The District of Columbia Court of Appeals heard oral arguments today on whether the government's decision not to tell the defense that testimony from an earlier proceeding was false warranted a mistrial.
Adrian Thompson was arrested in February 2009 on charges of unlawfully carrying a gun and ammunition. At trial, his lawyer moved for a mistrial after learning that evidence presented at a preliminary hearing was actually related to another case.
The judge denied the request, and a District of Columbia Superior Court jury convicted Thompson in December 2009. A three-judge panel heard Thompson's appeal this morning.
At trial, according to briefs filed with the appeals court, Thompson's lawyer thought she had caught police in a lie. Sgt. Timothy Evans had testified at a preliminary hearing that Officer Greg Nagurka told him he saw Thompson sliding an object believed to be a gun under a fence. Nagurka had testified he saw Thompson throw the object over a fence.
Thompson’s attorney called Evans as a witness at trial, planning to impeach him based on the inconsistent stories. However, Evans testified that Nagurka told him he saw Thompson throw the object over a fence. Confused, the defense lawyer asked for a bench conference.
The prosecutor said he had learned the day before that Evans had confused Thompson’s case with an unrelated case during the preliminary hearing. Thompson’s attorney asked for a mistrial, saying the defense had been prejudiced by the government’s decision not to disclose that information and that she wouldn’t have called Evans to the stand had she known.
Judge Jennifer Anderson denied the request, saying she thought the defense was still able to make use of Evans’ contradictory testimony to its benefit.
Lee Goebes of the D.C. Public Defender Service, arguing on Thompson’s behalf, said this morning that the prosecutor made a strategic decision not to disclose the information about Evans’ testimony, knowing the defense would put him on the stand and look “foolish.”
Associate Judge John Fisher said he was having a hard time finding any prejudice against Thompson, since his attorney was still able to argue to the jury that Evans couldn’t keep his stories straight and shouldn’t be trusted. Goebes said the defense was prejudiced by having to re-engineer its strategy mid-trial and stick with a plan they wouldn’t have used had they known the reason for Evans’ inconsistent stories.
Assistant U.S. Attorney Kristina Ament said prosecutors aren’t and shouldn’t be required to explain every piece of inconsistent evidence to the defense. She said the only person at trial who looked foolish was Evans, not Thompson or his lawyer.
Fisher and Senior Judge Frank Schwelb pressed Ament to explain why the prosecutor didn’t disclose the information about Evans. Ament said Evans’ confusion wasn’t the same as if Evans had knowingly made false testimony and then the prosecutor had decided not to share that fact. Fisher said Evans’ testimony may not have been perjury, but he didn’t see why it wasn’t still false testimony under oath.
“I’m not getting a warm and fuzzy feeling about this part of your argument,” he told Ament.
Associate Judge Phyllis Thompson also heard the case.