Tuesday, June 23, 2020

An Unkept Promise

The New Jersey Supreme Court reversed a murder conviction based on the prosecutor's opening statement

In the murder trial of defendants Cary Greene and Tyleek Lewis, the prosecutor opened to the jury that the State would present as a witness Greene’s grandmother, to whom he allegedly confessed his guilt in the shooting death of Edward Baker. The prosecutor gave a detailed description of the grandmother’s expected testimony and a prediction of the emotional struggle she would encounter as a witness against her grandson. Before trial, Greene’s grandmother recanted the statement that she gave to the police. She also refused to testify. The Court considers whether the prosecutor’s discussion of her anticipated testimony deprived defendants of a fair trial.

The Appellate Division had reversed both convictions.

The facts

Before trial, Greene’s grandmother recanted the statement that she gave to the police. At a hearing before the trial court, the grandmother asserted her Fifth Amendment right against self-incrimination. Despite the court’s order compelling her to testify with an assurance of immunity, the grandmother refused to do so, resulting in the court holding her in contempt and jailing her. To remediate any prejudice from the prosecutor’s failure to produce the grandmother, with counsels’ consent, the court instructed the jury that the prosecutor’s opening statement concerning the expected testimony of Greene’s grandmother was not evidence or to be considered in its deliberations.

Neither defendant sought a mistrial when the evidence was not produced.

Here

The prosecutor’s detailed account of Greene’s incriminating statement to his grandmother was not likely forgotten by the jury, despite the trial court’s best efforts in providing a curative instruction. That the prosecutor acted in good faith, moreover, did not abate the damage done to Greene’s ability to receive a fair trial, particularly because the evidence against him was not overwhelming and the prosecutor’s opening had the capacity to tip the scales in favor of a conviction. The Court therefore affirms the judgment of the Appellate Division ordering a new trial for Greene.

However, the prosecutor’s reference to the grandmother’s expected testimony did not implicate Lewis. Additionally, the State presented a more compelling case against Lewis, which included DNA evidence connecting him to the crime and other independent corroborating evidence of his guilt. In Lewis’s case, the prosecutor’s opening was harmless beyond a reasonable doubt. The Court therefore reverses the judgment of the Appellate Division ordering a new trial for Lewis and remands for consideration of the unaddressed issues he raised in his direct appeal.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2020/06/an-unkept-promise.html

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