The District of Columbia Court of Appeals heard oral arguments this morning on whether a last-minute revelation of PCP use by an eyewitness in an attempted murder and sexual assault case merits a reversal.
Michael Robinson, Davone Kellibrew and Steven Edwards were convicted by a District of Columbia Superior Court jury in 2008 of kidnapping a local woman, Donna Terry, sexually assaulting her and then leaving her for dead after shooting her multiple times in the stomach, chest and back.
Terry survived, however, and served as the government's main eyewitness at trial. Prosecutors handed over evidence of Terry's ongoing drug use during discovery, but defense attorneys claimed that they were shocked during the trial to hear Terry testify that she had used PCP less than 24 hours before the alleged crime.
Superior Court Judge Herbert Dixon denied the defense attorneys’ request at that point to put an expert witness on the stand to testify about how PCP can affect perception and recollection soon after its use; Dixon also denied a request for a new trial.
Dixon also denied the defense attorneys’ objection to the prosecutor’s rebuttal statements, which they argued unlawfully shifted the burden of proving innocence to the defense. The prosecutor had said that, “If someone wants to prove that because [Terry] took PCP something like 15 and 20 hours before the time that she was taken on this ride, if someone wants to suggest that that had something to do with her recollection of events, they need to bring some evidence on that.”
On appeal, attorneys for the three men argued that prosecutors failed to turn over information on Terry’s drug use the day before she was shot as soon as they found out about it, in violation of Brady v. Maryland. The government responded that prosecutors disclosed Terry’s habitual drug use well in advance of trial, and that they didn’t know about her use of PCP the day before the alleged crime either.
The defendants are being represented by different counsel on appeal, each of whom spoke in support of a shared set of arguments this morning. Washington solo practitioner Jenifer Wicks, Edwards’ attorney, said Dixon erred in denying the request for an expert witness because the possible effects of PCP went directly to Terry’s credibility.
Associate Judge Corrine Beckwith asked Wicks to explain whether there was a Brady violation because the defendants thought prosecutors withheld information, or whether prosecutors’ failure to learn about Terry’s drug use the day before the crime should be considered a Brady violation. Wicks said the prosecutor found out the night before Terry was set to testify and failed to tell defense counsel.
Responding to a similar question from Beckwith later, solo practitioner Donald Dworsky of Glen Echo, Md., Kellibrew’s attorney, said that there was also case law supporting the idea that the prosecutors’ failure to find out about the drug use the day before the shooting could also be considered a violation.
George Washington University Law School Professor Peter Meyers, Robinson’s attorney, said the prosecutors’ rebuttal statements on the lack of testimony on the effects of PCP compounded the prejudice. Senior Judge Inez Reid said she agreed that the statements were “clearly unfair,” but pressed Meyers to explain why it was prejudicial.
The government can’t object to expert testimony and then tell the jury that the defense is to blame for the lack of such testimony, he said, adding, “you can’t have it both ways.”
Assistant U.S. Attorney Peter Smith said that the court record showed prosecutors did tell defense attorneys about the PCP revelation before Terry testified, although he said it didn’t specify how. Regardless, Smith argued that the defense could have prepared expert testimony on PCP use based on earlier disclosures that Terry was a habitual drug user. Knowing that Terry used PCP 15 to 18 hours before the crime “simply wasn’t that important to the defense,” Smith said.
On the issue of the trial prosecutor’s rebuttal statements, Smith said he understood why Reid thought it was “unfair.” Still, he said, the prosecutor was only commenting on the state of the record as it stood at trial, since the jury hadn’t heard any evidence on how PCP might have affected Terry’s ability to perceive and recall what happened.