EvidenceProf Blog

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

Wednesday, June 29, 2016

COSA Finds Thiru Vignarajah Acted "In Bad Faith and For an Improper Purpose," But Denies George Johnson a New Trial

Back on February 18th, I posted an entry about the George Johnson appeal. Johnson was the man allegedly hired by Derrick Toomer to murder Ralph Hall. Toomer was prosecuted for Hall's murder before Johnson. At Toomer's trial, prosecutor Thiru Vignarajah (the State attorney handling Adnan's appeal) misrepresented the DNA evidence and secured Tommer's conviction. According to the Court of Special Appeals of Maryland,

The prosecutor misrepresented the evidence, creating a picture in which appellant, complicit in the crime, attempted to erase the evidence. The prosecutor’s argument had no basis in fact.

Before the Court of Special Appeals reached this conclusion, however, Johnson was put on trial. At Johnson's trial, Thiru called Toomer as a witness despite knowing that Toomer would exercise his Fifth Amendment privilege against self-incrimination. Yesterday, the Court of Special Appeals of Maryland had to answer the question of whether this dog and pony show required a new trial. Specifically, the court addressed this question:

Whether Appellant was denied his right to a fair trial, in violation of the Due Process Clauses of the Fifth and Fourteenth Amendments, when the prosecution called his separately tried and convicted codefendant as a witness in its case in chief with full knowledge that the witness would invoke a valid Fifth Amendment privilege and refuse to testify?

According to Johnson's attorney, Julie Reamy (one of Cristina Gutierrez's clerks back in 1999-2000),


“[t]he prosecution’s act of calling Derrick Toomer to the stand with full knowledge that he would invoke his Fifth Amendment privilege was an attempt to add critical weight to [the State’s] case . . . and constituted flagrant misconduct.”

In turn,

The State concede[d] that “Toomer’s testimony was ‘dramatic,’” but maintains that the trial court did not abuse its discretion in finding that the testimony was not harmful to [Johnson].

In addressing this dispute the Court of Special Appeals cited to Vandegrift v. State, 237 Md. 305 (Md. 1965), which "lists 'five requirements for a court’s finding of prejudicial error' when a witness asserts his Fifth Amendment privilege in front of the jury."

  1. that the witness appears to have been so closely implicated in the defendant’s alleged criminal activities that the invocation by the witness of a claim of privilege when asked a relevant question tending to establish the offense charged will create an inference of the witness’ complicity, which will, in turn, prejudice the defendant in the eyes of the jury;

  2. that the prosecutor knew in advance or had reason to anticipate that the witness would claim his privilege, or had no reasonable basis for expecting him to waive it, and therefore, called him in bad faith and for an improper purpose;

  3. that the witness had a right to invoke his privilege;

  4. that defense counsel made timely objection and took exception to the prosecutor’s misconduct; and

  5. that the trial court refused or failed to cure the error by an appropriate instruction or admonition to the jury.

Under the first factor, the court concluded "that Mr. Toomer appeared to have been 'closely implicated in the defendant’s alleged criminal activities' so that his invocation of his Fifth Amendment privilege after he was put on the stand and asked whether he was originally charged in a murder weighs heavily against the State under the first Vandegrift factor."

Under the second factor, whether Thiru called Toomer "in bad faith and for an improper purpose," the court concluded that

the State did not avail itself of the procedures provided in CJP § 9-123, nor did the State seek to resolve the issue outside the presence of the jury. For this reason, although not dispositive, the second factor of the Vandegrift test weighs against the State.

Under the third factor, the court also found against the State, concluding "that Toomer had some reasonable basis for invoking the privilege and that he did so in good faith."

Under the fourth factor, the court found that Johnson's counsel made a general objection but not a specific objection, leading it to conclude that

Although Appellant’s general objection was sufficient to place the broader issue before this Court, this Vandegrift factor is not satisfied and weighs against reversal.

Finally, under the fifth factor, the court found in favor of the State, concluding that "the circuit court in this case acted swiftly to halt questioning and excuse the jury."

Ultimately, the court reached the following conclusion:  "Balancing all of the Vandegrift factors, we conclude that the actions of the prosecutor in the case before us—although not a model to follow—were not unduly prejudicial, nor were they calculated solely to gain the benefit of “the effect of the claim of privilege on the jury."

In other words, while Thiru called Toomer "in bad faith and for an improper purpose," this misconduct was not enough to award Johnson a new trial because defense counsel's objection wasn't specific enough and the circuit court acted quickly to remedy this misconduct. It will be interesting to see whether the Court of Appeals agreed to hear Johnson's appeal.



| Permalink


"Under the fourth factor, the court found that Johnson's counsel made a general objection but not a specific objection, leading it to conclude that

Although Appellant’s general objection was sufficient to place the broader issue before this Court, this Vandegrift factor is not satisfied and weighs against reversal."

When a defendants appeal is rejected specifically because his lawyer didn't do the very thing that is required to preserve that appeal would this not be the definition of ineffective council? Or in a broader context does this not demonstrate the ridiculousness of this test. The point of appeals is to correct errors in procedure and law. To defeat an appeal because it was not immediately correctly remedied seems to miss the whole point.

It seems like the court is saying, "because you did not immediately move for a mistrial we will ignore the prosecutions misconduct."

Posted by: Jeff P | Jun 29, 2016 8:30:49 AM

IOW, even when the prosecutor commits misconduct the courts will bend over backward to uphold a conviction.

Posted by: bacchys | Jun 29, 2016 8:41:33 AM

You guys really want some bad people out of prison and back on the streets. I hope this Johnson guy moves next to one of the UD3 or the *%!*#%*s on reddit

Posted by: imnotanattorney | Jun 29, 2016 11:09:15 AM

Jeff P: That takes us to the fifth factor: prejudice. This was why it was important for the appellate court to note that the trial court quickly responded to Thiru’s misconduct.

bacchys: Sometimes. It’s important to note that the same court did throw out Toomer’s conviction. I would say that the court could have gone either way here, and it’s tough to say anything definitive without looking at the whole trial record.

imnotanattorney: I don’t necessarily agree with the court’s conclusion. If I did, however, that would simply mean a new trial for Johnson, who presumably would be denied bail. If he’s guilty, a fair trial would then result in a conviction once again.

Posted by: Colin Miller | Jun 29, 2016 11:43:41 AM

Post a comment