State v. Fort, Minn.S.Ct., 7/16/2009. On December 15, 1990, someone broke into the home of eleven year old Marcus Potts, and stabbed him forty-four times, causing his death. A police tracking dog picked up a scent from footprints in the snow that lead away from the house to an address three or four houses down the street where, it turned out, Mr. Fort lived. Police executed a search warrant at Mr. Fort’s house; they found a pair of shoes that had a “consistent” foot pattern and some clothes. DNA analysis of blood on a pair of pants did not match either Potts or Fort.
Ten days later, police obtained a second search warrant for Mr. Fort’s house; they did so because they had acquired “equipment from the Minnesota Bureau of Criminal Apprehension … that could detect blood that was not visible to the naked eye.” This machine found eight small drops of blood. These drops were too small to be tested in 1990, but not too small in 2001. The 2001 testing produced a DNA profile that matched that of Potts.
While awaiting trial, four jail inmates came forward with claims that Fort had confessed to killing Potts. While the jury deliberated, another jail inmate called Fort’s attorney to report that Fort’s cousin, Paul Rice, was whiling away the time by confessing “to the ‘whole wing’ of the jail that he had killed Potts. The trial court held an evidentiary hearing on this new claim but declined to grant Fort a new trial on the basis of it.
Mr. Fort challenged the second search warrant, arguing that there was no new probable cause to support it. The appellate court rejects this double dipping argument – State v. Zanter, 535 N.W.2d 624 (Minn. 1995). Both applications had sought bloody items; indeed the first search produced blood on a pair of pants. All that the second application added was the desire to look for bloody items again only with this magic BCA machine. The appellate court concludes that this desire to look for the same thing, only using a different technique, provided the “new information” on which the second magistrate could find new probable cause to believe that “new evidence” would be found.
Mr. Fort also challenged the state’s proof of premeditation to support the first degree murder conviction. The appellate court basically counts to forty-four and rejects this argument.
The appellate court then considered the new evidence, Mr. Rice’s purported confession to his jail buddies, and whether Mr. Fort should get a new trial because of it. To get a new trial on the basis of new evidence here’s what a defendant has to establish:
In order to obtain a new trial based on new evidence, the defendant must show that: (1) the evidence was not known to him or his counsel at the time of trial; (2) the failure to learn of the new evidence was not because of lack of diligence; (3) the evidence is material and is not impeaching, cumulative, or doubtful; and (4) the evidence is likely to produce an acquittal or more favorable result for the defendant. State v. Pippitt, 737 N.W.2d 221, 226 (Minn. 2007).
The state conceded that Mr. Fort met the first two parts of this standard. The appellate court thus devotes two paragraphs to a look at the remaining two parts of the test. They decided to defer to the findings of the trial court that the evidence of Mr. Rice’s confession was “too doubtful to support” a new trial, and that this evidence “lacked credibility.” There are snitches and there are snitches.
Lastly, the state conceded that Mr. Fort could not be sentenced on both first degree premeditated murder and first degree felony murder.
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