Crossing the line?
As people who have dealt with me will tell you, I'm relatively mild-mannered. (Although if asked to describe me, they're more likely to first mention my Adonis-like physique.) There's one time I did go off, though. About twenty-some years ago, I was in a hearing, and the prosecutor implied that I'd coached my witness to lie. I absolutely blew up, made a fool out of myself, got right in his face, yelling at him... I calmed down, walked back and apologized to him for the outburst, but I still remember that.
So I kind of understand what went through the defense attorney's mind during a portion of the testimony in the aggravated murder prosecution of Joaquin Hicks.
It wasn't any ordinary murder prosecution, either. It was the notorious Perk Plaza killing. Back in the early morning hours of February 22, 2009, Jeremy Pechanic and Jory Abely were celebrating the birthday of a co-worker at Scorchers, a bar in downtown Cleveland. While they were there, a man called "Daquan" approached the group, befriending them. Daquan and Jeremy went outside and shared a marijuana cigarette, and Daquan told him he could get Jeremy a quarter ounce of marijuana for $200. Jeremy withdrew $260 from an ATM machine inside the building, then bought more drinks.
Jeremy and Jory eventually left the bar after it closed, and walked over to the neighboring plaza with Daquan and three other men to purchase the marijuana. The three other men, it turns out, had been enlisted by Daquan to rob the unsuspecting pair, and they had called 17-year-old Ralfeal King to assist them, because despite his tender years he had a gun, and experience robbing people. He got more experience: after taking Jeremy's money, he shot him twice, then ordered Jory to kneel on the ground, and shot him in the back of the head.
Jeremy didn't make it, but Jory lived, although he sustained a serious brain injury which caused him to suffer from a condition called prosopagnosia, which prevents him from recognizing someone based upon the person's facial features. That didn't appear to be a problem, though. Based on the statement by one of the pair's coworkers that Daquan had said he'd just gotten out of prison, the investigating detective ran a search and found that Hicks had recently been released after serving 10 years on an aggravated robbery conviction. That, coupled with the identification of Hicks as "Daquan" by one of the co-defendants, two of the co-workers, and Rodney Rhines, who had come upon Jeremy and Daquan during the evening, was the State's case. As is usually the situation in cases involving identification testimony, though, the testimony wasn't consistent: some had Daquan with a beard, some didn't, and some couldn't recall his physical features. Rhines was a crack addict who was seeking his next "score."
Hicks, on the other hand, testified that he'd never been at Scorchers, and presented the alibi testimony of ten family members, who said that Hill was released from prison on February 19, and had spent the next three days celebrating that with them and other friends and neighbors, not leaving the residence until February 23, when he went to see his parole officer. The defense also presented the testimony of a server at Scorchers, who didn't know anyone and thus had no apparent motivation to lie; she said that Daquan was a hustler who'd been frequenting Scorchers for months before, something that Hicks couldn't have done.
The jury nonetheless convicted Hicks, and the judge sentenced him to 61 years to life. The question presented in State v. Hicks was whether the outcome hinged on this exchange during the prosecution's examination of the defense eyewitness expert:
[Prosecutor]: Would it surprise you to learn, in dealing with memory, that this attorney out there was standing with a bunch of different witnesses -- .
[Defense counsel]: Objection, your Honor.
The Court: Overruled.
[Prosecutor] Was standing with a bunch of different witnesses telling them what to testify to?
[Defense counsel]: Objection, your Honor. It is not true.
The Court: Okay.
[Defense counsel]: This is my ticket, Judge, and that is a blatant lie."
The judge then called counsel to the sidebar, admonished the defense attorney for her reaction, and warned her that he'd hold her in contempt if she didn't calm down. He overruled the objection, and gave no curative instruction.
The appellate panel found the question improper, and reversed. The central tenet here is that "it is improper for an attorney, under the pretext of putting a question to a witness, to put before a jury information that is not supported by the evidence." The court notes that the prosecution never brought any alleged witness-tampering to the trial court's attention before asking the question, and never presented any evidence of it afterwards. (If the prosecutor asked any of the defense witnesses about it, the opinion doesn't mention it.) The questions thus "wrongfully impugned the credibility of the defense counsel and improperly implicated the credibility of the defense witnesses offered in support of Hicks's alibi."
I'm not sure what to make of all this. I know the defense attorney, and she's never struck me as the type who'd be unethical enough to suborn perjury, let alone dumb enough to do it openly within the hearing of a prosecutor. I've had dealing with both prosecutors, too, though, and they've never struck me as the type who'd make an allegation like this just to gain a tactical advantage. I'm a little troubled at how it was used: getting it in through the defense expert on eyewitness testimony was a bit too cute. I'd have much less trouble -- and I'm betting the appellate court would have, too -- if the defense witnesses had been directly asked whether they'd been coached. (In fact, one of the prosecutors in this case used that very tactic -- successfully -- in another case I have on appeal.) My guess is that, in the heat of battle, somebody thought they saw or heard something that they really didn't see or hear. The trial court bears some responsibility here, too; whatever damage was done was heightened by the trial court's failure to correct it.
The prosecutor's office has vowed to appeal or retry the case, and the latter course seems the more likely route. The court's opinion does a very good job of explaining why this wasn't harmless error, and I don't see an issue of law here that would arouse the Supreme Court's interest. The case will be tried again, this time presumably without any insinuations of witness-tampering. That's all to the good. If there's a lesson to be learned here, it's that most of us attorneys place a very high premium on our reputation and integrity, and if you're going to attack that, you'd better have the ability and willingness to back it up.
Oh, and Ralfeal King, the 17-year-old punk who killed one man in cold blood and through sheer blind luck avoided killing another? He pled out and got 46 years to life.
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