The Tragic Rule: You can’t say anything to prove that you’re not guilty if it refers to another defendant.
No detailed cross-examination of lying witnesses.


First, Petitioners argue that the Rule limited their ability to implicate codefendants through testimony, evidence, or argument at trial, and violated their rights under the Sixth Amendment to confront and cross-examine witnesses against them. 50

    50 They further propose that these limitations interfered with their ability to introduce evidence of their innocence in violation of the Due Process Clause of the Fifth Amendment.

1. The Rule Violated Petitioners Constitutional Rights

The strategy of the individual defendants, the testimony elicited, and the evidence parsed by defense counsel was shaped by the Rule imposed by the trial judge that barred them from making arguments or introducing evidence through direct or cross-examination that might bring into play any other defendant. Trial Tr. at 150. Under the Rule, no defense attorney could question any witness about matters that involved a defendant other than his own client unless he first obtained permission from the attorney for that co-defendant. See id. at 601 (no lawyer [is] to ask any questions that would inculpate or exculpate any other defendant unless he cleared it with the defense attorney).The Sixth Amendment establishes the right of criminal defendants to confront and cross-examine all government witnesses against them. Van Arsdall, 475 U.S. at 679.51

    51 The exposure of a witnesss motivation in testifying is a critical function of cross-examination. Greene v. McElroy, 360 U.S. 474, 496 (1959); Davis v. Alaska, 415 U.S. 308, 317 (1974). See Grayton v. United States, 745 A.2d 274, 280 (D.C. 2000) (stating that exposing bias and partiality is a proper function of cross-examination).

The Confrontation Clause is violated when a trial court precludes a meaningful degree of cross- examination. Springer v. United States, 388 A.2d 846, 854 (D.C. 1978). See Flores v. United States, 698 A.2d 474, 479 (D.C. 1997) (right of confrontation is subject to reasonable limits imposed at the discretion of the trial judge). Whether a violation has occurred depend[s] upon the scope of cross-examination permitted by the trial court measured against our assessment of the appropriate degree of cross-examination necessitated by the subject matter thereof as well as the other circumstances that prevailed at trial. Springer, 388 A.2d at 856. See Flores, 698 A.2d at 479 (where there is improper limitation on cross-examination, such error is of a constitutional dimension where the error caused significant prejudice).52

    52 Cross-examination is a purposeful trial tool that can expose falsehood and elicit truth in a criminal case. Pointer v. Texas, 380 U.S. 400, 404 (1965) (citing 5 WIGMORE, EVIDENCE 1367 (3d ed. 1940)).

Curtailment of cross-examination is rendered more severe when a key government witness is involved; under such circumstances, extensive cross-examination . . . [is] required to satisfy the confrontation guarantee. Lawrence v. United States, 482 A.2d 374, 377 (D.C. 1984).

Criminal defendants have the right to present evidence that someone other than [themselves] committed the charged crimes . . . through the testimony of defense witnesses and by cross-examination. Johnson, 552 A.2d at 516 (citing Brown v. United States, 409 A.2d 1093, 1097 (D.C. 1979); Stack v. United States, 519 A.2d 147, 152 (D.C. 1986)). See Ray v. United States, 620 A.2d 860, 862 (D.C.1993); Grayton v. United States, 745 A.2d 274, 281 (D.C. 2000) (Confrontation Clause preserves the right to present evidence that someone else committed the offense); Burgess v. United States, 786 A.2d 561, 575 (D.C. 2001) (citing 1 WHARTONS CRIMINAL EVIDENCE 195 at 404 (13th ed. 1972)) (where the guilt of another person is inconsistent with the guilt of the defendant, the defendant may present evidence that such other person committed the crime). Such evidence need only tend to create a reasonable doubt that the defendant committed the offense. Johnson, 552 A.2d at 517. The focus is not on proof of another persons guilt or innocence, but on the effect the evidence has upon thedefendant's culpability. Winfield v. United States, 676 A.2d 1, 4 (D.C. 1996). See Freeland v. United States, 631 A.2d 1186, 1189 (D.C. 1993) (The focus is properly on the reasonable possibility that someone else might have committed the crime for which the defendant stands charged and not on whether the defendant can produce proof beyond a reasonable doubt that a third person is guilty)

The Rule prevented effective and necessary cross-examination of key Government witnesses Pamela Heim and Dorothy Willetts. As the 2004 Hearing made clear, Ms. Heim was a witness who had observed the shooting of Bruce Hunter and the beginnings of the subsequentchase of Johnnie Battle. Ms. Heim testified before the Grand Jury that Mr. Jones was one of the Pagans who chased Mr. Battle after the shooting. At trial, however, she testified on direct examination that she did not see the chase, and Mr. Sousa’s attorney was barred from crossexamining her to establish that she did not name Mr. Sousa as one of the chasers before the Grand Jury but that she had named Mr. Jones. See Trial Tr. at 1757-58, 1810 (Grand Jury testimony read to court outside the presence of the jury). The trial judge refused to allow this cross-examination of Ms. Heim, which was clearly exculpatory evidence for the defendants other than Mr. Jones. Id. at 1807, 1811. At sidebar, the trial court also specifically denied a request by Mr. Sousas lawyer to have Ms. Heim enumerate and identify the individuals she saw giving chase. Id. at 1807-08.

Counsel identified at least seventeen different issues on which he wished to question Ms. Heim but was rebuffed by the court in each instance. Among other things, counsel wanted to question Ms. Heim about the statements made by Messrs. Barber and Jennings, who had reached the Richter house on foot. The court refused to allow this avenue of inquiry because it involved references to co-defendant Richter. After a bench conference covering twenty-four pages of trial testimony, Pamela Heim was dismissed without one single word of cross-examination directed to her.

Likewise, the effective cross-examination of Ms. Willetts was precluded when Petitioners attorneys were denied the right even to mention names of co-defendants to challenge her testimony. Id. at 1684-92. When Mr. Sousas lawyer tried to cross-examine Ms. Willetts about specific conversations as they related to both Messrs. Sousa and Eastridge, he was prohibited from doing so solely because this line of questioning would involve references to Mr. Eastridge.53

Dumb Judge:

    53 At a bench colloquy, counsel for Mr. Sousa protested I am unable to cross examine these witnesses to clarify and show exculpatory information as it relates to my client . . . . I am confounded by the reason of the fact that I cannot lay out the full fabric of the situation to the jury; not because it does not exist, not because there is not evidence to show that it does exist, but simply and completely because another defendant stands in the way of my client laying out these facts. Id. at 1691-92. Despite her highly damaging testimony and despite counsels protest that “the only technique I know for showing that [her allegations] are not factual is by cross-examining her,” id. at 1687, Ms. Willetts was dismissed without his cross-examination.

As noted by the trial judge later, the Rule proved so restrictive to Sousas attorney that he did not even attempt any cross-examination of a witness whose sworn testimony was very damaging to his client. United States v. Eastridge, 110 Wash. L. Rep. 1181, 1187 (1982).

Yet Ms. Willetts was the only person whose testimony directly implicated Mr. Sousa and Mr. Eastridge. Id.

Reliable evidence, closely linking Mr. Jones to commission of the crime, included the blood evidence and the Grand Jury testimony of Pamela Heim. There was no such physical evidence or eyewitness testimony linking the Petitioners to the crime. Nevertheless, defense counsel were barred from cross-examining on those issues and were not permitted to contrast the evidence pointing to Mr. Jones with the dearth of evidence pointing to themselves. The Rule proved prophylactic in nature, if not purpose, by insulating Mr. Jones.

The Court finds that the Rule imposed an unintended but very real restriction on the defendants abilities to shift the blame and, more importantly, provide a benign explanation for evidence that appeared to inculpate them.54

    54 The Government admits that the Rule may have restricted a defendants ability to shift blame directly to a specific co-defendant. Respondents Response at 28 (but noting that the Rule did not prevent any defendant from challenging the governments evidence and/or shifting blame to a nonparty). This argument ignores the trial court’s own estimate of the severity of the restriction.

When enforcing the Rule by limiting cross-examination especially of Mses. Heim and Willetts the trial court violated Petitioners Fifth-Amendment right to shift the blame to Mr. Jones or unindicted Pagans, and Petitioners Sixth Amendment right to confront and fully cross-examine all critical Government witnesses against them.


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