Thursday, April 22, 2010

Unavailable Witness? His excuse "stinks".

You know... you just can't make this stuff up. As reported in SF Weekly:

Prosecution Witness Unable to Testify Because He Was "Covered in Feces"

In a DUI trial in San Francisco, a witness for the prosecution claimed that he had "soiled himself" to which the judge declared him "unavailable" and excused him from testifying. The judge allowed the witness's pre-trial testimony to be read into the record - admissible hearsay? The defendant was found guilty.

The defense has made a motion for a new trial. If denied, there will be an appeal.

Here are some of the nuggets from the article:
Deputy public defender Prithika Balakrishnan will be filing a motion for a new trial at the sentencing hearing for her DUI client tomorrow, arguing gastrointestinal malfunctions don't get witnesses off the hook. According to state statute, a witness can be "unavailable" for reasons such as being dead or being unable to attend due to "an existing physical or mental illness or infirmity." Balakrishnan figures that loose bowels don't qualify -- and if her motion is denied, she says she will file an intent to appeal.

According to Balakrishnan's motion, which she read to SF Weekly over the phone, Assistant District Attorney Damali Taylor went to talk to [the witness] in the hallway before the phlebotomist was set to testify. Taylor returned to tell the judge and defense attorney, out of earshot of the jury, that [the witness] was "covered in feces." The two attorneys and the judge went to see [the witness] in the hallway, where Balakrishnan says [the witness] reported he'd had an incident and that "the entire courtroom would smell like feces" if he were to testify.

Goldsmith allowed [the witness's] testimony from a pre-trial hearing to be read to the jury and into the record. Balakrishnan says she didn't ask all the probing questions of him at the hearing she would have in front of a jury. Her client was found guilty.

"I think we have a good issue on appeal about whether he was available or not," Balakrishnan says. "They could have easily postponed his testimony for a few hours. There's a number of things the judge could have done instead of wholesale denying my client the chance to cross-examine him."

Balakrishnan says she regrets not pushing the issue of whether [the witness] actually soiled himself or was just making it up. "I didn't see anything. I didn't smell anything. I don't know if he did. I was just so flabbergasted. I'm like, 'what do I say here?'" DA spokesman Brian Buckelew blasted any suggestion that [the witness] dropped a load with the intention of skipping testimony: "I don't think that it's so he didn't have to testify. That's pretty committed."
What do you think?


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