On getting your own witness locked up

I put our star witness in jail.

I have heard about prosecutors being slammed for doing this. One of my adjunct professors in law school – a prosecutor in Philadelphia – ended up on someone’s list of the top ten worst prosecutors in the country for having one of her witnesses in a murder case sit in custody for two months in advance of trial. But I had never heard of a defense attorney doing this. After all, isn’t the fate of your client going to rest on this person’s testimony? If so, do you really think it is smart to antagonize this person?

My client was charged with aggravated assault. We were planning to assert self-defense. The complainant’s tendency to beat people up thus became an issue, assuming my client knew about these other instances, and we learned about this guy – I’ll call him Smith – who himself had been beaten up by the complainant three months prior to the incident in question in our case. And in a dispute over the same woman too.

Smith was initially happy to cooperate with us. People have this notion that they can meet with a third party (such as a police detective or the defendant’s investigator) and relate everything they know. They assume that the third party can then repeat the story in court and, presto, the case is won. Smith wasn’t so happy – or cooperative – when he found out that we needed him to testify in person.

Smith first claimed that he was going to be out of the country on the day of the trial. When we offered to try to get the trial date continued so that he could attend, he sent me a signed and notarized affidavit attesting to everything he had told my investigator Wayne and me. When we told him that wouldn’t suffice, he started to avoid us. He wouldn’t return our phone calls. He eluded Wayne. And when Wayne finally tracked him down to serve him with the subpoena, he refused to sign the subpoena.  No signature, not good service, he claimed.

I emailed Smith. I called him. When I was finally able to reach him, I explained to him that he had been properly served. And if you don’t show up on the day of trial, I told him, the judge is going to send the U.S. Marshalls after you. The Marshalls are pretty good at what they do.

I don’t believe you, he said. I advised him to check with a lawyer. He hung up instead.

On the morning of the trial, I reached him on the phone while walking to the courthouse. Just making sure that you are on your way in, I told him. Again he hung up on me.

The court granted the co-defendant’s request for a continuance, and, at an ex parte communication with the judge at the bench, I explained the problem I was having in getting my witness there, asking the court for help in securing his attendance. I had concluded that an angry witness was better than no witness at all. Although people often try to talk you out of calling them to testify, they are usually pretty cooperative once they arrive at the courthouse. Failing that, I could either make a game-time decision not to call him or, if I called him and he decided to punish us, impeach him with the affidavit he had provided us.

The judge issued a notice for Smith to appear at a hearing to “show cause” why he had not appeared at the trial date and when he did not respond to that, she issued a bench warrant for his arrest. I couldn’t help thinking about this poor guy who had no idea what was in store for him. I tried to contact him once again, this time to let him know that he should turn himself in.

The judge’s chambers called me a week or so before the re-scheduled trial date: Smith was in custody and would appear before the court the next morning on the bench warrant. I have to admit to feeling a little bit ambivalent about this. Given that my client was facing up to 10 years in prison if found guilty, I was annoyed that Smith couldn’t be bothered to spend a day or two at the courthouse if not for a friend, well, then at least for a fellow victim of the complainant’s aggression. At the same time, it was the first time I have ever been responsible for someone being incarcerated.

In the end, our case settled shortly before trial:  my client ended up taking a deferred sentencing agreement on the reduced charge of simple assault. Although I remain convinced that we could have beaten the charges outright, it seemed like the prudent thing to do considering the uncertainties of trial and the risks of a felony conviction.

We went before the judge a couple of days before the scheduled trial date to enter the plea. As I was about to leave the courtroom, the judge called me to the bench. “Don’t forget,” she said with a thin smile, “to let Mr. Smith know that he doesn’t need to come to court.” I couldn’t help thinking of the look people have the morning after they have just spent their first night in custody. The judge must have seen that look when he appeared in front of her to have the bench warrant lifted.

I reached Smith later that day by phone and told him he needn’t come to court. He did not sound angry or upset, mostly resigned. Are you absolutely sure I do not need to be there, he asked me?  Absolutely, I responded.  Are you absolutely, positively sure?  I am absolutely, positively sure.  Well then, he said, thank you for letting me know.