The defense says the state’s scenario is impossible because cellphone tower data and witnesses placed Watkins miles away at the time of the shooting. To have been at the scene in time, Watkins must have driven an average of at least 109 mph for 8.2 miles on the well-traveled highway at about 7 p.m. on a Tuesday, according to his attorneys. Watkins was also on the phone with his new girlfriend, who claims she heard nothing unusual.
Wednesday’s hearing focused on whether a lower court erred in denying Watkins a hearing on a habeas corpus petition about the evidence of juror misconduct and allegations the state withheld evidence. The lower court declined to hold a hearing because defendants have only four years to file such a petition unless new evidence comes up that couldn’t have been expected to be found in “due diligence” by the petitioner.
» READ: How a mysterious disappearance nearly destroyed a woman’s life
» READ: After execution, victim’s brother hopes to finally find peace
Watkins' attorneys with the Georgia Innocence Project argue the information about the juror's misconduct isn't something that would've come up in due diligence because defense lawyers are generally expected to believe that jurors behaved appropriately. The conduct in question happened after the trial judge instructed jurors not to perform their own driving tests and to instead rely only on the evidence presented when deciding if the state's theory of the case was accurate. When interviewed by the popular "Undisclosed" podcast in 2016, one of the jurors said she had done a driving test, which caused her to change her vote from not guilty to guilty.
Benjamin Goldberg, who is also representing Watkins, told the justices the juror may have shared the results of her test with another juror, causing him to change his vote to guilty as well. The first juror “essentially became a witness against Mr. Watkins,” Goldberg told the justices, who at several turns expressed skepticism at his logic.
But the justices were also skeptical of the thrust of the argument made by Matthew Crowder, an assistant Georgia attorney general, who was representing the state’s position. Crowder didn’t dispute what the juror had done, but argued that Watkins’ defense attorneys should have discovered the juror’s conduct many years ago by interviewing each juror in the course of standard due diligence.
“You have to show us that any good lawyer would have (interviewed all jurors),” Chief Justice Harold D. Melton said. “Not that it was possible.”
Watkins’ attorneys are also attempting to prove that the state withheld evidence from the jury.
During Watkins’ trial, then-District Attorney Tami Colston portrayed Watkins as so vengeful that he shot Dawkins’ dog, then another dog, leaving the second carcass on Dawkins’ grave to be found by his father. Because the dog and Dawkins were both shot in the head, the carcass was a “calling card,” said Colston, who later became a Superior Court judge and retired last year. The state showed the jury an X-ray of the dog from the grave, revealing a bullet lodged in its skull. The defense demanded to know the caliber of the bullet, which the state said was unknown.
But the Georgia Innocence Project, through a series of open records requests to the GBI in 2014, discovered the bullet was a .22 caliber, not a 9 mm like the one that killed Dawkins. A chain of custody report revealed the prosecution had been in possession of the bullet, according to the Innocence Project.
Crowder argued the defense also could have discovered that information many years ago as part of its standard due diligence. Several justices were incredulous at that notion.
Justice Nels S.D. Peterson called it a “remarkable standard for diligence you’re asking us to adopt.”
Presiding Justice David E. Nahmias said if the justices sided with Crowder, they’d be setting a standard where any defense attorney would be in violation of his or her ethical duty if that lawyer didn’t file open records requests for all police records in a client’s case.
» READ: Two buried kids and an old family ‘curse’
The justices will announce their ruling at a later date.
The defendant’s mother, Cyndi Watkins, was anxious after the hearing, standing on the courthouse steps.
“I hope everything changes, so I can get my son home,” she said. “He’s innocent — I know he’s innocent.”