How a “Secret Signal” Is Putting an Old Murder Case Under New Scrutiny

It was a moment straight out of a film noir.

Prosecutors were in the middle of questioning their key witness, a young teenage woman who had witnessed a shooting at a 2007 New Year’s Eve party in East Portland. Suddenly, the power went out.

People in the courtroom filed out. Suddenly, in the hallway, the woman began to hyperventilate. “Oh my God, that’s him, that’s him, that’s him,” she said, according to a recounting of the day’s events in a later appellate decision.

After a 19-minute recess, the trial resumed and the witness made the identification in front of the jury. Jerrin Hickman was sentenced to life in the prison for murder. WW covered the latest updates in this case last week.

That moment in the hallway has proven central to Hickman’s ongoing fight for a new trial. He argues prosecutors didn’t play by the rules. Nearly a decade ago, an appeals court agreed, citing “serious questions concerning the reliability” of the testimony of two of the state’s witnesses—both white teenagers, one of whom admitted, “Black men all look the same to me.”

She identified Hickman for the first time during that dramatic recess, two years after the crime.

But the Oregon Supreme Court overruled the appellate decision, and the guilty verdict stuck. Hickman subsequently sued the state for post-conviction relief, but has so far been denied. In a recent decision, Judge Daniel Ahern wrote there was “overwhelming” evidence of Hickman’s guilt.

But even as he upheld the guilty verdict, Ahern refused to let prosecutors off the hook.

One of those prosecutors was Rod Underhill, who would later become Multnomah County’s district attorney before stepping down in 2020. According to the judge’s decision, Underhill failed to disclose to defense attorneys that he’d “arranged a signal” with a witness.

A memo written by Hickman’s attorney, Ginger Mooney, lays out how the alleged signal worked. Underhill told his witness to look him straight in the eye if she recognized Hickman in the courtroom. She never did. That was valuable information, Mooney claims, since it shows that the witness did not immediately identify Hickman.

The existence of the signal “may never have come to light,” Mooney wrote, except that the surprise recess apparently jogged the witness’s memory, leading the judge to probe Underhill about any prior arrangements with the witness.

According to the trial transcript included in Mooney’s memo, Underhill told the judge the witness never gave him the signal: “I didn’t see her give a ‘Yeah, that’s going to be him. Go ahead and ask me the question.’”

This, Mooney argued, was exculpatory evidence and the signal should have been revealed to the defense prior to trial.

Underhill, through his attorney, denies this.

In a letter sent to the state bar in 2014, Underhill’s attorney wrote that his client’s practice was to always ask testifying eyewitnesses whether they could identify the defendant. The “signal” with the defendant was, he said, nothing more than a “passing comment meant to be reassuring” and had no influence on the trial’s outcome.

The witness ended up identifying Hickman regardless. But even if it made no difference to the trial’s outcome, the signal was still concerning, a judge found.

“This would qualify as a Brady violation,” Ahern wrote in his 2021 decision, referencing U.S. Supreme Court case law that requires prosecutors to disclose potentially exculpatory evidence to the defense.

Late last year, Hickman filed a new complaint with the state bar citing Ahern’s decision. It’s now under investigation.

“The secret signal and Brady violation…have ensured that I have still not received the fair trial that I was supposedly guaranteed,” Hickman wrote in his complaint.

Underhill’s attorney, Peter Jarvis, doesn’t think the judge’s opinion will make any difference to the Oregon State Bar. He told WW in an email that he expects the bar to reach the same conclusion it did after Hickman’s initial 2014 complaint and “dismiss Mr. Hickman’s complaint in its entirety.”

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