(CN) - A woman's recantation of testimony that her older brother sexually abused her as a child is not enough to prove him innocent, the 9th Circuit ruled Tuesday.
Scott Jones was convicted in 2003 of sexually penetrating his sister with his finger on multiple occasions when she was 9 years old and he was 17.
The sister, identified in the opinion only as S.J., testified about the abuse at his trial. Ken Jones, the children's father, and their sister, Jennifer Pond, also testified that Jones admitted to them that he penetrated S.J.
All three witnesses now recant their testimonies, 11 years later.
S.J. claims that her conservative upbringing kept her from even understanding what the word "vagina" meant, or that she had an inside area capable of penetration. She now says that Jones did not penetrate her vagina, but only touched it.
The father and Pond also now claim that Jones admitted to them that he committed a burglary, not sexual abuse.
A federal judge in Oregon found this evidence sufficient to grant Jones' habeas petition and ordered his release from custody, finding him actually innocent of sexual penetration, but the 9th Circuit reversed Tuesday.
"We cannot say that Jones has demonstrated that he is probably innocent," Judge Wallace Tashima wrote for the three-judge panel.
The 22-page opinion notes that Jones asserts his innocence based on recantations alone, a form of proof which is highly suspect, and difficult to confirm or refute, given that memory fades over time and witness' motives often change.
"The District Court stated that it credited Ken Jones' testimony, but also noted that it was apparent from the record that his motivation for recanting was his naive belief that Jones could not have digitally penetrated S.J.'s vagina because a subsequent physical examination demonstrated that S.J.'s hymen was intact," Tashima said.
The lower court also fully credited S.J.'s recantation, but described the father as "imposing and controlling."
"In other words, we cannot assess why the district court found S.J.'s testimony credible despite the possibility, which it recognized, that her father pressured her into recanting," Tashima said.
Recantations by family members are considered less reliable given that family members often have a greater personal stake in a defendant's exoneration. The court also found it suspect that all three witnesses changed their story at the same time.
While S.J.'s recantation is the most compelling, Tashima that even her recantation is not "sufficient to establish Jones' probable innocence because we cannot say that every juror would credit her recantation testimony over her trial testimony and the descriptions of the abuse she gave in her 2000 and 2002 interviews, even if they believed that she testified truthfully to the best of her present recollection at the evidentiary hearing."