” 94 In the proffer interview Ronald claimed that he and Purnell we re alone in Compton
Towers when they agreed to commit the robbery on the night of the murder , rather than the preceding morning, before his police encounter

. 95 Unlike in his trial testimony, in the interview he went on to claim that they went immediately from there to the robbery. He

c laimed that they saw the Gileses get off the bus and waited at the Fifth and Willing intersection until they got there

-- a fact which is inconsistent with Rayne’s eyewitness

account

. In the interview, Ronald recalled that the Gileses were carrying white bags. Ronald
claimed Purnell demanded “ money ” from Mrs. Giles, rather than her “stuff” as he had
testified at trial

. He also asserted that Mr. Giles responded to that demand by telling Purnell to “get away , ” a fact not te stified to at trial and inconsis tent with Rayne’s disinterested

account

. Ronald claimed that at that point Purnell “pulled out the gun” and that he, Ronald, fled, and “heard a shot like two days later, a day later, two days it was a day or two days later, I got the phone call that Mark had shot somebody.” 96 Detective Tabor responded that “Now you couldn’t have obviously gotten too far away because from what the witness says the shot went off almost immediately when he pulled the gun.” 97 Despite Ronald’s prior response that he did not he ar the shot, Detective Tabor then

94 Id

. at 3. 95 Id . at 1, 3

– 4. 96 Id . at 6

– 7. 97 Id . at 7.42

asked, “[n]ow which way did you, where did you run to after you heard the shot , where did you run to?” 98 Under further questioning, in the interview Ronald revised his story again and
clai med that “I seen him pull the gun o ut then I heard the shot but I didn’t see him shoot nobody.” 99 In that version of events, again articulating facts absent from his trial testimony, Ronald asserted that Purnell pointed the gun at Mr. Giles first, not Mrs. Giles, 100 and that
after the shot Pu rnell ran off in the opposite direction, westbound down Fift h Street towards Washington Street. 101 At the end, the d etective revisited what happened after Purnell “pulled the gun out,” and he asked, “[a]nd that’s when you heard the shot or you turned to run and you heard the shot ?” 102 He then asked: Q: Okay alright how many steps do you think you think you got before you heard the shot ? Couldn’t have been many?
A: Like five feet. Q: Yeah. A: Like five feet, five and a half feet. Q: Okay and you heard the shot and you guys ran separate directions?

98 Id . at 11 (emphasis added). As with Hammond, Mitche ll, and Dawan Harris previously, Detective Tabor once again prompted Ronald Harris that there was only a single gunshot involved in this case. 99 Id . at 13 (emphasis added). 100 Id

. 101 Id . at 11. 102 Id . at 16.43

A: We ran in separate directions. 103
Trial Counsel failed to cross

- examine Ronald Harris on this nearly

- incoherent recitation of events concerning whether he actually had seen Purnell with a gun and whether he had actually heard a shot fired. These confused sta tements, which preceded his trial testimony by only ten days, and which Purnell’s conflicted counsel failed to challenge via any cross examination, were by the State’s own admission a linchpin to its c ase. As the Prosecutor, speaking of the effect of Rona ld Harris’s plea, asserted during the April 7 motion in limine “the State’s case, until today, was almost exclusively based on the fact that the defendant, Purnell, made admissions to multiple people c laiming responsibility for the crime. Two of those admissions were in detail to [Mitchell and Corey Hammond].” 104

c. Corey Hammond’s Testimony When Corey Hammond testified he conceded that he was testifying as a part of a plea agreement he had entered in Jul y 2007. 105 That plea agreement covered not only the charge for which he had been arrested on January 4, 2007, but also another drug offense for which he was arrested on February 3, 2007 , after h is release on bail. 106 Under the terms of his plea agreement he received a three year Level V sentence entirely suspended upon completion of the Greentree program, followed by six months of Level IV work release, followed by probation. Under the agreement , the State dropped a charge for Trafficking

103 Id

. 104 A30 (Motion in Limine Transcript)

. 105 A153 (Testimony of Corey Hammond). 106 A172.44

Cocaine, which woul d have had a mandatory minimum sentence. The State further agreed to ask the judge to remove the Level IV portion of the sentence in exchange for his truthful testimony in Purnell’s prosecuti on. Corey Hammond testified that approximately an hour before the Giles murder he was hanging around outside Aunt Sherry’s house 107 at Sixth and Washington Streets with a group of others, including Purnell and Ronald Harris. He said that Purnell announce d to those assembled that he was “tired of being broke.” Hammond went on to claim that
Ronald Harris at that time asked Purnell what he wanted to do. Hammond also testified that at around the same time, Purnell showed off a semiautomatic Glock

- style pist ol (not a revolver) 108 to him, hidden in Purnell’s waistband, and t hat after these events, “one of my cousins had came past or walked past, or a friend I knew from my block came walked past, and I just walked off with them.” 109
As he had claimed in his Janua ry 2007 interview, Hammond testified that he was at
Fifth and Jeffe rson Streets when the robbery occurred. But u nlike at that earlier interview, he claimed to have heard only a single gunshot

-- “ the shot ”

-- rather than multiple shots, and specifically denied that Dawan was with him . And he testified that the next time he

107 The Harris brothers’ Aunt Sherry’s home was at Sixth & Washington street. A156. 108 As Carl Rone, a Delaw are State Police Forensic Firearms Examiner, explained in his testimony, in a revolver, ca rtridges are loaded into a rotating cylinder and after a round is fired the spent shell casing remains in the cylinder. A235 (Testimony of Carl Rone). By contrast, in a magazine

loaded semiautomatic pistol, after a round is fired the force of the round g oing off pushes the slide (top) of the pistol back, causing it to extract and eject the spent casing, re

- cock the pistol, and load another round from the magazine. I d

. 109 A157 (Testimony of Corey Hammond).45

saw Purnell and Ronald Harris , a couple of days to a week later , Purnell bragged about shooting Mrs. Giles. The State also played Ham mond’s 2007 interview as a voluntary prior statement
under 11 Del. C. § 3507. When the State elicited testimony from Hammond laying the foundation for that prior statement, Hammond acknowledged that in his first interview he denied any knowledge of the mu rder. But he claimed that he provided information in January 2007 because he had been charged with several drug felo nies and Detective Tabor “told me he would get me home to my son.”
On cross

- examination, Hammond stated that at the time he hear d the shot and went to the scene he had 80 bags of crack cocaine on him. He acknowledged that he was a drug
dealer and that he sold crack cocaine the night of the murder.
Trial Counsel did not attempt to impeach Hammond with his January 4, 2007 statement that “[l] ittle Ron pulled the trigger,” a statement that was inconsistent with the State’s theory that Purnell was the shooter . Although Trial Counsel asked Hammond to confirm that Dawan Harris was not with him, contrary to his January statement, Trial
Counsel did not explore this critical discrepancy further. 110

110 In connection with Purnell’s present Rule 61 mot ion, he has submitted an affidavit from Corey Hammond’s brother, Troy Hammond. (A666) Troy Hammond states that he was at Fifth and Jefferson Streets with friends at the time of the gunshot and that Corey Hammond was not with him. He said he stayed at the scene for several minutes and saw Mrs. Giles lying on the ground, but he never saw his brother there.46

d. Kellee Mitchell’s Testimony When he testified, Mitchell denied any r ecollection of the details of the interrogation where he implicated Purnell and denied any recollection of the events he discussed in that interview. Instead, the State relied on a recording of the interview, introd uced as
substantive evidence under 11 De l. C. § 3507. When the State laid the foundation 111 for playing that prior statement, Mitchell insisted that he spoke with police only because he had outstanding warrants. 112

111 See Barnes v. State , 858 A.2d 942, 944 (Del. 2004) (“ The pr osecutor must inquire about the voluntariness of the declarant ’ s pretrial out

- of

- court statement during direct examination of the declarant, and the judge must make a ruling on voluntariness before submitting it to the jury for consideration. ”); Hatcher v. State , 337 A.2d 30, 32 (Del. 1975) (“ The voluntary nature of the statemen t may be elicited from the declarant during the direct examination now required by [ Keys v. State , 337 A.2d 18 (Del. 1975)].”)

. 112 There is no requirement in 11 Del. C . § 3507 that a witness statement be subject to audio or video recording. But a recording offers numerous practical advantages to the State and the tribunal over sole reliance on the interviewer’s notes and memory. Moreover, the law allows introduction only of a “ volunt ary out

- of

- court prior statement.” 11 Del. C . § 3507 (emphasis a dded). “ The Trial Court must be satisfied that the offering party has shown by a preponderance of the evidence that the statement was voluntarily made .” Hatcher , 337 A.2d at 32. We have li kewise held that a voir dire is necessary on this question “ if th e declarant denies that the statement was voluntarily given or if an issue is raised in any other way as to its voluntary nature ,” suggesting that even a witness’s testamentary denial of coer cion is not dispositive. Id . (emphasis added). Here, the detect ives conducting the murder investigation interview in a room set up for audiovisual recording, interviewing a person who had been identified as the shooter by an eyewitness, did not turn on t he recording equipment until partway through the interview. Dete ctive Tabor’s explanation for this failure was that he only turned the equipment on when he “realized the information that [Mitchell] was providing was significant to the investigation.” A11 1 (Testimony of Detective Tabor). The State’s failure to record part of an interview, and its explanation for that failure, are matters the trial court may consider in evaluating whether the State has satisfied the burden of showing voluntariness.47

Mitchell knew himself to be a suspect in the Giles murder. The day of his arrest , police had told his girlfriend , Etienne Williams , that he had been arrested for a murder. 113
And , on the evening he was arrested, Mitchell called her from the New Castle County
Detention Center to tell h er that the police investigators were trying to obta in his confession
to the murder. 114

e. Handwriting Evidence The State also presented graffiti recovered from a correctional institution where Purnell had been held that contained a threatening message against Mitchell over him being a ‘snitch,’ and proffered a forensic handwriting expert who opined that the writing was Purnell’s. 115

f. Dawnell Williams’s Testimony of an Earlier Nearby Shooting After the State closed its case in chief, Trial Counsel adduced testimo ny from Dawnell Williams, a social worker who worked f or the Salvation Army at Fifth and Orange
S treets. 116 She testified that she heard another shooting earlier in the evening on January 30, 2006, hearing two shots coming from the direction as Fifth and T atnall Streets. From
the intersection of Fifth and Ora nge, the intersection of Fifth and Willing is two blocks

113 A17 7 (Testimony of Etienne Williams). Aqueshia Williams also unders tood the February 18, 2006 arrests to be for the Giles murder. A195 (Testimony of Aqueshia Williams). Detective Tabor likewise confirmed that Mitchell was a murder suspect at the time of hi s February 2006 arrest. A229 (Testimony of Detective Tabor). 114 A 192 (Testimony of Etienne Williams). 115 A143 (Testimony of Georgia Carter). 116 A254 (Testimony of Dawnell Williams). Fifth and Orange is three blocks east/southeast of Fifth and Willing.48

further in the same direction ( West ) as Fifth and Tatnall. She saw two males running towards Fifth and Orange to a small primer

- colored car. T estifying more than two years after the incident, Willi ams did not recall the males’ appearances. 117

g. Detective Tabor’s Testimony
Detective Tabor testified several times over the course of the trial. Trial Counsel

cross - examined him as to his investigation of the .38

- caliber revolver and as to the Giles
murder i nvestigation. Detective Tabor agreed that Rayne’s contemporaneous
identification of the assailants in the Giles murder was of two black males, one of whom was approximately 5’9 , ” and the other who was shorter than her own height of 5’5” and of lighter ski n tone than the taller one. Detective Tabor agreed that , in his report after arr esting
Dawan Harris and Kellee Mitchell for the .38

- caliber revolver, he described Dawan Harris as 5’8” and dark complexioned and Kellee Mitchell as 5’5” and having a light sk in tone. While both had confessed to possessing the .38

- caliber revolver found i n the search, the State dropped the charge against Mitchell. As Detective Tabor explained, the State did so to keep information relating to the Giles murder investigation fro m becoming public. Detective Tabor also testified as to the 9mm shell casing re covered in the vicinity. He testified that the shell casing was located on Willing Street about forty feet north of the intersection of Fifth and Willing Streets. Contrary t o the State’s opening statement telling the jury that the casing was “ a few feet ” from the body, Corporal Dempsey of the

117 At the time, she had told police that she recalled them as black, w ith “Sunni” beards. A685 (Wilmington Department of Police Supplemental Report).49

Wilmington Police Department’s Evidence Detection Unit explained that after he found it , he measured that it was more than sixty feet f rom the curb by where Mrs. Giles was shot. 118 As the first responding officers ha d earlier noted, Mrs. Giles had fallen approximately five
feet outside the intersection of Fifth and Willing

. Detective Tabor also noted that the police investigation discovere d that Mrs. Giles had received and cashed a tax refund check for $1,748 on the day she was murdered. He also gave a narrative timeline of the investigation into Purnell after Corey Hammond implicated him. 119

h. Alibi and Injury Evidence Latoya Moody testifie d as to the circumstances of Ronald Harris’s arrest on February 18, 2006. She explained that , in addition to being the Harrises’ cousins, she is Purnell’s cousin on her father’s side. Ronald Harris, Purnell, Ronald’s sister Dawn Harris, and Moody’s broth er Robert Pritchard all visited her overnight from February 17 until
Febru ary 18 , 2006 , to celebrate Moody’s and Dawn’s birthdays. Moody testified that Purnell was still on crutches at the time and that the only time she saw him moving around
without crut ches in the two

- to three

- week period after his hospital discharge was one

118 A217. 119 Detective Tabor erroneously mixed up the dates and order of the interviews implicating Purnell, desc ribing the Mitchell interview as taking place on January 4, 2007, Purnell’s arrest on January 23, and the Hammond interview on January 24, which he then corrected to January 4. A219. The dates on the interview transcripts show that the Hammond interview w as on January 4 (A624), and Mitchell’s interview was on January 2 2 (A499). Detective Tabor’s recall of Purnell’s arrest date is correct, as reflected by the criminal docket (A1). The January 24, 2007 interview was with Ronald Harris (A522), who at that t ime continued to deny any involvement in the murder.50

occasion where he hopped on one leg toward the bathroom and almost fell. She asserted that on the night of February 17, 2006, he was still on crutches and had slept in her bed “bec ause his leg was still messed up.” 120 She asserted that , after Purnell’s h ospital discharge, he initially went to his mother’s house but shortly thereafter went to stay at his grandmother’s in an apartment two floors below Moody’s in Compton Towers. 121 From then until February 18, 2006, Purnell came to her home frequently

. Dori s Honie (“Honie”), Purnell’s grandmother, and Honie’s friend Marline Smith (“Smith”) testified that they played cards together at Honie’s Compton Towers apartment on January 30, 2006, where they planned a party for the January 31 st birthdays of several
of their mutual friends. Both Honie and Smith testified that Purnell was there that evening, in a black recliner, and that he needed his father’s or uncle’s assistance to get up and to g o to the bathroom.
Honie testified further that Purnell had come to her apartment after his hospital discharge and stayed there for weeks thereafter, and that she regularly cleaned his leg and changed his bandages. She further claimed that he was unable t o get around on the crutches for close to two weeks. Until then, Honie claimed, Purnell was housebound in her apartment. 122 She further claimed that after he began using the crutches, approximately February 6, 2006, he still did not leave her apartment for several days and was only capable of hobbling. By February 21, 2006, when he had a police interview, she claimed he was

120 A262 (Te stimony of Latoya Moody).
121 A266. 122 Id

.51

still using one crutch.
On cross

- examination, Honie denied having written any letters to Purnell while he was incarcerated, other than on his birthday. But the State confronted her with letters she wrote to him during his incarceration. 123 In one of those letters, Honie consoled Purnell about how difficult it can be to be falsely accused. The letter went on to state that Honie
knew Purn ell was being falsely accused because “I know I worked on your leg for a week and you didn’t even use the crutches for a week,” and that he had “scooted around on the floor for a week,” and because Purnell was still in her apartment the evening following t he murder when the local news reported on Mrs. Giles’s being shot. The State also elicited Honie’s admission that she ha d previously lied to police in another matter, giving a false name for one of her sons when police found him in her apartment.
Addition ally, Trial Counsel adduced testimony from George White (“White”), a youth rehabilitation counselor at the New Castle Cou nty Detention Center, a juvenile holding facility. White confirmed that Purnell was detained at that facility from February 1, 2006 , u ntil the afternoon of February 3, 2006 , due to an outstanding capias. While White recalled Purnell using crutches to get around during his detention he did not recall whether Purnell had arrived with them or if the detention center had issued them pursuan t to a medical procedure.

123 A297 (Testimony of Doris Honie). The State had not disclosed to Purnell that it possessed those letters, which it represented to the trial court had been found during a search of another inmate’s cell on or about April 9, 2008, prior to confronting Honie. A303. Trial Counsel alerted the State and trial judge that he believed Purnell may have a valid basis to suppress the letters or to seek a mistria l due to the State’s surprise use. A304.52

i. The State’s Rebuttal Evidence In rebuttal, the State called Dr. Rubano, who testified about Purnell’s surgery and his noncompliance with follow

- up care. As Dr. Rubano noted, the vascular surgeon Dr. Harad had been the lead surgeo n for the original attempt to remove the bullet from the rear of Purnell’s knee. Dr. Rubano’s knowledge of Purnell’s recovery was further complicated by the atypical nature of the surgery

-- “Going in from the back is not a normal surgery for orthopedic s urgery. It is much more common for [a] vascular surgeon .” 124 Dr. Rubano
ha d performed such a surgery on only one or two other occasions in his career, despite performing thousands of knee surgeries. As a result, Dr. Rubano could not give an opinion,
withi n a reason a ble degree of medical certainty , whether Pur nell would have been able to
walk or run by January 30, 2006. In addition to Dr. Rubano’s testimony, the State called Detective Curley as a rebuttal witness. Detective Curley spoke of his February 21, 2006 interview with Purnell with an emphasis on Purnel l’s then

- current physical mobility and his description of having fled from Officer Kramer the previous night. Excerpts from the video interview were played for the jury.

j. The State’s Closing Argument
T he State based its closing argument on how the accounts of Corey Hammond, Ronald Harris, and Mitchell resolved into a single coherent, mutually supporting narrative.
The State heavily emphasized how, speaking of those three, “They’re all telling you the

124 A336 (Testimony of Dr . James Rubano).53

s ame details, the same things” as to the Gileses both ge tting off the bus at Fifth and Willing, and having white plastic shopping bags. 125
The State stressed the fact that the witnesses each had testified that there was only a single gunshot : THE STATE: Now , Corey Hammond also told you I wasn’t there; I was in the vicinity, that’s how we got there soon after the shooting. And he says I heard one, one gunshot on the night of January 30 th , one gunshot

. Corey Hammond tells you one, not two, not three, not ten , one gun shot . Ronald Harris when he testified to yo u, when he told you the story of the robbery that he was involved in, one shot . He told you he turned away and he ran when he saw the gun that he told you one shot . That’s what he heard. Also Angela [Rayne] tells you that. She saw sitting on the steps, close vicinity, she heard one gunshot. 126 To rebut Honie’s and Smith’s testimony, the State pointed out inaccuracies in their testimony, such as Honie’s denial that she wrote Purnell letters, or her clai m that he never left her apartment for weeks after hi s hospital discharge despite his spending time in the New Castle County Detention Center. And the State pointed out inconsistencies between Honie’s account and Latoya Moody’s. The State also sought to explain Mitchell’s claimed lack of memory on the stan d as being in fear of reprisal for “snitching,” and pointed to the threatening graffiti attributed to Purnell.

k. Purnell’s Closing Argument. Trial Counsel opened his argument by pointing out that the graf fiti complained both that Mitchell was snitching and that he was lying, and that the State had submitted no

125 A349 (The State’s Closing Argument). 126 Id.54

evidence to support the idea that Mitchell was aware the graffiti existed. He emphas ized
that Rayne failed to identify Purnell from a lineup and in stead identified other photos. Instead, Trial Counsel argued that Mitchell committed the Giles murder and that Mitchell attempted to make Purnell a scapegoat to escape liability. He pointed o ut that the murder occurred around 8:45 p.m. and that Etienne W illiams, Mitchell’s then

- girlfriend, testified that Mitchell had left the apartment the evening of the murder and returned later that evening around 9, 10 or 11 p.m. Trial Counsel urged the ju ry to disregard Purnell’s inculpatory phone calls as the jokes and posturing of a sixteen

- year - old. And although Trial Counsel was barred by the trial court’s ruling in limine from mentioning Mr. Giles’s identification of Kellee Mitchell, 127 Trial Counsel emphasized that Mitchell matched Rayne ’s physical description.
T rial Counsel argued that Mitchell had a motivation to lie because he was the culprit. Trial Counsel only weakly suggested that the .38

- caliber gun was the murder weapon

. But
he stated that h e could not speak about that .38

- caliber revolver because it was not in evidence. He did refer to testimony about it , including that it was recovered from the ceiling outside the apartment where Mitchell was staying. Trial Counsel further pointed out that Corey Hammond and Ronald Harris
contradicted each other on wh en and where the agreement to commit the robbery took place, and that Hammond , like Mitchell , had a motivation to lie. Trial Counsel also sought

127 Notably, when the State cross

- examined Honie, questioning her on why she had not sought out police to “tell them you knew they had the wrong guy,” Honie answered, “Mr. Giles already told them that they had the wrong guy.” A308 (Doris Honie Cross

- Examination).55

to refute the State’s emphasis on the consistency between the witnesses’ stories by pointing out that Hammond’ s own testimony showed he gained some of his knowledge about the
crime from n ews reports. Trial Counsel attacked Ronald Harris’s credibility, arguing that: TRIAL COUNSEL: Well, when you’re sitting in jail about to go to trial and you’ve been identified by a witness as being there when the murder happens and you get an offer to potentially three years as opposed to life, that’s an offer you can’t refuse. That is a good offer. And he even testified he was

-- he has already served about 15 months, so he’s o ut in 16 months if he gets three based upon his testimony. Go from life i n prison to three years. I submit that is a lot of motivation to tell them a story they want to hear. 128 In closing, Trial Counsel emphasized Purnell’s injury, the care Honie had to give him to keep the wound clean, and the testimony that Purnell was in n o physical condition
to commit the crimes and then flee by running fast and at full speed

.

l. The State’s Rebuttal In its rebuttal, the State again emphasized the view that the jury shou ld credit the State’s witnesses rather than Purnell’s witnesses as to ali bi and impossibility because the State’s witnesses “were consistent on all of the key points that establish the Defendant’s guilt, Angela [Rayne] , Corey Hammond, and Ronald Harris.” 129 As the State explained: THE STATE: Let’s put something on the table he re. What [Defense Counsel] is saying essentially in his typically gracious way is this: ‘Look, Corey Hammond, Kellee Mitchell, Ronald Harris, they’re all lying; they’re all trying to get a deal; this isn’t true. Now, do these witnesses have an interest, some of them anyway, in coming in here and telling you who shot [Tameka] Giles? Well, sure, no doubt about that. But why are they all telling the same lie and why are they all tellin g the same lie about him?

128 A362 (The Defense’s Closing Argument). 129 A 368 (The State’s Rebuttal).56

And the State connected those witnesses’ test imony to the physical evidence from the spent 9mm shell casing, emphasizing that it corroborated their stories and disproved Purnell’s contrary theory that Dawan or Mitchell killed Mrs . Giles with the .38

- caliber
revolver: THE STATE: We’ve talked some abou t that [.]38 [

- ] caliber revolver that [Defense Counsel] suggests to you might be the murder weapon. And, once again, this is a case you need to decide on the evidence. You can’t make it up when it’s not there. And there’s no scientific or ballistic evide nce that the [.]38 [

- ] caliber revolver found on the 9th floor in the hallway of Compton Towers was the weapon that killed [Tameka] Giles. There is a single 9

- millimeter shell casing fo und on Willing Street not far from where [Tameka] Giles began to die aft er she was shot . Let’s talk about the ballistic evidence that we do have for just a minute. First of all, we know that Corey Hammond said that the gun that he saw the defendant wit h a few hours before the crime was a semiautomatic. Do you remember Cor ey Hammond’s testimony on that point? And we know further from [Delaware State Police Forensic Firearms Examiner] Carl Rone that that 9
- millimeter shell casing found at the scene was fired by a semiautomatic weapon because it was ejected from one. Rememb er, the shell casings stay in the revolvers, they eject from the semi

- automatic. Does that prove anything? Not much. But it is a little bit more corroboration of Corey Hammond’s tes timony. 130
2. The Verdict and Sentence The trial court charged the jury the morning of April 24, 2008. 131 Though the jury had begun with four alternates, 132 by mid

- trial they were down to two. 133 After the charge

130 A 369

– 70 (emphasis added). 131 Jury Instructions, State v. Mark Purnell , No. 07022639R2, at 3

– 56 (Del. Super. Apr. 24, 2008). 132 A52 (Trial Transcript). 133 A186 (Trial Transcript).57

to the jury, both were seated when t wo jurors were dismissed without objection : one because that juror had prior knee surgery and the other due to an incident that had occurred
earlier in the trial

. 134 During their deliberations, the jury asked for audio, video, or transcripts of the Corey Hammond, Kellee Mitchell, and Ronald Harris interviews. 135 Trial Counsel opposed the request, which in his view would “unfairly highlight the [11 Del. C. § ] 3507 statements,” while it was “the State’s application that we should see to the jury’s wishes and give them what t hey ask for.” 136 Reasoning that the statements had been difficult to understand, the trial judge ordered that the statements to be “ played in the courtroom by a bailiff without any parties present, including the Court, that no conversation occur during
the time that it is played, a nd that they may,

. . . have it played as many times or for as long as they wish at the request of any of the jurors .” 137 The trial judge also provided a cautioning instruction that “you should be sure not to give any undue weight to these particular witnesses or this particular testimony compared even with their own court room testimony or the other witnesses solely becaus e you have been given an opportunity to hear

134 Jury Instructions, at 48

– 52. In the earlier incident, a member of the audience had said, outside the courtroom and within th e juror’s hearing, “there goes a juror now, I hope he does t he right thing, not guilty,” from which the juror felt “a little harassed.” A184 (Trial Transcript). Trial Counsel had moved for the juror’s dismissal, which the trial court held in abeyance un til the charge. A186. In Delaware criminal trials, the alt ernate jurors would have been dismissed after the charge had any remained. See Super. Ct. Crim. R. 24(c) (“ An alternate juror who does not replace a regular juror shall be discharged after the ju ry retires to consider its verdict. ”). 135 App. to Reply Br. a t AR

- 1 [hereinafter “AR

- _____”] (First Jury Note Transcript). 136 Id

. 137 AR

- 4

– 5.58

it more than once.” 138 At noon the following day, Friday, April 25, 2008, the trial court received another jury note. An alternate juror, who had been seated as Juror Six, expressed concern to the forelady that if a verdict was not reached that day his vacation might be adversely
affected. 139 He intended to leave for his v acation the following day and had “let [the other jurors] know from the beginning” of his vacation plans, “ [s] o they have very much had that
in mind during the deliberations.” 140 He reported to the court that “I think the deadline for them is that if they d on’t get a decision today, then it’s pretty much a hung jury,” and that he thought that most of the other jurors had drawn that conclusion. 141

138 AR

- 6. The trial judge relied on our rulings in Jones v. State , 940 A.2d 1, 13

– 14 (Del. 2007) and Page v. State , 934 A.2d 891, 901 (Del. 2007), in which we quoted a passage from Flonnory v. State , 893 A.2d 507, 525

– 27 (Del. 2006) opining on the circumstances when a trial judge may exercise the discretion to depart from the “default rule” against admitting a recordi ng or transcript of a prior statement under 11 Del C. § 3507 , including upon the jury’s unprompted request. Several years after Purnell’s trial, in Alfred Lewis v. State , we confronted the issue directly. 21 A.3d 8 (Del. 2011). In that case, we held that “ in the absence of an agreement by both parties, statements should not be given to a jury for unlimited replaying during their deliberations in response to a request for a rehearing. ” Id . at 14. We also rejected audibility concerns as a justification fo r admission, and held that “[t]he jury certainly should not be permitted to ‘ work through ’ the recorded section 3507 statement during their deliberations until it is understandable .” Id . We have subsequently upheld convictions where Section 3507 statements were admitted where the trial court carefully controlled the circumstances of replay and surrounding instructions to prevent the jury from giving undue weight to the replayed statement and where the trial court observed the requirement in Alfred Lewis san ctioning only a single replay. Morse v. State , 120 A.3d 1, 14 (Del. 2015). 139 AR

- 8 (Second Jury Note Transcript). 140 AR

- 9. At jury selection Juror Six had told the Court he would be in Williamsburg starting Monday, April 28, but had not disclosed that he i ntended to leave two days prior, i.e. , the preceding weekend. A54 (Trial Transcript). At that time, the trial judge had assured the juror that “[i]f it turns out that your vacation plans begin before this trial ends, then we will excuse you.” Id

. 141 AR

- 9 (Second Jury Note Transcript). In summarizing Juror Six’s comments, the court said that “they have decided, as a group, if they do not reach a verdict by the close of business today they will declare themselves hung.” AR

- 10. This decision b y the jury to set themselves a deadline was59

Trial Counsel moved for that juror to be excused and for a mistrial. 142 The trial court did not grant the motion, but instead instructed the jury to deliberate without regard to any deadlines, and that ‘haste’ should not factor into their decision. 143 Th e trial court further explained that it was capable of remaining open in the evenings and over the
weekend as well as other times to accommodate the schedule ” of Juror Six if that became
necessary. 144 I n a follow

- up voir dire , Juror Six told the trial cour t he would return on Saturday, May 3, 145 but at that point Juror Three would be unavailable. At some point a fter lunch o n April 25, 2008, the jury returned a verdict, finding Purnell guilty of Murder Second Degree, Attempted Robbery First Degree, Conspiracy Second Degree, PDWBPP, and two counts of PDW DCF

. 146 On October 17, 2008, the trial court sentenced him to 77 years at L evel V, of which 21 were mandatory, suspended after 45 years at decreasing levels of supervision. 147

based “primarily” on Juror Six’s plans to leave on vacation. Id . A “basic” feature of jury trials is that “there is no absolute necessity that the jury reach a verdict.” Brown v. State , 369 A.2d 682, 684 (Del. 1976). W here the jury fails to reach unanimity on a charge, the court declares a mistrial on that charge. See, e.g., Desmond v. State , 654 A.2d 821, 824

– 25 (Del. 1994). 142 AR

- 11 (Second Jury Note Transcript). “[W] hen a juror must be excused after delibe rations ha ve commenced, in the absence of the parties ’ consent to accept the unanimous verdict of eleven jurors, the declaration of a mistrial has been the norm in Delaware for more than two hundred years, pursuant to the common law and the Delaware Consti tution. ” Claudio v. State , 585 A.2d 1278, 1305 (Del. 1991). 143 AR

- 11

– 12. 144 Id

. 145 AR

- 19

– 20. 146 The trial record does not include a transcript of the jury verdict. 147 A 388

– 96 (Sentencing Hearing Transcript).60

3. Post

- Conviction Proceedin gs Beginning with Purnell’s Direct Appeal Trial Counsel continued the representation by timely appealing Purnell’s conviction
and s entence to this Court. The direct appeal alleged two errors. First, he argued that Mr. Giles’s identification of Mitchell and nonidentification of Purnell should hav e been admitted under D.R.E. 807, the residual hearsay exception. Second, he argued the trial court wrongfully denied the April 25 mistrial motion. Trial Counsel’s direct appeal brief referred to Mitchell’s February 2006 arrest for
PDWBPP over the .38

- c aliber revolver as being “an unrelated firearms offense,” but on the next page argued tha t Mr. Giles’s statement that Mitchell was the shooter was reliable and was viewed by the State as reliable since it had been incorporated into a sworn affidavit of
pro bable cause for the Mitchell search warrant. Finding that the Superior Court had acted wi thin its discretion on both issues, the
Court affirmed the conviction and sentence on August 25, 2009. 148
4. Purnell’s Pro Se Rule 61 Motion Following the denial of his direct appeal, Purnell drafted and filed a pro se motion under Superior Court Criminal Rul e 61 (“Rule 61”) and timely submitted it on March 25,
2010. Over the course of 13 3 handwritten pages, he presented nine grounds for relie f. 149 His first ground was that his counsel’s conflict, and the failure of either his own counsel, the State, or the S uperior Court to intervene to disqualify Trial Counsel and obtain

148 Purnell v. State , 979 A.2d 1102, 1104 (Del. 2009). 149 A893

– 1 026.61

unconflicted counsel , violated his due process rights under the United States and Delaware
Constitutions. He observed that Trial Counsel did not seek to call Dawan Harris as a
witness and a lleged that failure was due to Trial Counsel’s prior representation of Dawan
Harris

. In an affidavit, Purnell state d that he objected to Trial Counsel’s representation of him once he learned that he represented a State’s witness. He further averred that Trial
Counsel never disclosed to him who the witness was.
Purnell ’s eight other grounds were that his counsel was ineffective for failing to seek introduction of the excluded Mr. Giles identification statements as cross

- examination
confrontation material a gainst Detective Tabor ; that his counsel was ineffective for not raising on direct appeal a remark made at trial by Rayne which could be construed as an improper in

- court identification ; that his counsel was ineffective for permitting
introduction of unaut henticated drawings accompanying the graffiti message ; that his counsel was ineffective for failing to seek and obtain a new jury after R onald Harris changed his plea ; that the State committed discovery violations under both Superior Court
Criminal Rule 16 and Brady through the State’s failure to produce ballistics information, caulk, photographs, letters, and a map despite pertinent discov ery requests, and that his counsel was deficient for failing to raise this issue ; that his counsel was ineffective for failing to cross

- examine Detective Tabor as to the cause of Mr. Giles’s death ; that his counsel was ineffective for failing to object to and obtain exclusion of Purnell’s prior bad

acts ; and lastly, that Trial Counsel was deficient for failing to request a nd obtain proper jury instructions relating to Harris’s testimony by reference to Bland v. State and its62

progeny. 150
5. Purnell’s Amended Rule 61 Motion
After filing his pro se Rule 61 motion, Purnell obtained counsel. On October 11, 2011, counsel filed an ame nded Rule 61 motion. The amended motion was much narrower, asserting only th ree claims for relief, each of which was based on an allegation that T rial
C ounsel was ineffective. Inexplicably, it omitted the conflict issue concerning Trial Counsel’s success ive representation of Dawan Harris and then Purnell

. The first of these three claims was related to Purnell’s ninth pro se claim, arguing
that T rial C ounsel was deficient for failing to request a Bland instruction. 151 The second was related to Purnell’s fif th and ninth pro se claims, arguing that T rial C ounsel was deficient for failing to seek a curative jury instruction protecting Purnell from the inference that, because his codefendant had entered a guilty plea after jury selection, he himself was also gui lty. 152 The third claim in the amended petition was new, al leging that the prosecutor at trial improperly vouched for Ronald Harris’s credibility by repeatedly advising the jury that he was “telling the truth” to police after entering his guilty plea. 153

150 See Bland v. State , 263 A.2d 286, 289

– 90 (Del. 1970) (providing a jury instruction that “ the testimony of an alleged accomplice should be examined by you with suspicion and great caution ”). 151 A 1030

– 31 (Amended First Rule 61 Motion). 152 A1031

– 32. 153 A 1 032

.63

6. Cour ts Deny Relief Under the Amended Rule 61 Motion
Consideri ng Purnell’s counseled Rule 61 motion, on May 31, 2013, the Superior Court found that none of the three grounds Purnell alleged asserted conduct that was inadequate performance by Trial Counsel withi n the meaning of the Strickland standard. 154
This Court d isagreed in part, finding that T rial C ounsel’s failure to request a Bland
instruction was deficient. 155 But we determined that Purnell failed to show a reasonable probability that the lack of a Bland i nstruction affected the jury’s verdict and so found that that ground failed the Strickland test. We based this determination on testimony from four other individuals, none of whom were accomplices

-- Hammond, Mitchell, Etienne Williams and Aqueshia Willia ms -- claiming that Purnell made statements identifying
himself as the shooter. 156 We agreed with the Superior Court that the other two grounds Purnell asserted in
his counseled motion were not meritorious . Thus, we affirmed the Superior Court’s denial
of r elief on November 21, 2014.
7. Purnell’s Second Rule 61 Motion Following our opinion affirming the Superior Court’s denial of relief, Purnell filed
a federal habeas claim on December 29, 2014 in the United States District Court for the

154 State v. Purnell , 2013 WL 4017401, at *9

– 11 (Del. Super. May 31, 2013); see also Strickland v. Washington , 466 U.S. 668, 687 (1984) (“ First, the defendant must show that counsel ’ s performance was deficient. This requires showing that counsel made e rrors so serious that counsel was not functioning as the ‘ counsel ’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. ”)

. 155 Purnell v. State , 106 A.3d 337, 347 (Del. 2014)

. 156 Id . at 348

– 49.64

District of Delaware. That matter was stayed on August 9, 2017 for Purnell to litigate his
claim of act ual innocence before this Court. H e filed his present Rule 61 motion on May 14, 2018. The current motion alleges ten grounds for relief. First, Purnell argued that he is act ually innocent, provable by recantation evidence relating to Mitchell, Ronald Har ris, and Corey Hammond, evidence implicating Mitchell and Dawan Harris, new ballistic evidence, and new medical evidence. Second, Purnell argued that Trial Counsel was conflic ted due to his prior representation of Dawan Harris, prejudicing Purnell’s case a nd denying him effective
assistance of counsel. 157 Purnell’s third, fourth, and fifth ground for relief allege Trial Counsel was ineffective for failing to develop and present evidence at trial. The third ground relates to evidence implicating Dawan Harris; the fourth , to evidence that Mitchell’s, Corey
H ammond’s, and Ronald Harris’s statements were unreliably coerced; and the fifth , to evidence that Purnell at the time lacked the physical mobility to commit the crime. Sixth, Purnell argue s that Trial Counsel was ineffective for not objecting to certain

o f the prosecutors’ trial questions and arguments. In his seventh ground, Purnell argues that various instances of alleged prosecutorial misconduct occurring in these previous errors, separately or together, rendered his trial fundamentally unfair.

157 Purnell based his ineffective assistance of counsel claim on both the United States and Delaware Constitutions. A437 (citing to “Del. Const. Art 1, Sect. 7 and the 6 th and 14 th Amendments to the United States Constitution.”)

.65

Purnel l’s eighth ground asserted that the exclusion of Mr. Giles’s identification of Mitchell as the shooter was improper . His ni nth ground is that Trial Counsel was ineffective on appeal for failing to raise the for e going issues. Purnell’s tenth and final
cla im alleges that the cumulative effect of the preceding errors collectively require s relief. As a procedural matter, Purnell argue s that his motion should be considered under the pre

- 2014 version of Rule 61 because the claims date from when previous postco nviction counsel’s ineffectiveness occurred by way of his failure to raise them . I n effect , Purnell argues that the claims relate back to his initial motion for postconviction
relief.
8. The Superior Court’s Rul ing on Purnell’s Second Rule 61 Motion The Superior Court rejected Purnell’s relation

- back argument, and thus determined that the motion was a successive motion subject to Rule 61’s procedural bar s
. 158 On that basis, the Superior Court determined that his onl y cognizable claim was that new evidence raised a strong inference of his actual innocence. The Superior Court described the actual

- innocence

- in

- fact provisions in Rul e 61 as consisting of two prongs

-- newness and persuasiveness. For the “newness” pron g, the Superior Court relied on Hicks v. State 159 and Brown v. State 160 as establishing three criteria for when evidence is “new,” requiring a showing that “(1) it must be e vidence that was

158 State v. Purnell , 2020 WL 837148, at *12 (Del. Super. Feb. 19, 2020) [hereinafter “ Trial Court Op. ”]. 159 913 A.2d 1189, 1194 (Del. 2006)

. 160 117 A.3d 568, 580 (Del. 2015)

.66

discovered since trial, (2) could not have been discovered before tr ial with due diligence, and (3) is not merely cumulative or impeaching .” 161 For the persuasiveness prong, the Superior Court relied on the standard set forth in
the federa l case Schlup v. Delo , 162 which requires that if “ all the evidence, old and new, incriminating and exculpatory, without regard to whether it would necessarily be admitted under rules of admissibility that would govern at trial ” were such that “ it is more lik ely than not that no reasonable juror would have convicted the movant of the cr ime , ” 163 then
relief is warranted

. Considering the new evidence Purnell proffered in his motion, the Superior Court divided it into six categories: “ (1) Kellee Mitchell recants h is testimony; (2) Ronald Ha rri s recants his testimony; (3) Corey Hammond recan ts his testimony; (4) New medical evidence of Purnell’s inability to commit the crime; (5) New ballistic evidence showing that the shell casing was unrelated to the crime; and (6 ) New evidence of Dawan Harris and Kellee Mitchell’s guilt. ” 164
Other than an affidavit from Mitchell , which the Superior Court thought differed only marginally from his trial testimony, 165 the Superior Court found that none of the

161 Trial Court Op ., 2020 WL 8371 48, at *12. 162 513 U.S. 298 (1995). 163 Trial Court Op. , 202 0 WL 837148, at *13. 164 Id. 165 Id. at *14 (“ While the Court understands the difference between Mitchell’s trial testimony and his affidavit, the Court does not believe that this subtlety transforms the affidavit into new evidence that would have a signific ant impact if introduced at trial. ”).67

recantation evidence was “ ne w ” within the meaning of Rule 61. 166 Likewise, the Court
construed the medi cal evidence as “not new in kind, and therefore merely cumulative.” 167
The Superior Court also re jected as a grounds for relief Purnell’s ballistic evidence , which strongly suggested that the 9mm shell casing found near the robbery site was unrelated to Mrs. Giles’s murder, and so tended to support Purnell’s theory that a weapon that retained the casing, such as Dawan’s .38

- caliber revolver, was the murder wea pon . In the Superior
Cour t’s view, the ballistic evidence was “ not new because it was available at the time of trial and Purnell was not denied such evidence despite diligent efforts to obtain it .” 168 Similarly, the Superior Court did not think it would h ave changed the jury’s verd ict, reasoning that it bore only a “tangential relationship to the State’s case.” 169 Finally, the Superior Court determined that the evidence Purnell produced inculpating Dawan and
Mitchell

-- a video of Dawan’s police interrogat ion, and a transcript of the interrogation of another individual, Cameron Johnson

-- was not new because, although it “ may not have been focused on by Purnell’s trial counse l ,” it was nevertheless “ available at the time of
trial .” 170 In sum, the Superior Co urt found that: Virtually non e of the evidence that Purnell presents in the Motion qualifies as new evidence in the Rule 61 context. Additionally, the operative effect of Purnell’s proffered evidence is to belatedly attempt to create reasonable

166 Id . at *13

– 15. 167 Id . at *16. 168 Id

. 169 Id

. 170 Id . at *17.68

doubt as t o Purnell’s guilt for the cha rges of which he was convicted. However, Purnell’s trial has long since been concluded, the jury as fact

finder found that the State met its burden of proving guilt beyond a reasonable doubt, and his conviction and sentence ar e no longer reviewable on the grounds of reasonable doubt. The Court finds that Purnell’s submission of new evidence fails to create a strong inference of his actual innocence of the acts underlying the crimes for which he was charged. Further, the Court finds no valid reason to exp and the record in this case to permit an evidentiary hearing. 171 On that basis, the Superior Court denied Purnell’s motion as to his actual innocence and summarily dismissed it.
C. Contentions o n Appeal Although the present appeal to this Court is Purnell’s thi rd appeal, it is the first time
the conflict issue is before us

. Following oral argument before a panel of three justices on October 7, 2020, the Court set the matter for oral argument before the Court en B anc . We
als o directed the parties to file supple mental briefs addressing additional questions centered on Trial Counsel’s conflict of interest and the “new evidence” standard in Rule 61 as amended in 2014

. 1. Purnell’s Contentions
Purnell initially challenged the Superi or Court’s denial of his second Rule 61 motion on two grounds, which he further elaborated upon in response to this Court’s supplementa l briefing request.
First , Purnell argues that the Superior Court erred in rejecting his factual innocence
claim. He ar gues that the proper test for factual innocence is the one this Court set forth in

171 Id

.69

Downes v. State

. 172 Purnell insists that his new evidence “also meets the more stringent test” from Schlup and its federal court progeny.
Second , Purnell argues that the Superior Court erred by summarily dismis sing his other claims under Rule 61’s procedural bars as they existed when he filed the motion, arguing that the notice requirements of the Due Process Clause of the United States
Constituti on mandate application of Rule 61’s pre

- 2014 formulation. Purnell ’s argument
is that , because any procedural default occurred when he failed to raise the arguments in his first Rule 61 motion, the effect of that default should be determined by the procedu ral
bars in force at the time. Responding to our supplemental brie fing questions, Purnell argues third , that the decision by postconviction counsel on Purnell’s first Rule 61 motion to abandon the argument that T rial C ounsel was conflicted “was so extraord inary that postconviction counsel no longer functioned as Purnell’ s agent.” 173 According ly , Purnell argues that, by analogy to federal precedent, the Court can and should consider all of his arguments as though they were raised in his initial Rule 61 motion, i.e. , not procedurally barred. Fourth, Purnell argues in the sup plementa l briefing that T rial C ounsel’s conflict presented an insurmountable bar to Purnell investigating and developing his theory that Dawan and Mitchell committed the Giles robbery, making the evidence “new” because
Purnell could not have discovered it through diligent efforts. Purnell exten sively

172 Opening Br. at 7 (citing Downes v. State , 771 A.2d 289, 291 (Del. 2001)). 173 Supp. Br. at 7.70

catalogues the timeline of the Giles investigation with an eye to inculpatory developments concerning Dawan, alongside key points in T rial C ounsel’s conflicted representation. Fifth and lastly, Purnell point s to federal case law suggesting that cl aims of factual innocence fall into an equitable exception to federal habeas corpus procedural bars and time limits, such that lack of diligence reflects on the persuasive character of the petition instead of present ing a categorical bar to consideration. He urges this Court to adopt the same reasoning as to our own procedural bars and then catalogues the new evidence according to its persuasive force

. 2. The State’s Answer
The State contends that the Superior Court pro perly applied the post

- 2014 version of Rule 61, as that court consistently has done. It agrees with the Superior Court that Purnell’s claim of new evidence creating a strong inference of actual innocence, as an exception to the procedural bars, is the onl y cognizable substantive claim in his motion. Addressing Purnell’s claim of actual innocence, the State argues that the Superior
Court was within its discretion to find that Purnell had failed to meet his burden. The State
agre es that the three

- part Downe s standard is the correct measure of both the newness and the persuasiveness prong s of Rule 61(d)(2)(i). 174 But in the State’s view, all of Purnell’s evidence either would have been obtainable with diligent efforts at the time o f trial , or is

174 State’s Ans. Br. at 22 (citing Emmett Taylor v. State , 180 A.3d 41, 2018 WL 655627, at *1 (Del. Jan. 31, 2018) (TABLE) (citing Downes , 771 A.2d at 291)). The State’s sole reference to Schlup and its progeny is to say that “the actual

- in nocence exception applied by federal courts is consistent with Delaware’s Rule 61(d)(2) actual

- innocence test in requiring due diligence and excluding impeachment evidence.” State’s Ans. Br. at 25.71

impeachment ev idence. As a result, Purnell’s “proffered evidence is not ‘new’ and is merely impeaching or cumulative” and so fails to satisfy this burden. 175 Responding to Purnell’s arguments in the supplementa l briefing, the State asserts that “ there is no evidence in the record that counsel’s conflicted status adversely affected his performance by preventing him from investigating, developing, and presenting Purnell’s supposed evidence that Dawan and Mitchell were the ‘ true culprits

. ’” 176 During oral arguments before t his Court, the State continued to argue that Trial Counsel was not prevented from pursuing a defense implicating his former client in the Giles murder so long as Dawan Harris himself was not called as a witness.
D. Standard of Review
This Court reviews the S uperior Court’s denial of a motion for post

- conviction relief
for an abuse of discretion. 177 We review “ ‘ legal or constitutional questions, including
ineffective

- assistance

- of

- counsel claims , de novo .’” 178

175 Id. at 21. 176 Id . at 11. 177 Swan v. State , 248 A.3d 839, 856 (Del. Mar. 1, 2021) (citing Richardson v. State , 3 A.3d 233, 237 (Del. 201 0)). 178 Id. (citing Green v. State , 238 A.3d 160, 173 (Del. 2020) ); see also Starling v. State , 130 A.3d 316, 325 (Del. 2015) (“ We review ineffective assistance of counsel claim s and alleged Brady violations de novo. ”); Ploof v. State , 75 A.3d 811, 820 (D el. 2013) (“ When deciding legal or constitutional questions, we apply a de novo standard of review. ”).72 II. ANAL YSIS
A. The Superior Court Did Not Err in Applying the Current Version of Rule 61, as Opposed to the 2005 Version
1. The 2014 Version of Rule 61 Applies to Purnell’s Motion As this Court recently observed in Swan v. State , the pre

- 2014 version of “ Rule 61 allows a subsequent postconviction motion if the cl aims are based on the failure of the initial postconviction counsel to raise ineffective assistance of trial counsel claims .” 179 The previous version of Rule 61 permitted that narrow category of successive motions because

an ineffective assistance of trial counsel claim generally cannot be raised on direct appeal in this jurisdiction, making the first Rule 61 motion function as a direct appeal for that type of claim. A successive motion alleging that postc onviction counsel was ineffective for failing to rai se trial counsel’s ineffectiveness thus operated as a ‘first’ postconviction
motion. 180 Under that narrow exception, the successive motion had to be filed within one year of the date “ when the defendant ’ s appeal to this Court from the Superior Court ’ s denia l of his first motion for postconviction relief is concluded .” 181

179 248 A.3d at 858 (citing Guy v. State , 82 A.3d 710 (Del. 2013)). If no appeal was taken, the one - year time limitation begins to run “‘within 30 days following the Superior Court’s denial of the defendant’s first motion for postconviction relief.’” Id

. 180 Id .; see also Guy , 82 A.3d at 715 (“This rule recognizes, as the United States Supreme Court recently noted, that in a jurisdiction like Delaware, where ineffective assistance of trial counsel may not be raised on direct appeal, the first postconviction ‘proceeding is in m any ways the equivalent of a prisoner’s direct appeal as to the ineffective

- assistance claim.’”) (quoting Martinez v. Ryan , 566 U. S. 1, 11 (2012)). 181 Swan , 248 A.3d at 858 (quoting Guy , 82 A.3d at 715). As we noted in Coles v. State , defendants whose firs t motions were filed after the June 2014 amendments to Rule 61 are not eligible for a Guy

- type second postconviction motion. 169 A.3d 858, 2017 WL 3259697, at *2 (Del. July 31, 2017) (TABLE).73

Purnell’s first motion for postconviction relief was filed under the pre

- 2014 version of Rule 61. But this Court affirmed the Superior Court’s denial of Purnell’s first Rule 61
motion in No vember 2014, and Purnell filed the instant motion in May 2018, more than three years later. Purnell’s 2018 filing does not fall within the narrow category of permitted
successive motions alleging ineffective assistance of counsel on postconviction claims
filed before the 2014 amendments to Rule 61. Purnell’s counsel acknowledges that his present motion “is untimely and successive.” 182
Purnell’s motion instead must be considered on its own as a successive Rule 61 motion filed in May 2018. As the trial court correctly noted, the June 4, 2014 Order amending Rule 61 provided that , “ [t] his amendment shall be effective on June 4, 2014 and shall apply to postconviction motions filed on or after t hat date. ” 183 This Court repeatedly
has held that a motion for postcon viction relief is to be adjudicated in accordance with Rule
61 as it exists at the time the motion is filed. 184 Purnell acknowledges that this Court has consistently applied the version of Rule 61 in effect on the date a motion was filed. Yet he argues tha t the pre

- 2014 version should

182 A1631 (Superior Court Oral Argument Transcript). 183 Order Am ending Super. Ct. Crim. R. 61 , at 8 ( Del Super. June 4, 2014) (available at https://courts. delaware.gov/superior/pdf/criminal_rule_61_amend_2014.pdf )

. 184 See Bradley v . State , 135 A.3d 748, 757 n.24 (Del. 2016) (“We apply the version of the Rule that existed at the time [the defendant] filed his Rule 61 motion.”); Brochu v. State , 2016 WL 690650, at *4 n. 24 (Del. Feb. 19, 2016) (“The Court notes that the Superior Court properly applied the version of Rule 61 in effect in 2013 when [the defendant] filed his postconviction motion.”); Starling v. St ate , 130 A.3d 316, 332 n. 95 (Del. 2015) (“Although Rule 61(i)(5) was amended on June 4, 2014, we must apply the version that existed at the time [the defendant] filed his Rule 61 motion.”).74

apply to this motion so that he can take advantage of an exception to the procedural bar against successive motions which the June 2014 revisions eliminate d

. 185 Purnell assert s that this Court has never analyzed whether the pro mulgation of the new version of Rule 61 without a notice period satisfies federal due process requirements. 186 We need not address this argument because we have concluded that Purnell has satisfied the requirements set
forth in the 2014 version of Rule 61. 187

185 Prior to the 2014 amendments, Rule 61 provided an exception to the application of the procedural bars involving colorable claims of a miscarriage of justice. As we said in Swan , “Rule 61(i )(5) provides an exception to the bars of Rule 61(i)(1), (2), and (3) for a colorable claim that there was a miscarriage of justic e because of a constitutional violation that undermined the fundamental legality, reliability, integrity, or fairness of the p roceedings that lead to the conviction.” Swan , 248 A.3d at 857. Under the old rule, we have no doubt Purnell would obtain relief on this successive motion, without the need to provide compelling new evidence of his actual innocence. 186 The State argued th at this Court answered that question in Turnage v. State , where we held that

“ the amended Rule 61 provides more due process and ac cess to the courts than is constitutionally required. 127 A.3d 396, 2015 WL 6746644, at *1 (Del. Nov. 4, 2015) (TABLE). Purn ell seeks to distinguish Turnage on the grounds that the movant in Turnage , unlike Purnell, had fair notice of the 2014 amendment for seven months before she filed her initial post

- conviction motion, and thus Turnage, unlike Purnell, had notice on filing that initial motion that Delaware courts would adhere to the new procedural bars and more limited exceptions. 187 The 2014 version contains no “miscarriage of justice” safety valve. Compare Martinez , 566 U.S. at 17 (“Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial

- review co llateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial

- review collateral proceeding, there was no counsel or counsel in that proceeding was ineffe ctive.”). Thus, although our rule entitles a defendant to counsel for an initial Rule 61 proceeding, there is presently no avenue of redress under the text of the 2014 version of Rule 61 for significant claims of ineffectiveness of that initial Rule 61 co unsel. See, e.g., State v. Galaviz , 291 P.3d 62, 68 (Ka n. 2012) (“[I]n other postconviction situations, this court has recognized that even though a defendant did not have a Sixth Amendment right to counsel, when there is a statutory right to the appointm ent of counsel, the appointed attorney ‘must be effectiv e and competent. Otherwise, the appointment is a useless formality .’”) (citations omitted) (emphasis in original). Absent such an exception, Delaware prisoners are still entitled to raise such claim s in federal court. Because we hold that Purnell’s clai ms satisfy the requirements of the 2014 version of Rule 61, the absence of an avenue for redress for ineffectiveness of initial Rule 61 counsel is not before us. However, that lack of redress may mer it further attention by this Court’s Rules Committee.75

2. The Applicable Persuasive Burden As an untimely, successive Rule 61 motion, Purnell’s petition must contend with the Rule’s procedural bars before the substance of his claim for relief can be considered. 188 Under Rule 61 as amended, there is only one e xception implicated in this case , namely the “actual innocence” exception. Under that exception, to survive summary dismissal a

movant must have been convicted at trial rather than on a plea and must “ plead [] with particularity that new evidence exists th at creates a strong inference that the m ovant is actually innocent in fact of the acts underlying the charges of which he was convicted .” 189
And a movant can only prevail on the merits if the motion “satisfies” those pleading requirements. 190 Innocence of th e “acts underlying the charges” requir es “ more than innocence of intent; it requires new evidence that a person other than the petitioner
committed the crime .” 191
Purnell ’s claim of actual innocence is based on a theory that his Trial Counsel was unable to p ursue, namely that two other people

- - likely Dawan Harris and Kellee Mitchell

-- killed Tameka Giles, not him. Thus, as the Superior Court correctly determined, Purnell

must establish that his evidence is (1) new and (2) sufficiently persuasive.

188 Younger v. State , 580 A.2d 552, 554 (Del. 1990). 189 Super. Ct. Crim. R. 61(d)(2)(i). 190 Super. Ct. Crim. R. 61(i)(5). 191 State v. Milton Taylor , 2018 WL 3199537, at *7 (Del. Super. June 28, 2018), aff’d , 206 A.3d 825 (Del. 2019) (TABLE).76

Federal courts employ a n analogous doctrine for “actual innocence” in analyzing habeas corpus claims. In those cases , Schlup and its progeny , “actual innocence” constitutes an equitable exception to procedural barriers to a habeas petition set forth in
federal st atute that are analogues t o Rule 61’s procedural bars

. 192 Schlup was concerned with cases where “a constitutional violation has probably resulted in the conviction of one who is actually innocent

. ” 193 Envisioning a test in which a petitioner is “ required to make a stronger showing than that needed to establish prejudice ,” the Schlup Court established the formulation, “ it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence ” 194 for those federal habeas cases. These habeas petitions are “gateway innocence claims” because satisfying Schlup permits a federal court to review the petition’s grounds for relief despite an unexcused procedural default, even though the Supreme Court has “strongly suggested” that proof of actual inno cence is not itself a ground for relief. 195 As the Schlup Court explained: [I]f a petitioner such as Schlup presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also sati sfied that the trial was free of nonharmless constitutional error, the petitioner should be allowed to pass through the gateway and argue the merits of his underlying claims. 196

192 McQuiggen v. Per

kins , 569 U.S. 383, 394

– 95 (2013). 193 513 U.S. at 327 (quoting Murray v. Carrier , 477 U.S. 478, 496 (1986)). 194 Id

. 195 Buckner v. Polk , 453 F.3d 195, 199 (4th Cir. 2006) (citing Herrera v. Collins

. 506 U.S. 390, 400 (1993) ; see also House v. Bell , 547 U.S. 5 18, 555 (“We decline to resolve this issue. We conclude here, much as in Herrera , that whatever burden a hypothetical freestanding innocence c laim would require, this petitioner has not satisfied it.”). 196 Schlup , 513 U.S. at 316 (alterations added).77

After the 2014 amendments to Rule 61 , the Superior Court i n Sykes v. State note d a dearth of Delaware authorities on what constitutes “new” evidence for purposes of our postconviction remedy , and so it relied on federal cases analyzing Schlup ’s actual
innocence test for the “newness” prong. 197 In subsequent cases, the Superior Court h as relied on Schlup ’s formulation for the “persuasiveness” prong as well , 198 or for both prongs of the actual innocence inquiry

. 199 In the present case, as noted earlier, the Superior Court relied on Hicks and Brown
to determine when evidence is “new,” and o n the Schlup line of federal cases for the persuasiveness prong. 200 Neither Purnell nor the State adopt this analysis. Instead, b oth parties argue for a three

- part test to govern both the newness and persuasiveness prongs of

197 2017 WL 6205776, at *5 (Del. Super. Dec. 7, 2017) (“Nonetheless, the federal standard is helpful under these circumstances, as the Court has found little guidance for interpreting the precise meaning of new evidence in relation to a claim of actual innoc ence pursuant to Rule 61(d)(2)(ii). ”), aff’d 195 A.3d 780 (Del. 2018) (TABLE). 198 State v. Abbatiello , 2020 WL 1847477, at *3 (Del. Super. Apr. 8, 2020), aff’d , 244 A.3d 682 (Del. 2020) (TABLE); State v. Windsor , 2018 WL 3492764, at *2 (Del. Super. Jul. 19, 2018), aff’d , 202 A.3d 1126 (Del. 2019) (TABLE), cert. denied , 140 S. Ct. 201 (2019). 199 State v. Wh ite , 2018 WL 6131897, at *4 (Del. Super. Nov. 21, 2018), aff’d , 208 A.3d 731 (Del. 2019) (TABLE); State v. Flowers , 2018 WL 1169644, at *1 (Del. Super. Mar. 6, 2018), aff’d , 191 A.3d 291 (Del.) (TABLE). The Superior Court has rejected application of the actual innocence exception on every successive or untimely Rule 61 motion, and we have affirmed every such motion appealed. Although this Court has never i ncluded the Schlup language in such an opinion, on at least two occasions we affirmed a Superior Cou rt denial on the basis of its opinion where that opinion invoked the Schlup formulation. White v. State , 208 A.3d 731, 2019 WL 1529654, at *1 (Del. Apr. 8, 2019) (TABLE); Phlipot v. State , 169 A.3d 351, 2017 WL 3014434, at *1 (Del. July 14, 2017) (TABLE). But in each case where the Superior Court has used the Schlup language, the evidence was either plainly available at the time of trial, or was of little o r no persuasive force. So, although we have ratified Superior Court decisions invoking the key lang uage from Schlup and its federal progeny, none of those cases was founded on the specific persuasive burden applicable under the post

- 2014 Rule 61. 200 Trial Court Op. , 2020 WL 837148, at *12

– 13.78

the actual innocence exc eption , requiring a showing: (1) that the evidence is such as will probably change the result if a new trial is granted; (2) that it has been discovered since the trial and could not have been discovered before by the exercise of due diligence; and (3)
tha t it is not merely cumulative or impeaching. 201
This three

- part test is the standard for a new trial based on newly discovered
evidence under Superior Court Criminal Rule 33 , a standard we established in Lloyd v.
State

. 202 Both Hicks and Brown derive from Lloyd

. Purnell’s cited case, Downes , held that
the Lloyd standard for obtaining a new trial on the basis of new evidence showing actual
innocence was an available form of postconviction relief under Rule 61

. 203 T he State’s

case likewise derives from Downes

. 204
T he Lloyd line of cases provides a well

- developed body of law in Delaware for analyzing actual innocence claims based on new evidence. Of the three elements of a Lloyd claim, the second relates to newness, while the first and third relate to persuasiveness.
Althou gh Purnell characterizes Schlup ’s persuasive burden as a “more stringent test,” 205 we disagree. On both newness and persuasiveness, the Lloyd line of cases substantially align s with Schlup and its progeny.

201 Opening Br. at 7 (citing Downes v. State , 771 A.2d 289, 291 (Del. 2001)); State’s Ans. Br. at 22 (citing Emmett Taylor , 2018 WL 655627, at *1). 202 534 A.2d 1262 , 1267 ( Del. 1987) (citing State v. Lynch , 128 A. 565, 56 8 (Del. Oyer & Term. 1925))

. 203 771 A.2d at 292. 204 The State cites the test as coming from Emmett Tay lor , 2018 WL 655627, at *1, but Emmett Taylor cites and reproduces Downes verbatim. State’s Ans. Br. at 22. 205 Opening Br. at 15.79

Regarding newness, Lloyd holds that eviden ce is new where it was “ discovered since trial, and the circumstances must be such as to indicate that it could not have been discovered before trial with due diligence .” 206 Such evidence is “new” in federal courts applying Schlup as well

. 207 On the p ersuasiv eness prong, we believe that Lloyd and Schlup articulate the same burden despite using different language

. As the Schlup Court explained, the persuasiveness
of an innocence claim requires the Court to make “a probabilistic determination about what

reasona ble, properly instructed jurors would do

. ” 208 It stressed that the Schlup inquiry is
about what a reasonable trier of fact is likely to do, not merely what it was empowered to
do. 209 As Justice O’Connor further explained, Schlup requires a petition er to show that the

206 Lloyd , 534 A.2d at 1267. 207 Carter v. Pierce , 196 F. Supp. 3d 447, 454

– 55 (D. Del. 2016) (“I n the Third Circuit, evidence is ‘ new ’ for the purposes of the Schlup standard only if it was not available at the time of trial and could not have been discovered earlier through the exerc ise of due diligence, except in situations where that evidence was not discovered due to the ineffective assistance of trial counsel.”) (citing Houck v. Stickman , 625 F.3d 88, 93

– 94 (3d Cir. 2010) ); see also Reeves v. Fayette SCI , 897 F.3d 154, 164 (3d Cir . 2018) (“ when a petitioner asserts ineffective assistance of couns el based on counsel ’ s failure to discover or present to the fact

- finder the very exculpatory evidence that demonstrates his actual innocence, such evidence constitutes new evidence for purp oses of the Schlup actual innocence gateway. ”), cert. denied , 139 S . Ct. 2713 (2019). 208 513 U.S. at 329. 209 Id . at 330. As a result, the Schlup Court considered and rejected two even more stringent tests, Sawyer and Jackson

. Id . at 326

– 27, 330. The Sawyer test, applicable when a capital defendant claims that the death penalty was imposed due to a constitutional error, requires a petitioner to “show by clear and convincing evidence that, but for a constitutional error, no reasonable juror would have foun d the petitioner eligible for the death penalty under the applicabl e state law .” Sawyer v. Whitley , 505 U.S. 333, 336 (1992) (emphasis added). More stringent still, under the Jackson test, “ the applicant is entitled to habeas corpus relief if it is found that upon the evidence adduced at the trial no rational trier of f act could have found proof of guilt beyond a reasonable doubt .” Jackson v. Virginia , 443 U.S. 307, 324 (1979) (emphasis added).80

lack of the new evidence cause d more than mere prejudice , meaning more than simply “a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.” 210 Lloyd ’s burden of persuasiveness is that the new evidence “ would have probably changed the result if presented to the jury ,” 211 and i n Downes and subsequently , we have used the phrase, “ will probably change the result if a new trial is granted .” 212 The Lloyd
line of cases consistently require s a mov ant to show that the evidence will probably change
the result

-- meaning that the necessa ry showing is substantially more than the mere “reasonable probability” necessary to show prejudice. Thus, we think the Schlup and Lloyd
standards are substantively t he same.
T he third element of the Lloyd test, specifying that actual innocence cannot be satisfied by evidence which is “ merely cumulative or impeaching ,” is also similar to Schlup ’s test. 213 Contrary to the State’s contention , this element of Lloyd does not constitute an “exclusion” of impeach ment evidence

. 214 Rather, it embodies the principle
that a body of new e vidence that goes only to the weight or credibility of that which was presented to the jury is almost never adequate to meet the demanding bar fo r being granted

210 Schlup , 513 U.S. at 332

– 33 (O’Connor, J., concurring).
211 5 34 A.2d at 1267 (emphasis added). 212 771 A.2d at 291 (emphasis added); Gattis v. State , 955 A.2d 1276, 1291 (Del. 2008). 213 534 A.2d at 1267. 214 State’s Supp. Ans. Br. at 24.81

a new trial. 215 General ly , to be more than “merely” impeaching or cumulative, new evidence attacking the weight or credibility of a witness’s trial evidence attack s the credibility of the witness in the case at bar specifically, rather than impeaching the witness’s credibility i n general. 216 Where impeachment evidence is submitted along with
other material evidence, both can operate together to justify relief. 217 Federal courts

215 See Mason v. State , 2020 WL 7392348, at *1 n.2 (Del. Dec. 16, 2020) ( “New evidenc e that is ‘merely cumulative or impeaching’ will not satisfy the ‘actual innocence’ standard.”) (citing Emmett Taylor , 2018 WL 655627, at *1); see also State v. Brathwaite , 2017 WL 5054263, at *2 (Del. Super. Oct. 23, 2017) (“ Affidavit B is ‘ merely ... imp eaching ’ because it questions the credibility of one of Defendant ’ s victims who testified against him. ”) (ellipsis in original), aff’d , 2018 WL 2437233 (Del. 2018). 216 E.g., State v. Young , 1982 Del. Super. LEXIS 1062. Young related to a robbery a nd murd er where the defendant was convicted in the absence of physical evidence, based on a witness’s testimony about inculpatory statements the defendant allegedly made before and just after the killing. Id . at *7

– 9. The defendant sought a new trial bas ed on a n affidavit from the witness’s brother that the witness had confided ahead of the trial that he intended to swear falsely to obtain the reward money, but that in truth he knew nothing of the killing. Id . at *12

– 13. Because the Superior Court reaso ned tha t the “heart and soul of the State’s case here was bound to the veracity of the witness,” and because the impeaching affidavit came from “a most believable individual with ample opportunity, coupled with a long

- standing, trusting relationship with h is brot her,” it held that the “newly discovered evidence is considerably more than ‘merely’ cumulative and impeaching” and granted a new trial. Id . at *25

– 26. We discussed that holding approvingly without adopting it in Hicks , 913 A.2d at 1195. Likewise, even t hough recantation evidence goes merely to the weight and credibility of the witness’s trial testimony, sufficiently persuasive recantation evidence can in rare cases be adequate to justify a new trial. See Blankenship v. State , 447 A.2d 428, 433 (D el. 198 2) (“ A Motion for a New Trial based upon a witness ’ recantation is generally viewed with suspicion, and a denial of such a motion will not be reversed on appeal unless there has been an abuse of discretion by the Trial Court. ”). 217 In Fowler v. State , a def endant in postconviction proceedings learned that the State had failed to provide prior recorded statements from four of its witnesses. 194 A.3d 16, 17 (Del. 2018). The trial court found that this violation was harmless, “largely based on the testimony of the State’s ballistics expert.” But between that ruling and the appeal to this Court, that expert was charged with “ Theft by False Pretense over $1,500 and Falsifying Business Records to Make or Cause False Entry for ‘ providing false [Delawar e State Poli ce] activity sheets and receiving compensation from [Delaware State Police] for work that was not performed.” Id . (alterations in original). Without faulting the Superior Court’s harmless error analysis on the factual record available at that time, we fo und that the new impeachment information operated in concert with the discovery violation to justify a new trial. Id . at 26

– 27.82

applying Schlup consider the issue similarly. “ M ere impeachment ev idence is generally

not sufficient to satisfy the actual innocence gateway standard. ” 218
Because the language in Schlup is confusing, 219 we prefer to rely on our test as set
forth in Downes and Lloyd . Nevertheless, we continue to find the reasoning of the f ederal cases applying Schlup useful and persuasive guidance in examining Rule 61 actual
innocence claims. Satisfying the actual innocence test is , by design, a heavy burden, and such meritorious claims are exceedingly rare. Under both Lloyd and Schlup , a defendant must present a dditional evidence that was not available at trial and would not have been despite

218 Reeves , 897 F.3d at 161 (alterations omitted) (quoting Munchinski v. Wilson , 694 F.3d 308, 338 (3d Cir. 2012)). 219 At the tim e, Chief Justice Rehnquist objected to the confusing verbiage of the Schlup standard: The Court informs us that a showing of “actual innocence” requires a habeas petitioner to “show that it is more likely than not that no reasonable juror would have convic ted him in the light of the new evidence.” Ante, at 867. But this is a classic mixing of apples and oranges. “More likely than not” is a quintessential charge to a finder of fact, while “no reasonable juror would have convicted him in the light of the new evidence” is an equally quintessential conclusion of law similar to the standard that courts constantly employ in deciding motions for judgment of acquittal in criminal cases. The hybrid which the Court serves up is bound to be a source of conf

usion. Schlu p , 513 U.S. at 339 (Rehnquist, C.J., dissenting). We find his concerns well taken, as some courts, for example, have replaced “juror” with “jury” or “would” with “could.” See , e.g. , Goldblum v. Klem , 510 F.3d 204, 231 (3d Cir. 2007) (quoting Schlup but using “could” instead of “would”); Sweger v. Chesney , 294 F.3d 506, 524 (3d Cir. 2002) (same); United States ex rel. Haqq v. Carter , 176 F. Supp. 2d 820, 829 (N.D. Ill. 2001) (replacing “juror” with “jury”). Other courts have ommitted the “more likely tha n not” criterion despite the Schlup Court’s emphasis on its importance. Hicks v. Hepp , 871 F.3d 513, 531 (7th Cir. 2017); Perruquet v. Briley , 390 F.3d 505, 515 (7th Cir. 2004) (“ he must convince the court that no reasonable juror would have fo und him gui lty ”); Perry v. Norris , 107 F.3d 665, 666 (8th Cir. 1997) (asserting a petitioner must “ prove that no reasonable juror would have found him guilty. ”).83

the defendant’s exercise of due diligence , thus making it “ new
. ” 220 Th at new evidence

must speak with such persuasive force as to convince the revie wing court that , when considered in the context of all the relevant evidence by a properly instructed jury, it is such as will probably change the result if a new trial were granted. Although f

indings of actual innocence are reserved for the “rare” or “ext raordinary”

case , 221 a s we explain next, we believe this is such a case.

B. The Superior Court Erred in Applying Rule 61 We begin with the “newness” prong of the actual innocence test. As discussed in the previous section, the substance of Purnell’s clai m for relief is procedurally barred
unless he can show that his new evidence (1) is such as will probably change the result if a new trial is granted; (2) has been discovered since the trial and could not have been discovered before by the exercise of due dilig ence; and (3) is not merely cumulative or impeaching. 222 In terms of the Superior Court’s analysis, the second element of this test is the newness prong. We disagree with the Superior Court’s conclusion that virtually none of the evidence Purnell pres ents i n his motion qualifies as “new” evidence. As the Superior Court correctly
observed , almost all of the evidence Purnell submits could have been obtained by a rigorous

220 See Schlup , 513 U.S. at 324 (“To be credible, such a claim [of actual innocence] requires pe titioner to support his allegations of constitutional error with new reliable evidence

-- whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence

-- that was not presented at trial. Because such eviden ce is obvio usly unavailable in the vast majority of cases, claims of actual innocence are rarely successful. ”).
221 Schlup , 513 at 321. 222 Downes , 771 A.2d at 291.84

investigation prior to trial by unconflicted counsel

. 223 But the relevant inquiry is wheth er Purnell could have obtained and presented the evidence of his innocence at trial with the exercise of due diligence . The trial court appointed Purnell’s counsel and refused that counsel’s efforts to withdraw after he br ought a clear and actual conflict of interest to the court’s attention. The conflict , coupled with the trial court’s refusal to let Trial Counsel withdraw, barred Purnell’s access to the evidence he now seeks to present with new
conflict

- free counsel. Be cause this evidence was unavailab le to Purnell even with the exercise of due diligence, as we explain below, we hold that it is “new” for the purposes of this analysis. But i mplicit in our holding that the conflict renders much of this evidence “new” is o ur predicate conclusion that Purn ell never waived the conflict. Thus, we next explain why, on this record, we cannot conclude that Purnell waived the conflict.
1. Purnell Never Waived the Conflict
Purnell did not waive the conflict issue , and any assertion that he did ignores the
distinct ion between waiver and forfeiture

. 224 “Waiver is the voluntary and intentional relinquishment of a known right.” 225 I n the criminal context, it is “incumbent up on the State to prove” waiver, and “ the courts indulge in every reasonable presumption against

223 Trial Court Op. , 2020 WL 837148, at *14

– 17. 224 The waiver argument presumes that the conflict was waiv able, which in itself is a doubtful proposition. 225 Daskin v. Knowles , 193 A.3d 717, 725 (Del. 2018) (quoting Realty Growth Investors v. Council of Unit Owners , 453 A.2d 450, 456 (Del. 1982) )

.85

wai ver .” 226 “ Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether
the defendant ’ s choice must be pa rticularly informed or voluntary, all depend on the right
at stake. ” 227 By contrast, “forfeiture is the failure to make the timely assertion of a right.’” 228
The distinction between waiver and forfeiture is most visible in so

- called ‘plain error’ analysi s, where a forfeited allegation that a defendan t’s rights were violated can
nevertheless be the basis for later reversal 229 but a waived right cannot. 230 Purnell’s failure to properly raise Trial Counsel’s conflict at an earlier juncture constitutes a forfe iture requiring him to contend with the procedura l bar provisions of Rule 61.
In James Lewis v. State , we left to the trial court’s discretion how to conduct an inquiry and response into a waiver of the right to unconflicted counsel, but required that the colloquy be with the defendant

-- not via couns el

-- and approvingly quoted the Federal Advisory Committee comment that : The Court should seek to elicit a narrative response from each defendant that he or she has been advised of his or her right to effective representation, that he or she understands t he details of his or her attorney’s possible conflict of

226 Flam er v. State , 490 A.2d 104, 113 (Del. 1983) (citing Brewe r v. Williams , 430 U.S. 387, 404 (1977)). 227 United States v. Olano , 507 U.S. 725, 733 (1993). 228 Id. (quoting Johnson v. Zerbst , 304 U.S. 458, 464 (1938)). 229 Id . (“ Mere forfeiture, as opposed to waiver , does not extinguish an ‘ error ’ under [Fed. R. Crim. P. ] Rule 52(b) .”)

. 230 Warner v. State , 787 A.2d 101, 2001 WL 1512985, at *1 (Del. Nov. 21, 2001) (TABLE) (“ Decisions following Olano have made clear that only forfeited errors are reviewable for plain er ror. ”).86

in terest and the potential perils of such a conflict, that he or she has discussed the matter with his or her attorney or if he or she wishes with outside counsel, and that he or she voluntarily waiv es his or her Sixth Amendment protections. 231
That did not happen here. 232 In this case, Trial Counsel brought the conflict to the trial court’s attention. There is nothing in the record that suggests that Purnell was advised of the nature of the conflict and its potential impact on his defense. 233 In fact, in his pro se Rule 61 motion, Purnell states that “[i]f Trial Court would have had [sic] conducted an inquiry Defendant could have been aware of the circumstances, HOWEVER, the nature of the C onflict was never mentioned to him.” 234 He further argued that “th e conflict of interest which arised [sic] before trial and is on the record that Counsel brought to Trial Court and State’s attention

231 757 A.2d 709, 716

– 17 (Del. 2000) (holding that Superior Court Criminal Rule 44(c) “impose[s] on the trial judge the duty to ‘promptly inquire with respect to joint representation by [co

defendants] and [to] personally advise each defendant of the right to the effective assistance of counsel, including separate representation ’” and that “ the trial judge ’ s Rule 44(c) colloquy with each defendant must take place on the record early in the pretrial proceedings and certainly before the day of trial. ”) (alterati ons added). Although this is not a joint repre sentation situation, many of the same concerns regarding Purnell’s Trial Counsel’s conflict were apparent prior to trial and should have been addressed by the trial court in a manner that would have ensured th at Purnell understood the nature and extent of the conflict. 232 The Delaware Lawyers’ Rules of Professional Conduct, discussed in a later section, require any such waiver to be in writing, which also did not happen here. See also Gov’t of Virgin Islands v. Zepp , 748 F.2d 125, 139 (3d Cir. 1984) (holdin g that the trial judge abused his discretion in failing to disqualify counsel, and stating “ the trial court should conduct an evidentiary hearing or factual inquiry to determine whether disqualification is app ropriate and should inquire into the nature of the conflict and the client's awareness of the conflict. The court should also determine whether there has been a waiver of the conflict, whether the waiver was effective or whether a waiver was possible. ”). 233 The trial court did implore Trial Counse l to speak with Purnell about the conflict. See A45 (Motion in Limine Transcript) (“THE COURT: Will you have made some conclusion and talk with your client even, perhaps. He’ll be here early and Mr. Purnell will be here.”). 234 A922 ( Pro Se Rule 61 Moti on) (alterations added).87

was never carefully or Constitutionally ruled upon.” 235 Purnell’s clai m of a lack of informed consent is supported by the record, especially given that Trial Counsel did not appear to appreciate the seriousness of it until shortly before trial when he first raised it
with the court.
Nor do we think Purnell waived the issue when he failed to raise it on direct appeal. Indep endence of counsel is an aspect of effective assistance of counsel, and so in Delaware
it is typically considered in the first instance in a Rule 61 motion. 236 Trial Counsel continued to represent Purnell on direct appeal. Although this may have been the atypical
case where the issue could have been considered on a direct appeal, either via a challenge

to the conviction itself or to the trial court’s denial of Trial Counsel’s withdrawal motion, the general practice is to wait for postconviction proceedings to raise claims regarding the
effectiveness of trial counsel

. W hether Purnell waive d the issue in his first motion for postconviction review is a closer question, but under the unique facts presented her e, we conclude that he did not

. Under Rule 61 “ any first motion for relief under this rule and that first motion ’ s amendments shall be deemed to have set forth all grounds for relief available to the

235 A1020

– 21. 236 Brooks v. State , 40 A.3d 346, 352 (Del. 2012) (“t his Court generally does not review claims for ineffective assistance of counsel on direct appeal ”); Milton Taylor v. State , 32 A.3d 374, 381 n.12 (Del. 2011) (same).88

movant. ” 237 Failure to raise an issue in a first postcon viction motion is generally treated as
waiver of that issue. 238
F irst postconviction counsel failed to include Trial Counsel’s conflict as a ground
for relief in the first motion which came a fter Purnell’s pro se motion . But Purnell did set forth Trial Co unsel’s conflict as his first ground for relief in his initial pro se Rule 61 motion, along with summary facts and case law, thus satisfying Rule 61’s requirement to preserve it. 239 Purnell c laims he did not know, intend, or authorize his postconviction

cou nsel to withdraw the claims of error he set forth in his initial pro se Rule 61 motion when postconviction counsel submitted the amended Rule 61 motion . He also contends
that the amended Ru le 61 motion does not make unambiguously clear that it replaces ra ther
than augments his pro se filing. Further, because postconviction counsel himself died after submitting his reply brief but before oral argument on Purnell’s first Rule 61 motion, there

237 Super. Ct. Crim. R. 61(i)(2)(ii). 238 See Younger , 580 A.2d at 554 (“ Since the Burton case was decided well in advance of Younger ’ s trial, his present insufficiency of evidence contenti on was available and was known, or should have been known, to Younge r at the time of his first motion for postconviction relief. ‘ It is well established that ‘where an appeal was taken from a conviction, the judgment of the reviewing court is res judicata as to all issues actually raised, and those that could have been pre sented, but were not are deemed waived.’” ) (quoting Teague v. Lane , 489 U.S. 288, 297 (1989)). 239 See Super. Ct. Crim. R. 61(b)(2) (“ The motion shall specify all the grounds for relief which are available to the movant and of which the movant has or, by the exercise of reasonable diligence, should have knowledge, and shall set forth in summary form the facts supporting each of the grounds thus specified. ”). We have held that this requires that the movant set forth “make specific allegations of actual prejud ice and substantiate them .” Wright v. State , 671 A.2d 1353, 1356 (Del. 1996). Despite Purnell’s lack of a legal education and his limitations as an incarcerated litigant, his pro se motion’s supporting memorandum accurately and robustly cites legal autho rities and supporting facts in the record sufficient to state his claims for relief.89

is nothing in the record from that counsel to explain the facts s urrounding the amended filing and its omission of the conflict claim. 240 In light of our obligation to “indulge” every reasonable pre sumption against waiver, 241 under these highly unusual cir cumstances, we hold that Purnell did not waive Trial Counsel’s confl ict in his first Rule 61 motion through postconviction counsel’s failure
to include it in the amended motion. 242
T he State contends that even if Purnell did not waive the conflict issue, other procedural bars potentially apply

. That does not appear to be disputed , as Purnell agrees his motion is untimely and successive

. And so Purnell cannot obtain relief for the

240 Purnell’s attorney filed his reply brief on September 30, 2013 in his first Rule 61 motion . Oral argument , originally scheduled for January 22, 2014, was rescheduled to April 16, 2014. On April 10, Purnell’s postconviction counsel made an unopposed request to reschedule those argument due to a health problem. On May 20, 2014, replacem ent counsel entered appearance for Purnell in lieu of postconviction counsel, who pass ed away the following month. We held oral argument on September 24, 2014 and handed down our opinion on November 21, 2014. See also Martinez , 566 U.S. at 13 (“Ineffect ive

- assistance claims often depend on evidence outside the trial record.”).
241 “Courts i ndulge every reasonable presumption against waiver of fundamental constitutional rights and we do not presume acquiescence in the loss of fundamental rights.” Moran v. Burbine , 475 U.S. 412, 450 n.32 (1986) (alterations omitted) (quoting Johnson v. Zerbst , 304 U.S. 458, 464 (1938)). 242 That is, an incarcerated litigant identified, raised, and fully developed a meritorious Sixth Amendment argument for postconviction relief which his attorney abandoned for unexplained reasons without clear evidence of his cli ent’s consent, and that attorney died between briefing before this Court and our decision, depriving us of any possibility of an explanation. Every criminal defendant i s entitled to a fair trial, and when the trial court appointed Purnell a conflicted att orney who already represented another suspect in the same crime whose interests were antagonistic to his own and then insisted on that attorney taking the case to trial when the conflict was brought to the court’s attention Purnell alleges he was deprived of that fundamental constitutional right. Purnell timely recognized and sought redress for that alleged violation in a properly filed pro se motion for postconviction r elief. We therefore do not need to determine the legal effect of the “e

- signature” on the amended motion

-- in this case, a line marked “ /s/ Mark Purnell , ” which Purnell claims he did not authorize.90

Constitutional injury the conflict inflicted on him before satisfying the actual innocence exception to the procedural bars. But in this unu sual case, the conflict is relevant in considering whether he satisfies that exception. 243 As we next discuss, Trial Counsel’s conflict was of such an extraordinary characte r as to convince us that the evidence he now submits was not reasonably available t o him at trial , even with the exercise of due diligence . We discuss the legal and ethical character of Trial Counsel’s conflict to explain how the operation of these rules precluded his access to
critical defensive evidence rendering it “new

. ” 244
2. Purnell’s Trial Counsel Had a Disabling Conflict That Deprived Him of His Right to Counsel
T he right to counsel “is the foundation for our adversary system.” 245 The right is a

243 See Super. Ct. Crim. R. 61(i)(5) (“ The bars to relief in paragraphs (1), (2), (3), and (4) of this subdivision shall not apply either to a cl aim that the court lacked jurisdiction or to a claim that satisfies the pleading requirements of subparagraphs (2)(i) or (2)(ii) of subdivision (d) of this rule. ”). The cited bars to relief are the prohibitions of (1) motions outside the one

- year time lim itation, (2) successive motions, (3) procedurally defaulted grounds, and (4) grounds formerly adjudicated, whether on direct appeal, on a prior postconviction relief mot ion, or in a federal habeas claim. The Rule 61(d)(2)(i) pleading standard referenced i s where the movant “ pleads with particularity that new evidence exists that creates a strong inference that the movant is actually innocent in fact of the acts underlyin g the charges of which he was convicted .”
244 We stress that a general claim of attorney ineffectiveness in failing to obtain or present evidence does not render evidence “new.” Here, Trial Counsel’s actual conflict of interest and the denial of his motion to withdraw resulted in a complete inabilit y to investigate and access certain potentia lly exonerating evidence and defensive strategies. 245 Martinez , 566 U.S. at 12 (quoting Powell v. Alabama , 287 U.S. 45 (1932)); Maine v. Moulton , 474 U.S. 159, 168

– 169 (1985) (“The right to the assistance of couns el guaranteed by the Sixth and Fourteenth Am endments is indispensable to the fair administration of our adversarial system of criminal justice.”); State v. Robinson , 209 A.3d 25, 28 (Del. 2019) (the right to the assistance of counsel is “indispensable to t he fair administration of our adversarial sy stem of criminal justice,” and it “safeguards the other rights deemed essential for the fair prosecution of a criminal proceeding”).91

bedrock principle of justice. 246 “Defense counsel tests the prosecution’s case to ensur e that the proceedings serve the function of adjudicating guilt or innocence, while protecting the rights of the person charged .” 247 The United States Supreme Court “has recognized that ‘the right to counsel is the right to the effective assistance of coun sel.’” 248 The right to counsel in a criminal case includes the right to counsel without divided loyalties. 249 In fact, loyalty is one of counsel’s

246 Martinez , 566 U.S. at 12 (“The right to the effective assistance of counsel at trial is a bedrock principle in our justi ce system.”); Gideon v. Wainwright , 372 U.S. 335, 344 (1963) (It is an “obvious truth” that “any person haled into court, who is too poor to have a lawyer, cannot be assured a fair trial unless counsel is provide d for him”); U.S. v. Smith , 618 F.3d 657, 66 4 (7th Cir. 2010) (“The right to counsel is one of the bedrock elements protecting the fairness of the adversary process.”).
247 Martinez , 566 U.S. at 12; see also Strickland , 466 U.S. at 685 (“The right to coun sel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel’s skill and knowledge is necessary to accord defendants the ‘ample opportunity to meet the case of the prosecution’ to which they are entitled.”) (c iting Adams v. United States ex rel. McCann , 317 U.S. 269, 275 (1942)). 248 Strickland , 466 U.S. at 686 (quoting McMann v. Richardson , 397 U.S. 759, 771 n.14 (1970)); see also Glasser v. United States , 315 U.S. 60, 70 (1942); Avery v. Alabama , 308 U.S. 444 , 446 (1940); Powell , 287 U.S. at 58. 249 Wo od v. Georgia , 450 U.S. 261, 271 (1981) (where the right to counsel exists, there is a correlative Sixth Amendment right to “representation that is free from conflicts of interest.”); United States v. Moscony , 92 7 F.2d 742, 748 (3d Cir. 1991) (the Sixth Am endment confers “ the right to the attorney ’ s undivided loyalty free of conflict of interest” ) (internal quotation omitted); United States v. Acty , 77 F.3d 1054, 1056 (8th Cir. 1996) (“The Sixth Amendment right to counsel embraces the right to representatio n that is free from conflicts of interest or divided loyalties.”); James Lewis , 757 A.2d at 714 (“The Sixth Amendment right to the effective assistance of counsel provides for representation that is ‘free from co nflicts of interest or divided loyalties.’”) ; see also John Wesley Hall, Jr., Professional Responsibility in Criminal Defense Practice , § 9.4 (2020) (“the duty of loyalty is included in all conflict rules and it is embodied in the Sixth Amendment right to counsel which includes the right to counsel without divided loyalties between personal interest or the interests of other clients or persons.”).92

most basic duties. 250 An “actual conflict” exists when a movant can show that counsel actually had divided loyalt ies that affected his or her performance. 251 Here , Purnell’s Trial Counsel had an actual conflict of interest based upon hi s representation of Dawan Harris in connection
with the .38

- caliber revolver

. The operation of the Delaware Lawyers’ Rules of

250 See Strickland , 466 U.S. at 688 (“Representation of a criminal defendant entails certain basic duties. Cou nsel’s function is to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest.”); Moscony , 927 F.2d at 748 (“The attorney’s undivided loyalty is required because the type of effective ‘assistance of counsel’ the Sixth Amendment guarantees a cr iminal defendant is that which puts the government to its proofs in an adversarial manner, and for this counsel free of conflicts of interest is necessary.”); Cooke v. State , 977 A.2d 803, 841 (Del. 2009) (“ Counsel's function is to assist the defendant, an d hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest. ”) (quoting Strickland , 466 U.S. at 688); see also Delaware Lawyers’ Rule of Professional Conduct 1.7 (comment 1) (“Lo yalty and indepen den t judgment are essential elem ents in the lawyer’s relationship to a client.”). 251 See United States v. Wheat , 486 U.S. 153, 159

– 60 (1988) (“While permitting a single attorney to represent codefendants is not per se violative of constitut ional guarantees of effective assistance of couns el, a court confronted with and alerted to possible conflicts of interest must take adequate steps to ascertain whether the conflicts warrant separate counsel.”) (internal quotation omitted); United States v . Stewart , 185 F.3d 112, 121 (3d Cir. 1999) (“Con flicts of interest arise whenever an attorney’s loyalties are divided, and an attorney who cross

- examines former clients inherently encounters divided loyalties.”); United States v. Moscony , 927 F.2d 742, 75 0 (3d Cir. 1991) (same); United States v. Snell , 2008 WL 4572399, at *3 (E.D. Pa. Oct. 10, 2008) (same and noting also that “[t]he risk of misuse of privileged information is more pronounced where defense counsel’s earlier representation of the witness is substantially related to counsel’s later represen tation of the defendant”); United States v. Carpenter , 769 F.2d 258, 263 (5th Cir. 1985) (“ A conflict exists when defense counsel places himself in a position conducive to divided loyalties ”); United States v. Alvera

- Ramirez , 2013 WL 1286634, at *3 (N.D. T ex. Mar. 26, 2013) (“ A conflict of interest is generally found when counsel is in a position conducive to divided loyalties , and an actual conflict exists when a movant can show that counsel actually had div ided loyalties that affected his or her performan ce) (internal quotations omitted); see also United States v. Gonzalez

- Lopez , 548 U.S. 140, 147 (2006) (“The requirement that a defendant show prejudice in effective representation cases arises from the very nature of the specific element of the right to co unsel at issue there

-- effective (not mistake

- free) representation . . . [t]hus, a violation of the Sixth Amendment right to effective representation is not ‘complete’ until the defendant is prejudiced.”) ( emphasis in original); United States v. Williams , 103 F.3d 1093, 1098

– 99 (2d Cir. 1997) (finding that a mere potential conflict of interest without a showing of prejudice to the defendant does not violate defendant’s Sixth Amendment right to effective assi stance of counsel).93

Profess ional Conduct, which we explain next, prevented Trial Counsel from exploring and pursuing defensive strategies that relate d to his prior representation of Dawan Harris

. 3. Attorney Ethics Rules Further Emphasize that Trial Counsel’s Actual Conflict Prevente d Purnell from Obtaining this Evidence The Delaware Lawyers ’ Rules of Professional Conduct (“DLRPC”) limit multiple representations of clients. Trial Counsel was appointed to represent Dawan Harris on February 27, 2006. Dawan was sentenced on December 6 , 2006. It is not clear from the record when Trial Counsel’s representation of Dawan ended. Trial Counsel was appointed to represent Purnell on May 2, 2007, 252 but Purnell was identified as a suspect when Corey Hammond was arrested for drug charges on Janu ary 4, 2007. 253 Thus, Dawan likely was, at that time, a former client , as opposed to a current client of Tr ial Counsel. Nevertheless,
Trial Counsel had certain continuing duties with respect to Dawan Harris. With regard to former clients, D L RPC 1.9 provid es: (a) A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interest are materially adverse to the interests of the former client unle ss t he former client gives informed consent, confirmed in writing. (b) A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a cli ent. (1) whose interests are materially adverse to that person; and

252 A1, A872 (Docket Sheet). 253 A156

– 67.94

(2) about whom the lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in w riti ng. (c) A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter: (1) use information relating to the representations to the disadvantage of the form er c lient except as these Rules would permit or require with respect to a client, or when the information has become generally known; or (2) reveal information relating to the representation except as these Rules would permit or require with respect to a clie nt.
E ven though Trial Counsel’s representation of Dawan Harris appears to have ended by the time his representation of Purnell began, Trial Counsel remained under a continuing duty to not use information learned during his representation of Harris t o Ha rris’s detriment or to reveal confidential information relating to that representation. In addition, under Rule 1.7 of the DLRPC, “[a] concurrent conflict of interest exists if: . . . (2) there is a significant risk that the representation of one or m ore clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” 254 Under this definition, Trial Counsel had a concurrent conflict of interest based upon h is prior representation of Dawan Harris.

254 DLRPC 1.7(a)(2). The rule reads in full : (a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1 ) the representation of one client will be directly adverse to another client; or95

In James Lewis v. State , a case involving a single appointed attorney representing

co - defendants in a joint trial, this Court observed that “[t]he United States Supreme Court and this Court have held that the jud ici ary has an independent interest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings are fair.” 255 Addressing when prejudice can result from a conflict , we stated that, “[w]hen it is alle ge d that the ineffective assistance of trial counsel was the result of a conflict of interest, prejudice is presumed ‘only if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest

(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer. (b) Notwithstanding th e existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client; (2) the re presentation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in th e same litigation or other proceeding before a tribunal; and (4) each affected cl ient gives informed consent, confirmed in writing. DLRPC 1.7 (emphasis added). 255 757 A.2d at 713 (citing to Wheat , 486 U.S. at 160) (“Federal courts have an independent i nterest in ensuring that criminal trials are conducted within the ethical standards of the profession and that legal proceedings appear fair to all who observe them.”)). But see Nix v. Whiteside , 47 5 U.S. 157, 165 (1986) (“[B]reach of an ethical standard does not necessarily make out a denial of the Sixth Amendment guarantee of assistance of counsel.”).96

adverse ly affected his lawyer’s performance.’” 256 In defining what constitutes a “conflict of interest,” we looked to the United States Supreme Court’s statement in Cuyler v.
Sullivan , that “‘an actual, relevant conflict of interest [exists] if, during the course o f the representation, the defendants’ interests do diverge with respect to a material factual or legal issue or to a course of action.’” 257 In other words, an “actual conflict of interest” means “a conflict that affected counsel’s performance

-- as opposed to a mere theoretical division of loyalties.” 258 In this case, Trial Counsel eventually recognized that he had an actual conflict , and he unsuccessfully sought the trial court’s permission to withdraw. 259 Trial Counsel’s actual conflict prevented him from in vestigating, developing and presenting any evidence that implicated Dawan Harris, his former client. Harris’ s gun charge was a substantially related matter to the Giles murder. Note 3 to DLRPC 1.9(a) states that a matter is substantially related when i t involves “the same transaction or legal

256 757 A.2d at 718. 257 446 U.S. 335, 356 n.3 (1980). 258 United States v. Mickens , 535 U.S. 162, 17 1 (2002) (emphasis in original). In Mickens , the United States Supreme Court noted “the Sullivan standard is not properly read as requiring inquiry into actual conflict as something separate and apart from adverse effect;” rather, “[a]n ‘actual conflict,’ for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel’s performance.” Id . at 172 n.5; see also McFarland v. Yukins , 356 F.3d 688, 705

– 06 (6th Cir. 2004) (“ Mickens changed the terminology, but not the substance of the [ Sul livan ] test.”). 259 An attorney representing the confli cting clients is entitled to some deference with regard to the question of whether a conflict exists. See Holloway v. Arkansas , 435 U.S. 475, 485 (1978) (“[a]n attorney representing two defendants i n a criminal matter is in the best position professionall y and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial ”) (quoting State v. Davis , 514 P.2d 1025, 1027 (Ariz. 1973)); see also State v. Stova ll , 312 P.3d 1271, 1282 (“Perhaps the person with the kee nest insight into the effect the conflict of interest will have on the defense attorney’s ability or capability to zealously represent the defendant is the conflicted attorney.”) (Kan. 2013).97

dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the [current] client’s position in t he subsequent matter.” 260 T rial C ounsel represented Dawan for the latter’s prosecution and guilty plea relating to the .38

- caliber pistol seized in the February 18, 2006 search. That warrant was a part of the Giles robbery and murder investigation and soug ht the murder weapon. 261 Trial Counsel’s January 4, 2007 letter to the State raising the conflict makes this clear. The matters are indisputably related. Further, Dawan initially was a suspect in the Giles murder. Two different w itnesses implicated Daw an Harris. One of them told Detective Tabor on June 1, 2006 , that Harris told him, “you should have seen the way she fell.” 262 Another witness implicated Harris in an interview with detectives on July 5, 2006. 263 The conflict preven ted Trial Counsel from sp eaking to Harris about the murder and from investigating and having a firearms expert attempt to show that the .38

- caliber revolver Harris possessed was the murder weapon. Trial Counsel’s affidavit makes clear that he pursued none of these matters.
Note 2 to DLRPC 1.9(a) makes clear that Trial Counsel was ethically barred from pursuing a potential defense that Dawan was the perpetrator or even involved in the Giles murder. Note 2 provides that, “[w]hen a lawyer has been directly involved in a specific

tr ansaction, subsequent representation of other clients with materially adverse interests in

260 DLR PC 1.9(a), n.3. 261 A492

– 97 (Search Warrant). 262 A707 (Wil mington Department of Police Supplemental Report)). 263 A708.98

that transaction clearly is prohibited. ” 264 Rule 1.9 forbade Trial Counsel from revealing not only the confidential communications of his fo rmer client, but any infor mation “relating to” his prior representation of Harris. Further, Trial Counsel was forbidden from representing Purnell if Purnell’s interests were “materially adverse” to the interests of Harris, and Trial Counsel was forbidden from using information rel ating to his representation of Harris in his representation of Purnell.
Trial C ounsel noted that the defense had multiple theories involving Dawan. One was the belief that Mitchell and Dawan were the true robbers, with the eyewit ness misidentifying Dawan as Ronald

. 265 Another was that the robbers were Ronald Harris and either Mitchell or Dawan, and that Ronald was falsely implicating Purnell as the accomplice in retaliation for Purnell “snitch[ing] on them for shooting this .38

- ca liber out
of a window in Co mpton Towers that prompted them getting in trouble.” 266 However, presenting those theories would require Trial Counsel to take positions directly adverse to
Dawan’s interests in the Giles investigation, painting him as the murderer directly, or asserting th at the weapon Dawan had pleaded guilty to possessing w as the murder weapon.
But Trial Counsel was ethically precluded from doing so, and hence from advancing thes e potential defensive strategies.

264 DLRPC 1.9(a), n.2; see also Sullivan , 446 U.S. at 356 (“ Because it is the simultaneous representation of conflicting interests against which the Sixth Amendment protects a defendant, he need g o no further than to show the existence of an actual conflict .”). 265 A38

– 39 (Motion in Limine Transcript). 266 A39.99

The State’s position that “the record indicates the State h ad no reason to believe Dawan had any knowledge of the crime,” 267 is simply unsustainable. 268 Hammond, whose testimony was so critical to the State’s case, in his f irst interview seeking to obtain a favorable plea deal , claimed that he was with Dawan near the site of the robbery when he heard multiple gunshots. 269 Dawan could thus corroborate or contradict Hammond’s

account. Thus, the State cannot plausibly claim to have thought that Dawan had “ no knowledge ” of the crime. Importantly, Trial Counsel and the tr ial judge both labored under the mistaken view that Trial Counsel had an actual conflict only if Dawan Harris testified. Although Trial Counsel began represent ing Purnell in May 2007, it appears that he did not perceive a conflict until eight months later when on January 10, 2008 , he advised the State of the
conflict in a letter. 270 The pre

- trial investigation stage was a critical aspect of Purnell’s
defense. 271 The record contains evidence suggesting that Dawan Harris was a suspect in

267 State’s Supp. Ans. Br. at 13

– 14. 268 See , e.g. , United States v. Iorizzo , 786 F.2d 52, 59 (2d Cir. 1986) (noting that the reversal of the con viction was “ the direct result of the prosecution ’ s using defense counsel's conflict of interest as a means of affecting the evidence going before the jury instead of moving for his disqualification before the trial. The prosecutors here were aware of def ense counsel ’ s conflict of interest at an early stage and were invited by the district judge to make a disqualification motion in writing. We trust that this deci sion will ensure that a pretrial disposition of such issues will occur in the future. ”). 269 A6 38 (Corey Hammond 2007 Interview). 270 A835. 271 In Maine v. Moulton , the United States Supreme Court recognized the importance of pre

- trial assistance of counsel: “[T]he [United States Supreme] Court has also recognized that the assistance of counsel canno t be limited to participation in a trial; to deprive a person of counsel100

the murder early on. But Trial Counsel states unequivocally that he undertook no pre

- trial investigation of Dawan Harris, his former client.
Nor did Trial Counsel call Dawan at trial , and so did not examine him

. 272 Trial
Counsel could not question Harris about the .38

- caliber revolver without revealing or using information relating to his representation of Harris for possession of that very weapon. 273
T rial C ounsel recognized tha t, if Dawan were a witness “I can’t cross

- examine him.” 274 Thus, Trial Counsel could not and did not call Dawan to examine him on his statements that he and Mitchell jointly possessed the .38

- caliber revolver and that he stole it from Cameron Johnson on February 14, as opposed to earlier, as Cameron Johnson’s statement
indicated. Nor could he , or did he , examine Dawan Harris or Etienne Williams on Williams’s statement that Dawan was out of her apartment with her sister Aqueshia the

during the period prior to trial may be more damaging than denial of counsel during the tr ial itself. Recognizing that the right to the assistance of counsel is shaped by the need fo r the assistance of counsel, we have found that the right attaches at earlier, ‘critical’ stages in the criminal justice process ‘where the results might well sett le the accused’s fate and reduce the trial itself to a mere formality.’” 474 U.S. at 170 (quo ting United States v. Wade , 388 U.S. 218, 224 (1967). 272 See Moss v. United States , 323 F.3d 445, 460 (6th Cir. 2003) (“The fear in successive representation case s is that the lawyer will fail to cross

- examine the former client rigorously for fear of reve aling or misusing privileged information.”). 273 See Wheat , 486 U.S. at 164 (noting trial counsel’s conflict where counsel would have been unable ethically to prov ide an effective cross

- examination of a government witness also represented by that same coun sel); Moscony , 927 F.2d at 750 (“Conflicts of interest arise whenever an attorney’s loyalties are divided, and an attorney who cross

- examines former clients inhere ntly encounters divided loyalties.”); Fitzpatrick v. McCormick , 869 F.2d 1247, 1252 (9th Cir. 1989) (“Among the dangers in a successive representation situation is that the attorney who has obtained privileged information from the former client may fail t o conduct a rigorous cross

- examination for fear of misusing that confidential information.”); United States v. Agosto , 675 F.2d 965, 971 (8th Cir. 1982) (same). 274 A38 (Motion in Limine Transcript).101

night of the murder at the same time Mitchell was out. It is clear that Purnell’s defense was adversely affected by Trial C ounsel’s prior representation of Dawan on the gun charge. The failure to pursue potential significant defense strategies demonstrates the adverse e ffect the conflict had on Trial Counsel’s representation of Purnell. 275 A broad array of state and federal ca ses support this
conclusion. 276

275 See , e.g., Ciak v. United States, 59 F.3d 296 (2d Cir. 1995) (judgment reversed and conviction vacated where an important government witness was a recent client of trial counsel in a substantially related matter and trial counsel presented a theory that possibly was at odds with the position he took in relate d proceedings); Fitzpatrick , 869 F.2d at 1253 (reversing convictions and recognizing actual c onflict of interest where defense theory involved accusations against defense counsel’s former client); Lockhart v. Terhune , 250 F.3d 1223 (7th Cir. 2001) (convict ion reversed where counsel in a murder trial had an actual conflict where prosecutors present ed evidence that petitioner had committed a second, earlier murder and his appointed counsel was also representing another man implicated (but not charged) in that earlier homicide); United States v. Malpiedi , 62 F.3d 465, 470 (2d Cir. 1995) (vacating judg ment of conviction where trial counsel had actual conflict of interest due to his prior representation of a lay government witness and where court held that cross

- examination of that witness about her prior grand jury appearance was a “tactic that was enti rely plausible but barred by [counsel’s] conflict of interest”); Iorizzo , 786 F.2d at 58

– 59 (reversing mail fraud convictions where trial counsel had an actual con flict causing him to abandon his cross

- examination of the government’s key witness (trial cou nsel’s former client) as to prior testimony); People v. Daly , 792 N.E.2d 446, 451 (Ill. App. Ct. 2003) (reversing conviction due to trial counsel’s prior represent ation of a confidential information, who was the State’s chief witness against the defendant and noting that although counsel no longer represented the informant, there was a “continuing” relationship to the extent that counsel would be required to cross

- e xamine the informant about matters occurring during the time counsel represented him.); Stova ll , 312 P.3d at 1282 (trial court’s denial of conflicted defense counsel’s motion to withdraw deprived defendant of his right to effective assistance of counsel wh ere counsel was constrained from pursuing a defense strategy that would have implicated a for mer client; court reversed conviction and remanded for new trial with directions to appoint conflict

- free counsel.); see also Lewis , 757 A.2d at 720 (holding that there was an actual conflict in the dual representation at trial by the same public defender and that defendant demonstrated prejudice by the divergence of the clients’ interests and also by “what the record reflects [defend ant’s] attorney did not do on his behalf.”). 276 See , e.g., United States v. Gambino , 864 F.2d 1064, 1070

– 71 (3d Cir. 1988) ( “Clearly, a defendant who establishes that his attorney rejected a plausible defense because it conflicted with the interests of an other client establishes not only an actual conflict but the adverse effects of it.”); Stovall , 312 P.3d at 1279 (“The elimin ation of a potential defense strategy can surely be102

It is difficult to measure the precise impact on defense representation when trial counsel had a direct conflict that impacts trial strategies and tactics. 277 That is why in cases of an actual conflict, prejudice is often pre sumed. 278 And that is why in cases of actual

characterized as adversely affecting the attorney’s representation. Moreover, the perils of trying to serve two masters is literally as old as the Bible.”); People v. DiPippo , 82 A.D.3d 789, 791 (N.Y.S.2 d App. 2011) (where trial counsel’s former client in a different matter was a possible suspect in murder for which defendant was be ing tried, effective assistance of counsel was denied and conviction reversed and new trial granted where “ among other things , trial counsel did not conduct even a minimal investigation into [the former client] by sending an investigator to ascertain [his] possible involvement .”). 277 See Strickland , 466 U.S. at 692 (“[I]t is difficult to measure the precise effect on the defense of representation corrupted by conflicting interests.”); S preitzer v. Peters , 114 F.3d 1435, 1450 (7th Cir. 1997) (“This presumpti on of prejudice is necessary because a true conflict of interest forecloses the use of certain strategies and thus the effect is difficult if not impossible to measure.”) (quoting United States v. Fish , 34 F.3d 488, 492 (7th Cir. 1994)); United States v. L evy , 25 F.3d 146, 155 (2d Cir. 1994) (“ An attorney has an actual, as opposed to a potential, conflict of interest when, durin g the course of the representation, the attorney ’ s and the defendant's interests diverge with respect to a material factual or lega l issue or to a course of action. ”) (internal quotation omitted). 278 See Strickland , 466 U.S. at 692 (“Given the obligation o f counsel to avoid conflicts of interest and the ability of trial courts to make early inquiry in certain situations likely to give rise to conflicts, it is reasonable for the criminal justice system to maintain a fairly rigid rule of presumed prejudice fo r conflicts of interest.”) (internal citation omitted); Sullivan , 446 U.S. at 349

– 50 (“a defendant who shows that a conflict of int erest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief”); Hollow ay , 435 U.S. at 488

– 89 (“ The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial. ”) (internal citations omitted); Glasser v. United St ates , 315 U.S. 60, 76 (1942) (“[T]he right to have the assistance of counsel is too fundamental and absolute to allow courts to ind ulge in nice calculations as to the amount of prejudice arising from its denial.”); Lockhart , 250 F.3d at 1226 (“unlike with other Sixth Amendment claims, when a defendant alleges an unconstitutional actual conflict of interest, ‘prejudice must be presumed ’”) (quoting Delgado v. Lewis , 223 F.3d 976, 981 (9th Cir. 2000) ); United States v. Fish , 34 F.3d 488, 492 (7th Cir. 1994) (“ This presumption of prejudice is necessary because a true conflict of interest forecloses the use of certain strategies and thus th e effect is difficult if not impossible to measure.”); Zepp , 748 F.2d at 139

– 40 (holding that a defendant’s constitutional ri ghts were violated due to defendant’s trial counsel’s actual conflict of interest, presuming prejudice, and reversing her judgment of conviction); United States v. Gerardo , 1998 WL 292379, at *3 (N.D. Ill. May 15, 1998) (“This presumption of prejudice is n ecessary because a true conflict of interest forecloses the use of certain strategies and thus the effect is difficult if not impos sible to measure.”), aff’d , 191 F.3d 456, 1999 WL 528093 (7th Cir.103

conflict where trial counsel’s representation is adversely affected , the result is typically the reversal of the conviction and the granting of a new trial with unconflicted counsel. 279
We note that federal courts have employed different tests for Sixth Am endment violations and assessing their prejudicial impact, depending on the type of Sixth Amendment violation. One category of violation is where the attorney’s performance was so deficient as to deny defendant a fair trial. The test employed there is th e two

- part Strickland test. A second category is referred to as the Cronic exception and involves the complete denial of counsel at a critical stage of the proceeding. 280 A third category of Sixth
Amendment violat ion arises when the defense attorney activ ely represents conflicting
interests. 281 A trial counsel’s direct conflict deprives his client of his right to counsel and

Jul. 20, 1999) (TABLE); see also Nancy Burkoff, Ineffectiv e Assistance of Counsel , § 3.10 (2020) (“In these circumstances, counsel breaches the duty of loyalty, perhaps the most basic of co unsel’s duties. Moreover, it is difficult to measure the precise effect on the defense of representations corrupted by confl icting interests.”). 279 See , e.g., State v. Stovall , supra notes 259, 275, and 276; People v. DiPippo , supra note 276; Lockhart v. Terhune , supra notes 275 and 278; People v. Woidtke , 729 N.E.2d 506, 514, 516 (Ill. App. Ct. 2000) (where an attorney simulta neously represented a murder defendant and another person charged with misdemeanor offenses stemming from the murder wh o had also been a suspect, a per se conflict of interest existed, and the defendant was “ entitled, through his new counsel, to proceed an ew in all respects, from his decision to waive or not waive a jury and through all other aspects of the trial. ”). 280 See United States v. Cronic , 466 U.S. 648, 658

– 59 (1984) (“There are, however, circumstances that are so likely to prejudice the accused tha t the cost of litigating their effect in a particular case is unjustified. Most obvious, of course, is the complete de nial of counsel.”) (internal footnote omitted). Prejudice is presumed in this second category. See also Urquhart v. State , 203 A.3d 719 , 730 (Del. 2019) (“A complete denial of counsel occurs when a criminal defendant must navigate a critical stage of the proceedings against him without the aid of an attorney dedicated to the protection of his client’s rights under our adversarial system o f justice.”) (internal quotation omitted). 281 See Mickens , 535 U.S. at 166.104

can be tantamount to having no counsel. 282 Specifically, within this third category are three
further subcategories. The first two s ubcategories pertain to concurrent conflicts. 283 A third subcategory includes a situation where the conflict is “rooted in counsel’s obligations to former clients.” 284 The United States Supreme Court, in dicta in Micke ns , left open the
test for assessing prejudice to be applied in successive representation scenarios. 285 The Supreme Court suggested the choice is between the Cuyler v. Sullivan “adversely affected”
test and the Strickland changed outcome test. In Stovall , the Kansas Supreme Court, in considering such a successive representation conflict, applied the less stringent Cuyler test because “a criminal defendant who claims that his or her attorney had a conflict of interest
that affected the adequacy of his or her counsel’s representation need not demonstrate prejudice in the traditional sense, i.e., need not establish that the error affected the outcome

282 Holloway , 435 U.S. at 490 (“The mere phy sical presence of an attorney does not fulfill the Sixth Amendment guarantee when the advocate’s conflicting obligations have effectively sealed his lips on crucial matters.”); United States v. Edelmann , 458 F.3d 791, 806 (8th Cir. 2006) (“the right to cou nsel’s undivided loyalty is a critical component of the right to assistance of counsel; when counsel is burdened by a conflict of interes t, he deprives his client of his Sixth Amendment right as surely as if he failed to appear at trial.”) (quoting Bonin v . California , 494 U.S. 1039, 1044 (1990) (Marshall, J., dissenting)). 283 Mickens , 535 U.S. at 174. 284 One court has referred to the firs t two subclasses as the automatic reversal effect exception ( e.g., Holloway ), the adverse effect exception ( e.g., Sulli van ), and the third as the “ Mickens reservation” (since the Court in Mickens did not resolve which test to apply in successive representa tion scenarios). Galaviz , 291 P.3d at 71. 285 Mickens , 535 U.S. at 175. A second distinction in these three subcategori es, in addition to the temporal distinction, is whether an objection to the multiple representations is made before or during the proceed ing. Mickens , 535 U.S. at 168

– 69. There are related distinctions regarding the court’s burden of inquiry in each circ umstance.105

of the proceeding.” 286 Here, we need not decide whether to apply the Sullivan test (as we did in the James
Lewis case involving joint rep resentation of co

- defendants ) because we find that an actual conflict of interest adversely affected Purnell’s case and resulted in prejudice to him in
such a manner that the fairness of the trial has been undermined. There is no question on
this record t hat Trial Counsel’s actual conflict adversely affected his performance by, among other things, foreclosing significant and obvious avenues of defense to Purnell.
Delaware and federal habeas cases are in agreement that evidence i s “new” when it

was not a vailable at the time of trial and could not have been discovered earlier through the exercise of due diligence. Since Trial Counsel was ethically barred from investigating or pursuing several key areas of evidence and was not perm itted to withdraw, Purnel l could not have obtained or presented that evidence through the exercise of due diligence. W e conclude, therefore, that such evidence is “new” for purposes of the present motion. Since much of his evidence goes to proving facts incompatible with his gui lt , it also satisfies the requirement that it goes beyond being merely cumulative or impeaching. We now move to the final step and examine whether Purnell can satisfy the persuasiveness inquiry.

286 312 P.3d at 1273

– 74; Tueros v. Greiner , 343 F.3d 587, 594 (2d. Cir. 2003) (“Although Sullivan dealt with a lawyer who owe d duties to multiple defendants, it may well be unreasonable not to extend Sullivan’s definition of an ‘actual conflict ’ to a lawyer whose conflict was defined by representing the divergent interests of a defendant and an important subpoenaed witness.”). But see Harvey v. United States , 798 Fed. App’x 879, 884 (6th Cir. 2020) (noting that the Sixth Circuit has declined to extend the Sullivan presumption of prejudice to cases involving successive representations involving different matters).106

4. Purnell’s New Evidence
In assess ing whether a prisoner has met the criteria for demonstrating actual innocence, the court must assess all of the evidence, including that which was properly excluded and that which was wrongfully admitted. As the Supreme Court explained in Schlup : In asse ssing the adeq uacy of petitioner’s showing, therefore, the [reviewing] court is not bound by the rules of admissibility that would govern at trial. Instead, the emphasis on “actual innocence” allows the reviewing tribunal also to consider the probative fo rce of relevan t evidence that was either excluded or unavailable at trial.

. . [it] must make its determination concerning the petitioner ’ s innocence in light of all the evidence, including that alleged to have been illegally admitted (but with due regard to any unrelia bility of it) and evidence tenably claimed to have been wrongly excluded or to have become available only after the trial. 287
We now consider the full corpus of evidence. We agree with the Superior Court that Purnell’s evidence can best be aggregated in to six categories: ( 1 ) ballistic and firearm
evidence ; ( 2 ) Kellee Mitchell ’s recant ation ; ( 3 ) other evidence inculpating Dawan Harris
and Kellee Mitchell ( 4 ) evidence undermining Ronald Ha rri s ’s testimony ; ( 5 ) evidence undermining Corey Hammon d ’s testimony ; and (6) evidence of Purnell’s physical incapacity

. In accordance with the standard, we contextualize Purnell’s new evidence in light of the evidence presented at trial and in light of the other unadmitted material

. The
burden on the motion , a s stated earlier, is satisfying the Court that the new evidence, when considered in the context of all the relevant evidence by a properly instructed jury, is such as will probably change the result if a new trial were granted.

287 Schlup , 51 3 U.S. at 327

– 28 (alterations added) (internal quotation omitted )

.107

a. New Ballistic Evidence
T he bullet that struck Mrs. Giles was never recovered. The only ballistic evidence , which the State conceded at trial was the only physical evidence tying Purnell to the crime
at all , was a single spent 9mm shell casing. Purnell’s new ballistic evidence c onsists of an
affidavit , and supporting scientific literature, from an expert criminal investigator from Cobb County, Georgia opining that the spent casing was found too far away to have been ejected from where Mrs. Giles was shot. 288 Based on a study invol ving thousands of test rounds, he concludes that spent casings from that type of handgun are generally ejected approximately six to seven feet, and never more than twenty

- one feet , while Detective Tabor’s testimony and the trial exhibits indicat e the 9mm c asing was found forty to fifty feet away from where the shooting occurred. 289 The evidence detection officer placed the distance from the casing to the curb at sixty feet. The geography of the area, and the geometry of the round, eliminate the possibility of it rolling the remaining difference, and the lack of markings on the casing, combined with officers’ quick arrival on scene, make an explanation of the casing being kicked or manually moved a “possibility remote at best.” 290 Th us, the expert concludes th at the spent casing was “unrelated to the shooting
of Ms. Giles

. ”
As the only physical evidence the State relied on to tie Purnell to this crime , the shell casing was a critical aspect of Purnell’s trial . No one produced a semi

- automatic gun

288 A723

– 27 (Declaration of Robert Tressel). 289 A726. 290 A726

– 27.108

that certain witnesses said they saw Purnell with, and those witnesses ’ credibility, as even the State concedes, was highly questionable. Rather, the ballistic evidence makes it more likely that a revolver was the murder weapon. T he .38

- cal iber revolver , jointly poss essed by Dawan Harris and Mitchel l and hidden in the hallway ceiling in Compton Towers, was never the subject of any investigation by Purnell’s conflicted Trial Counsel.

b. Kellee Mitchell ’s Recantation At trial, Kellee Mitchell de nied all knowledge of the G iles murder. The State nevertheless brought in Mitchell’s statement inculpating Purnell under 11 Del. C. § 3507 and relied heavily upon it in making its case to the jury. That heavy emphasis was noted by this Court on direct re view , 291 and by the State its elf. 292
But now Mitchell denies both the truth and the voluntariness of his prior statement,
and has sworn out an affidavit stating that: Sometime in January 2007, I got picked up on a capias. The detectives brought me in to question me about the murder. They were trying to get me to say that I had heard Mark Mark bragging about it. The police tried to coerce me into a story that they had already made up. They had their story and just wanted me to agree with it. That was impossible because I wasn’t the re. I don’t know what happened. I was not going to testify to something that wasn’t true. I got locked up on a material witness warrant and was told I had to take the stand. The police told me they would make my life miserable if I didn’t take the stan d and say what they wanted me to say. I didn’t care, I still told the truth on the stand, that I didn’t know anything. Mark never bragge d to me about killing her. I don’t know if he did it, but he never told me if he did.

291 See Purnell , 979 A.2d at 1106 (“ At the close of the State ’ s case, which relied largely on the testimony of Mitchell and [Ro nald] Harris , Purnell moved to admit Giles ’ statement in which he fail ed to identify Purnell as one of the assailants in a photo array. ”) (emphasis added). 292 E.g. , A349, A350, A354, A365 (State’s Closing and Rebuttal Arguments).109

To support the conclusion tha t Mitchell’s recantation affidavit is true and his prior statement false, Purnell supplies two other supporting affidavits. In one, Dawon Brown
den ies that Purnell confessed while they were incarcerated

. 293 In Mitchell’s prior statement, he asserted that B rown was present for Purnell’s purported confession. 294 In the other supporting sworn statement, a friend of Purnell’s who was incarcerat ed with Mitchell in 2012 or 2013 attests that, at that time, he confronted Mitchell about having testified against Purne ll, and Mitchell disavowed his testimony, confessing that he was only trying
to avoid conviction for the crime himself. 295 The transcript of Mitchell’s interview beg an in medias res , with Detective Tabor presenting a narrative account to which Mitchell respo nd ed with short answers, often one

word expressions of assent. 296 U nlike Ronald Harris or Corey Hammond, Mitchell did not testify to an y personal knowledge of facts or statements predating the homicide. Rather, his prior statement merely alleges that Purne ll confessed while they were both incarcerated. This type of testimony is inherently of questionable reliability, even when the witness
continues to maintain the truth of the claim. 297 Here, Mitchell disclaims the prior statement ,

293 A506 (Affidavit of Dawan Brown). 294 A501 (Mitchell 2007 Interview). 295 A509 (Declaration of Andrew Moore). 296 A499

– 504 (Kellee Mitchell January 2007 Interview Transcript). According to Detective Tabor, he was repeating things Mitchell had said in the first, unrecorded part of the in terview. A111

– 12 (Testimony of Detective Tabor). 297 In the recent Stat e v. McMullen , the Superior Court in a bench trial refused to rely on the sworn trial testimony of another inmate that a defendant had confessed while incarcerated, reasoning that “[a]l though some of his testimony sounded credible, I was not comfortable re lying on it” because110

other witnesses corrobora te the prior statement’s falsity , and Mitchell’s explanation for lying to implicate Purnell accords with other parts of the record

.

c. New Evidence Inculpating Dawan Harris and Kellee Mitchell In addition to Dawan Harris and Mitchell fitting the physical desc ription given by Angela Rayne, their u nlawful possession of the .38

- caliber revolver, and the police report suggesting Dawan Harris may have bragged about committing the Giles murder, Purnell points to a police interview with Cameron Johnson from July 19, 2006. 298 In that interview, when polic e confront ed him about the revolver Dawan and Mitchell admit ted to having stolen from him, Cameron said that they stole it two or three weeks before the Giles murder, contradicting Dawan Harris’s claim that he stole it the week prior to his February 18, 20 06

arrest , i.e. , after the Giles murder

. 299 Cameron Johnson’s account is consistent with

he “is a jailhouse snitch.” 2020 WL 58529, at *12 (Del. Super. Jan. 3, 2020), aff’d , --- A.3d

--- 2021 WL 2070119, at *1 (Del. May 24, 2021). While the ordinary l ine of attack on the credibility of this type of testimony flows from t he possibility that the inmate seeks to obtain favorable treatment or a shorter sentence for his assistance, e.g., Cruz

- Webster v. State , 155 A.3d 833, 2017 WL 464536, at *5 (Del. Feb. 2, 2017) (TABLE), in this case the record shows Mitchell knew himself t o be under police suspicion for having been the second assailant in the Giles murder. Further explaining his motivation to falsely implicate Purnell, Mitchell’s affidavit asserts that police had told him at the time that Purnell had implicated him. A489 (Affidavit of Kellee Mitchell). Although this Court has acknowledged that “a motion for a new trial based upon a witness’ recantation is generally viewed with suspicion,” Blankenship , 447 A.2d at 433, that danger is most prevalent when an incarcerated wit ness recants. See Johnson v. State , 410 A.2d 1014, 1015 (Del. 1980) (affirming the denial of a new trial where the Superior Court had rejected the recantation evidence as “the products of prison atmosphere to be received with great caution.”); State v. Ru sso , 700 A.2d 161, 165 (Del. Super. 1996) (“ A motion for a new trial based on a witness ’ recantation is generally viewed with suspicion. This is because a recantation has traditionally been viewed as the ‘ product of prison atmosphere to be received with g reat caution. ’ ” ) (citing Blankenship and Johnson ), aff’d , 694 A.2d 48, 1997 WL 317381 (Del. Apr. 17, 1997). 298 A764 (Statement of Cameron Johnson). 299 A791

– 91.111

Purnell’s statement to Detective Curley. In addition , on actual innocence review, it is appropriate to consider Mr. Giles’s eyewit ness identification of Kellee Mitche ll as the
shooter and his failure to identify Ronald Harris when shown Ronald Harris’s photo

. 300

d. Evidence Undermining Ronald Harris ’s Testimony Although Purnell characterizes his new evidence as including Ronald Harris’s

“ recantation ,” a recantation is a formal or public repudiation of a prior statement or testimony, 301 such as can be accomplished by the recanting witness’s affidavit. 302 Purnell provides no affidavit or statement of any kind from Ronald Harris himself . Rath er, he provides sworn statements from Ronald Harris’s mother 303 and stepfather 304 asserting that Ronald Harris has consistently maintained his innocence to them before, during, and since
hi s plea; that he entered the plea solely to avoid the possibility of a m urder conviction; and that he has substantial learning disabilities and can barely read or write

. The evidence as to Ronald Harris is more properly classified as impeachment

. On
the record before us, Ronald Harris’s parents ’ accounts both express the sa me narrative

-- Ronald Harris was a learning

- disabled teenager who had been held for more than a year on an indictment led by a first

- degree murder charge

. They permitted police to int erview Ronald for hours without an attorney present in February 2006 be cause they were certain

300 A687. 301 Germany v. Vanc e , 868 F.2d 9, 14 n.6 (1st Cir. 1989); Recant , Black’s Law Dictionary (11th ed. 2019) (“To withdraw or renounce prior statements or testimony formally or publicly”). 302 E.g., Blankenship , 447 A.2d at 433. 303 A512

– 13 (Declaration Shawn Harris). 304 A515

– 16 (Dec l aration of Melvin Murphy).112

of his innocence, 305 and confirm Ronald’s assertions that he barely knew Purnell. As both his mother and stepfather tell it, aware that the prosecution was supported by a disinterested eyewitness’s positive identification, Ronald tol d them that he accepted the plea agreement and testified against Purnell solely because it woul d have him home within two year s instead of facing a potential life sentence.

e. Evidence Undermining Corey Hammond ’s Testimony
Purnell presents affidavits from Cor ey Hammond’s mother Naco Hammond 306 and Alfred M. Lewis, a former cellmate of Hammond’s late ste p father Corey Johnson 307 to the general effect that Johnson was a career criminal who avoided prosecution by habitually acting as a police informant . Naco Hammond is convinced that Johnson orchestrated Corey Hammond’s implication of Purnell, but admits she has no personal knowledge of

305 We note that the American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (Rev. 2003), Guideline 10.7 commentary states: Unfortunately, inadequate investigation by defen s e attorneys

-- as well as faulty eyewitness identification, coerced confessions, prosecutorial misconduct, false jailhouse informant testimony, flawed or false forensic evidence, and the special vulnerability of juvenile suspects

-- have contributed to wr o ngful convictions in both capital and non

- capital cases. In capital cases, the mental vulnerabilities of a large portion of the client population compound the possibilities for error. This underscores the importance of defense counsel’s duty to take ser i ously the possibility of the client’s innocence, to scrutinize carefully the quality of the State’s case, and to investigate and re

- investigate all possible defenses. 31 Hofstra L. Rev. 913, 1017

– 18 (2003). This case presents a perfect storm of many aspe c ts of these legitimate concerns. This case involves multiple instances of troubling treatment of a juvenile with obvious and disclosed cognitive disabilities. Yet, Ronald Harris’s interrogations are just one of the many aspects of the treatment of minor s presented in this case that trouble us. We ask that the Attorney General consider our concerns regarding interrogation techniques, particularly with respect to juveniles with cognitive disabilities. 306 A668

– 70 (Affidavit of Naco Hammond). 307 A665

– 66 (Af

f idavit of Alfred M. Lewis, Jr.).113

Johnson doing so. 308 Purnell also presents an affidavit from Troy Hammond, swearing that
he was with friends at the corner of Fifth an d Jefferson the night of the murder, and that they ran over afterwards, and that his brother Corey was not present. Troy speculates that Corey may have fabricated his 2007 post

- arrest account from overhearing him , Troy, discussing with his friends what th ey had just seen. As with Ronald Harris, Purnell characterizes this as evidence of recantati on, but it does not contain any formal or public disavowal by Corey Hammond

. Unlike with Ronald
Harris ’s parents , Corey Hammond ’s mother does not even present a s econdhand account of a nonpublic retraction. 309 Although Naco Hammond’s affidavit is “merely” impeaching, Alfred Lewis’s affidavit goes further by asserting that Corey Hammond has conceded that he testified falsely , 310 and Troy Hammond’s affidavit alleg es fir sthand personal knowledge
that his brother ’s testimony was false. 311

308 A669 (Affidavit of Naco Hammond). During Corey Hammond’s interview implicating Purnell, officers asked him “have you discussed this case with your dad at all?” A647 (Corey Hammond Interview Transcript). When Hammond responded “I don’t even think he have a clue what happen (CU),” Detective Tabor told him “I think he knows a lot more than you think.” 309 See A666 (Affidavit of Alfred M. Lewis, Jr.) (“I asked [Corey Hammond] if Mark [Purnell] told him anything about a mur d er. He said ‘No!’ and explained that he just ended up telling the court what everyone was saying in the streets about the crime.”). 310 As the Superior Court has subsequently explained, the operative distinction in Young , see supra note 216, is that the ne w evidence of witness dishonesty is not “merely” impeaching when, rather than impeach the witness generally, it substantiates that the witness was “ lying about the facts of the case in which he was testifying

. ” State v. Joyner , 1996 WL 111129, at *2 (Del. Super. Feb. 2, 1996) (emphasis added). 311 During the 2007 interview with Corey Hammond, Detective Tabor told him that multiple witnesses were “telling me that you witnessed the shooting,” and had identified him by name as “Bump.” A641. Corey Hammond corr e cted Detective Tabor that his nickname was “Boot.” A641

– 42. That exchange is redacted in the transcript for unclear reasons, but is clearly audible in the recording. Trial Court Exhibit 4. Contemporaneous police records confirm that Troy114

Other substantial grounds for impeaching Corey Hammond which were not presented to the jury but were already evident on the pre

- trial record clearly exist as well. His inculpatory stateme nts all came immediately after his arrest for a serious felony under
which he potentially faced more than a decade

- long mandatory minimum Level V sentence, days before the birth of his child. He initially described hearing multiple gunshots and only adopt ed a version claiming to have heard a single gunshot after the
interviewin g detectives repeatedly referred to a single gunshot in their questioning . He
further claimed that both Ronald Harris and Purnell had firearms, but that Harris was the
shooter

-- kn owledge which he never explained, and which he had abandoned by the time

o f his trial testimony. And he likewise changed his story of who he was with at the time, claiming to have been with Dawan Harris in his interview but then specifically denying it

wa s Dawan and claiming not to remember who it was at the time of trial. And Corey Hammond’s account materially differs from Ronald Harris’s in key respects. 312 These other avenues for impeachment were evident at trial. Ordinarily, in examining an actual inn ocence claim, it may not be appropriate to consider the weight of

Hammond’s nick n ame was “Bump,” giving some corroboration to the truth of Troy’s claims. A707 (Wilmington Department of Police Supplemental Report). 312 For example, Ronald Harris testified that he agreed with Purnell to commit a robbery in the morning of January 30, 20 06, before his encounter with police at Fifth and Jefferson where Rayne first saw him, and that he did not see Purnell again until they me t at Compton Towers that evening to commit the robbery. He also claimed he was not at his Aunt Sherry’s house at any point that day. Hammond claimed that Purnell solicited a partner for the robbery within an hour of committing it, outside Aunt Sherry’s h ouse, and that Harris volunteered to join him at that time. Also, Hammond claimed that a few days or a week later, wh en Purnell bragged about shooting Mrs. Giles, Ronald Harris was also present. Ronald Harris claimed he had not seen Purnell again until h is arrest on February 18, 2006.115

cross - e xamination attacks that a defendant’s trial counsel tactically chose to forbear. But a critical fact changes things in this case: in his January 4, 2007 inculpatory interview,
Hammon d’s initial account provided an alibi for Dawan Harris , Trial Counsel’s f ormer client

. When on cross

- examination Trial Counsel elicited Corey Hammond’s statement
that he was not with Dawan Harris at the time, Trial Counsel was faced with the conflict
of i nterest which infected this case , because undermining Corey Hammond by confronting
him with this clear contradiction would have been injurious to Dawan’s interest in the same

matter

. Trial Counsel’s failure to highlight the numerous vulnerab ilities of Ham mond’s testimony cannot be ascribed to his tactical decision

- making.

f. New Medical Evidence As the trial record reflects, there is no dispute that Purnell was shot in the knee on January 21, 2006, and that the bullet was removed the following d ay in a compli cated surgery involving three incisions to the front of his knee and a larger incision closed by approximately ten staples to the back. Nor was there any dispute that Purnell left the hospital on January 23 in a wheelchair, or that the stapl es were eventu ally removed in early February when he was in the New Castle County Detention Center, or that during his detention he was on crutches at least part of the time. The disputed issue going to Purnell’s factual innocence claim is whether it was

m edically possi ble for him to be the person Rayne saw running away fast and at full speed from the Giles murder on January 30, 2006.
Purnell now submits an affidavit from Dr. Francis Xavier McGuigan (“Dr. McGuigan”), an orthopedic surgeon and former milit ary doctor wit h extensive experience116

as a trauma surgeon treating gunshot wounds to the leg. 313 Based on Purnell’s medical records, the uncontradicted testimony of White and Dr. Rubano, and a new affidavit from
another Youth Rehabilitation Counsel at the N ew Castle Count y Detention Center, 314 Dr. McGuigan opines on his belief , “with reasonable medical probability that Mr. Purnell would have likely been unable to run unimpeded on January 30, 2006.” 315
6. Purnell’s New Evidence, in Light of the Conflict, Necess itates a New Tria l
Taken as a whole , and based on the State’s own description of its case from its opening statement and closing argument at trial, the evidence Purnell presents is the rare
case that overcomes the daunting burden of showing that it woul d probably change the
result if a new trial were granted. 316

313 A806 (Declaration of Francis Xavier McGuigan, M.D.). 314 A813

– 14 (Affidavit of William Junior Davis). 315 A806

– 08 (Declaration of Francis Xavier McGuigan, M.D.). Importantly, Dr. McGuigan’s review and opinion were not based o n the witness testimony from Honie and Smith which, as the State’s trial cross

- examination showed, were at times incor rect or even intentionally false. Nor does Dr. McGuigan rely on another affidavit Purnell offers from an affiant who claims to have incar cerated with Purnell at the time and who attests to remembering his bandages, crutches, and physical incapacity. A810

– 11 (Affidavit of Khiry Brown). 316 Our dissenting colleague argues that a strong inference of actual innocence in fact requires a greater s howing than either Schlup or Downes . This is a departure from our precedents. We have repeatedly affirmed Superior C ourt cases using the Schlup formulation, as discussed extensively in note 199 supra. Moreover, speaking for the Court in Carr v. State , o ur dissenting colleague rejected a successive Rule 33 motion for a new trial (based upon newly discovered evidence) fi led more than thirty years after the movant’s conviction, noting that “the Superior Court could have considered Carr’s motion for new tria l as a motion for postconviction relief under Rule 61” but “was not required to do so” while specifically citing to Do wnes -- a standard for relief the dissent would now hold was not available. 143 A.3d 2, 2016 WL 3453737, at *2 (Del. June 16, 2016) (TABLE). Moreover, denying relief to a movant who can satisfy Schlup accomplishes nothing more than delaying vacatur until a federal court can grant habeas relief, and so simply risks continued imprisonment of an innocent person without advancing the caus e of finality at all.117

The State relied on the 9mm shell casing to tie Purnell to the crime . The State argued that the casing excluded the .38

- caliber revolver, since a revolver retains spent casings , and so implied that the murder weap on was a semiautomatic weapon like the one Corey Hammond claims he saw Purnell display . The State possesses no other physical evidence tying Purnell to the crime . But to make even this connection, the State told the jury th at the casing was found only a “few feet” from where Mrs. Giles fell. This was contrary to the evidence

-- it was found approximately forty to sixty feet away. And Purnell’s new expert opines that this indicates it was likely unrelated to the shooting. The physical evidence thus sugg ests the opposite conclusion from the one the State relied on at trial

-- Mrs. Giles appears to have likely been shot with a revolver like the one Mitchell and Dawan Harris possessed, not a semiautomatic pistol like the one P urnell allegedly had
and which was never found

. 317
T he State’s case against Purnell , but for the shell casing, reli ed almost exclusively

on the statements and testimony of Corey Hammond, Kellee Mitchell, and Ronald Harris.
A s the State conceded, all thre e had enormous credibility probl ems , even prior to

317 We disagree with our dissenting colleague’s argument that expert testimony is not needed for a defe ndant to prove the limits as to how far a handgun will eject its shell casings. This strikes us as precisely the sort of “scientific , technical, or other specialized knowledge” which calls for expert testimony under D.R.E. 702. Even if jurors could be as sumed to have a broad familiarity with handguns

-- a dubious proposition at best

-- knowing the ejection trajectories and distances o f particular types of 9mm pistols is specialized knowledge. Moreover, for Trial Counsel to disprove the connection between the 9mm shell casing and the Giles murder would necessarily be to develop proof that Tameka Giles was murdered with a revolver. Hav ing represented Dawan Harris when he pleaded guilty to the unlawful possession of just such a weapon (which arrest and conv iction were outgrowths of the Giles murder investigation), Trial Counsel could not ethically pursue such a defense

.118

submission of the recantation and impeachment evidence . Not only did they have extensive criminal records, but each sought to avoid serious criminal penalties through their cooperation: Hammond and Ronal d Harris, both of whom had small children, testified pursuant to agreements with the State that ensured they would come home swiftly instead of facing mandatory minimums of more than a decade for Hammond, or, potentially, life in prison for Harris. 318 Mitchell himself had been a suspect i n the Giles

318 In Reeves v. Fa yette SCI , discussed supra notes 207 and 218, Judge McKee of the Third Circuit joined the majority and wrote separately to further explain why even the defendant’s own “apparent confession does not negate the claim of actual innocence based on newly discov ered evidence under Schlup v. Delo .” 897 F.3d at 165 (McKee, J., concurring). As he put it: According to the National Reg istry of Exonerations, roughly half of individuals who have been exonerated following murder convictions involving DNA evidence in th e United States since 1989, made a false confession. In Pennsylvania, the rate of false confessions is comparable. Nearly half of individuals who have been exonerated with DNA evidence following a conviction for murder in Pennsylvania had confessed to th ose murders. In referring to this data, I do not, of course, suggest that police should have completely ignored Reeves’s c onfession. Rather, I refer to it simply to underscore that Reeves’s confession does not negate his arguments under Schlup . I have a lready noted that absent the detective’s inexplicable failure to pursue leads pointing to Anderson and the equally puzzling three

- year gap in this investigation, there would have been no incriminating statement from Reeves. Id . at 172. The flaws undermini ng the confession which Judge McKee discusses are no less present for Ronald Harris here. Ronald Harris gave new statement s to the State admitting to some crimes while inculpating Purnell as the killer only after denying any knowledge or involvement over several extended interrogations as a juvenile and adult. He did so only after a great gap of time from the incident, a gap during which the State appears to have inexplicably failed to further develop or pursue the case against other suspects for whom it had compelling evidence. His new statements were inconsistent internally, inconsistent with each other, inconsistent with the physical evidence, and inconsistent with independent reports of other witnesses. Those infirmities are all the more serious in t he context of a confession given pursuant to a plea being invoked against a codefendant. See also Poventud v. City of New York , 750 F.3d 121, 144

– 45 (2d Cir. 2014) (Lynch, J., concurring) (“The choice of freedom in exchange for an admission would be easy for a guilty man, but even an innocent one would be hard pressed to decline the prosecution’s offer.”); Bland , 263 A.2d at 288 (“ Despite the lack of any absolute requirement of corroboration of an accomplice ’ s testimony, our Courts have always cautioned ju ries that, although they have the power to convict solely upon such testimony if firmly convinced of its truth, great care should be exercised in doing so. ”).119

murder. The State’s heavy emphasis in its closing arguments to support their credibility

was to emphasize the agreement between those three witnesses’ account

-- pointing out that Hammond heard a single sho t, just like Rayne did, and asking “ w hy are they all telling the same lie and why are they all telling the same lie about him?” But Corey Hammond’s interview shows he claimed to have heard multiple shots until the interviewing detectives twice prompted him about hearing “the shot” in the
si ngular. Ronald Harris’s multiple contradictory accounts of hearing three shots ( his 11

- hour 2006 interview), one shot ( his trial testimony ) , and hearing no shots ( both his January 24, 2007 interview and April 7, 2008 plea proffer interview) also undermine this argument. Nevertheless, neither of these inconsistencies were brought up on any cross - examination or in closing arguments by Trial Counsel.
O nce Corey Hammond accused Mark Purnell , Detectives Tabor and Simmons
interviewed Mitchell and Ronald Har ris later that month and asked whether Purnell, specifically, had committed or confessed to t he murder. 319 Mitchell implicated Purnell at that time

. Ronald Harris steadfastly maintained his innocence until after jury selection at a trial where the State ha d named Mark Purnell as his codefendant before agreeing to enter into a highly favorable plea deal. Ronald Harris, as the State acknowledged during the

319 The first part of the Mitchell interview was not recorded or transcribed, see supra note 112

. Detective Tabor answered “yes” to the prosecutor’s question “did you ask Kellee Mitchell at any time in that interview wheth er the defendant made statements about the robbery and murder.” A111 (Testimony of Detective Tabor). For his part, Mitchell accus es the detectives of presenting him with a version of events upon which they had already decided and to which he merely gave assent. In the Ronald Harris interview in January 2007, again Detective Simmons told Ronald Harris that the authorities believed that Mark Purnell was the second assailant and asked him to corroborate that belief. A552

– 54 (Ronald Harris January 24, 2007 Interview Transcript).120

motion in limine hearing, was critical to its case which until then, rest ed on the statements
of Purnel l allegedly made to Hammond and Mitchell. Ronald Harris’s adherence to his
claim of innocence until his plea explains his nearly incoherent plea proffer interview and conflicting trial testimony. In all probability, especial ly in light of the subsequent change in the legal terrain surrounding the replaying of those witnesses’ statements and testimony, 320 we think the jury would not find Ronald Harris, Corey Hammond, or Mitchell’s statements sufficiently reliable to base a conv iction on them. On top of that, Purnell also demonstrates that a medical expert, relying on the uncontradicted facts of his own injury and treatment by hospital workers and corrections staff, would support his argument that he was physically unable to run in the manner Rayne
describes M rs. Giles’s killers as doing when they fled the scene. Despite calling Dr. Rubano as a rebuttal witness, t he State was unable to produce medical expert testimony at
trial as to Purnell’s physical capacity, and instead relied on the jury disbelieving Purne ll’s
witnesses ’ lay testimony following able and effective cross

- examination. W ith the new , uncontradicted expert opinion, a jury would probably reach a different conclusion. We say this even apart from the fact that on th e day the jury rendered its ver dict, it reported that it was concerned it would be a hung jury if it had to render a verdict by day’s

320 As we found in ruling on Purnell’s first Rule 61 motion, a Bland instruction warning the jury about the d ubious reliability of accomplice testimony would be appropriate; and, as we ruled in Alfred Lewis , the jury should not be perm itted repeat viewings of Section 3507 prior statements over the defendant’s objection as occurred at Purnell’s pre

- Alfred Lewis tr ial.121

end. The State’s case, in other words, was a close one even when Purnell’s defense was constrained by a severe ethical co nflict 321 which his Trial Counsel had noted and raised. In light of Purnell’s persuasive evidence concerning key defensive strategies and supporting evidence involving Mitchell and Dawan Harris that Trial Counsel could not ethically pursue, and in light of Purnell’s evidence of his own in capacity, the remaining
evidence 322 is not of the character to dissuade us from the conclusion that a jury would probably have reached a different result

. Finally, t he Dissent’s argument that there is no reliable evidence linking the .38

- caliber revolver t o this case ignores one of the key injustices bedeviling this case: Trial Counsel was ethically barred from pursuing the obvious leads, including inculpatory

stateme nts made by Dawan Harris to various witnesses, his lying about when he stole the revolver, his resemblance to Ronald Harris , and other evidence detailed above. Trial Counsel represented Purnell through the end of his direct appeal, and he did not obtain

u nconflicted counsel until August 22, 2011. That is, Purnell did not have representation

321 The Dissent does not address the conflict of interest and this Court’s conclusion that it was never waived, never addre ssed by any court, and resulted in a manifestly unfair trial. The Dissent also does not dispute th at Trial Counsel’s blatant conf lict of interest blocked Purnell’s access to key evidence and completely barred him from taking any position adverse to Dawan Harris. It dismisses all of the evidence implicating Dawan Harris as a mere “theory.” 322 The Dissent emphasizes Aqueshia Williams’ s accusation that Purnell made certain other inculpatory remarks which could be understood as admitting guilt. T he video of t he January 2007 interviews with Aqueshia, Etienne, and their mother Michelle, is not of a character as would lead any reasonable j uror to base a murder conviction on them . The Williams’ shifting and inconsistent stories, their explanations of personal gri evances against Purnell and his father, and most startlingly Aqueshia Williams’s disclosure that her sister and mother are both “o n drugs” greatly undermine the reliability of that evidence. These credibility issues are in addition to the Williams sisters ’ obvious interest in shielding their boyfriends, Dawan Harris and Mitchell, whom they believed were suspected in the Giles murder

.122

eth ically capable of developing proof that the .38

- caliber revolver was the murder weapon
until more than five

- and

- a - half years after the crime. Memories have faded and witnesses, including both eyewitnesses (neither of whom identified Purnell ) , have died.
N otwithstanding these great challenges, we believe Purnell has satisfied the heavy burden he bears as to pleading with particularity new evidence that creates a stron g inference that he is actually innocent in fact of the acts underlying the charges of whic h he
was convicted. Thus, Purnell has satisfied both prongs of his heav y “actual innocence” burden, allowing this Court to consider the impact of his procedurally de faulted Constitutional deprivation of effective assistance of counsel claim. Because, as e xplained above, that claim is meritorious, we reverse and vacate his judgment of conviction.
III. CONCLUSION We observe that legitimate claims of actual innocence are exc eedingly rare. Indeed,
this is the first case where a defendant has satisfied the actual i nnocence exception to the procedural bars in Rule 61 . Because they are so rare, the actual innocence exception, in our view, poses no threat to our State’s interest in finality. We believe the result in this case strikes the appropriate balance between o ur justice system’s interests in “finality, comity and cons ervation of judicial resources, and the overriding individual interest in doing justice in the ‘extraordin ary case.’” 323

323 Schlup , 513 U.S. at 313

– 14 (quoting Carrier , 477 U.S. at 496).123

Accordingly, the judgment of conviction is REVERSED and VACATED and we REMAND this matter for a new trial. The mandate shall issue forthwith.

### VAUGHN , Justice , dissenting :

Superior Court Criminal Rule 61(d)(2)(i) requires that a defendant plead “with particularity that new evidence exists that creates a strong inference that the movant is actually innocent in fact of the acts underlying the charges of which he was convicted.” It is a unique rule. The Majority looks to this Court’s cases involving
motion s for a new trial and the federal habeas corpus case of Schlup v. Delo 1 

### in
d eciding how to apply the rule. I would appl y it accordi ng to its own terms as
written. Early in its analysis of the “persuasive burden” of the rule, the Majority
observes that the new evidence must show that someone other than the movant
committed the c rime. I agree with that. The Majority then moves into its Schlup

– Hicks

– Brown

– Lloyd

– Downes analysis , at the end of which it concludes that actual innocence is established if the new evidence “speak [ s ] with such persuasive
force as to convince the reviewing court that , when considered in the context of all the relevant evidence by a properly instructed jury, it is such as will probably change the result if a new trial were granted .” 2 

### A change of result most favorable to a
defendant would be an a cqu ittal , which occurs whe n a properly instructed jury
decides the State has failed to meet its burden of proof and there is a reasonable

1 513 U.S. 2 98 (1995)

. 2 Maj. Op. At 83. 124125



### doubt about the defendant’s guilt

. It is well known that a n acquittal is not the same as a finding of innocence in fact . It simply means that the jury was not convinced
that the state met its burden of proving the defendant’s guilt beyond a reasonable
doubt. Since an acquittal represents a jury determination that there is a reasonable doubt about the defendant’s guilt, a nd Rule 61(d)(2)(i) requires a n affirmative showing that the new evidence creates a strong inference that the defendant did not
commit the alleged criminal acts , I think t he Majority’s rule significantly waters down the burden which the rule places on the defendant. Hicks, Brown, Lloyd

, and Downes are not factual innocence cases. Hicks,
Brown , and Lloyd each involved a motion for a new trial

. N one of them discuss or
mention a ctual innocence in fact

. Under Superior Court Criminal Rule 33, the rule
gov erning motions for a new trial, a new trial is granted in the interest of justice.
When a motion for a new trial is based on newly discovered evidence, it is evaluated
under the three

- part test discussed by the Majority. The prong relevant to the Majorit y’s actual innocence standard is the first, which i s that the new evidence will probably change the result if presented to the jury

. A change in the result would ordinarily be taken to mean that the new evidence will probably lead to an acquit tal.
The ca ses have no bearing at all on Rule 61(d)(2)(i) ’s requirement that the new evidence must create a strong inference of the defendant’s actual innocence in fact.126



### In Downes , the defendant filed a Rule 61 motion claiming, among other things, that he was enti tled to relief because of newly discovered evidence. The trial
court denied the claim on the ground that it was not filed within the two

- year limitation period required b y Rule 33. The Rule 61 motion, however, was filed
within the three

- year limitation p eriod which then applied to Rule 61 motions. Th is
Court held that to the extent a defendant’s claim for a new trial based on newly
discovered evidence was time barred und er Rule 33, he could seek the same relief
in a motion filed under Rule 61, subject on ly to the limitations of that rule. The Court applied the same three

- part test that is applied to motions for a new trial. The
Court did not mention or discuss actual in nocence in fact. The effect of the Majority’s opinion is to extend Downes to an unti mely, second Rule 61 motion. Now the defendant will not be required to show that the new evidence “ creates a strong inference that the defendant is innocent in fact of the acts ” underlying the crime. He will be required to show only that the new evidence will probably result in an acquittal, i.e., will probably result in a different outcome.
As to Schlup , and as discussed by the Majority, in federal habeas corpus law

a claim of actual innocence is the gateway through which the petitioner must pass in
ord er to have his otherwise barred constitutional claims heard on their merits. Schlup held that a petitioner passes through the gateway if the petitioner can show that a constitutional violation “probably resulted” in the conviction of an innocent person.127



### The Supreme Court then determined that “ [t] o establish the requisite probability, the petitioner must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.” 3 

### I do not think that Schlup
pro vides any guidance in this case for the same reason that I think that our cases on
motions for a new trial are not helpful

. I think the rule calls upon the Superi or Court judge to engage in direct fact finding and decide whether the evidence is new eviden ce and, if so, whether it creates a strong inference that the defendant did not
commit the criminal acts of which he was convicted. 4 

### Accordingly, I would find th at Rule 61(d)(2)(i) requires the Superior Court judge to do two things. First, the judge shou ld determine whether the defendant has pled with particularity that the offered evidence is new evidence, applying the
familiar three

- part test applied by the Sup erior Court in this case. If the judge decides that the evidence satisfies that standard, the judge should proceed to the second step and make findings of fact and draw a conclusion of law as to whether or
not the new evidence creates a strong inference , that is, a firm inference , or conclusion, t hat the defendant is actually innocent of the acts underlying the charges
of which he was convicted.

3 Schlup , 513 U. S. at 327. 4 The federal actual innocence exception to procedural barriers is also known as the miscarriage of justice exception. Ironically, Rule 61’s mi scarriage of justice exception to procedural barriers was abolished by the 2014 amendment.128



### The Superior Court judge did not apply the second step of the analysis I think should be performed. As the Majority mentions, he applied Schlup ’s no reasonable juror standard. Since the Majority remands for a new trial rather than an evidentiary hearing and a new decision by the Superior Court, I will discuss, briefly, how I view
the alleged new eviden ce. I do not think that the recantations of Kellee Mitchell, Ronald Harris, and Corey Hammond, two of wh ich are second

- hand recantations, create a strong inference of anything. This Court has recognized that “a witness’ recantation is generally viewed with suspicion.” 5 

### The recantations leave one to wonder whether the witness was telling the truth at trial or as reported in the affidavits filed in this proceeding. Unless a recantation can be clearly corroborated by some supporting evidence, whi ch these are not, it cannot create a strong inference that a defendant is actually innocent in fact. In addition, the recantations of Mitchell, Ronald Harris, and Hammond do not disturb the testimony of Aqueshia Williams. According to her testimony, Purn ell’s telephone conversation in which he says that Dawan Har r is and Mitchell “are in jail for something that I did, ” is followed by the word sike, which can mean just kidding. 6 

### But Aqueshia Williams was also interviewed by Det. Tabor. During that interv iew, he asked her directly whether Purnell told her that he had

5 Blanken ship v. State, 447 A.2d 42 8, 433 (Del. 1982).
6 A196, 197

.129



### murdered M r s. Giles, and she said no. She did say, however, that on apparently another occasion, in what could be construed as a threat that her sister and she should remain quiet, that he told her that “I shot one b

--- h, I’ll kill another. ” 7 

### The Superior Court found that none of the medical evidence offered in this proceeding qualified as new evidence. In his closing, trial counsel emphasized the
testimo ny that Purnell was physically unable to run and, therefore, could not have
committed the crime. In addition to the testimony of Purnell’s family me mbers, the jury heard testimony from a youth rehabilitation counselor at the New Castle County
detention ce nter that Purnell was using crutches while there between February 1 and February 3, 2016. All of the medical evidence offered in this proceeding cou ld have been discovered before trial through the exercise of reasonable diligence. Trial counsel’s conflic t of interest in connection with his representation of Dawan Harris did not prevent trial counsel from pursuing all the evidence concerning Purnell’s
medical condition that could be found. There is no legal error or abuse of discretion in the Superior Cou rt’s finding that the medical evidence is not new evidence. The Superior Court also found that the ballistics evidence was not new
evidence. One do es not need to be a ballistics expert to have a doubt about whether a handgun will throw a shell casing as far as 50 feet. In its footnote 320, t he Majority

7 A201. I have also viewed the interview with Aqueshia Williams and I believe that her statement to the Detective speaks for itself.130



### takes issue with this statement, and for purposes of trial preparation it is, of course,
desirable to have an expert where there are ballistics issues. But jurors are also permitted to exercise a little common sense. I stand by my statement. In any event,

t his evidence could have been discovered before trial with due diligence by hiring a
ballistics expert at the time

. I do not believe that trial counsel’s conflict prevented him from hiring a ba llistics expert in connection with the shell casing and arguing that the casing was unrelated to the murder. There is no legal error or abuse of
discretion in the Superior Court’s finding that the ballistic evidence is not new
evidence. The final catego ry of new evidence is alleged new evidence that Daw a n Harris
and Kellee Mitchel l are the ones guilty of the death of M r s. Giles. This theory places great we ight on the .38

- caliber revolver. However, and despite the alleged suspicious nature of Daw a n Harris and Mitchell’s acquisition of the weapon, there
is no reliable evidence linking the revolver to the crime. And thinking that , if trial
counsel had interv iewed Daw a n Harris, Harris would have made some incriminating

statement or made any statement helpful to the defense, if he agreed to speak with trial counsel at all, is real speculation. The theory that Daw a n Harris and Kellee
Mitchel l were the true kill ers is a theory, but just a theory. It does not satisfy Rule 61(d)(2)(i)’s standard that the new evidence must create a strong inference that the defendant is actually innocent in fact of the murder.131



### In footnote 324, the Majority notes that I have not ad dressed the conflict of interest, which, the Majority says resulted in a manifestly unfair tri al. It is not my intention to make light of the conflict of interest, which was serious and should not have happened. But the issue is whether Purnell has made the necessary showing that new evidence creates a strong inference of his actual innocence in fact, and I do not believe such a showing has been made. The Majority says, in footnote 319, that I am departing from precedent. The Majority can hold that opi nion if it wishes, but the Court has never directly confronted the interpretation and application of Rule 61(d)(2)(i). The Majority has also apparently searched high and low for anything I might have said that is inconsistent with this dissent, settling o n Carr v. State, 2016 WL 3453737 (Del. 2016). That case involved a motion for a new trial under Criminal Rule 33. In retrospect, the order issued in th at case should probably not have referred to Rule 61, the mention of which was unnecessary to the resul t. The procedural bars of Rule
61 are not mentioned in the order at all. The footnote concludes by saying, in essence, or implying, that this Court sho uld grant the relief Purnell seeks because a federal court will eventually do so anyway. Maybe, but I would not attempt to anticipate how a federal court might view this case. It is possible that a federal court might agree with the Superior Court’s opin ion.132



### While trial counsel argued at trial that Kellee Mitchell was the real culprit, his
defense was essentially a reasonable doubt defense. The evidence which has been offered in this proceeding would strengthen that defense, but it fails to meet t he standard of Rule 61(d)(2)(i). Whether Purnell received ineffective assistance of counsel is no long er before the Court. A far more demanding standard now applies, and I do not believe it has been met. I would affirm the judgment of the Superior Court

.