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Maarek posted:http://www.stltoday.com/news/local/...93587847c7.html OK, yeah, if they knew she wasn't there at all, that's a pretty big ethical violation. I get, in theory, why they took the approach they did. At best it was done under the logic of "we are going to be criticized no matter what happens here, so just throw everything in front of the GJ and play Pontius Pilate" (which I think is a cowardly way to run a prosecution). At worst it was spiking the case. I'm inclined to believe the former. However, even with that approach, there is a difference between "I think some of what this witness is saying is inaccurate, perhaps even a lie, but the jury will be instructed that they can believe all, part, or none of the testimony" and "I know that witness is lying about everything, but whatever." Pretty much every major felony case I've handled has had witnesses who were probably lying about *something* and usually those lies were obvious...example, gang shooting. Brother of victim is an eyewitness. Can state number of shooters, clothes, direction of movement, etc. but claims he did not recognize any of them. Three hours after his brother is killed, although he "didn't recognize anyone" his mother is in the ER screaming that she wants the defendant dead, and shortly thereafter, the defendant's house is shot up. But no one saw who it was. Sure. Now we put him on because although we suspected he was lying in part of his testimony (testimony that actually helped the defense..."I didn't see who it was") he was telling truth elsewhere. So the jury got the all part or none instruction, and we were fine ethically. However, if there was evidence of a lie that *hurt* the defense, that would have to be disclosed. Looks like here, they at least put in the journal entry which severely undercut her credibility, but in my opinion, she should not have been called as a witness at all. This is one of the issues I have with grand juries. I'd get rid of them all together, or adopt more of the military Article 32 model where the defense can cross-examine witnesses. However, to answer your point, if the prosecutor knew she was lying about having been there at all, she should not have been put on the stand.
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Dec 27, 2014 23:56
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Also, I should clarify, that her mental health issues alone would not warrant keeping her off the stand, as in criminal cases having witnesses of lower socio-economic classes with more untreated mental health issues is non uncommon. that would go to the weight of her testimony, not its admissibility...but if after interviewing her, it was obvious she was not actually there, the prosecutor should not have called her. (This, however, assumes that there was witness prep done at all. Different prosecutors have different philosophies on witness prep, and some witnesses are not actually interviewed prior to their testimony.) Bottom line: If he knew she wasn't there before putting her on the stand, that's a big problem. If she said she was there, they took her word for it, and it only became clear after the fact that she was lying, that's not an ethics violation, but the would have an ethical obligation not to rely on any of her testimony in their summation, and different states would have additional obligations to either correct the false testimony, or report it to the court. I don't have a tone of knowledge about what the ethical reporting obligations for a GJ would be, because we don't use them, which is a good thing. I'm not a fan. As for charging her with perjury, unlikely because of the mental health issues.
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Dec 28, 2014 15:11
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According to his interview she is a crackpot who has a long history of saying she witnessed high profile cases and then spouting off a bunch of nonsense. Going off of what he said it sounds like he knew she was lying from the start but he put her on the stand anyway under the auspices of 'all the evidence'. They definitely shouldn't imprison a crazy woman because McCulloch took a dive, though. She can't help being crazy.
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Dec 28, 2014 15:17
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yeah, that's a huge problem IMO. Unless she was your star witness and had information no one else could provide, I generally try to avoid putting the verifiably batshit on the stand. sometimes you have no choice. Appeal I'm working on now came down to the testimony of a mentally ill crack addict. No way around it. But it sounds like here there were a ton of other witnesses, so putting her on the stand, IMO, was not necessary at best, unethical at worst. Only possible justification I can see is sometimes, if there is a concern a witness may be uncooperative, rather than bringing them in to prep them and giving them time to reconsider cooperating, or change their story (bc if their testimony contradicts anything they told you in prep, you have to disclose that to the defense)you don't interview them ahead of time, you just subpoena them for the day of testimony and shoot from the hip with the police reports/statements as a guide. And sometimes the testimony comes out a surprise. One of the fun bits of trial work. She seems to be a pretty willing witness, though. So I'm not sure why she wouldn't have been prepped ahead of time. And if she was prepped and was obviously lying, why put her on the stand? I try to use the term "unethical" sparingly. And this is an odd case because her testimony arguably hurt the prosecution's case...so it's not the traditional prosecutorial misconduct scenario. It's hard to conduct a normal analysis under these circumstances. However, as much as I try not to monday morning quarterback and extend professional courtesy, there is a lot about this case that seems kind of amateurish. However, again, I probably would not have put her on the stand. Turn over her statements to the defense and let them use them as they see fit. (Which you can't do in a GJ, but still...again, I apologize, my brain is wired for trials and HPCs, not GJs so some of my thoughts on this may not be right for a GJ analysis) ActusRhesus fucked around with this message at 16:02 on Dec 28, 2014 |
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Dec 28, 2014 15:22
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I don't think it's entirely unreasonable that a DA would form a close enough relationship with the local police that they would try to avoid prosecuting if there was even a question at all as to anything, and I think McColloch's behavior way crossed the line, but there has to be some instutitional barrier in place so that local DAs are not asked to handle the prosecution of those on their same 'team'. Having DAs that specialize in cases involving police would be ideal(so that they don't really have to worry about their reputation with cops at all), but I doubt that would be economical, though.
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Dec 28, 2014 19:57
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Even if it is economical it's not going to happen in this political climate. Can you imagine the attack ads against whatever politician set up a special task force to indict and convict police officers in Missouri? Being 'tough on crime' is a big thing in state and local level politics and the kind of people who eat that poo poo up are unfortunately the ones who vote the most reliably.
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Dec 28, 2014 20:43
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Maarek posted:Even if it is economical it's not going to happen in this political climate. Can you imagine the attack ads against whatever politician set up a special task force to indict and convict police officers in Missouri? Being 'tough on crime' is a big thing in state and local level politics and the kind of people who eat that poo poo up are unfortunately the ones who vote the most reliably. Best neutral way would be to make a public integrity unit that handled all public employees not just cops.
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Dec 28, 2014 21:39
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