Donnell Harris wore glasses during his trial in 2008 for second degree murder. That seemingly innocuous detail is a key issue at the heart of Harris' appeal, with the government arguing today before an appeals court panel that the trial judge's jury instruction related to those glasses was not prejudicial.
Several witnesses testified at trial that they had never seen Harris wear glasses before, prompting prosecutors to ask the District of Columbia Superior Court judge to instruct jurors that they could consider whether Harris had tried to change his appearance on purpose. Attorneys argued today over whether that instruction warranted a new trial.
Harris was convicted in the 2007 fatal shooting of Michael Richardson, who was working at the time as an intern with the D.C. Public Defender Service. The prosecution's theory at trial was that Harris shot Richardson during an early morning robbery at a Northwest Washington diner.
During oral arguments this morning before a three-judge District of Columbia Court of Appeals panel, Chief Judge Eric Washington said he found the glasses issue to be one of the more compelling on appeal. He pressed Assistant U.S. Attorney John Gidez to explain whether Harris' decision to wear glasses was such a "profound" change in appearance to justify the trial judge's instruction.
Gidez said that even if it wasn't a profound change, it could still alter Harris' appearance enough to potentially cause a non-identification or misidentification by witnesses who didn't know Harris well enough to recognize him with or without glasses. It might be a "weak inference," Gidez said, but there was enough factual foundation for the judge to give the instruction.
Washington asked Gidez whether, if the appeals court took his side, the court would be lowering the standard for a judge to give a change-of-appearance instruction. Gidez said it would be left to the trial judge's discretion, but Washington countered that such a ruling could be "effectively unreviewable" since the appeals court couldn't see what a defendant looked like at trial.
The judge noted that this was especially an issue because a growing number of defendants had been showing up for trial wearing glasses. There was reference made to a story earlier this year in The Washington Post about non-prescription glasses being in vogue for defendants in Superior Court.
Harris' attorney, Washington solo practitioner Steven Kiersh, also argued this morning that the government's case was weak and that the prosecutor made unfairly prejudicial comments during closing arguments. Kiersh said that by telling the jury that, "There is no evidence to undercut the government's evidence," the prosecutor improperly shifted the burden of proof from the government to the defendant. Washington seemed to disagree, saying the prosecutor was saying that there was no reason for the jury to think the government's case was weak.
Associate Judge Anna Blackburne-Rigsby and Senior Judge Inez Smith Reid also heard the case.