EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, November 26, 2008

Efficient Solution Or 3 Ring Circus?: Brooklyn Cop Killing Case Being Heard By 3 Revolving Juries

Last month, I wrote a post about a California trial involving two defendants with some evidence only being admissible against one defendant and other evidence only being admissible against the other defendant.  And the way in which the court solved this logistical problem was to have separate juries for each defendant and to rotate jury 1 out when evidence was presented that was inadmissible against its defendant and rotate jury 2 out when evidence was presented that was inadmissible against its defendant.  As I noted in that post, the benefit of such a technique is that it leads to efficiency for the court , the litigants, and the witnesses.

The problem, as I noted to my Evidence students when they asked why the technique is not used more, is that the logistical solution can turn into a logistical nightmare, and there is the ever-present danger than an attorney or witness will reference previous evidence/testimony from trial that was only heard by one jury when both juries are present.

Not having any personal experience with this type of two jury trial, it would be my guess that the benefits outweigh the burdens, but I'm not sure that the same applies when you have 3 defendant and 3 juries.  That's the situation currently faced by a court in Brooklyn.

Prosecutors in Brooklyn charged Dexter Bostic, 36, Lee Woods, 30, and Robert Ellis, 35, with murder in the first degree in the death of 23-year-old police officer Russel Timoshenko, on the theory that the trio worked as a team when they killed Timoshenko.  The prosecution's theory is that Woods was driving a stolen SUV with Bostic and Ellis when he was pulled over by Timoshenko and his partner.  According to the prosecution, Bostic then shot Timoshenko, and Ellis shot Timoshenko’s partner, who was hit in the chest and survived thanks to a bullet-resistant vest.

Conversely, Ellis’ attorney has contended that Ellis was the driver and argued that DNA tests on pieces of fried chicken left on the driver’s side in the front seat would prove Ellis had been driving. Unfortunately, this chicken, which appeared in crime scene photos, was apparently not collected as evidence.

Meanwhile, a recent witness for the prosecution, an acquaintance of the trio, said she was present during their conversations and that Woods had said he did not shoot anyone.  But, Ellis' attorney claimed that the witness, whose aunt had been romantically involved with Woods, was lying to protect him.

If that allegation is true, the witness apparently wouldn't be the first person to fall under Woods' spell.  Woods has been described as a "charismatic" figure, especially after two Rikers Island guards were fired for providing him with marijuana and alcohol, the day after Woods set off a metal detector for allegedly swallowing a handcuff key.  Moreover, a female prison guard was transferred after surveillance footage showed her taking Woods out of his cell and into the showers, where they allegedly had sex.

Yes, this trial seems to have everything, that is, except for any "direct testimony or surveillance footage that can confirm who was sitting in the vehicle and who pulled the triggers on the two guns."  And that everything includes 3 separate juries, with "[a] fair amount of time in the courtroom [being] spent shuffling the juries back and forth into the back rooms."  I would like to think that the trial will end well, but it seems to me that hung juries or mistrials are likelier than final verdicts.



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