Don Brooks, who was convicted on murder charges in 2006, will get a third trial after the District of Columbia Court of Appeals found yesterday (PDF) that the trial judge erred in allowing prosecutors to use a transcript of a key witness' testimony when she went missing.
Judge Vanessa Ruiz, writing for the three-judge panel, found that the government failed to put in the time and effort to search for the witness before asking the court to declare her "unavailable" under the law. In a murder trial, where the stakes are so high, the government must make every attempt to satisfy the confrontation clause of the Sixth Amendment, she wrote.
A District of Columbia Superior Court jury found Brooks guilty of first-degree murder while armed and other weapons offenses in 2006 in the shooting of Brian Taylor. It was Brooks’ second trial, since his first trial earlier that year ended in a hung jury.
Brooks appealed, arguing that Judge Wendell Gardner Jr. made a mistake in allowing prosecutors to use a transcript of testimony from Henrietta Harling, the government’s sole eyewitness who testified at the first trial but then disappeared before the second one.
Harling, who knew Brooks, had told police she saw Brooks shoot Taylor while watching an exchange between the two men from inside her home. Police arrested Brooks, who denied any involvement in the shooting and said he had driven to New York City with friends on the day of the murder.
As Brooks’ second trial got underway in August 2006, the government told Gardner that they couldn’t find Harling, even though she had been in court during earlier proceedings. The judge approved the government’s request that she be declared “unavailable” and allowed the prosecutor to read her previous trial testimony to the jury instead.
In reversing the conviction and remanding the case for a new trial, Ruiz wrote that the defendants’ constitutional right to confront witnesses takes on special significance in a case like Brooks’, where the witness in question was the government’s only eyewitness.
“[T]he seriousness of the charged crime is a factor that weighs heavily – and in certain cases may be determinative – in deciding whether the government’s efforts were sufficient to protect the defendant’s constitutionally grounded interest,” she wrote.
In Brooks’ case, Ruiz wrote that a cold reading of Harling’s trial testimony wouldn’t give jurors the full story. Harling’s live testimony was reluctant and halting, Ruiz wrote, and nuances such as “tone, body language, eye contact and other indicia” don’t come across in the text.
After Harling went missing, prosecutors tried to find her through family members and former addresses, and called local hospitals and the jail. The appeals court found these efforts were “insufficient” for a legal determination that Harling was “unavailable.” Ruiz wrote that prosecutors made “pro forma” efforts to find her, and didn’t explore all possible leads, such as the defense counsel’s suggestion that they contact authorities in Virginia, where Harling had been arrested in the past.
“What the situation demanded, however, was an intensification of efforts, a doubling-down, to search for and locate the witness, even if it required more than an overnight continuance of the trial,” she wrote.
Brooks’ attorney on appeal, George Washington University Law School Professor Peter Meyers, said in a phone interview Friday that that the ruling “is in line with a number of other decisions we’ve seen from the courts lately, about when the prosecutors’ office has certain obligations to act in a reasonable manner.”
Meyers said he thought it was significant that the court’s ruling laid out the standards for finding a witness “unavailable” under both the Sixth Amendment and the rules of evidence. The rules of evidence apply to civil cases as well, so the ruling will have an effect on all future cases coming before the local court.
“Now you’re going to have a much more serious burden to show the witness is unavailable,” Meyers said.
William Miller, a spokesman for the U.S. attorney’s office, declined to comment.
Chief Judge Eric Washington and Senior Judge Michael Farrell also heard the case.