extensive cross-examination of witness regarding "credibility in general as well as . . . specific bias or motive" compensated for partial nondisclosure of plea bargain
How later courts described this case
- extensive cross-examination of witness regarding "credibility in general as well as . . . specific bias or motive" compensated for partial nondisclosure of plea bargain
Written by the judges who cited it.
The opinion
MACK, Associate Judge,
dissenting:
I do not agree that the errors complained of were harmless.
At trial the central issue was the credibility of an alleged accomplice who (having entered a plea of guilty on the day of trial) was the single government witness to link appellant to the commission of the armed robbery. In context, the issue in this court is not whether the jury knew of the transgressions of this witness. The issue, rather, *813 is whether the government, in knowingly permitting false testimony by this witness to go unchallenged, and in affirmatively using this false testimony to persuade the jury, 1 has improperly bolstered her credibility so as to create imbalance and a denial of due process. See United States v. Iverson, 205 U.S.App.D.C. 253 , 637 F.2d 799 (1980), reh’g denied, 208 U.S.App.D.C. 364 , 648 F.2d 737 (1981) (per curiam). In my view, the record confirms that this issue must be answered affirmatively.
I respectfully dissent.
. On cross-examination, appellant’s attorney questioned Taundra Brown as follows:
Q. Did anyone indicate to you any assistance to keep you in Second Genesis rather than you having to face any time in jail?
A. No.
Q. Isn’t it true that at the time of the entry of your plea of guilty to attempted robbery this morning, your counsel indicated that the Government might favorably talk in your behalf at the time of sentencing? Do you remember your counsel saying anything like that?
A. No. She told me that — to tell her the truth about what happened, and that she felt as though — and I think so, too — that if I just go ahead and be truthful about it, things might work out better for me.
Q. Do you recall the prosecutor, Mr. Tapp, indicating that he would not oppose Second Genesis for you? Did he say anything like that?
A. No, he didn’t.
The trial court, relying on its own mistaken recollection, curtailed impeachment on this issue. While government counsel had agreed with appellant’s attorney that a review of the reporter’s notes on the plea bargain would clear up the matter, the prosecutor did nothing further to correct the court’s memory. In fact, in closing argument the prosecutor argued that Brown “was not getting any real concessions ... not getting anything from ... what she’s facing before this Court.” and the prosecutor further stated that:
She has not gotten concessions for anything. The only thing she was promised— she told you one thing she was promised was that she would not be stepped back, which means that at the time when she pled guilty, she would not have to go back there in the cellblock. That’s all. She would be able to stay out on bond pending sentencing. She said that was the only promise she got, and there was no testimony from anybody else that she had gotten anything else other than that.
She said that — there was some allusion the attorney may have said that she would ask, at the time of sentencing, whether she could stay in Second Genesis, and she said the only promise she got was that she would be able to plead guilty and testify truthfully in this case, testify truthfully.
On appeal, the government concedes that during Brown’s plea proceedings on the day of appellant’s trial, her counsel represented that a part of the agreement was that the government would allocute favorably for Second Genesis treatment on Brown’s behalf. At this time the government counsel (who prosecuted appellant) was present and remained silent. The government further states “we acknowledge that Miss Brown [at appellant’s trial] inaccurately stated the nature of the Government’s agreement with her” but argues that any error was harmless.