Wednesday, January 15, 2014

A Friday the 13th Special: The Government Can Deny Immunity to a Crucial Defense Witness if It Reasonably Believes the Witness Is Lying




(decided December 13, 2013)
Players:  Judges Fisher, Oberly, and Ruiz.  Opinion by Judge Fisher.  Dissenting opinion by Judge Ruiz.  Thomas D. Engle and Sharon L. Burka for appellant.  Trial Judge:  Lynn Leibovitz.

Facts: Police officers stopped Mr. Moody’s car and found a briefcase on the rear floorboard that contained a handgun, marijuana, and pills that were mostly fake ecstasy (although a few were real ecstasy pills).  Mr. Moody told the officers that the briefcase was his (and declined to open it because he falsely claimed it held nude photographs of his wife).  At trial, however, Mr. Moody presented evidence that the briefcase belonged to someone named Leroy.  Mr. Moody was convicted of all charges.

Mr. Moody moved for a new trial on the grounds that he had located the backseat passenger, Leroy Odom.  Mr. Odom had signed a written statement that the items in the briefcase were his, but he would testify only if the government gave him immunity.  The trial court employed the procedure approved in Carter v. United States, 684 A.2d 331 (D.C. 1996) (en banc), for when a defense witness invokes his Fifth Amendment privilege against self-incrimination.  The government debriefed Mr. Odom and declined to grant him immunity because the government believed Mr. Odom would be committing perjury.  The government based this belief on: (a) Mr. Odom’s statements that was in a “crack haze” and very drunk on the night in question, (b) Mr. Odom’s contention that he couldn’t remember the contents of the briefcase other than the gun and the pills, could not recall the brand of the gun, and could not (or would not) say how he got the gun; and (c) inconsistencies about which Metro stop he had been dropped off at and where has was at the time of trial.  The court found that the government’s decision to not grant immunity was reasonable and thus declined to sanction the government for its refusal to grant immunity.  The court also found, based on the prosecution’s and Mr. Odom’s counsel’s descriptions of Mr. Odom’s statements during the debriefing, that Mr. Odom’s testimony would be “highly incredible” and thus was unlikely to lead to an acquittal.

Issue: Assuming without deciding that the Carter procedure applies in the context of a motion for a new trial, whether the trial court abused its discretion in (a) accepting the government’s reason for not granting immunity to Mr. Odom; and (b) finding that the proffered testimony would not likely produce an acquittal at a new trial. 

Holding: The trial court did not abuse its discretion in deferring to the government’s decision not to grant immunity to the defense witness on the ground that the witness’s proposed testimony constituted perjury.  The trial court also did not abuse its discretion in finding, based on the descriptions of Mr. Odom’s statements during the debriefing, that his testimony was too incredible to likely produce an acquittal at a new trial. 

Of note: Under the majority’s reasoning, the government need only proffer an objectively reasonable belief for concluding that a defense witness is lying.  If the government does so, the trial court must defer to the government’s decision to deny immunity.  This will assuredly happen in many instances when a defendant invokes Carter.  Any time a defense witness is prepared to testify that he committed the crime rather than the defendant, the government is sure to deem that testimony perjury — after all, if the government believed the defense witness, it would have to dismiss the charges.  And the government will often be able to provide a reasoned basis for disbelieving the witness; Mr. Odom’s drug problems and inconsistencies are not particularly uncommon.  And, as the dissent points out, there was a lot of corroboration for Mr. Odom’s claim that the briefcase was his.  A rational jury could easily have credited Mr. Odom’s testimony had they heard it.  So where does that leave Carter’s concern that the government’s denial of immunity to a crucial defense witness would cause a “distortion of the fact-finding process”?  What could distort the fact-finding process more than letting one of the litigants conclusively decide whether an adverse witness is lying? --DG

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