Thursday, March 17, 2011

The Impending Wrongful Execution of Eric King: 4

Eric King sits on death row. The people of Arizona plan to execute him on 29 March. Though I stand mute for most executions, I fervently oppose this one. I believe Eric King may in fact be innocent of the crime for which he is to die.

This is the fourth part of a five-part series. Prior to reading this Part 4 you should first read Parts1, 2, and 3. Part 1 is here. Part 2 is here. Part 3 is here. A link at the each Part will lead you to the next, leading you right back to this post.


Eric King was executed based entirely on the word of Michael Page Jones and Nekita Renee Hill. Jones had a substantial reason to tell the State what it wanted to hear: his freedom, even his life. Hill also had substantial reason to tell the State what it wanted to hear: her boyfriend's freedom, even his life. Before trial, Jones and Hill told the police what they wanted to hear. All charges were then dismissed against Michael Jones. He walks free today as Eric King faces the needle.

At trial, Jones and Hill were both extremely reluctant to testify, to repeat what they had told the police when Jones' life, rather than King's life, was on the line. In his opening statement, King's prosecutor forewarned the jury that his two star suspects were unwilling to stand behind the story they had previously claimed as true. Regarding Jones, the prosecutor said:
You will hear from a man by the name of Michael Page Jones. Mr. Jones was with Eric King that night. In fact, at one time Mr. Jones was charged as an accomplice. The case was later dismissed. Michael Jones was with Mr. King. He told the police officers later in December exactly what happened. I can't guarantee you what Mr. Michael Page Jones is going to say when he gets on the stand, ladies and gentlemen, but he was there that night and he has information, and I suggest to you that if he testifies truthfully as he should, he will implicate the defendant, Eric King, without a doubt.
Regarding Hill, the prosecutor said:
Who else? Renee Hill is here. Renee Hill at one time was the girlfriend of Michael Jones. Renee Hill currently lives in the Projects. She is on welfare, and she is scared to death. She comes to Court today not voluntarily, but because Detective House managed to go out and find her over the last 24 or 36 hours and bring her to the Court. She is scared. Whether she should be or whether she shouldn't be, ladies and gentlemen, it doesn't matter, because in her own mind she is scared. She does not want to testify. She does not want to come into this courtroom under any circumstances. Ladies and gentlemen, she will be brought into this courtroom, and you will hear her testify.
Sure enough, Michael Jones feigned memory loss, though he eventually sort of, king of remembered. And sure enough, Nekita Renee Hill was explicit that she did not want to testify, though she did not apparently ever say she was scared, much less scared to death. That characterization came only from the prosecutor.

In opening statements, the attorneys (allegedly) are to limit themselves to outlining the testimony the jury will hear. An attorney is not allowed, at least in theory, to tell the jury that any witness (much less his own) will be lying if he tells a story different than the attorney wants the jury to believe. An attorney is not allowed to divine the current and future thoughts of any witness (much less his own) to predispose the jury's thoughts.

The jury is, in theory, required to render a verdict based on the facts of the case as presented by the witnesses. To present them with the speculative opinions of the State's prosecutor before the defense has an opportunity to utter a word is prosecutorial misconduct. King's post conviction appeal was, in fact, based in part on the very misconduct cited above.

Appellate courts, being interested in the efficient adminstration of justice, are reluctant to intervene while justice is being adminstered. When faced with the clear misconduct in the King case, they handled it with bluster and a tell. First the bluster, then the tell.

Michael Jones

Relying on State v. King, I offer the following judicial bluster regarding the prosecutor's prediction that his own witness would lie.
After the prosecutor completed his opening statement, defendant asked for a mistrial, claiming that the prosecutor vouched for the credibility of Michael Page Jones. The trial court denied the motion and stated that he did not "believe there was a clear vouching of the witness." Moreover, the trial judge noted that he had admonished the jury before opening statements that none of the statements were evidence and that he would be giving a similar admonition before closing arguments.
"The object of an opening statement is to apprise the jury of what the party expects to prove and prepare the jurors' minds for the evidence which is to be heard." [citation] Yet, "it is improper for the prosecution to vouch for the credibility of a government witness." [citation] There are "two forms of impermissible prosecutorial vouching: (1) where the prosecutor places the prestige of the government behind its witness; [and] (2) where the prosecutor suggests that information not presented to the jury supports the witness's testimony." [citation] "The first type of vouching involves personal assurances of a witness's veracity...." [citation] "The second type of vouching involves prosecutorial remarks that bolster a witness's credibility by reference to matters outside the record." [citation] With these statements, the prosecutor was voicing his expectation that Jones's testimony would be consistent with the earlier statements that he made to the police, and that he would implicate King. At the same time, however, the state was preparing the jury for the possibility that Jones might testify otherwise. We fail to see, nor does defendant explain, how, by suggesting that one of its own witnesses might lie on the stand, the state was vouching for the credibility of its witness. ... Because we find that the state did not vouch for the credibility of its witness, we find no error.
The prosecutor's misconduct with respect to Jones falls in the category of vouching. The jury is required to render their verdict based on the evidence presented at trial. They are not supposed to base their verdict based on assurances from the prosecution that the defendant is guilty. This is in part because juries will assume that the prosecution has inside knowledge of the case that the jury will not be allowed to hear. The concern is that the jury will convict based on evidence they believe the prosecutor has rather than on evidence they hear in court.

The appellate court blustered. "We fail to see ... how, by suggesting that one of its own witnesses might lie on the stand, the state was vouching for the credibility of its witness."

Regarding that finely tuned observation, and just that observation, I agree. The prosecutor wasn't vouching for his own witness. He was trashing his own witness. He didn't want the jury to believe the testimony of his own witness, he wanted them to disbelieve it.

The prosecutor was vouching for his case, not for his witness. That's a subtlety I'm sure was not lost on the appellate court judges. They simply ignored it so that the adminstration of justice could proceed.

There was a method to the prosecutor's madness. He knew that Jones planned not to testify as the State wished, despite the court's transparently false assertion that the prosecutor "was voicing his expectation that Jones's testimony would be consistent with the earlier statements that he made to the police." King's prosecutor therefore painted Jones as a liar, thereby opening the door to bring Detective Armando Saldate to the stand.

Normally, and I used that word loosely, Saldate would not have been allowed to tell the jury what Jones told him. That is hearsay. It's best that the jury hear directly from the witness rather through an intermediary. Unfortunately, there are more exceptions to the hearsay rule than there are holes in Albert Hall. The exception the prosecutor set up in this case is "prior inconsistent statements."

In theory, Saldate was brought before the jury to explain only that Jones had made prior inconsistent statements. In reality, Detective Armando Saldate was brought before the jury because the State had a losing case without him. Saldate's job was to tell the jury what Jones allegedly told Saldate in the privacy of the interview room. Once again, the jury would be asked to rely on the "honesty, competency, and overall reliability" of Detective Armando Saldate.

The prosecutor wasn't vouching for Michael Jones. He was vouching for Armando Saldate. From what I've learned of Saldate, he certainly needed it.

Nekita Renee Hill

Again relying on State v. King, I offer the following judicial bluster regarding the prosecutor's pronouncement that Hill was "scared to death."
Equally unpersuasive is defendant's claim that the prosecutor committed misconduct by declaring that Hill feared for her safety... Defendant argues that the clear implication of the statement that Renee Hill was afraid to testify was that "King or others acting for him had threatened her," and that the state's "reference to Hill's fear called the jury's attention to matters it would not have been justified in considering."
We begin by noting that defendant did not object to this statement until after Hill testified. This court has repeatedly held that the defendant must voice his objection to arguments that are objectionable, and failure to do so constitutes a waiver of any right to review. [citation] Thus we conclude that by failing to object to the prosecutor's comments in a timely fashion, defendant waived any objections that he may have had to these comments.
Defendant argues that even absent objection, the introduction of these statements was fundamental error because it prevented him from having a fair trial. We disagree.
Defendant moved for a mistrial after Hill's testimony and argued that the combination of her testimony and the prosecutor's opening statements concerning Hill's fear made it impossible for him to get a fair trial. The trial court denied the motion, stating:
[Hill's] demeanor obviously indicated she did not want to be there. She was a very reluctant witness. It was obvious she was under a great deal of stress and anxiety and fear, and she never indicated that fear was coming from any specific individual or defendant or anybody from his family.
We have reviewed both the opening statements and Hill's testimony on direct examination, and we agree with the trial court's conclusions.
Moreover, far from being a matter that the jury is not justified in considering, Hill's unwillingness to testify goes directly to her credibility. As with Jones, the prosecutor had no idea what Hill would say once she was on the stand. [That sound you just heard was the BS detector going off. -- tsj] The prosecutor rightly anticipated that he would have to provide the jury some explanation for Hill's eventual refusal to identify defendant. [This sentence contradicts the prior claim that the prosecutor had no idea what Hill would say. -- tsj]
... Thus, we conclude that the state did not err either in eliciting testimony concerning Hill's reluctance to testify or in preparing the jury for the possibility that Hill was going to be a reluctant witness.
King's prosecutor was clearly suggesting that Hill feared King, presumably on the off chance King would be acquitted and would extract revenge. Or something like that. The appellate court implicitly acknowledged that point.
Hill testified that she called the police after seeing the surveillance pictures broadcast on television. She admitted that she identified defendant as the person in the picture. When asked whether defendant was the person depicted in the surveillance photograph, however, she repeatedly stated that the person in the picture did not look like defendant. Her fear and anxiety over testifying certainly served to bolster her earlier identifications over her trial testimony.
The court presumes Hill told the truth earlier about being able to identify King on the video, but lied on the witness stand about being unable to identify King on the video because she was afraid of, of, ... of something.

Perhaps Nekita Renee Hill was reluctant to perjure herself  at trial where a man's life was at stake.

Perhaps Hill feared the wrath of the State for telling the truth.

The Tell

You don't have to rely on me to understand that the apellate court was wrong in its ruling. The apellate court told you so itself, in its own opinion. It told you so in the form of a tell.

From Wikipedia, we find this description of a tell.
A tell in poker is a subtle but detectable change in a player's behavior or demeanor that gives clues to that player's assessment of his hand. A player gains an advantage if he observes and understands the meaning of another player's tell, particularly if the tell is unconscious and reliable. Sometimes a player may fake a tell, hoping to induce his opponents to make poor judgments in response to the false tell.
A tell may be common to a class of players or unique to a single player. Some possible tells include leaning forward or back, placing chips with more or less force, fidgeting, doing chip tricks, or making any changes in one's breathing, tone of voice, facial expressions, direction of gaze or in one's actions with the cards, chips, cigarettes or drinks.
An underlying rule to many tells is: Weak means strong, strong means weak. Thus, players who hold weak poker hands attempt to convince other players at the table that they are strong: staring down an opponent, throwing chips down forcefully into the pot in an effort to discourage others from calling. Whereas, players who hold strong hands tend to try to disguise their hand as being weak. They attempt to fly under the radar by being a passive player at the table: not making direct eye contact, softly tossing the chips in, friendly and talkative. They're deliberately trying not to come across as intimidating, so as to entice a call.
From the same appellate's court ruling in State v. King, I present the appellate court's tell.
Although we conclude that the trial court did not commit fundamental error in this case, we caution lawyers against making overreaching factual assertions during opening statements. Opening statements are intended to inform the jury of what the party expects to prove and prepare the jury for the evidence that is to be presented. [citation] Opening statements are not, however, the appropriate forum to argue a case. [citation]

In this case, the prosecutor wanted to prepare the jury for the fact that Hill might be a reluctant witness. To accomplish this, the state commented that Hill was "scared to death." The court can envision different factual circumstances where the use of this type of improper but colorful hyperbole during opening statements could have unduly prejudiced the defendant. Although we believe no such prejudice occurred in this case, we caution lawyers against straying too far from the purpose of the opening statements by "arguing" a case through its characterization of the evidence that it intends to offer at trial. This kind of reference is better left for closing arguments -- where a prosecutor can properly refer to evidence actually in the record.
In other words Mr. Prosecutor, you did nothing wrong. Don't do it again.


I will conclude this series in Part 5, now available here.

ERRATA: Included as a separate post, here.

1 comment:

Anonymous said...

i know hill she didn't want to testify,first of all when she testify she nearly fought the detective to even go into the court room.Hill didn't call the police,they found Micheal Jones at her house,and Hill was scared because Eric king brother threaten her.she moved out of state,with her new husband and child.All hill knew was that eric knocked on her door and asked micheal to go to the store and his face appeared on the news.the same clothe was wearing was the same clothes he was wearing when he left her house

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