continued On May 26, 2000, Judge Enright denied Gunn's motion for a new trial and sentenced him to 17 years in prison. A brief was filed by Gunn's appellate attorney, Nancy King, in late April of this year. "The main issue," King says, "is that we just don't think the evidence was sufficient."
Arguing insufficient evidence is a tack usually not taken by appellate attorneys because in appeals, King explains, "The presumption switches. In a trial, the presumption is that he's innocent and the prosecution has to prove him guilty. In appeals court, there's a very strong presumption of guilt because a jury found him guilty."
For that reason, appeals briefs usually try to point out some error in process during the trial that may have affected the outcome. "A common example," King says, "is judge's instructions: instructions that weren't properly given, instructions that should have been given but weren't, or instructions that should not have been given and were."
But in this case, King believes a strong insufficiency argument can be made. "First," she explains, "there is some circumstantial evidence which really influenced the jury. But I think it's pretty easily explained by the fact that he lives in the area where the last robbery occurred. The fact that he was in the area when it happened is not all that meaningful. And it's really striking how huge this man is. I mean, he is just a giant. And nobody, not a single witness described him that way. I don't think anybody who looked at Kevin Gunn would say, 'He was tall.' But that's what witnesses described, a tall African-American. Several people described him as 'over six feet.' 6´4´´ was the highest. Mr. Gunn is 6´9´´. For an African-American, he's way on the light side of the complexion scale. Yet the suspect was described from very dark-skinned to medium complexion. Nobody described him as very light-skinned. And he's very distinctive looking; he's heavyset and has a distinctive face. Yet not a single person positively identified him from photographs."
The letter from Morse to Pfingst is being addressed in King's appeal as well. "It sounds to me," King says of the letter, "like the jury foreman was saying, 'Gee, the evidence in this case just stunk, and it's a good thing we were here to cover for you.' "
The three-judge panel at the Fourth District Court of Appeals could take one of three courses of action regarding the Gunn case: uphold the original verdict, grant a new trial because of errors or questions about evidence, or decide that evidence was not sufficient to convict. The final option, King explains, "acts like an acquittal, and there would be no retrial."
Though she says she is as optimistic about the Gunn case as she ever is about an appeal, King points out that the rate for cases being overturned is, by her own estimate, only 3 to 5 percent. And even if the case were overturned, it wouldn't be soon. "Once I've filed my brief, the attorney general's office -- they take over for the district attorney at this level -- will take two or three months to file a response. Then I get the last word; I get to file a reply brief within 20 days after they file. So we're talking about four months from now, realistically, before all the briefing is done. Then it's just in the hands of the Court of Appeals. That usually takes a few months. So it will be a year, maybe a little less, from today before Kevin knows."