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Criminal Nuggets

Jan 27, 2015

Serious possible prosecutorial misconduct is being litigated in the Third Distrcit, but there appears to be a definite discovery violation. Podcast Episode 047 of the Criminal Nuggets Podcast discusses a case where the issue at hand involves weather or not a prosector told a witness to lie at trial. 

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Murder trial. Defendant shot the victim after a confrontation in the street. Defendant saying the whole time. “I only shot him because he was reaching for the gun in his waistband.” Defendant said he ran away and left both guns at the scene.

The 11 year old witness at trial testifies he only saw one gun. The Defendant’s gun.

No guns were actually found at the scene.

Direct appeal is lost. First post conviction is summarily denied.

This is where things get interesting.

The first pro se petition was based on the discovery that the 11 year old witness was the cousin of one of the prosecutors involved in the case. Not the guy who did the direct examination, but it was co-counsel. So he was sitting at the table when the 11 year old was testifying.

The trial court dismissed that petition only saying that the prosecutor “‘probably should have’ disclosed the relationship, but since it concerned only bias and witness credibility, the court would not order a new trial.” ¶ 8.

Now we get to this second post conviction petition.

Now Defendant has an affidavit from the witness himself saying. Basically, “Yea” the prosecutor is my cousin and also saying that

 “...the guy that got shot also had a gun when he got shot but I was told not to say that he had a gun.” ¶ 9.

Trial court again dismissed this petition saying that there was no reasonable probability that the outcome would have been different, this is basically saying that the petition is frivolous or patently without merit.

The appellate court reversed this finding and remanded the case so it could advance to a second stage postconviction process.

The reviewing court said this ain’t frivolous or without merit anymore. There is a gist of a constitutional  claim. Further, the reviewing court said that it pretty much looks like it was the prosecutor who told this kid to lie in court.

The reviewing court recognized that this is kind of a big deal and did a great job of not holding the defendant to too high a burden at the first stage of the post conviction process.

The court flatly held that when “a witness's testimony is entirely unreliable if he is under instructions from a prosecuting entity to lie or to omit certain facts while testifying.”

Is that completely crazy? I don’t know but the concurrent decision thought so.

I understand the denial of the first post conviction petition. There the defendant was only saying that he would have liked to have known that the main witness was cousin's with one of the prosecutors.

Obviously, there were some issues there that could have been explored on cross. You know, my attorney could have asked the kid if he felt pressure to testify a certain way to make his older cousin happy. That kind of thing.

But Defendant was not alleging in that first petition that the kid actually was told to lie.

To be absolutely clear. We don't know for certain that the prosecutor was the one who told the witness to deny that the victim had a gun. This is a fact that has to be developed as the case proceeds through the postconviction process.

This case is a great example of why we even have a post convictio process.

I understand the feeling that giving defendants a chance to file these things is a complete waste of time and money. The view is that all they are used for is to make meritless complaims about their convictions. A case with a conviction with a leanghty sentence never ends because the Defendant just uses every proceduural mechanism in the books to keep his case in the system.

This robs the victims and society of knowing that a case has been litigated to a definitive end.

However, as this case illustrates, somties a Defendant is not going to learn of a discovery violation or of prosecutorial misconduct until years down the road. We have to have some mechanism in place that a Defendant can access when and if important details involving his criminal process come to light.

This is why we can’t just scrap the opportunity to file a post conviction petition.