Hunt v. State

Ronnie Hunt v. State of Maryland, No. 21, September Term, 2020. Opinion by Harrell, J. Criminal Law—Petition for Writ of Actual Innocence—Whether Evidence is Newly Discovered—Incorporation by Reference of Due Diligence Requirement of Maryland Rule 4-331(c) A court addressing the merits of a petition for writ of actual innocence, filed pursuant to Maryland Code (2001, 2018 Repl. Vol.), Criminal Procedure Article (“CP”), § 8-301, must determine whether the evidence presented is newly discovered. Newly discovered evidence “could not have been discovered in time to move for a new trial under Maryland Rule 4-331.” Under Rule 4-331(c), a court “may grant a new trial or other appropriate relief on the ground of newly discovered evidence which could not have been discovered by due diligence in time to move for a new trial pursuant to” Rule 4-331(a), that is, within ten days after a verdict.

Thus, the actual innocence statute incorporates by reference the due diligence requirement of Rule 4-331(c). Criminal Law—Petition for Writ of Actual Innocence—Due Diligence “Due diligence” contemplates that the defendant act reasonably and in good faith to obtain the evidence, in light of the totality of the circumstances and the facts known to the defendant. Criminal Law—Petition for Writ of Actual Innocence—Due Diligence Requirement—Kopera Cases Under the unique circumstance of Joseph Kopera’s fraud on the courts of Maryland, which had gone undetected for many years until its fortuitous discovery by a postconviction attorney from the Innocence Project, working on an unrelated case in 2007, we hold that, in this and all similarly situated cases tried prior to the 2007 discovery of Kopera’s fraud, in the absence of particularized facts that would have put defense counsel on inquiry notice indicating a need to investigate Kopera’s purported academic qualifications, due diligence did not require defense counsel to unearth it prior to 2007. Criminal Law—Petition for Writ of Actual Innocence—Prejudice Standard The prejudice standard of CP § 8-301(a)(1)(i), that a petitioner must prove that newly discovered evidence “creates a substantial or significant possibility that the result may have been different,” is substantially similar to the standard applicable to claims of ineffective assistance of counsel and claims alleging a violation of Brady v. Maryland, 373 U.S. 83 , 83 S. Ct. 1194 , 10 L. Ed. 2d 215 (1963), and its progeny.

It is therefore unnecessary to perform a bifurcated analysis of “materiality” followed by application of the prejudice standard. Circuit Court for Baltimore City IN THE COURT OF APPEALS Case No. 191136027 Argued: December 8, 2020 OF MARYLAND No. 21 September Term, 2020 ______________________________________ RONNIE HUNT v. STATE OF MARYLAND ______________________________________ McDonald, Watts, Hotten, Getty, Booth, Biran, Harrell, Glenn T., Jr., (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Harrell, J. Watts and Biran, JJ., concur. ________________________________ Filed: June 7, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-06-07 09:31-04:00 Suzanne C. Johnson, Clerk It took Dorothy some time to discover that the reputation of the “all-powerful” Wizard of Oz was not precisely as advertised. Perhaps, had she exercised some diligence in vetting him on the front-end of their encounter, she might have spared herself and her traveling companions the misadventures suffered at the hands of the Wicked Witch of the West (and her flying monkeys) at her castle. Nonetheless, no one dare fault her for relying initially on the accreted high opinion of the Wizard.

There seems to us some similarities between Dorothy’s and the Wizard’s relationship and this case. Unfortunately, the consequences of the late Joseph Kopera’s deception of Maryland’s courts, the Bar, and defendants for decades in a host of criminal cases in which he testified for the State as an “expert” in the field of firearms ballistics, based in part on later-discovered falsities in his academic curriculum vitae, have not proved to be resolved easily by legal wizards.1 In an effort to cut through at least a strand of the larger Gordian Knot left in the wake of the 2007 discovery of Kopera’s misrepresentations, we shall adopt a somewhat outside-the-lines resolution of the present case in order to clear 1 According to a newspaper article headlined, “Police expert lied about credentials,” by Jennifer McMenamin, published 9 March 2007, in the Baltimore Sun, Kopera claimed in court to have degrees that he had not earned in fact. Kopera testified frequently that he had a degree from the Rochester Institute of Technology (“RIT”) in photographic science/engineering and, on at least one occasion, testified that his RIT degree was in aerospace engineering. Kopera claimed also to have a mechanical engineering degree from the University of Maryland.

The 2007 article reported that Kopera had forged at least one document (a transcript that he claimed was from the University of Maryland) offered originally to attorneys with the Innocence Project, attempting to justify his qualifications. In response to further questions from the attorneys at the Innocence Project, Kopera provided allegedly a “certificate of training” from the United States Air Force, to what intended curative effect remains opaque. a path for Maryland courts to get more quickly to the more taxing question of whether Kopera’s deceit, once discovered, created, under Maryland’s actual innocence statute, “a substantial or significant possibility that the result [of the trial] may have been different.” Md. Code (2001, 2018 Repl. Vol.), Criminal Procedure Article (“CP”), § 8-301(a)(1)(i). We shall hold that, in this case and in all similarly situated “Kopera cases,” trial counsel were not expected reasonably to uncover Kopera’s deception before 2007, in the absence of specific information that should have put counsel on inquiry notice to investigate sooner Kopera’s background.

BACKGROUND This is the second time we have considered the actual innocence petition of Petitioner, Ronnie Hunt. In the previous iteration of this case, we held that Hunt was entitled to a hearing on his petition in the Circuit Court for Baltimore City. State v. Hunt, 443 Md. 238 , 116 A.3d 477 (2015) (“Hunt I”). In the present iteration, we are asked to determine whether the alleged newly discovered evidence underlying his claim, that is, the belated discovery that the State’s ballistics expert, Joseph Kopera, had testified falsely in 1991 at Petitioner’s trial about his educational background and experience, could not have been discovered reasonably in time to move for a new trial under Maryland Rule 4-331,2 as required under Maryland’s actual innocence statute, which provides in relevant part: 2 In 1991, when Hunt was tried, Maryland Rule 4-331 provided in relevant part: (a) Within Ten Days of Verdict. — On motion of the defendant filed within ten days after a verdict, the court, in the interest of justice, may order a new trial. 2 (a) A person charged by indictment or criminal information with a crime triable in circuit court and convicted of that crime may, at any time, file a petition for writ of actual innocence in the circuit court for the county in which the conviction was imposed if the person claims that there is newly discovered evidence that: (1)(i) if the conviction resulted from a trial, creates a substantial or significant possibility that the result may have been different, as that standard has been judicially determined; or (ii) if the conviction resulted from a guilty plea, an Alford plea, or a plea of nolo contendere, establishes by clear and convincing evidence the petitioner's actual innocence of the offense or offenses that are the subject of the petitioner's motion; and (2) could not have been discovered in time to move for a new trial under Maryland Rule 4-331.

(b) Revisory Power. — The court has revisory power and control over the judgment to set aside an unjust or improper verdict and grant a new trial: (1) in the District Court, on motion filed within 90 days after its imposition of sentence if an appeal has not been perfected; (2) in the circuit courts, on motion filed within 90 days after its imposition of sentence. Thereafter, the court has revisory power and control over the judgment in case of fraud, mistake, or irregularity. (c) Newly Discovered Evidence. — The court may grant a new trial or other appropriate relief on the ground of newly discovered evidence which could not have been discovered by due diligence in time to move for a new trial pursuant to section (a) of this Rule: (1) in the District Court, on motion filed within one year after its imposition of sentence if an appeal has not been perfected; (2) in the circuit courts, on motion filed within one year after its imposition of sentence or its receipt of a mandate issued by the Court of Appeals or the Court of Special Appeals, whichever is later. *** Although the rule has been amended several times since then, none of those amendments has any bearing on this case. 3 CP § 8-301(a).3 We refer to Hunt I for context: Following a jury trial spanning several days in September of 1991, Ronnie A. Hunt, Jr. (“Hunt”) was convicted on 25 September 1991 in the Circuit Court for Baltimore City of first-degree murder and use of a handgun in the commission of a crime of violence. The jury found that Hunt, along with his co-defendant, Harry Johnson, III, on 10 April 1991 shot to death Sheldene Simon on the front lawn of the victim’s home in Baltimore during a gunfight involving multiple shooters.

Hunt was sentenced to life imprisonment for murder, plus a consecutive twenty years for the handgun offense. Hunt’s convictions were affirmed in 1993 by the Court of Special Appeals on direct appeal in an unreported opinion. Hunt I, 443 Md. at 242 , 116 A.3d at 479 . Hunt sought unsuccessfully postconviction relief.

Thereafter, on 30 September 2010, Hunt, having become aware of the revelation in 2007 of the scandal surrounding Kopera’s perjured testimony in hundreds4 of criminal trials, filed pro se a petition for writ 3 Since Hunt filed his original petition in 2010, CP § 8-301(a) has been amended to include expressly the ability of a person convicted by way of a guilty plea to file a petition under the statute. 2018 Md. Laws, ch. 602. As Hunt was convicted following a jury trial, that amendment has no effect on this case. Thus, we concern ourselves with the current version of the statute. 4 We do not have a firm figure as to precisely how many trials were tainted potentially by Kopera’s misrepresentations. According to the 2007 McMenamin article in the Baltimore Sun, cited previously, supra note 1, Kopera’s testimony had helped to convict “hundreds” of defendants.

According to a newspaper article headlined, “Firearms expert forged signatures on lab reports, Maryland State Police say,” by Dan Morse, published 28 December 2019, in the Washington Post, there are more than 4,000 cases implicated potentially. That source does not say whether any of these cases were resolved by guilty pleas and, if so, how many, but in any event, even persons who pleaded guilty may have recourse to raise a Kopera claim (at least a claim alleging that Kopera had falsified a signature on a lab report), given the 2018 amendment to the actual innocence statute. 4 of actual innocence in the circuit court, which he amended several months later. Hunt’s first amended petition5 averred, among other things, “that his federal Constitutional Rights to due process and equal protection of the law afforded under the Fifth and Fourteenth Amendments were denied him ‘based on false evidence.’” Hunt I, 443 Md. at 243 , 116 A.3d at 479-80 . Hunt described the discovery, by an attorney working for the Innocence Project, of Kopera’s false testimony in numerous criminal trials concerning his credentials.

See id. at 243-44 , 116 A.3d at 480 (quoting in detail Hunt’s first amended petition). He maintained further that “Kopera’s testimony in his capacity as the State’s ballistics expert was the State’s “‘only evidence’ against him and ‘the linch pin in the State’s case’.” Id. at 244 , 116 A.3d at 480 . He concluded, had Kopera’s “fake credentials and/or false testimony” been known, “it is reasonably probable that the outcome of the trial would have been different[,] because his testimony probably would not have been as credible.” Id. The circuit court denied Hunt’s first amended petition, without a hearing, on the ground that it “fail[ed] to state a claim or assert grounds for which relief may be granted pursuant to [§ 8-301(a)].” Hunt (self-represented) appealed,6 and the Court of Special Appeals, in an unreported opinion that relied upon Douglas v. State, 423 Md. 156 , 31 A.3d 250 (2011), reversed and remanded for a hearing.

Hunt v. State, No. 162, Sept. Term, 2011 5 Following our decision in Hunt I, Hunt filed another amended petition for writ of actual innocence. Although it was captioned as an “Amended Petition,” we shall denote the later-filed petition as his second amended petition to avoid confusion. 6 The docket entries indicate that Hunt filed (unrepresented) an application for leave to appeal, which the Court of Special Appeals treated apparently as a notice of appeal. 5 (filed 20 June 2014) (per curiam). The State sought further review by means of a petition for writ of certiorari. State v. Hunt, 440 Md. 225 , 101 A.3d 1063 (2014).

We granted the writ and affirmed the judgment of the intermediate appellate court. Hunt I, 443 Md. 238 , 116 A.3d 477 (2015). The matter was remanded to the circuit court for a hearing. Upon remand, Hunt, now represented by counsel,7 filed a second Amended Petition for Writ of Actual Innocence, alleging: Petitioner’s petition for a writ of actual innocence is based on the evidence that the State’s expert witness in ballistics analysis who testified at his trial, Joseph Kopera, lied about his academic credentials while under oath in that trial and on countless prior occasions.[8] This evidence could not have been discovered through due diligence in time to move for a new trial pursuant to Md. Rule 4-331. *** Mr. Kopera lied while under oath at Petitioner’s trial that he had earned “a degree in mechanical engineering from the University of Maryland and also an engineering degree from the Rochester Institute of Technology.” This evidence was discovered in 2007 by a post conviction lawyer [in an unrelated case] who investigated Mr. Kopera’s academic credentials while representing a client whose convictions were partly based on his expert witness testimony.

The evidence that Mr. Kopera lied for decades about his academic credentials could not have been discovered in time to move for a new trial pursuant to Md. Rule 4-331 in light of the totality of the circumstances and the facts known to Petitioner. Those circumstances and facts included the enduring 7 Hunt is represented now by counsel from Maryland’s Office of the Public Defender. 8 “With a career spanning 37 years, Kopera [testified in] criminal cases in every one of Maryland’s 24 jurisdictions as well as in Delaware, Pennsylvania and Virginia and at both the state and federal level, said Col. Thomas E. ‘Tim’ Hutchins, superintendent of the Maryland State Police.” McMenamin, supra note 1. As noted previously, his testimony was advanced by the State in its efforts to convict (at least) “hundreds” of defendants. 6 presumption that the State will present truthful testimony and exculpatory evidence, Mr. Kopera’s long-standing reputation as a competent ballistics expert, and the helpful evidence that he presented in Hunt’s case.

Petitioner relied on that reputation and that evidence to shape his defense theory, which was to present alternative suspects for the crimes with which he was charged. Petitioner cannot be expected to have found Mr. Kopera’s lies amid circumstances that contrast markedly with the conditions surrounding their incidental discovery in a radically different legal context. Second Amended Petition, filed 6 February 2017, at 5-6 (citation and quotation omitted).9 Following a hearing, the circuit court denied Hunt’s second amended petition on the sole ground that Kopera’s false testimony concerning his credentials was not newly discovered evidence. The circuit court did not address whether Hunt had demonstrated a “substantial or significant possibility” that, but for Kopera’s perjured testimony, the outcome of his trial may have been different.

We quote from the circuit court’s memorandum opinion: Although the Petitioner submitted very little actual evidence about the discovery of Kopera’s false credentials, the Court finds that it is well established that Kopera’s false credentials were discovered in 2007 during postconviction litigation in the case of Kulbicki v. State in the Circuit Court for Baltimore County. The attorney representing Kulbicki obtained Kopera’s curriculum vitae and then attempted to verify Kopera’s academic credentials. Such actions were clearly the exercise of due diligence. . . . Did these actions require some Herculean effort?

No. The Petitioner introduced a letter from the University of Maryland sent by facsimile to Kulbicki’s attorney in which the school Registrar responded “to [the attorney’s] fax request for verification of [Kopera’s] degree” and confirmed that there was “no record of Mr. Kopera receiving a degree.” All that was required in the case was a fax request and a fax reply to uncover Kopera’s 9 Hunt further set forth reasons why the newly discovered evidence created purportedly a substantial or significant possibility of a different outcome in his trial. Because those parts of his petition are not relevant to the two questions raised in this appeal, we do not reproduce them here. 7 fraud. Hardly the expenditure of “unlimited time and resources,” as claimed by the Petitioner. The Petitioner further introduced an affidavit from the Registrar for the Rochester Institute of Technology.

Based on this affidavit, Kulbicki’s attorney merely “requested [the Registrar] to conduct a search for Registration records relating to JOSEPH KOPERA,” and the Registrar advised counsel that Kopera had not even attended the school. Such a request was hardly akin to “looking for a needle in a haystack.” It was simply the exercise of due diligence. Memorandum Opinion at 3-4 (citations and footnote omitted). In its memorandum opinion denying Hunt’s petition, the circuit court relied upon the Court of Special Appeals’s decision in Jackson v. State, 216 Md. App. 347 , 86 A.3d 97 , cert. denied, 438 Md. 740 , 93 A.3d 289 (2014), which held, in another Kopera case, as follows: In this case, we agree that Mr. Kopera’s educational background could have been discovered prior to [Jackson’s] trial.

That is shown by the fact that another attorney discovered it. Indeed, checking an [opposing] expert’s credentials is reasonable trial preparation. Although there may have been reasons that counsel did not pursue an investigation into Mr. Kopera’s credentials, the circuit court did not abuse its discretion in finding that appellant failed to show that the evidence could not have been discovered in the exercise of due diligence. [Jackson’s] Petition for Writ of Actual Innocence was properly denied on this ground alone. Id. at 365-66 , 86 A.3d at 108 (citations omitted).

For the sake of convenience, we shall refer to this hereafter as the “Jackson presumption.” Hunt appealed. Our colleagues on the intermediate appellate court affirmed in an unreported opinion. Hunt v. State, No. 2429, Sept. Term, 2017 (filed 26 Nov. 2019). In its decision, the Court relied upon the Jackson presumption, as well as its decision in Kulbicki v. State, 207 Md. App. 412 , 53 A.3d 361 (2012), rev’d, 440 Md. 33 , 99 A.3d 730 8 (2014), rev’d, 577 U.S. 1 , 136 S. Ct. 2 , 193 L. Ed. 2d 1 (2015) (per curiam), 10 to conclude that the circuit court had not abused its discretion in finding an absence of due diligence by trial counsel in failing to discover Kopera’s fraud earlier than 2007.

Hunt, slip op. at 7-11. We granted Hunt’s petition for a writ of certiorari, 470 Md. 206 , 235 A.3d 31 (2020), to consider the following questions: 1. In affirming the Circuit Court’s denial of Petitioner’s petition for writ of actual innocence, did the Court of Special Appeals err in holding that the mere fact that Joseph Kopera’s false credentials were found years later by another attorney in another case was enough for the trial court to find that Petitioner’s trial counsel failed to act with due diligence, as is required for a petitioner to prevail under Md. Code Ann., Crim. Proc. § 8-301 (a), where Petitioner’s trial took place in 1991, the fact that Kopera had repeatedly lied under oath about his academic credentials was first discovered by the Office of the Public Defender’s Innocence Project in 2007, and prior to that disclosure in 2007, neither defense attorneys nor prosecutors had ever questioned Kopera’s testimony about his academic credentials in the hundreds of cases in which he had testified? 2.

Does the Court of Special Appeals’ holding in this case conflict with this Court’s “considered dicta” in State v. Hunt, 443 Md. 238 [, 116 A.3d 477 ] (2015), including this Court’s comments that “[a]s an objective fact, attorneys with unlimited time and resources could have discovered Kopera’s fraud at any point during that time. We would avoid, however, the negative inference from the opinions of the Court of Special Appeals that no defense attorney representing a defendant at a trial in which Kopera testified exercised due diligence (prior to the discoveries made by the attorneys of the Innocence Project) in failing to discover his charade”? 10 In Kulbicki, a postconviction case, the Court of Special Appeals held that “any claims regarding Kopera’s perjury” had been waived because “a background investigation would have revealed that Kopera lacked the claimed college degrees,” and therefore, “Kulbicki could have raised his contentions on direct appeal.” Kulbicki, 207 Md. App. at 444 , 53 A.3d at 380 . On remand from the Supreme Court, the case was returned to the Court of Special Appeals for further consideration. In an unreported opinion, that court determined that Kulbicki was entitled to a writ of actual innocence because of the admission of dis-credited comparative bullet lead analysis. 2020 WL 41915 .

We denied the State’s petition for certiorari. 468 Md. 235 (2020). 9 DISCUSSION The Parties’ Contentions Hunt contends that the circuit court erred in finding a lack of due diligence by trial counsel because he failed to discover Kopera’s fraud in time to move for a new trial under Maryland Rule 4-331(c). He assails the circuit court’s reliance upon the Jackson presumption, asserting that it is contrary to “considered dicta” in Hunt I and that we should make explicit now what previously we had suggested only. In other words, Hunt urges us to disapprove the so-called Jackson presumption, according to which the mere fact that another attorney, in 2007, had uncovered Kopera’s fraud demonstrates that any other attorney in a Kopera case, prior to that time, could have performed the same feat. According to Hunt, several untenable conclusions follow inexorably from the circuit court’s ruling: (1) every defense attorney in a Kopera case tried prior to 2007 failed similarly to exercise due diligence; (2) every prosecutor involved in trying those cases during that same time span likewise either failed to exercise due diligence or, even worse, failed his or her obligations to disclose exculpatory evidence to the defense under Brady v. Maryland, 373 U.S. 83 , 83 S. Ct. 1194 , 10 L. Ed. 2d 215 (1963), and its progeny; (3) similarly situated cases could result in diametrically opposed outcomes, compare Jackson, 216 Md. App. at 365-66 , 86 A.3d at 107-08 (finding no abuse of discretion in lower court’s finding of absence of due diligence because a different attorney had discovered Kopera’s fraud) with McGhie v. State, 224 Md. App. 286, 299-300 , 120 A.3d 828, 835-36 (2015) (finding no abuse of discretion in lower court’s finding of due diligence despite trial 10 counsel’s failure to discover Kopera’s fraud), aff’d on other grounds, 449 Md. 494 , 144 A.3d 752 (2016); (4) given that courts have held generally that the prosecution has no Brady obligation to disclose a “secret fraud” of which it is unaware reasonably,11 the effect in this case is to impose a greater obligation on defense counsel than on the prosecution to unearth a “secret fraud”; and (5), in sum, Jackson imposes “an unrealistic, unworkable standard” upon defense attorneys that amounts to “far more than reasonable due diligence.” The State counters that: (1) there is no conflict between our considered dicta in Hunt I and the decisions of the Court of Special Appeals regarding due diligence; (2) courts should follow a case-by-case approach in deciding the merits of actual innocence petitions, including whether the petitioner has satisfied due diligence; (3) researching an opposing expert’s credentials prior to trial is reasonably diligent behavior; (4) the circuit court did not abuse its discretion in finding that, given the discovery of Kopera’s fraud in 2007 by another attorney in the course of the Kulbicki case, Hunt’s attorney could have discovered, but did not, that same fraud as relevant to Hunt’s 1991 trial; and (5) the Jackson presumption does not impose an unworkable standard upon defense attorneys.

Standard of Review “[T]he standard of review when appellate courts consider the legal sufficiency of a petition for writ of actual innocence is de novo.” Hunt I, 443 Md. at 247 , 116 A.3d at 482 (citations omitted). “Courts reviewing actions taken by a circuit court after a hearing on a 11 See, e.g., Gray v. State, 388 Md. 366, 384-85 , 879 A.2d 1064, 1074 (2005); French v. State, 246 Md. App. 609 , 624-25, 232 A.3d 266, 275-76 (2019), cert. dismissed, 471 Md. 527 , 242 A.3d 1121 (2020). 11 petition for writ of actual innocence limit their review, however, to whether the trial court abused its discretion.” Id. at 247-48 , 116 A.3d at 482 (citations omitted). Because the instant case involves review of a circuit court’s decision on the merits of an actual innocence petition, the latter (deferential) standard of review applies. Therefore, we offer the following observations regarding the origins and application of that standard. Because, as we shall explain, the actual innocence statute was anchored to the motion for new trial on the ground of newly discovered evidence, both this Court and the Court of Special Appeals looked to decisions interpreting Maryland Rule 4-331(c) (governing motions for new trial on the ground of newly discovered evidence) when first interpreting the statute.

See, e.g., Douglas, 423 Md. at 188 , 31 A.3d at 269 (recognizing that “decisions on the merits of requests for new trials based on newly discovered evidence, whether filed pursuant to Rule 4-331 or the [actual innocence statute], are committed to the hearing court’s sound discretion”); Jackson, 216 Md. App. at 363 , 86 A.3d at 106 (citing Miller v. State, 380 Md. 1, 28 , 843 A.2d 803, 819 (2004) (interpreting Rule 4-331(c))), disapproved on other grounds by Hunt I, 443 Md. at 263 -64 & n.26, 116 A.3d at 492 & n.26; Keyes v. State, 215 Md. App. 660 , 668-70 & n.6, 84 A.3d 141 , 146-47 & n.6 (2014) (citing Campbell v. State, 373 Md. 637, 665 , 821 A.2d 1, 18 (2003) (interpreting Rule 4-331(c)) and Douglas, 423 Md. At 182-83, 31 A.3d at 265-66 ), cert. denied, 438 Md. 144 , 91 A.3d 614 (2014). It is unsurprising that we apply deferential review to a trial court’s denial of a motion for new trial. Such a motion is heard nearly always by the same judge who presided over 12 the trial, typically close enough in time that the trial judge can recall (from memory or notes) the facts of the case. In Campbell, we said that the breadth of a trial judge’s discretion to grant or deny a new trial is not fixed or immutable; rather, it will expand or contract depending upon the nature of the factors being considered, and the extent to which the exercise of that discretion depends upon the opportunity the trial judge had to feel the pulse of the trial and to rely on his own impressions in determining questions of fairness and justice. 373 Md. at 666 , 821 A.2d at 18 (quoting Buck v. Cam’s Broadloom Rugs, Inc., 328 Md. 51, 58-59 , 612 A.2d 1294, 1298 (1992)).

Moreover, we noted that “the discretion afforded a trial judge ‘is broad but it is not boundless,’” id. at 665, 821 A.2d at 18 (quoting Nelson v. State, 315 Md. 62, 70 , 553 A.2d 667, 671 (1989)), and that, specifically, in “the context of the denial of a motion for a new trial in a criminal case, . . . ‘under some circumstances a trial judge’s discretion to deny a motion for a new trial is much more limited than under other circumstances.’” Id. at 666, 821 A.2d at 18 (quoting Merritt v. State, 367 Md. 17, 29 , 785 A.2d 756, 764 (2001)). In applying these principles to appellate review of a circuit court’s denial of an actual innocence petition, we note that several of the factors articulated in Buck, weighing in favor of broader deference to a circuit court’s denial of a motion for new trial, are more attenuated in a case such as that before us. For one thing, the judge ruling on the merits of an actual innocence petition typically has no “opportunity . . . to feel the pulse of the trial” and to rely on his or her “own impressions in determining questions of fairness and 13 justice.”12 Moreover, with respect to the questions before us here, the case is akin to a test case in complex, multiple-party litigation—the due diligence issue in virtually every case in which Kopera testified prior to the 2007 Innocence Project discovery of his fraud is essentially the same, unless a case may reveal specific knowledge possessed by or imputable to defense counsel so as to put counsel on inquiry notice that would trigger a reasonably competent attorney to look into Kopera’s credentials. Furthermore, given the large number of cases affected potentially, the taint of the Kopera charade implicates the integrity of the criminal justice system in our State.

It is, therefore, in the public interest to advance a uniform decisional norm to guide the circuit courts so as to ensure that similarly situated cases are decided consistently. We conclude that, under the unique circumstances of this category of cases (the “Kopera cases”), the circuit court’s discretion is narrowed. Analysis The actual innocence statute was enacted to alleviate a perceived problem faced by convicted persons seeking to challenge their convictions on the ground of newly discovered evidence, namely, that, under some circumstances, a claim of newly discovered evidence was time-barred despite the due diligence of the claimant in raising it as soon as feasible. 12 In the instant case, Hunt’s original actual innocence petition was filed nineteen years after his trial. In State v. Seward, 220 Md. App. 1 , 102 A.3d 798 (2014), rev’d on other grounds, 446 Md. 171 , 130 A.3d 478 (2016), the actual innocence petition was filed twenty-five years after the trial.

Id. at 10, 102 A.3d at 803 . It is not surprising that a Section 8-301 petition may be filed long after trial, given that the statute provides expressly that a petition may be filed “at any time,” provided, of course, that the newly discovered evidence could not have been discovered previously. CP § 8-301(a). 14 Taking a broader view of the historical context, we note that, as recently as the early 1960s, although a postconviction petition could be filed then “at any time,” Md. Code (1957, 1959 Cum. Supp.), Art. 27, § 645A(b),13 a claim of newly discovered evidence (which is not cognizable in a postconviction proceeding, Daniels v. Warden, 223 Md. 631, 632 , 161 A.2d 461, 462 (1960)) could not be raised more than three days after a verdict had been rendered.

Giles v. State, 231 Md. 387, 388 , 190 A.2d 627, 628 (1963) (per curiam); Md. Rule 567 (a) (1962). During the intervening decades, that time limit was liberalized in stages. See State v. Matthews, 415 Md. 286, 299-312 , 999 A.2d 1050, 1058-66 (2010) (setting forth the history of what is now Maryland Rule 4-331). Nonetheless, as of 2009, except in capital cases, or unless the newly discovered evidence was DNA evidence (or possibly evidence disclosed by means of any other new, widely recognized, scientific technique that would demonstrate actual innocence), a claim of newly discovered evidence in a criminal case could not be raised generally more than one year after the final mandate had issued upon the exhaustion of all direct appeals.

Md. Rule 4-331(c) (2009). In that context, the General Assembly enacted CP § 8-301 to remedy the problem. 2009 Md. Laws, ch. 744. Section 8-301 has been a bit of an enigma. Although it lacks an express provision governing appeals, we have interpreted it as permitting a direct appeal if a petition is denied, Douglas v. State, supra, 423 Md. 156 , 31 A.3d 250 , but not if it is 13 Since 1 October 1995, there has been a ten-year statute of limitations for filing a postconviction petition, although there are “safety valve” provisions (e.g., motions to reopen, extraordinary cause) that, under very limited conditions, permit