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Prosecutor’s belittling the defense becomes feces thrown at a fan

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A great trial law teacher warned criminal defense lawyers about throwing feces at an opposing witness during cross examination, lest the witness act like a cooling fan that shoots back the feces all over the lawyer’s face and clothes.

Too many prosecutors cloak police with too much honesty and reliability, and criminal defendants in terms of scum, when prosecutors are obligated independently to assess their case evidence, even if it turns out that the office lied or were otherwise inaccurate.

Enter Tyrone Moore, who was convicted of carjacking after the victim identified him in a photo lineup. At the time of the carjacking, Moore wore dreadlocks, and the first driver observed in the stolen car — Larry Pollin — also wore dreadlocks. However, throughout the trial and beyond, the prosecution and its relevant police witness insisted that Pollin wore short hair at the time of the carjacking.

Kudos to Moore for insisting to his lawyers, even after the jury’s guilty verdict, that Pollin had dreadlocks at the time of the incident. Praised be Moore’s defense team for learning, post-trial, from Pollin’s lawyer that Pollin did in fact have dreadlocks at the time of the carjacking. (Query why Pollin’s lawyer gave up such information, thus exposing Pollin to a greater likelihood of prosecution for the carjacking)

Shame on the prosecutor for responding as follows when Moore’s lawyer asked post-trial for the date of the Pollin short-hair photo presented at trial by the prosecution: “’To the extent that your client claims to have seen [Pollin] … in December with dre[a]ds, he is either mistaken or lying. Care to guess which it is?’” U.S. v. Moore, 709 F.3d 287 291 (4th Cir., March 1, 2013). The Fourth Circuit retorted last month: "As it turns out, the government was the one mistaken. Pollin did indeed have dreadlocks in November and December 2007, and the date on the Short Hair Picture was wrong." Id

Do Attorney General Eric Holder and President Barack Obama want prosecutors who are so contemptuous of criminal defendants and the criminal defense function?

Praised be Moore’s arguing lawyer James Nichols and on-brief lawyer Byron Warnken (also a law professor who helped me pass the Maryland Bar, as an instructor, by boiling the exam down to its simplest parts) for obtaining a retrial for Moore. The Fourth Circuit concluded that Moore met all of the following five prongs for obtaining a new trial, even though the trial court said that Moore had only met the first three prongs:

To be entitled to a new trial under Federal Rule of Criminal Procedure 33 based on newly discovered evidence, a defendant must satisfy a five-part test by showing that (1) the evidence is newly discovered; (2) the defendant exercised due diligence; (3) the newly discovered evidence is not merely cumulative or impeaching; (4) the evidence is material; and (5) the evidence would probably result in acquittal at a new trial. See United States v. Chavis, 880 F.2d 788, 793 (4th Cir. 1989) ("Chavis Test"). We review the denial of a motion for a new trial for an abuse of discretion. United States v. Perry, 335 F.3d 316, 320 (4th Cir. 2003).

Moore, 703 F.3d at 292.

Moore further explains the date discrepancy on Pollin’s short-hair photo:

The government has now admitted that the Short Hair Picture it received from Harford County, produced to Moore, used and relied upon at trial, and represented to have been taken on December 31, 2007, was, unbeknownst to it at the time of trial, not taken until early 2009 when Pollin first cut off his dreadlocks.

This discrepancy resulted from a system utilized by Harford County up until Spring 2009, in which booking photographs were replaced automatically by new photographs whenever an inmate changed his or her appearance dramatically. According to Corporal Christopher Crespo, a booking supervisor with the Harford County Sheriff’s Office, under this system, an inmate’s original booking photograph would always be retained in a hard-copy file but the electronic copy of the original booking photograph would be replaced by any new photographs that were taken to depict an inmate’s then-current appearance. And as is evident from the facts of this case, the new electronic photograph would apparently retain the date of the inmate’s initial booking, as if the new picture were taken when the inmate was initially processed and brought into the detention facility. Corporal Crespo further stated that the Short Hair Picture was taken in January 2009 and that his review of the complete record of photographs revealed that Pollin had dreadlocks until January 2009.

Moore, 703 F.3d at 292.

Here, Moore only won through his dogged insistence to his lawyers that Pollin had dreadlocks at the time of the carjacking, through his lawyers’ treating Moore’s claim seriously, and through Moore and his lawyers fighting through his appeal. Moore’s and many other criminal defendants’ victories only come through such meticulous, dogged, and panning-for-gold struggles of defendants and their lawyers.