Withheld Evidence
Forcing a defendant to prove self-defense, by the preponderance of the evidence, confronts the presumption of innocence and creates a conflict with evidence collection. Knowingly or subconsciously, a detective can selectively record evidence that supports their case, while neglecting evidence that helps the defense.
The detective testified that he took a photo of the bar owner’s brother’s arm. His police report reflects that the owner’s brother’s arm received scraps. However, a close examination of the bottom of the photo reveals skin missing from what appears to be swollen knuckles. The detective took three hand comparison photos of Jon’s hands, and one of another person’s hands. However, the detective did not take a hand comparison photo of the bar owner’s brother. Despite the burden of proof being placed on the defense, to prove self defense by a preponderance of the evidence, Jon had to request his lawyer ask the detective why he selectively recorded knuckle injuries. In response, the detective testified, “no, he, I’m sure he had a shower and was cleaned up by then”. Being cleaned up did not prevent the detective from taking a photo of the scratches on his arm. Furthermore, being cleaned up didn’t prevent the detective from taking a hand comparison photo of the other guy the following day. Despite the excuse for selectively recording knuckle injuries, defense counsel neglected to exploit the selective evidence collection.
Examples
Example 1
Several witnesses including the bartender testified someone was stomping on Jon’s head when he was being held down by others.
At the preliminary hearing the detective was asked if he determined who stomped Jon’s head into the pavement that night? His reply was, “negative, not that night”. This implies the detective knew who stomped Jon’s head, he just didn’t determine it that night.
Despite the evasive answer defense counsel neglected to follow up and the identity of the assailant has never been revealed. Incredibly, the evidence bag with the bar owner’s shoes was ripped open and taped back up by the detective.
Example 2
Both the bar owner and the bar cook’s toxicology results were missing from the medical file with only an official request for the results signed by the detective. Before trial, defense counsel claimed the bar cook was positive for marijuana and apparently the bar owner was never tested for drugs. Defense counsel began cross exam of the detective by asking if he had become aware of their alcohol levels before trial. Incredibly, despite his official request for the results, he denied any prior knowledge of their intoxication and claimed not to read the medical files. A “victims” level of intoxication is relevant in self defense cases in order to establish aggression, character, and perceived danger. The bar owner’s toxicology results have never been disclosed.
Example 3
New evidence shows the prosecution effectively suppressed three favorable eyewitnesses who saw Jon being attacked by four or five men when he defended himself. It started before trial when defense counsel turned over a favorable statement that identified the two young ladies waiting in the Dodge Durango, who were supposed to give Jon a ride home. Leading up to trial, Jon’s lawyer continued to tell him he couldn’t locate these witnesses. Then during the trial, the witness who identified the 2 young ladies arrived at the courthouse with the 2 eye witnesses but they were told to go home.
Prior to trial the prosecution filed a motion for grand jury testimony from the man who identified the girls. Then during trial the prosecution said, “if this witness had exculpatory evidence it would have been turned over” Because defense counsel did not know what these witnesses would say, and the detective had two 20 minute audio interviews with these eyewitnesses, and the court would not allow a break for defense counsel to review the tapes; these witnesses were never proffered.
On appeal Jon made several attempts to get the audio interviews with these witnesses transcribed (to prove ineffective assistance), but he was repeatedly stonewalled. After ten years in prison, Jon finally obtained the audio interviews and both these eyewitnesses told the detective that Jon was getting attacked by a number of men. One witness told the detective that Jon got knocked (out) or knocked down early in the fight and then got back up before he was taken down again. Now that Jon can prove that these witnesses were favorable he wondered why the prosecution claimed he testified against him at the grand jury. When Jon finally reached out to this witness he was shocked to learn he denied ever testifying at the grand jury. Given the circumstances, this witness felt the prosecution had been misleading Jon concerning him and the other eyewitnesses.
In 2017, Jon’s new counsel filed for a new trial because it appeared the state had abused the grand jury secrecy to effectively suppress favorable witnesses. The trial judge denied the motion and claimed the witness was a liar. Incredibly the judge refused to show counsel the evidence, and unconsciously refused to seal the grand jury transcripts in the record for appellate review. This witness submitted a sworn affidavit, under the penalty of perjury, essentially accusing the prosecution of committing fraud upon the court, which effectively suppressed several favorable eyewitnesses. Either the prosecution committed fraud upon the court, or the witness committed perjury. Neither has been charged in the Judicial conflict and Jon remains in prison.