During closing argument in a 2010 murder case, a San Francisco prosecutor told the jury that the state’s eyewitness had endangered her life by testifying against the defendant, Jamal Trulove, at trial. The problem, the First District Court of Appeal ruled last week, is that there was no evidence to support that claim.
According to the San Francisco Chronicle:
In final arguments to the jury, the prosecutor said the witness had been terrified at the prospect of testifying against Trulove in a courtroom filled with his friends and relatives, but was willing to “risk her life” to tell the truth. She said her office had ordered the woman to enter a witness-protection program, and urged jurors to have “the same courage” as the witness and convict Trulove…
In fact, the court said, there was no evidence of any such threats, and the witness had entered the protection program voluntarily.
Justice Anthony Kline concluded that the prosecutor’s comments were “made out of whole cloth”. The First District Court of Appeal held that the misrepresentation made by the prosecutor undermined Trulove’s right to a fair trial because it implied a guilty conscience, and overturned his conviction.
Witness safety is a real concern for many district attorney’s offices, not only in individual cases, but in order to encourage the participation of the community in solving crimes. In response to a Sunday night shooting in Charleston, Ninth Circuit Solicitor Scarlett Wilson told media that witness intimidation is an escalating problem in her county in South Carolina.
However, witness safety can also be used as a guise for prosecutors to further their agendas, as in the San Francisco case above, or evade accountability, as in the case of New Orleans District Attorney Leon Cannizzaro.
The following excerpt is taken from a 2011 interview with Leon Cannizzaro by The Gambit, an New Orleans alternative weekly. At the time of the interview, DA Cannizzaro was having to defend multiple murder cases in which exculpatory evidence had failed to be disclosed by his office.
G: Given that extremely high burden and the broad scope of the duty placed upon you [under Brady v. Maryland], why not just adopt a policy of “open discovery” and give defense lawyers everything in your file — as many other DAs in Louisiana do?
CANNIZZARO: Part of the problem with the open discovery rule is that right now, in our particular circumstances, we have to worry about the safety of witnesses and the safety of victims. If we were to turn over information to defense counsel with the names and the addresses and phone numbers of the witnesses or victims in non-homicide cases, what we have unfortunately seen in Criminal District Court is that in some circumstances those witnesses have been intimidated, physically harmed or have been prevented from coming into court and testifying. I just do not believe right now in Orleans Parish it is a good thing for me to make available to defense counsel all of the names and the information concerning the witnesses and the victims in these sorts of cases.
G: Aren’t defendants, at some point, entitled to get the names of witnesses?
CANNIZZARO: They are not entitled. We have argued this issue in front of the Louisiana Supreme Court, that obviously when the case goes in front of a jury for the jury to determine someone’s guilt or innocence, obviously [the witnesses] have to come forward. We certainly have to let [defense lawyers] know, if it’s exculpatory information, the substance [of a witness’ testimony]. If a witness is going to be called and they’re going to give some contradictory information, we have to let defense counsel be made aware of that. But to turn over their names and their addresses and information personal to them, in my opinion, causes a great risk of harm to those individuals.
G: What if you redacted the witnesses’ names and addresses and gave defense lawyers everything else?
CANNIZZARO: Well, right now the law in Louisiana is that we are not obligated to engage in open file discovery.
When the interviewer pushes Cannizzaro again, he talks about how important it is that witnesses and victims in New Orleans have confidence that his office will do everything it needs to do to ensure their safety. But he never addresses the suggestion made by the interviewer that his prosecutors just redact witness names and addresses and then turn over their files so that they might avoid future problems of non-disclosure.
What both the San Francisco case and the Cannizzaro interview demonstrate is that even in situations where the stakes are high (or perhaps then even more so), the public ought to be discerning about the motives of prosecutors who rely on arguments about threats of harm to justify their positions or actions.