May 15, 2006
The court holds that the trial judge went too far in dismissing the indictment for failure to provide discovery in State v. Warfield, holding that the lower court should have imposed a less Draconian sanction, such as exclusion of the evidence at trial.
Maybe, but then again. . . . The trial court had ordered the prosecution to produce a rental receipt, which was the key evidence, by the pretrial date of February 17, 2005. This is the colloquy between the judge and the prosecutor on that date:
The Court: You talked to Detective Pirinelli and he said he was not bringing it?
Ms. Cameron: That’s correct, but I talked with him last week.
The Court: Oh, okay was there a reason why he was refusing to bring it?
Ms. Cameron: He’s not on duty now and he doesn’t have a subpoena so he wasn’t going to come down to court.
The Court: You’re saying a week ago he said I won’t bring it because I’m not under subpoena?
Ms. Cameron: He told me on February 11th.
The Court: That he’s not on duty today and he wouldn’t bring it without a subpoena?
Ms. Cameron: Yes.
The Court: Did you issue a subpoena?
Ms. Cameron: No, Your Honor, I didn’t have authority to.
That’s the kind of thing that will make you give some serious thought to a jury waiver on remand.
June 2nd, 2006 at 7:05 pm
This case also shows the foolishness of the prosecutor’s office policy of not bringing witnesses to court until day of trial. We cannot even see crucial evidence like this sometimes because the officer has it and won’t bring it without a subpoena, and the assistant prosecutors are not allowed to sub him. That is often compounded by the policy some judges have of not accepting reduced pleas on the day of trial. That puts defense lawyers in the position of trying to work out cases withput knowing if witneeses will show or without seeing photos etc. It borders on malpractice, but there is no realistic alternative if a judge won’t enforce discovery rules.