Minutes after being shot several times, Ibrahim Sidibe and Nicholas Watson identified 16-year old Francesco Kelly as the shooter. Kelly was arrested for the Silver Spring bus stop attack and convicted of first-degree attempted murder in 2003. Maryland’s high state court threw out the conviction on the grounds that Kelly’s inability to call two witnesses after the judge ruled (without a state objection) that their testimony was inadmissible hearsay violated Kelly’s rights. On retrial, a jury acquitted Kelly, to the dismay of Sidibe (who is paralyzed from the shooting) and Watson, who, perhaps implausibly, blames the shooting for his later criminal career. Kelly did not call the two witnesses whose testimony his attorneys previously claimed materially affected his ability to get a fair trial. The lawyers who made that argument to the Maryland Court of Appeals will suffer no consequences. (Ernesto Londoño, “As Suspect Is Acquitted, Shooting Victims Protest”, Washington Post, Aug. 2).
Update: Here is the full Court of Appeals decision in Kelly v. Maryland. As the dissent notes, not only was the original trial-court decision correct, but, as even the majority agrees that the proffered testimony was inadmissible hearsay, it is impossible for the court decision to have unfairly prejudiced the trial or affected strategy unfairly. I don’t even particularly object that the appellate court refused to apply the abuse-of-discretion standard (so long as the appellate court applies that review standard consistently), but surely there has to be some showing that an error was material. The only effect of the Court of Appeals decision was to give an arbitrary do-over. There are intimations in the Washington Post article that there was jury nullification if one believes the quote that the jury considered the irrelevant factor of the defendant’s age.
11 Comments
Another story to go into the ‘Why Lawyers Are Bottomfeeders’ file….
Pity that lawyers can’t police their own.
I know its how the system works, but I really want to know what the heck happened in that jury room. Everyone (including the defense) almost comes right out and admits that he did it.
This one doesn’t bother me…
Isn’t it reasonable to suspect that Kelly’s lawyers took a different tack on the retrial, one which didn’t rely on the two contentious witnesses?
Isn’t it also reasonable to suspect that prosecutors took a different tack, knowing that those two witnesses would be available?
They probably didn’t make the argument those two witnesses would have rebutted. That might even have lead to the differing result in this case.
If anything, these facts tend to suggest that the defense attorneys were correct. Once these witnesses were available, the prosecutors were left with no case the defense couldn’t rebut.
I hope Mr. Frank clarifies/expands on this. I really didn’t follow, either.
Frank’s insinuation that the appellate attorneys argued improperly or inconsistently, based on the evidence’s nonuse on retrial, was fallacious.
In the retrial, the defense felt the evidence was not necessary, and obviously, seeing as how the defendant was acquitted, they were correct in that assessment.
But this fact is not relevant to the question of whether the evidence should have been excluded sua sponte in the first trial.
This site would help its cause if it consistently advocated for fair and accurate decisions on in limine motions by judges. Because motions in limine are reviewed under an abuse of discretion standard, many incorrect evidentiary decisions are allowed to stand. As this site has observed, this often unfairly prejudices parties.
“The only effect of the Court of Appeals decision was to give an arbitrary do-over.”
This is the objection; if one can get more than one trial, considering the messed up jury selection in this country, one will eventually get a jury one can convince.
There’s a reason only one trial is allowed… even if the result is not perfect, allowing multiple trials at the defendant’s discretion will obviously result in trial aftere trial until the defendant is found innocent.
Granted, this isn’t THAT bad, but the principle is the same.
The missing piece of evidence is that the prosecution’s case in both trials was substantially the same. If that was true, then the argument is correct. If that is not true, and especially if the difference was due to the availability of the two witnesses, then the argument is invalid.
Frank’s characterization of the reasoning for the appellate court’s reasoning is misleading.
First, the majority did not agree that the proferred testimony was inadmissible hearsay, despite the dissent’s mischaracterization thereof. The majority said that what was to be testified to was not known, and the defense witnesses should be heard. The right of a defendant to call witnesses in his defense is enshrined in the Bill of Rights.
Second, the majority mainly objected to the trial judge taking on the role of a party to the case. The judge was not acting impartially: he was imposing special rules only on the defendant’s witnesses that did not apply to prosecutor’s witnesses. The judge was also playing at prosecutor – the judge was making and defending his own objections to the defendant ‘s evidence! How can there be a fair trial if the judge is also the prosecutor?
I hope Frank agrees that criminal defendants should have two rights: the right to call witnesses and the right to a trial before an impartial judge. Both rights were violated here. Reversal was proper.
It is frankly hard to know if the error was “material” – that is if it would have affected the result – without seeing the trial. But these are clearly serious violations that strike at the heart of the right to a fair trial.
As the majority opinion explains, where a judge abandons his judicial rule and acts as a party there can be no fair trial. For example, where a judge cross-examines witnesses himself, that can be grounds for reversal.
I am confused by what Frank’s desideratum is here. I thought this site was about improving the judicial system to make it fairer and more efficient. To do that, trial judges must follow the Rules of Evidence and must follow applicable law. The most efficient solution is not to punish defendants who have not had a fair trial. The most efficient solution is just to ask judges to follow the rules of evidence, and to behave impartially towards the parties.
I am deeply perplexed at why Frank is defending the trial court’s error in usurping the prosecutor’s role and in not allowing the witnesses to testify, and I do not understand the reluctance to overturn the verdict based on the unfairness of the judge.
rbnn,
Judges disallow witnesses ALL THE TIME. That’s part of what they do – allow and/or disallow “evidence” based on whether it is relevant and/or admissible.
Hearsay is (generally) not admissable. If that’s all the witnesses had, they aren’t admissible witnesses.
That’s a standard part of what judges do, and what we WANT them to do. Otherwise, the defense could simply call random witnesses infinitely to avoid the end of the trial.
Deoxy: You should read the ruling and especially the excerpts from the trial transcript. This judge was blatantly one-sided.