# Amicus Curiae Brief — Taylor v. Illinois

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0979%3A6

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1988
- **Citation:** 484 U.S. 400

## Text

supreme Court. 1 $
FILED

JU A ion?

No. 86-5963
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CLERK

Inu the Supreme Court of the United States

OCTORER TERM. 198%

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BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT

QUESTION PRESENTED
Whether the Comou ,

TABLE OF CONTENTS

Interest of the United States

ee stints

Summary of Argument

Argument:

The Compulsory Process Clause does not prohibit
a trial court in every case from precluding a de
fense witness from testifying as a sanction for a
defense violation of a discovery requirement

A

The Compulsory Process Clause forbids only
arbitrary barriers to a defendant’s right to
offer a defense to the charges against him

teciprocal discovery statutes imposes a reason-
able condition on the presentation of defense
evidence

Precluding a defense witness from testifying
because of a discovery violation is not always
|

an unreasonable or disproportionate sanction

’ ’ . ‘ “TY } | ; '
Preclusion was a permissible sanction in this
; . " “.? . -... ; ;
case because tne defen e wW lf 1iiy violated Its
3s Pr ré rements
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Page

Cases

State V.

State V Flohr.

State v. Mai, 294 Or. 269, 656 P.2d 315 (1982)

State v. Robert 6 Kan. 740, 602 P.2d 1555
(1979)

State v. Silt 118 R.L. 408, 374 A.2d 106 (1977)

State v. Smith, 88 N.M. 541, 543 P.2d 854 (Ct
App. 1975)

State v. Smith. 17 Ohio St.3d 98, 477 N F.2d 1128
(1985) 10),

State ex rel. Simos v. B e, 41 Wis.2d 129, 163
N.W.2d 177 (1968) 10),

vy, land v. Wa f 166 U.S. 668 (1984) i, 18,

Talia » Vv. State Md af 156 A.2d 29,
cert. denied, 461 U.S. 948 (19835) 10, 15, 16, 17

[’ vy. S fit 6 U.S i> (1964)

I’'nited States v. A 1°97 U.S. 97 (1976)

] tod States \ | ~ | d 1079 (9th Cir.)
cert. denied. 426 U.S. 948 (1976)

United States v. Balistri 779 F.2d 1191 (7th
Cir. 1985). cert. denied, No. 85-1653 (June 2
1986)

T’'nited States v. Be 975 F.2d 752 (9th Ci
1973) 8, 10

tod Stat BR 693 F.2d 8 (7th Ci
LYS2 )

[nit Stat Bryant, 439 F.2d 642 (D.C. Cir
1971)

j ted Stat vy. Oe ! I ad | (D.C
Cir. 1974) t enis U.S. 1087 (1976)

] ted Stat y. De 639 F.2d ) (5th Ci
L9S1)

] ted Stat Vv. Eel 159 F.2d 1451 (9th
(il 1YSD)

[’nited Stat Pitt 6 | 1 837 (10th Ci
19738) =

] 1 Stat f F.2d & (6th Cir.)
ert. denied, 459 U.S. 9 (1982)

[’nit Stat ( F.2d ) (Sth Cir
isl)

Continued

Dodd, 101 Ariz. 234, 418

(1966)

201 N.W.2d 367 (N.D. 1980) LO

'nited

Continued:

State
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U.S. 1078 (1981
131 U.S. 783 (1977)
04 U.S. 307 (1971)
4 F.2d 484 (10th
69 F.2d 4 (Sth ¢
O83 (Ma Lore
149 U.S. 3 (198)

Cases—Continued : Page

United States ex rel. Enoch v. Hartigan, 768 F.2d

161 (7th Cir. 1985), cert. denied, No. 85-539

(Mar. 3, 1986) 10, 16
l’nited States « rel. Robinson Vv. McGinnis, 593

F. Supp. 175 (C.D. Ill. 1984), aff'd mem., 753
F.2d 1078 (7th Cir.), cert. denied, 471 U.S
1}

16 (1985) 16
Wainwright v. Sykes, 433 U.S. 72 (1977) LS
Wardius v. Oregon, 412 U.S. 470 (1973) 12, 15, 14, 19
Washinoton Vv. Teras, 388 U.S. 14 (1967) ll, i2, 15
Webb v. Texas, 409 U.S. 95 (1972) 1]
Williams Vv. Florida, 399 U.S. 78 (1970) 13, 14, 15, 25

Constitution, statutes, and rules

Amend. VI (Compulsory Process Clause) assin

Amend. AIV (Due Process Clause) . Bae 2
Jencks Act

lll. Ann. Stat. ch. LLOA (Smith-Hurd 1985

para. 412
para. 41

Rule 12.1(d)

Rule 12.2 |
Rule 16(d) (2) I
Rule 17 (b)

Iu the Supreme Court of the United States

LM IBER LER) LS i

BRIEF FOR THE UNITED STATES
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INTEREST OF THE UNITED STATES

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wane | A TRIAL COURT IN EVERY CASE PROW

Pri ‘ 1 DEFENSE WITNESS FPROW TES)
ryt ‘ , SANCTION FOR A DEFENSE VIOLA
rrON M“COVERY REOULIREWENT

10

1. The Compulsory Process Clause Forbids Only Arbi
trary Barriers To A Defendant’s Right To Offer A
Defense To The Charges Against Him

Petitioner contends Br LD that Line ( mpulisol
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rocess Ulause guarantees the defenda! he right to pre-
sent a defense at tria That right, he claims, i Violated
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tions are available. The premise of that argument. how-
ever, is overbroad. The Compulsory Process Clause does
ensure the accused the right to offer a defense at trial,
but it does so primarily, as its text indicates, by enabling
him to compel witnesses to be present US. Const

Amend. VI (“In all criminal prosecutions, the accused

shall enjoy the right * * * to have compulsory process
for obtaining witnesses in his favor.”): see Blackmer \
United States, 284 U.S. 421, 442 (1932 referring to
the right to subpoena defense witnesses).* A subsidiary
feature of the Clause is that it prohibits the application
of arbitrary proced iral o evidentiary rule preventing a
defendant fron offering relevant evidence at trial to sup

pe rT a cs fey ‘ Pov Ih \ lrka) sa8. No f) 130 | ine ??
1987 Chambers V. Mississippi, 410 U.S. 284 1973

Washington Vv. Texas, 388 U.S. 14 (1967): see also Webb

the Court’s decisions in Washington. (

am bs and
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Rock did not significantly curtail the freedom of legisla
es and courts to devise rules governing criminal trials
_rucial to the Court's decision in each case was the dete:
t10n that the particular restriction at issue was ar
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b. Reciprocal! Discovery Statutes

(ondition On The Presentation

Impose

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Of Defense Evidence

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‘ Preciuding A Defense Witness From Testifving rk
cause tf 1, Thiercoeverw Vielation Ie Not L\iwavs in

lL nreasonable Or Dispreperti nate >=anciion

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requirement, regardless of the circumstances. We be
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Petitioner favors imposing a penalty defense coun-
' er nol
sel, bu here is no guarantee that tl proach wil

ciplinary action to be remote and may take the risk of
receiving a small fine for contempt. Moreover, contempt
will not suffice—and usually will not even be appro-
priate—where it is the defendant’s fault that a witness’:

1°
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identity was del berately withheld. The threat of con-

tempt against defense counsel will do little or nothing to
discourage a defendant from identifying a known witness
only after trial has begun, and in that event the prospect
of a contempt sanction may create a conflict of interes
between the attorney and his client. Even if referring
defense counsel to the disciplinary committee of the loca
bar deters some attorneys from violating discovery rules,
that remedy will not ensure that a particular witness
ifies truthfully. Where the belated identification of
a witness bears the earmarks of a defense fabricated to
meet the prosecution’s evidence—as the trial judge found

+ | ‘ -

0 be the case here—a contempt sanction does little or
nothing to ensure the fairness of a particular proceeding
or the accuracy of a particular verdict.

Nor is it true that preclusion necessarily punishes the
defendant for his attorney’s error. Normally, the require-
ment that a defendant provide a witness list is trig
gered by a request from the prosecution. At that point.
defense counsel will confer with his client about the list.
Defense counsel will ordinarily rely on the accused to
identify relevant witnesses. See Strickland v. Washina-
ton, 466 U.S. 668, 691 (1984). If the defendant is not
in custody, counsel will rely on the defendant to help
locate them. Defense counsel will also often explain the
importance of listing all witnesses in order to comply
with the statute or rule. The blame for failing to list

a witness ma\ neretore oltten be laid a he defe dar -

doorstep.

19 ~(-

The- importance of having preclusion as an available
sanction is evidenced by the fact that most states and
the federal government authorize preclusion for a viola-
tion of alibi disclosure requirements. E.g., Fed. R. Crim.
P. 12.1(d)."* Indeed, in many states preclusion is the
sole remedy for alibi disclosure violations.’* The legisla-

13 See Rule 12.1 advisory committee notes, 18 U.S.C. App. at
591; Taliaferro v. State, 295 Md. at 387, 456 A.2d at 35; Epstein,
supra, 55 J. Crim. L. Criminology & Police Sci. at 35; Comment.
supra, 51 U. Chi. L. Rev. at 260, 281-285.

The advisory committee notes on Rule 12.1 stated (18 U.S.C.
App. at 591): “The court [in Wardius v. Oregon, 412 U.S. 470
(1973) | said that it did not consider the question of the ‘validity
of the threatened sanction, had petitioner chosen not to comply
with the notice-of-alibi rule.’ * * * Rule 12.1(e) provides that the
court may exclude the testimony of any witness whose name has
not been disclosed pursuant to the requirements of the rule. The
defendant may, however, testify himself. Prohibiting from testify-
ing a witness whose name was not disclosed is a common provision
in state statutes. See Epstein, [Advance Notice of Alibi, 55 J. Crim.
L. Criminology & Police Sci. 29, 35 (1964) 1. It is generally assumed
that the sanction is essential if the notice-of-alibi rule is to have
practical significance. See Epstein, supra, at 36. The use of the
term ‘may’ is intended to make clear that the judge may allow the
alibi witness to testify if, under the particular circumstances, there
is cause shown for the failure to conform to the requirements of
the rules. This is further emphasized by subdivision (f) which
provides for exceptions whenever ‘good cause’ is shown for the
exception.”

This rule as finally formulated was identical to the original
version submitted by this Court to Congress. The House bill on
Rule 12.1(d) as submitted to the House Committee would have
made exclusion of alibi witnesses the mandatory sanction if the
defense failed to comply with the disclosure requirements. H.R.
6799, 94th Cong., Ist Sess. (1975); see United States v. Smith,
524 F.2d at 1290 n.5.

14 Taliaferro Vv. State, 295 Md. at 387, 456 A.2d at 35-36: Com-
ment, supra, 51 U. Chir L. Rev. at 260. In 1984, notice-of-alibi

rules or statutes were in effect in 41 states and the District of
Columbia. Comment, supra, 51 U. Chi. L. Rev. at 259-260, 281-285.
Most jurisdictions have an express provision for the exclusion of
alibi witness. Taliaferro v. State, supra.

tive judgment that preclusion is sometimes necessary 1s
also reasonable. As this Court explained in Nationa
Hockey League Vv. Metropolitan Hockey Club, Inc., 427
U.S. 639, 643 (1976) (upholding dismissal of the plain-
tiff’s complaint under Fed. R. Civ. P. 37 for discovery
violations made in bad faith), “here, as in other areas

of the iaw, the most severe in the spectrum or sanctions

provided by statute or rule must be available to the dis-

;

rict court in appropriate cases, not merely to penalize
those whose conduct may be deemed to warrant such a
sanction, but to deter those who might be tempted to such
conduct in the absence of such a deterrent.”

This Court has also recognized that a preclusion remedy
is not invariably inconsistent with the Sixth Amendment.
In United States v. Nobles, 422 U.S. 225 (1975), the
Court upheld a trial eourt’s order excluding a defense in-
vestigatur’s testimony after defense counsel had refused
to disclose his report to the government. The Court
pointed out that “[t]he Sixth Amendment does not con-
fer the right to present testimony free from the legiti-
mate demands of the adversarial system; one cannot in-
voke the Sixth Amendment as a justification for present-
been a half-truth.” 422 U.S. at 241.

Moreover. the Court was unwilling to render hollow the

I ave

ing what mig!

requirement tnat tne defendant disclose the investigator s
|

report TO Tne or vernme ni n\ aiiowin’g his violation TO a8
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unremedied. Deciding. as we do, that it was within
the court’s discretion to assure that the jury would hear
. 17 . . . } }
the full testimon' or tne i1nve iwator ratner tnan a
+ yey 1-4 | , +) 1% os a) ; : | —", UW thin! +
truncated portion tavorabie to respondent, we (tnink 1

would be artificial indeed to deprive the court of the
power to effectuate that judgment” (7bid.

In Nobles, nondisclosure would have hampered the
prosecutor's ability to cross-examine a defense witness.
A defendant’s failure to disclose the names of his wit-

° ant : : aah ;
nesses before trial may have a similar effex . pecause

depriving the government of the opportunity to investi-

gate the witnesses will often impair the effectiveness of

21

the prosecution’s cross-examination. In both cases, the
existence of a preclusion sanction does not interfere with
the defendant’s right to present a defense. The defendant
has an unimpeded right to offer evidence, as long as he
complies with reasonable discovery rules applicable to
that evidence.

The fact that relevant defense evidence may be ex-
cluded is neither unusual nor fundamentally unfair. The
Court has recognized that defense evidence can be ex-
cluded or lost in a variety of other settings without
violating the Constitution. For example, in the case of
a violation of a sequestration order by a defense witness.
the court has the discretion to remedy tne violation by
precluding the witness from testifying. See Holder v.
United States. 150 U.S. 9] (1893): see also Rowan V.
Owens, 752 F.2d 1186, 1191 (7th Cir. 1984): United
States V. McClure, 734 F.2d 484, 495 (10th Cir. 1984):
United States v. Gibson, 675 F.2d 825, 835-836 (6th
Cir.), cert. denied, 459 U.S. 972 (1982), Compare Dut-
ton V. Brown, 812 F.2d 593, 599-602 (10th Cir. 1987)
‘en banc) (exclusion at the sentencing stage of a capital
case found improper). Similarly, the denial of a defense
request for a continuance may prevent a defendant from
presenting evidence, but not every denial of a continuance
“violates due process even if the party fails to offer evi-
dence or is compelled to defend without counse],”’ Ungar
y. Sarafite. 376 U.S. 575. 5R9 (1964): see also /saacs Vy.
l’nited States. 159 US. 187. 189 (1895 : Crumpton V.
United States, 138 U.S. 361, 364-365 (1891). Another
such example is provided by the case of potential defense
witnesses who are excused from testifying because of
their assertion of the privilege against compulsory self-
incrimination. Except in unusual cases, the courts have
held that a defendant has no Sixth Amendment right to
demand that the witness be given immunity so that he
can testify. Cf. Pillsbury Co. v. Conboy, 459 U.S. 248,
261-262 (1983)."° Finally, preindictment delay by the

'* The courts of appeals have overwhelmingly ruled that judges
: juag

may not immunize prospective defense witnesses without a request

22

prosecution may result in the prejudicial loss of evidence
to the defense, but the Court has held that no constitu-
tional violation is established unless the government has
manipulated the delay to gain a tactical advantage at
trial. United States v. Lovasco, 431 U.S. 783, 795 & n.17
(1977): United States v. Marion, 404 U.S. 307, 324
(1971)

In sum, although preclusion is a severe remedy, the
countervailing considerations are insufficient to justify
an absolute ban on its use. The other remedies that
petitioner proposes may not discourage violations of the
discovery rule, and an absolute ban on preclusion could
make a nullity out of reciprocal discovery. The policy
question whether preclusion should be an available pen-
alty should be left to Congress and the state legislatures,
who should be free to conclude for criminal cases, as this
Court determined in the National Hockey League case
for civil litigation, that a severe remedy is sometimes
necessary to enforce a defendant’s discovery obligations.

2. A balancing test is appropriate in a particular case
to determine what penalty, if any, should be imposed for

a violation of a discovery rule. A flagrant violation, for

from the prosecution. See, e.g., United States Vv. Whittington,
783 F.2d 1210, 1219-1220, on reh’g, 786 F.2d 644 (5th Cir.
1986), cert. denied, No. 85-1974 (Oct. 14, 1986); United States
v. Pennell, 737 F.2d 521, 526-528 (6th Cir. 1984), cert. denied,
i69 U.S. 1158 (1985); United States Vv. Gottesman, 724 F.2d 1517,
1524 (llth Cir. 1984); United States v. Bounos, 693 F.2d 38, 39
7th Cir. 1982); United States v. Hunter, 672 F.2d 815, 818 (10th
Cir. 1982): United States v. Karas, 624 F.2d 500, 505 ith Cir
1980), cert. denied, 449 U.S. 1078 1981); United States \V
Turkish, 623 F.2d 769, 771-779 (2d Cir. 1980), cert. denied, 449
U.S. 1077 (1981); United States Vv. Graham, 548 F.2d 1302, 1515
Sth Cir. 1977); United States v. Caldwell, 543 F.2d 1333, 1356
n.115 (D.C. Cir. 1974), cert. denied, 423 U.S. 1087 (1976); United
States v. Alessio, 528 F.2d 1079, 1081-1082 (9th Cir.), cert. de-
nied, 426 U.S. 948 (1976 gut cf. Government of Virgin Islands
Vv. Smith, 615 F.2d 964 (3d Cir. 1980 holding that a district

court may immunize a defense witness when he possesses essential

exculpatory information that is unavailable from other sources

23

example, differs from a technical or negligent one, and
should be treated differently. The trial court should
therefore consider a variety of factors in deciding upon
the proper sanction, such as the nature of the violation
(1.e., whether it was technical or in bad faith) ; the tim-
ing of the disclosure (i.e., whether the disclosure was un-
timely but in advance of trial, or whether it occurred
well into trial); the diligence shown by the defense to
uncover the witness before trial; the strength of each
party’s case; the identity of the person to be barred; '
the prejudice suffered by the prosecution; and the extent
to which alternative penalties can remedy the violation.
After considering these factors, the ccurt should weigh
the need for exclusion against the defendant’s opportunity
to present a defense and should attempt to tailor the
remedy to the wrong.'’ If the court’s assessment of the
competing interests is seriously flawed, the use of pre-
clusion as a remedy can result in a constitutional viola-
tion.

That approach is consistent with the decisions of the
federal courts applying the Jencks Act, 18 U.S.C. 3500.
The sanctions provision of the Jencks Act, 18 U.S.C.
3500(d), authorizes the courts to strike the testimony of
a government witness if the government fails to provide
the accused with a statement made by the witness relat-
ing to the subject matter of his testimony. The courts
of appeals have uniformly concluded that, absent a delib-

16 Preclusion would ordinarily be deemed unreasonable if it were
the defendant who was barred from testifying, since the prosecu-
tion will be prepared to refute the defendant’s version of the
events before trial commences. See Alicea v. Gagnon, 675 F.2d at
923-924. The Federal Rules of Criminal Procedure provide that
the defendant may not be prohibited from testifying because of a
violation of an alibi disclosure requirement. Fed. R. Crim. P.
12.1(d).

'™ Compare Societe Internationale v. Rogers, 357 U.S. 197 (1958)
(interpreting Fed. R. Civ. P. 37); cf. United States v. Morrison,
449 U.S. 361, 365 (1981) (“[o]ur approach has thus been to iden-
tify and then neutralize the taint by tailoring relief appropriate in
the circumstances to assure the defendant * * * a fair trial’’).

24

erate refusal by the government to disclose a witness’s
statement, a trial court is not required to strike the testi-
mony of a witness whose statement has not been turned
over to the defense. Rather, trial courts have the discre-
tion to formulate an appropriate remedy and should con-
sider both the government’s culpability and the extent to
which the defendant has been prejudiced.'* Thus, just as
the federal courts have been reluctant to preclude a gov-
ernment witness because of a Jencks Act violation, a
lesser remedy than preclusion will often be appropriate
as a sanction for a defendant’s discovery violation.’

There are two important practical considerations to
guide the foregoing general principles. First, in selecting
an appropriate remedy, a trial court should be entitled to
consider whether a newly-identified witness is credible.
The inquiry in this context is similar to the determina-
tion whether a defendant is entitled to a new trial on the
basis of newly-discovered evidence, where a court has the
authority to assess the credibility of the new evidence.
See, ¢.g., United States v. Wright, 625 F.2d 1017, 1019
(Ist Cir. 1980). Moreover, given the ease of fabricating

18 See, e.g., United States v. Gotchis, 803 F.2d 74, 78 (2d Cir.
1986) ; United States v. Balistrieri, 779 F.2d 1191, 1220-1221 (7th
Cir. 1985), cert. denied, No. 85-1653 (June 23, 1986); United
States Vv. Moeckly, 769 F.2d 453, 464 (8th Cir. 1985), cert. denied,
No. 85-1083 (May 5, 1986); United States v. Echeverry, 759 F.2d
1451, 1456 (9th Cir. 1985); United States v. Tashjian, 660 F.2d
829, 839 (1st Cir.), cert. denied, 454 U.S. 1102 (1981); United
States Vv. Pone, 574 F.2d 320, 322-327 (6th Cir.), cert. denied, 439
U.S. 868 (1978); United States v. Bryant, 439 F.2d 642, 651 (D.C.
Cir. 1971).

19 At the same time, a state may place the burden on the default-
ing party to show good cause why exclusion is not warranted
under the circumstances. The offending party may be given the
burden of showing why the sanction is excessive and suggesting

to the court that alternative sanctions are more appropriate. And
where there is no suggestion that alternative sanctions be em-
ployed, a trial court may properly exclude a witness without ex-
plaining why it did not use such penalties. State v. Boucino, 506
A.2d at 131; see United States v. Smith, 524 F.2d at 1289-1290.

~t

an alibi defense (Williams v. Florida, 399 U.S. at 81),
a court should be entitled to determine whether a newly-
disclosed alibi witness is likely to offer perjured testi-
mony. In some cases, this consideration is likely to help
the defendant: if a trial court determines that the de-
fense meets the standard for obtaining a new trial on the
basis of newly-discovered evidence (see United States v.
Agurs, 427 U.S. 97, 111 (1976)), that conclusion mili-
tates in favor of permitting the accused to introduce the
witness.

Second, a trial court need not interrupt a trial to hold
an evidentiary proceeding to determine whether the de-
fendant, his lawyer, or both are responsible for the viola-
tion. Rather, the court is entitled to presume that de-
fense counsel was competent (see Strickland v. Washing-
ton, 466 U.S. at 690) and discussed the defense discovery
requirements with his client. Thus, a discovery violation
ordinarily can be charged to the accused. See Murray v.
* At the same time, there are addi-
tional safeguards to ensure that an innocent person is
not convicted. A defendant can always attempt to show
that the violation was attributable to his attorney’s care-
lessness, for instance, and that counsel was constitution-
ally ineffective. See Strickland v. Washington, supra.

Carrier, slip op. 7.

Moreover, a witness should not be barred from testifying

-° As the Court held in Murray Vv. Carrier, slip op. 7: “So long
as a defendant is represented by counsel whose performance is not
constitutionally ineffective under the standards established in
Strickland Vv. Washington, supra, we discern no inequity in requir-
ing him to bear the risk of attorney error that results in a pro-
cedural default.” See also Link v. Wabash R.R., 370 U.S. 626,
633-634 (1962) (citation omitted) (“Petitioner voluntarily chose
this attorney as his representative in the action, and he cannot
now avoid the consequences of the acts or omissions of this freely
selected agent. Any other notion would be wholly inconsistent
with our system of representative litigation, in which each party
is deemed bound by the acts of his lawyer-agent and is considered

to have ‘notice of all facts, notice of which can be charged upon the
attorney.’ ”’).

26

if his exclusion would result in a miscarriage of justice.
Accordingly, in an extraordinary case, where the court
concludes that preclusion would probably result in the
conviction of a person who is actually innocent, a preclu-
sion sanction should not be used, even if the other criteria
would support the exclusion of the defense witness. In
such a case the use of the preclusion sanction would be
an error of constitutional dimension. See Murray v. Car-
rier, slip op. 15.

D. Preclusion Was A Permissible Sanction In This Case
Because The Defense Willfully Violated Its Discovery
Requirements

In this case, it is clear that Wormley was deliberately
excluded from the witness list, and the trial court so
found (J.A. 28). The trial court determined that “this is a
blat{a]nt violation of the discovery rules, [a] willful vio-
lation of the rules,” done for the “purpos[e] [of] * * *
get([ting] an edge for [petitioner]” (ibid.). The dis-
covery violation was aggravated when defense counsel
did not mention Wormley or his expected testimony in
his opening statement, and when he postponed disclosure
of Wormley’s name until the State had already presented
its two most important witnesses. Those facts alone
would be sufficient to sustain the trial court’s preclusion
ruling, because they manifest a clear design on the part
of defense counsel to flout the discovery rules in an effort
to gain a tactical advantage for retitioner. But there
is more.

Wormley was not an eyewitness to the fracas or the
shooting. Aithough he stated that he saw Bridges hand
a wianket containing two guns te his then-girl friend,
Wormley’s testimony was not directly exculpatory, and
in any event the trial court expressed grave doubts about
the credibisity of Wormley’s story (J.A. 28). This case
was therefore not one in which the exclusion of a defense
witness resulted in the conviction of a person who was
probably innocent. Finally, petitioner failed to demon-

rae |
strate to the dis‘ rict court that preclusion was an ‘nappro-
priate remedy. While the court mentioned that disciplinary
proceedings against defense counsel might be appro} riate,
petitioner did not suggest to the trial court that preclu-
sion was excessive to the point of being unconstitutional,
nor did he suggest an alternative sanction that would
have given effect to the discovery requirement. Under
these circumstances, the Compulsory Process Claise was
not violated, because the trial court fairly exe sed its
discretion in excluding a witness who haa bee. delib-
arately omitted from the witness list, and whos exclu-
sion, in the court’s view, would not lead to a miscarriage
of justice in the case.

CONCLUSION
The judgment of the Appellate Court of Illinois, First

District, should be affirmed.

Respectfully submitted.

CHARLES FRIED
Solicitor General
WILLIAM F.. WELD
Assistant Attorney General
WILLIAM C. BRYSON
Deputy Solicitor General
PAUL J. LARKIN, JR.
Assistant to the Solicitor General

SIDNEY M. GLAZer
Attorney

JULY 1987

U. S&S. GOVERNMENT PRINTING OFFice; 1967 161463 40412

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0979%3A6. Public record. Not legal advice.