In Granting New Trial, Judge Questions Prosecution 'Tactic'

Calling a prosecutor’s failure to turn over favorable evidence to the defense conscious and deliberate, a D.C. Superior Court judge this afternoon granted a new trial to a D.C. man accused of fatally stabbing another man in a park in Southeast Washington in August 2007.

Judge Frederick Weisberg barely looked up from the bench as he questioned the prosecutor’s decision to conceal testimony that cast doubt on the credibility of the government’s chief witness against Joseph Harrington.

The new information—grand jury testimony from a woman whom the government did not call at trial last year—was not given to Harrington’s Public Defender Service lawyers until January, a month after Harrington was convicted. Assistant U.S. Attorney Vivien Cockburn argued in briefs that the testimony wasn’t material and would not have changed the outcome of the trial.

Harrington’s lawyers, Thomas Dybdahl and Christopher Roberts, say the concealed testimony was crucial to the defense and they alleged Cockburn violated her obligation to produce exculpatory material. “We believe what was done was not done inadvertently,” Dybdahl said in court today. The judge agreed.

“In my opinion,” Weisberg said, “it was patently disclosable, not a debatable point.” Weisberg called the failure to the disclose the information a prosecution tactic, saying the testimony “could be mischievous in the hands of a good defense lawyer.”

It is the jury's role, and not that of the prosecution, to determine the credibility of witnesses, Weisberg said. Granting a new trial motion, the judge said, is “extreme” and costly, and it should serve to remind prosecutors of their obligations. Weisberg said he did not see his role as one requiring him to bring sanctions against the prosecutor.

The judge set a May 1 status conference. Harrington was ordered held in custody pending trial.

Comments

[Holly]

I think that it is amazing that in this day and age, as a prosecutor, a person could think that this type of behavior will not be noticed. Although it tarnishes the name of the rest of us prosecutors out here trying to do our jobs at least it was discovered and a new trial was ordered.